From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I'm Preet Bharara. The Republican justices believe that conservatives and Republicans are the victims, largely of a society that doesn't share their views, but more generally, whenever they do not get what they want. That's Leah Littman. She's a constitutional law professor at the University of Michigan Law School.

She's also a co-host of the excellent legal podcast about the Supreme Court, Strict Scrutiny. Littman joins me to talk about her new book, Lawless, how the Supreme Court came to run on conservative grievance, fringe theories, and bad vibes. We also talk about the Alien Enemies Act, Trump's executive overreach, and the court's biggest decisions expected in June.

Then I'll answer your questions about whether anyone without a law degree has served as a Supreme Court justice and whether a district court can disregard a Supreme Court ruling. And stick around to the end for my tribute to a hero you've probably never heard of. That's coming up. Stay tuned.

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Teams all across your business will be psyched to collaborate and create amazing presentations, videos, social posts, flyers, and more. Meet Adobe Express, the quick and easy app to create on-brand content. Learn more at adobe.com slash express slash business. How much are fringe legal theories making their way into the Supreme Court's decisions? Constitutional law professor Leah Littman joins the show this week to talk about her new book, Lawless.

Leah Littman, welcome to the show. Thanks for having me. Congratulations on your book. For those of you who are watching on YouTube, I can show the book cover. This is an advanced copy because you entrusted me with a copy of the book before it's formally out. It's called Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. That's quite an indictment. Yeah.

The subtitle was meant to convey the general gist of the book, to be sure. And that should give you a sense of it. What would you say is the tone of the book? Because it's funny, but obviously it's very, very serious. It's accessible, but obviously it's also very smart. So people pick up this book, what should they expect?

Substantive, but irreverent. It is not written by someone who takes themselves too seriously and who doesn't think that the Supreme Court and its justices are engaged in anything that's serious either, even though it has serious consequences. So, you know, I've called it snarky, irreverent, but substantive as well. So I think you said a second ago that the Supreme Court is not doing anything seriously. So there's nine of them.

You're not talking about all nine, I'm guessing. I'm talking about a majority slash supermajority. Okay, so as we know, and as you talk about on your podcast, we talk about on our podcast, there's six conservatives of different stripes and three progressives. Are you talking about the six? I bet you're not talking about the three. And if you're talking about the six, is it all six?

So I am talking about the six. And I agree with you that, of course, within the six, there are conservatives and Republicans of different stripes.

But, yes, I am talking about all six. As I note in the book, you know, this is kind of a big picture book. It is not going to get into the differences and minutiae between all of the different Republican appointees. Obviously, Justice Neil Gorsuch has particular views on Native American affairs. Justice Kavanaugh, you know, has departed from his Republican colleagues on some criminal justice matters. You know, the list goes on.

But in the kind of big ticket, high profile, ideologically salient cases that are the focus of this book on areas of reproductive freedom to voting rights, to law of democracy, to campaign finance, to political corruption, to LGBT equality, like the Republican appointees, they are voting together in very predictable and observable patterns. And so that's the phenomenon that is really the focus of the book.

Okay, but so I'm very smitten with and engrossed by the subtitle. To repeat, conservative grievance, fringe theories, and bad vibes. I want to go through each of them. Let's do it. Conservative grievance. A, what is that? And B, I doubt that you think, even though you say you're not parsing the particular specific concrete differences between and among the six, you've got to have in mind who the greatest sort of advocate of grievance

conservative grievance is or who reflects conservative grievance the most? So A, what are you talking about? And B, who's the biggest manifestation of that?

Yes. So conservative grievance generally refers to the idea that the Republican justices believe that conservatives and Republicans are the victims largely of a society that doesn't share their views. But more generally, whenever they do not get what they want, like they perceive laws that they aren't in favor of or lawful.

that require them to do things they don't want to do or prohibit them from doing things they want to do as like personal attacks against them. So it's this mindset where they view a whole host of everyday societal rules and laws as personal affronts against them. Yes, right, the different justices wear different shades of conservative grievance. If I had to identify one who kind of wore it the most

Most clearly, it would be Justice Alito. I knew it was going to be Alito. How did you guess? How did you guess? You know, because I think I tend to agree with you on that. Who had been the runner up? Is it Thomas? I probably would have said Justice Thomas. Yes. Yeah. So why does Alito win?

Why does Alito win? Because he perceives any criticism of him as mostly illegitimate and an attack on the Supreme Court as an institution. He has also described broad swaths of law as rank discrimination against religious and social conservatives. So writing about marriage equality, for example, he said, you can no longer say that marriage is between a man and a woman.

Of course, you can say that. He says it all the time. What he means by that is people criticize him for it, right? And people call that discrimination. And that is an affront to him. And that is just hallmark of the grievance mindset. I feel because of the subtitle of your book, we have to talk about psychology a little bit, particularly when we get to bad vibes. But when you say someone like Alito thinks that all criticism of him is illegitimate, I find that a very odd thing.

Right? Because he was the U.S. attorney in the District of New Jersey many years ago. He was in the Justice Department. He was a Third Circuit judge. Now he's on the Supreme Court. The very nature of the job is one in which, unless you're always and forever, on every occasion, part of a unanimous opinion, you're going to get criticized by definition. Like, that's literally every day. The job of everyone is to put down their position. And most times...

based on the track record, there are going to be people who are on the other side of the issue from him and thereby criticize him. So first of all, is he in the wrong line of work?

You know, I think he is, in important ways, not especially well suited for this job. You know, he referred to, for example, an amicus brief filed by several Democratic senators as bullying. You know, if you view ordinary court filings as bullying, you know, maybe you shouldn't be in the business of reading court filings day in and day out. It also means he had a better childhood than I did in New Jersey.

if that's what he thinks bullying is. Okay, so let's talk about John Roberts for a moment in this dimension. I hadn't planned to talk about all this, but then I just was thinking about the subtitle and the descriptions. So John Roberts, I believe your thesis is also an advocate of the conservative grievance principle. And yet, since I get from John Roberts is, he's incredibly cordial, professional, likes the back and forth, likes the debate.

Unlike Alito, tell me if you agree, John Roberts does not feel that any and all criticism of him is illegitimate. It's part of the process. That's how it goes. Is that fair?

