Supreme Court EXPERT on Alito’s “accidental” retirement announcement

I'm joined now by co-host of the Strict. Scrutiny podcast and law professor at. the University of Michigan, Leah Litman. Leah, thanks so much for joining me. I. wanted to have you on because obviously. we've seen the the rest of the Supreme. Court decisions get handed down. So, I. want to talk a little bit about about. what we've seen, but first and foremost, something that was especially striking. for me was in this birthright. citizenship case. Uh, I know that a lot. of people are going to basically applaud. the fact that this was a win for the. Constitution, a loss for Trump who was. trying to. >> do not congratulate.

>> do not congratulate, but like a a loss. for Donald Trump. But at the same time, this was depending on how you look at. it, either a 63 or a 5-4 decision, you. know, with with uh uh Brett Kavanaaugh. kind of floating on both sides of this. question depending on what the specific. narrow ask is. But how can you have. three justices who were willing to defy. the plain text of the constitution and. say that birthright citizenship could be. upended given the fact that it's written. right there in the founding document. >> It's actually worse than that. Four.

justices said that. So this is a six to. three five to four bit. So what happened. is six justices and those six included. justice kavanaaugh said that the. executive order violated the federal. statutes that congress had passed. guaranteeing birthright citizenship. But. then Brett Kavanaaugh split off from. that six to say actually the. Constitution wouldn't prohibit this. executive order. Meaning that if. Congress repealed these statutes. guaranteeing birthright citizenship. tomorrow, Kavanaaugh together with three. other Republican appointees would have.

said this executive order can deny. birthright citizenship to some people. who are born in the United States in. violation of the plain text of the 14th. Amendment and really the foundation of. our post civil war constitutional order. That is terrifying. The Supreme Court. should not be in a position to just. nullify entire constitutional amendments. because they disagree with. reconstruction. And again, one vote. Imagine if something happened to Chief. Justice Roberts. Imagine if Donald Trump. had picked someone other than Amy. Barrett to be on the Supreme Court. We.

could be living in a world where the. court could have just dismantled the. foundation of our multi-racial. democracy. And that is terrifying. I. think just as terrifying, we're going to. get into some other decisions, but there. was apparently an erroneous uh story. published this morning by NPR where um. Nina Totenberg had written that Samuel. Alo had announced his resignation that. was ultimately rescended by NPR. So, the. question I have for you is, do you think.

that this was a pright in the sense that. they have pre-writes for any and all. Supreme Court justices announcing their. retirement or do you think that this was. an embargoed story uh that they hit go. on too early? Because I I know what my. opinion is, but I'm curious what yours. is. >> Yeah. So, I think there are some mixed. messages. On one hand, maybe it's a. pre-write and it could have been. instigated by some kind of sloppy. miscommunication. Subsequent statements. indicate that maybe NPR heard that the. chief justice was announcing retirements.

and then went ahead and hit published on. the story even without hearing Alito's. name. But there's also some evidence on. the wayback machine for example that. this was a story that was scheduled to. be posted Friday in which case that. looks like an embargoed story that went. out a little too early. So my slight. inclination is embargoed story, but I. don't know if Samito is frankly petty or. petulant enough to having seen this NPR. too early publication now choose to. delay his retirement so as to make them.

look even more foolish. I mean there. there it does hearken back to some. degree to the fact that um the the the. decision overturning Row was also. released early and then there was a lot. of triangulating out in the pundit. sphere where we had to determine whether. it was a mistake, whether it was on. purpose to acclimate people. This kind. of feels in the same world um as that. In any case, I think that if Samuel Alto. has made up his mind, he's probably not. going to allow this, you know, this. either early release or whatever it is,

uh, to change his his decision. I I tend. to think regardless that these people. probably see the writing on the wall and. they recognize that so long as there is. a Republican president in office and a. Republican controlled Senate where. they're guaranteed a conservative. replacement, then that would be their. best bet to go out. At the same time, look, they have they're this is the. moment where they're able to do a lot of. the things that they've been angling to. do for decades and decades and decades, and they're getting it done. Whether.

