How to Save the Supreme Court  

Nine judges interpret the law for us all. What happens if they become too political? 

Earlier this week, President Biden revealed a list of eleven judges he intends to nominate to the federal bench. For these judges, this nomination is one step closer to a life-long position on the Supreme Court.

The list of judges shows the Biden Administration’s commitment to diversifying the courts, which for many seemed long overdue. With a 6-3 conservative court, issues like abortion access, gun control, and immigration face an unpredictable future. Dahlia Lithwick, a journalist for Slate who covers the courts, joins Preet to discuss how to save the highest court from politicization.

The following transcript was recorded on March 30, 2021 and has been edited for clarity. 

Q&A

Preet Bharara:

Now, let’s get to your questions. This question comes in a tweet from Lisa BA, who asks, do you think government officials listened to podcasts such as yours, the Meidas Brothers, or Gaslit Nation, to name but a few, would be sort of tuning out the Greek chorus if they don’t, thoughts?

Well, I can’t speak for other podcasts because it’s not my business, and I don’t know, but I do know that there are a lot of government officials who listen, to Stay Tuned with Preet.

I know that because some of those people come on the show and they come on the show because they like the podcast and they think it’s a good forum for them to talk about ideas at some length, and I also hear from folks. There are a lot of people from my old office, Southern District of New York who are loyal listeners, at least they tell me that to my face when I see them at public functions, when there used to be public functions. There are a number of folks at DOJ trying listen. Every once in a while, there is a government official who has heard the show and doesn’t like what I’ve said.

There’s one instance in particular, I won’t share the details, but I was very critical of what someone, on behalf of the government, was arguing in federal court, and I got a very angry message from that person. Most of the time people enjoy listening to the show if they’re in government. Every once in a while, they don’t because we try to speak the truth here. By the way, I also know that a lot of government officials listened to the CAFE Insider with me and Anne Milgram, and you didn’t ask this in your question, but a lot of journalists listen. I think from time to time, it helps them with their reporting, to hear what Anne and I have to say about legal events

This question comes in a tweet from Kathy, who asks, do you have concerns about the Derek Chauvin trial being televised? What are the pros versus cons?

That’s a great age-old question. By way of background, when I worked in the Senate, every session of Congress, and I don’t know if this is still the case, I bet it is, my then boss, Senator Schumer, would offer a bill, which was usually co-sponsored by both Chuck Grassley and the late Arlen Specter and a number of other senators to permit cameras in federal courts.

It was interesting because this was always a wild debate. On the one hand, there are people like Senator Schumer and Arlen Specter, and others, who thought very strongly that in the same way that C-SPAN televises congressional proceedings and other public functions are available for public view, federal courts and federal trials should be available to everyone. Technically, federal trials are open to the public, but the problem is, if there’s a trial going on in the Southern District of New York and you live in California, you can’t avail yourself of the openness of that trial. For those senators, both Democrats and Republicans, the idea that people didn’t have access to the courts was a problem.

There were various bills, some of which said the cameras should be allowed in all courts, including the trial courts, the appellate courts, and the Supreme Court. Then there were some bills that authorized cameras just in the Supreme Court, which was a little bit less controversial because you don’t have witnesses and lay people testifying. Then on the other side of the coin, you had people like, I believe at the time, Senator Feinstein, or she may have changed her view, who felt that cameras in the courtroom were intrusive and it would alter the behavior and conduct and demeanor, not just of the lawyers, but also the witnesses, and it would cause, perhaps in certain circumstances, a circus like atmosphere.

People would play to the cameras and play to the public instead of doing their jobs in a courtroom. I am generally of the view that unquestionably, in the Supreme Court, I think cameras should be allowed, and in the appellate courts, because you’re dealing with professionals, no lay witnesses at all, and I don’t think you have to worry too much that people are going to alter their behavior, because when they’re arguing cases with the stakes as high as they are in those courts, they’re really focused on the arguments. Is there going to be an occasional person who will play to the camera? Sure. But I think that’s not a big price to pay for openness, transparency, the civic education that would be had if people could watch court proceedings on a regular basis.

I think it’s a little bit more of an open question in the trial court, but I think on balance, generally speaking, and with respect to the Derek Chauvin trial, cameras are good. My experience has been talking to people about this and I’ve never participated in or supervised a trial in which there were cameras so I don’t have personal experience with it. But generally speaking, once the proceedings begin, people forget about the cameras and they do their job, and they examine witnesses, and the witnesses themselves answer the questions or try to evade answering the questions.

On the case of the Derek Chauvin trial, it’s just so important that the American public see how justice has done, know the justice is being done. I mean, the common phrase that I like to quote is, justice must not only be done, it must be seen to be done. Now, that doesn’t quite mean cameras in the courtroom, but I think that’s an aspect of it. I think we’re getting a very important education about how justice works in a case like that, and that’s important.

This question comes in a tweet from Twitter user [Gizbo 00:05:56]. Hey, Gizbo, what’s your favorite movie with a legal or courtroom setting? For me, it’s a close call between 12 Angry Men, To Kill a Mockingbird, and The Verdict.

Well, Gizbo, those are certainly very good choices, great movies. For a long time, I would say that my favorite legal drama, we’ll put aside movie for a second, my favorite legal drama and one that accelerated my thinking about becoming a lawyer was Inherit the Wind, the play Inherit the Wind. It was based on the Scopes Trial in the South about a teacher trying to educate students about evolution, which was very controversial at the time, and there was a Clarence Darrow character and a William Jennings Bryan character, and I was just blown away by the play.

Then there was a movie that I saw eventually on VCR, for those of you who remember what VCR is, starring Spencer Tracy, and I loved that for a very, very long time, and I would have said that was my favorite legal courtroom setting movie of all time, but the production quality is not the best, don’t right, and it’s a little bit old. I think over time, my new favorite courtroom setting movie is A Few Good Men with Tom Cruise and Jack Nicholson. Then the last year or two, I got a chance to watch it with one of my sons, and to see the look of enjoyment and fascination on his face watching it, and seeing perhaps the light bulb of a future legal career going off over his head, I’ve put my money on A Few Good Men.