I definitely agree. He sits on another part of the spectrum from Justice Alito. But I do think he exhibits some of the similar mindset or similar tendencies. And I just give two examples of that. One is I'm thinking of his opinion in the student debt relief case where he wrote for six Republican appointees, you know, invalidating President Biden's

big efforts to cancel student debt. And at the end of his opinion, he kind of tone policed the dissent written by Justice Kagan saying he thought it was a problem that people today are not only criticizing Supreme Court opinions, but saying they go beyond their proper bounds of authority. And he thought that was basically too harsh, too far and out of bounds.

And so it's not that he views all criticism, but I don't know, particularly pointed criticism or criticism that is, you know, hitting the nail on the head a little as criticism.

ruffling his feathers and seemingly inappropriate. And then on the substance of big campaign finance decisions, in particular decisions like McCutcheon versus Federal Election Commission, in which he suggested that campaign finance regulation that sought to kind of tap the influence of the mega rich and equalize political spending in some respects was absolutely

actually unfair discrimination against the mega-rich because it didn't allow them to do something they were entitled to, and it targeted them for being mega-rich. And so I do think, of course, he is way more politic than Justice Alito has ever been. And his views are not exactly on all fours with Justice Alito, but I do think he has displayed some of the similar thinking. Is there an opinion in which

John Roberts called out Justice Alito for being too harsh in tone? Called out Justice Alito. So no examples are coming to mind right now. Because Alito is a lot harsher than Justice Kagan almost every time out, no? Yes. Yes. So, you know, you can think of, for example, Justice Alito's dissent in Bostock versus Clayton County, which he likened the majority opinion to a pirate ship.

You know, casting a false flag or Justice Alito's separate writing in Fulton versus City of Philadelphia in which he said he was disappointed in the court, you know, which had failed and abandoned religious liberty. And Chief Justice doesn't say anything in those cases about his pointed remarks. Can I make a side comment, Leah? Yeah. If you and I were ever on Jeopardy and the category was Supreme Court opinions, I would just leave the stage.

I would say, Alex, I'm out. I would take that as a compliment. Because every time I've asked a question, I think you've cited three cases by name. So, you know, it's very impressive. Part of being a constitutional law professor. Well, I'm going to come back to fringe theories and bad vibes in a moment. But a theme of your book and a theme of these cases is, as you've just described, if I can use the phrase,

the inversion of victimhood, that in some cases, the way that the party who is aggrieved argues about being aggrieved, sort of in the legal dimension, can pass, I guess, the mildest of straight face tests. But in the broader world, it's like the person, there's a further example, similar to the one you mentioned. You'll see some big celebrity on a nighttime talk show saying,

That's being watched by millions of people saying that they feel like they don't have, you know, there's no free speech because their opinions are not liked. Meanwhile, they're conveying their view about their opinions not being liked to millions of people without impediment and without being restricted in any way. Can you talk a little bit, and you give other examples of cases, can you describe sort of as a logical matter how that works, the turning of somebody who has great

privilege and resources or platform or power, how they become a victim? Yeah. So we can link this to several phenomenon that have happened recently or are ongoing. You know, one is when you see pretty powerful people decrying what they describe as cancel culture.

And what they mean by cancel culture is the New York Times did not accept my op-ed or the New York Times has not hired me as an opinion columnist. But, of course, many of these people have their own columns and other platforms who are more than happy to publish them. Or, you know, we've seen this in, for example, Elon Musk, right, taking...

taking to whatever platform he can find in order to criticize the Tesla takedown protests or criticisms of him in the media. And where this comes from, you know, where people come to see themselves as the victims, I'm not sure whether some of it comes from an entitlement complex where they have come to see themselves as deserving of all things, or whether some of it comes from a natural human instinct of,

not particularly liking criticism and therefore sliding into thinking, well, it must be an attack against me or invalid or, you know, out of bounds. But I think that some of what the Republican justices are channeling in their opinions is very much of a piece with this. You know, when we think of, for example, them saying,

suggesting that civil rights protections for the LGBTQ community is actually a form of discrimination against religious and social conservatives. Because the civil rights protections say, this thing you religious and social conservatives want to do, it's actually discrimination and unlawful, and that doesn't feel good to the people who want to engage in that now prohibited behavior. So let's go back to your book. We talked about conservative grievance.

Fringe theories. I think I have a sense of what some of those are from reading the book. But for the uninitiated, what's an example of a fringe theory? And how does a fringe theory make its way into Supreme Court jurisprudence? How does that make any sense at all?

Yeah. So a fringe theory, generally speaking, is just a theory that, you know, lacks a basis in law and is not supported by a majority or even a strong plurality of the entire country. So it captures only a small minority of the country. So an example of a fringe theory that I think has made its way into Supreme Court jurisprudence is something called

That I think is related to the Stop the Steal movement, which itself is kind of a fringe theory. So Stop the Steal movement, of course, maintained that the 2020 presidential election was stolen, illegitimate, involved widespread voter fraud, and kind of resulted in an attempt to overthrow the results of the 2020 election. What people...

might not know or might not remember is that theory is actually related to a principle of law that the Supreme Court has now placed in Supreme Court opinions, and that's this independent state legislature theory. The idea that state legislatures and state legislatures alone, to the exclusion of state courts,

to the exclusion of state executives, they get to set the rules regarding federal elections. And it was based on that idea that John Eastman and other people recommended that Vice President Pence could just throw out the votes, effectively send the election back to state legislatures, and state legislatures could pick a president, notwithstanding how the people in their states had voted. So that precise version of theory, of course, isn't accepted by the Supreme Court. But...

Right. Like another version of the independent state legislature theory, which is, yes, state legislatures have the primary role in establishing the rules regarding federal elections, again, to the exclusion of state courts and state executives. That has made its way into Supreme Court opinions. That was the concurrence in Bush versus Gore where the Supreme Court stopped the count in the

2000 presidential election and handed the presidency to George Bush, also made its way into now a majority opinion in Moore v. Harper, the independent state legislature theory case where the court rejected an extreme version of the theory but said some version of the theory is actually a part of our Constitution. Is the major questions doctrine a fringe theory? So I would describe the ways in which the Supreme Court has applied the major questions doctrine as a fringe theory. So

The major questions doctrine is the idea that when courts are interpreting statutes that authorize administrative agencies to enact regulations, that courts should place a thumb on the scale against the agency in certain kinds of major questions cases. It's an exception to textualism, how the Republican justices usually want to read statutes because they're not going to interpret the statute according to the

the best interpretation of its words. Also, it's a way of incorporating the Republican Party's opposition to regulations into the law, because how does the court define a major question? Based in part on the idea that a regulation is politically controversial. So what regulations have they defined as major because they're politically controversial?

