• Show Notes
  • Transcript

Preet answers listener questions about the Brady and Giglio Supreme Court cases, the possibility of a 9/11-style commission to investigate the January 6th insurrection, and the COVID-19 crisis in India. 

Then, Preet is joined by Ian Millhiser, Vox’s Senior Correspondent covering the Supreme Court. They discuss a few major upcoming cases and the alarming direction of the highest court. 

Don’t miss the bonus for CAFE Insiders, where Millhiser breaks down the possibility of court packing, whether Justice Breyer should retire while Democrats have control of the Senate, and why he “blames James Madison.” 

Join us for our next CAFE Live show, featuring two of the preeminent historians of our time: Professors Heather Cox Richardson and Joanne Freeman. The event will take place Thursday, May 27 at 6:00PM ET. RSVP here

Sign up to receive the CAFE Brief, a weekly newsletter featuring analysis by Elie Honig, a weekly roundup of politically charged legal news, and historical lookbacks that help inform our current political challenges.

As always, tweet your questions to @PreetBharara with hashtag #askpreet, email us at [email protected], or call 669-247-7338 to leave a voicemail.

Stay Tuned with Preet is produced by CAFE Studios.

Executive Producer: Tamara Sepper; Senior Editorial Producer: Adam Waller; Technical Director: David Tatasciore; Audio Producer: Matthew Billy; Editorial Producers: Noa Azulai, David Kurlander, Sam Ozer-Staton.

REFERENCES & SUPPLEMENTAL MATERIALS

Q&A:

THE INTERVIEW:

THE SENATE

  • Millhiser’s tweet about abolishing the Senate, Twitter, 5/8/2021
  • Jay Willis, “The Case for Abolishing the Senate,” GQ, 10/16/2018
  • Zachary B. Wolf, “DC statehood: Why it should (and should not) happen,” CNN, 4/23/2021
  • Molly Reynolds, “What is the Senate filibuster, and what would it take to eliminate it?” Brookings, 9/9/2021
  • Jake Tapper, “The Micaca Heard Round The World,” ABC News, 8/17/2006

FIRST AMENDMENT CASE

  • Mahanoy Area School District v. B.L., SCOTUSBlog, 4/28/2021
  • Tinker v. Des Moines Independent Community School District (1969), CaseText
  • Jeannie Suk Gersen, “The Complicated Case of the Pennsylvania Cheerleader,” New Yorker, 5/6/2021
  • Wisniewski v. Board of Education of Weedsport Central School District (2007), 2nd Circuit, FindLaw
  • “The Doctrine of Prior Restraint,” Legal Information Institute 

POLITICAL SPEECH CASE

  • Americans for Prosperity Foundation v. Bonta, SCOTUSBlog, 4/26/2021
  • NAACP v. Alabama ex rel. Patterson (1958), Google Scholar
  • Ian Millhiser, “The Supreme Court’s conservatives are quaking over cancel culture,” Vox, 4/27/2021

SUPREME COURT LITIGATORS 

DIRECTION OF THE COURT

  • Adam Liptak, “By 5-4 Vote, Supreme Court Lifts Restrictions on Prayer Meetings in Homes,” New York Times, 4/10/2021
  • Ian Millhiser, “The Christian right is racking up huge victories in the Supreme Court, thanks to Amy Coney Barrett,” Vox, 4/12/2021

BUTTON

Published May 13, 2021

Preet Bharara:

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

Ian Millhiser:

So for all of American history before 2010, I think you can make a credible claim that the Supreme Court was… I think it was still a political institution, but it wasn’t a partisan institution. And it is now partisan in a way that it has never been before.

Preet Bharara:

That’s Ian Millhiser. He’s a senior correspondent at Vox, where he covers the Supreme Court. He’s also the author of the new book The Agenda: How a Republican Supreme Court is Reshaping America. Ian has been covering the court extensively for over a decade. Before he came to Vox, he wrote about SCOTUS for ThinkProgress. The court’s changed a lot recently. So today, Ian and I talked through a few major upcoming cases, and discuss why he believes the Supreme Court is undermining liberal democracy. That’s coming up. Stay tuned.

Preet Bharara:

Hey, folks, it’s Preet. Back in March, historians Heather Cox Richardson and Joanne Freeman hosted a fascinating CAHE Live show about game changing presidents and the mandate for president Biden. I’m excited that on Thursday, May 27th, Heather and Joanne will be back for round two. This time, they’ll be discussing the role of historians and journalists today, and in past moments of turbulence in American politics. The event will begin at 6:00 pm, Eastern Time, and it will be streamed live on CAFE’s Facebook, Twitter, and YouTube. You can RSVP at cafe.com/live. That’s cafe.com/live.

Preet Bharara:

Now, let’s get to your questions. This question comes in a tweet from Eve, who asks, in the current political environment, do you think a 911-type commission on the insurrection would add anything to the investigation or public understanding? Well, that’s a great question that a lot of people are asking. And I have serious doubts about the issue for a particular reason. It’s based on the first five words of your question, your qualification in the current political environment. That’s what I think is making all the difference in how you answer that question. As a general matter, do I think a 911-type commission on the insurrection would add to the investigation, public understanding, and perhaps future reforms? I think, absolutely. But it requires certain conditions to be present.

Preet Bharara:

It requires a commission that is fully supported on a bipartisan basis by members of Congress and the public. It requires people on the commission who are carefully chosen, who are serious people, who have an open mind, who should probably have compulsory process subpoena power, and who want to know the truth, whether or not it favors the narrative of their political party or not. And some of the reasons why I think a 911-type commission will be very helpful, going back and thinking about how that commission did its work. It was very united in how it approached problems, it was fairly apolitical. They were able to get information that you can’t really get from these five minute rounds and house hearings, like the one we saw Wednesday of this week where there was a lot of political posturing and hollering and tribalism, that’s not something that gets you answers or fixes any problems that we have in our democracy.

Preet Bharara:

The other thing that I think you get out of a bipartisan commission that’s done the right way, is a deeper dive without a rush, and recommendations at the end, like you had with the 911 commission. A number of serious fundamental recommendations that were adopted by our country, which serve to make us safer. The problem is the current political environment. And as I mentioned, the hearing from this week, and the idea that folks on the Republican side want to expand the scope very broadly, to take the focus off of what happened on January 6th, I think is not helpful. And on top of all of that, a sign that we don’t have a proper political climate, to have a helpful and effective commission, I’m sad to say, is the removal of Liz Cheney, from the Republican leadership that just happened Wednesday of this week.

Preet Bharara:

Part of the reason she has been removed is what? In fact, perhaps the sole reason, because she refuses to defend the big lie that the election was stolen from Donald Trump, she refuses to defend that, which was the basis for and the provocation for the insurrection you ask about. And she’s gone. So in the current political environment, where Liz Cheney, daughter of the former vice president, who has an enormously high rating by conservatives, has voted with the president much, much, much more often than many other people who remain in that party, that’s a sign that it would be difficult to do something meaningful. Maybe people can get beyond it, and maybe people can rise above it, and I hope they do. Because I do think that the base of your question is a good one, and we could increase our understanding and prevent against such a thing from happening again.