it's gutting the Voting Rights Act, whether it's overturning Row, uh whether. it's basically opening the floodgates. for uh money to pour into politics. So, there's a part of me that thinks why. leave when the parties, you know, when. when we're in the middle of the party, so to speak. >> Yes. No, I think that that's right. And. that seems to be part of the rationale. honestly for why Clarence Thomas doesn't. appear to want to go anywhere anytime. soon. He's having a great time as he. says making the lives miserable of the. liberals who made his life miserable. And he is seeing many of his descents. become the law. Just today, the final.

day of the term, on Thursday, the. Supreme Court made one of Justice. Thomas' descents in a campaign finance. case. The law when it invalidated these. anti-coordination limits that prohibited. political parties from effectively. funneling money to candidates directly, allowing the mega rich to evade the. limitations on the amount that they. could give directly to a candidate. So, Justice Thompson's having a great time. I'm sure Justice Alo is also having a. better time than he was having, let's. say, 10 years ago. He's still not. winning everything. And so I'm sure that.

still makes him very mad. But I think he. is also very political and he has to. look at the electoral landscape and. realize that there is a chance that. Republicans will lose the Senate and. that would mean Donald Trump could not. nominate whoever he wants as Samoa. successor. >> Yeah. Um it's it's worth asking here too. given the fact that it almost feels like. an inevitability that we're going to see. some you know 40-year-old hardline. right-wing justice take the place of.

someone like Samuel Leo and Clarence. Thomas or even you know John Roberts is. 71 years old you know maybe not old. enough to be president of the United. States uh in our current current. environment but but certainly pretty old. um you know to look at these people and. recognize that that you know they're. likely going to be uh they're likely. going to be replaced by somebody much. younger, which would entrench uh a 6-3. majority, at least a 6-3 majority for. the foreseeable future, which I guess. raises the question, and it's a question. that I brought up in in my new book. that's coming out in just a couple of.

weeks, which is court expansion. And, you know, I had sat down with Gavin. Newsome uh a few months ago, and he was. pretty um pretty cool to the idea. And. recently, he's warmed up. And just the. other day when I when I interviewed him. after after uh he read my book, he was. he was um basically of the mind that, you know, we're done winning arguments, it's time to just win. Um, can you just. give me your sense of where you stand on. the idea of court expansion given the. fact that the inevitable backlash to.

that? The push back to that is going to. be, oh, well, if you expand the court, then you're going to, you know, enter a. slippery slope where first it'll be 13. justices and then Republicans will add. 10 and Democrats will add 10 more and. then before you know it, we have as many. people on the Supreme Court as we have. in the US Senate. And I guess the alternative would just. be surrendering our constitutional order. to the weirdos on the Supreme Court who. are dismantling our democracy, undermining the institutional legitimacy. of our democratic institutions. again on. the verge of nullifying our entire.

constitutional order, destroying the. voting rights act, destroying campaign. finance regulation, incapacitating. Congress, telling Congress actually we. Supreme Court have just decided to. abolish independent agencies and hand. this president even more power even as. he is abusing that hour corruptly. So if. that's the alternative, then of course. the only solution is Supreme Court. expansion. I don't think Supreme Court. expansion should be the only Supreme. Court reform that Democrats adopt and. enact in the event that they take back. power. But I do think it is essential. And the way I put it to people is look,

imagine all of those amazing laws that. you want the Democratic Congress to pass. and a Democratic president to sign. Now, seriously, ask yourself, will this. Supreme Court let those laws stand? And. I don't see how you can look at this. most recent Supreme Court term when. again they have nullified the Voting. Rights Act, abolished independent. agencies, overturned presidents that are. nearly a centuries old and say, "Ah, yes, I think that this Republican. right-wing supermajority would allow a.

