Everything is Chaos from Will Smith to SCOTUS (with Mark Joseph Stern)
Sawyer and guest co-host Maya Rupert unpack the shocking Oscars moment that saw Best Actor winner Will Smith physically assault comedian Chris Rock over an insensitive joke. They then focus on the GOP’s treatment of Judge Ketanji Brown Jackson at her Supreme Court nomination hearing as well as the deafening calls for Justice Clarence Thomas’s resignation over his wife’s alleged role on Jan. 6th. Slate senior writer and courts expert Mark Joseph Stern joins to provide additional thoughts on the SCOTUS madness.
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Mark Joseph Stern, Maya Rupert, Julian Castro, Sawyer Hackett
Sawyer Hackett 00:13
Hey there, I’m Sawyer Hackett.
And I’m Maya Rupert.
And welcome to OUR AMERICA. Before we get into today’s episode, we wanted to let you know that No One is Coming To Save Us, the hit show from Lemonada Media is back as a weekly series covering America’s ongoing childcare crisis and the people of all ages who are crushed by it. Every Thursday veteran reporter Gloria Riviera examines what’s broken in the system and how we can work together to fix it. Gloria is a mom herself and brings compassion, wit and real solutions to each episode. The series features interviews with experts, politicians, influential thinkers and real testimonials from parents. No One is Coming To Save Us has new episodes out every Thursday wherever you get your podcasts. This week, we’re going to talk about the Supreme Court first with the ongoing confirmation of Judge Ketanji Brown Jackson, and the bombshell news about Justice Clarence Thomas his wife’s effort to collude with the Trump White House to overturn the 2020 election. We’ll be joined by slate Senior Reporter Mark Joseph Stern later in the show to break down the latest news on both of those fronts. But before we get to politics, we also wanted to talk about the shocking news from the Oscars on Sunday, where actor Will Smith slapped Chris Rock over a joke about Smith’s wife, Jada Pinkett Smith. To do that I’m joined by my friend and former boss Maya Rupert. Maya was campaign manager to Secretary Castro’s 2020 presidential campaign. She went on to serve as a senior advisor to Senator Elizabeth Warren’s campaign and was campaign manager to Maya Wiley’s 2021 New York City mayoral campaign. Welcome to the show, Maya.
Thank you so much for having me. Sawyer,
Sawyer Hackett 01:34
We should mention that Maya is filling in obviously for Secretary Castro today as he is out with the flu and has a very bad cough and is unable to speak. So we’re very glad to have Maya to talk about let’s talk about this very important news week. First with the slap heard around the world. You know, late Sunday evening at the Oscars, comedian Chris Rock appeared on stage to present an Oscar for documentary feature, and made a joke about Jada Pinkett Smith being quote GI Jane because of her shaved head. Will Smith then stormed the stage walked up to Chris Rock and slap the shit out of them. Returning to his seat and yelling keep my wife’s name out of your mouth. It should be noted here that in 2018 Pinkett Smith revealed her diagnosis of alopecia, an autoimmune condition characterized by rapid hair loss, which has no cure. The Oscars quickly muted the event and went to commercial but obviously, you know this thing blew up online, went viral in every direction. Will Smith then went on to win the Oscar for Best Actor for his role in King Richard and gave a speech where he apologized to the to the academy to fellow nominees. It appears Rock and Smith have somewhat squashed their beef but obviously a very intense moment about an emotional issue. Maya, it seems like this was tailor made for Twitter. I mean, Chris Rock made a terrible joke either not knowing or not caring about Janus condition. But of course, Will Smith embarrassed himself too and his wife and assaulted somebody on national TV? You got people out here picking sides, like there’s two teams. But I wanted to hear your reflections on this story. How did you react to this?
Maya Rupert 03:11
It’s funny you say it was tailor made for Twitter? Because it is this sort of quintessential cannot be talked about on Twitter story because it has more nuance than can be addressed in a very small number of characters, but also in sort of pithy hot takes, right? I think I had a number of people reach out to me yesterday and sort of say, What are you thinking? And I basically was like, I’m thinking a lot of stuff. You know, when I kind of, I didn’t want to sort of react in a moment because I felt like what I was holding were a lot of conflicting reactions, which was obviously walking up and slapping someone on stage is never the right response. And I was surprised that the academy didn’t do more, didn’t remove him, didn’t you know, let him go back to a seat and watch the rest of the show. But I also had a very visceral reaction both to the joke itself. I did know that Jada Pinkett Smith was struggling with alopecia. It’s something that honestly a number of Black women struggle with over the course of life. It is something that becomes way too often the object of ridicule and poor taste jokes. And I understood why her reaction when we saw her reaction was one of frustration and hurt. I you know, I think that jokes about medical conditions cross a line. I don’t think that that’s just jokes. I don’t think that, you know, I think that he did cross the line with that. And I also think that as a Black woman, watching a Black woman get attacked that way, and then seeing her defended, in a way admittedly, I didn’t you know, I don’t like I said, I don’t think violence is the way to do it. The reaction that I had was one of I don’t see that enough. I don’t see Black women defended enough in moments like that. And it was hard to sort of just shut it down with violence is never the answer. Because truthfully, the fact of the matter is, I don’t think that there was no violence on that stage up until Will Smith walked up and slap someone, right? I think that words can be violence, I think jokes can be violence. And I think that taking a medical condition that is incredibly painful that a lot of Black women do deal with, and making it a joke like that was an incredibly violent and painful thing to do. And so I sort of sat there with, you know, just trying to hold all of those things simultaneously. And I think a lot of us sort of had a very, that this had less to do with Will Smith and Chris Rock, I have no idea how Jada Pinkett Smith reacted to any of this. And I feel like what’s interesting in moments like this is that Black women are sometimes expected to just sort of bear that kind of pain. And then the story becomes about all of these other things, and not she held it together. She responded with grace. And that’s what’s expected in moments of attack. And I think that’s really the sort of part of the story that I’ve been sitting with the most.