Preet Bharara:

This question comes in an email from [Sarah Fridel 00:05:04]. Hi, hope this email gets to the right place. Well, it did. I’m writing about one of your best ever of all times, Stay Tuned podcast this past week with Jerry Blackwell and Steve Schleicher. Well, thank you for the compliment. I have a question about this exchange, to which the three of you reacted with laughter. Here’s the clip she’s asking about.

Jerry Blackwell:

Since there’s no such thing as Brady or a Giglio in my civil world for starters, and I had to deal with this. What? You mean we’re going to give them that? Are you kidding?

Preet Bharara:

What are you talking about?

Steve Schleicher:

And we’re saying, “Yes, Jerry, we are going to give them that on a silver platter.” Right.

Preet Bharara:

Sarah then writes, “Of course, I asked Mr. Google what Brady Giglio was all about, but I don’t understand what give them that means, what about the silver platter, and why it was funny? Thanks for explaining love your podcast, and also really enjoying you and Joyce on CAFE Insider.” So sorry, we got a little inside baseball on that exchange. So I can explain it, I think, relatively simply. There is a difference between civil law and criminal law, and that’s what they were joking about, because as you may recall, if you listened to the episode or otherwise followed the case, astonishingly, Jerry Blackwell, one of the lead prosecutors in the Chauvin trial, had never practiced criminal law. So he grew up in a culture and under the rules of evidence and procedure that obtain only in civil proceedings, not in criminal proceedings. So there’s some things that he was not familiar with.

Preet Bharara:

In civil cases, you don’t give to the other side information that is harmful to you, and helpful to them, unless you must, and unless it is requested. You just don’t do that, it’s anathema to how civil litigations work. In criminal prosecutions, because the liberty of human beings is at stake, and rights of constitutional dimension are at stake, there are protections and there’re obligations placed on the prosecutor, not always the defense, but on the prosecutor, as they should be. And one of those obligations, and you see this in movies from time to time, is the obligation to turn over material.

Preet Bharara:

One kind of material the prosecutors are required to turn over, whether they’re asked for it or not, is what’s called Brady material that comes from a 1963 Supreme Court case, called Brady versus Maryland, which basically made clear the obligation of prosecutors to disclose materially exculpatory evidence. Evidence that tends to make the likelihood of guilt lower needs to be turned over. not something you do in civil practice, turning over information that’s favorable to the other side. But it must be done in the criminal law and every federal prosecution and every state prosecution must be done.

Preet Bharara:

The second kind of information that needs to be turned over in advance of trial, it’s a trial based right, is material that tends to impeach or undermine the credibility or testimony of a prosecution’s witness. It doesn’t necessarily go to the direct question of guilt or innocence, but prosecutors must give to the defense things about a witness whether they’ve lied before, whether they have a criminal record, things that might undermine their credibility, because that’s only fair for their defense. That is also something the Supreme Court has said is necessary. So when Jerry was saying there’s no such thing as Brady or Giglio in the civil world, that’s what he’s talking about. And Steve Schleicher, being an upright ethical prosecutor was saying, “Yes, Jerry, we’re going to give them that on a silver platter.” He means he takes the obligation seriously to hand over on the proverbial silver platter, this information that is helpful to the defense.

Preet Bharara:

And by the way, the penalty for not turning over Brady material, exculpatory material can be harsh, it can reverse the conviction, and it can even cause sanctions to be brought against the prosecutors themselves. So it’s something that’s taken very seriously. And so if you have Brady information, you hand it over on a silver platter. By the way, some lawyers out there will probably be wondering about my pronunciation of that one Supreme Court case Giglio v. United States, and maybe Joyce and I will discuss this on the Insider podcast next week. Lots of people don’t pronounce it that way, they pronounce it Giglio. In the Southern District of New York, for right or wrong, we always pronounce the Giglio. Let the letters come in.

Preet Bharara:

This question comes in an email from [Mary Lee Corwin 00:09:04] and a number of people have been asking about this. And you can imagine why. Preet, how can we help the people in India during this horrendous COVID infection? Is there a reliable group we can donate to? Is there a way we can support vaccination programs? And so I’ve gotten this question from a lot of people, both to the show, and personally, and I’ve been talking about it with my family. For those of you who haven’t been following fully, it’s a disaster of unmitigated proportions in India after they did a pretty good job up until about a month ago. The situation is really dire. The country reports at least 350,000 new cases a day, at least a quarter of a million people have died. There are thousands of deaths a day and everybody who is an expert on this kind of thing in that country says there’s a lot of undercounting. The crematoria are full. In certain cities they’re running out of wood to burn the bodies. People are just dying on the street.

Preet Bharara:

My dad, as you may know, if you listen to the show, is a doctor trained in India and he’s been talking to former colleagues and friends of his there and sadly and tragically, he lost one of his med school roommates to COVID last week. And within two days, that classmate’s wife also passed from COVID. And he and others are figuring out ways to collect money to send targeted oxygen to doctors that they know in India. So there’s a lot of work underway, and we should help that country, even as we’re starting to come out of the COVID crisis. Because as you realize, we’re all interconnected, and if we don’t solve the problem in other countries, that’s going to be a problem for Americans too.

Preet Bharara:

So let me mention a few places if you have the wherewithal and the interest, where you can help people in India, and links to these organizations will be in the show notes as well. One organization is the Indian Red Cross Society. It’s been organizing the deliveries of oxygen concentrators and ventilators from other governments and private organizations. The Red Cross’ emergency response division, St. John Ambulance, has also been training first aid workers. Then there’s the American India Foundation, which has raised $23 million to build hospital beds and to bolster frontline response efforts.

Preet Bharara:

During the first wave of the crisis last year, AIF gave 500,000 people protective gear and distributed 900,000 meals, and they’re making efforts on the ground as the crisis gets worse. Then the third one I’ll mention, and there are other ones in the show notes, as I said, is Indiaspora, a group of Indian leaders from around the world who have created a massive donation platform to get money to impactful nonprofits on the ground in India. At the end of April, they raised a million dollars in 48 hours to support families whose primary earners have lost their jobs because of the pandemic, also to help vulnerable migrant populations, and have made efforts to build makeshift hospitals.

Preet Bharara:

We’ve also included links to reports from recent Stay Tuned guests, and CNN chief international correspondent, Clarissa Ward. You may remember that in the interview I did with her, she was headed to India to report on the crisis. Our hearts of course, are with everyone suffering in India and around the world amid this horrible pandemic. Try to keep folks in your prayers. And if you’re able, give at the links below.

Preet Bharara:

Stay tuned, there’s more coming up after this. My guest this week is Ian Millhiser. He covers the Supreme Court for Vox as a senior correspondent. Ian’s most recent book is, The Agenda: How a Republican Supreme Court is Reshaping America. As we embark on this era of a six, three conservative majority on the highest court, Ian joins me to discuss some key cases, a bit of SCOTUS history and whether our democracy can be saved. Ian Millhiser, welcome to the show. Thanks for joining us.

Ian Millhiser:

It’s good to be here. Thanks so much.

Preet Bharara:

So you are my colleague now, as of about three and a half weeks ago, how do you feel about that?