The Clean Power Plan, as well as student debt relief, as well as a test or vaccination policy. These were all regulations where there was a clear partisan divide as far as who supported the regulation and who opposed it. So it's a way of incorporating, I think, Republicans' kind of fringe positions on climate change, vaccinations, and student debt relief into the law. Now, on the major questions doctrine, to the extent it's a doctrine as opposed to a fringe theory,

Are the conservatives consistent in how they apply it? And the reason I ask is I think you and others have said there's a way for the progressives, depending on the case, to wield that doctrine against the conservatives. Am I right? Yes. So I think it's a little early to know exactly how they're going to apply this doctrine, in part because they didn't bother announcing it until the Clean Power Plan case, you know, formally. And...

Neither did they really think to apply the doctrine while the Trump administration was doing some fairly significant things the first time around, such as, for example, creating a pretty broad exception to the Affordable Care Act's protections for health insurance coverage for contraception. So I am not exactly holding my breath.

to see the Republican appointees invoke the major questions doctrine against a lot of what Republican presidents are going to do, in part because the doctrine has baked into it some pretty jerry-rigged exceptions, such as, for example, in the case of immigration or the case of maybe foreign trade. Like those are instances where the Republican justices have said maybe this might be less of a constraint or

on what the executive branch can do. And that, again, seems to give Republicans more powers in exactly the areas where they would like more power. So can I ask you a strategic question then? Yes. So let's say, hypothetically, that you're on the progressive side of the court and the conservatives have come up with a crappy theory, a fringe theory that is also crappy, like the one you've just been describing in the minds of a lot of people. Then a case or controversy comes before the court

Do you, on the progressive side, if you think that strategically applying that crappy theory would get the right and just result in that case, do you apply it and use it to try to convince your colleagues from across the ideological spectrum to join you? Or do you reject the crappy theory and figure out other ways, hoping that the crappy theory will one day fade away? How do you think about that if you're progressive justice?

I think this is a really difficult question, and it's part of why being a Democratic appointee on the Supreme Court is probably not the easiest, most fun job right now. Right. And I think the answer is it's probably going to depend on something of a case-by-case, doctrine-by-doctrine consideration. I think there are some doctrines whose very premises are so hostile that

to the foundations of a liberal constitutional democracy or so ideologically inflected that it's probably not worth trying to wield them or salvage them in cases where

you might be able to use them strategically. Instead, better to maybe write separately and say, I think this regulation or this statute or this executive order is illegal for other reasons. And if your Republican colleagues are willing to apply the doctrine in consistent ways, they should reach the same conclusion. In others, you know, the underlying doctrine might be, let's say,

as in not super grounded in the law, but not necessarily one whose premises are antagonistic to the country being a liberal constitutional democracy. In that case, the calculus might be different. And if, let's say, your Republican colleagues are really only going to apply the doctrine in consistent ways or reach a particular outcome if they're

you're there with them and you join their opinion, then sure, right, in that instance, I can absolutely see the case for going along. But I think it's really a complicated calculus that's likely to vary case by case, doctrine by doctrine, and is also going to depend on your assessment of what you think your Republican colleagues are likely to do. Right. Okay, ready for the next one? Sure. Is or is not originalism a fringe theory?

I think originalism is basically a way of

shoveling fringe theories into constitutional law. So it's very meta. It's like the meta fringe theory. Exactly, exactly. It's like the funnel for fringe theory is to get into constitutional law. You know, originalism kind of as an idea in some respects I don't think is necessarily a fringe idea. I think it was kind of propounded as an insurgent theory to roll back a lot of

I don't know, the 20th century. But, you know, the notion that we should interpret legal texts, you know, what they meant when they were enacted is not necessarily out of bounds. I just don't think it's a great fit for...

our Constitution for myriad reasons, in part because when the Constitution was drafted and ratified, it was drafted and ratified in undemocratic ways. So using originalism is only going to perpetuate the democratic deficit in our Constitution and constitutional law. But I don't think it necessarily has to be a fringe theory on its own rather than a vehicle for them. You're pretty generous to originalism there. I try. Yeah.

All right. So let me ask you this question. Was the idea of the right to privacy in the Constitution a fringe theory, say, in 1958? So I am going to say no, but I want to explain that kind of in three different ways, if that's OK. I'll try to do it quickly. And so for people to understand why I'm asking the question, some of these seminal cases about a right to privacy that is not stated explicitly in the Constitution—

was found to exist in the constitution largely in a series of cases post 1958 so okay go ahead

So first, I think the idea that the Constitution protects some rights that are not specifically or explicitly mentioned in the Constitution's text is absolutely not a fringe theory. There's just several indications in the Constitution that there are such rights from the Privileges and Immunities Clause, which doesn't define what the privileges and immunities are, to the Due Process Clause, which doesn't define what a constitutionally protected liberty is. So it's not, I think, fair.

outlandish to think the Constitution does protect some rights that are not specifically and explicitly mentioned in the Constitution's text. Is the right to privacy one such right? I think around the time that the court is

establishing and defining the right to privacy in cases like Griswold versus Connecticut, you know, which involved a restriction on contraception. That is around the time of, you know, sexual revolution in the country, the country coming around to more civil libertarian instincts that, you know, the release of the Kinsey report suggests Americans are a little kinkier, you know, than previously realized. And maybe it wasn't the government's job to kind of impose particular sexual mores on them. So I don't think it was a fringe theory in the sense that it was

catering to a narrow segment of the country or imposing, right, like a narrow segment of the country's views on everybody else's. So it doesn't really fit, you know, the definition of a fringe theory, I think, in some important respects. Obviously,

Obviously, it struck some people as quite odd and problematic. And I understand why people are nervous about the prospect of rights being protected that aren't spelled out in so many terms in the Constitution. But it would not be a fringe theory in the way I think about it. I'll be right back with Leah Littman after this.