Sawyer Hackett 06:11
Right. I mean, it’s remarkable how absent she is from the story about two men having a beef on stage. I mean, this was about her, this was a personal joke about her and one man react to another man in this way, like, you know, I’m a straight White man. And, you know, I know about alopecia. And I followed it, because I’m in politics, and I think it comes up a little bit more often, you know, in a political context, and otherwise, but I didn’t know that she had had alopecia. And I, I think, to a lot of people watching it live to the people in the room, they heard the joke, they didn’t understand why it was such a sensitive joke, but reacted like, oh, that that that seemed off color, for sure. But him walking up on stage and being slapped in the face for it seemed even more like, Whoa, what the heck just happened, right. And like, I think now, because of that, because we didn’t all have that, you know, baked understanding of what what they were going through as a couple and what she was going through personally, the slap becomes a story. And not this has some deeper meaning behind it, that this has personal feelings involved. And that, you know, she was showing grace, and she was probably mortified by what happened. And now she’s going to be at the center of all of these things. And I just hope that she’s not an afterthought, you know, the fifth paragraph down and a story about two men, you know, having drama onstage at a stupid award show, you know what I mean?
And I think, you know, it was particularly poignant to have this happen at the end of a week, where we already watched Ketanji Brown Jackson, sort of have to exhibit that same kind of grace under pressure, under attack. And truthfully, again, I felt not really get enough people who were standing up and defending her, say Cory Booker, who took an amazing moment, to, with love really sort of, for I feel like the first time that we saw in those hearings, stand in front of her and defend her. And if I’m given the choice between types of defense, yes, I’m going to choose Cory Booker’s over Will Smith’s but the fact that way too often, black women are asked to endure this kind of attack and pain. And the best we can give them is Wow, you did it with a lot of grace, and you’re so resilient. That’s a really damaging thing. I’ve heard from so many people saying things like, so many people are watching this, and what message does that send to kids? And there’s a part of me that’s just like, well, what message are we sending the little Black girls, that they’re not worthy of protection that their pain can be sort of expected? And how are we doing a better job of recognizing those moments of violence that come before a slap, and making sure that we’re not just putting some young girls, young women, and then fully grown Black women out to exhibit their grace one more time when they’re being mistreated and attacked. I hope that what comes out of this moment is not let’s focus on these two men over and over again, or, you know, with the case of the Supreme Court, let’s focus on dynamics between these two parties. And sort of once again, just say, you know, good thing, that black woman was strong enough to take it because that’s not protecting. That’s not what Black women deserve.
Sawyer Hackett 09:37
And I’m glad you brought up the judge Ketanji Brown Jackson, because that was our next topic here. You know, last week, the Senate Judiciary Committee began the confirmation hearings for her. You know, she spent two days answering questions for you know, dozens of hours about her qualifications, being berated with these bad faith attacks on her record, and just being subjected to this barrage of racist sexist dog whistles that Republicans have been laundering. It seemed like an obvious preview of Republican attacks headed into the midterms. Also, you know, kind of a try out for some of these 2024 presidential hopefuls. You know, Josh Hawley and Lindsey Graham tried to attack her for being soft on crime. Using this ridiculous argument about child porn sentencing, Ted Cruz tried to accuse her of being a promoter of critical race theory. And Marsha Blackburn, in probably one of the dumbest moments of any Senate hearing repeatedly asked her to define the word woman in a confirmation to the Supreme Court. Of course, Judge Jackson remained extremely calm, poised, brilliant in all of her reviews, she received rave reviews from judicial experts and media pundits on her ability to answer some of these ridiculous questions and accusations. But as you mentioned, in probably one of the best moments of the hearing, Senator Cory Booker took a moment to celebrate her historic nomination. And we wanted to take a listen to that.
The Senate Judiciary Committee is set to vote on Judge Jackson’s confirmation on April 4, and after that the full Senate will hold a vote. Democrats expect she’s going to be confirmed before the Easter recess. So my What did you think of this hearing? What were your biggest takeaways?
