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

These are interesting academic arguments. The practice of originalism in the courts and in the selection of justices and judges is a completely different animal because it’s not a kind of interesting academic, philosophical, jurisprudential conversation. It is a desire to reach clear, predictable, and conservative results.

That’s Ruth Marcus. She’s an associate editor and columnist at the Washington Post where she’s worked since 1984. She covers national politics and the Supreme Court. Her most recent book is Supreme Ambition: Brett Kavanaugh and the Conservative Takeover. Marcus joins me to discuss the state of the GOP after Kevin McCarthy’s speakership vote circus, and the future of this conservative Supreme Court. That’s coming up, Stay Tuned.

Before I get to your questions, I am very pleased to announce that the Stay Tuned team won multiple honors of the Signal Awards, which celebrate the best in audio and podcasting. We won both the Gold and Listener’s Choice Awards for Best News and Politics podcast. It’s a big honor, and we were up against some other fantastic shows. I wanted to thank all of you, our listeners, for your vote and your ongoing support. So from all of us here at CAFE, thank you. Now let’s get to your questions.

Q&A:

So in the wake of the GOP taking over the House, I’ve gotten a number of questions about a particular thing that the new House GOP intends to do. Here’s a question from Twitter user, @mfastoso, will the DOJ be able to push back against the new Congress’ attempt to look into ongoing investigations? I got a similar question from another Twitter user who says, #AskPreet can you explain the Linder letter? Is it possible for the GOP leadership and the 118th House to actually interfere with DOJ investigations? Well, these are great questions and they arise from a particular House resolution that has been getting a lot of attention. The title of the resolution is, “Establishing a select subcommittee on the weaponization of the federal government as a select investigative subcommittee of the committee on the judiciary.” So it’s a newly enacted and constituted subcommittee of the judiciary committee. That goes to some of the things that these folks are asking about.

Here’s the provision that’s causing some alarm. In a section of the resolution, talking about the investigative functions of the subcommittee, the resolution states, “The select subcommittee is authorized and directed to conduct a full and complete investigation and study, and not later than January 2nd, 2025, issue a final report to the House of its findings and such interim reports as it may deem necessary regarding,” and this is the crux, “The expansive role of Article 2 authority vested in the executive branch to collect information on or otherwise investigate citizens of the United States, including ongoing criminal investigations.” Including ongoing criminal investigations.

Now, I think nobody would deny that a body of Congress, whether the House or the Senate or some subdivision thereof is perfectly capable of and would be perfectly appropriate for them to figure out problems with the enforcement of laws, how the Department of Justice views its enforcement mission, figure out ways to reduce surveillance, change the laws with respect to no-knock warrants or any other method of criminal investigation or law enforcement. The problem arises when you take the position that you can investigate and get confidential information about, “Ongoing criminal investigations.” That’s a problem. It has been the longstanding policy of the DOJ for pragmatic reasons and fairness reasons not to talk about things that are ongoing, both for the protection of people who might be charged ultimately or may never be charged, and for making sure that people can be held accountable and people don’t flee and evidence is not destroyed. The sanctity of ongoing criminal investigations, particularly at the federal level, has always been protected by the Department of Justice.

Now, one of the questioners asked about something called the Linder Letter. Well, that is going to get a lot of attention because it sets forth pretty articulately and eloquently the basis for the Justice Department’s position that they have to stay away from even congressional inquiries relating to ongoing investigations. It was written by the Assistant Attorney General for Legislative Affairs at the time, Robert Raven, who I’ve known for a very long time, is a very smart guy, who in response to a letter from then representative John Linder said the following, “Although Congress has a clearly legitimate interest in determining how the department enforces statutes.” Fair, I think, “Congressional inquiries during the pendency of a matter pose an inherent threat to the integrity of the department’s law enforcement and litigation functions. Such inquiries inescapably create the risk that the public and the courts will perceive undue political and congressional influence over law enforcement and litigation decisions.” And it goes on to say, “Consequently, we have sought whenever possible to provide information about closed rather than open matters. This enables Congress to analyze and evaluate how statutory programs are handled and the Department conduct its business while avoiding the potential interference that inquiries into open matters entail.”

And that’s by the way, been the position of DOJ administrations in both Republican and Democratic presidencies. I worked in the Senate, as you know, and I also worked in the Department of Justice and I believe strongly in the oversight function of Congress over every agency in government, including the Department of Justice. And I led inquiries and investigations myself about the politicization of the Justice Department during the Bush administration. However, I think the department is well within its rights and will assert its right not to respond to inquiries that will undermine individual ongoing investigations. And by the way, there’s no way really as we’ve learned over the course of the last few years for the Congress or a particular House subcommittee to enforce even a subpoena against the Justice Department for information relating to ongoing investigation.

So I think it’s a bit of political theater, a bit of political rhetoric, a bit of chest thumping on the part of this new subcommittee. And the impasse will occur when the Department of Justice says it’s not going to provide information about an ongoing criminal investigation, whether it’s related to Hunter Biden or anyone else. And I think Congress, as we have seen in recent years, will be powerless to do anything about it.

This question comes from Twitter user, @Rich1. How likely do you think it is that those prosecuted for the January 6th insurrection will be pardoned by the next GOP President? #AskPreet. That’s an interesting question, and I’ve given it a little bit of thought with respect to one potential future GOP president. My view is, and I’ve discussed this on one or more of the podcasts before, I think that’s absolutely the platform of Donald J. Trump. If he were to get elected, and obviously I hope that he does not, but if he were to get elected again I think he’ll campaign on the idea of pardoning those who have been prosecuted for the January 6th insurrection and perhaps even on his first day in office will execute those pardons.