THE INTERVIEW

Preet Bharara:

My guest this week is Dahlia Lithwick. She’s a journalist at Slate where she’s been writing for over two decades and has become one of the leading experts on the Supreme Court. Lithwick joins me today to talk about America’s obsession with rights and President Biden’s attempt to diversify the federal bench. Dahlia Lithwick, welcome to the show.

Dahlia Lithwick:

Great. I’m so excited to be here. Well played.

Preet Bharara:

It feels kind of weird. I’ve been doing this like 26 years. You’ve been doing your thing for 46 years. How is it that you haven’t been here yet? That’s my fault.

Dahlia Lithwick:

No, no, I just think we, we do slightly adjacent complimentary things. It’s good.

Preet Bharara:

Well, I’ve been waiting for this for a long time. I want to go through this very quick exercise. The name of your podcast is?

Dahlia Lithwick:

Amicus.

Preet Bharara:

why is it not Amicus?

Dahlia Lithwick:

Okay, so this is …

Preet Bharara:

You’ve already …

Dahlia Lithwick:

This is why you’re not on my podcast, Preet.

Preet Bharara:

… showed a note of exasperation with me.

Dahlia Lithwick:

This is why we won’t have you on.

Preet Bharara:

And this is 10 seconds in.

Dahlia Lithwick:

It’s a new record.

Preet Bharara:

No, this is not for me. This is for the general, because I hear people say amicus all the time.

Dahlia Lithwick:

Well, so I’m going to just tell you what I tell people, which is, not only-

Preet Bharara:

Since I am a people.

Dahlia Lithwick:

Which is not only that it should have been called Amicus, and I certainly knew that from clerking and should have done that, but then justice Breyer actually calls this Amicus.

Preet Bharara:

Amicus?

Dahlia Lithwick:

I’m assuming his Latin scholarship is better than yours in mind, so maybe we’re all wrong.

Preet Bharara:

Wait, so this is an incoherent answer.

Dahlia Lithwick:

Welcome to the other reason I’ve never been on your show.

Preet Bharara:

So, your podcast is called Amicus.

Dahlia Lithwick:

Amicus, it is.

Preet Bharara:

But the actual, what we refer to when we don’t want to use the Latin, the friend of the court brief that people often file in courts around the country, federal and state, you’re not expressing a view as to what those things are called.

Dahlia Lithwick:

No, I am expressing a resounding view that we are wrong, and it is Amicus. No, no I’m doing Justice Breyer, oh, sweet Jesus, it’s Amicus.

Preet Bharara:

Amicus.

Dahlia Lithwick:

And also that in trying to resolve that, we found out that Justice Breyer says Amicus, and then it was potato, potato, and nothing mattered anymore.

Preet Bharara:

Here’s the question that I want to ask you. You and I do parallel things, I think you used the word adjacent, but part of what we do is in the same vein, right? That is to explain the law to people, show people what the law is supposed to be when there are transgressions of it, when they’re deviations from what the norm should be in the law and unpack it a little bit, both for lawyers and for lay people, particularly over the last number of years. You are especially adept at explaining things that come out of the Supreme Court.

Preet Bharara:

I do less of that and more criminal law stuff, but there’s an age old question that dates back a hundred something years, maybe longer. Let me ask you this broad question and I wonder how you will answer it. Dahlia Lithwick, is the law an ass? That comes obviously from Charles Dickens.

Dahlia Lithwick:

It does.

Preet Bharara:

Confirmed today by my crack team, from Oliver twist, where he called the law an ass, is it?

Dahlia Lithwick:

No.

Preet Bharara:

It’s not?

Dahlia Lithwick:

I think the law is not an ass, but I do think, and this is going to offend the part of you that really thinks about, the part that I haven’t already offended, by …

Preet Bharara:

I’m not offended.

Dahlia Lithwick:

… suggesting that your Latin is less than impressive, but I think that a little bit of the problem that we have had in media in talking about the law, and I think this goes back centuries and probably sweeps in Dickens, is that we think that all law, or all law that is fit for popular discussion is big crime. I remember, in the beginning of the internet that you and I both remember, if you clicked on the law tab on any big mainstream site, you would get a list of big criminal trials.

Dahlia Lithwick:

I think, in a weird way, that’s a lot of bread and circus and a lot of ways that the public that was watching Court TV, or thought O. J. Simpson was the totality of how we organize ourselves under a legal regime. I just think it kind of distorted the picture, if that’s fair. I think a lot of what the back-filling that has happened that’s been really great, I think in the media, has been to slightly redirect the conversation from what is the big kidnapping/rape/murder trial that we’re all watching, yes, but also, what is this entire huge regulatory administrative massive constitutional machine that affects every part of our life that people don’t pay attention to? Does that make sense, what I just said?

Preet Bharara:

It does. I think there’s a distorting effect, when you sweep into the term law, everything that has to do with the law. I’m reminded in a completely different context of the fact that my parents expected me, and I’ve heard this from other people as well, after I took the bar exam and became a litigator, not necessarily specialized, but of course later became a prosecutor and specialized in criminal law, that they nevertheless expected, because I’d done a law degree, that I should also be able to help with their real estate contracts.

Dahlia Lithwick:

Right, parking tickets.

Preet Bharara:

Parking tickets, property transactions.

Dahlia Lithwick:

All the divorces, every divorce.

Preet Bharara:

Rental. Oh yeah, friends of theirs who had marital issues, can you just do that? I’m like, I don’t know what that means. IP, trademark. People wouldn’t think that in the same way about having their cardiologist look at their feet, right? If you busted your ankle, people understand specialization a little more in other professions than they necessarily do with respect to the law. But going back to my question about the law being … Why did that phrase become popular and why do people repeat it? Is it just because of this thing you mentioned that there’s a distortion when people talk about criminal law, or is the law otherwise …

Preet Bharara:

I guess, in part, are you in defensive law, or whatever that word means, and whatever is swept into that term, that when it comes to property rights and it comes to contractual rights, and it comes to standing, and all sorts of other things that are difficult for lay people to understand, that the law makes sense generally?

