Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Joan Biskupic:

This court is so consistent in what it’s doing, consistent in its rollback of regulatory authority, consistent in its evisceration of reproductive rights, consistent in its lowering of the wall of separation between church and state. So that’s what’s different here.

Preet Bharara:

That’s Joan Biskupic. She’s the Senior Supreme Court analyst at CNN. For decades, Biskupic has been one of the most widely respected and well sourced Supreme Court reporters. She’s out with a new book called Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences. The book is quite revealing about the justice’s personalities, disagreements and previously unreported backroom deals. I spoke with Joan about the latest issues facing the court, the revelations about Clarence Thomas’s financial relationship with the GOP donor and the Miff Stone case that’s coming up. Stay tuned.

Now let’s get to your questions. This question comes in an email from Tom who says, hi Preet. Are there restrictions on when and how superseding indictments can be filed? Are they ever used when a prosecutor wants to delay revealing her/his full strategy for pursuing a case? For example, could DA Bragg already be planning a superseding indictment of conspiracy against Trump? Thanks, Tom. Tom, that’s a good question. So for people who are not familiar to be charged with and go to trial on a felony criminal charge, you must be indicted by a grand jury unless you choose to waive that. And then in the federal system, you proceed on what’s called an information. Now prosecutors generally have free reign at some point subsequent to bringing an initial indictment to supersede. In other words, bring a new set of charges or modify the charges or alter the allegations in some way.

Generally speaking, they are unfettered in their right to supersede. There may be occasions where on the eve of trial, on the initial indictment, prosecutors supersede add charges, make the case more complicated, and a judge will say, “We can’t go to trial immediately or on the same timeframe on the superseding indictment. We either have to adjourn the trial or we proceed on the original indictment.” What are some of the general reasons why a prosecutor may supersede? Well, sometimes there’s new evidence that comes to light after the bringing of the initial indictment. Sometimes new defendants come to light or you develop evidence against other defendants and choose to bring them in, whether for conspiracy purposes or other reasons into the initial charge. And you superseded in that way.

And by the way, you might supersede a number of times with certain complex cases. Sometimes you’ll have multiple supersedes as they’re called. On other occasions you decide to consolidate your counts and on yet other occasions you decide to split your counts. So there are all sorts of reasons why you might want to supersede. Now, as to your theory or speculation about delaying, revealing the full strategy, that typically is not done and I don’t think that’s what’s going on here with Alvin Bragg. Remember, the DA’s office has had years, many years to put together this case. Some people have referred to it within the DA’s office as the zombie case. So I don’t know what it’s to be gained by playing close to the vest at this point and hiding what is a potential charge of conspiracy. If you could have made the charge, I think Alvin Bragg would’ve made the charge as an initial matter.

This question comes in an email from Tony. Hi Preet. Love the show. A simple question, what is the benefit of asking a series of questions in a deposition if the person just pleads the fifth for all the questions, obviously it’s in the Constitution. Just why? Well, that’s a very good pragmatic question because if I seem tedious when we hear reports of someone going in for a deposition or other kinds of testimony and upon our, our merely pleads the Fifth Amendment, what’s the point of all that? Well, sometimes the party that’s taking the deposition or who’s getting the testimony doesn’t know necessarily in advance that the Fifth Amendment will be pled to absolutely every question.

And often it’s the case that even though it seems like the fifth is being pled a lot, it is not being asserted in response to every single possible question. Also, the party who’s taking the deposition and getting the testimony, it’s useful for them to create a record of what questions are drawing the Fifth Amendment response and which questions aren’t. There are opportunities potentially to go to a judge and compel testimony because there might be an argument that a particular answer to a particular question does not really tend to incriminate someone. So lawyers are careful, lawyers are tedious, lawyers are more or less patient. So that’s part of the reason why you go through that process and that effort.

I’ll be right back with my conversation with Joan Biskupic. It’s no secret that the current Supreme Court is more conservative than any in nearly a century. My guest this week, Joan Biskupic has written a book about how we got here. Joan Biskupic, welcome back to the show.

Joan Biskupic:

Thanks, Preet It’s great to be with you.

Preet Bharara:

Congratulations on your new book. Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences. There is something that I think last time I either didn’t know about or I don’t think I asked you about, and that is the fact that you are one of nine siblings.

Joan Biskupic:

Preet, you are such a great reader of acknowledgements. And I love that about you because you brought up something from my acknowledgements last time about the fact that my parents who have now passed away had saved all my clippings from the Washington Post and all my newspapers and I’d gone through those and I appreciated that.

Preet Bharara:

Of course they did. But the coincidence of nine and you covered the Supreme Court, I believe there are 1, 2, 3, 4, 9 justices coincidence?

Joan Biskupic:

No, I’m drawn to groups of nine. I understand them.

Preet Bharara:

For Halloween, did you and your siblings ever go as the court?

Joan Biskupic:

No, we were from the south side of Chicago. We weren’t even thinking the Supreme Court, but now there are a couple of younger brothers who are our lawyers and court groupies. So I suppose we could if we were all in the same city, Preet.

Preet Bharara:

Yeah. It’s a pretty easy costume. All I need is-

Joan Biskupic:

It’s so easy. I’m afraid-

Preet Bharara:

Nine black robes.

Joan Biskupic:

And those robes are a dime a dozen. You can pick them up anywhere, a gavel, easy to find.

Preet Bharara:

Are you sad that the chief justice doesn’t wear a special robe like Justice Rehnquist used to wear.