Ian Millhiser:

I mean, there are worse things. Welcome to Vox Media.

Preet Bharara:

Wow, that’s a nice welcome. I appreciate it. I appreciate it very much. You have a new book, The Agenda: How a Republican Supreme Court is Reshaping America, so we’re going to spend a good amount of time talking about the court. You have a lot of thoughts. I’ve been reading your stuff, not just in preparation for this interview, but along the way to prepare for my other podcast, the CAFE Insider when we talk about court decisions, from time to time. But I want to start with a different question about a different branch of government that you have taken some issue with. Can you guess? There’s only two other possibilities. [crosstalk 00:13:39]

Ian Millhiser:

Yeah, no, I mean, I’m curious, which one of the two you want me to go with here?

Preet Bharara:

Well, here’s a tweet to which he responded in the last day, somebody posted a tweet saying, “If you could make one change to the way the US electoral system works, what would it be?” And you answered in three words, what were those three words?

Ian Millhiser:

Yes, abolish the Senate.

Preet Bharara:

Abolish the Senate. Why would you say such a thing about the world’s most deliberative body? And don’t take the whole hour, because I know you… We need to get to the other branch of government too.

Ian Millhiser:

I could go on for days about this. No, no, I think that the Senate is the source of so many of the problems with our democracy, and specifically the fact that it is so malapportioned. So California gets two Senate seats, despite the fact that it is 68 times as many people as Wyoming, which also gets two Senate seats. And this is a tremendous benefit for the Republican Party, it effectively gives them a whole bunch of extra Senate seats. In the current Senate. Even though there is an equal number of Democrats and Republicans, the 50 democrats represent about 40 million more people than the 50 Republicans. So it’s just a huge barrier to us having a government where the will of the people is reflected. If Republicans win an election fair and square, they should get to govern, but they shouldn’t get to govern just because our constitution effectively gives them extra seats.

Preet Bharara:

And you would feel the same way and make the same arguments if the shoe were on the other foot?

Ian Millhiser:

I would hope so. Because I mean, either you believe in democracy or you don’t.

Preet Bharara:

I mean, I wonder about… And I’m in no disparagement about your principles and your thoughts. But I do wonder sometimes, and people will send me angry emails, maybe, I’m not saying this is the case, but I do wonder what people’s positions would be, for example, on DC statehood, if the situation was reversed, and Democrats felt that, the admission of that, any additional state at this moment in history, given how polarized we are, would add senators from the other party and vice versa. I’d like to think because I’m on that side of the fence, that as you phrase your answer, I’d like to think that one would be fair and say, “You should get representation if you’re part of the country.” But I do wonder if there’s some subsets of people who wouldn’t?

Ian Millhiser:

Yeah, I mean, I’m sure there’s a lot of motivated reasoning and no one’s immune to it. But if I can go back to where the conversation started, I think the debate about DC statehood highlights why the Senate is such a problem, because it shouldn’t be the case that the solution to the fact that Republicans are over represented in the Senate, is to find this city that has fewer people in it than 48 of the states and make it a state too in order to correct that imbalance. The better solution is just not to have the imbalance in the first place, the better solution is one person one vote, and a vote in California should count the same as a vote in Wyoming, which should count the same as a vote in DC.

Ian Millhiser:

Because I know that you want to pivot eventually to the Supreme Court, I’ll bring this around to the court now. We also wouldn’t have the problem we have with ideological capture of the Supreme Court if we had a fairer Senate. When Barack Obama nominated Merrick Garland to the Supreme Court, even though Democrats were a minority in the Senate, the block of democrats that made up that minority represented millions more people than the Republican majority. None of the people that Trump nominated to the Supreme Court were confirmed by a block of senators who represent a majority of the country. And Trump himself, of course, lost the popular vote in 2016. It’s only the electoral college that made him president. So part of what concerns me, and then we this is a major thrust of my writing, with the amount of power that the Supreme Court is now claiming is it would be one thing if we got this conservative court, because republicans just consistently want elections fair and square, and that’s what the American people wanted, I think I’d be on pretty weak ground if I criticized the court under those circumstances. But we have a court that is moving the law, in a direction away from where the American people consistently voted for. But the problem is that some American’s votes count more than others.

Preet Bharara:

So your principal concern about the Senate is not necessarily about its internal functioning, or matters of the filibuster, but the overall imbalance given the way it operates, and given the way that states are apportioned senators?

Ian Millhiser:

Yeah, I mean, I would abolish the filibuster too. I mean, I think democracy is a good rule, and if you-

Preet Bharara:

[crosstalk 00:18:30] want to abolish a lot of stuff.

Ian Millhiser:

I could go down a list. But I mean, as a general rule, I think we want to have a system where everyone’s vote counts equally, we have occasional elections, whoever wins the election gets to govern. I think the advantage of having a filibuster-free Senate, where the majority party gets to govern is that if the majority party does a good job, everyone will know because they’ve got to implement their policies, that this party does a good job, and we should reelect them. And if they implement a bunch of terrible policies, then people will learn from that as well. And I think that radical parties will tend to moderate when they face consequences for implementing bad policies.

Ian Millhiser:

A big reason why I think the Republican Party’s become so radicalized is because it can’t implement its agenda. So they go out and they speak and they take more and more extreme positions, because they’re never forced to actually implement these things and face the voters after they’ve taken health care away from 20 million people.

Preet Bharara:

Do you think at some point, though, based on demographics, and I don’t know if you believe in this, the arc seems like progressives are getting more and more share of the vote in [inaudible 00:19:51] red states, including Georgia. People talking about the bluing, if I can use that as a verb, of Texas, that eventually that will all overwhelm this ossification that the Republicans have in the Senate and on the Supreme Court.

Ian Millhiser:

I think they could [inaudible 00:20:06] a lot in the electoral college like, if Arizona and Georgia go… I live in Virginia. And I mean, I’m old enough to remember when George Allen was the king of Virginia, if you remember him and like-

Preet Bharara:

Yeah.

Ian Millhiser:

As recently as 2004.

Preet Bharara:

He’s the macaca guy.

Ian Millhiser:

Exactly. Yeah, as recently as 004, Virginia was a solid red state with this pretty racist, hard-right republican as its most prominent politician. And now it’s looking like a solid blue state. So demographic change does happen. If Georgia and Arizona wind up being like Virginia and becoming solid blue states, and you could see Texas going that way as well. I think that does potentially fix your… I mean, it doesn’t fix the electoral college problem, then you could have the problem where we keep electing democratic presidents, no matter what happens, and I don’t think that would be particularly democratic either.

Ian Millhiser:

But I don’t know that demographic change fixes the Senate because Wyoming isn’t experiencing a lot of demographic change. Idaho isn’t experiencing a lot of demographic change. A lot of the really small states that benefit from senate malapportionment, they’re staying pretty white and pretty Republican. I will say that I do have a dream, which is that someday, if Texas and Georgia and Arizona do become solid blue states and Democrats are locked into a majority in electoral college, I could imagine a deal where Democrats say, “We will agree to get rid of the electoral college, which now benefits Democrats, if you Republicans agree to abolish the Senate.”