Dahlia Lithwick:

I don’t know if I would say it makes sense. I would say it’s better than the next best alternative, which is chaos.

Preet Bharara:

Anarchy?

Dahlia Lithwick:

Right? That was Justice Scalia’s answer. He used to tell the famous bear story about all I have to do is outrun … I don’t have to outrun the bear, I just have to outrun you. I think that was always Justice Scalia’s answer was like, it doesn’t have to be the best law in the world, it just has to be better than the crazy thing that is the alternative. I think that, even though people are grumpy and dissatisfied and frustrated and confused, and by the way, that all of it is aided and abetted by the legal industrial complex that wants it to be obfuscated and technical and confusing because that makes lawyers indispensable, but I think, despite all that, if we can agree that, if the next best alternative is just setting each other on fire, then I think the law is pretty good. Do you disagree?

Preet Bharara:

I don’t disagree. If you’ve been practicing law for a while and maybe, I don’t know if this is too inside baseball for non-lawyers, but when I was a young lawyer and I used do some research on the law, being unfamiliar with the area, unfamiliar with the issue, I remember being given the assignment by a senior associate or by a partner, who at the time they felt very old to me and very experienced, but I was always puzzled by the following, that they would say to me things like, “I don’t know what the law is, I haven’t looked at the law, but it should be something like this.”

Preet Bharara:

I’m like, what are you talking about, you daughtering old, man? I hoped to myself that I wouldn’t become that person who would, blissfully ignorant of actually having read of the law and not having to read the cases at all, that I would just sort of opine on what the law must be. Then I became that guy. I guess that’s one way of suggesting that the law isn’t an ass, that if you can, after having some experience with how legal principles work and what the sort of general system of jurisprudence we have in this country works, and how trials work, that unless something is highly, highly technical and out of your generalized expertise, that you can kind of have a general prediction, I’m saying general a lot, general prediction of what the law should be.

Preet Bharara:

Because the law is supposed to be something that enforces just results and gives people equal opportunity at just results. Is that all fair?

Dahlia Lithwick:

I think it’s all fair, and I also think it’s slightly confounded, Preet, by the ways that legal education, and this is a whole separate conversation, but this sort of what’s called the Langdellian system, the ways that we have been teaching law in American law schools for really long time, doesn’t necessarily teach law. That’s why people say, I don’t know anything about X. I just took one contracts class and I did it at knife point. I took one class on civil procedure. I think, in a weird way, law school makes the thing that you’re describing both possible and impossible, because you don’t actually learn substantive law in law school.

Dahlia Lithwick:

I guess you learn that in practice and maybe when you study for the bar, but it is a very weird thing for doctors to imagine learning to “think like a doctor” at med school, right? The way we say that law school taught us to think like a lawyer.

Preet Bharara:

But there is a similarity in what is not taught, I think, with respect to law schools and medical schools. They don’t teach you, or maybe they don’t know how, they don’t teach you a lot about people and about tending to, in the doctor example, tending to, at least I’m not aware of this, tending to patients. Maybe there’s more of this in recent years so I may be completely speaking out of school, but my father is a doctor, and my understanding was years ago. You learn about the body and then you specialize and you understand about tissue and veins and the heart or the brain, or whatever the case may, and drugs and whatever else, but not a lot of time spent teaching people how to deal with patients as human beings.

Preet Bharara:

Lots of people have written about this, and similarly, especially in the area of criminal prosecution, my book is in part based on this premise and the class I teach at NYU Law School, we talk about this all the time. Nowhere in law school do you learn how, unless you do a clinic, but nowhere in proper law school classes that you take do you learn anything about how to coax a reluctant witness to take the stand, or commit someone who’s scared not to be scared, or make a proper pitch to a client, or explain to a client the likelihood that they may lose and what the balance is between freaking them out and holding their hand.

Preet Bharara:

I mean, all those sorts of things, if you don’t do them well, you’ll be an utter disaster in the practice of law. I imagine a disaster in the practice of medicine too. So, is that a larger failing in all of our trade schools?

Dahlia Lithwick:

I think it is one of the big critiques of the way the professionalization of these careers happened. Don’t forget, both doctors and lawyers used to be trained, not through formal law school or med school, but through apprenticeships.

Preet Bharara:

Apprenticeships.

Dahlia Lithwick:

Where you were actually apprentice to someone, you did the thing all day for years and years until someone determined you are good at it. I think immediately when there was this hegemonic control of legal education and then these very wacky century old ideas about how we’re going to train people to think, and we’re going to do it by Socratic method, and hopefully we can shame them into a puddle of tears in the first week of their one L year, and then it’s just going to be like the paper chase until we all, I don’t know, wattle, but I think that there was just a lot of wrong-headed ideas about legal teaching that assumed a whole bunch of things that are no longer in evidence.

Dahlia Lithwick:

One of them is the thing you first said, which is that lawyers can be narrower and narrower rather than broader and broader in their specialties. When I clerked for Procter Hug on the Ninth Circuit, he was one of those old school country lawyers who really did do a divorce this week, a custody battle last week, and next week a criminal defense, and the week after that, some huge property dispute. That isn’t that far gone in the past. It’s not unimaginable, but I think also we just constructed a world in which people, by virtue of the way we think about legal pedagogy, graduate from law school not knowing things, and then they have to go to big law firms to be taught how to do things.

Dahlia Lithwick:

That’s in everyone’s interest, except, as you say, the client who’s paying a lot of money. I think that if we were to re-envision this, and there’s been lots of experiments in how to re-envision this, and I think you’re right that the clinical programs are trying to cut at that too, but I think treating this as a profession that has to be highly credentialed and highly rigorous in teaching you to think a certain way, but you come out and you don’t actually know how to solve problems or talk to a client, or do anything, but bill in 20 minute increments, those things are very, very good.