Joan Biskupic:

Chief Justice Rehnquist had such a playful side. You probably remember that he put the four stripes on each of his sleeves after seeing a production of a Gilbert and Sullivan Light Opera, a Olan that he thought I’m going to be like that chancellor or chief muckety-muck in that opera and do it. And I don’t think John Roberts will ever adorn his robe with stripes.

Preet Bharara:

Do you think Justice Thomas would ever take a corporate endorsement and put this is my segue into all the news. We have a lot of things to talk about the jurisprudence of the court, the move to the right, but there are two big issues that are swirling around as we record this in the lunchtime hour on Monday, April 17th. And between now and when this podcast drops, there may be more revelations. Could you just summarize where we are with respect to the issues relating to Harlan Crow, this conservative billionaire with whom Clarence Thomas has had a longtime friendship and relationship and if this is a problem or not.

Joan Biskupic:

I love this question because I can give you a yes and no answer. First of all, the most recent revelations from ProPublica that starting on, I think it was like about April 6th dropped their first story about the relationship that involved his private jet super yacht, going to all these luxurious resorts and places across the globe in Indonesia and New Zealand and all sorts of places that you wouldn’t go in the vaunted RV that Justice Thomas all often talks about. So that was a really surprising story and with very detailed reporting by ProPublica, they interviewed people who were at these luxurious resources, people who had been aware of all the mingling that Justice Thomas had done with Harlan Crow and with other conservative activists and moneyed interests. So that was important.

And then the second story, as you’re well aware, involved Harlan Crow buying property in Savannah that had been owned by Thomas’s family and Clarence Thomas not disclosing these. That’s the key point here is that he didn’t disclose the trips, the gifts, the real estate ventures and that’s what appears to have violated rules of financial disclosure reports. That’s the main thing that’s going on. But I wanted to say now that we’ve had instances like this come up over the past 30 years as Justice Thomas has been on the court and nothing really sticks. To be fair to Justice Thomas, he did say that he had been told by unnamed colleagues that he didn’t need to report the trips that he had taken with-

Preet Bharara:

That’s about the travel.

Joan Biskupic:

Yes.

Preet Bharara:

But has he said something about the disclosure about the real estate transaction?

Joan Biskupic:

No, at this moment he has not said anything. We think he might just from some reporting here, but as of this moment at noon on Monday, he has not, and I’m not sure how exactly he will explain that transaction, but he seems to accept that that should have been recorded. Whereas the first one he said there was some question about whether he should record those trips and that his colleagues advised him not to. And what I take from that, Preet, is this culture of non-disclosure of little explanation, no comment. They don’t think they have to answer to the public, to members of Congress who ask about this and to watchdog groups generally.

Now Clarence Thomas would probably say, “Well, but I am answering.” But he’s had to correct his forms several times over time. And the other issue is that there’s no way for us to know what we don’t know. ProPublica did an excellent job ferreting out this information from these lavish trips, but members of Congress haven’t been able to do that. And the general media that covers the court is doing broader work and isn’t getting down into those kinds of investigations. I think you’re going to see more of those, Preet, and I think the justices are in for the scrutiny that they’ve previously been able to avoid.

Preet Bharara:

What do you make about the fact that Clarence Thomas and other justices are often silent in the face of this criticism that he did come out and make a statement some days ago before the real estate transaction revelations came to the fore. Do you think as some have suggested that he is a little bit nervous this time?

Joan Biskupic:

Not necessarily because there seems to be so much more. There seems to be many other things that aren’t being addressed. And in some ways that statement raised other questions about why he had previously reported some travel and not other travel and you know exactly what we’ll hear from him on the real estate issue. And then there was another story in the Washington Post on Sunday about some income that he reported from what appears to be a now defunct business in Nebraska, his wife Jenny’s home state. So I’m not sure if this will be part of a pattern of speaking to people. I think actually the pattern has been that they usually don’t say anything as you I’m sure remember well, when there were all sorts of questions about why he didn’t want to recuse himself from cases involving the January 6th insurrection and the election cases given Gin Thomas’s deep involvement in trying to reverse the election results that went for Joe Biden. He didn’t say anything that time.

Preet Bharara:

Based on your understanding of the court and your relationship with the justices and all the reporting you’ve done over the years, what do you expect if anything is happening behind the scenes at the court? Is John Roberts talking to Thomas about this giving him advice? Are they all gossiping in the lunchroom? Are they leaving it alone? What’s your sense?

Joan Biskupic:

I think it’s a mix. What I always say is they have many differences among themselves and they have conflicts over where to go on a formal code of ethics. There’s no unanimity among the nine on that. And the chief has been trying to develop some code, but what they do do is close ranks in the face of criticism. So I think that some of Clarence Thomas’s colleagues might be critical of what he did and did not report, but they do bristle at so much scrutiny and I frankly think that other justices might also have some issues of non-disclosure. I don’t want to just put that out there without mentioning anything. But the point is that nobody scrutinizes these reports really, they’ve gotten away with decreasing the amount of information that goes on these forms.

Back in the nineties, you could write very deep stories off of these financial disclosure reports because you could see all the travel they took, the details, various hotels and transportation were reimbursed for both the justice and their spouses. It was, and you could see all these gifts that they got and those kinds of things just aren’t showing up as much anymore on the forms. But here’s the thing that is going on because I have done some reporting on this. There is a consensus, at least with the chief and a couple of the other justices that they should in some ways formalize their ethics rules as you know right now-

Preet Bharara:

They’re working on that right now.

