Preet Bharara:

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

Michael Waldman:

It was once said that the Supreme Court were nine scorpions in a bottle. Now the scorpions are crawling all over the table. They’re attacking each other in public, and public support for the Court, public credibility for the Court has collapsed.

Preet Bharara:

That’s Michael Waldman. He’s the president of the Brennan Center for Justice at the NYU School of Law. A lawyer, policy expert, and former presidential speech writer, Waldman has been at the forefront of the fight for progressive political change for decades. Now, he’s out with a new book called The Super Majority: How the Supreme Court Divided America. Waldman joins me to discuss the relationship between the Court and the voting public. We look back at other moments where the Court caused political backlash, or when the Court reflected popular will. And we consider today’s Court with its recent political chaos. Can anything be done to bring the Court back from its current crisis of public confidence? That’s coming up. Stay Tuned.

Q&A

Now, let’s get to your questions. So we’ve gotten a lot of questions this week, as you might imagine, about the federal indictment of former President Donald Trump. Earlier this week, Donald Trump became the first former president in the history of the country to be arraigned on federal charges in the federal courthouse. And I have a few observations. One is just the entire tableau, the spectacle of it was sort of surreal and jarring, and maybe you thought the same thing if you were watching some of the television coverage, even more so than the first arraignment a few months ago in a Manhattan courtroom. The spectacle and the vision of Donald Trump in a motorcade with traffic stopped on the highways slowly making a stately progression from where he was to the courthouse was kind of jarring.

Because we talk about how Donald Trump is just a private citizen and no one is above the law and everyone gets treated the same, and he’s been complaining that he’s not getting treated the same, he’s getting treated worse. You don’t see private citizens approach court in quite that way. I commented on social media that it kind of looks more like a sitting president proceeding in a motorcade to a State of the Union address. The historian Michael Beschloss, I think put it best and expressed what I was thinking better than I did. He posted, “This was the never-before-seen arrest of an ex-president on grave federal criminal charges. And because we and our free press have been barred from watching and hearing it in real time, the accused man managed to make it look like a triumphant motorcade arrival.”

Here’s another observation and point that is, I think, worth repeating, and I’ve made some version of it before over many weeks, but I think it bears emphasis. One of the things you saw in the lead up to the arraignment, depending on which channel you were watching, is one of Donald Trump’s lawyers, Alina Habba, defending the president in the same way that many others have. By calling the prosecution politically motivated, a witch hunt, some kind of railroading of the president on the part of people who have some kind of bloodlust from the beginning to pursue, prosecute in his words, persecute, and convict Donald Trump and throw him into prison and prevent him from running for office again.

Alina Habba:

What we are witnessing today is the blatant and unapologetic weaponization of the criminal justice system.

Preet Bharara:

If you look at the narrative of the last year and a half, and particularly the narrative that’s set forth in the indictment, whatever you think about the merit of the charges, whatever you think about the strength of the evidence, whatever you think about the propriety of going forward based on the evidence that’s at hand, this idea that there’s some bloodlust on the part of Jack Smith or Merrick Garland or the career prosecutors that are in the special counsel’s office is just ridiculous.

If you look at the saga and how it unfolded, at every juncture, Donald Trump had the ability to prevent his future arrest. If he had given the documents back the first time asked, there would’ve been no prosecution. If he had given the documents back when agents came to his home, there would’ve been no prosecution. If he had given the documents back after a subpoena was issued asking for them, there would’ve been no prosecution.

If he had listened to his lawyers again and again and again, who expressed concern, there would’ve been no prosecution. If he had not moved documents secretly as recited in the indictment to prevent one or more of his lawyers from finding them to produce them to the government, he would not have been prosecuted. So this is an example of a situation where I predict to you no one had an interest or was in a frenzy to prosecute and indict Donald Trump. It’s a messy business, and I think they do it reluctantly.

But every fact along the way, every bit of resistance that Donald Trump showed, every bit of obstructive conduct that was done by Donald Trump puts the lie to this idea that there have been people in Washington and in Florida who have been single-mindedly pursuing a prosecution of Donald Trump from the beginning. That’s not true. The facts don’t bear that out.

One of the most common questions that I and others get is when are these trials going to take place? With respect to the Mar-a-Lago documents case, when is that trial going to happen? Will it happen before or after the election in 2024? And I’ve said before that I think all the evidence suggests and the indications are that Donald Trump does not want a speedy trial. And if he doesn’t, there are ways to delay it, particularly if you have an accommodating judge, and Judge Cannon may be such a judge.

There are also lots of motions that can be made because of the high stakes nature of the case, unprecedented in history, and the sensitivity. And how everyone’s going to be watching and scrutinizing every move by every party and by the judge. This may take a while. There are a few other reasons, by the way, why Donald Trump not just for political reasons, but for legal and self-protective reasons, might want to do everything possible to prevent the federal trial at least from going forward before he might get reelected to the presidency.

Because, and some of this is speculative, if Donald Trump becomes president again and the federal case against him is still pending, he might be thinking, and maybe even conspiring with legal counsel now, about how he might get out of his jam. He might be thinking to himself, “Well, I’ll appoint an attorney general who will even more do my bidding than Bill Barr and Jeff Sessions did.” Note that one of the controversial things that Bill Barr did during his time as Attorney General was insert himself into the case against Michael Flynn, insert himself in the case against Roger Stone, and why not have a new attorney general replacing Merrick Garland dismissing the special counsel Jack Smith and seeking a dismissal of the action against Donald Trump. I’m sure he’s thinking about that.

Second, and more speculatively, Donald Trump we know before from reporting from some years ago, had at least thought about or considered the possibility of a self pardon. Now, most rational legal experts don’t think that a self pardon is viable or proper or lawful based on the simple principle from old times that no person can be a judge in his or her own case. So a self pardon would not be operative, but he might be thinking about it. And that’s one option he might be considering once he becomes president again, if he gets there.