Now, the question you asked is, will the next GOP president do it? What if it’s not Donald Trump? What if it’s Ron DeSantis or someone else? I don’t know. I think there might be pressure in the primaries in the Republican Party in 2024 to match the rhetoric of Donald Trump who will be campaigning on behalf of and in the name of those people that some people refer to as tourists on January 6th. And there might be some pressure to make some kind of campaign promise to engage in that pardon. So I think the likelihood is very, very high if it’s Donald Trump. It’s not quite as high, but seems reasonable to assume and presume if it’s someone else like Ron DeSantis. But we’ll have to wait and see. Most importantly, let’s make sure neither of those men become president.

So finally, let’s take a look back to a question I answered last week. Twitter user @JackBLLarson asked, “let’s start at the top, what’s the meaning of life? We can work our way down from there.” And I answered somewhat inscrutable, if you’re not familiar with the reference, that the answer to the meaning of life, the universe and everything was 42. And I said, if you knew the reference, good for you. And if you didn’t, I would explain it on this episode.

So, 42 is a reference to one of my favorite books and series of books of all time that I read when I was a teenager. The first book in the series is called The Hitchhiker’s Guide to the Galaxy, written by the incredibly hilarious Douglas Adams. And if you’re not familiar, you should absolutely go read the book and the rest of the series. But the premise is that there’s a race of advanced alien beings who once upon a time created a supercomputer, and the name of the supercomputer was Deep Thought. And the purpose of Deep Thought was to figure out the answer to the so-called ultimate question of life, the universe and everything.

So Deep Thought did its computing for roughly 7.5 million years. And the answer to the question was the number 42. Pretty funny. Deep Thought, however, didn’t really know the exact question it was asked to answer. So 42 didn’t make a lot of sense. So to make sense of the answer 42, there was a creation of another gigantic mega supercomputer, that supercomputer is Earth that was tasked with coming up with the question that gave the answer 42 in 10 million years in the future.

The book has been on my mind lately because it turns out it’s the 42nd anniversary of the publication of Hitchhiker’s Guide to the Galaxy. And a couple of big Hitchhiker’s fans reached out because they were writing a tribute to the book on its 42nd anniversary. And they asked me for a quote which I provided, and I said this, which hopefully will get you to read the book in the rest of the series. “The Hitchhiker series taught me to laugh at the absurd, to mock self-proclaimed genius, to put off searching for the meaning of life in favor of play and to oppose time travel on the ground that proper tense usage would become too difficult. It also prepared me to understand that some Albany politicians are like Vogons insofar as neither are above corruption in the same way that the ocean is not above the sky. And it made 42 my favorite number.” If you have a favorite line passage or character from Hitchhiker’s Guide to the Galaxy, send us a note. And if you haven’t read it, give it a try.

We’ll be right back with my conversation with Ruth Marcus.

THE INTERVIEW:

Preet Bharara:

The next Supreme Court term will bring with it unprecedented decisions around affirmative action, anti-discrimination laws, and the independent state legislature theory. Ruth Marcus, associate editor and columnist for the Washington Post, has been covering American politics and the high court for almost 40 years.

Ruth Marcus, welcome to the show. So great to have you.

Oh, thanks for having me.

So I want to start by making a comment about your career. We had someone on recently who also went to law school, had legal training and then became a journalist. Why didn’t you practice?

I think I would have had a good time practicing and would’ve found a way to find satisfaction in the law. I’ve always thought of reporters as lawyers without subpoena power, and there have certainly been times in my life when I have wished to have subpoena power, but it wasn’t not being interested in practicing as much as feeling really compelled to do something that I just thought was incredible fun all the time. And it’s turned out to be incredible fun for going on an embarrassing close to 40 years. So I went to law school intending not to practice, I’m not sure that my parents who were footing the bill actually believed that I wasn’t going to practice. And I came to the Washington Post actually the summer after my first year of law school, and it was so much damn fun. They were like, why don’t you just stay here? And I kind of liked law school and I wanted to finish up, but I knew it was what I wanted to go back to.

Is there anything about your training in law school and as a lawyer that got in the way of your journalistic writing or your other writing? Because lawyers are known to be terrible writers for the lay public.

So that is a great question and the answer is yes. There was this extremely embarrassing moment, so embarrassing I don’t think I’ve ever told this to anybody, and certainly not publicly. When I was a summer intern, when I had actually worked for a little legal newspaper called the National Law Journal, and they did have footnotes, but I did try to put a footnote in a story that I wrote, and I think the editor’s heads were about to explode, like what planet does this girl live on? Because I was kind of a girl back then.

You were blue booking your journalism work-

I was a little bit, I had actually, no, done a little blue booking. And you really do want to do different things in legal writing than you do in journalistic writing. It did take some degree of reeducation to get my head out of law review writing and back into journalistic writing.

Were you overly verbose or overly formal or what?

Well, let’s not criticize me too much here Preet-

Well, just way back at the beginning.