Joan Biskupic:

Yes, but they have been for four years. Elena Kagan told a house subcommittee hearing back in May of 2019 that the chief was very much interested in a formal code of ethics for the justices like what now applies to the lower court judges, but then nothing ever came of it and the public information office has had nothing about that since. My reporting has indicated that the chief is still pushing it, but in a casual way in effect they’ve just dithered and then one of these big issues come up and this is such a fraught situation to develop one.

Preet Bharara:

Do you have any sense of what the sticking point is of the particular disclosure or ethical rule that there’s disagreement over? Because I imagine there must be some consensus about some of this stuff.

Joan Biskupic:

And I’m not sure. I think one issue has got to be who oversees this because one of the reasons they don’t have their own mechanism right now with a formal code and a grievance process is because they think they are above it all and they think they are above it all and they do not want any complaints about them to be scrutinized by lower court judges. As you know, this is really interesting, Preet, that if you file a complaint against a lower court judge, and let’s just use Brett Kavanaugh as an example because this is a very real example.

During his 2018 confirmation hearings, of course you had the Christine Blasey Ford episode, but you also had him striking out with a very partisan tinged response that got a lot of people complaining about including then retired Justice John Paul Stevens questioning whether he had the proper judicial temperament. So a lot of complaints were filed with the DC circuit where he was sitting at the time the DC circuit transferred them to the chief chief transfers them out to the 10th circuit and the 10th circuit is looking at them. But the minute he gets to be a justice, the 10th circuit chief judge says, we have to dismiss these. He’s a justice, he’s not covered by the code of conduct.

Preet Bharara:

You wrote recently about some of these issues and I was struck by a quote that I don’t recall from Chief Justice John Roberts back in 2009 on C-SPAN, and you quote him as saying.

Chief Justice John Roberts:

I think the most important thing for the public to understand is that we are not a political branch of government. They don’t elect us if they don’t like what we’re doing. It’s more or less just too bad.

Preet Bharara:

Am I right to be struck by that quote?

Joan Biskupic:

He definitely said it. And then he went on to talk about how the only way to get rid of a justice is the impeachment process. Impeachment and conviction, the same process that we know works for president.

Preet Bharara:

It’s a little disrespectful to the public and a bit more blase than he usually is. What was going on there?

Joan Biskupic:

Well, the context was, it was a long interview on C-SPAN and the interviewer, Susan Swain of C-SPAN was asking, what doesn’t the public get about the Supreme Court? So it was a broad question. There was no ethics issue on the table. It was more instance of John Roberts. And I’ve watched that clip many times. I’ve watched that whole interview many times, John Roberts wanting to say, “We are here to decide the law. We will interpret the constitution, we will interpret federal statutes, but we’re not here to answer to people for our off bench conduct beyond how we rule.” And he’s also said something I thought was so interesting along these lines about how he doesn’t feel like his role is to educate the public about the court. This came up at another interview he did in a academic setting, I think was Rensselaer speaking to then the university president.

And there was a question that came up about how the public would like to know more about how the court operates, the education side of the court. And he said something that I found surprising then too. And his point was that the role of the justices is not to tell the people how it works, not it’s not a educational role, it’s a role. We are judges, justices deciding the law and we’re out of here. But I think that that’s caused problems because they have to have public confidence. Their public approval is dropping and they feel like they don’t need to answer. And the chief during any of these episodes with Clarence Thomas or the other justices, chief Justice John Roberts, has never responded to reporters’ questions.

Preet Bharara:

Elsewhere in the same piece that I quoted from, you write this, “The high court has long benefited from a certain degree of goodwill. Free of the scrutiny watchdog groups and news media have given the legislative and executive branches of government. They may have squandered that goodwill.” May have?

Joan Biskupic:

Yeah. It’s so funny, you know what? I rewrote that sentence. At first I said, and I’ll tell you at first I thought, “Well, I wonder if I could just say they squandered that.”

Preet Bharara:

I don’t know why you’re hedging there, Joan.

Joan Biskupic:

I know. That’s because I still am a little bit of a hedging person. So I did hedge. You’re right, I hedged. And I think that arguably people would say it’s over. They have squandered so much goodwill. But remember how polarized the American public is. There are people sitting out there saying, “You go, Clarence Thomas, you’re great. We love what the conservative super majority is doing.” So even though public opinion polls show that their approval is plummeting, there’s a core faction of the conservative base that’s with them.

Preet Bharara:

What can Congress do? Does Congress have any ability to really do something about these ethics and disclosure questions?

Joan Biskupic:

I think in the end they can apply some pressure but they can’t. You know firsthand, you were there. You know what it’s like. Some of your former bosses and colleagues are skittish about the separation of powers issues. Some of them would like to have the court adopt a code of conduct on its own without them having to say, “Well, we might not give you the same amount of funding.” I think that the Congress can apply pressure. I think Congress can hold hearings. I think Congress can scrutinize some of these reports. But when all is said and done, the chief justice is right. The only way to really have any hammer over them is the impeachment process.

Preet Bharara:

I don’t know if people appreciate how much it ranks members of the other branches, particularly in Congress. The member I work for, Senator Schumer, he never said this in so many words, but you knew it was the feeling that. He’s a senator and his colleagues were senators in the legislative branch of government and certain rules applied to them. And these kinds of disclosures, if not made by a senator or a member of the House, there would be held to pay. There would be an ethics investigation by a sanctioned committee within the body. And the public wouldn’t forgive it. Similarly, in a very different context, I think a lot of members of Congress can’t get over the fact that C-SPAN has a camera trained on their place of business on the floor of the house and on the floor of the Senate at all times. But you can’t get a camera into a Supreme Court argument. That difference of treatment doesn’t make a ton of sense to some members of Congress.