Tell me if this sounds interesting to you.

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before the Supreme Court or will be before the Supreme Court, but it's wending its way through the courts up in the area of immigration, but not just only in the area of immigration, is the issue of how expansive is the executive branch's power, right? By the way, while we're transitioning to that, let me ask you one more question about a fringe theory. Is the unitary executive theory a fringe theory?

That one I will go all in on being a fringe theory. What is it and why is it fringe? Unitary executive theory, I'm just going to describe generally as the idea that all of the executive power is vested in the president. And importantly, that the executive power contains many more things than are specifically listed in Article 2 and contains things other than the power to execute laws that are fringe.

created by Congress. The reason why I think that's a fringe theory is, you know, it's really kind of trotted out during the Nixon administration and the Nixon administration's quest to, you

these more and more power and exercise power in abusive ways, whether that is investigating political opponents, whether that is declining to spend funds appropriated by Congress and a host of other overreaches and abuses. And I also worry that the unitary executive theory is, in important respects, inconsistent with a system of separated powers and rule of law because it allows the executive branch to be above the law in important respects. You know, Congress cannot place some restrictions on

on the president, cannot, for example, insulate certain officers from presidential removal because the president gets to execute all executive power. It could call into question things like the civil service. And so I think the implications and the premises of the theory and its origins, I don't know, I'm willing to put that in the fringe theory bucket. Okay. So that's a few. We'll probably stop there. Now,

When you remember the public and you're hearing and seeing these debates about what is in the wheelhouse of the president and what is not, and what the prerogatives of judges are and what they're not, there's a lot of rhetoric that attends these things. And every time I see a conservative say, you know, that's a terrible decision by a judge on social media, I'll see a lot of people just reply to me mindlessly, but that's my opinion, with, you know, nobody elected that judge. It's just a stupid judge.

What right does a judge have to do this, that, or the other? And the particular example I want to ask you about that's been in the news is the debate about the Alien Enemies Act. And I don't have the exact language in front of me, but basically the executive, the President of the United States, can do certain things and take certain liberties under the Alien Enemies Act if and when there is a determination of an invasion or some other kind of incursion and there's a declared war.

And so Donald Trump has used that to deport various people. And some judges and one, I think, a Trump appointee in the last week has determined, well, the fact that you have some gang members here from another country doesn't mean that we're in a declared war against that country, Venezuela or otherwise. And it's not an invasion or an incursion the way you think about that word ordinarily, right?

And lots of people have been complaining about that decision. But one person in particular, who I believe went to law school, and I believe went to the law school called Yale, is the vice president of the United States, J.D. Vance. And he says with a straight face and with great stridency, right, he says, the judge has no business deciding that. The president decides foreign policy. The president decides whether or not we're at risk. The president decides whether or not we have an emergency. And that's not for the judge.

And so I'm paraphrasing here, they should just butt the F out. And he says it in a way that if you don't know anything and you believe in a strong executive, which by the way, I do, I just don't believe in some of these fringe theories that you've been discussing. It doesn't sound crazy, but it is in fact completely crazy what J.D. Vance says. Do you agree? And can you explain why?

Yes. So J.D. Vance and others are very good at sandwashing some of the worst fringe theories. And if I could just connect your summary of the Alien Enemies Act to the unitary executive theory that we were just talking about, one of the more frightening aspects of the Alien Enemies Act case for me has been in the government's briefs in those cases, they have asserted that the Constitution gives the president the authority to summarily expel people that the president views as a threat to the country. Right.

And that, of course, would be such a massive, far-reaching, sweeping authority so readily susceptible to abuse. That's just one manifestation of the theory that I think puts it into the fringe theory bucket. But on J.D. Vance in particular, I mean, what is so outlandish about this is here,

He is relying on the fact that a federal statute, the Alien Enemies Act, gave the president certain powers. But it's a statute that gave the president only certain powers. So what these judges are doing, including the most recent Trump appointee, is saying, you know, president, this statute only allowed you to designate certain persons from countries that are engaged in predatory incursions or crimes.

of war against the United States. And that just isn't true in the case of Trende Aragua, which, by the way, is not a foreign nation. And so this statute does not, in fact, give you the powers that you are claiming it does. And so it's not like the judges in these cases are imposing contestable visions of what the Constitution means on the president. Instead, they are just whoring

holding the president accountable to statutes passed by Congress. They are enforcing a democratically elected branches, directives and constraints on the executive branch. And so I think the idea that courts have no role to play in holding the executive accountable to the law, meaning statutes passed by Congress is, is,

a terrifying vision of executive power because it would mean there is nothing Congress can do to restrain or restrict what the president does. Yeah, I mean, the way I think about it is if you pass any statute that has some word in it that gives the president special authority in the circumstance in which that word is applicable, like invasion or incursion,

Then on J.D. Vance's theory, the president can pretty much get away with anything because if the question of what's an invasion is up for debate and you can take, you know, sort of radical positions on it, then what's the limiting principle? So, for example, if J.D. Vance's theory is correct and President Trump's theory is correct, isn't it also true that Trump could just say, you know, all these imports coming in

from Japan are an invasion or an incursion on our sovereignty or whatever words he wants to use. Colloquially, you can maybe make those arguments. We talk about a war on drugs. We talk about a war on terror. But colloquially, he says, these imports are some kind of an invasion of products and it puts our nation at risk. National security is invoked. I'm going to start sending Japanese Americans or other people back to Japan or elsewhere.

Is there anything that, like, if J.D. Vance is correct, can't the president also do that?

Yes. I mean, the president could also declare the woke left, a foreign gang whose horrible, woke ideas are invading the country, right? And deport American citizens on the ground that they somehow fall under the alien enemy set, right? Like, if truly courts cannot hew the president to the words of a statute, then nothing stops the president from adopting these extreme, outlandish, specious theories of what these laws could do, even if they are

utterly baseless and make no sense of the law whatsoever. I should take this opportunity to state in tremendous self-interest that I am not a member of the woke left. In case ICE agents are listening, that was a bad suggestion, Leah. Sorry. I don't mean to do their work for them. But how does, I don't want to belabor it and get overly dramatic, but I come back to this sane washing you called it

This completely nonsensical, ridiculous, absurd concept of the judge has no role in interpreting a critical word in a statute and the president can interpret it any way he wants, especially when he knows better. Because even at Yale, they teach you a little bit of black letter law. Of what that means in terms of long-term faith that people have in the role of judges and whether or not the judiciary...

will ultimately stand firm, and or what kinds of people are going to be appointed to the bench if that's the judicial philosophy and kind of jurisprudence you're expecting from a judge.