Probably verbose but probably more than verbose, a little bit too uptight and insisting on explaining all the nuances of doctrine when that’s really not what your readers need. But also, the structure of legal writing and journalistic writing is different. And so you need to get to the point right away rather than build up to it. And so inverted pyramid style is the essential journalistic form. And so I think I recovered and now, actually, I think legal writing has gotten just a ton better over the last couple decades. It’s much more like journalistic writing. Even what judges write is often really very good, except for the ones who think of themselves as stylists and are just right embarrassing themselves.

Who’s the best Supreme Court writer of modern times?

Well, I think on the current court, I think Justice Kagan does a wonderful job of writing and really you can tell even in some of the unsigned pro curium opinions, as in the Dobbs opinion, where her voice comes in and it’s sharp, it’s persuasive, it’s logical, and it really in dissent, which is kind of where she finds herself right now, just skewers the opposing side, but in a very clear way. And the thing about the best legal writing, and you see this on the Supreme Court and if you read old opinions some of them are just terrible, it is written for to help a lay audience in its best way, understand what the court is up to. And I think she is a very good practitioner of that.

And what do you think accounts for the trend that it seems like you were observing towards better writing? Do you think, and I wonder what this says about the court if it’s true, that they’re writing increasingly in recent times for lay public to get their ideas across directly as opposed to having them summarized or just given highlights of by members of the media?

It’s an interesting question, and I think that perhaps one reason is that the court’s work is so much more accessible than it used to be. In the olden days how did a person, even an educated person, access a Supreme Court opinion? Certainly not immediately. If it was a really important opinion, perhaps newspapers would print on their pages excerpts from the opinion. Now anybody who has interest in an opinion can get to it through the Supreme Court’s website. You can click on it in what I write or what my colleagues who write about the court write on a link. You can get it on SCOTUS Blog, you can listen to the arguments. And so I think that perhaps because they’re in some sense writing for a larger audience, they’re more conscious of that larger audience. I don’t know if it’s a conscious consciousness or a subconscious consciousness.

Do you think the justices who compete ideologically with each other and compete for votes and they want people in the middle to come to their side so they can be in the majority, do you think there’s also competition or competitiveness with respect to writing style or no?

Oh yeah, you bet.

Describe the nature of that competition.

Well, I am more imagining it than I am knowing it definitively. But look, thing is, I wrote a book about Justice Kavanaugh called Supreme Ambition, and I like the title, but the truth is that supreme ambition is probably something that could be said of all nine justices and all hundred and however many justices who have been on the Supreme Court. You don’t get there by accident. You don’t get there without a degree of ambition and a degree of ego and a degree of drive. So what do lawyers do? How do lawyers communicate? They communicate by, certainly as Supreme Court justices, their role is to ask good questions at oral argument and to write convincing opinions when they write opinions that are going to be celebrated by academics and quoted for generations to come. And so they’re going to be competitive with each other because they’re a bunch of people who have been the best or close to the best, most of them, in their class and their other career points for as long as they’ve done. So why wouldn’t they be competitive about this?

And do you think they’re also competitive or some of them are competitive at oral argument to outshine their colleagues?

I think oral argument has so much been, the nature of it has changed really dramatically since COVID. It’s a whole different ballgame right now. But sure, you want to ask a smart question. Oral argument is not really a moment to change minds or maybe even change your own mind, but you want to make points, make points for some of your colleagues. And look, what Justice Jackson has gotten a lot of good initial press from some very interesting points and some very compelling hypotheticals that she’s done at oral argument. And I think other justices look and say, she’s talking a lot for a newcomer. And now we are so metric it’s added up by some of the observers, Empirical SCOTUS, and they kind of notice. So, at oral argument, you want to make sure that you make your point, have your say, poke the people that you disagree with or you are inclined to disagree with or support the ones that you feel more supportive of without taking up too much time or annoying your colleagues too much. And some of the justices do a better job at that than others.

Maybe this is a controversial question to ask. Do you think oral argument is really necessary at the Supreme Court level?

I think oral argument may not be really necessary at the Supreme Court level, but I think it’s great. So I mentioned before that oral argument has really changed over time and really the last three years. Let me be specific about that. It used to be that there wasn’t an order for justices to ask a question. The first thing that happened was that Chief Justice John Roberts initiated a rule where the advocates have, I think it’s two minutes of uninterrupted times in order to make their case. There’s a really interesting question about whether that’s helpful for the court ’cause the court already knows the case, but I do think it’s helpful for the public, which hasn’t read the briefs, probably, to be able to hear that kind of summary if it wants. And I think that’s a valuable public facing role of the court. It is a public institution and it should make itself available. I think it’s fantastic that the court has continued to make livestream audio available even after it’s gone back to in-person business.

The other thing that’s changed, and it’s taken some of the constant interruption out of the argument is that at the end of the allotted time, each justice has a turn. And also the other change has been that the senior justice besides the chief justice, Justice Thomas has tended to ask the first question. The justices take their turn asking questions, they’re not interrupting each other. We’re hearing because of this new forum from Justice Thomas who we did not hear from sometimes for years at a time-

For years, I was going to ask you about that.

I think it’s terrific to hear his voice and to hear his questions. So does oral argument change minds? No, probably not. Does oral argument help elucidate some of the strengths and weaknesses of both sides cases? You bet. Is the new form of oral argument perfect? No, we had, I think it was five hours, which was way too long I think in the affirmative action cases, I think the Elenis 303 Creative case, I think that’s stretched on for three hours and God knows how many hypotheticals, the hypotheticals were getting crazier and crazier.