Joan Biskupic:

And I really understand that. And I think it doesn’t make a ton of sense to many members of the public. And this is where the notion of goodwill, they have been allowed a certain place in the American eye and this no comment, no comment, no comment. Maybe we’d get sloppy with some of our disclosure reports. Maybe we don’t want to have any formal ethics code. Those kinds of actions in return just exacerbates the problems that people are seeing. And I can see how Senator Schumer and his colleagues are so rankled on the trips. People in my business have full-time jobs keeping track of the junkets.

Preet Bharara:

That’s exactly right. Do you think that Thomas will say something further or do you think he’s done?

Joan Biskupic:

I think will. I think he has suggested that he will at least try to instill some confidence in how he completes these financial disclosure forms, maybe acknowledge some other things were missing from them. I don’t know how far he will go. And the other thing that I think happens, my sense is that he has to be careful on what he says because an incomplete answer can raise more questions. And as I’ve suggested, I just wonder how incomplete other forms and other lines on those forms have been and ditto with some of his colleagues.

Preet Bharara:

I’ll be right back with Joan Biskupic after this.

I want to get to the other big Supreme Court news or I guess judicial news, potentially Supreme Court news that may occur before this podcast even airs with us respect to the abortion bill. But before we get there, I want you to set the scene for a lot of what you talk about in the book, how we got to this point. First, I want to recite a statistic that you refer to in your book, and I’ve used a version of this over the last number of years to argue for the first time in my professional life that maybe distinct terms should be applied to the Supreme Court and life tenure is not a great idea because of the happenstance of how a president gets to appoint a Supreme Court justice. And this is jarring to people if they haven’t been thinking about it.

Now Donald Trump in four years appointed or had the opportunity to appoint three justices, the three prior Democratic presidents over the course of 20 years. Carter’s one term, Clinton’s two terms in Obama’s two terms. Whereas Trump appointed three and four, they appointed only four in 20 years in office. Do we have a fair system of appointing justices to vacancies?

Joan Biskupic:

That really got my attention too, Preet. And then the other thing, the piece I would add for our audience is when you look at the ages of these three Trump appointees and you look at just the idea of strategic retirements, which is what we have now, strategic retirements and replacements. This type of court, I should say, is going to be with us for a half century. This is the court you’ll have and your children will have just because of what Donald Trump was able to do, what George W. Bush was able to do, the ages of these people and that now we’re rarely going to have a situation like Ruth Bader Ginsburg where someone dies in the tall black leather chair and allows a president of the other party to make the appointment. So it is staggering. And as you know, there isn’t much momentum for term limits right now. Even President Biden has said he doesn’t want it. But you look at that record and I could see why people would want term limits.

Preet Bharara:

In 100 years, it could go the other way.

Joan Biskupic:

Yeah, in 100 years.

Preet Bharara:

Yeah. I mean it’s going to take a while, but hopefully the Republic will live on for many millennial though people have doubts about that. The way I think about it is you have three separate branches of government. The judicial branch in many ways is the more incremental branch and they pay a lot of attention to precedent, although less so, and we’ll talk about that too perhaps. But that overall, over the course of time, and certainly over the course of 20, 30, 40 years, the court is supposed to reflect the general ideological disposition of the country, I think. And because of the way that justices get appointed and have life tenure and the happenstance of who happens to be president and the luck of Trump getting three and Carter getting zero. Carter got zero.

Joan Biskupic:

Isn’t that something? Yeah.

Preet Bharara:

Trump got infinity more appointments to the Supreme Court than Carter that you can increasingly get out of whack. I don’t know how conservative or liberal the country is, but it’s certainly more progressive than the court. How would you describe the delta between the ideology of the court versus the country at this moment and has it ever been greater?

Joan Biskupic:

I think you’re exactly right that it is pretty great. And you’d have to go back pretty far, perhaps to the Lochner era, to find a court that seemed out of whack.

Preet Bharara:

So the thirties?

Joan Biskupic:

Yeah. To where the country was. And it is pretty surprising. I first started covering the court full-time for the Washington Post in 1992, and it was a five four court. The conservatives were in the majority, and I remember I would often refer to it as a conservative court. I would never refer to it as a far right court. I would never refer to it as a court that was only conservative because back then the middle of the court was Sandra Day O’Connor, Anthony Kennedy. You still had two Republican appointees who would move to the left, John Paul Stevens and David Souter. It was such a different court, even though it was all things considered a generally conservative court, but it was more in sync with the country because at that point, as in 1992, all these Republican appointees said, “We might not have voted for Roe V. Wade in 1973, but we’re not reversing it. We believe in precedent.”

It was the same court that started opening door to gay legal rights. It was a court that was more mixed. This court is so consistent in what it’s doing, consistent in its rollback of regulatory authority, consistent in its evisceration of reproductive rights, consistent in its lowering of the wall of separation between church and state. So that’s what’s different here is that you have a conservative super majority for starters. So you have one more, which makes such a difference, Preet, but then also the nature of the conservative justices has changed and I think it is decidedly as a whole collectively out of step with the country.

Preet Bharara:

Well, part of the reason is if you think over time about the disjunction between where the country is in terms of who they’ve elected to be president, Democrat versus Republican. It would be even more out of whack had not some Republican appointments in the past, not currently, but in the past have been a little bit more progressive than the appointing presidents would’ve liked or anticipated. No more justice suitors are being appointed by Republican presidents, correct?

