Impact of the Reactionary Dominated Supreme Court

 https://www.c-span.org/video/?528063-1/after-words-michael-waldman

~~ recommended by dmorista ~~

Michael Waldman discusses the Supreme Court

Brennan Center for Justice president & CEO Michael Waldman examined how the Supreme Court’s 2021-22 rulings impacts U.S. law & citizens.

He was interviewed by Politico’s senior legal affairs reporter Josh Gerstein.

Introductionby dmorista:    The most famous ruling by the current Partisan Hack Reactionary dominated U.S. Supreme Court was the overturning of Roe v. Wade in the “Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S ___ (2022)”.   In this interview, Michael Waldman looks at the actual ruling, other rulings, and defines 4 periods when the U.S. Supreme Court made rulings that provoked resistance and response.  He expects that the current rulings will cause a major political response by the majority of the U.S. population, that find this court’s political stance unacceptable.

Michael Waldman    June 5, 2023   After Words   C-Span 2

Note: This is a video of an interview of Michael Waldman by Josh Gerstein. A transcript is posted here below.

(This is a Graphical Image of the Youtube Link to this Michael Waldman interview on After Words.  To watch the actual video go to                                                                    < https://www.c-span.org/video/?528063-1/after-words-michael-waldman>)

Transcript:

General Announcer:  BEGINNING NOW IS A BOOK TV'S AUTHOR INTERVIEW PROGRAM "AFTER WORDS." BRENNAN CENTER FOR JUSTICE PRESIDENT AND CEO MICHAEL WALDMAN EXAMINES HOW RULINGS DURING...

JG:  MICHAEL WALDMAN, WELCOME TO THE PROGRAM. YOUR NEW BOOK, SUPER MAJORITY, IT TALKS ABOUT THE CURRENT ITERATION OF THE SUPREME COURT AND HOW IDEOLOGICALLY POLARIZED IT IS, AT THE CURRENT 6-3 COURT, BUT YOU ALSO DISCUSS HOW THIS IS NOT A TOTALLY NEW PHENOMENON. WE HAVE HAD OTHER PHASES WHERE THE CORD WAS VERY IDEOLOGICALLY POLARIZED AND WAS CAPTURED BY ONE WING, SOMETIMES ANGERING A LARGE SWATH OF THE AMERICAN PUBLIC. WHAT ARE THOSE INSTANCES IN THE PAST WHERE THE COURT FELL UNDER THE SWAY OF ONE FACTION, AND HOW TO THE PUBLIC REACT TO THAT? RT OF HUGS MIDDLE. 

MW:  IT REFLECTS THE CONSENSUS OF THE COUNTRY OR AT LEAST THE CONSENSUS OF THE POLITICAL ELITE OF THE COUNTRY. BUT THERE HAVE BEEN A FEW TIMES WHERE THE HAS OVERREACHED AND BEEN MET WITH A PRETTY FIERCE BACKLASH WHEN IT'S BEEN EXTREME OR OR PARTIZAN OR UNDULY. I CAN'T. THREE PREVIOUS TIMES. THE FIRST WAS IN 1857, WITH THE DRED SCOTT RULING, WHERE THE COURT INTERVENE IN THE POLITICAL PROCESS TO TRY TO QUOTE, SOLVE THE ISSUE OF SLAVERY BY WHICH THEY MEANT AGITATION OVER SLAVERY. IN DRED SCOTT, THEY SAID THAT CONGRESS COULD NOT SLAVERY FROM THE TERRITORIES AND THAT IN FACT, BLACK PEOPLE WERE SO INFERIOR THEY, HAD NO RIGHTS AS CITIZENS. AND REACTION TO THIS LED TO THE RISE OF ABRAHAM LINCOLN, HIS ELECTION TO PRESIDENT AND ULTIMATELY TO THE CIVIL WAR. IT HAPPENED AGAIN IN THE EARLY 20TH CENTURY AT A TIME OF. AND GREAT INEQUALITY AND FIRST EFFORTS BY GOVERNMENT TO DO SOMETHING IT AND IS KNOWN TO LAWYERS AS THE LOCHNER ERA. THIS WAS A PERIOD WHEN THE SUPREME COURT SAW ITSELF AS VERY MUCH IN THE BUSINESS OF STOPPING GOVERNMENT FROM PROTECTING WOMEN WORKERS, PUBLIC SAFETY THROUGH REGULATION. AND THIS, TOO, WAS A HUGE PUBLIC CONTROVERSY IN WAYS I HADN'T REALIZED UNTIL RESEARCHING THE BOOK. THE 1912 PRESIDENT ELECTION WHERE TEDDY ROOSEVELT RAN AGAINST HIS SUCCESSOR AND IT WAS RACE WITH WOODROW WILSON, ALSO TAFT AND, EUGENE V DEBS, ROOSEVELT'S BIG ISSUE WAS TAKING ON THE SUPREME COURT. AND THESE RULINGS ULTIMATELY DOWN ROAD LEADING TO THE CONFLICT BETWEEN FRANKLIN ROOSEVELT AND THE SUPREME COURT. AND THE PROPOSAL THEN TO PACK THE COURT TO EXPAND COURT AND THEN THE THIRD AREA WHERE THE COURT WAS REALLY ACTIVIST AND FACED A BACKLASH WAS THE WARREN COURT. NOW, I THINK OF THAT AS THE COURT'S GREATEST ERA. SO MANY OF THOSE RULINGS ARE EXTRAORDINARILY IMPORTANT AND NECESSARY, LIKE BROWN V BOARD OF EDUCATION. BUT THERE CAN BE NO DOUBT THAT WE ARE LIVING IN THE TO THIS VERY DAY. I THINK TODAY'S COURT WITH ITS RULINGS WHICH I THINK ARE EXTREME AND VERY ACTIVIST AND HAVE A HUGE IMPACT ON PEOPLE MAY WELL PROVOKE A PERIOD OF RESPONSE AND BACKLASH AND POLITICAL ACTIVISM SIMILAR TO THOSE OTHER TIMES. 

JG:  DO YOU THINK THAT THE CURRENT PERIOD WE'RE IN IS DIFFERENT? THOSE THREE EARLIER EPISODES IN WHAT WAYS IS THIS A DEPARTURE FROM THOSE EARLIER ERAS, OR DO YOU JUST SEE IT AS PART OF THAT? A CONTINUUM OF THAT OF THOSE EPISODES? 

MW:  WELL IT'S INTERESTING, ACTUALLY, THE WARREN COURT EXAMPLE, BROWN, THE BOARD OF EDUCATION WAS BROADLY POPULAR IN THE COUNTRY, AND A LOT OF THOSE WARREN COURT RULINGS WERE POPULAR. THERE WERE JUST SO MANY OF THEM AND THEY CAME SO FAST AND THE BACKLASH WAS TO THE 1960S AND ALL THE SOCIAL CHANGES AS MUCH AS ANYTHING ELSE. RIGHT NOW WE'RE IN AN UNUSUAL SITUATION FOR A DEMOCRACY. THE IS MOVING IN ONE DIRECTION PRETTY AND THE COURT IS VEERING SHARPLY IN ANOTHER DIRECTION. WE SAW THIS IN THE THREE BIG RULINGS IN JUNE OF LAST AND JUNE OF 2022, WHERE DECADES OF SOCIAL POLICY GOT CRAMMED INTO THOSE THREE DAYS BY THIS SIX VOTE SUPERMAJORITY OF VERY CONSERVATIVE JUSTICES AND WERE RULINGS WHERE THE PUBLIC, MEASURED AT LEAST BY PUBLIC OPINION AND OTHER THINGS IS VERY MUCH ON THE OTHER SIDE OF ISSUE FROM WHERE THE COURT CAME DOWN. AND ONE OF THE CONSEQUENCES IS WE'VE SEEN PUBLIC SUPPORT FOR THE COURT AND PUBLIC TRUST IN THE COURT COLLAPSE IN POLLS TO THE LOWEST LEVEL EVER RECORDED. 

JG:  WELL, LET'S TALK ABOUT THAT A LITTLE BIT. SOMETIMES PEOPLE SAY WHEN WE'RE DISCUSSING DICTATORS SHIPS OVERSEAS, IT DOESN'T MATTER WHAT PUBLIC OPINION IS LIKE IN THAT COUNTRY BECAUSE THAT'S A DICTATORSHIP AND. THEY DON'T HAVE TO RESPOND TO PUBLIC OPINION. PEOPLE THAT STUDY THE ISSUE WILL OFTEN TELL YOU. 

MW:  WELL, THAT'S NOT TRUE, ACTUALLY. EVEN EVEN A PRETTY SEVERE DICTATOR HAS TO PAY ATTENTION TO WHAT'S HAPPENING ON THE STREET. THE SUPREME COURT. A DICTATORSHIP, OF COURSE, BUT IT'S NOT PURELY DEMOCRAT LIKE IT'S NOT NECESSARILY SUPPOSED TO REPRESENT THE WHIMS OF THE PEOPLE. HOW CONCERNED YOU THINK THEY NEED TO BE ABOUT THE FACT THAT SEVERAL OF THEIR RECENT RULINGS SEEM TO BE ANGERING THE PUBLIC AND OUT OF STEP PUBLIC OPINION? THE SUPREME COURT, WHATEVER IT SAYS, PAYS ATTENTION TO PUBLIC OPINION. IT HAS TO. THE SUPREME COURT ONLY HAS THE POWER THAT IT HAS BECAUSE WE, THE PEOPLE, GIVE IT THAT POWER. IF YOU IF YOU LOOK AT THE CONSTITUTION, THE PART DESCRIBING THE COURTS IS ONLY 1/10 THE LENGTH OF, THE PART DESCRIBING CONGRESS AND THE PRESIDENCY, DEMOCRATICALLY ELECTED AND ACCOUNTABLE BRANCHES. THE COURT HAS GROWN TO ITS PREEMINENT ROLE IN OUR SYSTEM, AT LEAST PART BECAUSE THE PUBLIC AND THE POLITICAL SYSTEM TRUSTS IT TO NOT JUST ACT AS A POLITICAL FORCE, BUT TO BE IN SOME WAYS ABOVE POLITICS TO TO BE A COURT. AND IF IT IS SEEN AS BEING PARTIZAN, AS BEING ACTIVIST, IS JUST CHANGING ITS RULINGS BASED ON WHO'S ON THE COURT RATHER THAN PRECEDENT OR DOCTRINE THAT MAKES SOME SENSE THAT ALL UNDERMINES PEOPLE'S TO GO ALONG WITH WHAT THEY HAVE TO SAY AND INCREASINGLY COURT ITSELF AND REFORM OF THE COURT AND ATTACKS ON THE COURT WILL BECOME A PART OF AMERICAN POLITICS. AND UNDOUBTEDLY, UNDOUBTEDLY, THAT THAT CAN'T BE WHAT THEY HAVE IN MIND. THEY YOU KNOW, THE SUPREME COURT DEPENDS ON THIS AURA OF SILENCE AND REVERENCE. THEY'RE THEY WEAR ROBES. THEY'RE NOT WIZARDS, BUT THEY WEAR THE ROBES AND THEY WANT TO BE SEEN AS A COURT AS OPPOSED TO JUST A POLITICAL BODY. SO THEY UNDERMINE THEIR OWN EFFECTIVENESS IN WHATEVER IT IS THEY'RE TO DO. IF THEY DON'T TAKE THAT SERIOUSLY. 