But the court doesn’t take anywhere near as many cases as it used to, so if oral argument goes on for too long, so be it. They don’t have all that much else to do. And I think that it is a terrific forum in a institution whose work is of necessity primarily done behind closed doors and limited to written work to have a glimpse of who these people are, who are deciding so many things that are so central to our lives and our government.

So you mentioned Justice Thomas and I was going to ask this question, do you have a theory or is there a working theory as to why he didn’t speak for so long and now seems, for him, fairly loquacious?

Well, the explanation, if I’m recalling correctly, that he’s given for not speaking was that he found the forum, the previous forum, of constant interruption. And I remember being at one oral argument, I think it might have been in the Hobby Lobby contraceptive case where as I remember it, the three female justices, it was Justice Sotomayor, Justice Kagan and Justice Ginsburg were just kind of going at the advocate on the other side, the side they ruled against ultimately. He could barely get a word out, and one of them would ask a question and another one would ask the question. Justice Thomas has said that he found that rude and uncivil, not that particular interchange but the general format and unhelpful and so he just didn’t want to be a part of that. I think to take him at his word, I have no reason not to, when the format changed and there was a more leisurely allotted time for people to ask questions, he was much more willing to engage in the interchange. And I think that’s for the best.

We talked about who you think is one of the best writers on the court. Can I ask you the opposite question? Let’s put it this way, who do you think is one of the least excellent Supreme Court justices in the form of writing in modern times?

Oh, I don’t know. Maybe Justice Berger back in the day. I’m not sure how much I want to diss any of the current court. I mean have found one of the things that annoys me very much about the current court is that it preaches one way of approaching the act of judging and practices quite another. And so when I see decisions like the decision by justice… Now I’m having a senior moment about whether it’s Justice Alito or Justice Gorsuch in the Bernovich Section 2 case, I’m going to tell you in just a second. These are people who purport to be textualist and then rewrite statutes out of whole cloth. It’s Justice Alito. And Justice Alito I think is a particularly egregious practitioner of the, I’ll get to the result that I want to get thing. Because he, just in this opinion which particularly annoyed me, wholesale rewrote Section 2, you cannot do that and pretend and also claim that you are acting like a judge and acting in particular like not an activist judge.

So it’s hard to disaggregate bad writing from bad judging. That’s not totally true because obviously one of the most magnificent writers on the court, and I probably should have mentioned him earlier on in modern times, has been Justice Scalia. Justice Scalia makes Justice Kagan, sorry about this Justice Kagan, look like a pedestrian writer. I mean he had all these magnificent terms, some of which have just stuck in our minds when he talked about how he’d be so embarrassed he’d have to put his head in a bag. He talked about something as, I think it was argle-bargle. He had a great phrase about not hiding mouses and fox… Whatever. Now I’m forgetting that as well. But he was just a fantastic writer, vivid, I disagreed with almost everything that he wrote, but it was absolutely brilliant to read.

That leaves me wondering, contrary to what you said a second ago of good writing being a sign of good judging, doesn’t sometimes particularly good writing, obscure bad argument and bad thinking?

I don’t know. I think that you can be a clear thinker and be wrong. You can have a logical structure, a logical set of arguments that flow from your preexisting, I don’t mean that in a bad way, vision of what the Constitution and what constitutional interpretation or statutory interpretation is about and you can express that clearly, vividly, logically and still be wrong. I think that’s the Justice Scalia story.

It’s possible to have written a beautiful Dred Scott opinion?

Yes. Well, I mean beautiful would be-

Wow. You’re going to get mail.

Beautiful would be hard to say-

In the writing. It would be possible by that logic, I guess, or maybe it’s not possible at the extremes when there’s a huge acknowledged miscarriage of justice by the court, but by those lights you could have a wonderfully written Korematsu opinion.

It’ll be very hard to have a wonderfully written Korematsu opinion because the essential despicable nature of that decision, and I would say the same about Dred Scott, so I’m going to take back my very quick and ill considered yes-

As your counsel, I advice you of the wisdom of that retraction.

Thank you, yes.

Or we could drop a footnote.

Yeah, there you go. I’ve been waiting for one for 38 years.

This is the beauty of podcast, you can’t drop a footnote.

The best writing is impelled, I think, and this takes away a little bit from my Scalia point, is impelled by passion. It’s much easier to have passion when you are on the side of the downtrodden, the victim, the person whose rights are being violated than when you are on the side of the state or the person who’s trying to take away rights-

Well, it depends on who the victim is, right?

Well it does. Sure.

So do you see the cake maker as the victim who’s a downtrodden Christian whose values are being undermined or do you see the other parties the victim? I think it depends.

I think it totally depends. And actually it’s very interesting. In that case, in its cake maker incarnation in Masterpiece Cake Shop, there was an identifiable set of human, “Victims” on the other side, the same sex couple, that wanted the cake maker to make the cake to celebrate their marriage. Interestingly, in the new version of the case, there is not a couple because of the very early posture in which it’s come up, there is not a couple that has been injured. So the only injured party, injured in quotes as well, potentially is the woman who, I would assume, very sincere religious beliefs make her not want to have to celebrate a marriage that she doesn’t believe in.

I think this is actually, you put your finger on the critical nature of persuasive writing and persuasive legal writing, which is to put a face on it. You see this often in criminal cases where once the side that is arguing that so-and-so’s death sentence shouldn’t be overturned or something else like that will emphasize and in their factual rendition go into details about the horrific nature of the crime. And the other side who’s arguing that the death sentence should be overturned, will pick out a completely competing set of factual details while acknowledging the horror of the crime, but emphasizing the terrible childhood of the perpetrator, et cetera. And so law is not just law, you know this from your prosecutorial role, it’s about individuals and passion and human stories.