Joan Biskupic:

That’s exactly right. Because of the mantra, no more suitors, but also they have gotten so good at their screening process, nobody’s going to slip through. Donald Trump vowed to appoint three justices who would reverse abortion rights, and his three appointees voted to reverse abortion rights. Ronald Reagan probably thought in Anthony Kennedy and in Sandra Day O’Connor, he was getting anti-abortion justices. He didn’t. Although both of them had voted to increase regulation on abortion. And you know what, in the end, Ronald Reagan never complained about Sandra Day O’Connor. He liked her irrespective of how she ended up going on that issue. You didn’t feel that everything was such a done deal in the appointments of the earlier Republican appointees.

Preet Bharara:

In fairness to the Republicans, is there anything wrong with that?

Joan Biskupic:

No. I guess if you are a hard right Republican and that’s what you want, then no, there isn’t. And the Democrats tried to mirror that a bit with the American Constitution Society as a-

Preet Bharara:

They’re terrible at it.

Joan Biskupic:

Yeah, exactly. The Federalist Society-

Preet Bharara:

My apologies to my friends.

Joan Biskupic:

Yes. They’re your people. The Federalist Society is so darn disciplined. And Don McGahn, as you know, is a figure through this book, and Don McGahn pushes back on the idea that the Trump White House outsourced its judicial selection by say, and what he says is, no, it was insourced. We are in the castle. We wanted people who were part of the Federalist Society because we wanted to know that those people were with us and not against us. So when you say, is there something wrong with that? It’s effective, but what it does is it puts a new lens on judicial selection that wasn’t there with such discipline in the eighties and nineties.

Preet Bharara:

For the lay public, someone asked me this the other day because people like you and me throw around the references to the Federalist Society as if everyone knows what that is. Could you explain actually what the Federalist Society is?

Joan Biskupic:

Sure. And I traced it because of my work on Justice Scalia, who was my second biographical subject and who I talked to at length about the Federalist Society and many other things over the course of more than a dozen interviews.

Preet Bharara:

I imagine that you have spoken at Federalist Society events I have jointly put on by other groups when sometimes not?

Joan Biskupic:

Remember how it was just a very pure debating society and Justice Scalia was present at the creation. He was a University of Chicago law professor who became the faculty advisor to the branch that was started at Chicago and Yale by three former Yale undergrads who wanted to continue a conservative debating society that they had had in New Haven. And they thought, “Look, Ronald Reagan has just won and we’re feeling so outnumbered on campus. Let’s keep starting this.” So in the eighties at the very first session, I think Stephen Breyer spoke along with Robert Bork and Antonin Scalia. So there was just a lot of variety in their debates in their forums, and it became quite a popular setting for conservative ideas and it helped propel Robert Bork’s brand of Originalism Forward.

But then what happened is that it became much more of a networking moneyed entity and in part because of Leonard Leo, who is incredibly effective at what he does in terms of raising money and helping to build a network that would screen lower court candidates and then ultimately Supreme Court candidates for total ideological consistency. So it became something much more, and now anyone who wants to be appointed to the federal courts under a Republican president must get his or her ticket punched with the Federalist Society.

Preet Bharara:

We talk about the Federalist Society having all this power, but it only has the power because the senators and the presidents on the Republican side choose to give it that power.

Joan Biskupic:

Absolutely.

Preet Bharara:

There’s no outside group, either the American Constitution Society or anyone else who has the ability to dictate to a President Obama or President Clinton or President Biden or any future president, you must choose someone from this list. The White House Council would say, “Go to hell?”

Joan Biskupic:

Yeah, jump in the lake. Jump in the lake.

Preet Bharara:

Jump in the lake.

Joan Biskupic:

Jump in the lake, Preet. Okay. So here’s the thing though. This is so interesting about the difference, and I can tell you the justices, there’s even a difference. Well, first of all, all of the Republican appointees have spoken at federal society events over the years, including the chief who now isn’t going to do that but he had. But then on for the American Constitution Society, Elena Kagan made a point decidedly not to speak at the ACS. You have a certain loyalty to the Federalist Society that is before, during and after product. And I think the members of the Senate, as you rightly say, and Republican presidents adhere to that, where Joe Biden and his team, he has a very good judge picking team on board. I’m sure they listen to some extent to the ACS, but they’re not listening to it the way the Republicans are listening to the Federalist Society.

Preet Bharara:

But so on the question of abortion, I’ve always thought up until Dobbs Gott decided that the greater effort and attention and focus on the high court on the Republican side made sense because they wanted to change. The status quo was not acceptable to them with the constitutional right to abortion. Do you think that that may flip because now on the progressive side, the status quo is not acceptable?

Joan Biskupic:

Absolutely. And I’ll tell you why I think that. Think of the 2022 elections, how Democrats did well think of Wisconsin recently. Think of how much more criticism and scrutiny the court is getting largely because of Dobbs. Before Amy Coney Barrett took her seat, I used to predict that they would never overturn Roe. I mean, I guess maybe I started changing my tune in 2018 when Justice Kennedy retired and Brett Kavanaugh succeeded him. But before then, there had been so many Republican appointees who voted to preserve Roe even though they didn’t like it. And I think there was a real political sense on the part of the party, the Republican party, that why give Democrats this issue? And I thought that some of these Republican appointees, they might not like Roe, but they know it’s salient to the country and if they outright reverse it, which obviously they did, it will change things. And I think it has. I sense that.

Preet Bharara:

You refer to Leonard Leo and Don McGahn, you have this phrase you use in the book The Triumvirate and by the triumvirate, you’re not referring to the three Supreme Court justice as appointed by Trump. It changed the balance and nature of the court. Who’s the third member of the triumvirate?