I mean, I thought it was painful. I thought it was it was just tortured, watching racist, sexist dog whistles, attempts to mischaracterize for record that we’re just in such bad faith. I genuinely there were points at which I was like, Are they taking themselves seriously, like someone had to prepare this and with sort of a straight face handed to a senator and say, in front of the country, please pursue this line of questioning and I just it was shocking. And it was infuriating to watch. And once again, infuriating to watch her have to show that level of grace and resilience. In the face of it, I do take a solace in the knowledge and confidence that she will be confirmed and will be the first and only and not the last black woman on the Supreme Court. But that was hard to watch. Right? Beyond that, it was also just I really struggled with what has become sort of the point of this process, right? I mean, we’re dealing with a lifetime appointment, one of the most important positions that someone can hold, and no one seemed at all interested in learning anything new or important. I happen to think that she is someone who will be an incredible member of the court. But we are not aided by a process of sort of Senate confirmation hearings that operate like that, that are that empty and devoid of meaning that are just theatrical.
Sawyer Hackett 13:01
Yeah, and I wanted to I also wanted to bring up you know, it wasn’t just these racist and sexist dog whistles, you know, the attack on child pornography, that wasn’t just a dog whistle for being soft on crime or weakness in her record that they wanted to expose. It was a huge dog whistle to Qanon. I mean, this their primary conspiracy in Q anon is that there’s this political elite that are trafficking children behind the scenes, you know, Qanon is a domestic terrorist organization labeled by the FBI that way, and you have senators, multiple US senators, three or four of them, using this attack line in clearly, you know, trying to feed them, pump them, prime them with these attacks about child pornography to have her just be attacked and right wing media, and it is a huge head not to Q anon. I mean, just gross attack that I don’t think I don’t think there’s been a comparison in history. That’s been this bad.
right? I don’t know that there’s been a comparison in history. But I fear that this is the direction because the fact of the matter is, there was not enough outrage, or response I am, I’m fearful that we just watched one more time, the erosion of something. And because there wasn’t a massive, you can’t do this, this isn’t what these things are for. They can just do it again. And the unfortunate truth about the current Republican Party leadership is, if that kind of thing happens, they will keep doing it. And so I think that we just saw really a further erosion of, you know, one tiny mechanism of accountability that we do have over how the Supreme Court is chosen. It’s, you know, we have the confirmation hearings that I think we just watched, get further away from anything that’s actually useful.
Sawyer Hackett 14:47
I’m so glad you brought that up. Because I think Democrats have just watched the pitch go by on so many things in the last couple of weeks and it’s been driving me crazy. You’re right, that was a huge, you know, Norm, institution busting event and it just feels like we’re moving on to the next story. You know, in the course of this confirmation, you had John Cornyn questioning the overfill ruling which legalized gay marriage, calling the ruling an edict and questioning whether the court had the legal right to rule on it. Marsha Blackburn attacked her on the issue of abortion, you know, they have no sign of backing down on that issue, of course, and Senator Mike Braun, who had an interview with local media surrounding this hearing, said that he doesn’t support the Supreme Court’s decision in Loving versus Virginia, which legalized interracial marriage. He also said in that interview, that he doesn’t think the federal government should be able to legalize contraceptives. I mean, those are like four or five huge headline busting news stories that should be repeated by every single Democrat in America, especially the president knighted states. And I feel like we’re already on to the next door, you know, Will Smith slapped Chris Rock? And we’re just moving on, you know, we’re done with that. It’s, it’s wild. To me.
It really is. I mean, what we’re talking about is rolling back some of the most significant victories that we’ve seen. And beyond that, just the mere concept of unenumerated rights, just taking a huge, huge hit. And this, this is the problem, right? It’s, you have a hearing like that, where you see Republican senators who were going after these issues, and you have a nominee whose job is to talk about judicial philosophy, but truthfully, try not to get pinned down on specific answers, because that’s not the role of these hearings. And theoretically, you have senators on the other side, who are going to be able to bolster the sort of legal and philosophical arguments that just got attacked. But you didn’t see that. And so instead, it just seemed like, we aren’t getting engaged in the merits of some of these issues. And what we’re talking about is a group of senators who basically are saying, We shouldn’t be paying attention to precedent, these cases that have been decided should not be treated as an aside at law, that after Roe, the next thing they’re going after is marriage equality, and they will, and there does not seem to be enough of a response to that. That should terrify us. These are families that are going to be getting torn apart. I mean, the reality of going back right now and undoing a marriage equality, what that does the legal status of a bunch of families, what that does to people moving forward, what it does to an entire sort of policy framework that has been created with the understanding that marriage is one of these rights, that what they’re talking about doing is, I mean, if you want to talk about judicial activism that would be wholly remaking years and years and years of policy work. And we’ve got to mobilize around that that should be what Democrats are talking about in midterms that should be this, the questions that are in front of us are huge, and it does feel a little bit like the Democrats are missing the opportunity.