JG:  YOU MENTIONED THAT THE CONSTITUTION DOESN'T SAY MUCH ABOUT WHAT THE SUPREME COURT OR THE COURTS IN GENERAL ARE SUPPOSED TO DO. IN THE BEGINNING OF THE BOOK, YOU TALK ABOUT THE FACT THAT WE CAME VERY CLOSE TO THE SUPREME COURT, NOT REALLY PLAYING ROLE, THAT WE SEE IT PLAYING TODAY IN DECIDING WHETHER LAWS ARE CONSTITUTIONAL OR NOT. HOW CLOSE DID WE COME TO HISTORICALLY TO THE SUPREME COURT REALLY HAVING THE KIND OF MINIMAL ROLE THAT IT DOES IN A LOT OF OTHER COUNTRIES? 

MW:  WELL, EARLY ON, THE SUPREME COURT WAS VERY WEAK. THEY HAD A HARD TIME GETTING A QUORUM. THEY HAD THREE CHIEF JUSTICES IN THE FIRST DECADE. ONE OF THE JUSTICES WENT TO JAIL TO DEBTOR'S PRISON. AND AS AS YOU KNOW, AND PEOPLE KNOW, INCLUDING HIGH SCHOOL STUDENTS STUDYING AP HISTORY IN MARBURY VERSUS MADISON, ONE OF THE EARLY CASES, THE SUPREME COURT SAID THAT IT HAD THE POWER TO DECIDE WHAT WAS CONSTITUTIONAL. BUT REALLY, FOR DECADES AFTER THAT, IT DIDN'T USE THAT POWER VERY MUCH. DRED SCOTT WAS ONLY THE NEXT TIME THAT A LAW OF CONGRESS WAS DEEMED TO BE UNCONSTITUTIONAL BY THE SUPREME COURT. IT WAS NOT A CENTRAL PLAYER IN THE FIRST MUCH OF THE FIRST CENTURY OF THE COUNTRY, AND THEN IN IN THE YEARS AFTER THAT, IT WAS SEEN AS A IT WAS SEEN AS A REACTIONARY FORCE, AN OBSTACLE TO WHAT THE REST OF THE POLITICAL SYSTEM WANTED TO DO, ESPECIALLY IN THE EARLY 20TH CENTURY. THE SUPREME REALLY GAINED IT ITS ROLE, GAINED ITS IN THE PERIOD IT WAS DEFENDING INDIVIDUAL AND ESPECIALLY GIVEN IMPORTANT ROLE IT PLAYED IN CIVIL RIGHTS. THIS WAS THE FIRST TIME THAT THE COURT SAW ROLE AS BEING NOT JUST TO DEFEND PROPERTY, BUT TO DEFEND RIGHTS AND THAT IN THE END, AS I SAID, CREATED ITS OWN. BUT IT CREATED ALSO A SENSE THAT THE SUPREME COURT WAS NOT NECESSARILY ONE OF THE CO-EQUAL BRANCHES OF GOVERNMENT, BUT SOME WAYS WHAT THE FOUNDERS WERE WORRIED ABOUT, WHICH WAS THAT IT WOULD BE A SUPER LEGISLATURE, THEN IT WOULD BASICALLY BE ABOVE THE OTHER BRANCHES AND MAKING POLITICAL DECISIONS. THERE'S NO REASON TO THINK THAT'S WHAT THEY WANTED BACK THEN, ALTHOUGH THEY WERE AWARE OF IT. SCHOLARS DEBATE ABOUT HOW THEY THOUGHT ABOUT ABOUT ABILITY OF COURTS TO STRIKE DOWN LAWS, ABOUT JUDICIAL REVIEW. BUT IT WAS SOMETHING HAPPENED IN THE STATES AND IT WAS SOMETHING CERTAINLY WERE AWARE. AND A LOT OF THEM THOUGHT IT WAS THE THING TO HAVE. THEY JUST DIDN'T PUT IN THE CONSTITUTION EXPLICITLY. 

JG:  AFTER THE LAST ROUND OF LAST YEAR'S SUPREME COURT DECISION, INCLUDING THE THE DOBBS DECISION ON ABORTION. EVEN BEFORE THAT DECISION, AFTER POLITICO, THE LEAKED DRAFT OF THAT OPINION, WE BEGAN TO SEE PROTESTS AT HOMES OF SOME CONSERVATIVE SUPREME JUSTICES. I THINK IT'S ALWAYS TEMPTING TO THINK THAT THIS IS THE FIRST TIME OR THE WORST TIME SOMETHING LIKE THIS HAS EVER HAPPENED. BUT YOU DISCUSS IN THE BOOK THAT DURING THE WARREN COURT THERE WERE BILLBOARDS ACROSS THE SOUTH AND THE WEST. I THINK SAYING, IMPEACH EARL. THERE WAS A KIND OF BACKLASH THERE THAT WAS VERY PALPABLE. AND AND MAYBE NOT TOTALLY AT THE OF SOCIETY EVEN MIGRATED INTO POLITICS TO A CONSIDERABLE DEGREE. 

MW:  YEAH ONE OF THE LESSONS OF HISTORY IS THAT WHEN THE COURT PROVOKES A BACKLASH, IT CAN BE PRETTY INTENSE AND PRETTY AND CAN NOT ONLY LEAD TO PROTESTS OR BILLBOARDS OR OP EDS, BUT VOTING. WE SAW IT, LIKE I SAID, IN THE 1850S AND 1860S, WITH THE RISE OF THE REPUBLICAN SIGNIFICANTLY IN RESPONSE, THE SUPREME COURT, ABRAHAM LINCOLN. WHEN HE GOT SWORN IN IN HIS FIRST INAUGURAL, SAID, YOU KNOW, THERE ARE SOME PEOPLE BELIEVE THAT THE SUPREME COURT SHOULD DECIDE WHAT THE CONSTITUTION MEANS. WE KNOW THAT'S NOT RIGHT. WE ALL HAVE TO DECIDE THAT THE SUPREME COURT SHOULD LIMIT TO THE FACTS AND THE PARTIES THE CASE IN FRONT OF IT. AND THEN HE THEN HE HAD TO GET SWORN IN BY CHIEF JUSTICE ROGER TAWNEY, THE PERSON WHO THE DRED SCOTT OPINION. AGAIN, THE POLITICS OF THE EARLY 20TH CENTURY, MUCH IT WAS AT LEAST IN PART A PUSHBACK TO THE SUPREME COURT. FRANKLIN ROOSEVELT PRESIDENT ROOSEVELT SAID THAT THE WE'RE LIVING IN THE HORSE AND BUGGY DAYS. THE CRITICS CALL THEM NINE OLD MEN. IT WAS THE IT THE STUFF OF MASS DEBATE AND, MASS MOVEMENTS AND THE WARREN ERA. WE SAW OVER MANY YEARS THE GROWTH, THE RISE OF CONSERVATIVE ACTIVISM IN THE UNITED STATES ON ISSUES LIKE ABORTION AND LIKE GUNS, ALL AIMING CHANGE. WHAT CAME OUT OF THE SUPREME COURT. RIGHT NOW, WE CERTAINLY SEE SIGNS OF SIGNIFICANT POLITICAL IMPACT, A SIGNIFICANT BACKLASH TO THIS COURT. I WOULD SAY YOU SAW IT IN THE MIDTERM ELECTION IN OF 2022, KNOWS YOU KNOW THE PARTY THAT CONTROLS WHITE HOUSE USUALLY DOESN'T DO WELL. JUST AS ONE OF THE LAWS OF POLITICAL GRAVITY. AND IN THAT CASE YOU HAD KIND OF 8% INFLATION LOW THE FUNDAMENTAL WERE NOT GOOD FOR THE DEMOCRATS BUT THE DEMOCRATS HAD THE BEST MIDTERM PERFORMANCE DECADES FOR A PARTY IN CONTROL OF THE WHITE HOUSE. SO MUCH OF WAS A RESPONSE TO DOBBS THE DOBBS CASE, AS WELL AS FEARS DEMOCRACY ON ISSUES LIKE REDISTRICTING. BUT I WOULD EVEN POINT TO SOMETHING MORE RECENT THAN THAT AS POTENTIALLY BETO GAINING A VERY SIGNIFICANT BACKLASH IN APRIL IN, WISCONSIN, THEY HAD A SUPREME COURT ELECTION AND MOST STATES ELECT THEIR SUPREME JUSTICES. WHETHER THAT'S A GOOD THING OR NOT IS A DIFFERENT ISSUE. BUT THEY. AND WISCONSIN AS A STATE IS PRETTY EVENLY POLITICALLY DIVIDED, AT LEAST AMONG THE VOTERS. YOU KNOW, DEMOCRAT AND REPUBLICAN. THERE'S A LOT OF GERRYMANDERING. SO THE LEGISLATURE TILTS MORE IN DIRECTION TO THE REPUBLICANS. BUT VOTERS USUALLY ARE PRETTY CLOSELY DIVIDED. AND THIS TIME IT SWUNG TO IN 11 POINT VICTORY FOR THE MORE LIBERAL CANDIDATE. AND IT WAS A REFERENDUM ON AND ON THE DIRECTION OF THE COURTS. THAT'S REALLY SIGNIFICANT. MEAN POLITICAL SCIENTISTS WILL TELL YOU THAT JUST DOESN'T HAPPEN. AND IF THAT KIND OF THING GETS REPLICATED ELSEWHERE, THAT EARTHQUAKE LEVEL IMPLICATIONS. 