Preet Bharara:

You don’t really mean abolish the Senate. You think there should be no two chambers? Because I was a staffer in the Senate, and we often said things, half kiddingly, that amounted to abolish the house.

Ian Millhiser:

Yeah, I mean, I think that I would have less objections to a system where the Senate was fairly apportioned. So California got seats-

Preet Bharara:

But you’re not saying that we should have a unicameral system?

Ian Millhiser:

I mean, I think I would prefer a unicameral system, as a general… And there’s a lot of scholarship showing that the fewer veto points you have in a system of government, the more robust the welfare state is, the more likely it is to be dynamic. I think if you made me Tsar of the universe, and I could rewrite the whole constitution, I would probably lean in favor of a unicameral system. But I don’t think that that distinction matters nearly as much as just getting rid of malapportionment, making sure that every vote in the country counts for the same amount. And if we’re going to have a bicameral system, let’s have one where California gets seats in the Senate relative to its population, and every other state does as well.

Preet Bharara:

It would be neat if I had that power to appoint Tsars, and particularly that kind of Tsar.

Ian Millhiser:

It wouldn’t be the worst thing.

Preet Bharara:

Can we go through some cases that are pending in front of the Supreme Court and you take us through them?

Ian Millhiser:

Sure.

Preet Bharara:

Because I think it’s interesting for people to know what the docket is, what it says about the changing nature of the court, whether or not Justice Barrett is making a difference, how you think they’ll come out. Let’s do that through the lens of particular cases. And here’s one that I haven’t had a chance to talk about. So it’ll be fun to discuss with you and it relates to the First Amendment. And it’s a case called… I don’t know how to pronounce this, is it Mahanoy?

Ian Millhiser:

I mean, your guess honestly, is good as mine. This is the B.L. case I think you’re talking about.

Preet Bharara:

Yeah, we’ll call it school district.

Ian Millhiser:

Yeah.

Preet Bharara:

  1. B.L. Preliminary question, I don’t know if this will surprise people. The First Amendment to the Constitution, the free speech clause, does it apply even to teenagers?

Ian Millhiser:

The answer to that is yes. But-

Preet Bharara:

Even my teenagers?

Ian Millhiser:

Even your teenagers. Everyone gets the First Amendment.

Preet Bharara:

So that’s my first criticism of the First Amendment.

Ian Millhiser:

Well, I mean, you can still punish them. The First Amendment just means that the government can’t punish them.

Preet Bharara:

Well, when I was in the government, and they said something I didn’t like and I punished them. Was that state action?

Ian Millhiser:

Probably not. I mean, did you indict them?

Preet Bharara:

No.

Ian Millhiser:

Okay. So then you’re probably cool. But yeah, I mean-

Preet Bharara:

But this is an important background point, right? Because what makes this case, and we’ll go through the facts in a moment, and then I want to hear your analysis. But I think it is not necessarily universally appreciated that the First Amendment is as broad as it is, even with respect to young people.

Ian Millhiser:

Right. Although I think that the point that it does only apply… the First Amendment does only apply to the government is important, parents can still punish their kids for acting out.

Preet Bharara:

Thank God.

Ian Millhiser:

Your grandma can still potentially punish you for acting out and then the other-

Preet Bharara:

Twitter can as well, right?

Ian Millhiser:

Yeah, Twitter can cancel you. But then the other thing, and this brings us back to the B.L. case is that schools also have a decent amount of control over student speech. So when-

Preet Bharara:

In the school itself.

Ian Millhiser:

In the school itself, yeah. What the Supreme Court said in a case in the 1960s, called Tinker, is they said that schools have the power to regulate student speech that disrupts the school environment. I’m a former teacher, if you’ve ever been a school teacher, you you realize this is a good rule. When I was a teacher, if two of my students were debating politics in the hall, I couldn’t say, “Well, I disagree with you. So I’m going to punish you now.” But if one of my kids just started screaming in the middle of class, or if they insulted another student, or if they just started cursing, or they did something like that, or they just talked when it wasn’t their turn to talk, I couldn’t have done my job as a teacher, and they couldn’t have learned if I didn’t have some power to discipline them.

Ian Millhiser:

So I mean, I’m just saying I think that Tinker drew the right law, it understood that students should have some free speech rights, but you have to preserve the viability of an educational environment. And that means teachers have to have some control.

Preet Bharara:

Right. The problem, as we will discover in a moment, is that technology changes things, and it makes possible a violation of that principle, or the invocation of that principal. Disruption in the school environment, very different from what it might have been in 1969. So let’s just go through the facts for a second. At the heart of this case is a high school sophomore who tried out for the varsity cheerleading squad. People try out for teams, doesn’t always work out, didn’t work out for her. So she didn’t make the team, and she was offered a slot on the JV squad, and soon after that, she did what many teenagers might be expected to do. She posted an image of herself, and someone else, giving the finger on Snapchat with the caption, and I can’t say this on this family oriented program, but you’ll understand what I’m saying quote, “F school, F softball, F cheer, F everything.” So that was like a catch all at the end, which you always want to have when you’re using the F bomb.

Preet Bharara:

So what the school did was suspended her from cheerleading for a year, even from JV. And so the question is, is that a infringement of the First Amendment rights that she would have? And in part because she did the post on Snapchat, not at school, but at home, outside of school. First question to you, by the way, which I note that in the article you wrote about it, you mentioned how the Supreme Court justices were reacting to the punishment itself. I wonder what you thought of their reaction. My reaction, and I’m not necessarily a softy, but that seemed like an excessive punishment. Not a legal question, just a sort of a general judgment question. What do you make of that punishment?

Ian Millhiser:

Yeah, I mean, I thought it was definitely excessive. I mean, but before I put on my constitutional lawyer hat, just as a former school teacher, if you overreact like that, eventually you find that the students don’t listen to you, because they know you’re going to overreact to everything anyway. One thing that struck me about the oral argument is that I came into it afraid that some of the conservative justices would take more of a stern parent approach. And to their credit, that is not what I heard. I mean, Amy Coney Barrett is… I still don’t think she’s a particularly good judge, but I came away from that oral argument thinking that she’s probably a good mother, because she had a line where she… The phrase that she used was soft discipline, like, “Why couldn’t you have just told the kid that this was inappropriate and left it at that?” There are lots of ways that people in positions of authority can handle children who act out that aren’t unfair, and aren’t disproportionate and don’t lead to resentment or for that matter, lawsuits.

Preet Bharara:

It’s sort of interesting that people are focusing on that, because correct me if I’m wrong, but even if it were the case that she was suspended from one game, not for a whole year, which might have been more proportionate, and then probably also wouldn’t have led to litigation, but let’s suppose it did. For purposes of the First Amendment, and this argument, and these principles, it doesn’t matter if it’s a one day suspension or a one year suspension, am I right?

Ian Millhiser:

That’s right. Yeah. The question is whether or not the First Amendment permits any punishment at all. And-

Preet Bharara:

Right. But isn’t in interesting… Address what’s going on there when they’re spending all this time on the issue of the magnitude of the punishment when it’s not necessarily legally relevant, right?

Ian Millhiser:

I mean, I think justices are people. I mean, a lot of them had the same reaction that you and I did, which was, “Really?”