Sawyer Hackett 17:58
And yeah, and it’s not just, it’s not just the protection of those rights, the importance of standing up and defending them at all costs. It’s also the politically right thing to do. I mean, can you imagine like how bad removing federal right to interracial marriage would pull today? Like, I just don’t understand why we’re not using these things to hit them back as hard as possible. You don’t hear? You know, I know that the President is dealing with the Russia situation he was in Poland over the weekend. But like, you don’t hear anything about this from the White House that a US senator wants to get rid of interracial marriage or wants to ban abortion or wants to ban gay marriage. It’s just wild that we let these pitches go by time after time after time. You know, in another one, here’s another big story that we could be talking about. In a bombshell report this last week, the Washington Post published text messages from Supreme Court Justice Clarence Thomas’s wife, to the White House Chief of Staff Mark Meadows as part of a trove of documents that were turned over to the House committee investigating January 6. In the weeks after the election, Ginny Thomas sent 29 messages to Trump’s top adviser urging them to pursue efforts to overturn the election, calling President Biden’s victory the greatest heist of our history. The messages show that Miss Thomas use her marriage to Justice Thomas to relentlessly urge him to overturn the election. This news comes after reporting that Ginny Thomas attended the January 6 rally that took place before the insurrection. She’s also a member of this conservative group that has helped advance the Stop to Steal movement. And of course, this is also against the backdrop of a critical vote that Clarence Thomas made. He was the lone dissenter in Trump’s bid to the Supreme Court to withhold documents from the January 6 Committee. He didn’t recuse himself. He never mentioned his wife’s work. He just papered over it. This of course has sparked a huge debate about whether Clarence Thomas should resign should face impeachment, or whether the January 6 committee should subpoena his wife for testimony. Maya, we’re going to talk to our guest Mark Joseph Stern about this a little bit more but what did you make of this bombshell report? What do you think that this does? You know, what does this mean for our politics in the future? Are we gonna be spending a lot more time talking about the Supreme Court for the next few weeks?
Maya Rupert 20:02
I mean, I think we are I think we need to, you know, because what this shows is that there is no mechanism to make Justice Thomas recused himself. They police themselves on this stuff, right? And so it’s a lifetime appointment. It’s no accountability. It’s hearings that have stopped meaning anything. It’s the ability to be dishonest during those hearings, as we’ve seen, some of these justices do and now they’re on the Supreme Court, and there’s nothing to be done. And the few things that we ask you recuse yourself when there is an insurmountable show of partiality. They don’t have to do and they don’t, yes, he should be subpoenaed. His wife should be subpoenaed. This has to get treated like the breach that it is. And I fear sometimes that because it feels like well, so many things will have to happen in order for anything to really happen. There’s the sense of let’s not get into it. I think in order to really reveal how deep this corruption is, Democrats need to treat this as seriously, truthfully, as Republicans would treat it, if the situation were reversed. There is no way on earth, this would not be leading everywhere. If this were a liberal judge, whose spouse participate in an insurrection, to try to keep up Democratic president in office, there’s just no way that this would not be everywhere. And I think Democrats need to take this moment and make this an issue because these are the erosion of our democratic institutions that we can’t roll back.
Yeah, you’re so right. I mean, I was reading before this, that there’s stuff in the law about your spouse’s and work on the Supreme Court. It says justices are bound to federal law that bars them from hearing cases in which their spouses, quote, have an interest that could be substantially affected by the Outcome of the Proceeding. That statute also stipulates that they must recuse themselves in cases where, quote, their impartiality might be questioned. You know, Thomas has already ruled on issues related to January 6, he’s lost the chance to recuse himself or publicly acknowledge any conflicts of interests. And yet, you know, Democrats aren’t even really calling for his impeachment. I mean, there’s been a few progressives who have said he should be he should face impeachment, but you haven’t heard anything from Democratic leadership from the White House about an impeachment? Of course, we don’t have the votes to convict or remove him from office. But impeachment is a political process. And like it or not, the Supreme Court is political. And the people who sit on the Supreme Court are political officials. They haven’t been elected, they’ve been appointed and confirmed. If we let this go by without investigation without any punishment, what message are we sending about the impartiality of the court, not to mention, an impeachment hearing would also just expose how, you know, corrupt Justice Thomas has been over the course of his career, how unethical he’s been. And it would be a good display, I think, for Americans to see how broken this institution is.
Maya Rupert 23:00
Absolutely. I think, you know, right now, we’re seeing more energy than we’ve ever seen around reforming the Supreme Court. In an institutional level, people have talked about adding seats, people have talked about term limits. We’ve seen that in a way that we’ve never seen it before. For support around that stuff to grow, we have to let go of this idea that the Supreme Court occupies this special, privileged place where somehow they’re immune to politics. And I think you’re right, I think that if we subpoena people, if we figure out what’s actually going on, it becomes a lot easier to show what has been true for a long time, and that is that the Supreme Court is actually absolutely a political body, and it should not be treated, you know, with sort of this kind of glossy lens that we apply to it, and act as though people can be beyond their own politics.
Well, that’s a great segue into our break, because when we come back, we’re going to be talking to Mark Joseph Stern, who’s a senior writer, covering the courts and the law for Slate Magazine. We’re going to talk to him about Ketanji Brown Jackson, about Clarence Thomas, and about this new bombshell report about Trump and the January 6 committee so when we come back we’ll have Marcus Joseph Stern.