And then the third possibility, which is also speculative, and I don’t know the answer to this, but as you all remember from the Mueller investigation, there’s an Office of Legal Counsel opinion that is still operative at the Justice Department that basically says, “You cannot prosecute a sitting president.” And so for that reason, while Donald Trump was president, he couldn’t be prosecuted. He’s now a former president and a private citizen. And so you see two criminal cases with potentially one or two more to go. But what happens if there’s a criminal case against him that is pending and has been brought when he was a private citizen but is not yet resolved, not yet completed, hasn’t yet gone to trial and he becomes the President again?

What is the operational value and relevance and applicability of that OLC opinion about the inability of the government to prosecute a sitting president, whose basis is in part, such a prosecution would distract our commander-in-chief from his duties and responsibilities? So there are probably other possibilities and other avenues by which Donald Trump might think if he becomes president again, he can make his federal troubles go away. But it’s something to consider in the coming months.

I’ll be right back with my conversation with Michael Waldman.

THE INTERVIEW

Last June, the Supreme Court issued a slate of controversial rulings. In his new book, The Super Majority, Michael Waldman draws on history to examine the consequences of the Court’s most salient overreaches.

Michael Waldman, let me warmly welcome you back to the show.

Michael Waldman:

It is great to be with you.

Preet Bharara:

Not everyone gets the extra warmly, the warm welcome. Although I mean it, you’ve been coming on for a while, and we obviously know each other a lot of years. Congratulations on your new book, The Super Majority: How the Supreme Court Divided America. And we’re going to talk about the book, the themes, the Supreme Court, some stuff that’s happened in the Supreme Court since your book was put to bed. But before we do any of that, because it is the biggest news in the country at the moment, we are as we speak, recording this on Monday, June 12th in the morning. And Donald Trump has been indicted by the federal grand jury in the Southern District of Florida. And I just wondered, because you are a smart man and follow these things, from both the constitutional perspective, policy perspective, and every legal perspective, what your thoughts are on that indictment.

Michael Waldman:

So it is of course as big a deal as people are making it out to be. And at one level it is not that big a deal, because it’s the rule of law unfolding. The indictment was of course very strong. There is a long record of the federal government prosecuting espionage act and other violations of this kind. It was an incredibly damning, embarrassing for him, embarrassing for the country, often kind of funny narrative of the way in which he put our national security at risk, basically, seemingly, so he could brag to random people.

He may well assume that the federal courts will bail him out. The judge in the case assigned to it, of course, has been very biased in his favor up until now, and was swatted down by a very conservative federal court of appeals. He always says, “Oh, the Supreme Court is going to rescue me,” as he did during the 2020 election.

But even the very conservative justices of the Supreme Court have never stepped into rescue him from his misdeeds, at least not yet. I think it’s a big deal to indict a former president. It’s not something that should be done lightly. I’ll admit, I was a little skeptical early on about the significance of some of these document issues in that there’s a lot of over classification of documents. I always say, “If you walk around the basements of Northwest Washington DC and kick open some file boxes, some documents might fall out.” But this is just so-

Preet Bharara:

What if you go into some people’s showers?

Michael Waldman:

Yeah, with chandeliers above the toilet. But this was so outrageous in so many different ways that it seems like a very strong case.

Preet Bharara:

Will there come a time, do you think that people will be right, that the country will regret going down this path, because of the prudential concerns about the optics of one administration prosecuting the leader of the prior administration who seeks to be the leader of the next administration?

Michael Waldman:

I think that it’s one of the reasons it hasn’t happened before. It is something to be worried about. We were all horrified. We all understood what a breach of norms, at the very least, it was when Trump, in 2016, led all those chants at his rallies, “Lock her up,” about his opponent. We look at other countries, say a place like Brazil or other places where it seems as though the outcome of the election will determine which of the candidates running will go to prison.

But all of that said, Trump’s conduct was so off the charts that not prosecuting also creates precedences. We now know, for example, for a long time impeachment of the President was seen as a plausible sanction and really scary to presidents. There were things Franklin Roosevelt wanted to do before World War II, where he said to his staff, “I can’t do this, I’ll get impeached,” FDR. When Nixon faced impeachment, it was such a mark of shame that he resigned to avoid getting further bad votes in Congress. Now though, unfortunately, probably, we’ve seen that impeachment in a polarized era at least is not likely to be much of a sanction.

It’s been politicized. There have now been three attempted impeachments in the last 25 years, after practically none in the two centuries before that, none of them succeeded. And so the possibility of criminal prosecution after the fact has to be one of the things that’s in our arsenal of accountability for presidents. So I’m a little queasy about it, but I would be queasy about not doing it too. This is a big deal to indict a former president, but it’s just as big a deal to indict the front-runner of one of the political parties. But of course, not criming around is also one way to avoid that.

Preet Bharara:

One more question on this then we’ll move on to the Court. One thing that’s sort of interesting is an argument made by the Trump supporters in this instance, and sometimes it’s made by the other side in other contexts, is if you go down this road, what goes around comes around, right? And according to the Trump’s supporters and legal team and others, once you go down this road, you’re lowering the bar and the same is going to happen to Biden, et cetera.

And we heard that after the two successive impeachments of Trump and people, not just pundits but actual members of Congress, said that they were going to call for the impeachment of Joe Biden. And I predicted that at some point in the Biden presidency, if the House went to the Republicans, he would pretty quickly be impeached. That has not happened. Do you have any view of this empty threat of what goes around comes around? Is it empty or is it not?

Michael Waldman:

In terms of impeachment, here’s an interesting fact. No president to won a majority of the popular vote has ever been impeached. Andrew Johnson, of course, never was elected. Bill Clinton, who I worked for, won with 43% in a three-way race, and even didn’t win a majority when he handedly won reelection. And of course, Trump has never won the popular vote. A lot of the factors that go into impeachments have to do with the kind of arrangement of political power and presidents who, whether they knew it or not, were weak in the system.