Preet Bharara:

I think it’s six minutes.

Dahlia Lithwick:

Sorry, see, this is-

Preet Bharara:

I think it’s now … I’m waiting until it goes down to a sub-minute.

Dahlia Lithwick:

To four second increments.

Preet Bharara:

Well, it’s like for a long time, no human could beat the four minute mile, and I guess maybe no lawyer has beaten the six minute increment. I had the editor in chief of The Economist on the show once, and asked her a question about economic literacy and how much he thought that was a problem, where average Americans or average Europeans, or citizens anywhere in the world, when they’re asked to vote in elections, the economy is very important, and to what extent they were not able to vote their best interests because there was low economic literacy. Do people understand what happens when you raise interest rates? Do people who understand what debt really means? All that stuff that I think a lot of people don’t.

Preet Bharara:

The parallel question I have for you, and I wonder how much it matters, is what do you think is the level of sort of legal literacy in this country? One reason I ask is I think you’ve been doing this for a long time, but there’s been a proliferation of other people, myself included, over the last few years, whose job in part is to break down the law. Lawyers take for granted that people understand certain things. I’ll never forget, I’ve gotten questions in the past from listeners who are educated and thoughtful and have careers.

Preet Bharara:

One question was, and I never forget it, it was, look, I’m a smart guy. I’ve lived in America my whole life. I’m a professional. I think that this person was a medical doctor. He said, you throw around the words, grand jury and grand jury secrecy and all that, I don’t know what a grand jury is. What is a grand jury? Could you just explain that? I guess my question is, what do you think is the level of legal literacy, and is it important for people to understand certain basic concepts, no matter what profession they’re in, to be good citizens and to make good decisions about their communities?

Dahlia Lithwick:

That’s such a great question. I think what I’m really struck by is when I read my early journalism and how painstakingly I would explain that stuff, right? A grand jury is, this is the presumption of … I really was at huge pains to explain everything because I think I more intuitively then understood what your doctor listener was saying, which is we went to law school, this is the water we swim in. We understand how a grand jury operates, and people don’t. I used to explain everything and then I just stopped because I felt like I was doing that over and over and over again. This is the number of federal district courts, this is the number of federal circuit courts, the federal … I was noticing, even just writing on the Biden tranche of judges, the Chicago-based Seventh Circuit.

Dahlia Lithwick:

I was like, why do we always say Chicago-based as though that tells us freaking anything, right? The Richmond-based Fourth Circuit, like these conventions that don’t tell you anything, but are a shorthand for explaining the sort of regional distribution of federal circuit courts. I think, and it’s not … I guess I’m blocking a little at the literacy framing, Preet, only because I don’t want to suggest that people are illiterate, because as you say, I think very well educated people just don’t know very, very basic things about how the law and the courts and legal process works. We should explain it and we don’t.

Preet Bharara:

Let me ask you a different … That’s one category of thing. The mechanics, what’s the difference between the US attorney and a district attorney and an attorney general of a state? I mean, I’ve been called every title incorrectly, and I don’t begrudge people that, because it’s hard to understand, even real estate lawyers. People who’ve gone to law school, they’re like, what were you again? That’s one category, and how grand juries work, how subpoena works, what those things mean. Do you have to get a search warrant for cell phone data? I get that.

Preet Bharara:

But then there are other things about which maybe literacy is not the right word. Take the first amendment, for example. We have all these debates online, and maybe they’re a lot online and that’s why they’re so stupid. Do you think people have a basic understanding of what the first amendment permits and prohibits, and that people are just engaged in bad faith argumentation about people getting kicked off of Twitter or things like that? Or do people really not understand the first amendment, and what it means with respect to state action?

Dahlia Lithwick:

Oh, I absolutely think people don’t understand the first amendment, and every day-

Preet Bharara:

That’s more a problem than not understanding what a grand jury is, right?

Dahlia Lithwick:

Right. No, and I think that the first amendment is the paradigmatic case of, not only do people not understand it, but then they just keep saying dumb stuff like, Josh Hawley thinking he has a first amendment right to have his book published, or that you have a first amendment right to be whatever, an actor in Hollywood. I think that, not only is it a distortion of what the first amendment is, but then it’s a distortion of, you start making claims about your rights that are completely bonkers and everyone believes them. I think that’s probably the best example of what people don’t understand, but even the conversation-

Preet Bharara:

But Josh Hawley understands.

Dahlia Lithwick:

Oh, yeah.

Preet Bharara:

There’s a distinction between people who don’t understand, which is what I was trying to get at. They really understand, but they also understand that there’s something talismanic and special about the invocation of first amendment. It’s my first amendment right. Do you distinguish between those two groups?

Dahlia Lithwick:

I think that Americans are very rightsey, Preet. I think that …

Preet Bharara:

Is that Latin?

Dahlia Lithwick:

I think it’s in Jamal Greene’s new book, which is very interesting.

Preet Bharara:

Is that rightsey just with a Y at the end of right, or is there a dash, EY?

Dahlia Lithwick:

I believe that there is an EY in there, but I remember …

Preet Bharara:

Oh, EY.

Dahlia Lithwick:

… in reading the book, I did not realize how language-based this interview is going to be, it’s quite stressful. But Americans are very rightsey, and I think that there is this reflexive need to construct everything in terms of … Think about the last year and fighting about, I have a right not to wear a mask, like really? What penumbra is that in? I think it’s just, that is both the good and bad thing about the way Americans see the world, is just this cascading set of rights that allow you to do whatever you want to do.

Dahlia Lithwick:

I guess your question is deeper than that, which is, what do you do with the bad faith spinoffs of that and how much there is? But I think, legal literacy isn’t just, for me, a question of not knowing what’s in the bill of rights, or what is and is not admissible in a trial, but also just I think there’s a lack of historic legal literacy, if that makes sense. A failure to understand what Jim Crow really was, what reconstruction really was, a failure to really see the way the Senate is currently constituted as fundamentally anti-democratic.