Sawyer Hackett 24:38
Marcus Joseph Stern is a senior writer covering courts in the law for Slate Magazine based in Washington, DC he has covered the US Supreme Court, federal appellate courts and district courts and state and local courts since 2013. Mark is the author of American justice 2019, the Robert courts arrives. He’s published articles in The Wall Street Journal, The Week, The American Prospect and co-authored several law review articles. Welcome to Show Mark are you doing?
Mark Joseph Stern
Thanks so much for having me on. I’m happy to be here. It’s miserably cold in DC for some unknowable reason. And I just came from visiting my parents in Florida. So I do feel like God hates me today. But I’m hoping that, that will pass soon enough.
I kind of love watching all the tourists flock to the cherry blossoms this weekend only to get a 45-degree weather.
Mark Joseph Stern 25:22
That’s pretty sadistic. But yeah, it was funny.
Sawyer Hackett 25:27
So Mark, before we get into some of the specific news, this week around the Supreme Court, can you just tell us a little bit about why you were drawn to this particular beat in the courts? Do you have a law background? Where does that come from?
Mark Joseph Stern
Yeah, so I am a lawyer, I went to Georgetown University Law Center, which these days seems to be the site of so many controversies involving racist professors, at least four in the past year, and surely there are more who will come out of the woodwork. But I like covering the law because I’ve always said the Supreme Court is the nation’s most powerful policymaking institution, while the other branches of government end up mired in the muck and frozen and paralyzed the Supreme Court keeps on doing its work churning out decisions on time every year, radically altering various pockets of the law year by year. And I think that a lot of its work is really important, but kind of shrouded in mystery, and sometimes cloaked in a kind of legalese that prevents normal people from understanding what’s going on. And I fear there is a lack of reporting around the court that translators work for the general public, so everyone can understand what it’s doing, and these days, so that everyone can understand why it’s doing bad things. So I like to be able to sort of translate the Court’s decisions for everyday people, I think that everyone should be able to understand what’s going on there. And especially because the court affects all of our lives so profoundly, I want to ensure that it doesn’t get away with cloaking all of its decisions in the kind of garbled, you know, pseudo-Latin and legalese that prevents non-lawyers from understanding what it is actually said and done.
We definitely want to get into a little bit like how your work and how you’ve seen the courts change, especially in recent years. But first, we wanted to dig in just on some of the news of the week to make sure we get to some of the stories. We wanted to ask about the confirmation of Judge Ketanji Brown Jackson, that that’s obviously still ongoing. Of course, you know, as our politics have become more partisan, these hearings have become more of a spectacle. But I think this hearing in particular seemed to be a bit beyond the pale to some more historical observers. You know, almost none of the intense moments were about her experience or record or judicial philosophy. Is that a correct reading on the history of these confirmation hearings? Does this one stand out to you compared to others?
Mark Joseph Stern
Um, I think so. Obviously, there was something unique and uniquely disturbing about Brett Kavanaugh hearing right because of the allegation of sexual assault. With this one, I was just surprised by how blatantly Republican politicians appealed to or kowtow to the most radical fringe parts of their base. I mean, from the start, senators like Josh Hawley, were drawing on pizza gate and Qanon and the deranged conspiracy theories about Democrats facilitating child predation, and being soft on child pornographers and child predators and sort of winking to that faction of their base in falsely accusing judge Jackson of being overly lenient on people who are convicted of offenses relating to child pornography. And I didn’t see that coming until it came, which I was, you know, disappointed in myself by because I think I’m a somewhat astute observer of which lines of attack Republicans will choose when trying to tank a judge, we’ve seen that for enough years now that we can usually guess what direction they’ll go. But this was so easily debunked, so easily rebutted, like, you could take literally any federal district judge in the country who has been seated for more than a month and make the same line of attack on them, because none of them go on the upper end of the sentencing guidelines. And these senators knew that and yet they decided to launch this attack anyway, because they were confident enough that the conservative media ecosystem would kind of drown out the fact checkers and the debunking and leave their viewers and Republicans with a sense that she really is soft on child predators, if not a fan of them. And that left me with a terrible taste in my mouth, and really made me feel sorry for her because as much grace and poise, as she demonstrated, I mean, talk about a judicial temperament. Right? It had to have hurt to sit there and have those attacks flung at you. And I’m glad that it seems she will be confirmed. She truly deserves this position. And I hope she can let all of this nonsense kind of, you know, wash away in the coming months and years, and she can just be the great justice that I think she will be.
Maya Rupert 30:22
Mark, I think that’s a really excellent point that there’s that this line of attack really is one that could have been levied against literally any judge who’s been sitting for any length of time. And I wonder if you think that this is indicative, then of a sort of a new trend with these hearings? Is this what we are going to start seeing and I think sort of even put a finer point on it. What is left of the value of these confirmation hearings? If this is what they’re devolving into.