Preet Bharara:

That’s a lot. Right.

Ian Millhiser:

Yeah. Now that said, I mean, here’s why I think that… Here’s what makes this a really difficult case. So the legal issue in this case is whether or not she can be punished for this speech that she engaged in while she was not on campus. She posted this on Snapchat on a Saturday when she had no connection to the school at all. And I want to tell you about the facts of another case, this is an actual case that was decided by the Second Circuit. There was a student, also wasn’t at school, also went online, posted a picture of a gun blowing someone’s brains out with blood splattering and everything. And then the caption under it was the word kill, and I forget what the name of the teacher was, but it was kill his English teacher.

Preet Bharara:

Right. I’m guessing I know how that came out.

Ian Millhiser:

Yeah, exactly. I mean, I think we instinctively agree that even though that also happened off campus, and even though constitutionally, it seems like a similar case, I think that we’d all agree that it is appropriate for the court to take action in that sort of extreme case.

Preet Bharara:

Right. Because it clearly gets at the standard from the earlier case you mentioned, Tinker, in that it would materially and substantially disrupt the work and discipline of the school. Fair?

Ian Millhiser:

Exactly. So that’s what makes this hard is that there are a million gray areas here. I think most people would agree that the cheerleader should not be banned from cheerleading for a year because she said something that high school students who didn’t make the varsity team have been saying for as long as there have been varsity teams. On the other hand… And it’s not just the extreme examples of a student threatening to kill a teacher that we have to worry about. What about bullying? Justice Sotomayor gave an example at oral argument of what if there’s just a girl who has to walk past three of her classmates every day on her way to school? And every day they say to her, “You’re so ugly, why are you still alive?” And it’s not-

Preet Bharara:

[crosstalk 00:32:10] can punish that. So if we’re taking a vote, what do you think?

Ian Millhiser:

I mean, I think that if it were up to me, and I think this is where you were going earlier, I think that the right response is to take Tinker really seriously. If the rule is that schools can only punish the activity that has a material disruptive impact on the school, then serious bullying, whether it happens on or off campus, I think does have that impact. Obviously threatening a teacher has that impact. And a student saying the sort of, blowing off steam in the way that literally every child has blown off steam in the history of there being children, is not something that that material disrupts the school.

Ian Millhiser:

But I mean, the challenge that the Supreme Court has is it has to articulate a rule which distinguishes amongst all these cases. And it was clear the justice thought it was a hard case, and I think the right to think of it as a hard case.

Preet Bharara:

Part of the difficulty is we’ve already alluded to, is that social media changes things, right? To the extent the Second Circuit has said, “The way you reach the principal and Tinker, the threshold in Tinker, is if there’s a reasonably foreseeable risk that the speech would come to the attention of school authorities.” Now, in the old days, if she had just done that in her backyard or with a friend, it wouldn’t have come to their attention. But now on social media, everything comes to everyone’s attention. I guess, my question to you is, what did the framers say specifically about Snapchat? Do we have that in some of the literature?

Ian Millhiser:

Yeah, as it turns out, originalism isn’t always helpful. Originalism’s the idea-

Preet Bharara:

Wait, I’m sorry, I’m very confused. The founders had nothing to say about Snapchat?

Ian Millhiser:

You would be… I mean, honestly, the founders didn’t have very much to say about the First Amendment. I mean, if you go back and you look at… I mean, the First Amendment says that the freedom of speech, congress shall make no law abridging the freedom of speech. And it’s not even clear what they thought the freedom of speech is, there’s some scholars who think that the First Amendment was only a restriction on what are called prior restraints, which meant that you couldn’t be punished for something before it was published. But once you publish something, if the government doesn’t like it, they could punish you for it. I mean, the framers definitely didn’t have views on campaign finance, or a lot of the really difficult First Amendment questions that come before the court right now.

Ian Millhiser:

This is all basically judicially constructed, and it’s something that I feel very conflicted about because on the one hand, I’m glad that we have robust free-speech protections, I think in an ideal world, we’d want the court to protect free speech. But on the other hand, if you’re looking for firm ground that America’s First Amendment law stands on, it is just turtles all the way down. There is no original understanding of the framers that you can go back to.

Preet Bharara:

This case, given how the oral argument went, and how the justices seemed frustrated with how to draw the line here. Do you expect this case to fall… This case to be voted on on some ideological divide or not?

Ian Millhiser:

I think probably not. I mean, some of the justices have staked out. Like Justice Thomas has basically said that teenagers don’t have First Amendment rights. And so Thomas, I don’t see any reason why he would abandon that view in this case. But most of the justices, I mean, to their credit, I think, didn’t see this as a particularly politically charged case. The other thing that struck me about this oral argument is that a lot of them seem to be looking for ways to make this case smaller, let’s not decide the grand principle of, “Let’s come up with a rule that applies to cyber bullying and cursing cheerleaders and students who threatened to kill teachers and every other [inaudible 00:36:29] pattern that you can imagine.” Let’s try to find a way to come up with a narrow way to resolve this case, and and make it go away.

Preet Bharara:

I just wonder what the larger implications might be for a case like this. So for example, would the final decision in this case have an impact on a future… Hypothetical future, hypothetical as follows, where somebody on social media outside of school makes some statements about the death of George Floyd. And you can imagine a statement that some people would agree with some people would not agree with, that could materially and substantially disrupt the work and discipline of the school because people have strong feelings about it. Would such a person be able to be disciplined or not given the nature of that speech?

Ian Millhiser:

Yeah, I mean, the answer to that is potentially yes. The way that Tinker has been applied, before the internet even got involved… When I was a law clerk in 2007, my judge heard a case involving students who wanted to wear confederate flag T-shirts. And the answer to whether or not a student has a First Amendment right to wear a confederate flag’s T-shirt depends on what type of community that school is in, it depends on whether there’s going to be a lot of students who’ll be offended by that shirt in ways that might disrupt the school. The same rule applies to any other shirt that you can imagine, a Black Lives Matter shirt, and abortion-is-murder shirt. I mean, there could be a shirt with… You just wear a shirt with your favorite band on it, and if you just happen to live in a school district where 500 of your classmates loath that-

Preet Bharara:

Hate Van Halen.

Ian Millhiser:

Yeah, exactly. Then the school could ban Van Halen T-shirts. These cases are really context specific. They depend on not just on what the speech is that the student is engaged in, but what the school community’s reaction to that speech is. If you extend that to the internet, then I mean, it can lead to a… You can imagine a school for example in a community that’s very, very pro Trump. And so if a student posts online, “The election was stolen. Trump should have won,” that student might have nothing happen to them, because everyone agrees with them. And then another student posts the truth, posts, “Biden won the election,” and they show up to school the next day, and everyone’s yelling at that kid. And the school, under Tinker, could say, “Well, that’s disruptive. So you can’t say that.”

Preet Bharara:

My interview with Ian Millhiser continues after this. So that’s an interesting case. We could talk about it for a lot longer. Let me go on to another one that’s pending before the court and I know you’ve focused on and analyzed and written about. Americans for Prosperity Foundation v… Is it Bonta? I can’t pronounce these names. Bonta, Bonta. I’m going to call it Americans for Prosperity Foundation. How about that?