Dahlia Lithwick:

I guess I just think it’s all of that gets bound up in this rightsey conversation about the right to vote and the right to speak, and I think that if you can layer that over what that has meant historically, that’s also just a really perilous place we’re in. I know that was not responsive, but I guess I just want to broaden [crosstalk 00:28:58].

Preet Bharara:

Objection, non-responsive. [crosstalk 00:29:00].

Dahlia Lithwick:

I just think it’s a broad problem that’s-

Preet Bharara:

It reminds me of something, and maybe this is not apropos, but it popped in my head, this concept of rights and how Americans are very rightsey, and I think that’s true. I also think it’s an odd concept for people. I’ll never forget, I was undergraduate in college and I was a government major, and I studied political theory and political philosophy. To me, all these concepts seemed readily understandable, because I studied them in the lofty academic sense. I had this brilliant roommate who was a biochem major and was on his way to becoming a doctor.

Preet Bharara:

Back then, there was a core curriculum, and just like I was required to take science classes outside of my major, he was required to take humanities courses and he’s a super smart guy, and we sit down at dinner, and he said, “I was in this class today,” I guess introductory political philosophy class, and he said, “Rights, these things we call rights, that’s not a real thing. There’s no such thing as right.” It really struck me. I never forgot it, because this person who is incredibly smart and who could do things that I could never dream of doing in math and science and was studying biochemistry at a high level, he was having a hard time understanding just the notion of this phantom thing that we call rights. Do you have any reaction to that?

Dahlia Lithwick:

I feel like you just put a big fat bow on top of your law’s an ass offering, because I think I used to give a little talk called welcome to my breakdown, and it started after Merrick Garland was snubbed for having even courtesy meetings, much less a hearing and a vote for the SCOTUS seat that was held open for almost a year, and I kept having people audiences. I’m sure audiences asked you the same question, but there has to be a law. There needs to be a legal mechanism to force Merrick Garland to give him a hearing and a vote.

Dahlia Lithwick:

I know you and I have talked about this in the years since then, but the extent to which Americans believe that the law is some kind of self effectuating machinery that you push a button and law comes out, and then you insert it into the slot and legalness happens, and all the ways in which not jokingly the last four years were a real lesson in, if Don McGahn just doesn’t feel like showing up to testify, he just doesn’t. If time after time, after time, some acting person should not actually be serving and he’s still serving, and you’re like, but, but, but this was the Walt Shaub shaking fist at sky.

Dahlia Lithwick:

We have ethics rules. We have all these norms, and I think, in a strange way, it’s not that law is an ass, but I think law is so much more flimsy and fallible and-

Preet Bharara:

The law’s a spleen

Dahlia Lithwick:

Yeah, or the law is just like a flimsy lace curtain. It’s just not the thing that people expected, and so in a weird way, my reckoning of the last couple of years, or welcome to my breakdown is, I thought the opposite, I guess, or maybe the same as your roommate, which is that it was a much more robust system that didn’t require smashing your head against a wall over and over again, and saying, “But that’s illegal,” and changing. I think, in a weird way, that’s what the law is. The law is like a tutu that-

Preet Bharara:

The law is a what?

Dahlia Lithwick:

It’s like a ballerina’s tutu. It’s a bunch of ephemera that we thought was really much stronger than it was, so huh.

Preet Bharara:

All right, let’s talk about the ephemera that gets interpreted by that group of nine called the Supreme Court. I’m going to ask you a question that is probably annoying and you’ve been asked a lot, but I get asked it, and you’re smarter about this stuff than I am. Is the Supreme court overly politicized?

Dahlia Lithwick:

Yes.

Preet Bharara:

How so?

Dahlia Lithwick:

I think it’s two things. I think that for good and for bad, it has inserted itself into these central questions of how Americans live their lives in ways that is not, I think, what the framers contemplated.

Preet Bharara:

They should bud out more.

Dahlia Lithwick:

Well, no, I mean, look, budding in was really good, right? Budding in gives us Brown, budding and gives us Roe like budding in when it’s to help discreet and install minorities who don’t have a voice in the political system. I think we might think is a good thing, but I think that without a doubt, to have the court making five, four determinations about every single issue at the core of who Americans see themselves to be is perhaps problematic. I think that, and this I think is uncontroversial what I’m going to say, but the ways in which we have turned the court into a political football is not good for the court.

Preet Bharara:

Do you think part of it is a confirmation process?

Dahlia Lithwick:

For sure, part of it is the confirmation process. For sure, part of it is the transition from three hour on paper confirmations, to week long C-SPAN gavel to gavel, gotcha confirmation. I mean, some of that stuff is, for sure a problem. I’ve said for a long time, and I do think it’s true, that if you’re going to televise the job interview and then not televise the actual job performance for 20 years, you’re going to unerringly capture every justice at their worst. We’re doing this wrong. If we’re going to put something on cameras for people to watch at home, it shouldn’t be the job interview.

Preet Bharara:

It’s interesting this view that the Supreme Court has become more politicized, maybe this is a naive point, but once upon a time, it used to be that you need not have been an academic or a sitting appellate court judge to become a Supreme Court justice. There’ve been examples of people who have been political leaders. Sandra Day O’Connor had some background in politics in state government, in her home state. You have a narrower experiential sort of source from which justices get chosen, but that has nonetheless not halted the March towards politicization. Is there anything to be made of that?

Dahlia Lithwick:

I think the politicization has caused that in some sense, because, and this … Justice Scalia would say this, Justice Ginsburg would say this all the time, someone like me couldn’t get confirmed anymore. Right? I mean, there’s no way a Thurgood Marshall could get confirmed anymore. There’s no way … When I say, nobody like me, I don’t mean that Scalia or Ginsburg said someone like Dahlia. I think they just said nobody like themselves could get confirmed anymore.