Mark Joseph Stern
Right. I mean, I think my short answer is like there’s nothing left. They’re a gross spectacle. They serve no clear purpose except allowing Republican senators to create like a Fox News Reel for themselves. At the same time, I wouldn’t be comfortable saying we should get rid of them. Because I do feel that there’s occasional value. I mean, the nominees can’t dodge every single question every single time. And people like Brett Kavanaugh and Amy Coney Barrett were forced to answer some tough questions, which it was later revealed they just lied about, right? They would say things about precedent and how much they respected it and then they would go on the court and be like, haha, just kidding. I don’t care about precedent at all that I’m going to overturn it. But that’s a nice thing to have, at a bare minimum, the record of them lying. So you can at least say look what they did. You know, these are political animals. They went before this committee and they just lied about their views, so they could get on the court and enact their agenda that was useful to have, I think that it’s helped my readers understand that kind of game here. But at the same time, you look at what happened to KBJ. And it’s hard to salvage anything from those hearings. Just one sort of brief point I’ll make when Republicans in their operatives were complaining about her record on child predators. One of their kind of lines was she wanted to release all of these child predators, she wanted to free them, our country would be more dangerous if she were a Supreme Court justice, and it’s more dangerous because she was a judge. Well, Neil Gorsuch, joined by Clarence Thomas and John Roberts, recently wrote a decision seeking to free 500,000 people from the Federal sex offender registries requirements, a decision called Gundy versus United States, all three of them vigorously argued that this law was unconstitutional. And that 500,000 people, including 10s, of 1000s, of child predators, had a right to be released from this registry. And look, I think that they were wrong on the merits. But I certainly would never say, Oh, these guys want to flood our streets with child predators. And yet, it’s so obvious that Republicans if you kind of flip the roles, if that was like Sotomayor and Kagan, Republicans would do that immediately and unrelentingly. And so I am concerned that there’s so much about judging that most people don’t understand that bad faith actors can take up and warp and lie about to make it seem like these, these judges have done something awful. And Democrats just aren’t doing that at all, like the few cases that they pluck out. Think about the frozen trucker case, right with Neil Gorsuch. Like that was a legitimately troubling and bad decision that he wrote that would have, like, totally restricted, this important law protecting workers rights. That was a legitimate example of a bad decision. This stuff we saw with KBJ. It was just queueing on. So I don’t know how Democrats move forward from here. But it seems like there’s a real problem of asymmetry between how far the parties are willing to go in drawing on and exploiting people’s ignorance about the courts to make it seem like judges are doing really bad things when they’re just doing normal judging stuff.
Sawyer Hackett 34:11
I wanted to follow up on your point about precedent because I thought that that was that was going to be my next question is I know you don’t cover Congress and you cover the courts but like, you know, do any of these senators have any regret you know, I remember Susan Collins sitting with me Coney Barrett with course it with Cavanaugh telling reporters that she was reassured that they had a respect for precedent, especially for precedent on Roe. And then you know, now the court is poised to just gut roe like, are they just comfortable being lied to? They just don’t have any like, trepidation about that, or does that process even matter anymore to them?
Mark Joseph Stern
I mean, I don’t know Susan Collins Hart, but she certainly doesn’t seem troubled by the fact that Brett Kavanaugh is on the brink of overturning Roe. I refuse to believe that she is stupid enough to not understand what’s going on here. She’s pretty good at politics. She’s not a dumb person. So I assume that she understands she casts one of the decisive votes, getting this guy on the court under false pretenses. And yet she doesn’t seem at all worried. So I think for her that was just another vote in her long career votes, she will tell herself I made the best decision possible under the circumstances. And when Brett Kavanaugh votes to overturn Roe, she’ll just say, well, he promised me that he wouldn’t. And it’s just too bad that he went back on his word. And we all have to believe that she is so gullible, that she thought a guy who literally auditioned for the Supreme Court by attacking Roe in speeches was going to get on the court and uphold Roe. I just can’t believe that any living human is that gullible, let alone a successful longtime senator. So I don’t think she has regrets. I think she just thinks that she’s going to be able to spin it her way when it happens.
Sawyer Hackett 36:18
So we wanted to move on to the news about Clarence Thomas and his wife, Jenny Thomas, you know, what does the law say about impartiality? With regards to spouses of the court? You know, is it possible that Clarence Thomas broke any laws by ruling on the January six case after knowing what his wife was up to?
Mark Joseph Stern
There’s a bit of an issue here in that there is a law, but it really can’t be enforced. So there is actually this federal law that applies to justices as well as lower court judges, that essentially says, if there’s some kind of conflicts that could create an appearance of bias, and appearance of partiality, then a justice has to recuse. And this case is a quintessential example of where you have a conflict of interest that creates, you know, a sense of partiality, because he may well have been protecting his wife, by casting that vote to try to prevent the January 6 committee from getting their hands on all of these documents relating to January 6, and I have to believe that he knew that and still he cast the vote, but there’s no one to enforce this law against the Supreme Court, there’s no mechanism to force the justices to recuse themselves, it’s their own decision, there’s no higher body to make them do it. The only solution and I’m putting in air quotes is impeachment and removal. And we all know that Democrats are not going to use their political capital, impeaching him. And even if they did, there’s no way the Senate would remove him. So we’re just sort of stuck with the very poor decisions that were made by the framers over 200 years ago, to completely insulate these people from any and all consequences for life. And we have to deal with that within our system, because it’s very clear that Democrats are not going to enact the kind of sweeping changes that would be necessary to actually force someone with this egregious a conflict of interest to step aside from a case that might implicate his wife in a criminal way.