Ian Millhiser:

Yeah, that works.

Preet Bharara:

You begin a very interesting discussion about the case with a quote from Justice Scalia, who said once… And this case, by the way, revolves around the issue of whether or not donors to nonprofits in California, or large donors to nonprofits in California have to disclose their identities to the attorney general’s office in California for the purpose according to the attorney general’s office in being able to ferret out fraud. So it’s a disclosure transparency issue in connection with these nonprofits, and you quote from Justice Scalia.

Ian Millhiser:

Yeah, this is in his… In his opinion, he wrote [inaudible 00:40:22] Doe.

Preet Bharara:

Right. In the Doe case. Quote, “Requiring people to stand up in public for their political acts, foster civic courage, without which democracy is doomed. From my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously, and even exercises the direct democracy of initiative and referendum hidden from public scrutiny, and protected from the accountability of criticism.” And then he goes on to say, “This does not resemble the home of the brave.” End quote. Why did you begin with that?

Ian Millhiser:

What fascinated me so much about this case, I mean, there are important legal implications for dark money and when political groups are going to be able to hide who their donors are. But what struck me so much about this oral argument was that the conservative justices really do seem concerned with the sort of cancel culture phobia that animates Fox News.

Preet Bharara:

Please pause for a minute, so people understand why you’re mentioning that. So the dispute here seems to be, and the reason people might ask the question, what’s the big deal? Why not just disclose? And the concern is, one, that there has been a track record of that office for good or ill, of not keeping these things confidential, right? So the donor’s identities get known. And there also is, according to the litigants in the case, a history and track record of donors being harassed, and made to feel uncomfortable and bad conduct towards them, because they get outed, which is why there’s not the same amount of civic courage that you heard invoked in the Scalia quote. This idea you’re talking about is a concern about a backlash for giving money to a particular cause.

Ian Millhiser:

That’s right. So the two plaintiffs in this case are the Americans for Prosperity Foundation, which is a conservative, vaguely libertarian group closely associated with the Koch brothers, and then an organization called the Thomas More Law Society, or Thomas More Law Center, which is just a religious right litigation shop. And as you said, the reason why they don’t want to have to disclose their donors is they’re afraid that if the names of their donors get out, those donors will… Maybe their businesses will be boycotted. Maybe they’ll get prank calls, like the donors will face some sort of consequence.

Ian Millhiser:

The reason why these plaintiffs have a bit of a leg to stand on is if you go back to the 1950s, there was this case involving the NAACP, Alabama v. NAACP. And what happened… Or NAACP v. Alabama, and what happened there was that the state of Alabama, tried to get the membership list from the NAACP and the reason they wanted this was they could either turn it over to the Klan, and those people could be killed. Or they could put them on a blacklist so that they wouldn’t be able to get a job ever again.

Ian Millhiser:

And under these circumstances, where you had Jim Crow, where you had a terrorist organization closely aligned with the state that was targeting people who were involved in the civil rights movement, when you had all of that history, the Supreme Court said that in those circumstances, the First Amendment requires that there be an exemption to a disclosure law, so that people who literally have to fear for their life are not harassed or killed, because their information is turned over to the government. Now-

Preet Bharara:

The importance of that… I mean, it’s important that you… That’s why I think your piece was so interesting, and some of the questions you raised are so interesting, because a lot of people they hear about a group, and they hear about the facts that we set out and might say to themselves, “Well, that’s terrible. Everything should always be transparent and open.” But it is also true, that if the shoe was on the other foot, there are circumstances in which the progressive who was howling at this idea that conservatives don’t have to reveal the identities of donors, there are circumstances in which, in the other direction, on the other side of the ideological spectrum, there is good cause and good reason for those donors not to be revealed.

Ian Millhiser:

Right. I mean, you could imagine a situation where instead of being the California attorney general’s office, wanting to collect all this information and conservatives objecting. What if it was the Texas attorney general, and the plaintiff was planned parenthood? And the question is, do you trust the Texas attorney general’s office to not collect all this information about planned parenthood’s donors, and then turn it over to Tucker Carlson or something like that?

Preet Bharara:

Yeah. It’s important, I feel. And that’s why I think your piece is so good. Wherever you are on the ideological or political spectrum, and you’re analyzing an issue, to just do the mental exercise of changing the facts a little bit, and imagining a different group or a different school or a different statement or a different state and see if you have the same view, right?

Ian Millhiser:

Right. Yeah. So this, I guess, brings me to the part where I’m supposed to reveal how I would think about the case, which is… I mean, I do think that there are some cases, I mean, the NAACP cases is the clearest example where you do want there to be some limits on disclosure. But there’s also important reasons to have disclosure walls. I mean, like the Americans for Prosperity Foundation, they call themselves a charity, but they’re not running soup kitchens, what they are in the business of is they’re in the business of getting rich people to give them money, and then using that money to try to influence policy in our political debates. And-

Preet Bharara:

Should that matter? Should the substantive advocacy of the organization matter to Supreme Court justices deciding this issue? Other than insofar as it affects the level of harassment they might get.

Ian Millhiser:

I mean, I’m inclined to say that the answer is yes. Because I think that the particular evil that, at least I’m most concerned with, is that we don’t want a rule to be handed down that makes our politics completely opaque, where we have people spending millions of dollars either to influence elections or to lobby members of congress, or to in some way shape our political conversation. And we have no way of knowing who’s doing that and where it’s coming from.

Preet Bharara:

But although, if I can just press on that for a second, this is not about transparency to the public. Nowhere here was anyone suggesting that the major donors were going to be published in the New York Times. They’re just talking about disclosing that to the attorney general’s office who are supposed to, in good faith, assess the possibility of fraud. And the fact that these unfortunate leaks were happening is why we’re even talking about them becoming public, and why do we even have this issue in the first place, right? But even on its own terms, this case is not about those things, and those facts, and those donors, and their identities becoming public, generally.

Ian Millhiser:

Yep. No, that’s a fair point. This is not, at least on its surface, a political disclosure case, it’s a case where the reason for the law is that every charity has to disclose its top donors. That helps the state uncover fraud. If it sees that charity X claims that Bob Smith gave them a million dollars, and then Bob Smith says on his tax form that he gave them $2 million, you can figure out that certain forms of fraud are going on that way.

Ian Millhiser:

But anyway, I mean, I think you’re right, that if there is a way to carve out a rule, and say that maybe the Americans for Prosperity Foundation should get some sort of exemption from this wall, which doesn’t deal with politics at all, so long as we protect our ability to have disclosure for politically related activity. I think I would be comfortable with that rule. I’m not quite sure where to draw the line. And what I worry about with this case, is that it’s going to be a Trojan horse to get to the kinds of disclosures that we really do care about. It’s going to be a Trojan horse that the Supreme Court will use to say, “Not only do disclosure laws not apply to these political advocacy groups,” when we’re just talking about everyone discloses type thing, but also if say, the Americans for Prosperity Foundation wants to add run a political ad, I’m worried that the Supreme Court will cut off our ability to find out who the donors are for that political ad.