What goes around comes around, that is of course a great worry. Again, it isn’t always playing out that way, because sometimes someone’s conduct is so extreme. But we know that I would not have wanted Sheriff Joe Arpaio indicting Barack Obama because of his border policies or something like that. I mean, this is a shift in kind of what we have to worry about in our constitutional system. All of which suggests that the standard for moving forward on something like this ought to be quite high.

Preet Bharara:

Speaking of appropriate uneasiness, let’s talk about the Supreme Court. So as I mentioned, congratulations on your book, The Super Majority: How the Supreme Court Divided America. Can we take a step back and do a little history like you do in your book? And you talk about three different periods of time in which the Court seemed to be a little bit out of step with general public sentiment, or at least the direction which the country was going. Can we start with 1857? Can you take us back to that?

Michael Waldman:

Yeah, absolutely. And the history I found, much of which I learned as I was researching it, is instructive as we try to understand this moment with this Supreme Court moving in one direction, the country moving in another direction. Most of the time, as you say, the Supreme Court pretty much hugs the middle. It reflects the public view or at least the kind of consensus of the political elite of a time.

Preet Bharara:

And why is it the case? This goes to the question as to why there’s a deviation from time to time. Why is it the case structurally that the Supreme Court tends, over the course of centuries, to hug the middle and not get too out of sync with the public? Is it because of life tenure? Is it because generally the parties go back and forth with respect to who does the appointing as president or something else?

Michael Waldman:

I think it’s something else. I think it’s that that’s the only way this body retains its power and it’s authority in the public mind. When you look at the Constitution, the part dealing with the Supreme Court and the federal courts, it’s only one 10th the length of the part dealing with Congress and the President, it’s a body that-

Preet Bharara:

[inaudible 00:17:16] it’s a co-equal branch.

Michael Waldman:

It’s a co-equal branch, but it would be a surprise to the founders’ generation how much power it’s amassed. And it’s amassed that power because the people give it that power. We see the benefits of having this independent co-equal branch, in some way, a court, in some way, divorced from or above or not quite as crassly political as the other branches. And so to maintain that it’s not a surprise that it kind of, one way or the other, reflects the society that it’s in.

But you’re right that there’ve been three other times by my count in the country’s history where that was different. Where the Court overreached was unduly partisan or ideological or activist, and where there was a massive backlash, which helped shape the country and reshape politics.

The first one was in 1857, as you say, that was the Dred Scott decision. That was a time when there was a lot of agitation about slavery and rising opposition to slavery and its expansion. And the Supreme Court, which was dominated by Southerners said, oh, we can “solve this problem,” meaning the problem of agitation over slavery. The Dred Scott ruling said that Congress could not prohibit slavery in the territories, meaning, it could not be limited to the South and was national. And also that Black people were so inferior that they could not be citizens. They had no rights that white people were obliged to respect.

It was only the second time that Congress struck down or held unconstitutional a law passed by Congress, and it was a really big deal. The response was ferocious. It led to the rise of the Republican Party. It led to Abraham Lincoln’s election to the presidency. This was the issue he ran on. When he was an inaugurated president, he said in his inaugural address with Roger Taney, the guy who wrote the opinion sitting there, he said, “Well, some people think the Supreme Court should make the decisions about what’s constitutional. We know better than that. How do you have these unelected justices doing this? That’s not how a democracy works.”

It also was controversial in very basic ways. It was was the last time a really big Supreme Court opinion leaked. It leaked to Buchanan, the incoming president, who was actually, it turns out, quite involved in getting them to go big in this way. And it was a big controversy, because he was seen whispering on the inaugural platform with Taney. And then in his inaugural address four years before Lincoln’s, Buchanan said, “Oh, well, the Supreme Court’s going to make this big ruling. None of us know what it’s going to say. Let’s all just agree that whatever they say, we’ll all go along with it, right?” And the next day everyone said, “Oh, now we know what’s going on.”

And so it was an example of great overreach and a significant pushback that led, ultimately, to the end of slavery and the enactment of the 14th Amendment and the other Reconstruction amendments. And so much of it was around anger at the Supreme Court and its ideological overreach.

Preet Bharara:

So then let’s fast-forward to the next phase.

Michael Waldman:

The next phase came, especially at the beginning of the 20th century, the time of industrialization, the time of great inequality of wealth, the Gilded Age. And at that point the Supreme Court, very conservative, saw its role is being to stop government and government agencies from being able to regulate the economy, to protect workers and women and public safety and things of that nature. You know it and lawyers know it as the Lochner era, after one particularly notorious case, but it went on for a long time.

And this also was seen as very ideological, very much of an inappropriate role for the Court. And the response to it was also quite clamorous, quite transformative. I had not realized that Teddy Roosevelt’s 1912 presidential campaign, this was this epic election where he was running against his successor, William Howard Taft, and Woodrow Wilson was the Democrat, and then Eugene Debs was the fourth candidate, the socialist, Teddy Roosevelt’s big issue was taking on the Supreme Court, taking on the Lochner case and other cases like that.

It was a big popular issue, all leading up to his cousin, Franklin Roosevelt’s fight with the Court along the same lines where they were striking down the New Deal and about to strike down social security and the labor laws, as is more well known to your listeners, probably. FDR proposed expanding the Court. The Court packing fight was a big deal. FDR lost, but the Court backed down. And this was all one continuous fight over the role of the Court.

Preet Bharara:

So the first period that you referenced was one in which the Court was further right, arguably, in the country. The second period, the same thing, and now you’re going to talk about the third period that was in the other direction, was it not?