Maya Rupert 38:12
You know, Justice Thomas is known for being sort of tight lipped outside the courtroom, you know, he sort of hasn’t really gone on record much at all. If he is, which I genuinely hope he is, you know, subpoenaed and asked what happened here? What do you think he’s gonna say? Can he just is he able to just sort of deny partiality and move on? It sounds like you’re sort of saying they’re just, unfortunately, aren’t that many mechanisms of accountability for these people?
Mark Joseph Stern
Right. So you know, it’s interesting, because if the committee subpoenas Jenny Thomas, or Clarence Thomas, that case may well be appealed to the Supreme Court pretty quickly. And it’s not entirely a sure thing, that he would recuse from that case. I mean, I think it’s quite possible that if the January 6 committee subpoenaed him, and he appealed it to the Supreme Court that he would sit on that case and vote on that case, based on his past patterns of behavior.
Maya Rupert 39:11
And if that happens, I mean, truly, and this is the thing, I know that there have been so many moments where Democrats should have stood up and said this far no further, but if we are in a situation where he or his wife or both are subpoenaed, and that case goes to the Supreme Court, and he does not recuse. I feel like that is so egregious. I cannot imagine a world in which everyone just sort of says, we’re going to keep I mean, do you think that there’s something that goes so far beyond the pale that even being unreasonable, senate Republicans can’t keep saying this is okay.
Mark Joseph Stern
I think that Clarence Thomas could murder a litter of newborn puppies on live TV, and then throw their ashes the face of someone with asthma, and then watch them choke and die on the ground, and not face any consequences. Just to give one example, that springs to mind, I can’t stress enough, I hate to be a broken record here, right? But like, I can’t stress enough that there are literally no mechanisms, there is literally nothing that we can do to dislodge someone once they have gone on the Supreme Court. I mean, it has been tried in the past, just every once in a while, and it has never worked. And I don’t think it’ll work today. So I like I feel you I hear your question. I feel like I’m not necessarily responding to it with a satisfactory answer. But I just don’t know, like what I can say like, he’s never gonna, he’s never gonna leave on his own accord under a Democratic president. And I doubt that he will ever recuse himself, maybe. But it seems very unlikely. And there’s just nothing that anyone could do. I mean, even if Democrats impeached him, he would still be sitting on that court until he’s removed, which he won’t be because that would require Republican votes. So it’s like you kind of go around in a circle when you think this stuff through. And that’s very unsatisfying for liberals. But just, I don’t have a better answer.
No, I mean, look, I think that to the extent, it’s an unsatisfying answer, it’s because it’s an unsatisfying reality that we are splitting with, we still have. And I will admit, I think I still have it, too. There’s this romance that we attach to the idea of an impartial Supreme Court, you have this idea that the judicial branch was the one non-political branch. And that has been belied by everyone’s actions for a very long time. Now, I guess what it’s going to take is for us to sort of stop saying that’s a thing at all and enact real accountability on these on these judges. I guess there’s not really another solution there.
Mark Joseph Stern
The Supreme Court relies on what I like to call the Tinker Bell effect. The only reason it has any power is because we all choose to believe that it has power. And if we all stopped believing that then it would cease having any power. So the Supreme Court doesn’t have an army that it can send out to go enforce its decisions. It has a one block jurisdiction with a tiny little police force, they could theoretically like send a few police officers to the White House, bang on the door and be like, you have to follow our decision. But that’s I mean, that’s pretty much the extent of it. Right? I would like to see more Democrats openly questioned the Supreme Court’s authority; I would like to see more Democrats openly question the legitimacy of decisions that are just blatantly tainted by corruption. I’m not saying that I want to abolish the Supreme Court. I’m not saying I even have a very clear idea of the end point here. But I think that in a healthy democracy, we would have a lot more people in the opposition party, because the Supreme Court that’s like, it’s controlled by Republicans, Democrats or the opposition party. That’s how I think about it, I would like to see the opposition party get a little bit more creative in how they deal with this power grab. And I’m not seeing that creativity now. And, you know, for years, we had a conservative court that issued two liberal decisions every term, and Republicans would be like, burn it to the ground. And now we have a Supreme Court that issues 100% conservative decisions, and Democrats are like, we must respect the institution. So it just comes back to that asymmetry. That is very frustrating to people like me.
And to your point, I think, like an impeachment hearing, not only I mean, it serves multiple purposes, it would, you know, obviously, it’s accountability for what is clearly wrongdoing by sitting Supreme Court justice. But also I think it would expose the blatant partiality of Justice Thomas, I mean, I remember articles where he attended GOP fundraisers, and he goes to these private retreats. And he’s done a number of things that should be beyond the pale to people to impartial observers of the court. But it also I think, would expose the court for being the political institution that it is and not this, you know, above reproach institution that that can’t be reformed, can’t be adjusted, can’t be scrutinized. I feel like Democrats are just missing a huge opportunity and not pursuing that. That impeachment.