We’ll be right back with more of my conversation with Ruth Marcus, after this.

Could we do something that I don’t usually do, take a pause from the court. I’m want to come back to the court. Because I want to talk about the doctrine of originalism and have you explain to everybody what it is and if it’s bunk and talk about politics. I was going to do that at the beginning, but we got deeply into how Supreme Court justices write and argue. So I didn’t want to run from that.

Who is the speaker of the House at the moment. And bear in mind that we’re recording this on Tuesday, January 10th. It does not drop until Thursday, January 12th.

Well, as of this moment, and I’m pretty confident that he will last this long, Kevin McCarthy after 15 ballots and not a majority of now sworn-in members of the House, is the speaker of the House.

The reason I’m asking is, you write about and think about politics, not just the court. What’s your take on the 15 ballots and the authority that Kevin McCarthy will have and how that Republican Party is going to govern itself for the next two years?

Not well. It is not going to govern itself well. I was going to say it’s a shame, but it’s actually more than… I mean, if the Republican Party in the House wants to spend its time, fair point that the Democratic Party in the House spent its time when it was in control, passing a bunch of bills that it understands that the Senate is not going to take up and not going to pass and that if somehow they did, President Biden is not going to sign, I guess I can be my guess. That is not going to be endearing them to the American people I don’t think, but go ahead and do it. The dangerous parts are twofold.

Overdoing, and I mean overdoing because some oversight is essential, but overdoing the oversight function such that we are in a kind of groundhog day Benghazi moment of pursuing Hunter Biden or whatever else is the supposed scandal of, I would say the scandal of the day, but really the scandal of umpty-umpth years ago that we’re dredging up. And worse than that, the scary things that government has to do in order for the government and economy to go on. The issue, which is at least a period off, of dealing with the debt ceiling, which is very scary to look at this majority and the composition of this majority. I used to spend a lot of time writing editorials about the debt ceiling, writing columns about the debt ceiling and watched us get very close to and suffer economic harm, real economic harm from having gotten so close to breaching the full faith and credit of the United States. But this is going to be, I think, a scarier moment than ever because the majority has become so radical.

Are you surprised by some of the partnerships that have developed Marjorie Taylor Greene, for example, being supportive of Kevin McCarthy? What do you make of that?

Ambition is a magnificently interesting force.

Yeah, but you have to calculate your ambition and anticipate correctly why are you tying your fortune to this guy who took 15 ballots to get the job?

Because your leader, Donald Trump, sort of endorsed him. Because you want to distinguish yourself from some of the other, sorry to use this phrase, crazies out there. Because you have wrung concessions out of him that will further enhance your role and your power and the attention that you get. This whole episode has been chapter fill in the blank of a very high number of, we talked about ambition earlier, about the driving force of ambition in life and in politics. I wrote a column about this the other day, the paradox of ambition is that you have to have a measure of ambition to be a successful person in most in endeavors, but certainly to be a successful person in politics because it’s the ultimate egocentric, megalomaniacal occupation. But, if you have too much ambition, see Kevin McCarthy, you are willing to do things that both debase yourself and make people revile you in pursuit of the thing that you’re ambitious for.

Well, the funny thing is, usually the person who is very ambitious will have some people who will revile them for their ambition, that’s true. Ron DeSantis very ambitious. Donald Trump, many Democrats. Isn’t it a little odd to be ambitious and barely get the job, but not really have any fan base at all? I mean, obviously he got the vote ultimately, but who’s the constituency or the group that is in love with the politician that is Kevin McCarthy?

There isn’t one because Kevin McCarthy doesn’t really have a kind of orderly value system beyond how can Kevin McCarthy become speaker or whatever he was previously questing for? Kevin McCarthy, let’s just put it this way, he’s no Ronald Reagan.

I mean he has no fan base. He has no stands that guy.

Because you can’t have a fan base if you don’t have a sort of… I don’t think and I’m questioning myself here because the exception to this rule, it’s a really big exception, is Donald Trump. But it’s very hard to have a fan base if you don’t stand for something.

But ordinarily you don’t rise to the height. So for example, Nancy Pelosi, the previous speaker, had and has loads of people who despise her, who revile her, who loathe her to an inordinate degree, and I think undeservedly, but she also has on the other side, unlike Kevin McCarthy, a deeply loyal fan base. And I always thought that’s how you get to the top. Donald Trump has lots of diehard fans and lots of diehard critics. It’s just odd for a milk toast person. And maybe there are other examples of this, the former mayor of the City of New York, Bill de Blasio comes to mind, how someone who doesn’t have that fan base but also has a huge group of people who revile him, how you get to the top job in your field?

Well, he’s gotten there. But as you started out the questioning, does he stay? And to me the biggest difference between Kevin McCarthy and Nancy Pelosi isn’t the size of their fan base, but their capacity to amass and use power. Nobody did that better than Nancy Pelosi. It was just impressive and fascinating to watch.

I’m going to ask you about a different speaker. You said about McCarthy recently, “A man who puts party first would not put his party through this. A man with a stronger sense of self would stop and ask whether the job was worth the price.” How do you compare and contrast Kevin McCarthy to Paul Ryan?