Democratic president and a Democratic. Congress to govern." It's just you. cannot say that after looking at the. decisions. >> I see you've given this no thought at. all. Um I I'm I'm of the exact same. mind. The first of all to have a. Democratic majority you that would be a. herculan herculean feat unto itself. To. have a Democratic House, Democratic. Senate, Democratic White House, then to. actually pass legislation, as we've. learned, is no easy feat even with. Democratic majorities. If all of those. things go according to plan, if you.

decide that you are making the conscious. decision to leave this 63 conservative. court in place, then you're basically. saying, I want to allow in place uh this. rogue branch of government to have a. permanent veto power over everything we. pass. And so I guess the difference here. for elected officials on the left is to. consider, do we want to just get caught. trying? Do we want to have symbolic wins. that are only going to last 5 minutes. before the Supreme Court inevitably. strikes them down? or do we want. meaningful lasting change? And if it's. the latter, then inherently you need to.

be willing to expand this court to a. court that isn't going to immediately uh. uh uh strike anything down that doesn't. comport with its political ideology. >> No, I think that that's exactly right. And even in the event that the Supreme. Court wouldn't immediately strike down. the legislation, we have seen these guys. play the long game. Three years ago, John Roberts decided he would not use. that case as the occasion to nullify the. Voting Rights Act. Why? Well, it was a. year after the court overruled Row. versus Wade and their public approval. ratings plummeted and so he stayed his.

hand only for three years later to. decide the time is right now, right? The. public eye has kind of moved on and so. I'm going to fire the kill shot on the. Voting Rights Act. And so that's what he. did. And so you cannot basically bank on. winning a Democratic majority, winning a. Democratic White House and then counting. on the Supreme Court to hold its fire. for all eternity when Democrats try to. govern. >> So I want to um to move over to a couple. of the other court decisions. Um, so I.

want to talk about uh NRSC, the National. Republican Senate Committee uh versus. the FEC and and the implications for. money in politics, which is prior to. this moment something that that we. viewed as a major problem just just how. how it was at that point. So what is it. going to look like moving forward now? So basically what happened is the. Supreme Court invalidated this. anti-coordination limit that was a way. of preventing the super rich from. evading the limitations on the amount of.

money that they could give directly to. candidates. And the way it used to work. is political parties could not funnel. money directly to candidates and allow. candidates to decide how the money would. be spent. And that's because the. contribution limits vary. So an. individual can only give $7,000 to a. candidate directly. But they can give. $40,000 to a national political party. and $10,000 to every single state. political party. What that means is if. the political party can funny funnel.

money to the candidates, then. effectively you can get a single. individual directly giving over $500,000. to a candidate. That of course is a. recipe for corruption. And that is what. the Supreme Court enabled today by. striking down the limitations on. coordination and thereby allowing super. rich individuals to give to parties only. for parties to funnel that money to. candidates. >> Now, in terms of of. the ultimate goal, which is to get money. out of politics, how how diff how much.

more difficult does this ruling make. that broader goal? Or if it's going to. happen, it's going to happen regardless. of this Supreme Court ruling. Does that. does that question make sense? >> I think so. So, I guess what I would say. is in the short term, you should. understand this decision as giving. Republicans another big leg up in the. midterms. Um, and that's because. Democrats are far outpacing them on. small um donor donations, small donor. contributions. And so what that means is. Republicans need their big donors to.

basically step up and make up the. difference. And this decision allows. their big donors again to effectively. evade the contribution limits by giving. money directly to candidates. That is a. recipe for more corruption. And I think. that this decision is another reminder. because you talk about how people want. to get money out of politics. Of course. they do. The question is, will the. Supreme Court let us get money out of. politics? And it's clear from decisions. like NRSC versus FEC that the answer is. no. So again, if you want to try to. address the fundamental problems that.

are ailing our constitutional democracy, then you have to do so not just by. passing legislation, but also by. protecting that legislation from the. Supreme Court. One more case that I want to talk to you. about is the slaughter case which allows. Donald Trump I mean this case this case. had to do with the FTC a member of the. FTC uh that Donald Trump wanted to fire. but the idea that basically other than. the Federal Reserve uh the president has. cart blanched to fire anybody within the. executive branch even in these.

institutions that were created as. independent agencies to retain their. legitimacy um and so that they would be. shielded ed from uh interference by the. White House, the exact kind of. interference that Trump wants to engage. in. So, what kind of ramifications do. you anticipate this will have? Because. this is something that Trump came out in. the immediate aftermath of and started. basically beating his chest as this. massive consolidation. I I believe the. words he used was something along the. lines of this is the biggest. consolidation of executive power in a.