JG:  MICHAEL, YOU KNOW THERE'S THERE'S THE HISTORY WE READ ABOUT IN THE HISTORY BOOKS AND THERE'S THE HISTORY WE LIVE. YOU AND I BOTH SORT GREW UP TO SOME EXTENT THINK IN THE IN THE BILL CLINTON ERA WERE CHIEF SPEECHWRITER FOR BILL CLINTON IN THE WHITE HOUSE. I COVERED THE CLINTON WHITE HOUSE FOR A PERIOD OF YEARS FROM SORT OF THAT PHASE OF THE POLITICS OF THE NINETIES UNTIL REALLY THE DOBBS DECISION. DEMOCRATS HAVE BEEN TRYING TO MAKE AN ISSUE OUT OF THE SUPREME COURT AND THREAT TO REPRODUCTIVE THE THREAT TO THE RIGHTS OF MINORITIES TO VOTE AND A VARIETY OF OTHER ISSUES. AND THEY HAD NOT BEEN VERY SUCCESSFUL WITH IT. WERE YOU SURPRISED BECAUSE OF THAT TRACK RECORD OF THREE DECADES OF NOT HAVING A LOT OF ON THE DEMOCRAT SIDE OF THE EQUATION AND MAKING AN ISSUE OF THE COURT WITH THE TRACTION THAT THOSE ARGUMENTS FOUND, JUST AS YOU WERE JUST MENTIONING OVER THE LAST YEAR, BUT ESPECIALLY IN THE MONTHS, FOLLOWED THE THE DOBBS DECISION, JUNE. 

MW:  WELL, I THINK IT'S NOTEWORTHY AND WE EVEN SAW AN EARLIER CASE IN SEPTEMBER OF 2021 WHERE THE COURT BASICALLY ALLOWED THE STATE OF TEXAS TO BAN THERE AND THERE WAS NOT MUCH OF A PUBLIC RESPONSE. IT TURNED OUT THAT THE MAGIC WORDS OF SAYING WE ARE GOING TO OVERTURN ROE V WADE WAS WHAT CAUGHT PEOPLE'S ATTENTION. I WOULD PROBABLY QUARREL A BIT OR HAVE A DIFFERENT OF SOME OF THE NARRATIVE OF THE PAST SEVERAL DECADES. FOR MOST OF THAT TIME, THE COURT WAS DEFINITELY MORE OF A VOTING ISSUE, MORE OF A RHETORICAL ISSUE, MORE OF AN ORGANIZING ISSUE ON. THE RIGHT THEN AMONG DEMOCRATS, THEN ON THE LEFT, AMONG LIBERALS. YOU KNOW, BILL CLINTON, FOR EXAMPLE, WHEN HE TALKED ABOUT ABORTION HE TALKED ABOUT WANTING IT TO BE SAFE, LEGAL, RARE, WHICH IN A SENSE WAS KIND, REFLECTING THE CASEY RULING THAT THE SUPREME COURT HAD JUST HAD THAT UPHELD ROE V WADE AND KIND OF REAFFIRMED REINFORCED THAT WHAT SEEMED TO BE A CONSENSUS. THERE WAS LESS DRAMA ABOUT THE SUPREME COURT THAN WHAT HAS STARTED TO CHANGE, ESPECIALLY IN THE PAST 13 YEARS OR SO. IS THE ONE PLACE WHERE THE COURT WAS THIS AND I WOULD ARGUE EXTREME BEFORE THIS PAST YEAR WAS ON THE LAW OF DEMOCRACY, WHICH I WORK ON AT THE BRENNAN CENTER FOR JUSTICE GOING BACK TO CITIZENS UNITED IN 2010 AND SHELBY COUNTY IN 2013. CITIZENS UNITED BASICALLY DEREGULATED CAMPAIGN FINANCE, THE UNITED STATES LEADING TO AN INFLUX OF BIG MONEY IN OUR SYSTEM. IN A WAY, WE HAD NOT HAD IN A LONG TIME. AND SHELBY COUNTY STRUCK DOWN THE MOST EFFECTIVE PART OF THE VOTING RIGHTS ACT, THE GREAT CIVIL RIGHTS LAW PASSED BY CONGRESS AND. ON THOSE ISSUES OF DEMOCRACY, I THINK THE COURT'S BEEN PRETTY ACTIVIST. THERE WAS A PRETTY BIG TO CITIZENS UNITED, BUT YOU'RE RIGHT THAT AS A GENERAL MATTER, IT DIDN'T RISE TO THE LEVEL AMONG LIBERALS, AMONG DEMOCRATS. YOU HAD AMONG CONSERVATIVES AND REPUBLICAN ERS AND I THINK WHEN IT COMES TO ABORTION, PART OF IT IS THAT PEOPLE WERE JUST MAYBE, MAYBE IT WAS HARD TO BELIEVE THAT THEY FELT THIS WAY, BUT SUPPORTERS OF ABORTION RIGHTS JUST WERE SURPRISED THAT IT WOULD ACTUALLY HAPPEN, EVEN THOUGH PEOPLE HAVE BEEN SAYING IT FOR A LONG TIME. IT STILL FELT LIKE A SHOCK WHEN THE POLITICO LEAK WAS REPORTED BY YOU AND YOUR COLLEAGUES. IT STILL FELT STARTLING TO A LOT OF PEOPLE, EVEN THOUGH WE HEARD IT FROM TRUMP AND OTHERS, THAT THIS WAS WHAT WAS GOING HAPPEN. YOU HAVE ALEXIS DE TOCQUEVILLE QUOTE IN THE BOOK THAT I THOUGHT WAS PRETTY STRIKING, SAYING THERE'S ALMOST NO POLITICAL QUESTION IN THE UNITED STATES THAT DOES NOT RESOLVE ITSELF SOONER OR LATER INTO A JUDICIAL QUESTION. THAT GOT THINKING ABOUT THE WAY IN WHICH CONSERVATIVES HAVE EMBRACED THE PROCESS OF LITIGATION LAWSUITS OVER THE PAST. COUPLE OF DECADES AFTER GOING THROUGH A PERIOD IN SEVENTIES AND EIGHTIES AND EVEN INTO THE NINETIES WHERE IT WAS FROWNED UPON, ALL SORT OF LITIGATION WAS SORT OF WRAPPED TOGETHER, I THINK WITH TORT FOUGHT LITIGATION AND TO YOUR MATTER TO COURT WAS WAS WAS UPON. 

JG:  DO YOU THINK ROLES HAVE REVERSED HERE ON THE POLITICAL IN THE LAST FEW DECADES DO WE NOW SEE CONSERVATIVES TO WIELD LITIGATION AS A WEAPON AND AND IS THAT PARTIALLY RESPONSE TO THEIR SUCCESS IN GETTING THE SUPERMAJORITY ON THE SUPREME THAT YOU DISCUSS IN YOUR BOOK? 

MW:  I THINK THAT'S A GOOD POINT. I THINK THERE IS SOME TRUTH TO THAT. IT USED TO BE THE CONSERVATIVES WOULD ATTACK THE COURTS FOR BEING ACTIVIST AND THEN OVER TIME THERE WAS QUITE A BIT OF EFFORT THROUGH THE COURTS TO ENACT CONSERVATIVE SOCIAL POLICY THAT THEY COULDN'T GET THROUGH THE LEGISLATURE TO THE SECOND AMENDMENT CASE LAST YEAR IS AN EXAMPLE. THE SECOND AMENDMENT WAS NOT FOUND. THE SUPREME COURT TO PROTECT AN INDIVIDUAL RIGHT TO GUN OWNERSHIP UNTIL 2008 FOR SELF-PROTECTION. BEFORE THAT IT HAD ALWAYS BEEN DEEMED TO TALK ABOUT THE MILITIA WHICH WAS THE OTHER OF THE SECOND AMENDMENT. SO THIS IS REALLY PRETTY RECENT AND WAY THAT GOT CHANGED WAS A LONG TERM CONSTITUTIONAL CAMPAIGN. THE NRA AND OTHER GUN RIGHTS ADVOCATES TO CHANGE HOW THE PUBLIC AND THEN THE COURTS SAW THE SECOND AMENDMENT. THEY STARTED SCHOLARSHIP. THEY SUBSIDIZED SCHOLARSHIP. SOME OF IT GOOD, SOME OF IT KIND OF MADE UP. THEY THEY WON ELECTIONS. THEY PUSHED AND EVENTUALLY THEY WENT TO COURT AND ALL WHICH LED IN THIS LAST TERM TO THE BRUIN CASE, WHICH BY FAR THE MOST RADICAL RULING ON THE SECOND AMENDMENT IN THE COUNTRY'S HISTORY BY THE SUPREME COURT. IT'S NOT EVEN CLOSE. THE HELLER CASE HAD SAID IT'S AN INDIVIDUAL RIGHT, BUT YOU COULD STILL HAVE STRONG GUN LAWS. THAT WAS WRITTEN BY SCALIA AND WAS ASKED, WHAT'S THE DIFFERENCE BETWEEN AND JUSTICE CLARENCE THOMAS? SCALIA SAID, OH, WELL, I AN ORIGINALIST, BUT I AM NOT A NUT. AND THOMAS WROTE THIS OPINION AND IT BASICALLY SAYS THAT WHEN CONSIDERING THE CONSTITUTION OF A GUN LAW IN THE UNITED STATES, YOU CANNOT TAKE INTO ACCOUNT PUBLIC SAFETY. YOU CAN LOOK AT WHAT THEY CALL HISTORY, TRADITION BY WHICH THEY MEAN LAWS FROM THE FOUNDING ERA. IF THERE WAS THE SAME LAW IN THE FOUNDING ERROR, YOU CAN ANALOGIZE IT TO SOMETHING NOW. THEN IT'S OKAY. THIS IS PUTTING AT RISK DOZENS OR MORE OF EXISTING LONG STANDING GUN LAWS ALL ACROSS COUNTRY IN WAYS THAT WE'RE ONLY NOW TO SEE AND THAT PEOPLE, I THINK, WILL SEE THE CONSEQUENCES OF. I THINK THE DOBBS CASE WAS WITH SUCH A BIG HEADLINE MOMENT. IT CAME THE DAY AFTER BRUEN CASE, PROBABLY NOT AS MANY PEOPLE PAID ATTENTION TO THE BRUEN CASE. MAYBE A LITTLE MORE ABSTRACT. BUT THE IMPACT IS PRETTY SIGNIFICANT. AND THE DAY THE BRUEN CASE WAS DECIDED THE DAY THAT LITIGATION CAMPAIGN BY GUN RIGHTS LAWYERS WAS SUCCESSFUL PUBLIC OPINION POLLS SHOWED THAT ONLY 8% OF THE PUBLIC WANTED GUN LAWS LOOSENED. IT'S A OF A LOT OF MASS SHOOTINGS. SOME PEOPLE EITHER WANTED THEM STRENGTHENED OR AS THEY WERE. SO IT WAS VERY DIFFERENT FROM WHERE THE PUBLIC AT THAT MOMENT. 