Joan Biskupic:

Mitch McConnell, who so generously to Donald Trump kept open the Antonin Scalia seat. Justice Scalia dies on February 13th, 2016, and Mitch McConnell says, “It’s too soon to the election as a November election. We’ll let the people choose.” And remember again, you’re talking about how Democrats somehow are not able to push back, and that was a perfect example. President Obama is in office and they’re not able to just try to get Merrick Garland through. I think part of it was that maybe they didn’t push as hard. They presumed Hillary Clinton was going to win, but Mitch McConnell held that seat open for all those months. And then Mitch McConnell takes a few weeks after Ruth Bader Ginsburg dies in 2020 and easily seats Amy Coney Barrett.

Preet Bharara:

Long live hypocrisy. I mean, McConnell has said it’s his most consequential act decision. No?

Joan Biskupic:

Yes. And you know what else he said, which I think was so interesting, and I’m sure you would love this part. It was the President’s Day weekend and he was down in the Virgin Islands when he decided that. And he just said, “We’re not going to have any consideration of whoever President Obama names.” And he later said that if the Senate had been in session, he probably would’ve gotten some pushback from some of his colleagues saying, “What do you mean we can’t even meet with this guy? We can’t even hold hearings.” But he was able to do it in such a summary fashion because he was by himself and they were like, “I don’t know about this.” And Chuck Grassley, who was then the Senate judiciary Committee chairman, I think he was like, “You sure we’re going to do this?” And then they all got on board by the time they all got back together.

Preet Bharara:

This leads me to ask about the other case or set of cases that has been getting a lot of attention with respect to the abortion pill We’ve been talking about the Federalist Society. Could you explain to folks how it can be that under our system, one judge in Texas in a single judge division can decide to issue a nationwide injunction that prevents anybody from getting an abortion pill that’s been approved going on 23 or 24 years now. How can that be?

Joan Biskupic:

Isn’t that amazing? And then let’s also remind people of who that judge is and how he got that seat. It’s Matthew Kaczmarek. Not only was he someone who was approved of by the Federalist Society, but he was also someone who had been quite active in the anti-abortion movement as a deputy council for one of the conservative religious liberty groups. And his record was very well known and it was a district court seat, so Democrats voted against him, but it wasn’t a super high profile seat. It wasn’t like an appellate court one or obviously not the Supreme Court. So he gets on and he’s also in a district, an unusual district there in Amarillo that if you file your case there, you know that you will get him because he’s in like a single judge Subdistrict there in the northern district of Texas. And sure enough, these anti-abortion physicians and medical groups create an entity they file down there.

The case goes to him. He rules exactly the way you could have predicted rolling back, as you say, 23 years of FDA expertise and scientific determinations that approved Mifepristone, which is the first drug of a two pill protocol for medication abortion and stunningly that could have become the law of the land. Now the Fifth Circuit has acted and it allowed the FDA authorization dating to 2000, but rolled back some easing of regulations for access for women that had been put in place in 2016. Bottom line, if the Fifth Circuit’s decision stands, it would diminish women’s access to the drug in terms of how they’re able to obtain it after they’ve consulted with the doctor, whether they can get it by mail or have to show up in person. And then also the Fifth Circuit narrowed the window of availability for the drug from 10 weeks to seven weeks of pregnancy.

But I do think this case could turn out different. I think it is stunning what has happened in just what the last 10 days, because this happened just about 10 days ago in a shocking ruling. And then what the Fifth Circuit did also was problematic given that these doctors might not even have legal standing to even sue because they don’t dispense this drug. What they’re alleging is that they end up doing emergency room work and other work, and they have to see women who might have been harmed by this drug.

So I think that a lot of it is speculative as the Biden administration has said, but who knows what the Supreme Court will say. I do think however though, that we can’t just predict what this court will do based on what it did in Dobbs because this goes to the Food and Drug Administration’s expertise overall existing and new drugs. And what Judge Kaczmarek did was completely undercut that expertise and put himself in the shoes of these people who, as you say for some 23 years, have been evaluating just the extent of any harms that the pill might have.

Preet Bharara:

Is it a part of conservative jurisprudential ideology that there is a significant skepticism and hostility towards the administrative state?

Joan Biskupic:

Yes. In fact, Don McGahn was very public about that. He worked with a lot of people who were culture warriors and were interested in where judicial candidates would go on abortion and gay rights. But his personal interest was rolling back regulation obviously in the campaign finance area, which was his area of expertise, but also over the environment, over public health and safety. They just do not like the regulatory state, the so-called administrative state. And this Supreme Court, it was a perfect fit for this Supreme Court because Chief Justice Roberts, Samuel Alito and Clarence Thomas were already he headed in that direction and then bullied by Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. That’s what we discovered over some of the COVID protocols. They weren’t interested in any vaccination regulations.

Preet Bharara:

So how’s that going to play out with this case and the FDA then?

Joan Biskupic:

Yeah, no. I think you’re right to try to pin me down on that saying, “Well, they be more skeptical of the FDA authority?” And I think generally, yes, they would be more skeptical of FDA authority, but just think of the trouble they would be causing. First of all, I do think there are some preliminary issues here. The legal standing issue of the groups they’ve sued and timing, remember, I mean, you rightly reminded our audience that this approval dates to the year 2000 and then even the amendments to 2016. So there’s a lot of questions about who can sue and when. So there are threshold issues they could go off on and then the basic approval, you’re right that they would be skeptical of the FDA, but remember the FDA has such a broad mandate and are you really going to go in that direction and upset everything else that’s going on?

Preet Bharara:

When will we have a solo federal district court judge outlaw penicillin, which is more dangerous than this abortion pill?