No, I mean, I think we should absolutely understand what J.D. Vance is doing and saying to be trying to move the Overton window along the lines that you are suggesting. You know, he is both signaling to the courts that the administration does not believe that basically any judicial review or judicial oversight of their actions is legitimate, seemingly raising the prospect of

not complying with court orders and thereby maybe worrying courts to such a degree that they might think twice before ruling against the administration or trying to order the administration to do things. I think they are also signaling, as you suggest, their preferred vision of

of constitutional law and what they might be looking for in judicial appointees. And, you know, we've seen some of the appointees from the first Trump administration adopt pretty wild visions of executive power. You know, Judge Eileen Cannon obviously comes to mind.

where she basically declared that President Trump retained some interest in documents after he was no longer in office and he could interfere with the Department of Justice's investigation and attempt to get the documents back. She also propounded this very odd theory of executive power that would basically call into question any and all special counsels that had been appointed to investigate executive branch officials. So yes, I think we should take what

Vance and others are saying as attempts to muddy the waters isn't quite right, but I think move the needle. Are you surprised to any degree that the Garcia case involving this person who's claimed to be part of a gang, even though there was an order that was supposed to prevent his deportation, sent to a notorious, terrible prison in El Salvador, that that case has gotten the amount of attention it's gotten

And that if I read the polls correctly, the majority of Americans are against the deportation of this person who may or may not be a criminal. I keep quoting this Judge Wilkinson sentence from his opinion from the Fourth Circuit a couple of weeks ago, because I think it's sort of the critical portion of the opinion and it is relevant to a lot of these discussions, that the government says he's a criminal and a terrorist. And Judge Wilkinson said, perhaps, perhaps not.

And this administration keeps, I guess, banking on the fact that some core number of people in the country will just take their word for it if they point and say, you're a terrorist, you're a threat, you're a member of a gang. And it seems like maybe that's not good enough. What lesson do you take from where public opinion is on that case? I think this has been one of the more hopeful things to come out of a truly grotesque and horrific situation.

that remains ongoing, which is, you know, I am not an optimist about the Supreme Court or about a lot of politics, but I have always held out hope that a majority of the country is not actually on board with a lot of the more capitalistic

catastrophic things the Trump administration is trying to do, including asserting the power to just declare someone a criminal or gang member or enemy alien and expel them to a foreign mega prison with no recourse whatsoever.

I think most people or a lot of people understand how dangerous that kind of power is. And there's a reason why the Constitution contains a guarantee of due process that I think is intuitive to people, which is what is to prevent the government from accusing me of being a gang member or a member of the woke left. You know, I want the opportunity to prove my case to someone who is going to listen to the evidence.

And so it gives me hope that, again, a lot of the country still recognizes the importance of that principle and that protection. And that is part of what gives me hope and part of what makes it so important for people to continue fighting and for people to continue doing good.

The amazing journalism and reporting that has brought to light, you know, the stories of so many of the people who have been sent to the El Salvador mega prison, you know, not just Mr. Obrego Garcia, you know, who was subject to an order directing that he not be removed. And he is, of course, not removed.

Venezuelan and therefore not even subject to the Alien Enemies Act proclamation. But, you know, the young gay makeup artist, the soccer player who had, you know, some soccer tattoos, the individual who was part of another settlement and was not supposed to be removed until their asylum application was processed. You know, there are so many individuals who were wrongfully sent to that El Salvador prison and they were sent there in a hurried

frenzied process that was basically designed to terrorize people. So there's the Abrego Garcia case. There's the different Alien Enemies Act case we talked about. And, you know, one or more of those cases, as it relates to executive power and the authority that Trump claims for himself and his allies claim for him, is one of those, the most significant potential watershed cases

in this debate over whether or not Trump's power grab can be stopped. Is it the Garcia case? Is it the Alien Enemies Act case? Is it some other case that we should watch with more care than any other that might be the moment where the Supreme Court or some other court, if it doesn't get to the Supreme Court, takes the most definitive stand where we see that Trump either has to defy it explicitly and directly,

or acquiesces and effectively restrains his crazy interpretation of his own authority. Yeah. So I am hesitant to identify the one case that I think would precipitate that kind of moment. I think I would put the Alien Enemies Act and the Garcia case together

as cases that should belong on that list because I think if we saw what is happening in our country in some other country namely a president basically asserting the power just to designate certain individuals as threats to the country and summarily expel them to a foreign prison without so much as a modicum of due process that would reach to us as authoritarianism and it should be

when it happens here as well. You know, the two other kind of categories of cases that I'm definitely watching are cases about the president's authority to decline to spend federal funds or to freeze federal funds in violation of federal laws. I think the president's assertion of that authority is one of the more

unconstitutional, anti-constitutional, undemocratic exercises of authority because Congress's power to spend and to restrain how the executive branch can spend money is maybe one of the most, if not the most important tool that Congress has at its disposal to stop executive branch overreach and to really hold the executive branch accountable to the law. So I am definitely watching all of the impoundment cases that

And then the third are the law firm cases where the president is targeting law firms and trying to punish them for representing certain clients or advocating for certain causes that he does not agree with. And that, too, I think is would be a profound indication of a country gone wrong.

Yes, the law firm cases are deeply important to the country and also important to me personally, as people who listen to the podcast know. I'm a partner at WilmerHale, one of the firms that got an EO, an executive order, and is fighting. And turns out, once upon a time, you were a lawyer at that firm. So we're sort of fighting for you as an alumna of the firm as well. Let me ask, there was a ruling that's a permanent ruling by the district court judge,

in connection with the executive order imposed not on Wilmer Hale, but a very, very similar one imposed on Perkins Coie. And Judge Beryl Howell, how would you characterize her opinion and the definitiveness of her ruling in favor of the law firm and against the Trump administration?