JG:  BUT IT WAS WHAT THE LAWYERS ON THE RIGHT SUCCEEDED IN GETTING THIS OF SIX VERY CONSERVATIVE JUSTICES TO DO. YOU ALSO TALK IN THE BOOK ABOUT HOW THAT CASE BREWING ILLUSTRATES ONE OF THE PERILS OF THE SUPREME COURT IN ANY ERA, WHICH IS THESE ARE NOT LEGISLATORS. THEY DON'T HAVE SAME SORT OF FEEDBACK MECHANISMS THAT SOMEBODY WHO'S ELECTED TO CONGRESS OR THE SENATE OR TO A STATE LEGISLATURE, EVEN HAS. AND SOMETIMES CAN APPEAR TO BE PERHAPS OUT OF TOUCH WITH REALITY ON THE GROUND THAN. PEOPLE THAT HAVE TO WORK IN DAY TO DAY POLITICS AND ARE MEETING A LOT OF OTHER PEOPLE A REGULAR BASIS. THE THING I HAVE IN MIND IN THE BOOK, YOU TALK ABOUT ALITO'S DISCUSSING THE NEW YORK CITY SUBWAY AS, YOU KNOW, A PLACE WHERE ALL KINDS OF PEOPLE ARE CARRYING GUNS ALL THE TIME. BUT YOU MENTIONED THAT STATISTICS DON'T SEEM TO BEAR OUT THAT THE NEW YORK CITY SUBWAY IS MORE DANGEROUS THAN SAY THAT THE COUNTY, ALITO HIMSELF LIVES IN OR LIVED IN, IN JERSEY.

MW:   YEAH, I ALITO SAID EXACTLY RIGHT. EVERYBODY ON SUBWAYS CARRYING A GUN. WHY SHOULDN'T LAW ABIDING CITIZENS TO CARRY A GUN? AND THE LAWYER FOR NEW YORK STATE WAS SORT OF DUMBFOUNDED THIS BECAUSE, IN FACT, THE SUBWAYS ARE SAFE EVEN NOW. IT'S CERTAINLY FROM GUN VIOLENCE IN YORK CITY COMPARED TO THE REST OF THE IS IS VERY SAFE FROM GUN VIOLENCE. IT WAS AS IF JUSTICE ALITO WAS SORT OF WORKING OFF OF OLD 1970S MOVIE ON A BETAMAX YOU KNOW SHOOT HIM UP IN THE IN THE CITY STREETS. NOW HE, HE OFTEN KIND OF COMES AT THESE, AS I SAY IN THE BOOK, SORT OF LIKE A FOX NEWS PUNDIT, RATHER THAN RELYING ON THE FACTS FRONT OF HIM. BUT THIS IS A PRETTY SIGNIFICANT AND YOU SEE THIS AGAIN OVER AND OVER AGAIN WHERE ON LOT OF THINGS WHERE YOU HAVE LEGISLATORS DOING THINGS WHERE THE COURT WADES, IT OFTEN DOESN'T REALLY GET RIGHT OR IT'S RELYING ON WHAT THE PARTIES ARE TELLING THEM ARE THE FACTS. AND IT TURNS OUT THAT, YOU KNOW, WHEN ONE OR ANOTHER OF THE PARTIES IN THE CASE ARE, YOU KNOW, MAKING THEIR CASE BY SHADING SHADING THE FACTS A LITTLE BIT. WHAT'S INTERESTING IS THAT WAS THE FIRST DAY AND THERE THE DISSENT SAID. WELL, YOU KNOW, THIS IS HUNDREDS AND HUNDREDS OF LAWS PASSED BY STATE LEGISLATURES, BY GOVERNMENT THEY KNOW HOW TO BALANCE THIS STUFF, HOW TO BALANCE GUN RIGHTS AND PUBLIC SAFETY, WHICH IS WHAT WE'VE BEEN DOING AS A COUNTRY FROM, THE BEGINNING AND A KIND OF A DOCTRINAIRE VIEW WAS PUT FORWARD. THE COURT. THE NEXT DAY WAS DOBBS. AND THERE THE TWO SIDES KIND OF SWITCHED ARGUMENTS BECAUSE THERE, OF COURSE YOU HAD THE MAJORITY AND JUSTICE ALITO SAYING, OH, YOU KNOW, THE WONDERFUL DEMOCRATIC PROCESS OF THE STATES, THEY SHOULD BE THE ONES TO MAKE THESE DECISIONS. ALITO DIDN'T SEEM ALL THAT OF THAT, QUITE FRANKLY, THE ARGUMENT, BECAUSE HE CLEARLY IS SO PERSONALLY TO DISTURBED BY ABORTION RIGHTS. BUT THE BASIC ARGUMENT IS THIS SHOULD GO TO THE STATES, TO THE DEMOCRATIC PROCESS. ONE OF THE CHALLENGES THERE TO IS THAT IT'S NOT AS THOUGH THERE'S GOING TO BE NICE, WIDE OPEN, DEMOCRATIC PROCESS IN THESE STATES. A LOT OF THE STATES HAVE LAWS ALREADY ON THE BOOKS GOING BACK OR EVEN CENTURIES THAT WERE IN EFFECT DEFUNCT THAT SPRANG INTO ACTION WHEN THEY MADE THIS RULING. A LOT OF THE STATES, THEY HAVE THE TOUGHEST, THE HARSHEST ABORTION LAWS ALSO HAVE THE MOST SEVERE GERRYMANDERING OR THE OR THE MOST RESTRICTIVE VOTING LAWS. SO DEMOCRACY ITSELF IS CHALLENGED IN THE STATES, EVEN AS WE SEE THIS VERY BIG PUSHBACK WHERE BALLOT INITIATIVES ARE BEING WHERE ELECTIONS ARE BEING WON ON THESE ISSUES. THERE'S AN EFFORT TO TRY TO RESTRICT ROLE OF DEMOCRACY IN RESPONSE TO THAT. 

JG:  A LOT OF YOUR BOOK IS, A CRITIQUE OF THIS SCHOOL OF THOUGHT, THAT HAS BECOME AND MORE POPULAR IN JUDICIAL CIRCLES OVER THE LAST 30, 40 YEARS CALLED ORIGINALISM. YOU KNOW, YOU MENTION IN IN THE BOOK THAT AFTER THAT BRUIN DECISION CAME OUT ON GUN CONTROL. ONE OF THE JUDGES THAT IT FELL TO TO TRY TO INTERPRET THIS THE PHRASE YOU MENTIONED EARLIER, THE HISTORY AND TRADITION WHICH IS CAN KIND OF TRICKY FOR JUDGES. ONE OF THE JUDGES SAID, WELL, MAYBE I NEED HIRE A HISTORIAN TO ASSIST ME IN GOING THROUGH THIS BECAUSE. WE SAW IN THAT BRUIN CASE AND THEN IN THE DOBBS CASE, 