Preet Bharara:

Well, I’d like to see you on the court.

Dahlia Lithwick:

But I love the fact that I’m too old, like you have to be 22, but I do think that there is a way in which, and this is a huge problem, I think, for both sides, that if you have ever written or said anything controversial, if you have done, you know, deeply probing academic work in something that is provocative or uncertain, all of those things are now disqualifying. I think, I wrote this piece a few years ago and it led Justice Alito to call me some hack, which …

Preet Bharara:

Oh, yeah, I was going to ask you about that.

Dahlia Lithwick:

… I tattooed on my butt. But I think that-

Preet Bharara:

He didn’t even tweet that, did he?

Dahlia Lithwick:

No, no.

Preet Bharara:

That’s kind of the thing you reserve for Twitter.

Dahlia Lithwick:

Yeah. No, he called me some hack. But I think that the fact of the matter is if you look at some of the really great, interesting justices of all time, like you said, they didn’t come off one of two paths, either through the justice department or academia, which is the only thing we have anymore. They came from all sorts of crazy places like Earl Warren. I think that the knock on that, whether it’s right or wrong, is this question about “real life experience,” right? That Sandra Day O’Connor, because she knew how the Arizona state legislature worked, could be pretty smart about campaign finance.

Dahlia Lithwick:

Whereas now, you have these people who’ve never run for office who are like, “I don’t believe it’s a problem unless Scrooge McDuck drops some money bag on the …” That’s like, that’s just not-

Preet Bharara:

I didn’t know you were going to do a voice.

Dahlia Lithwick:

I know, and that was a weird voice to do Scrooge McDuck. I’m not sure what happened there.

Preet Bharara:

No, I like that voice.

Dahlia Lithwick:

It was like Downton Abbey.

Preet Bharara:

Downton Abbey. Among the Supreme Court decisions that I don’t agree with are the ones that have been narrowing the scope of public corruption prosecutions, including the one where the former Virginia governor, where they don’t seem to understand in the real world how politics works, how bribery works, how influence works, how a quid pro quo works. I think that’s a problem.

Dahlia Lithwick:

It’s a huge problem, and it’s funny because you get these opinions that are so disaggregated from how actual politics is practiced, and as you say, how actual criminal law is practiced, and that I don’t think means that the justices are bad. It just means that if you don’t have really diverse, complicated, professional experience, there’s no way you can know those things. I will say, just because Biden put up this tranche of 11 nominees, his first for the federal courts, one of the things he did, actually, I was going to ask you about this if I can, I know it’s your show, is that they’ve sidelined the ABA, and so the American bar association doesn’t get to do this pre-vetting, and one of the reasons is we don’t want any more stinking corporate lawyers.

Preet Bharara:

Yeah. I was going to ask you that actually. We are recording, it’s even in my outline, we’re recording this on March 30th, Tuesday, and so just a few hours ago, right? The Biden administration with great pride announced, and the reason they have great pride is not … It’s two things, one is the diversity of the people who they are nominating to various courts around the country, but also that they’re ahead of where Trump, Obama, and others have been at this point. There was a lot of criticism of Obama that his judicial process was slow, and part of that, my recollection is there was a Supreme Court vacancy right away, and Sonia Sotomayor was the focus. It was a little bit hard to get district court in Circuit court nominees vetted in through.

Preet Bharara:

They’re really excited about this, a little bit inside baseball, but there’s been this football, it’s political football with respect to the ABA, and Republican presidents in recent years have not gone through the ABA process, and the ABA has their right to vet and to opine on judicial nominees after the appointment is made, but there wasn’t, as you pointed out, just to give the background for folks, there was a tradition by which particularly democratic presidents would vet potential nominees before they were nominated through the ABA. They would give a rating, qualified, not qualified, and also, by what majority of the panel, unanimously qualified or not qualified, etc. I don’t know what to make of it. What do you make of it as I turned the question back to you?

Dahlia Lithwick:

Yeah. I mean, I think that the decision was taken, that a lot of Obama nominees, particularly women and minorities were getting ranked as unqualified, and that, that suggested that the ABA was not looking at the right criteria. It’s for sure the case that having that ABA pre-vetting added a month to the process, and I think that, because Biden, as you said, has learned the lessons, and Ron Klain, his chief of staff has learned the lessons of the Obama failure to get the judge machine up and running on day one. They were just not going to have a month lag time.

Dahlia Lithwick:

I think the last thing is this professional qualifications question that you led with, which is there were too many, or at least the progressive groups like Demand Justice are saying, there were too many former prosecutors and big law people who got through the ABA vetting system, and you’re never going to see another civil rights attorney, you’re never going to see another public defender. They just felt as though, if the engine you have that is pushing judges forward can’t see people of color, or can’t see public defenders, then let’s sideline the engine. Needless to say, the ABA is very bummed out. But I think that there’s-

Preet Bharara:

Well, did they bring it upon themselves?

Dahlia Lithwick:

Well, I think it’s just an interesting problem. I think that I had always heard the critique that came from the George W. Bush administration and then from the Trump administration, that the ABA was a bunch of liberal hacks. That there was no way that they could be trusted to vet judges because they were too liberal. So, it was an amazing thing to see progressive groups now saying, oh my God, they’re way too conservative. In some sense, it’s so on the nose about where we are in this moment, that the institution hasn’t changed. It’s just that it’s too far left for one side and too far right for the other. Maybe that’s the cherry on top to your answer about how politicized this has become.

Preet Bharara:

We’ll be right back to my interview with Dahlia Lithwick after this.

Preet Bharara:

We’re in the second day of the trial of Derek Chauvin, and by the time people listen to this episode, things may have evolved and maybe there’ll be twists and turns. We were talking before we started taping that you, like I, have been watching the trial. How important is this trial?