I thought that was where you were going. That was who I had in mind when I wrote that sentence. Absolutely. I know so many Republican former House members who just recognized over the last, say 10, 15 years that the caucus was becoming increasingly radical. That maneuvering within that format was requiring them to do increasingly unacceptable things and they just wanted to get the heck out of Dodge. If your whole goal in life is to be sheriff of Dodge, stick around. But I know and like many Republican former House members and those are the ones who were like, mm, got to go.

Do you think it was a mistake for Nancy Pelosi to step down as leader?

No, I don’t. I think that I have enormous respect for her, for Leader Hoyer, for others, but it is definitely time for a new generation of Democratic leaders to take over in the House.

You think Hakeem Jeffries is up to the task?

Well, we’ll see.

Wait and see.

You can’t get up to the task if you’re not kind of in the job getting prepared and ready for it.

Did you like his alliteration speech?

House Democrats will always put American values over autocracy, benevolence over bigotry, the Constitution over the cult, democracy over demagogues, economic opportunity over-

I thought that was a little much.

You did? You’re already being critical of the new guy.

Well, that’s my job. It’s easy to criticize.

Last question about this, then we’ll go back to the Supreme Court. Do you think that Republicans in disarray in the House, if it persists over the next couple of years, has a material effect on Democrats chances in the Presidential?

Well, some, but that depends on how disarrayed the disarray is. How close do they get to the debt ceiling brink? How unwilling are they to take steps that are necessary to take in whatever disaster is going to befall us that we haven’t anticipated yet? How serious are they and how many of them are that serious in terms of interfering with what I think is the really necessary support for Ukraine in the war against Russia? In the end, people pay attention to their pocketbooks, to the economy, to gas prices, to other things. And the conduct of one branch, one house of branch of government is not going to determine, for the most part the outcome of a presidential election. But Republicans definitely have the opportunity to hurt themselves in the House.

What if they impeach Biden like couple three times?

If I were a practicing Democrat, I’m not a registered Democrat, if I were a practicing Democrat, I would say go for it. Help me. It’s not good for the country-

So, you think if they do that, that helps the Democrats in 2024?

I do. Yeah. If you want to impeach a president it helps to have a basis to impeach… It may be necessary, it’s certainly not sufficient apparently, but it helps to have a basis for impeaching them.

We talked about this briefly before we started taping because it’s new news, which I guess all news is, sorry for the redundancy folks. What about over these apparently classified documents found recently at an office used by Joe Biden when he was vice president and Republicans complaining about that. Is that something real? Is that something that you find to be rich? What?

I think it is one of these Hollywood comes to the Potomac moments of if you were the West Wing screenwriter you could not do a better job of coming up with this plot twist at this precise time. Just imagine Merrick Garland’s scene, the fifth floor of the Justice Department camera zooms in on Attorney General Merrick Garland at his desk. They what? He what? Garland says. Hello Hollywood, if you need me I’m here.

Do you think Merrick Garland cussed a storm when he got that news?

I don’t think he cussed a storm. I think he shook his head.

I just wanted to say cussed a storm.

Thank you for giving me the opportunity to say that also.

Just wanted to say it.

Look, everybody understands a couple things. One, as far as we know from the facts as we know them, these are not equivalent episodes. Number two, that doesn’t matter. They will be made to be completely equivalent episodes by Republicans as to honestly as Democrats would do if the tables were turned because that’s politics and that’s what they do. It’s not legally significant, but it is politically significant.

The interesting thing is that Republicans are in a little bit of a dicey situation if they talk about the terrible horror and potential damage to the United States that then Vice President Biden or after his vice presidency, Biden inflicted on the country by failing to take adequate care to safeguard these documents and we must have an immediate damage assessment of the issues here. They do risk undermining the argument that this was a bit of sloppy housekeeping on the part of the former president, President Trump in his own handling of documents. So not that consistency has been the hallmark of the current political debate, but there are some potential pitfalls here in Republicans making too much of these Biden documents.

That said, it’s really, really, really unfortunate because we have what I think is shaping… And we do not have any clue or we have only a little clue of what the potential obstructive conduct is that has been redacted in the documents that we’ve seen so far. And this just creates a distraction from the real business at hand, which I think is a criminal case against former President Trump. And sorry for Augie, the dog barking in the background there.

Hi Augie. Is Augie cussing up a storm? I get to say it again.

Augie never cusses. He’s just a lover.

Okay, I’m going to leave that right there. Let’s go back to the Supreme Court and I’m glad we have you because you’ve written recently about this issue that I think some people don’t understand and I want to unpack it with you, and I think Augie does too.

Yes.

Apparently. The doctrine of originalism, can you explain what that is for the uninitiated? What is the theory of originalism when it comes to Supreme Court jurisprudence?

Sure. Originalism has actually evolved it, which tells you something about its powerfulness or not. Originally, originalism was presented as an effort to interpret the Constitution and to really constrain the broad interpretation of the Constitution by looking at the framers’, “Original intent.” It turned out, and this was promoted by Judge Bork back in the day. It was an element of why his nomination was defeated. It was promoted by Ed Meese, who was Ronald Reagan’s attorney general. He talked about how the Justice Department was going to develop and present to the courts a doctrine of original intent. And that was going to be a way to basically roll back and contain the excesses of the Warren Court, which took the broad phrases of the Constitution and ran with them. Ran with them with things like, guess what? Roe v. Wade and other cases on rights of various criminal defendants and other things.