Preet Bharara:

One of the more interesting things you point out in your analysis is your observation that during the oral argument, Justice Alito asked the question, using the phrase, “How do you think about this? How do you think about unpopular positions of organizations like this,” quote, “in our current atmosphere.” End quote. And the phrase, as you say, in our current atmosphere is telling because it raises the question of why he thinks the atmosphere was different in previous eras, and then you go on, and I think, in a very compelling comparison between the current case in 2021, and the NAACP case that you mentioned from 1958. Well, that was not a great atmosphere either. So what’s so much worse about the current atmosphere? And what does it say? Does it say more about Justice Alito than it says about the current atmosphere?

Ian Millhiser:

Yeah, I mean, the main thing that I took from this oral argument was that it made me see a problem with empathy on the Supreme Court. I think this is a hard case, and I mean, as we’ve drawn out, I think it’s difficult to distinguish between this type of disclosure and political disclosure. I mean, this is not an easy case. But the conservative justices seemed to view it in very stark terms. They thought this was very clear cut, that conservatives are being attacked for their political views, we have to protect these conservatives who are being attacked. And the impression that I got, I mean, you see it in Alito’s reference to the current atmosphere is, yeah, I will buy that if you are someone who believes what Samuel Alito believes, that this current era is not a great era for you. There are fewer and fewer people who believe what Justice Alito believes, who hold his conservative beliefs. There are more and more people who are very critical of people who hold Justice Alito’s conservative beliefs.

Preet Bharara:

He sees something slipping away, I don’t think it’s that different from what I take to be the mindset of someone like Bill Barr, and some other folks who I think just at the very mention, even without analysis, the very suggestion, it’s not quite in the same vein, but the very suggestion that there may be such a thing as systemic racism makes their blood curdle, right?

Ian Millhiser:

Right. Yeah. I mean, I think you’re exactly right that they see something slipping away. What I think is significant about this moment that American society is in, is we are negotiating a transition, we are negotiating a transition from a world where conservative, white, baby boomers who grew up in the Reagan years, and who held certain values where those values were dominant, into a world where other values are going to be dominant. And that’s simply because people get old and die and new people are born, and sometimes they believe different things. And that’s fine. I mean, that’s just the way that the world works. I think for Alito, seeing the values that were once dominant, seeing his ability to identify as part of a majority, there’s a sense of loss there. I mean, I’ll be old someday, too. And I’m sure that when I’m old, the kids will believe things that I don’t believe, and I’ll feel a tremendous sense of loss about that.

Ian Millhiser:

I don’t want to diminish what Alito is going through, because it strikes me as very human. And I think we’re all going to feel it at some point. But that doesn’t mean it’s a crisis, and that doesn’t mean that the Supreme Court needs to step in and implement a rule that is more protective against disclosure laws than the rule that applied to the NAACP in 1958. I mean, I think we need to recognize the difference between the sadness that we all feel as we grow older and realize that the world is moving on from us, and believing that there’s some kind of unprecedented political crisis.

Preet Bharara:

I mean, what’s fascinating about this discussion, and what I want you to address more explicitly, in connection with all the cases that you observe and write about and think about, is particularly these oral arguments that give you some insight into how the justices are thinking before you get there well-vetted, and proof-read opinions is the extent to which there’s more than just statutory interpretation and adherence to precedent going on in these controversies, right? Because, as you said, and it’s a tautology I use all the time, people are people, right? People are human beings. So you get these questions about the punishment of the cheerleader, because they’re parents, or you get these issues arising about what is slipping away, and how do I think about how the world is changing, the nation is changing? How much of these cases, when they’re important enough to be at the Supreme Court, are about things other than the language of the law?

Ian Millhiser:

Yeah, I mean, I think the core skill that at least elite lawyers learn, like Supreme Court litigators, justices, people who play at the highest levels of the law, is basically how to take the world that they want, and translate it into something that sounds like law talk.

Preet Bharara:

Well, that sounds very cynical.

Ian Millhiser:

I mean, it is. But I’ve been I’ve just read so many Supreme Court briefs that… I mean, there’s one lawyer in particular who, I mean, I’ll say his name, Paul Clemente is probably the-

Preet Bharara:

Yeah, I know Paul.

Ian Millhiser:

He was probably the preeminent, conservative Supreme Court litigator, and I think he’s among the two best Supreme Court litigators in the country right now.

Preet Bharara:

Who’s the other one?

Ian Millhiser:

[Don Virili 00:55:30], former solicitor [crosstalk 00:55:32]

Preet Bharara:

I know Don, also. We served in the department together.

Ian Millhiser:

When I read Paul’s briefs, they are very aspirational briefs, he has another case coming up next term, where he wants to massively expand the Second Amendment. When I read his briefs, what they don’t do, is they don’t tell me, “Okay, here’s what the law is. And here’s what I wish it would be. And here’s the path that I’m going to come up with to to get from what it is to what I want it to be.” What makes Paul such a successful lawyer is that he is able to take the world that he wants or that his client wants and spin a very convincing narrative for why those values are already contained in the law.

Preet Bharara:

Would he agree with that characterization, off the record?

Ian Millhiser:

I don’t know. I [crosstalk 00:56:29]

Preet Bharara:

It’s not an insult. It’s a compliment, right?

Ian Millhiser:

Yeah. I mean, I think that that’s the core skill. And I mean, he is particularly good at it. I think that what separates the Supreme Court litigators and the really excellent Supreme Court litigators from the people who mostly do lower court work, lower courts really are bound by the Supreme Court, and so at a certain point, if you just say like, “This is what the Supreme Court said in this opinion, here’s the citation, here’s the quote.”

Preet Bharara:

Doesn’t always work. I know from firsthand experience in the Second Circuit.

Ian Millhiser:

No, it doesn’t always work, but it works-

Preet Bharara:

It usually works.

Ian Millhiser:

Yeah, it works surprisingly often.

Preet Bharara:

And in that case, called Newman, which we don’t have to belabor here, the Supreme Court smacked down the Second Circuit unanimously in the end. So justice is ultimately done in that regard.

Ian Millhiser:

Yeah. But if you’re a Supreme Court litigator, you’re arguing in front of a panel of judges who only really have to follow the law when they want to. I mean, they’re-

Preet Bharara:

They can do what they want.

Ian Millhiser:

Exactly. And so a lot of Supreme Court litigation, and a lot of like Supreme Court judging, like the process of writing a judicial opinion, is myth building. I mean, there’s one story I can tell about the founding, which is that-

Preet Bharara:

It’s not about Snapchat.

Ian Millhiser:

It’s not about Snapchat, it’s about… This is a true story about the founding, which is that George Washington was furious in the middle of the Revolutionary War, that he couldn’t… Under the Articles of Confederation, the central government wasn’t powerful enough, the taxing power wasn’t strong enough, he wasn’t sure if he was going to fund his army. He was just furious that the centralized government, though set up by the Articles of Confederation wasn’t capable of governing the 13 states. And he wrote to Alexander Hamilton about this, he wrote to all kinds of people about this. And many of those people who were influenced by George Washington’s thinking, eventually got together in Philadelphia for the constitutional convention to make the national government more powerful because they agreed with Washington’s critique. That’s one story I can tell.