Dahlia Lithwick:

I think it’s singular, in some sense, one always thinks that each of these trials is going to change everything. You and I have been around long enough to know that each iteration of this trial that we think can change everything, and even the George Floyd protests, which in some sense, we thought would change everything, in some sense, changed a lot of things, you see them enough times and you see that things don’t change. I do think the trial is really important in terms of having again, a conversation about police abuse and about the abuse particularly of men of color and poor men of color.

Dahlia Lithwick:

But I worry, I wonder, I guess I wonder what you think about whether these trials are the vehicle for changing anything, or if it’s just a kind of ritual. We all have to sort of lance the wound and suffer and everybody is heartbroken, but this isn’t where change is going to come from.

Preet Bharara:

Look, you made the point earlier in the interview about the law being a tutu, I think you said, and I have often said that, even if you have enforcement of law, I think at a minimum, if there is a full-scale acquittal in this case, I think it’ll be very damaging, and there’ll be a very bad and understandable reaction given what the evidence shows so far. On the other hand, it is not a panacea to have a conviction of an officer who, from what I see is clearly guilty of various forms of murder, and that doesn’t change laws. That’s just a particular prosecution that takes place.

Preet Bharara:

You also worry that, even though there are lots of things still that need to be done with respect to criminal justice reform, some people would say, “Look, the law worked, Derek Chauvin was held accountable,” and will they argue that that should slow down the pace of other criminal justice reform? Because of this “victory” that might come in the future, so I think it’s hard to know. It’s only been a day and a half, but I wonder if you have a view of how it’s going. My initial reaction in watching the cross-examination by Chauvin’s defense lawyer, is he looks to me, just by observation, I don’t know him from before. I’m not familiar with him otherwise, is that he clearly has the ability to conduct an effective cross examination, but hasn’t done so yet.

Preet Bharara:

His manner and demeanor and the precision with which he asks questions, he’s got some craft, but he’s asking the wrong questions. He’s asking too many of them, and I think some of the things he’s doing are backfiring on the defense team. What’s your reaction?

Dahlia Lithwick:

I was very struck by two things, one is the extent to which already we’ve heard, just in the two short days, what it means when people who are bystanders, who are filming, or calling the police on the police, I think that’s an amazing encapsulation of the problem. The other thing that I’ve really been struck by is how the defense has taken this posture that is, don’t pay attention to this almost 10 minutes of video that fairly clearly shows the thing that you all see it to show, because you don’t understand the stuff that wasn’t in the video. You don’t know what was behind the police officers. You can’t tell what the crowd all around them was doing and what they were experiencing.

Dahlia Lithwick:

I guess I’m so mindful again, going back to Rodney King, of the ways in which having video has become the solution. In some sense, it’s also catapulted us into this new problem, where you get this very Trumpy defense, which is pay no attention to what your lying eyes are telling you about this video, because you don’t know the whole story. It’s such a paradox. I mean, I don’t have a theory of the case, but if you look at the video, which is what the prosecutors are saying that’s all you have to do, it’s all in there, there’s one story. There’s an amazing valence to this trial that is no, the full story is the intensity of what those officers were experiencing, which is not captured on video.

Dahlia Lithwick:

If you could see the video of what was around the video, you would be persuaded, and I just find that to be kind of a singularly of this moment, metaphor, and very Trumpy in some way.

Preet Bharara:

Yeah. I think that’s fair. I’ve made the point that sometimes defense lawyers make bad arguments because there is no good argument. When you weigh the quality of an argument, it’s not in a vacuum, it’s against whatever other arguments they might be able to make, and sometimes the best thing to do is simply to argue, not sufficient evidence on the part of the government. Just argue the … Not try to create an alternative narrative through suggesting unrealistically that the crowd need to be held at bay and was threatening Derek Chauvin, and that’s why he had to keep his knee on the back of George Floyd, even as he stopped breathing and stopped having a pulse.

Preet Bharara:

Sometimes it’s better just to suggest to concede some things and not argue that everything that the person did was perfect, but argue you may have, and I don’t see this argument yet, maybe I missed it, where the argument, and this is parallel to what maybe the president should have argued, his lawyer should have argued at the impeachment trial, the second one, look, the conduct of my client, whether it’s Trump or Chauvin, it was not perfect, it was not ideal. We regret it. It was a terrible thing that happened here, but it doesn’t rise to the level of criminal conduct.

Preet Bharara:

Sometimes people will give you that benefit, and I think what’s trumping about certain kinds of legal arguments is that no concession, no concession, no concession. Everything I did was wonderful and great. If you can balance reality and concession with what your arguments are that are good for your client, then I think you’re in trouble. Maybe that’s impossible to do sometimes, but they’re certainly not doing it here so far.

Dahlia Lithwick:

Yeah. You can really see the attacks on like the MMA fighter, that he was whipping up the crowd and he was full of anger. I mean, that again, feels very trumpy.

Preet Bharara:

That backfired. I thought that backfired hugely.

Dahlia Lithwick:

Hugely.

Preet Bharara:

They were trying to make the argument that the MMA fighter, who I thought was a terrific witness and underestimated witness, that he was ripping up the crowd and causing the officers, Chauvin in particular, to be concerned. Whereas, I think his line was something like, yeah, I thought I witnessed a murder and I called 911 on the cops. He was asked the question, weren’t there cops there? Why didn’t you go …” Well, no, that speaks volumes, and I think they spent too much time on him, the defense did, to no avail. Who’s the funniest Supreme Court justice, and does humor in a Supreme Court justice, or any judge, matter for their outlook on the law, or tell you anything about their outlook on the law?

Dahlia Lithwick:

there’s studies done every year of how many laughs appear on the transcripts.

Preet Bharara:

I know. It used to always be Scalia.

Dahlia Lithwick:

It was always Scalia, and Kagan was very upset because she is very funny and didn’t get-

Preet Bharara:

She is very funny actually.