Michael Waldman:

That was the one time, and it was actually the one time in the whole country’s history, where the Court was to the left of the country, if you want to call it that, or where it was ahead of the country in terms of promoting rights and equality. And that would be the Warren Court and the years after the Warren Court. And as you know, I run the Brennan Center for Justice, it’s named after William Brennan, who is one of the leaders of the Warren Court.

And I revere so much of what that court did. It began with Brown versus Board of Education, which was an utterly necessary step to break the power of the segregationist white Southerners by overturning segregation. There were other key rulings of that nature, like the one person one vote rulings. But there were so many rulings and there’s so much social change happening in the country writ large that the Court spurred and also reflected, that in the end, that too created its own backlash in the sense that you had liberal judges imposing their own personal views and doing it with loose kind of constitutional standards created a backlash that we are still living through.

Preet Bharara:

So when you say created a backlash, that’s a negative thing, although you think very positively about many of the rulings of that period, as do I, as do many others. What should have happened differently or should something have happened differently so that we’d be in a better spot? Now I’m not quite certain of how if you had a godlike presence on the Court, you would’ve done something differently. Should they have been more incremental in liberal change?

Michael Waldman:

I mean, I think in retrospect they should have been more incremental. They should have tethered some of the rulings to more traditional legal arguments. The Griswold case, which was a really important case in terms of articulating the right to privacy, did it in a very notoriously fuzzy and sort of psychedelic way.

Preet Bharara:

Could you remind people?

Michael Waldman:

That the right to privacy was found in emanations and penumbras-

Preet Bharara:

Penumbras.

Michael Waldman:

… from within the other parts of the Constitution, when it was actually quite possible to find the right to privacy from the actual text of the Constitution more than they did.

Preet Bharara:

And Griswold was about contraception.

Michael Waldman:

About access to contraception. And just as a general matter, I like the outcomes of these rulings, but if I put myself in the mind of somebody who was rendered uncomfortable by the pace of social change, the sheer number of them, the Court at that point really in its first flush of power, because we talk about the Court as co-equal branch of government, but it really sets itself out in some respects not as co-equal, but as a super legislature over the other branches of government. And in that case, again, whether it’s rulings on school prayer or flag burning or criminal procedures, most of which I just think are terrific, what I think we learn in retrospect is that if it is, when it is possible to do that, not with the stroke of a judicial pen, but through legislation passed through the democratic process, it can often have a deeper, longer lasting impact and win the support of the public.

And even in the civil rights rulings Brown v Board of Education was in 1954, but a decade later, there was very little actual desegregation in the schools or in the country. It was not until the Civil Rights Movement on the streets and then the legislation of the Civil Rights Act and Voting Rights Act that the federal government really was able to make the change. So even then, it was not just the Courts on their own and everybody followed along.

Preet Bharara:

So what you’re saying now is interesting to me, if you apply those principles and that thinking to Roe v. Wade. Do you think Roe v Wade, whose outcome you may like, was decided poorly?

Michael Waldman:

Roe v Wade was controversial from the beginning. It struck down the laws of many states. There were even pro-choice advocates at the time who said, “Look, we’re…” New York had just legalized abortion. California had just legalized abortion. The consensus had not yet formed in the country, but there was a lot of progress being made. People like Ruth Bader Ginsburg, for example, had real criticism of the opinion.

But I think that at some level, that’s a little bit of an intellectual parlor game in the following sense. You can critique Roe v Wade for how it was done in 1973, but it’s now half a century later, and it has been this settled right, expected and relied upon by American women for half a century. And then in the case of Planned Parenthood of Southwest Pennsylvania versus Casey in 1992, that reaffirmed the right to an abortion, the right to reproductive choice in the Constitution.

That didn’t use quite the same reasoning as Roe v Wade. And that was a political decision written by three Republicans led by Sandra Day O’Connor, the last practicing politician to be on the US Supreme Court. And that basically said, “Look, people have come to rely on this right, and there’s a lot of bases for it and that’s what we’re going to defend. It said government could have some restrictions, but this is a basic right.” And I think it was half a century of… I’ve got my criticisms of Roe v. Wade, as others did, but I also think those are somewhat irrelevant. This is what people have been relying on.

Preet Bharara:

No, I totally get that. I guess what I’m asking is, and then we can apply it to the current time, if Roe had been decided on different grounds or if Griswold had been decided on different grounds, although I don’t think that Griswold is in serious jeopardy, although based on Dobbs, people sometimes think that it is, and who knows, because anything’s possible, if these cases it had more solid judicial grounding, would we not be in this mess that we’re in?

Michael Waldman:

It’s possible, in the sense that by the time of Griswold, all states had legalized contraception and even the law in that case was not being enforced in Pennsylvania. It had been written by Phineas T Barnum, PT Barnum, when he was a state legislator in Connecticut a century earlier. But if it had been rooted in the equal protection clause of the Constitution and how it affects women, that’s in the abortion rights case, for example, that might have had a stronger basis.

But the other thing is this right to privacy now is something that, again, society has come to accept as being something powerful, important, and strong in the Constitution. Marriage equality, contraception, the ability to have interracial marriage, all these other things which are now at risk because of the Supreme Court undoing Roe v Wade. These are pretty, I would say, woven into the fabric of American life, and people’s expectations of what the country’s supposed to look like.

Preet Bharara:

I’m going to ask you about one more area in this regard, then I think you’ll see what I’m getting at because I have a big question for you at the end of this. With respect to affirmative action, one or more decisions from the early ’70s, and those, by the way, are on the chopping block as well in this term. Some people have said, “Well, the focus generally in higher education and otherwise on diversity was a mistake. And it should have been more about recompense or some notion of making a class of people whole who had been discriminated against, and maybe that would’ve been stronger footing.” What do you think of that?