hundred years. And so, what are the. ramifications of this decision? Now, >> I mean, I think he is basically correct. in that respect because what this. decision does is it hands the president. the power to control what these. previously independent agencies can do. And these agencies exercise huge amounts. of power. We're talking about the. Securities and Exchange Commission, the. Federal Trade Commission, the um. Commodity Futures Trade Commission, and. all of these agencies that are supposed. to protect consumers from fraud and. actually enforce the law against. corporations. And so we know how this.

administration has been using their. power, namely to give their friends a. pass from the law and to penalize their. enemies. And so this is giving the. president the power to effectively go. even more agencies to exercise their. powers that way. You know, if you think. about it, if you think back to the. inauguration, think about all of the. corporate executives you saw, you know, Jeff Bezos at Amazon, um Olman at AI, you know, etc., etc., Mark Zuckerberg. Those are all corporations that agencies.

like the Federal Trade Commission, you. know, are engaged in investigations or. applications of the law against. And if. you are telling the president, well, you. can order the FTC around, nothing will. stop him from accepting money from these. companies and then ordering the FTC to. go easy on them. >> In terms of some of the cases that the. Supreme Court has announced it will hear. next term, is there anything that was. especially striking for you? So, the court announced that it is going. to decide whether it is constitutional.

for governments to ban possession of. AR-15s and other semi-automatic assault. rifles. That is terrifying. Um, given. how much of a wing nut this court is on. gun rights and the Second Amendment. >> Now, in terms of that question, I mean, is the Supreme Court doing it so that. they can officially establish precedent. that would that you know that will. filter down to every district court and. appeals court basically? you know, if if. and when I think there is a it's fair to.

say if and when they rule in favor of of. allowing, you know, the proliferation of. AR-15s, is that so that it'll make it. easier for district and appellet courts. to be able to point to Supreme Court. president to basically quash this issue. um if it's brought up in any courts, lower courts across the country. >> Yeah. I mean, they are issuing gun. rights decision after gun rights. decision that will make it easier for. lower courts, especially lower courts. that are populated by some of the. extreme ideologues appointed by Donald.

Trump to invalidate even more gun. control measures. >> What about voting rights? Is there. anything on the docket for voting rights. in the upcoming Supreme Court term? >> Yes. So, the court is going to decide. whether Arizona can require proof of. citizenship um you know as part of the. voter registration and voting process. and just nothing good to expect there. I. worry. >> Is is that um kind of along the same. lines as being extrapolated to include. voter ID eventually? Like if if you have. one group of people who's forced to.

prove citizenship, will that kind of. create a slippery slope where then. you'll have voters that have to um uh uh. show ID in the event that they go to. polls as well? >> Yeah. Well, so if a state like Arizona. requires voters to prove citizenship, that's going to require them to have. documentation that would establish their. citizenship. You know, something like a. passport for example. So yes, it's. absolutely just like one method and. especially draconian method of voter. identification. Is there an argument to. be made that by virtue of requiring.

somebody to show this documentation that. isn't free, that is akin to a pole tax? >> Um, so that has been an argument um that. litigants have made. And I think the. problem is that this Supreme Court says, "Well, rules that are facially neutral, rules that don't themselves impose, you. know, a direct tax when you go to vote, we're just not going to treat those as. effective equivalents of or substitutes. for a pole tax or a racially. discriminatory measure." And so, yes, that's an argument that is absolutely. available, but it's not an argument.

that's going to succeed at this Supreme. Court. >> Right. Uh Leah, for those who are. watching and listening right now, where. can they hear and see more from you? Strict Scrutiny is available anywhere. you get your podcasts on YouTube or. podcast feeds with new episodes dropping. every Monday and then some additional. ones whenever the Supreme Court does. something extremely nuts. Um, and then I. also uh just released the paperback. version of my book Lawless that came out. June 16th and there's an entirely new. section on the unitary executive theory. that this court has doubled down on.

>> Well, I'm going to put that link in the. post description of this video. I'll. also put it in the show notes of the. podcast. Leah, as always, thank you so. much for taking the time. Highly. recommend for anybody who's watching, listening right now, uh especially with. the Supreme Court very much in the news, uh this is the number one place to go to. hear all things uh Supreme Court. Leah, appreciate the time. >> Thank you.