Joan Biskupic:

I think the Biden administration has been doing a good job of showing the consequences of what could happen if that order is not fully stayed. If Judge Kaczmarek’s merits decision is not fully stayed while the Fifth Circuit actually considers the merits of the case, which it’s already scheduled to do on May 17th, and the Supreme Court then eventually considers the merits, there would just be so much trouble across the country.

Preet Bharara:

And just so we’re clear, as you mentioned earlier, there’s a two drug process for out of hospital abortions and this, if a stone is one of the two drugs is the second drug which can probably accomplish that task on its own, is that end danger of being banned as well?

Joan Biskupic:

First of all, right now that second drug is not part of this litigation. So that drug would still be available and-

Preet Bharara:

There’s always time.

Joan Biskupic:

Yes, exactly. Well, that’s where I was going to go to. People who really know this area of medicine and healthcare who are really know this much more than me say that you know, could still have medication abortion with the single drug. It’s just that the first drug has made it more effective and the first drug actually is also used, for example, for miscarriages. It’s not just an abortion drug on its own, but the thing is, once you open the door to reversing the authorization for one of the two drugs, what’s to prevent another judge from agreeing with physicians on the second drug?

Preet Bharara:

I want to ask while I have you about some of the personalities that you explore on the court because you spent time not only with some of the justices, but with people who know them well. And you refer to Justice Alito as follows, “Alito wore a heavy cloak of grievance as if he were perpetually wronged and destined to be misunderstood.” The man’s on the Supreme Court, what does he have to be aggrieved about?

Joan Biskupic:

That’s the thing that always surprised me. I have talked to Justice Alito over the years. There are many positive attributes I would could mention, but as time has gone on and he has even one more cases, he has somehow gotten angrier, and I didn’t use that phrase lightly, and I gave several examples including that often when he starts to ask a question, usually a loaded question, he’ll say, “I know I’m going to be a misunderstood, I know people are going to take this the wrong way,” and then he presents something that no, if you take it straight on, you’re still wondering why he would say that, but he is winning, but he’s not winning as much and he gets so angry when he doesn’t. He just went after his colleague, Justice Gorsuch in the Title VII case in which a six to three majority expanded the interpretation of Title VII of the 1964 Civil Rights Act to cover LGBTQ Workers Against Bias.

And he was just so worked up about that. I think as time has gone on, he has gotten angrier when things don’t go his way and particularly in one specific area, Preet, and that’s religion, he really feels that religious liberty is under siege, especially when it comes to the whole gay legal rights area. This one I’m about to give an example he said in a speech. Used to be fine to say that marriage was something between a man and a woman, but now if you say that you’re a bigot, he just feels like people’s speech is being impinged because of the gay rights movement. He has very strong feelings in this area and they are ones of aggrievement.

Preet Bharara:

Is he close to anyone on the court?

Joan Biskupic:

Not as close as others are to others. Look, he has been there since January of 2006. As I said, they all close ranks, especially against critics and members of the press. I think he is close to some of the justices. I think he’s actually pretty close to Brett Kavanaugh. I think they’re friendly. His son had worked at one point for Justice Kavanaugh, and I think there’s a nice bond there. And Justice Kavanaugh was with the George W. Bush administration, which chose Justice Alito. So I would name Justice Kavanaugh as someone who he’s especially friendly to, but I think he is a tough customer to use the language I used about jumping in the lake.

Preet Bharara:

He’s a grumpy guy.

Joan Biskupic:

Yeah, I think he is.

Preet Bharara:

I mean, I found that, I had opportunity to meet with him with Senator Schumer during the confirmation process, not speaking about their jurisprudence or their outlook on the law, but the difference in diplomatic skills and interpersonal skills as between John Roberts, who is masterful and Judge Alito, who’s disgruntled is vast.

Joan Biskupic:

Well, I might have told you this last time, but even President George W. Bush commented on that and said he was so hard to loosen up during their one-on-one interview. Finally, he just resorted to baseball, which of course, he’s a Phillies fan, and I guess that’s the way to go.

Preet Bharara:

How is Justice Ketanji Brown Jackson being assimilated into the court?

Joan Biskupic:

Well, I just came from oral arguments. It’s a Monday, as you said earlier, and they’re just back from a two-week recess, and she is incredibly active from the bench. She’s got a little bit of a way about her that reminds me of the fact that she was a district court judge and she wants controlled the courtroom by herself, and she has questions and she’s going to ask those questions and she’s going to take as much time as she wants. Thank you very much. So she’s very active that way. We haven’t seen that much writing from her yet. The few places where she’s broken off in some of these criminal defense cases that have come up, I see her aligning a little bit more with Justice Sotomayor, on the left than with Justice Kagan. I think she’s going to be a little bit more liberal, but the data points are few at this point, Preet.

Preet Bharara:

What about Justice Kagan? What is her role? Where does she figure in?

Joan Biskupic:

Well, she lost a major partner when Justice Breyer retired because they worked very closely together to try to bring some compromise at the center of the court back when they had four liberals. It would be Justices, Kagan and Breyer who could try to maybe woo the chief a little bit, or maybe Justice Kavanaugh. They work together to try to compromise. And she always says, “I don’t think compromise is a four letter word. It’s not a dirty word in my business,” but she’s alone now in that respect, and I think she and the chief have a very good relationship, but the chief is only one vote, and you need a second vote from the right wing if you’re going to get a majority now.

So I think that we’ll probably hear her louder in dissent because she’s not going to be able to get compromised at the margins as much. I think of that the three of them, Justice Sotomayor, Kagan and Breyer who joined together in the dissent in Dobbs. And I think a lot of the tone of it was hers, including that line that I used at the beginning of the book. No one should have confidence that the majority is done with its work.