Michael Waldman:

Well, because, as you know, the phrase diversity, the use of diversity as the metric came from a Supreme Court ruling at a time of its maximum writ over our society, the Bakke case. And what was in some ways an offhanded linguistic turn of phrase then really shifted so much of how our higher education system and other things worked.

Remember that in the affirmative action cases which are coming up this month, where the Supreme Court is expected to, you never know for sure, is expected to say that you cannot consider race when assessing diversity. You cannot consider race at all in the higher education. What this does again is this is not something government is requiring, this is the way our system works, this is the way universities, private universities, and public universities have wanted to do it. And here the Supreme Court would be coming in and saying, “No, you can’t.”

And I view it in some respects as a kind of test of activism of is the Court coming in and upending how people are living their lives? Upending how institutions are working? One of the things I write about in the book, this is not quite so much in the affirmative action context alone, but it comes from many of the things from that era of the 1970s, especially, and the 1960s, the notion that the judges on the federal courts were these heroes who would be the guardians of our rights and make these big bold rulings, and that’s how you could get social change, steered a lot of liberals, progressives, liberal lawyers to view things in terms of rights, to view things in terms of lawsuits to be brought.

Rights have a very binary impact that you have one or you don’t, you’re for it or you’re against it, as opposed to finding ways through the necessarily messier political process. One of the things that happened was people on the left became, for a while anyway, too focused on rights and hoping the Courts would rescue us. And on the other hand, they lost the muscle memory of how to organize and how to wage politics. Whereas on the right, they waged a multi-decade campaign to build public organizational and political support on these constitutional issues, first and foremost, in the electorate before going to court. And this-

Preet Bharara:

Ironically, even though that support, after much effort and much expenditure of money and resources, is still the minority position on many of these issues, including abortion.

Michael Waldman:

Including abortion, including gun rights, and including a number of these other things. You’re right, for all this effort over many decades, it is still an entrenchment of a minority position, a faction of a faction that has captured the Court now. And given that the Court has this unusual place in our system, given that the Supreme Court is unelected, of course, but also lifetime tenure and has all this power and has now been captured by what we have come to realize is a very well-oiled and actually well-funded political machine, the opinions that they did last term, in particular, were wildly at variance with what the public wanted.

Preet Bharara:

I’ll be right back with Michael Waldman after this.

So what I was getting at with all of this, the questions about the strength and the prudence of the foundation upon which some rights were upheld, whether it was privacy or other things, is the conservative wing of the Court and to the extent six people can be a wing, is there approach now mirroring some of the errors that you suggested the liberals engage in? In other words, relying on this vague idea of the major questions doctrine or a selective view of what history and tradition dictate. Are those also things that are going to be seen eventually to have been on soft footing to be overturned and another backlash and sue the other way again? Or how do you think about that?

Michael Waldman:

I think so, and I think it’s happening a lot faster than it did back then. Roe v Wade was not particularly controversial when it came out. It’s worth noting, Brown v Board of Education was very popular in the country and for a long time and remains. Among white Southerners, it was unpopular, but it actually reflected the majority view in the country at the time.

The current situation is that, as you say, first of all, this Court has a six vote super majority. It is not, generally speaking, in the business of trimming its sails or pulling back its ambitions, certainly, in its first term of the super majority. It is saying that it’s making its rulings based on originalism. This is a pretty radical approach to how to talk about and interpret the Constitution. It’s not the way it’s been done before. I’m not sure folks quite realize the shift here.

This is the idea that the only legitimate way to interpret the Constitution is to ask what it meant at the time of ratification, meaning, say, 1791 for the Bill of Rights. And that means, literally, even if you get the history right, that you’re governing our country now by the social views of property owning white men at a time when women could not vote, when Black people were enslaved and so forth. It’s frankly an explicitly turn back the clock approach.

This is not how the Supreme Court has ruled before. This is not how big decisions have been done for the last two centuries. The only four big originalist cases were Dred Scott, which sort of discredited it for a long time. The Heller case, in 2008, which as you know, as we’ve talked about, was the first time the Court found an individual right to gun ownership, and then two cases last term, Bruen and Dobbs. So it’s a new thing, and I think the implications of it are only now becoming clear.

Preet Bharara:

Could you address what is, I think, a deep, deep irony or a double irony in the analysis that you’re providing about how the Court has… So on the one hand in Bruen, these gun cases and other cases that we’ll, hopefully, have a couple minutes to talk about, the Court has said, “well, you have to look at what the history and tradition was way back in the day, at the time the Constitution was written. And if there are laws with respect to abortion, with respect to gun ownership and use, then that counsels and guides and actually dictates what is and is not allowed today.” Isn’t that odd and or ironic that the methodology of talking about how these cases should be resolved is not the methodology that was used at the time of the founding.

Michael Waldman:

Right At the time of the founding, they knew they were writing a Constitution that was for a changing, growing country. They kept the language mostly pretty vague and broad on purpose. And there is ironically no history and tradition of just ruling based on history and tradition. Now sometimes the history is fake, in the gun cases and especially in this most recent one. The Heller case found it an individual right, as you know in 2008, but it also allowed gun laws and gun restrictions and public safety, because among other things that has been the story all throughout the country’s history

Preet Bharara:

Right. That part people forget.

Michael Waldman:

We’ve always had guns, we’ve always had gun laws. Scalia, who wrote that, was asked, “What’s the difference between you and Clarence Thomas?” And he said, “I am an originalist. I am not a nut.” But Clarence Thomas wrote the Bruen case. And the Bruen case says, in effect, that you cannot consider public safety when you’re assessing the constitutionality of a gun law, only history and tradition. By which they mean, was there the same law back in the colonial era or the founding era. It’s that absurd and it’s going to put dozens and dozens of existing and longstanding gun laws at risk. You had, in upstate New York, a federal judge ruled on… New York state kind of passed a new law to try to put back in place its restriction on carrying weapons that had been in place since 1911, which to me is history and tradition right there.