Mark Joseph Stern 44:09
From your lips to God’s ears is all I think I can say.
Okay, well, anyway, we wanted to move on to the big news story from today, because this just broke about an hour ago recording this on Monday, a federal judge ruled that President Trump quote more likely than not attempted to illegally obstruct Congress as part of the criminal conspiracy when he tried to subvert the 2020 election on January 6. Judge Carter’s sweeping and historic ruling came as he ordered the release to the house January 6 Committee of 101 emails from Trump ally John Eastman, rejecting Eastman’s offered to shield them from attorney client privilege. He said, quote, If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power undermining American democracy and the Constitution. If the country does not commit to investigating and pursuing accountability for those responsible the court fears January 6 will repeat itself. This decision has no, you know, direct role in whether Trump will be charged criminally. But do you think that this puts a tremendous amount? I mean, it seems like it puts a tremendous amount of pressure on Attorney General garland to conduct an investigation that might potentially lead to charges.
Mark Joseph Stern
You know, I think it feels like this judge is actually kind of throwing some shade at Merrick Garland. We know that the January 6 committee has a theory of criminal obstruction for President Trump, it has argued in multiple court filings that it believes that Trump broke the law that it has a good faith belief that he may deserve criminal charges by planning and attempting to enact this coup. And here we have a federal judge saying, Yeah, that’s clearly correct. Like the January 6 committee is exactly right about this. And in fact, like, if anything, the January 6 committee should be doing more and going further, because this got terrifyingly close to success. And in a democratic country, we should never have the outcome of an attempted coup like this in any kind of doubt. I think the rhetoric in this decision is really powerful. I would know that it’s sort of like at the beginning and the end of a lot of very complex legalese, because this is actually just a case about attorney client privilege, right? But the judge does a really good job, sort of pulling out toward the end and bringing some more context in and taking a kind of bird’s eye view and saying, look, yes, we’re talking about attorney client privilege. And yes, a few of these emails are legitimately protected by attorney client privilege. But the vast majority of them are about planning a coup. And you guys, that is not attorney client privilege, that is conspiracy. And in this country, we do not allow conspirators of a coup to obstruct an investigation into their misconduct by raising frivolous claims of privilege. And I think he does this beautifully. He does it better than members of the January 6 committee when they’re explaining their own work. Once again, I don’t understand why Liz Cheney and federal judges are doing a better job than many members of this commission and explaining what they’re doing and what their theories are. But I do think it’s a powerful moment for this investigation. And I think it’s just further confirmation that when you see the evidence laid out the way that the committee did in these filings. If you are a rational person who is not brain poisoned by Fox News, it’s very difficult to come to any other conclusion than that Trump clearly broke the law, and that an attorney general could at least bring charges, whether he could win that case in court open question, prosecutors don’t cases that they don’t think they can win. But it’s so clear that there is a valid legitimate basis for bringing criminal charges against the former president.
Mark, thank you so much for joining us on the podcast and for clearing up some of this for us. We really appreciate it. Hope to have you back soon.
Mark Joseph Stern 48:01
Thanks so much for having me on.
Thanks, again to mark for joining us on the podcast this week. And to Maya for filling in for Secretary Castro. Maya, where can folks find more of you online? Where can we find you on social media? What are you up to these days? Can you tell us a little bit about what’s going on your life?
Absolutely. On social media on Twitter, I’m at @MayaRupert, I believe I’m the same on Instagram. I’m going to be honest; I don’t entirely know. But I’m on there if you search my name, I’m a resident Fellow at the Harvard Institute of Politics, actually Julian was just out to do a forum with me here. And he got a chance to come to my study group, which was a lot of fun.
So we can blame you for him getting sick. I guess that’s how it goes.
I kind of think you can and I feel very guilty about that, that I made him travel. And I think that may have been when he got sick. But he was such a trooper, and it was so nice to have him out here. And we you know, kept him busy all day. Like it was the campaign days again. So it was fun. But yeah, I mean, beyond that. I’m continuing to write and speak and, you know, just doing a lot more of what we’re doing here today. So seriously, thank you so much for having me.
Well, we hope to have you back soon. And as always, folks can leave us a voicemail sharing some of the stories you care most about at 833-453-6662. That’s 833-453-6662, and as always subscribe to Lemonada Premium on Apple podcast, and we’ll see you all next week.
OUR AMERICA is a Lemonada Media Original. Our Producer is Xorje Olivares, with executive producers Jessica Cordova Kramer, Stephanie Wittels Wachs and Julian Castro. Mix and scoring by Veronica Rodriguez. Music is by Xander Singh. Please help others find the show by rating and reviewing wherever you listen and follow us across all social platforms at @JulianCastro, at @Sawyer Hackett and at @LemonadaMedia. If you want more OUR AMERICA, subscribe to Lemonada Premium, only on Apple podcasts.