Dahlia Lithwick:

Did not get as many laughs in the transcript. I think that, and John Roberts is very funny in a sort of dry, Midwestern way that doesn’t necessarily chime with East Coast Seinfeld sensibilities, but he’s very funny. I think Kagan at present is probably the funniest justice. I think funniness helps in the way that … The interesting thing at the court, to make a slightly serious point briefly and then we can go back to crazy, but is this interesting blob at the middle of the court now, which is sort of Breyer and Kagan, and certainly the chief justice, and more and more Amy Coney Barrett, and Brett Kavanaugh, this blob of people who are ready to make deals, and then the real ideological purists, Alito and Thomas on the right, and Sotomayor on the left.

Dahlia Lithwick:

There’s this very interesting new thing happening just in the last few weeks where more and more Barrett is not showing up for the conservative legal movement and Kavanaugh is joining Kagan in argument after argument being like, I’m sorry, I don’t really fully understand what we’re doing here right now. There’s this funny new dynamic at the court of trying to appear reasonable and centrist and pragmatic. I think humor, believe it or not, is a really good crowbar into that. So, we’re seeing sort of improbable laugh lines coming in some of the arguments, where just very, very surprisingly Barrett and Kavanaugh and Kagan, and Breyer are all doing this fun wacky, new thing of let’s try not to look like partisan freaks and to just solve things.

Preet Bharara:

Where did that come from, you think? What has caused that?

Dahlia Lithwick:

Well, I think a couple of things. I think it’s a good question. I think part of it is just John Roberts as the new … He’s the new Kennedy. So, it started, I think even before-

Preet Bharara:

By which you mean kind of the swing vote.

Dahlia Lithwick:

He’s the, clearly, was the swing vote until Barrett came on, and then he in a strange way, becomes in a six, three court, he, in some ways, becomes less relevant. I think his way of being relevant is to continue to really tilt toward, how do we do this narrowly? How do we do this without a lot of polemic, batting away big cases, trying to find narrow, narrow holding? A lot of that is John Roberts’ fingerprints, that’s the John Roberts who decided the June Medical, the big abortion case with the liberals and who decided those early COVID cases with the liberals, trying to just stay under the radar.

Dahlia Lithwick:

I think that the bigger issue is just, in a strange way, because Trump politicized the Kavanaugh and the Barrett nomination, but also the Gorsuch nomination in ways that said, it’s all or nothing, do or die, my court and my rules. I think that the justices have had to live with that. All the times that John Roberts said, my court is going to give me my presidency, the real backlash was not on Donald Trump, it was on the court. I think they’ve had now to try to compensate for that acute, acute mistrust and politicization by just pulling back the throttle and not taking on big cases, and not necessarily grabbing the first gun case, and not necessarily doing really radical things. I think we may see that for a year or two.

Preet Bharara:

But what’s interesting about that is they don’t need to, life tenure, highest court.

Dahlia Lithwick:

They’ve got years. Yeah.

Preet Bharara:

But it’s interesting that they do care a lot about that. They do care a lot about legacy. In some ways, I would argue, even more than, maybe this is a radical statement, which I haven’t really properly thought of, but it just popped into my head, and so I’m going to say it. In some ways, I feel like they think about their personal legacies and reputations, not to mention the reputation of the court as a whole more than some individual elected officials who does glommed on to Donald Trump and did an about face on a lot of things, including their value system, their politics, their truth telling. I find that interesting. Is that fair or am I way off the mark?

Dahlia Lithwick:

No, I think that’s right, and I think the most interesting fracture at the US Supreme court right now is the line between Sam Alito and Clarence Thomas, who have become full-on sort of Trumpist culture warriors. Making claims about how government hates religious people and how Obergefell, the marriage equality case was a deliberate attack on religious folks. That’s just straight up stuff that you would have heard from Trump, the way they talk now. It’s fascinating that his own nominees are much more inclined to peel off and say things like, I’m not really sure why the Republican party has gotten involved in this burn of each case, trying to uphold really restrictive Arizona voting regulations.

Dahlia Lithwick:

Why does the GOP have an interest in that? That comes from Amy Coney Barrett? I think that there’s a strange way in which the court itself is mirroring the kind of split between the Marjorie Taylor Greenes and of Ted Cruzs, and Josh Hawleys, the people who still are saying the election was stolen, and the rest of the GOP that’s trying to have some reverter back to some kind of principled governance, and in a weird way, it’s the Trump nominees at the court who are upending. They’re being old school Republicans. They’re much more doing the old timey, we have to get along and we have to be bipartisan.

Dahlia Lithwick:

They’re the John McCains in this scenario that I hadn’t actually thought about it, but that is kind of perverse and interesting.

Preet Bharara:

You can credit me in your next piece.

Dahlia Lithwick:

It’s a really smart insight.

Preet Bharara:

We have to bring this to … Do you have a phrase with which you end the show? I was going to say, well, we’ll have to leave it there. We’re running out of time. I don’t have one. Do you have one?

Dahlia Lithwick:

We generally end my show with me and Mark Stern, who covers the courts for us, and by the end of it, we’re so depressed that we’re actually drooling and crying, so I tend to sign off with things like I need a bourbon. That’s probably my line.

Preet Bharara:

On a scale of one to 10, given this conversation, where in the bourbon scale are you?

Dahlia Lithwick:

I am much less depressed than I am for my own shows. Thank you.

Preet Bharara:

Oh good. That’s really nice.

Dahlia Lithwick:

Dahlia Lithwick, it’s been long overdue, what a treat to speak to you today.

Preet Bharara:

This was lovely. Thank you so much for having me. My conversation with Dahlia Lithwick 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. Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Dahlia Lithwick. 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.

Preet Bharara:

Tweet them to me @PreetBharara with the hashtag, Ask Preet, 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 staytuned@cafe.com. Stay tuned is presented by CAFE Studios. Your host is Preet Bharara. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore, and the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noah Azulai, Nat Wiener, Jake Kaplan, Jennifer Corn, Geoff Isenman, Chris Boylan, Sean Walsh, and Margo Maley. Our music is by Andrew Dost. I’m Preet Bharara, stay tuned.