Originalism changed from original intent when it turned out that different framers, guess what? Had different intent. If you and I were collaborating on a document we might mean different things by different sentences. So that didn’t really work. And so it’s been turned into looking for the, “Original public meaning.” How do we do that? This is going to sound a little crazy, note because it is. We look at dictionaries from the time. We now engage in what I think is a kind of ridiculous historical exercise to look at what the… The exercise is not ridiculous in and of itself, but for example, if you’re looking now at say whether a gun regulation is constitutional, you have to, according to the Supreme Court look to whether there is an analog at the time the Second Amendment was ratified or perhaps at the time that the 14th Amendment was ratified and so the Second Amendment was expanded to the states to see if there is something, is there an analog to serial numbers on guns that would prohibit the use of ghost guns-

Yeah. And these are not hypotheticals.

These are not. These are real things.

These are things that are happening. There’s another example, right? Isn’t there an example of an argument that under current law in certain circumstances if you are a domestic abuser you can’t possess a firearm. But because under this peculiar doctrine of originalism, because there was no real regime of domestic violence law and enforcement calls into question the current law.

It actually is even worse than you explained it. It is that while once domestic violence was prosecuted in America because individuals were given greater rights over the king, men were kings in their own homes and domestic violence was not prosecuted. So, therefore efforts to keep guns from domestic abusers cannot be constitutional. This is an actual decision by an actual federal judge. I wrote about it. It’s insane.

It’s not necessary, even if you believe actually that the Second Amendment applies to individuals and should be enforced in that way to protect the rights of gun owners, you do not need to go this far. I mean you wouldn’t even necessarily need to go this far if you were a dedicated originalist. But fundamentally the enterprise of originalism is the enterprise to make it look like when you’re doing judging, you’re not judging. Remember when Chief Justice Roberts, who is not an originalist, not a self-described originalist and doesn’t practice originalism in its most pristine form, but he talked about how judges were just umpires and they were calling balls and strikes. And originalism is a way of arguing that. Judges are mere umpires, they are simply looking at the original public meaning of the document, figuring out what those best sources are somehow and very mechanically using that to make the interpretation.

It is, and this is the phrase I use, I stole it from a law review article of some years ago, it is really bunk. It just is an effort to roll back the excesses of the war in court. It’s inherently conservative because it takes phrases that were written in a way that is intentionally broad and constrains them to the views of a society and the realities of a society that is very different from the society we live in today. Why should we be ruled by the understanding of a time when women couldn’t vote, when Black people were enslaved, when wives were chattel? That’s crazy. If you want to talk about original intent, it’s actually not even the original intent.

Can you describe for people the irony here? As you write, originalism was a fringe legal theory when it was developed beginning in the early 1970s. Could you describe the irony of there being a doctrine of originalism that seeks to put the emphasis on the original intent of the framers two centuries prior, but this doctrine itself only originated 200 years later?

Well, there have been strains of originalism before that, but I think you make a good point ’cause it’s the point that I made in this long piece that I wrote. In its current practice… And certainly I think originalism is practiced in various venues. It’s practiced these days in the law schools, when you and I were in law school it was barely discussed. To the extent it was discussed it was kind of tittered at, I think, and I’m really glad I got a chance to say the word tittered if you’re going to say cuss. But it’s, I think I could say, reputable academic legal argument. How should we do it? Should we do it? What are its limitations? There are interesting pieces that argue that, for example, you could find support for same-sex marriage even as an originalist. You can find support for abortion rights, maybe, even as an originalist. These are interesting academic arguments.

The practice of originalism in the courts and in the selection of justices and judges is a completely different animal because it’s not a kind of interesting academic philosophical, jurisprudential conversation. It is a desire to reach clear, predictable, and conservative results. And that is why Ed Meese took it up. That is why the Federalist Society was created and funded. Why Leonard Leo ran with it. And it’s why we are where we are today with this really quite radical originalist dominated Supreme Court.

So who on the current court is an acknowledged originalist?

An admitted originalist.

An admitted originalist.

So it depends how you count. I mean, this is the fascinating thing. If you talk to different law professors, as I did for this piece, you can come up with different numbers. Clearly Justice Thomas is one of the original originalists. Time was he and Justice Scalia were kind of lonely originalists on the bench. Justice Thomas, not Justice Alito so much, Justice Alito describes himself as a practical originalist but he will go along and kind of hum the originalist tune when it is useful for him. Justice Gorsuch, certainly. Justice Barrett, certainly. I count Justice Kavanaugh in there, though he’s a kind of squishier originalist. So we’re now up to four with Alito practical originalist, that’s five. And Justice Roberts, who certainly is willing to hum along or even sometimes write the words himself. He’s not a committed originalist, he’s just a serious conservative. So I think it’s at least four out of six.

Now, you reference Scalia who obviously has passed and is no longer on the court. He once said famously, and you quote this in your piece, Scalia said, “I’m an originalist, but I’m not a nut.” Why did he feel the need to say that?

Well, he was distinguishing himself from Justice Thomas. For Justice Thomas fans out there, that’s Justice Scalia. You have a bone to pick with, not me. And what he meant was if you take the theory of originalism seriously, you come up with some really unsustainable results. For example, you have a very hard time justifying the outcome in Brown v. Board of Education because it’s very clear that at the time the 14th Amendment was adopted the notion of segregated schools and getting rid of requiring school desegregation was not the original intent or the original public meaning. But no one wants to go back to a world without Brown. If you are an originalist, you are going to say paper money is unconstitutional for some reason, I don’t even remember. The Constitution talks about army and navy, but it doesn’t mention an air force. Does that mean Congress doesn’t have the power to have an air force? You come up with some admittedly crazy and untenable results.