Ian Millhiser:

The other story I can tell is that if you read the constitution, it includes a lot of limits on the federal government, and many of them very explicit. And it was clear that the founders didn’t want the federal government to be able to do anything at all. So what happens in so many cases, I follow, I mean, I’ll give Paul a shout out here, this is what he did so effectively in the first challenge to Obamacare, is he just told the second of the two myths that I told. The myth that he told was, “Look, the founders were just really worried about a too powerful federal government. They didn’t want the federal government to have limitless power. And so you’ve got to enforce this world that the founders wanted.” And some of the briefs, including briefs I wrote in that case, try to tell the other story, which is George Washington was afraid of there not being enough power, and there was a conservative majority on the court. So a lot of them liked Paul’s story more than they liked mine.

Ian Millhiser:

But what we were doing in that case wasn’t citing to these immovable legal principles, and like, “This is what the law objectively says, and any reasonable judge will follow.” I mean, what every side was doing in that case is they were storytelling, and it was up to the [inaudible 01:00:01] to then tell the story based on these stories that were posed to them that they thought was persuasive, that they thought they could sell, but also potentially that would get them to the result that they want. And I think that that’s how, at the highest levels of litigation, how things normally work.

Preet Bharara:

We’ve talked about a couple of cases, and don’t really have time to talk about more. But what’s your expectation, given the new composition of the court with the addition of Amy Coney Barrett, of how many six threes we’re going to see?

Ian Millhiser:

I mean, I think we’re going to see a fair amount, I think we’re also going to see a lot of five to fours, because Roberts has shown that he’s not willing to go as far as the other five, in some cases.

Preet Bharara:

So you think in some of those cases, Roberts will remain in the minority to provide the fourth vote that doesn’t help?

Ian Millhiser:

I mean, we’ve already seen that in one very important line of cases. So before justice Barrett was confirmed, there were a bunch of cases brought by houses of worship, mostly churches, but not exclusively churches that wanted exemptions from COVID-19 public health orders. So a state would have an order saying, for example, that no more than 25 people can gather together in an auditorium-like setting at the same time. And that applied to churches, it applied to movie theaters, it applied to lecture halls, applied to everyone at any kind of auditorium-like sitting. And there were a bunch of religious institutions that didn’t want to comply with that rule and they filed a bunch of lawsuits. And before Justice Ginsburg died, all of those decisions were five to four, with Roberts joining the liberals saying, “Look, we don’t know anything about public health here in the Supreme Court. And so we should defer to public health officials, because I don’t want to be responsible for people dying.”

Ian Millhiser:

And after Justice Ginsburg died, and Justice Barrett was confirmed, a bunch of decisions came down and all of them were five to four in the other direction, saying, “Nope, the church gets the exemption, the church can let the people in.” So on the one hand, we are already seeing on this really important issue, an issue where Roberts is breaking from his fellow conservatives. On the other hand, I mean, I found these cases surprising, because I think religion is the area where after Barrett got there, the Supreme Court has moved the fastest to move the law to the right. And they’ve done it in, I think, the least compelling context imaginable in the public health context, where, literally… I mean, many of these are justice who personally claim to be pro life, and if ever the preservation of human life was on the table, it’s on the table when you’re talking about COVID-19.

Ian Millhiser:

So yeah, I mean, I think that Roberts has already shown that he’s not willing to go as far as the other five. And I think that the other five, at least in the context of these religion cases, have shown that they’re willing to go very far indeed.

Preet Bharara:

Ian Millhiser, thanks for your time, thanks for coming on the show. The book, if you want to understand what’s happening with the Supreme Court, you should read it. The Agenda: How a Republican Supreme Court is Reshaping America. Thanks again.

Ian Millhiser:

Thanks so much, Preet.

Preet Bharara:

My conversation with Ian Millhiser continues for members of the CAFE Insider community. To try out the membership free for two weeks, head to cafe.com/insider. Again, that’s cafe.com/insider. After talking so much about the Supreme Court with Ian Millhiser this week, I want to end the show with a story inspired by the late great Ruth Bader Ginsburg. It’s been about eight months since she passed, and she left behind, as you know, such a profound legacy on the court and on the country.

Preet Bharara:

One of her most important legacies was being a trailblazer, a pioneer breaking boundaries and glass ceilings for women in the law. But that work is far from finished, and that’s why I want to tell you about a project that a group of women friends and former colleagues from the US Attorney’s Office in SDNY just launched in honor of the late notorious R.B.G. It’s called the When There Are Nine Scholarship Project, organized in collaboration with the Federal Bar Council. How did it get its name? Well, it comes from a famous exchange, in which Ruth Bader Ginsburg was asked the question when there will be enough women on the Supreme Court, and she answered, “When there are nine.”

Preet Bharara:

The project’s mission is to honor the justice’s legacy by advancing equity and diversity in the legal profession in a lot of different ways, through supporting deserving resilient women in or entering law school, or who have financial difficulties, and who embody the spirit of the justice’s achievements in the face of adversity. The idea for the project was actually born the weekend that Justice Ginsburg passed away over a series of emails among SDNY women alumni, expressing deep sadness, even anger at what was happening, but also profound gratitude for the justice’s advocacy and impact. Rebecca Ricigliano, who was once upon a time my narcotics chief, proposed the scholarship project as a way to recognize the justice’s enormous contributions to the advancement of women in the law, and to continue her work to break down so many barriers to entry and success in the field that unfortunately, still exist for so many, especially women.

Preet Bharara:

My colleagues, by the way, recognized that expanding opportunities for women in the law requires more than just money, more than just scholarship funds. And so they designed the project, I think one of the greatest parts of it, they designed it to provide not only financial support, but also a team of mentors for each recipient, to give career guidance and create networking opportunities. So in this way, my colleagues hope to open doors for the next generation of women lawyers, with the help of their close knit, supportive ADNY alumni community, and to give thanks for the doors that Justice Ginsburg opened for all of them.

Preet Bharara:

I want to name the folks on the steering committee, who should be so proud of what they’ve done because it’s really great. They’re Carrie Cohen, Carolina Fornos, Margaret Garnett, Dani James, Amanda Kramer, Sharon Cohen Levin, Jessica Ortiz, Cristy Phillips, Rebecca Monck Ricigliano, Jocelyn Strauber, and Wendy Waszmer. And I mentioned this at the end of the show for a few reasons. One, to give a well deserved shout out to my friends who’ve done something I think very important. Two, to shine a light on the continuing barriers that so many women face in trying to achieve success in the law. And three, to inspire other people to either contribute to this organization, or find their own ways to mentor and help women in the law. So if you’re interested in learning more about the project, or you want to contribute in some way, go to tinyurl.com/whenthereare9. The link is also in today’s show notes.

Preet Bharara:

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Ian Millhiser. 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 hashtag, #askpreet, or you can call and leave me a message at 669-247-7338. That’s 669-24-Preet. Or you can send an email to [email protected]

Preet Bharara:

Stay Tuned is presented by CAFE Studios and the Vox Media Podcast Network. Your host is Preet Bharara. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Jennifer Corn, Chris Boylan and Sean Walsh. Our music is by Andrew dost. I’m Preet Bharara, stay tuned.