But there’s a long history throughout the country of restrictions on carrying weapons and even bans on carrying weapons, that’s unmistakable. So Thomas’ history was kind of made up. But a judge in upstate New York said, “Well, two examples from the founding era is a mere trend. For it to be history and tradition, you need three. And I can find no history and tradition of laws banning guns at sleepaway summer camps, therefore it’s unconstitutional. Let alone by the way, underground electric trains, which had not been invented for a century.” It sounds like satire, but it’s not. In the-

Preet Bharara:

There’s a deeper irony also based on what you said at the outset, the history and tradition of the three branches, going back to the beginning, is that the Court, as you pointed out, the provisions for the judicial branch are tiny compared to the others. The history and tradition was for courts to have less power than the assertions of power on the part of the right on the Court now. Is that also an irony or not?

Michael Waldman:

It is. And now I would say both liberals and conservatives tend to forget that history. For most of the country’s history, judicial restraint was a progressive value. What they really wanted the courts to do most of the time was get out of the way. I think that the period of the Warren Court and its aftermath, when the Court was a advancing rights, bedazzled liberals for decades afterwards, when the actual facts of what the Courts were doing would not have supported it.

Conservatives for decades talked about judicial restraint, talked about activist judges. Now that they have their super majority on the Court, that’s all gone out the window. So one of the things that I hope happens is that liberals, progressives rediscover the tradition of making a coherent and unembarrassed argument for judicial restraint. Because if we think that… I do not think the answer for us should be to pine for a day of six liberal Alitos on the Supreme Court. I don’t think that is ultimately the right goal.

Preet Bharara:

But is that one among goals or not?

Michael Waldman:

I would rather find the balance properly for the Court in our system. Because I think that among other things, it’s one of these institutions that is counter majoritarian, we want it to be that. We want it, sometimes, to stand up against the kind of rush to judgment by the majority. But we want it to allow our democracy to function, to allow our system to function.

And it’s one of these things, like so much of the Constitution, where things that have been in the Constitution for a long time and were acceptable and often quirky idiosyncrasies, over time, they can become more and more problematic. I would say the electoral college being an example of that or the imbalance in the Senate. When they created the Senate, which Madison and Hamilton and those folks knew was a problem, but the biggest state was seven times bigger than the smallest state. Now the biggest state is something like 50 times bigger than the smallest state in population.

And I think that the lifetime terms for a unelected Supreme Court justices is one of those things in our system that turns out to have more and more unintended and harmful consequences. And it’s part of what we ought to be looking at, part of the answer here is, I would argue, some reform of the Court itself.

Preet Bharara:

Let’s talk about what is going to happen going forward. Let’s stick with guns for a moment. There was a judge in Virginia who based on Bruen, which we’ve been discussing, has ruled that federal laws blocking handgun sales to people over 18 but under 21 are unconstitutional. Is that going to stand? And will other gun restrictions and reasonable regulations fall also?

Michael Waldman:

We don’t know yet because we have not seen these cases head back up to the Supreme Court, but I think a lot of those kinds of rulings, unfortunately, will stand. There was another ruling in Texas, the Fifth Circuit Court of Appeals, which is a very conservative court of appeals, said that “longstanding laws taking away guns from people with adjudicated domestic violence that that’s unconstitutional. Because back in the old days, they didn’t think that was such a problem.” It literally says that. And I think it’s even conceivable the Supreme Court could try to push back a little bit on that one.

But I think that the impact of the Bruen case, which didn’t get as much attention as Dobbs, understandably, because first of all, it was the day before Dobbs, but its impact has not fully played out yet. I think it is going to, unless something changes, have a very significant impact going forward, including, for example, can you ban assault weapons? The Courts have up until now said you could. But Brett Kavanaugh, on this, is no moderate. He says it’s a violation of history and tradition. So I think that we will have discovered that even as gun violence is rising and public desire for stronger gun laws is also once again rising, that for the first time the Courts are going to be a significant obstacle.

Preet Bharara:

We had Noah Feldman on the podcast a few weeks ago to talk about the First Amendment, the free exercise clause and the establishment clause. Do you agree with him that we’re moving in an unfortunate direction on those issues too?

Michael Waldman:

I will say with great certainty that I’m probably less knowledgeable on the religion aspects of the First Amendment than most of the other things that are going on right now. It’s always been a conundrum in that the First Amendment both prohibits establishment of religion and also protects exercise of religion, and a lot times-

Preet Bharara:

But that was intention, often-

Michael Waldman:

There was intention. And the Courts have a lot of different ways of balancing it. It’s been a bit incoherent in the past, but this court and its super majority is very, very intent on putting forward a pro-religion, pro-Christian approach to things, and you see it in case after case. The rise of Amy Coney Barrett to the Supreme Court as one of the six vote super majority is seen as a breakthrough for religious Christians, the Christian conservative legal movement, in that that she was not a regulatory scholar, she was not a former government official. She came out of a very intense conversation about religion in the Constitution, and is seen as a breakthrough nominee in that way.

So I think there’s some truth to that. And one of the things that happened in the last term is there was a case involving a football coach in Bremerton, where the majority opinion made it sound as though he was sort of off in a religious reverie on his own, like a Norman Rockwell painting with a beam of light coming down. And it was terrible that he’d been penalized for this. But Justice Sotomayor in her dissent included photographs, which showed that he was actually staging a pageant in the middle of the field with all the players kneeling and cameras and everything like that.

It was indicative not just of the intensity on the religion issues, but also the lack of trust within the Court. One of the things that happened over the course of the first full term of the super majority leading up to the three cases that I focus on last year is, it was once said that the Supreme Court were nine scorpions in a bottle. I think that was actually the title of one of Noah Feldman’s books, but had been said about an earlier Supreme Court. Now the scorpions are crawling all over the table, they’re attacking each other in public. The Dobbs decision, of course, leaked. We learned about Jenny Thomas’ insurrectionist adjacent activities, and all of this during the period when they were girding themselves for these really big rulings. And public support for the Court, public credibility for the Court has collapsed.