I think she is horrified at what the administration is doing. And if you read her opinion, I think she is also deeply disappointed with and concerned about the fact that the various law firms are not fighting back. Do you think—I'm not allowed to make these predictions—do you think that there is any chance that the Supreme Court rules otherwise? Yes.

I think the Supreme Court will be troubled by the targeting of law firms. I see Judge Howell's ruling and the other rulings in all of the cases in which these executive orders have been challenged as likely to stand. Do you think, well, you were very, you're more vague than you usually are in response to my questions. Are there particular justices do you think would be more likely to go the other way and to say that the president of the United States has

This authority, notwithstanding the First Amendment, the Fifth Amendment and the Sixth Amendment? So I am unwilling to say I am confident they are going to be unanimous. And in part, that's because I don't know if these cases are going to go up to the Supreme Court this term or whether they might go up in a later term.

And why does that matter? Why do you think by that point, Donald Trump might have replaced one of the justices who's currently on the Supreme Court with another nominee? And I can see him nominating someone who would uphold these executive orders. We get questions from listeners and I answer some of them on the podcast every week. But this time I got one that I thought, since you were our guest, I would put to you. It's from Russ from Blue Sky.

who asks the question, do you think that John Roberts is worried about how history will judge his court, Professor? So I'm not sure he thinks a lot about how history will judge his court. I do think he thinks about the court's standing in the eyes of the public. I'm not sure he spends a lot of time thinking about what the public is going to think 50 years from now, you know, after the Roberts court is no more.

That's super interesting. I didn't expect you to answer that way. So you think he thinks the way the court is covered in the Wall Street Journal and the New York Times on a regular basis means a lot to him? And if that's so, that causes me to be more surprised at his lack of leadership on the court in terms of an ethics code and various other things. What do you think about that? So I think he cares deeply.

You know, it's going to be roughly tracked in media coverage, but what people's perceptions of the court are and whether they think the court is dominated by a bunch of partisan hacks, you know, junior varsity politicians. I think there was a time when, you know, the Supreme Court didn't have six Republican appointees on it where he was able to and did do more in order to, you know,

I don't know, bolster the perception that the court is

not totally political. You know, he voted together with the Democratic appointees, famously the then four Democratic appointees, in upholding key provisions of the Affordable Care Act. He voted together with the then four Democratic appointees to strike down President Trump's attempts to end the Deferred Action for Childhood Arrivals program, as well as the efforts to add a citizenship question for the census. So I think at a time when the court was 5-4, you know, he did...

I think, try to and was successful at ensuring some big high salient cases voted in ways where you had the Republican appointees altogether and the Democrats in dissent. But sometimes the Democratic appointees were in the majority together with a Republican and other Republican justices were in dissent. You

he doesn't have that kind of power in a court where there are six Republican appointees. And so I don't know if he has stopped trying, for lack of a better word. I think he also places a lot of significance on unanimity and thinks that unanimous decisions send important signals. And I think that fact

often requires him to dilute, you know, the substance of the opinions. You mentioned on ethics, you know, the Supreme Court did release that guidance document on ethics. And I think that was an effort to try to address the public opinion

to the perceived excess and corruption and lack of ethics at the Supreme Court. You know, in the Abrego-Garcia case, for example, that order was unanimous, but it also gave a little bit to both sides. And so I think the chief does still care about that, but it's just harder to carry out in a world where there are six Republican appointees on the court. Okay, before I let you go, quickly, in like three minutes,

Tell our listeners which are the cases coming up for decision this term or if you can anticipate next term that they should really be paying attention to and that are really important, whether they're on the tips of people's tongues or not. OK. So one significant case this term, Louisiana versus Calais, it is about the future of the Voting Rights Act or what remains of the Voting Rights Act and whether it is unconstitutional for states to try to comply with the Voting Rights Act's protections for voters

the political power of racial minorities. That's one. Other big cases this term, I think, are those related to religion and public schools. So Mahmoud v. Taylor is about whether schools can include LGBTQ inclusive reading material in their instruction. And Oklahoma Charter Board v. Drummond is about whether states must

create religious public charter schools. I think those cases have the potential to radically transform public education as we know it and the role of religion in public education. So those are the three cases this term I would flag. I would have flagged the non-delegation one, but I actually don't think the court is going to strike down the particular program it's reviewing on non-delegation grounds.

Is there any case that's coming up that you think we might get a surprise in? Because it seems like, generally speaking, people who follow the court closely like you and others almost always get it right in predicting where the court is going to come out. And that may be because of our confirmation process and because many but not all of the justices have a clear track record and you kind of know where they're going, what they're thinking about things. Any predicting of a possible surprise in the near future?

Um, so I, no real predictions of surprises are coming to mind. Well, that's unsurprising. I guess you don't know them, right, if you don't know them, so. We never got to bad vibes. What's an example of a bad vibe? Conservative grievance is a bad vibe. Bad vibe just refers to the feelings that the Republican justices are imprinting on the law and fashioning the law around. And conservative grievance is just one of them. Okay, well, for people to understand more about

I commend this book to your attention, Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes. It's great. It's a great read. It's very educational and important right now. Leah Littman, thanks for your time. Thanks for being on the show and good luck. Thank you so much for having me. My conversation with Leah Littman continues for members of the Cafe Insider community.

In the bonus for insiders, we discuss whether public opinion matters to the Supreme Court. Ruling for positions that have, let's say, opposition running in the two-thirds numbers, I think that is probably an indication of a court gone wrong. To try out the membership, head to cafe.com slash insider. Again, that's cafe.com slash insider.

Stay tuned. After the break, I'll answer your questions about whether a non-lawyer has ever served as a Supreme Court justice and what happens if a lower court defies a Supreme Court ruling. Now let's get to your questions.