MW:  A PRETTY ROBUST BATTLE ON THE COURT FOR THE INTERPRETING PORTION OF OF HISTORY AND HOW TO TREAT THE VARIOUS MEASURES THAT STATE LEGISLATURES. AND EVEN GOING BACK, I THINK, TO THE COLONIES YOU KNOW HAD TREATED ISSUES LIKE ABORTION OR GUN CONTROL MAYBE IN CASES TRACING ALL THE WAY BACK TO TO ENGLAND HOW SUITED OUR JUDGES TO MAKING THOSE SORTS OF HISTORICAL JUDGMENTS ON BROAD ISSUES LIKE GUNS AND ABORTION. IT'S A CRAZY TO RUN A RAILROAD, IN MY VIEW. IT A RELATIVELY NEW THING. WE HAVE HEARD ABOUT ORIGINALISM, BUT IT REALLY DID NOT BECOME KEY, DOMINANT WAY THE JUSTICES JUSTIFIED THEIR RULINGS UNTIL LAST YEAR, BUT ONLY FOR BIG ORIGINALIST RULINGS IN THE COUNTRY'S HISTORY. THE FIRST WAS DRED SCOTT. IT KIND OF DISCREDITED IT FOR A LONG TIME FOR FOR SORT OF ALL THE OBVIOUS REASONS. THEN CAME HELLER. AND THEN LAST YEAR, THE DOBBS AND BRUIN CASES AND WHAT ORIGINALISM SAYS IS THAT THE ONLY WAY TO INTERPRET CONSTITUTION IS WHAT IT MEANT AT THE TO THE PEOPLE WHO RATIFIED. WHAT THAT MEANS IS, IN MANY INSTANCES TO THE PROPERTY OWNING WHITE MEN OF 1791, SAY AT TIME, OF COURSE, WHEN WOMEN COULD NOT VOTE AT A TIME WHEN BLACK PEOPLE WERE ENSLAVED AND ON AND ON, SOMETIMES TO THE MID 1800S. AND AND THINK THAT ORIGINALISM NOW BEING PUT FORWARD THIS WAY REALLY REVEALS THE PROBLEMS WITH IT. FIRST OF ALL, THE HISTORY IS MESSY. THE HISTORY IS JUMBLED. IT'S LIKE YOU CAN JUST GO BACK IN A TIME AND TAP JAMES MADISON ON THE SHOULDER AND SAY, HEY, WHAT SHOULD WE DO NOW? THE FOUNDERS EXAMPLE DISAGREED WITH EACH OTHER ALL THE TIME ON THINGS. MADISON HIMSELF, YOU KNOW, WE'RE FAMILIAR WITH FEDERALIST TEN, WHICH WAS ONE OF THE FEDERALIST PAPERS IN AN ANONYMOUS OP ED, HE WROTE THAT'S WHAT THEY WERE SAID. WHAT WE'RE REALLY WORRIED ABOUT ARE FACTIONS WE WANT TO AVOID POLITICAL PARTIES AND YOU'LL CERTAINLY HEAR THAT CITED A LOT. WELL, WITHIN A FEW YEARS, HE HAD ORGANIZED POLITICAL PARTY, THE ONE WE NOW CALL THE DEMOCRATS. AND SO MADISON STARTED WRITING ANONYMOUS OP EDS, ALSO ANONYMOUS SAYING, SOME PEOPLE SAY FACTIONS AND PARTIES ARE A BAD THING. THEY DON'T KNOW ANYTHING ABOUT HISTORY. THEY WE'VE ALWAYS HAD POLITICAL PARTIES. I MEAN, IN OTHER WORDS, THE IDEA THAT HISTORY, RELYING ON WHAT THEY THOUGHT BACK THEN IS GOING TO GIVE US A PRECISE ANSWER IS IS A PROBLEM. ANOTHER EXAMPLE OF THAT IS IN THE HELLER CASE SAID, OH, BEAR ARMS, THAT MUST MEAN CARRYING ARMS BECAUSE THE WORD BEAR MEANS CARRY AND THEREFORE IT MUST CARRYING A PISTOL. WELL, SOME SCHOLARS CREATE A DATABASE OF ALL THE WRITINGS FROM THE FOUNDING ERA, AND THEY PUSHED A BUTTON AND THE COMPUTER SAID, NO, ACTUALLY BEAR ARMS MEANS SERVING IN THE MILITARY, LIKE SERVING IN A WELL-REGULATED. THAT'S WHAT IT MEANT BACK THEN. IT CAN BE WRONG. THE HISTORY CAN BE WRONG. BUT ALSO IT CAN BE FLATLY REACTION OR IN ITS IMPLICATIONS. THE IDEA THAT WE TODAY IN 2023 SHOULD BE GOVERNING OURSELVES BY WHAT THEY FOUGHT BACK IN 1791 OR EARLIER IS JUST ODD, AND IT'S NOT HOW. THE COUNTRY HAS ITSELF UP UNTIL NOW. A MODERN, GROWING, THRIVING COUNTRY. THERE IS NO HISTORY AND OF USING JUST HISTORY AND TRADITION TO MAKE CONSTITUTIONAL RULINGS. IT WAS ALWAYS CONSIDERED APPROPRIATE FOR JUSTICES TO THINK ABOUT THE IMPACT OF THEIR RULINGS TO LOOK AT THE FOUNDING. YES. BUT TO ALSO WHAT HAPPENED AFTER THAT AND WHAT HOW THINGS EVOLVED OVER TIME AND HOW OUR UNDERSTANDING OF EQUALITY AND FREEDOM AND HUMAN NATURE. HOW HAS THAT EVOLVED. IT'S TOTALLY THE LEGEND. AND APPROPRIATE WAY TO MAKE AN ENDURING CONSTITUTION. AND THIS NOW SAYS NO THE OF THE CONSTITUTION AS THE COURT RULED IS QUOTE FIXED AND IT WAS FIXED IN THE 1700S. THAT IS MASSIVELY IF APPLIED TO UNDO LAWS GOING BACK ONE OR TWO CENTURIES AS THESE RULINGS DID. ONE OF THE JUSTICES OF THE SUPREME COURT, WHO HAPPENS TO BE ONLY ONE, IS A FORMER COLLEAGUE OF YOURS IN THE CLINTON WHITE HOUSE. ELENA KAGAN SAID A FEW YEARS AGO, WE'RE ALL ORIGINALISTS NOW, SEEMING TO ACKNOWLEDGE HOW ORIGINALISM, WHICH WAS ONCE A FAD, HAD SORT OF BECOME THE PREVAILING FRAMEWORK FOR, NOT JUST CONSERVATIVES, BUT EVEN LIBERALS IN THE JUDICIARY, TO INTERPRET THE CONSTITUTION. AND I THAT THERE WAS A PANEL RECENTLY AT THE AMERICAN CONSTITUTION SOCIETY, A LIBERAL COUNTERPART TO THE FEDERALIST SOCIETY, SAYING ARE NOT ALL ORIGINALISTS. 

JG:  DO YOU THINK I TAKE IT FROM THE BOOK THAT YOU YOU HAVE SOME QUARREL WITH THE NOTION THAT WE SHOULD BE USING AN ORIGINALIST FRAMEWORK, EVEN THOUGH THERE ARE LIBERALS WHO TRY TO THEIR AGENDA NOW BY FRAMING ARGUMENTS IN ORIGINALIST TERMS? 

MW:  YES, I THINK IT'S IT'S AN IMPORTANT MOMENT, AN IMPORTANT TURNING POINT FOR LIBERALS WHEN FACED WITH A COURT CLAIMING ANY WAY TO MAKE DECISIONS THIS WAY. AND TO BE CLEAR, I THINK THESE JUSTICES ARE ORIGINALIST BECAUSE IT'S CONSERVER TIME. THEY'RE NOT CONSERVATIVES BECAUSE IT'S WHAT'S DEMANDED BY ORIGINALISM. BUT NEVERTHELESS, ON GUNS OR OTHER THINGS, ONE HAS LITTLE CHOICE, BUT SOMETIMES MAKE THESE KINDS OF ARGUMENTS USING THESE HISTORICAL TERMS. BUT MORE I THINK IT'S BEEN A FAILURE ON THE PART OF LIBERALS, AND I COUNT MYSELF AS ONE OF THEM TO NOT TAKE THIS ON TO NOT TAKE THIS ON DIRECTLY AND TO NOT HAVE A DIFFERENT A BETTER WAY OF TALKING ABOUT THE CONSTITUTION. IT WAS IT WAS PAINFUL AT TO WATCH JUSTICE KUTIGI BROWN JACKSON'S CONFIRMATION HEARING. SHE WAS SO IMPRESSIVE. BUT SHE TESTIFIED THE MEANING OF THE CONSTITUTION IS FIXED AND. I WILL ONLY ENFORCE THOSE UNENUMERATED RIGHTS THAT ARE QUOTE DEEPLY ROOTED IN HISTORY AND TRADITION AND THE CONSERVATIVE OF LAWMAKERS WERE ENDLESSLY ABOUT ORIGINALISM. ARE YOU AN ORIGINALIST? THEY THEY DO THIS WITH ALL THESE NOMINATIONS AND ALL THESE CONFIRMATION HEARINGS. AND THE DEMOCRATS, IN MY VIEW, TOO, OF THE TIME, SAY SOME VERSION OF. WELL, TELL ME ABOUT YOUR VALUES, ME, ABOUT YOUR FAMILY AND, THAT KIND OF THING. AND DON'T ENGAGE IN THE BATTLE OF IDEAS ON THIS. AND I THINK THAT'S BEEN SOMETHING OF A ONE SIDED ARGUMENT. I URGE SENATORS, I URGE, PRESIDENT BIDEN, I URGE ANYBODY WITH A BIG PUBLIC MEGAPHONE TO NOT BE SILENT ABOUT THIS, BECAUSE I DO THINK THAT. THE IDEA THAT THE SUDDENLY NOW HAS TO BE GOVERNED BY AGAIN, THE SOCIAL VALUES OF PROPERTY OWNING WHITE MEN FROM, THE LATE 1700S IS FRANKLY RADICAL AND I THINK THAT PEOPLE GET WHY THAT IS NOT A GOOD IDEA OR A YOU KNOW WHEN AS AS YOU PERHAPS RECALL WHEN POLITICO PUBLISHED THE DUBS DRAFT DECISION THE WEEKEND AFTER SAYING I LIVE THIS SKETCH AND ONE OF THE THINGS THAT WAS SO STRIKING PEOPLE IN THAT BOTH IN THE DRAFT BUT IN THE FINAL RULING WAS THAT ALITO'S OPINION CITED SIX TIMES A GUY NAMED MATTHEW HALE, WHO IS A BRITISH JURIST BRITISH. THEY WEREN'T BRITAIN YET AN ENGLISH JURIST FROM THE 1500S, I BELIEVE HE HAD SENTENCED WOMEN TO DEATH FOR WITCHCRAFT, AND HE HAD INVENTED THE DOCTRINE OF MARITAL RAPE, WHICH IS THAT A HUSBAND COULD NOT EVER BE OF RAPING HIS WIFE. AND THE OPINION CITED MATTHEW SIX TIMES AND NIGHT LIVE HAD, A SKETCH WHERE PEOPLE WERE IN PERIOD COSTUME SAYING WE HAD THIS NAILED BACK THEN, YOU KNOW, AND I'M SURE MOST OF THE AUDIENCE THOUGHT IT WAS JUST A PARODY, BUT IT WASN'T FAR FROM THE ACTUAL WAY THE OPINION WRITTEN. JUST WHILE WE'RE ON THE SUBJECT OF DOBBS, YOU ALSO TALK A BIT IN THE BOOK ABOUT ONE OF THE MOST SORT OF AWKWARD, LOGICAL PARTS OF THIS DECISION WRITTEN BY JUSTICE ALITO, WHICH IS WHERE THEY DISCLAIM ANY IMPACT OF THIS THEORY ABOUT HISTORY AND TRADITION ISSUES LIKE GAY RIGHTS, CONTRACEPTION, EVEN INTERRACIAL MARRIAGE. AND THEY TRY TO ASSURE PUBLIC THAT EVEN THOUGH THEIR DOWN ROE VERSUS WADE IN THE ENDING, THE FEDERAL CONSTITUTIONAL RIGHT TO ABORTION AFTER ABOUT A HALF A CENTURY THAT THOSE OTHER RIGHTS ARE SECURE. AND BASICALLY THEY SAY THEY'RE SECURE BECAUSE WE SAY SO WHAT WAS YOUR REACTION TO THAT? AND IN PARTICULAR OR WHAT DO YOU MAKE OF THE FACT THAT JUSTICE CLARENCE THOMAS, WHO SIGNED ON BECAUSE IT WAS A FIVE VOTE MAJORITY OPINION, BUT THEN WROTE SEPARATELY, SUGGESTING THAT THOSE VARIOUS RIGHTS SHOULD BE REOPENED AND REEXAMINED, AT LEAST TO SEE IF THEY MAYBE SHOULD BE BASED ON SOMETHING ELSE OTHER THAN A RIGHT TO PRIVACY. WELL GIVE CREDIT IN THAT INSTANCE GUESS TO JUSTICE THOMAS FOR BEING CLEAR AND UNAMBIGUOUS THE LOGICAL IMPLICATIONS OF WHAT WAS THE MAJORITY OPINION. YOU DESCRIBED IT WELL. THE ORIGINAL ROE VERSUS WADE RULING ON THE RIGHT TO PRIVACY WHICH WAS WHICH WAS A RIGHT FOUND TO BE IN THE CONSTITUTION BY THE SUPREME COURT, STARTING WITH IN A CASE CALLED. AND WHICH WAS THE BASIS OF THAT INITIAL THAT INITIAL ROE V WADE RULING IN 1973. OVER THE YEARS PEOPLE WHATEVER THE ORIGINAL AND THAT GOT CRITICIZED A LOT INCLUDING BY PEOPLE LIKE RUTH BADER GINSBURG WHO JUST DIDN'T THINK THE RIGHT TO PRIVACY SUCH A STRONG BASIS FOR IT. BUT FIRST OF ALL, IT WAS ON THE BOOKS FOR HALF A CENTURY. IT BECAME PART OF THE FABRIC OF AMERICAN LIFE. IT BECAME DEPENDED UPON BY WOMEN FOR ALL TIME. AND ALSO THERE WERE LATER RULINGS SUCH AS THE CASEY RULING THAT DIDN'T REALLY ON THAT RIGHT TO PRIVACY AS MUCH. BUT BUT ON OTHER THINGS AS WELL. SO IN THE DOBBS RULING, THEY REALLY WENT AFTER ROE QUITE A BIT AND THEY WENT AFTER ITS USE OF THE RIGHT TO PRIVACY. AND THEY SAID, OH, BUT DON'T WORRY THESE OTHER THINGS THAT ARE PROTECTED AS WE'VE INTERPRETED THE CONSTITUTION. THE RIGHT TO USE CONTRACEPTION. THE RIGHT TO BE IN A SAME SEX. THE RIGHT TO SAME SEX MARRIAGE, ALL THESE OTHER THINGS. DON'T WORRY, THEY'RE FINE. AND IT HAD THE TONE OF. NICE, RIGHT TO PRIVACY. YOU'VE GOT THEIR PITY IF SOMETHING SHOULD HAPPEN TO IT. BECAUSE, AS YOU SAY, THERE WAS NO REAL BIG LOGICAL DISTINCTION MADE BETWEEN WHY, WHY ABORTION RIGHTS REALLY DIFFERENT THAN THESE OTHER THINGS. AND OF COURSE, JUSTICE THOMAS SAID NO, YOU CAN'T MAKE THIS RULING AND NOT ALSO CALL INTO QUESTION VERY MUCH THESE OTHER. HE KIND OF DID LEAVE ONE OUT. IT WAS NOTED PUBLICLY AT THE TIME THE RULING BY THE SUPREME COURT CALLED LOVING VERSUS VIRGINIA, WHICH SAID THAT HAVE A RIGHT TO INTERRACIAL MARRIAGE, WAS NOT ON HIS LIST AND A JUSTICE. THE CONNECTICUT SUPREME COURT, WHO IS HIMSELF IN THE SAME SEX MARRIAGE SAID, I SEE THAT YOU HAD A LOT TO SAY ABOUT LOVING MARRIAGE, BUT NOTHING ABOUT YOUR LOVING MARRIAGE. SO USING THE PUN FOR THE NAME THE CASE. SO, YOU KNOW, THOMAS, HAS BEEN VERY INFLUENTIAL ON THIS COURT, VERY INFLUENTIAL ON THE LOWER COURTS. HE HAS UNTIL NOW BEEN OUTLIER. HE'S BEEN CONSIDERED BY FAR THE MOST EXTREME OF THE JUSTICES, BUT HIS APPROACH NOW IS DOMINANT. HE IS POINTING THE WAY, PERHAPS FOR OTHER RULINGS TO COME. 