Preet Bharara:

I want to talk about something you mentioned in your book, and that has been the subject of debate and discussion more recently than before, and I have come over the last few years to the view that, yeah, term limits might make sense. That’s true for a lot of reasons, among them that over the longer term you don’t get a Court that is so out of whack with what the political leadership of the country has been, just by happenstance. We always point out Carter had a four-year term, single term president ,had zero nominees to the Supreme Court. Trump, also single term president, had three. And the luck and fortuity of when someone passes away or chooses to retire has an outsized effect on the makeup of the Court.

So you talk about term limits in your book, and as you point out, most plans would limit justices to an 18-year term. And then you write this, “Nominations simply would matter less. True, candidates might feel compelled to say whom they would choose, thus effectively adding Supreme Court justices to the ticket, that might worsen politicization or it might just bring the politics into public view. Term limits would help demystify the Supreme Court. Justices are government officials not mysterious wizards, empowered to divine the meaning of the past.” Is there any possibility this will come to pass?

Michael Waldman:

I think more than one might think. And part of the term limits proposal that I think makes sense, which would, especially, I hope drain some of the poison from the confirmation process, would be to give each president an appointment. A nomination every two years, regular appointments, is one thing that is often put forward as part of a term limits proposal.

Preet Bharara:

And the math and that works, right? So if you have nine justices, each for 18 years, there would be a vacancy every two years once you stagger them.

Michael Waldman:

Eventually. In other words, it would expand the Court for a little bit, probably, and then it would subside back down to nine. And as you know, not nine is not in the Constitution.

Preet Bharara:

It’s not a magical number, no.

Michael Waldman:

Term limits is widely popular, interestingly, among Democrats and Republicans. It reflects a fairly basic sense that nobody should have that much public power for too long. If you think about George Washington limiting himself to two terms, that was the same idea. And it’s more widely held than I think folks realize. As you may know, I was a member of the Presidential Commission on the US Supreme Court appointed by President Biden in 2021.

And these government commissions, they’re kind of often set up to make sure nothing happens. And in our case, we were literally instructed at the outset, publicly instructed not to reach conclusions, and we didn’t. Here was a government agency that worked exactly as intended. But something pretty interesting did happen. We heard from dozens of public witnesses, from left and right, and some were for court expansion and others were against it, and some were for an ethics code and others were against it. Over and over again, though, the witnesses said, “Oh, but I’m for term limits.”

There’s a wide consensus for it. Now, if it really started moving, would it instantly get polarized? I’m under no illusions about that. You could certainly do it by a constitutional amendment. I think you could do it also by statute. But one way or the other, I think it is an idea whose time has come, even if it’s not quite in visible view yet.

Preet Bharara:

You allude to this in what I just read, but it’s an interesting thought experiment to see what it would do to campaigns. It would do away with apathy on the part of people either on the right or the left on the Court. Because you go into an election, well, unlike the last one, because we knew Ruth Bader Ginsburg passed just before an election, but ordinarily, you just don’t know. Is my guy, if he gets elected, going to have three noms or zero noms or something in between? If you know to a mathematical certainty that the next president is going to appoint one or more justices, that becomes a central theme in the campaign, does it not? And as you mentioned, is that good or bad?

Michael Waldman:

I think it may be inevitable, because it’s there already. If you remember, Donald Trump announced a list, a list provided to him by the Federalist Society, of who he would consider for the Supreme Court. You had in the Trump-Hillary Clinton debate, not the kind of decorous, “Oh, it would be inappropriate for me to say what kind of justices I would nominate,” but Trump said, Roe v wade would be “automatically overturned if I win.” And she basically said the opposite. So I-

Preet Bharara:

But you still don’t know… So let’s go back to 2016. And look, there are people who call themselves Progressive who said, “There’s no difference really between the corporatist Democrats and the corporatist Republicans,” which is a crock of nonsense. But if you knew that Justice Ginsburg was retiring or a divided court, which you might see happen under this reform regime of term limits we’re talking about, you could have a circumstance in which you have a 5-4 court, and you know, because you know in advance, that the liberal or the conservative, the deciding vote, whichever direction it may be, is necessarily retiring in the middle of the next president’s term, that motivates people to vote for their person even more. And isn’t that a good thing?

Michael Waldman:

Yeah, I think it is. I think it makes it demystified. It wouldn’t bother me if that were the consequence. It makes it demystified. It makes it clear, these are government officials with a lot of governmental power. As you quote from the book, they wear robes, but they’re not wizards, they’re not religious figures. And I think it would be part of putting the Supreme Court in its proper place in our system. It’s also… I tell a lot of the stories of the history. One president who did not have any naturally occurring vacancies on the Supreme Court was Lyndon Johnson, but he managed to finagle two justices off the Court by persuading them to resign.

Preet Bharara:

Well, because of their resignations, right?

Michael Waldman:

Yeah. But you can’t rely on everybody to be as wily and aggressive as Lyndon Johnson. And we know-

Preet Bharara:

Well, I mean, would Johnson have been able to get rid of Clarence Thomas?

Michael Waldman:

Well, one of the questions right now is given that John Roberts is somebody who does seem to care about the Supreme Court as an institution, at the very least about its public credibility and arguably its public approval ratings. And you see that in some of his cases that he [inaudible 00:52:14]-

Preet Bharara:

Well, the recent case out of Alabama, on the Voting Rights Act.

Michael Waldman:

Why he is not simultaneously using that same view to say to Thomas, “What we’ve learned, what the public has learned is really hurting our credibility. This is not just an ethics question. This is an extreme example.” Harlan Crow was subsidizing Thomas’ lifestyle, bought his mother’s house. If you saw that in Albany, you would know that was kind of basic court, Tammany Hall style corruption. Why Roberts is not pushing harder to get the Supreme Court to adopt an ethics code, for example.