Preet Bharara:

I was literally, I have the book open to that dedication. I was literally going to quote it to you. So we’re we’re definitely in sync, on the same page.

Joan Biskupic:

Literally.

Preet Bharara:

Why did you pull that out? What other work is this majority going to do?

Joan Biskupic:

Well, I just felt like that rang so true, and at that point, they had already agreed to take, for example, the Harvard and University of North Carolina affirmative action cases. They’ve already taken another Voting Rights Act case where boy, Chief Justice John Roberts is definitely interested in scaling back the 1965 Landmark Voting Rights Act. So I can see them moving ahead that way. And the other thing, a sense that I get from Justice’s Alito and Thomas is that they feel a sense of real urgency. When it comes to Supreme Court justices, they are still relatively young. Justice Alito was born in 1950, justice Clearance. Thomas was born in 1958, so they’re just still in their seventies, 1948, Justice Thomas was born in. So they’re still in their seventies, which all things considered is pretty young, but I think they feel a real sense of urgency to move this court further and faster. And right now they’ve got Neil Gorsuch with them, and the question is, what will Brett Kavanaugh, Amy Coney Barrett and Chief Justice Roberts do?

Preet Bharara:

So what’s the future of same-sex marriage?

Joan Biskupic:

I still think that will hold, but what I’m always reminded of is the fact that I kept saying that about Roe V. Wade.

Preet Bharara:

But you also thought Trump wasn’t going to win.

Joan Biskupic:

I know. Let’s think of all the things… That list is long, isn’t it, Preet?

Preet Bharara:

Yeah. I mean, look, that’s what I thought of when you pulled out that quote. What are the currently recognized privacy rights that are at risk? And a lot of this debate happened after Dobbs and we were told, well, everything’s just going to go to the States. It’s not that big a deal. Kavanaugh went out of his way in his opinion to say that. And then you have this judged in Texas ruling in a particular way, not relating to the right to privacy, but in his stance on the administrative state and the FDA’s powers to basically say, “Nobody in the country can use Mifepristone,” even though that case is not linked to Dobbs legally in jurors prudentially, does one follow from the other?

Joan Biskupic:

I’m glad you brought that up because that’s a quote that I always have handy. When Brett Kavanaugh said two things in his concurring opinion when he voted to reverse Roe V. Wade, one part of it was, “Judges should no longer be in the policy business on abortion or the moral business.” Those were words he used, and as you say, he said outright, “We are not outlawing abortion.” If you curtail the use and the access to abortion medication, you are suddenly practically making it impossible to do in the states that still have legal abortion. So that’s another reason why I think maybe he would pause on this new case because there is an incongruity there.

Preet Bharara:

Joan Biskupic, thanks again for being on the show, the book, congratulations. Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences. Thanks so much.

Joan Biskupic:

Thanks, Preet.

Preet Bharara:

My conversation with Joan Biskupic continues from members of the CAFE Insider community. We discuss how she thinks about impartiality in journalism.

Joan Biskupic:

Now, I’m sure someone like Samuel Alito and some of the conservators are thinking, well, we think you’re very judgmental. But I don’t really think of myself as having… I have views obviously about what the breadth of the Constitution, but I do feel like I’m able to separate myself in that regard.

Preet Bharara:

To try out the membership for just $1 for a month. Head to CAFE.com/insider. Again, that’s CAFE.com/insider.

Hey folks. Before I go, I wanted to share a story reported by the Today Show that gave me a much needed dose of encouragement. It’s about Isaiah Marquez Greene. Isaiah is a Sandy Hook survivor. His sister Ana Grace was one of the 20 kids who died in the horrific shooting. Last week Isaiah went to see his favorite hockey team, the New York Rangers play at Madison Square Garden. The team had arranged to give him a jersey, but little did Isaiah know he would be getting another surprise too. After handing Isaiah the jersey, Jacob Trouba, the Rangers captain, asked him what he was planning to do with his future. Isaiah told Jacob that he planned to become a lawyer after graduating. Upon hearing this, Jacob handed Isaiah a certificate, granting him a scholarship to attend law school saying, “You’re going to graduate from college. You’re going to go to law school, and you’re going to have no debt coming out of school.”

The scholarship came from The Garden of Dreams, a nonprofit organization whose mission is to bring life-changing opportunities to young people in need. In a video posted by the New York Rangers on Twitter, Jacob even told Isaiah he would give him his number to check up on him while he’s in college. To which Isaiah replied, “I’ll text you.” After Isaiah’s sister was killed, their mother, Nelba Marquez-Greene, founded the Ana Grace Project to honor Ana Grace’s memory and foster a culture of love and compassion. So I’ll leave you all with this beautiful message from Nelba who shared the special moment between her son and Jacob Trouba on Twitter. “Ana, thank you for looking after him, sweet little lady. We miss you tons. There is no one to help me out of dresses. Your absence is felt so viscerally. We have so much work to do. Isaiah is thriving, but you already knew that. Love, your mom.”

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Joan Biskupic. If you like what we do, rate and review the show on Apple Podcasts or wherever listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the #AskPreet, or you can call and leave me a message at (669) 2477-338. That’s (669) 24 Preet, or you can send an email to letters@CAFE.com. Stay Tuned, as presented by CAFE in the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. The CAFE team is David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Wiener, Jake Kaplan, Namita Shah and Claudia Hernandez. Our music is by Andrew Dose. I’m your host Preet Bharara. Stay Tuned.