JG:  DO YOU THINK THOSE RIGHTS ARE REALLY IN JEOPARDY? I MEAN, DOESN'T IT SEEM RATHER THAT A JUSTICE OTHER THOMAS WHO VOTED FOR THAT MAJORITY OPINION DOBBS WOULD REVERSE HIM OR HERSELF SAY ON THE QUESTION OF SAME SEX MARRIAGE ANY TIME IN THE FORESEEABLE FUTURE? OR YOU REALLY THINK THAT COULD THAT COULD TRANSPIRE IN THE NEXT FIVE OR TEN YEARS? 

MW:  I THAT ONE OF THE THINGS ABOUT THE OBERGEFELL CASE, WHICH WAS THE CASE WHERE THE COURT RECOGNIZED THE RIGHT TO SAME SEX MARRIAGE THAT'S SIGNIFICANT IS THAT THE COUNTRY IT BEFORE THE COURT DID. AT THE TIME OF THAT RULING SUPPORT SAME SEX MARRIAGE WAS ABOUT 60% AND NOW I THINK IT'S UP TO CLOSE TO 80%. I THINK THERE'S BEEN A VERY BROAD, BIG SOCIAL CHANGE AND THAT MAY PROTECT IT. I CERTAINLY WOULD BE HAVE BEEN SURPRISED TO SEE THAT HAPPEN. BUT I'VE ALSO BEEN SURPRISED BY THE GROWING INTENSITY, QUITE FRANKLY, OF ATTACKS ON PEOPLE AS A POLITICAL MATTER IN RECENT MONTHS, IN THE PAST FEW YEARS, IN A WAY WE HAVE NOT SEEN IN A LONG TIME. IT'S DISTURBING. AND, YOU KNOW, IT'S KIND OF HARD TO KNOW WHERE IT ALL GOES. I MEAN, THERE CERTAINLY ARE SOME PEOPLE, SOME SENATORS WHO SAY, WELL, NOW YOU'VE GOT TO ADDRESS SAME SEX MARRIAGE. I THINK THAT IF THE PUBLIC YELLS ENOUGH, THE COURT WON'T DO IT. I THINK THAT THERE IS ALWAYS A BACK AND FORTH. THE COURT AND THE PUBLIC. THIS COURT IS VERY PROUD OF NOT LISTENING TO. THE PUBLIC, THEY THINK THAT WORRYING ABOUT WOULD BE CRASS AND POLITICAL AS THEY'VE DESCRIBED IT. BUT ONE HAS TO ASSUME THAT THE LOUDER THEY SAY THAT THE MORE NERVOUS MAYBE THEY ARE. 

JG:  YOU CURRENTLY RUN SOMETHING CALLED THE BRENNAN CENTER UP IN NEW YORK AT NEW YORK UNIVERSITY. THAT'S ACTIVE IN VOTING LITIGATION AND PRIVACY IN A OF OTHER AREAS I THINK YOU WOULD DESCRIBE YOU DO DESCRIBE YOURSELF IN THE BOOK AS A LIBERAL OR PROGRESSIVE. YET YOU'RE TALKING ABOUT THAT WARREN COURT ERA IS SORT OF THE HIGH WATERMARK FOR PROGRESSIVE THOUGHT AND ACTION ON THE SUPREME COURT AND PERHAPS MORE BROADLY IN IN FEDERAL COURTS. YOU THAT THE WARREN COURT GOT SWEPT UP IN THE EXCESSES OF THE. I'M A LITTLE BIT SURPRISED TO SEE SOMEBODY WHO CONSIDERS HIMSELF A LIBERAL SAY THAT WHAT PROMPTS YOU TO SAY THAT THE WARREN COURT WENT FAR IN SOME AREAS? 

MW:  WELL, I THINK OF THE WAYS ENACTED NOT NOT SO MUCH THE OUTCOMES, BUT YOU KNOW, THE GRISWOLD CASES IS CRITICIZED, FOR EXAMPLE. I THINK THAT'S WHERE I WAS TALKING ABOUT THAT, THAT IT RELIED ON PENUMBRA AS AN EMANATIONS AND THINGS OF THAT NATURE. I THINK A LOT OF THE RULINGS FROM THE WARREN COURT WERE ABSOLUTELY ESSENTIAL, ESPECIALLY WHERE THE DEMOCRATIC SYSTEM WAS BROKEN OR, ENTRENCHED, OR WHERE, FOR EXAMPLE, WHITE HAD LOCKED ITSELF INTO POWER IN THE SOUTH AND AS WAS THE CASE IN IN THE SEGREGATION. ANOTHER CASE I THOUGHT THEY WERE ABSOLUTELY RIGHT DOING WAS THE ONE PERSON, ONE VOTE CASES, WHICH WHICH DECREED EQUAL LEGISLATIVE REPRESENTATION AT THE TIME. MASSIVE MAL APPORTIONMENT GERRYMANDERING. I THINK THE ISSUE WITH THE WITH THOSE COURTS IS THAT OVER TIME AND EVEN WARREN LEFT THE COURT AND IN THE BERGER COURT ERA THERE WERE SO CHANGE COMING OUT OF THE COURT AT SUCH A RAPID PACE THAT YOU STARTED TO SEE A BACKLASH THAT MIGHT NOT HAVE BEEN THERE. I TALK IN THE IN THE COURT IN THE BOOK, FOR EXAMPLE, ABOUT A RULING THE SUPREME COURT PUT A HOLD ON THE DEATH PENALTY, THE USE OF THE DEATH PENALTY BEEN DECLINING VERY DRAMATICALLY IN THE UNITED. THEN THE SUPREME COURT GOT INVOLVED. THEN THE THEN THE OPPONENT SAID, AHA UNELECTED JUDGES ARE DOING THIS. AND QUICKLY, STATES ALL OVER THE COUNTRY PASSED NEW DEATH PENALTY LAWS. SO I'M NOT PASSING JUDGMENT ON THE OUTCOME OF THE WARREN COURT BECAUSE OF COURSE, I LIKE SO MANY OF THOSE. BUT I THINK THAT THE REACTION OVER TIME WAS, WAS STRONG. THE OTHER THING TO REMEMBER, I THINK THE WARREN ERA HAD A KIND OF BEDAZZLING ON DECADES OF LIBERAL THOUGHT AFTERWARDS. THAT WAS A HALF A CENTURY AGO OR MORE. AND UNTIL RECENTLY, DESPITE CITIZENS UNITED, DESPITE SHELBY COUNTY, DESPITE ALL THE OTHER CONSERVATIVE RULINGS, THIS COURT SUPPORT IN THE POLLS FOR THE SUPREME COURT AMONG DEMOCRATS WAS FAR STRONGER THAN SUPPORT AMONG REPUBLICANS UNTIL. I THINK ABOUT TWO YEARS AGO. THERE'S A LOT OF REASONS FOR, BUT SOME OF THAT IS JUST A GENERATIONAL. A GENERATIONAL GLOW, I WOULD GUESS. 