So how do the smart originalists, and I think there are some, explain that away?

Well, they do two things. They fall back on stare decisis. In other words, some things are just so settled that they’re part of the super canon or they’re super precedent and we’re not willing to go back at them. There’s no desire to go back at them. If you believe, for example, that Griswold v. Connecticut, the birth control decision is wrong, is there a way in which that’s going to really come up? Because no state is going to pass a law that says, as Connecticut had in 1965 that married couples can’t obtain contraception. That’s not going to happen. So you fall back on stare decisis when it suits you, though you’re perfectly willing to abandon it when it doesn’t suit you, see e.g., Dobbs. And then you also resort to what Scalia said, which is he describes himself as a, “Fainthearted originalist.”

But that really does show you that, as with all methods of legal interpretation, you have to consider this is not mechanics, it’s judging. That’s why we call it judging.

And there’s a twist though, Ruth. You spent some time in your article talking about the risks of liberal justices trying to play, I guess, the originalism game too when it can be helpful in a particular case. And you gave the example of our newest justice, Justice Jackson. Could you explain what you were talking about?

Sure. Because there is such a core of originalists on the court. If you are a lawyer with a client before the court, you would be committing malpractice if you didn’t make your best originalist argument. So for example, in the affirmative action cases that are before the court, Seth Waxman, who’s arguing the case for Harvard and others have made the point that despite all these claims about how affirmative action is unconstitutional and violates the law because it’s not colorblind, that the original meaning and practice of the 14th Amendment was not strict colorblindness. It was actually designed to ensure fair treatment of Black Americans and other minorities. So they point to historical examples, as they should.

But I was first intrigued during her confirmation hearings and then slightly alarmed during some of the arguments that came up very early in this term by Justice Jackson’s talk about originalism. Because she really seemed to buy into it in a way that I think runs the risk of making it look like a legitimate, obvious and controlling form of legal interpretation. Rather than what I think it should be which is, of course the words of the Constitution have meaning, of course we should look to historical practice to understand that meaning and to get a sense of what the Constitution is about. Should we be bound by that? Absolutely not. I can’t understand that. But she said at her confirmation hearing, “I believe that the Constitution is fixed in its meaning. I believe that it’s appropriate to look at the original intent, original public meaning of the words when one is trying to assess. Because again, that’s a limitation on my authority to import my own policy.”

Well boy, that really cedes a lot of the argument to the originalist/conservative cause. When I heard her say that at her confirmation hearings, I thought, hmm, that’s interesting. But I’ve heard lots of people say lots of things, for example, about the importance of stare decisis, hello Brett Kavanaugh, at their confirmation hearings and I didn’t necessarily take them that seriously either. Where things got interesting was when she started to make the originalist point that I was making earlier about the original role and purpose and accompanying historical practice of the 14th Amendment. It came up not only in the affirmative action case, but in an earlier case that was argued about the scope of Section 2 of the Voting Rights Act. And she started talking about the originalist argument there. And I thought, wow, I understand why the advocates are doing it but this is an interesting and potentially dangerous road for liberal justices to be going down because it is a road that ends up, if you hew strictly to it, I think sentencing you to a very constrained, narrow and incorrect view of the Constitution.

Here’s what you write in your piece, “The more liberals present originalist arguments, the more they legitimate originalism rather than refuting it and offering a compelling alternative.” What is that compelling alternative?

Yeah, I was afraid you were going to ask me that at the end of that sentence. This is the problem. Originalism, I think I wrote this in the piece, is like the no new taxes bumper sticker of constitutional law. It’s really easy to understand. Judges shouldn’t legislate from the bench. Judges should interpret the law, they shouldn’t make it. This is really easy to say. It fits nicely on your car, but it’s hard to explain the alternative. Which is, the phrases of the constitution are capacious and they’re capable of grand meanings and so the framers intended for those phrases to evolve with the times and change with circumstance. And this is actually what I believe, and I’m making fun of it but it’s so much more airy fairy than strict constructionism or original intent or original public meaning. And it has been a very difficult challenge for a lot of judges and law professors who are a whole heck of a lot smarter than I am to come up with this coherent, easily bumper-stickered alternative or even easily book-length explained alternative to originalism and that’s the challenge. I, in my 4,000 words, was not going to be able to do a terrific job of coming up with that but I did the best I could.

I stopped listening after you said airy fairy.

We got a lot of good words here. Argle-bargle.

Yeah, I don’t know that I know that term. I know you’re busy. You have a lot to think about, write about. I’m going to let you go. Ruth Marcus and Augie.

Augie and I thank you.

Thank you for your time.

Thanks a lot. It was great to be here.

My conversation with Ruth Marcus continues from members of the CAFE Insider community. To try out the membership for just $1 for a month, head to cafe.com/insider. Again, that’s cafe.com/insider.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Ruth Marcus. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the #AskPreet, or you can call and leave me a message at 669-247-7338. That’s 669-24P-REET, or you can send an email to letters@cafe.com.

Stay Tuned is presented by CAFE and 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 Hernández. Our music is by Andrew Dost. I’m your host Preet Bharara. Stay tuned.