This question was posted on Blue Sky from a user with the handle Free the Colorado, which begs the question, Free the Colorado from what? Maybe he'll let us know, Free the Colorado. The question is, what happens if a district court openly defies the Supreme Court? Well, that's an interesting question. It's a rare thing and a difficult thing for a district court to accomplish. One glib answer I could give is,

in the same way that the Supreme Court doesn't have an army, nor does a district court. And in the ordinary courts, as you may know, lower courts, including district courts and appellate courts, are duty-bound, obligated, ethically, professionally, legally, and constitutionally to obey the precedent set by the Supreme Court. Those things are binding on the lower level courts, the district courts, all across the country. So, for example, if someone goes to trial on a criminal matter and is convicted by the jury, and the district court judge undoes the verdict,

as is the judge's right under certain conditions. And then that goes up on appeal all the way to the Supreme Court. And the Supreme Court reinstates the conviction. Now you have a convicted defendant. That defendant needs to get sentenced and likely go to prison. The district court can't simply set that person free. It does not have the legal authority to do so, nor, practically speaking, the ability to do so in real life either. But more broadly, to answer your question,

If a district court judge openly defies a Supreme Court ruling, there are a number of ways the judicial system can respond and get things back on track. First, the most common move is obviously for someone affected by that decision to appeal to the appellate court, the U.S. Court of Appeals. And the higher court will almost always reverse the ruling if the lower court's decision is out of line with Supreme Court precedent. And that's sort of that.

If the original judge has shown bias or refused to follow the law, the appellate court can send the case back down to the lower court and assign it to a different judge. So it's very hard to defy a Supreme Court decision or opinion or ruling. Another thing that an appeals court can do, and that includes the Supreme Court, is issue what's called a writ of mandamus, which is basically a court order that forces a judge or government official to carry out a specific legal duty that they've been avoiding.

So, say the Supreme Court rules a particular way and sends a case back down and says, you know, re-sentence this person or re-decide this issue based on the parameters we've outlined, and a defiant judge continues not to do so. There can be real consequences for that. They may receive a public reprimand from a higher court, which is an official warning that goes on their public record. If the behavior is more serious, the judge can be referred to the judicial conference, which has the authority to recommend impeachment.

And in the most extreme cases, of course, Congress can independently impeach a federal judge. So here's an interesting example that was much in the news many years ago of open defiance by a judge. Now, that judge was the Chief Justice of the Alabama Supreme Court, Roy Moore. He's not a federal judge, per your question, but as a state judge, he was still required to follow all Supreme Court rulings. And in this matter, it didn't involve a case or controversy of a party. It was something a little bit different.

In 2001, Judge Moore installed a monument of the Ten Commandments in the Alabama Judicial Building, which houses the Alabama Supreme Court. The ACLU filed a lawsuit arguing that the monument violated the First Amendment by promoting a specific religion. The federal district court agreed and ordered the monument to be removed, and the 11th Circuit Court of Appeals upheld that ruling. So there you have an appeals court calling for the removal of something based on an

an adjudicated violation of the First Amendment, and Judge Moore, Justice Moore did what? He refused to follow the court's order. That refusal led Alabama officials to file a complaint with the state's judicial oversight board that held a hearing and unanimously found that Moore had violated the state's judicial ethics. They concluded that, quote, under these circumstances, there is no penalty short of removal from office that would resolve this issue, end quote. And so, Judge Moore was actually removed from the bench.

The bottom line is, even judges are not above the law. When they defy the Supreme Court, which is rare and which is difficult to accomplish, there are checks in place, and those checks can come with serious professional consequences. By the way, in the case of Justice Moore, as you may remember, that wasn't the end of the story. I don't have time to go into it here, but he did run for re-election again as a judge in Alabama and won.

Hey Preet, this is Laura. You mentioned during your last episode that Supreme Court justices are not required to be lawyers and that made me wonder, has there ever been a SCOTUS justice who is not a lawyer? So Laura, that's a great question and the answer is a bit more complicated and I think interesting than you might expect. As you correctly noted, the

the U.S. Constitution does not specify any requirements for Supreme Court justices to be lawyers. And yet, every justice appointed so far has had some form of legal training. However, the nature of this training has varied considerably over time. Many Supreme Court justices didn't receive what you and I might today consider the standard three-year legal training at an accredited law school, and there's a good reason for that. Early in U.S. history, formal law schools were rare. Most aspiring lawyers learned the profession through apprenticeships

a practice known as reading law. Reading law involved studying under experienced attorneys or judges and studying fundamental legal texts independently. Over time, some legal experts began to see the value in a more structured and standardized approach to legal education, leading to the establishment of formal law schools. There's some debate, by the way, about which law school was the first in the U.S. Many historians recognize Connecticut's Litchfield Law School as the earliest. It began educating students in around

1774, and counted individuals you'll remember from history perhaps, like Aaron Burr and John C. Calhoun among its alumni. Litchfield's success inspired the creation of other institutions including the better known Harvard Law School in 1817 and Yale Law School in 1824. But it took a long time for law school as we know it now to catch on. Despite the growing number of law schools,

Reading law remained the predominant form of legal training until about 1890, when the newly formed American Bar Association pushed for standardized legal education. And their advocacy eventually led to the widespread adoption of the three-year law school as we know it now by the early 20th century. You can see the change reflected in Supreme Court justices. Of the 116 individuals who

who served in the Supreme Court, 47 received their legal training without attending law school, so roughly about 40%. And by World War II, law school had overwhelmingly overtaken reading law as the preferred path to becoming a lawyer. In the modern legal world, reading law is still a pathway, though a very rare one, to become a lawyer. But it still exists as a valid form of legal training in at least four states, Vermont, Washington, Virginia, and California.

In fact, one famous Californian has received a lot of publicity for her attempt to become a lawyer by reading law. Her name? Kim Kardashian. She's still working on passing the California Bar Exam. So, while the Constitution doesn't by its own terms require legal training, practically speaking, every Supreme Court justice so far has had legal education in some form, which has changed over time, as I described.

Given the modern emphasis on formal education, it is unlikely we'll see a justice without a law school background anytime soon, but technically, it's possible.

In last week's episode, I answered a question from Ed, who asked about ICE agents wearing masks during arrests. Ed was wondering about the legality and reasons behind this practice, and I explained that while ICE doesn't specifically prohibit agents from wearing masks historically, it's unusual for law enforcement to mask their faces during routine arrests. Recently, as I pointed out, ICE agents have started wearing masks more frequently due to apparent concerns about being doxxed, having their personal details exposed online.