JG:  I WANT TO DISCUSS A COUPLE AREAS OF WHAT YOU THINK WOULD BE GOOD RESPONSE TO THE ATWOOD YOU DESCRIBE AS IDEOLOGICAL CAPTURE OF THE SUPREME COURT BY ONE PARTICULAR FACTION. LET'S FOR A MOMENT ABOUT THE SUPREME COURT ITSELF. YOU WERE ON PRESIDENT BIDEN'S COMMISSION ON POTENTIAL COURT REFORM. WHAT DO YOU THINK IS APPROPRIATE OR WOULD BE A GOOD IDEA? AND WHAT DO YOU THINK WOULD NOT BE A GOOD IDEA TERMS OF TRYING TO ADDRESS THIS THROUGH REFORM TO THE COURT ITSELF? 

MW:  SO I THINK YOU'RE RIGHT, THAT ONE AREA WHERE IS AMPLE ROOM FOR ACTION IS REFORM OF THE SUPREME COURT ITSELF. AND AGAIN THIS HAS BEEN THE KIND OF THING PEOPLE HAVE TALKED ABOUT IN EARLIER AREAS AS WELL. FOR EXAMPLE I THINK THAT NO PERSON IS WISE, THAT THEY SHOULD BE THE JUDGE IN THEIR OWN CASE. SO THE SUPREME COURT SHOULD HAVE A BINDING ETHICS CODE JUST THE SAME AS ALL OTHER COURTS DO, AND A, THE REASONS ARE SORT FAIRLY OBVIOUS. WE SEE THEM MOST RECENTLY THE CONTROVERSIES OVER THE SUBSIDIZING OF CLARENCE THOMAS'S LIFESTYLE, ALL BY CONSERVATIVE BILLIONAIRE DONOR. BUT THERE ARE MANY OTHERS AS WELL. IT'S A BASIC THING TO HAVE A BINDING CODE OF ETHICS. I THINK CONGRESS COULD ENACT IT, BUT THE COURT COULD TOO. AND I HOPE IT DOES. I THINK AND THIS IS SOMETHING WE DISCUSSED AT IN THE PRESIDENTIAL COMMISSION ON THE SUPREME COURT, I THINK THERE OUGHT TO BE TERM LIMITS FOR JUSTICES, AN 18 YEAR TERM, MAYBE COUPLED WITH REGULAR APPOINTMENTS SO THAT EACH PRESIDENT GETS TO MAKE A NOMINATION EVERY TWO YEARS. THAT'S ON THE IDEA THAT NO PERSON HAVE THAT MUCH POWER FOR LONG AND IT REFLECTS IN SOME WAYS THE WISDOM THAT GEORGE WASHINGTON HAD WHEN HE LIMITED TO TWO TERMS. INTERESTINGLY, EVERY SUPREME COURT OF THE STATES BUT ONE HAS A TERM LIMIT OR AN AGE RETIREMENT AGE AS THE CONSTITUTIONAL COURTS OF OTHER COUNTRIES. AND IT'S INTERESTING, THERE'S ACTUALLY A VERY WIDE SUPPORT FOR THIS, THE POLITICAL SPECTRUM. YOU MENTIONED THIS COMMISSION, YOU THESE GOVERNMENT COMMISSIONS ARE SORT OF NOTORIOUS FOR FOR BEING A SUBSTITUTE FOR ACTION. AND IN THIS CASE, WE WERE ACTUALLY INSTRUCTED PUBLICLY NOT TO REACH CONCLUSIONS BEFORE WE STARTED OUR WORK. SO, YOU KNOW, AND WE THIS WAS A GOVERNMENT COMMISSION THAT WORKED AS INTENDED. FINALLY. BUT SOMETHING REALLY INTERESTING HAPPENED. WE HEARD FROM DOZENS OF PUBLIC WITNESSES FROM LEFT AND RIGHT. AND THEY HAD ALL DIFFERENT OPINIONS ON ALL DIFFERENT KINDS OF THINGS. SOME SAID I'M FOR COURT EXPANSION, SAID I'M AGAINST IT. SOME SAID I'M FOR AN ETHICS CODE, OTHERS STANDING AGAINST IT ONE AFTER ANOTHER. THE WITNESSES SAID, OH, BUT I'M FOR TERM LIMITS. OF COURSE THERE IS A NATIONAL CONSENSUS ON THIS. NOW I HAVE NO ILLUSIONS THAT IF THINGS STARTED ACTUALLY MOVING, YOU KNOW, IT WOULD GET MORE POLARIZED. COULD IT HAPPEN? WELL, CERTAINLY IT BE DONE BY A CONSTITUTIONAL AMENDMENT. I THINK IT COULD BE DONE AS WELL BY STATUTE. BUT ONE WAY OR THE OTHER, I THINK THERE'S A STRONG CHANCE SOMETHING LIKE THIS WILL HAPPEN. I THINK IT SEEMS LIKE COMMON SENSE. A LOT OF PEOPLE IN THE BOOK I'M I PUT OUT SOME PRETTY STRONG CAUTIONS, AT THE VERY LEAST, TO THOSE WHO JUST WANT TO EXPAND THE COURT, YOU KNOW, WHO SEE, FOR EXAMPLE, MERRICK GARLAND, SEEN AS HAVING BEEN STOLEN, WHICH I KIND OF AGREE WITH WHEN MITCH MCCONNELL AND THE REPUBLICANS THE SENATE WOULD NOT CONSIDER ANY NOMINATION. PRESIDENT OBAMA OR WITH AMY CONEY BEING RUSHED THROUGH AS IT WAS JUST DAYS, THE ELECTION WHEN EARLY VOTING HAD ALREADY STARTED. 

JG:  A LOT OF LIBERALS, AS YOU KNOW, AND DEMOCRATS SAY WE WANT TO EXPAND THE COURT IT'S CERTAINLY CONSTITUTIONAL TO DO IT, CERTAINLY LEGAL TO DO IT THE COURT HAS BEEN CONGRESS HAS EXPANDED OR CONTRACTED THE SIZE THE SUPREME COURT BEFORE. 

MW:  I DO CAUTION THAT, FIRST OF ALL, YOU COULD VERY QUICKLY GET A RETALIATORY SPIRAL WHERE DEMOCRATS HAD FIVE, THEN THE REPUBLICANS HAD FIVE. AND PRETTY SOON YOU WOULDN'T BE ABLE TO FIT THE JUSTICES IN THE COURTROOM. BUT BUT EVEN MORE THAN THAT, I THINK THERE'S A KIND OF A HIDDEN POTENTIAL OR BACKLASH TO THAT IDEA. WE SEE IT ALMOST ON THE STREETS OF TEL IN THE RESPONSE TO THE JUDICIAL MOVES. THERE. FDR, FRANKLIN ROOSEVELT, WHEN THE SUPREME COURT HAD STRUCK DOWN. SO MANY OF THE NEW DEAL AGENCIES AT A TIME WHEN THE COUNTRY WAS IN A CRISIS, AND WHEN A THIRD OF THE COUNTRY WAS UNEMPLOYED, THEY STRUCK DOWN. SO OF THE FIRST NEW DEAL AND THEY WERE GETTING READY TO GO AFTER THE SECOND NEW DEAL. THEY WERE GETTING READY TO RULE ON SOCIAL SECURITY IN LABOR LAWS. ROOSEVELT HAD JUST WON BIGGEST ELECTORAL VICTORY IN. THE COUNTRY'S HISTORY UP UNTIL THAT POINT. AND HE HAD 70% OF THE SENATE WAS HIS PARTY. AND HE FOUND IT UNEXPECTED HIDDEN. BUT VERY PASSIONATE OPPOSITION. SO I THINK THAT TERM LIMITS IS WHAT I'M FOCUSED ON. I THINK THAT THERE IS A WAY TO MAKE THE COURT BETTER ALIGNED WITH COUNTRY WITHOUT UNDERMINING BEING SEEN TO UNDERMINE AT LEAST WITHOUT BEING SEEN TO UNDERMINE ITS INDEPENDENCE. AND THAT'S WHAT WE'RE FOCUSED ON. THAT SUPREME COURT COMMISSION. JUST BRIEFLY, MICHAEL, JUST BEFORE IT PRODUCED ITS FINAL REPORT, WHICH, AS YOU MENTIONED, DIDN'T TAKE FIRM POSITIONS ONE WAY OR THE OTHER. TWO OF THE CONSERVATIVES ON THE PANEL. DO YOU KNOW WHY THEY THEY QUIT. THEY QUIT OR MUCH EARLIER THAN THAT THAN. I DON'T KNOW WHY. I DON'T. IT WAS I MAY BE WRONG, BUT I WASN'T UNDER THE IMPRESSION IT WAS SOME BIG IDEOLOGICAL. THERE WERE PLENTY OF CONSERVATIVES ON, THE COMMISSION. I'VE GOT A BILL CLINTON HISTORY QUESTION FOR YOU. YOU TALK A BIT IN THE BOOK ABOUT BILL CLINTON'S EFFORTS TO PUT A POLITICAL ONTO THE SUPREME COURT. IT WASN'T JUST SORT OF A FLIGHT OF FANCY. HE REALLY SERIOUSLY TRIED TO GET GOVERNOR MARIO OF NEW YORK TO TAKE THE JOB. HE TRIED TO GET SENATOR GEORGE MITCHELL OF MAINE AND BRUCE BABBITT TO ALSO GET ON THE COURT, WASN'T SUCCESSFUL IN REALLY PERSUADING ANY OF THEM. THEN WE HAD THE NOMINATIONS OF OF RUTH GINSBURG AND STEPHEN BREYER. WHY DID CLINTON WANT TO HAVE A POLITICIAN ON THE COURT? IT'S A REALLY INTERESTING THAT I THINK A LOT OF FOLKS DON'T KNOW ABOUT THE EVOLUTION OF THE COURT TO ITS CURRENT POINT. FOR MOST OF THE COUNTRY HISTORY, THE PEOPLE WHO SAT ON THE U.S. SUPREME COURT WERE EMINENT PUBLIC. FORMER GOVERNORS, FORMER SENATORS, FORMER ATTORNEY GENERALS, A FORMER PRESIDENT OF THE UNITED STATES. NOW, ALL BUT ONE OF THEM IS A FORMER COURT OF APPEALS JUDGE. IT IS A MUCH MORE TECHNICAL, MUCH MORE NARROW, MUCH MORE LEGAL SET OF LIFE EXPERIENCES. YET THEY HAVE SO MUCH POWER OVER ALL OF OUR LIVES. BILL CLINTON, WHO YOU, AS YOU KNOW, WAS A GREGARIOUS SCHMOOZING POLITICIAN, BUT ALSO HAD GONE TO A TOP, TOP LAW SCHOOL. HE THOUGHT HE THOUGHT THAT A PROBLEM WITH THAT, HE THOUGHT IT WAS IMPORTANT TO HAVE PEOPLE WITH LIFE EXPERIENCE, DEALING WITH REAL LEADERSHIP OR REAL PROBLEMS OF THAT NATURE ON THE. AND YOU'RE RIGHT TRIED HARD TO APPOINT. FIRST MARIO CUOMO WHO FROZE WITH INDECISION. THEY CALLED HIM HAMLET ON THE HUDSON. AND THIS WAS A GOOD EXAMPLE OF IT, WHERE CLINTON REALLY TRIED GET HIM TO GO ON THE COURT. AND FINALLY HE SAID, NO. BRUCE BABBITT, WHO HAD BEEN THE GOVERNOR OF ARIZONA, WIDELY RESPECTED. THAT IDEA, GOT DROPPED BECAUSE OF FIGHTING BETWEEN ENVIRONMENTALISTS AND WESTERN SENATORS OVER WHO WOULD REPLACE BABBITT AS INTERIOR SECRETARY, WHICH IS KIND OF AN AMAZING THING WHEN YOU THINK OF THE IMPACT OF A LONG TERM SEAT ON THE COURT. AND MITCHELL, WHO WAS SO WIDELY ESTEEMED AND HAD BEEN A FEDERAL JUDGE BEFORE HE, WAS A SENATOR AND THEN WAS THE DEMOCRATIC LEADER. CLINTON TRIED AND GAVE AND APPOINTED RUTH BADER GINSBURG AND STEPHEN BREYER AND, YOU KNOW, WAS WAS, I THINK, PROUD OF HIS APPOINTMENT. BUT THEY ALSO CAME OUT OF NOT ELECTED POLITICS, NOT IN EITHER HAD EVER RUN A GOVERNMENT AGENCY OR ANYTHING LIKE THAT. AND I THINK THAT THAT IS THE SITUATION WE'RE RIGHT NOW, WHERE THERE'S VERY FEW PEOPLE ON THE COURT WHO HAVE MUCH SIGNIFICANT EXPERIENCE AT ALL. 