Barack Obama met with Ruth Bader Ginsburg, but never quite got around to asking her to step down. So it does depend on the personality of the president. But I think bringing the Court into line with what its role ought to be, rather than as a supernatural body over our whole political system is a good idea.

Preet Bharara:

You’ve said some version of this already in our conversation, but in the book you write, “Above all, liberals must fall out of love with the Supreme Court.” Hasn’t that basically already happened?

Michael Waldman:

It has, but it has to stick. I mean, the public support for the Court has collapsed. What’s interesting is, as of two years ago in polls, Democrats had a much higher opinion of the Supreme Court than Republicans did, even after Citizens United, even after Shelby County and all the other things. Some of that I think was Obergefell and the marriage equality case. A lot of that though, I think, was the continued generational nostalgia for a time when the Supreme Court was this reliable and even ambitious and adventurous force for rights and equality.

And so I think that it’s really a question of how people envision fighting for change and fighting for the goals they have. The courts have a role, but sooner or later winning in the court of public opinion has to be the result, has to be the goal. And one of the things that we saw in response to Dobbs especially is already the backlash is much fiercer and faster than it has been in a long time.

The midterm election where Democrats control the White House, usually the party controlling the White House does poorly in a midterm, that’s just one of the laws of Newtonian physics in our politics. The Democrats had the strongest midterm in decades for a party in control of the White House. One of the main reasons was abortion rights in response to the Supreme Court on Dobbs, and also fear over the health of our democracy, but even more noteworthy to me and more visibly, and that was all, despite inflation and crime and other issues that were things people were talking about, the Wisconsin Supreme Court election.

As you know, most states elect court justices. Whether that’s a good thing or a bad thing is a different issue, but they do. And in April, there was an election for a Supreme Court Justice in Wisconsin. The electorate in Wisconsin is usually very closely divided between Democrats and Republicans. The legislature is very gerrymandered, so it’s not so divided, but the electorate is pretty evenly split, including for these elections for judges. It went from an evenly split electorate to an 11 point win for the more liberal candidate.

Political scientists will tell you that’s an earthquake. That just doesn’t happen. And if that suggests a continued backlash against the Court and its extremism and conservatism, that can help shake the politics and reshape the country too. And so I think even in response to the Supreme Court, the organizing we’ve seen among abortion rights advocates and others gives a sense that the Court of public opinion is who they’re appealing to. I think the gun issue needs to be next in the sense that I don’t think people realize just how radical that ruling was and how big an impact it’s going to have as we try to deal with mass shootings and other things like that.

Preet Bharara:

Michael Waldman, congratulations again in your book. Thanks for your insights, and I’ll talk to you soon.

Michael Waldman:

Thank you.

Preet Bharara:

To end the show this week, I want to talk once more about a small spacecraft that was launched from Earth back in 1977. That spacecraft was Voyager 1. You may recall that a few months ago I quoted from the eloquent message then President Jimmy Carter left aboard Voyager 1. Recently I was reminded of the so-called Pale Blue Dot, a photo of planet Earth taken by the Voyager 1 spacecraft in 1990. Many of you have likely seen it. It shows Earth from a distance of 3.7 billion miles, and as the name suggests, it makes our home planet look like a tiny blemish against the vastness of space.

The picture was one of a series of 60 taken by the unmanned space probe as it looked back toward Earth for the last time. Voyager 1, by the way, is now 15 billion miles away, and it remains the most distant human-made object in space. Who was responsible for the picture being taken? None other than Carl Sagan, the renowned astronomer.

At the time, Sagan was working for NASA as part of the Voyager imaging team. It was his idea to capture the image of Earth from the farthest possible vantage point. As explained on NASA’s website, Sagan and other members of his team “wanted humanity to see Earth’s vulnerability, and that our home world is just a tiny, fragile speck in the cosmic ocean.”

Of course, other pictures have served a similar purpose. Many of you’ll recall Earthrise, the photo taken on the Apollo 8 mission in 1968. That became one of the most famous photos in history, and according to some, helped spur the modern environmental movement.

But the pictures taken from Voyager 1 were the first to show the earth in the context of the full solar system, in all of its smallness. Sagan went on to write a book titled Pale Blue Dot: A Vision of the Human Future in Space, with his wife and documentary producer, Ann Druyan. I’ll end by sharing this passage from their book.

“Look again at that dot, that’s here. That’s home. That’s us. On it, everyone you love, everyone you know, everyone you ever heard of, every human being, whoever ever was lived out their lives. The aggregate of our joy and suffering, thousands of confident religions, ideologies, and economic doctrines, every hunter and forager, every hero and coward, every creator and destroyer of civilization, every king and peasant, every young couple in love, every mother and father, hopeful child, inventor, and explorer, every teacher of morals, every corrupt politician, every superstar, every supreme leader, every saint and sinner in the history of our species lived there, on a mote of dust, suspended in a sunbeam.”

“The earth is the only world known so far to harbor life. There is nowhere else, at least in the near future, to which our species could migrate. Visit, yes. Settle, not yet. Like it or not, for the moment, the Earth is where we make our stand. It has been said that astronomy is a humbling and character building experience. There is perhaps no better demonstration of the folly of human conceits than this distant image of our tiny world. To me, it underscores our responsibility to deal more kindly with one another and to preserve and cherish the pale blue dot, the only home we’ve ever known.”

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Michael Waldman.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the #AskPreet, or you can call and leave me a message at (669) 247-7338, that’s (669) 24PREET, or you can send an email to letters@cafe.com.

Stay Tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. The Cafe team is David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Sean Walsh, Nama Tasha, and Claudia Hernandez. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.