The topic, it seems, resonated with many of you in the Stay Tuned audience. And at my request, you sent us thoughtful emails sharing your perspective. So I'd like to share some of your responses. But before I do that, I want to mention I've thought about it for another week. And I had the opportunity to talk to some former federal agents as well. And they were unanimously uncomfortable with this idea of federal agents wearing masks for garden variety arrests. The example I gave last week,

A SWAT scenario is one thing, but sort of for everyday arrests, the cloak of anonymity provided by a mask, the worry might be, would give something of an air of impunity to an agent who may arguably behave not as well if their masks were concealing their identities completely. So I'm even more uncomfortable with the idea today than I was a week ago. But here's what some of you had to say. One response came in an email from David who writes, I think ICE should have the right to wear masks in dangerous situations. However...

I do not believe that ICE agents have the right to be completely anonymous while doing their jobs. They should wear identifying insignia that declares the department, division, locality, and person, i.e. a badge with a number. Local police personnel must wear a badge. Federal agents should too. And there was this response from Leslie. If ICE agents are to be masked, they should wear an identifiable uniform with a badge that is easily visible. Otherwise, how would anyone know that they are not just being kidnapped off the street? I personally have never been arrested."

but it seems like a pretty scary experience. I also have never been kidnapped, but that seems like an even scarier experience. I don't know why anybody would want to make arresting someone even worse than it already is by leaving them confused about what was happening. It seems a lot like Latin American dictatorships disappearing people.

And finally, this is an email from Bonnie who writes, Preet, as far as this regime, give an inch, they will almost certainly take a mile. Thanks to all our listeners, including David, Leslie, and Bonnie, and everyone else who wrote to us about the issue. If any of you in the Stay Tuned audience have thoughts or questions about anything we discuss on the show, I'd love to hear about it. As always, please write to us at letters at cafe.com. I want to end the show this week with a story about a man you've almost certainly never heard of.

His name was Louis Pepe, and he was for a good while a corrections officer at the Metropolitan Correctional Center, or MCC, in Lower Manhattan. Now the job of any law enforcement officer is difficult and dangerous. The job of a corrections officer is especially difficult and especially dangerous. I want to take you back almost 25 years, a quarter century, to November of 2000,

a time before al-Qaeda was well known, before Osama bin Laden was a household name. At that time, there was an inmate at MCC named Mahmoud Saleem. He was a member of al-Qaeda, and he was there because of his alleged involvement in the brutal bombings of the U.S. embassies in Kenya and Tanzania in 1998. Those attacks killed 224 innocent people.

They were a preview of the horror that was to come on September 11, 2001. While awaiting trial on murder and terrorism charges in SDNY, Salim decided he didn't like being behind bars. And so he and his cellmate, Kalfan Kamis Mohammed, devised a plan to escape. The plan was meticulous, and it was barbaric. They would lure a guard into their cell, maim or kill him, seize his keys,

and then use those keys to get into other parts of the facility and eventually to freedom. They would further maim and kill as necessary. On November 1st of 2000, the officer they lured was Louis Pepe. There is evidence that Salim and Muhammad picked officer Pepe in part because he was known as one of the nicer guards. Once he was inside their cell, they sprayed hot sauce into his eyes.

And then, Selim took a comb he had secretly sharpened and plunged it into Officer Pepe's left eye. He plunged it so hard it penetrated Louis' brain. The attack went on for some time before help came. And this is the remarkable thing. All the while, as the attackers tried mightily to get Pepe's keys, Officer Pepe, fighting off both men by himself, would not give them up.

In the end, he gave up his eye, he gave up his livelihood, he gave up the prospect of ever having a family. But he did not give up those keys. As a result, he foiled their escape and saved other innocent people from grievous harm. Eventually, other guards arrived and subdued the attackers. Meanwhile, Officer Pepe was left blind in one eye,

partially blind in the other, brain damaged, and largely confined to a wheelchair for the rest of his days. He never worked again and required constant home care. Now my connection to all of this was that the U.S. Attorney's Office for the Southern District of New York prosecuted both men. Mohammed was sentenced to life for the embassy bombings, and though it took years, Salim also got life in prison for the attack on Officer Pepe.

My good friend and colleague, John Kolodner, played a lead role in securing that just result. For his part, Officer Pepe lived another 24 years with great hardship, but zero self-pity and his kindness intact. I saw Officer Pepe many times over the years, and it was always a joy to see him smile. Last week, I was honored to attend a memorial service for Lewis, who passed away in November.

On a windy day, at a modest gravestone, at Mount St. Mary's Cemetery in Flushing, Queens, we paid tribute to this unsung hero. Why do I tell you all this? One reason, I suppose, is that I wanted to remind people that sometimes there are not two sides. Sometimes there is evil on one side and good on the other. But mostly, I want you to know Officer Pepe's bravery. I want you to know his sacrifice.

I want you to know his name. And if you're having a tough day sometime, and you think your life is hard, I want you to think about Officer Pepe. At the memorial last week, there was a program that contained these words, which I leave you with. Lewis stood where so few are willing to stand, between danger and the people he swore to protect. That kind of bravery is not just rare, it's sacred. And today, we honor that.

As we reflect on his life, we know that the pain of this loss will never fully fade, but neither will his memory. It lives on in the stories we tell, in the lives he touched, and in the spirit of every officer who continues the mission he believed in so deeply. Officer Louis Pepe, we will never forget you. We carry your memory with pride, and we vow to honor your sacrifice by living up to the standard you set. Rest easy, brother.

We've got the watch from here. Well, that's it for this episode of Stay Tuned. Thanks again to my guest, Leah Littman. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show.

Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag AskPreet. You can also now reach me on Blue Sky, or you can call and leave me a message at 833-997-7338. That's 833-99-PREET. Or you can send an email to lettersatcafe.com. Stay Tuned is presented by Cafe and the Vox Media Podcast Network.

The executive producer is Tamara Seffer. The technical director is David Tadishore. The deputy editor is Celine Rohr. The editorial producers are Noah Azoulay and Jake Kaplan. The associate producer is Claudia Hernandez. And the cafe team is Matthew Billy, Nat Wiener, and Leanna Greenway. Our music is by Andrew Dost. I'm your host, Preet Bharara. As always, stay tuned.