JG:  I'M WONDERING IF YOU THINK THAT AS HAVING A SUPERMAN AUTHORITY ON THE COURT AUTOMATICALLY POLARIZED AND I'M THINKING IN PARTICULAR SOME OF THE COMMENTS THAT JUSTICE KAGAN MADE PUBLICLY LAST SUMMER FOLLOWING DOBBS DECISION, BUT OBVIOUSLY THESE OTHER DECISIONS IN SHE ALMOST RIDICULED OTHER PUBLIC STATEMENTS BY THE WHERE THEY TALK ABOUT THEIR RITUALS YOU KNOW THAT TEND TO ARE SUPPOSED TO ENCOURAGE DISCUSSION AND FRANKNESS LIKE THAT THEY HAVE LUNCH THEY DON'T TALK ABOUT THE CASES AND THEY MAKE SMALL TALK ABOUT THEIR FAMILIES AND SPORTS AND SO FORTH.

MW:   AND SHE SAID THAT IT WAS GREAT THAT THE JUSTICES COULD DO THAT. BUT IF THEY'RE NOT I'M PARAPHRASING HERE IF THEY'RE NOT ACTUALLY LISTENING TO WHAT EACH OTHER IS SAYING ABOUT, THE WORK THAT THEY'RE SUPPOSED TO DO. SHE DIDN'T FIND THE FACT THAT THEY DISCUSSED GRANDCHILDREN TO BE A PARTICULAR MOMENT TO THE PUBLIC. HAVE THERE BEEN TIMES THE COURT WAS POLARIZED, BUT THERE WAS STILL DISCUSSION BACK AND FORTH? DOES IS THERE SOMETHING ABOUT THE SUPERMAJORITY THAT TENDS TO SHUT DOWN DEBATE DIALOG ON THE COURT AND LEAD TO STRIDENT DECISIONS? LOOK WHAT, WE KNOW, ESPECIALLY FROM HISTORY IS THAT THERE HAVE BEEN OTHER TIMES WHERE THERE'S BEEN TREMENDOUS DIVISION ON THE COURT. ONCE THE COURT WAS LIKENED TO NINE SCORPIONS IN A BOTTLE. NOW THE SCORPIONS ARE KIND OF CRAWLING ALL OVER THE TABLE BECAUSE THEY'RE AIRING SO OF THEIR DISAGREEMENTS IN PUBLIC. THERE WERE MANY TIMES IN THE PAST WHERE THERE WAS INTENSE DEBATE AND DISAGREEMENT, WHERE ONE JUSTICE WAS SO POUNDED ON BY ANOTHER DURING NOT LITERALLY BUT VERBALLY DURING THE DEBATES, THE ONE PERSON, ONE VOTE CASE THAT THE JUSTICES SUFFERED A NERVOUS AND HAD TO RESIGN. SO IT'S NOT AS THOUGH IT'S ALL BEEN INTENSE AND SILENCE BUT IT MAKES A DIFFERENCE WHEN THERE ARE SIX VOTES AND WHEN THERE ARE SIX VOTES OUT OF NINE. WITH THIS VERY INTENSELY LOCKSTEP POLITICAL VIEW ON MOST. YOU KNOW, YOU DON'T HAVE JUSTICES ANYMORE, AS YOU DID IN THE PAST, SURPRISE US WITH EVOLUTIONS, THEIR VIEWS. EVERYBODY IS VETTED WELL IN ADVANCE. AND IN THE CASE OF THE SIX BY THE FEDERALIST SOCIETY AND THE CONSERVATIVE POLITICAL, LEGAL AND YOU CAN EVEN SEE THE DIFFERENCE, THE ARGUMENTS IN FRONT OF THE COURT WHEN, SANDRA DAY O'CONNOR WAS THE SWING VOTE OR EVEN WHEN JUSTICE KENNEDY WAS THE SWING VOTE, LAWYERS WOULD COME AND THEY WOULD OFTEN MAKE THEIR ARGUMENTS TO THAT SWING VOTE BECAUSE YOU DIDN'T KNOW FOR SURE WHERE IN A 5 TO 4 COURT WHERE THOSE JUSTICES WERE GOING TO COME DOWN WITH SIX VOTES. THE CONSERVATIVE LAWYERS WHO COME IN ARE KIND OF TRIUMPHALIST. THEY'RE NOT THEY'RE NOT MAKING MUCH OF AN EFFORT, EVEN IF JOHN ROBERTS SAY, AS HE DID ON THE DOBBS, TRIES TO CUT A MIDDLE PATH, THAT THE LAWYERS IN THAT CASE REALLY CARE. THEY HAD THE VOTES. THERE'S AN INTERESTING MOMENT WHERE ABE, WHO WAS A SUPREME COURT JUSTICE AND WAS ALSO A CLOSE CONFIDANTE OF LYNDON PRESIDENT LYNDON JOHNSON, EVEN WHEN FORTAS WAS ON THE COURT. ONE OF THE TAPES OF JOHNSON'S PHONE, FORTAS AND JOHNSON ARE DISCUSSING WHAT IT MEANS TO HAVE A SUPERMAJORITY, TO HAVE SIX VOTES, AND THAT BASICALLY THE NUMBERS REALLY MATTER. AND, OF COURSE, WAS THE GREAT VOTE COUNTER. HE UNDERSTOOD. IT MAKES A BIG DIFFERENCE. AND, YOU KNOW, THE COURT HAS THE COURT HAS BEEN A CONCERN INSTITUTION OVER TIME. THIS IS SOMETHING THAT I DIDN'T REALLY THINK THAT MUCH ABOUT UNTIL WRITING THIS BOOK, CONTROL OF THE WHITE HOUSE HAS BEEN SPLIT. YOU, YOU KNOW, ROUGHLY EVENLY FOR THE PAST HALF CENTURY. BUT REPUBLICAN PRESIDENTS HAVE APPOINTED THE MAJORITY OF THE SUPREME COURT SINCE 70. THAT WAS THE LAST TIME DEMOCRATIC PRESIDENT APPOINTED THE MAJORITY OF THE SUPREME COURT. THAT ALL PREDATED MITCH MCCONNELL'S OF THAT WAS LUCK. SOME OF IT WAS POLITICS, BUT THAT'S JUST THE FACT. THE LAST TIME A DEMOCRATIC PRESIDENT APPOINTED A CHIEF JUSTICE OF THE UNITED STATES WAS 1946. IT WAS A TIME AGO. SO THAT'S ALWAYS BEEN A INSTITUTION, BUT IT HAS NEVER BEEN AS IDEOLOGICAL AS IT IS NOW IN THIS ERA. IT HAS BEEN CAPTURED. I WOULD SAY A FACTION OF A FACTION AND IS IMPLEMENTING PRETTY, PRETTY EXTREME POLITICAL DECISIONS IS THAT THAT MOVEMENT HAS WANTED. AND WHEN YOU LOOK AT THE WHEN YOU LOOK AT THE RULINGS THAT FIRST YEAR FULL YEAR OF THE SUPERMAJORITY, THOSE LAST THREE MAJOR RULINGS OF THE TERM IT WAS THE BRUIN CASE, THE DOBBS CASE, AND ONE WE HAVEN'T DISCUSSED. WEST VIRGINIA VERSUS EPA, WHICH WAS WITH CLIMATE CHANGE AND REALLY BEGAN TO CURB THE POWER OF REGULATORY AGENCIES IN THE FEDERAL GOVERNMENT. THAT'S THE ABORTION AND GUNS AND THE INTERESTS OF THE FOSSIL FUEL INDUSTRY THAT THAT THAT THAT IS SORT OF AN RNC CAUCUS. AND IT'S A VERY AGENDA BEING IMPLEMENTED BY THIS VERY POLITICAL COURT.

JG:   MICHAEL WALDMAN THE IS SUPERMAN THE SUPERMAJORITY HOW THE SUPREME COURT DIVIDED AMERICA. THANKS FOR JOINING ME. THANK