How Desperate Trump Could Kill Democracy: Toobin | The Daily Beast Podcast

The Supreme Court in our country doesn't have any individual enforcement powers. They don't have an army. They don't have our police force. I think Donald Trump is not going to directly defy the court. What he would do is he would say, I understand the Supreme Court has said. these tariffs are unconstitutional, but I'm going to make some changes. and these new tariffs will be different enough. And then force litigation on those sets of tariffs.

I'm Joanna Coles. This is the Daily Beast podcast. And what is going on out there. We've got U.S. attorneys resigning which never happens. We've got Pam Bondi being yelled at by the president. because she's not moving fast enough to violate all the norms of the DOJ. And of course, we've got the Supreme Court making. elemental decisions, birthright citizenship, tariffs. Over the next few months. Well, who better to unpack this with and Supreme Court scholar Jeffrey Toobin.

He's written not one, but two books about the Supreme Court. He's a contributing writer for The New York Times. And, of course, you probably know him as a contributor to CNN. Jeffrey. So, Jeffrey, how serious is. it all these resignations in Minneapolis? Well, I think you have to recognize the history here of how unusual it is. to have federal prosecutors resign at all at any time, ever.

I mean, it it's not that it's never happened before, but before this Trump presidency, in even the last Trump presidency, you never saw this kind of protest, remember? There was a major group of resignations in the New York U.S. Attorney's office, after the Eric Adams deal, where the where the, where Hodges were dropped. Charges are dropped against these, now former New York City mayor.

Right. That was a set of resignations. And now you have a group of prosecutors in Minneapolis. resigning, apparently, because, they think the Department of Justice. is investigating the victims of this, the shooting of Miss Good. And, you know, and her partner, wife, it's it's incredibly unusual. And I think it's indicative of just how politicized.

the Justice Department is, under Pam. Bondi and how, they're facing this unprecedented. level of resistance from inside the Department of Justice. So I'm dying to come on to Pam Bondi. and the whole politicization of the DOJ in a second before we do that. So what what happens? I was thinking this morning, what does this mean? Other prosecutors step up who are willing to go after. Goode's family, or they are willing to investigate her family?

I mean, one of two things happens, right? Either people come to take their place and just they find, willing participants in this, in this investigation. or they say, you know, maybe we think better of it and don't do it. Usually the rule. is, I mean, it has been under, under President Trump. Someone else comes in. I mean, what happened in, in New York was,

Amiel Bovie a senior department official who is, who was one of Trump's. defense lawyers in the criminal case against him in Manhattan. He essentially took over the case from Washington. and cut the deal with, with with Eric Adams. In return for that, he was given a lifetime federal judgeship. Right. So, you know, there are incentives that can be offered to do the president.

and the attorney general's bidding, but it is also possible that, the Justice Department leadership thinks better of the subject. of the protest and backs off. I don't know what's happened in Minneapolis because the people just quit yesterday. Is there an argument that they shouldn't have quit and that they should have. either sleepwalked the investigation until Donald Trump's, you know, famously short attention span has moved on? Or, I mean, does this actually make it worse in a way. that if you resign, someone else steps up who is prepared to do it?

That's always the argument for any resignation in protest that, you know, it's better to have someone of conscience on the inside rather than, you know, letting letting the bad guys, as it were, take over. You know, I think all you can do as, as a federal government. employee is vote with your feet. And that's what these people have done. But it it's certainly makes a big statement to resign in protest.

because that's like, you know, as I said in the beginning, this is just not something that happens very often. I take this issue pretty personally because back in the day, I was an assistant U.S. attorney, not in Minneapolis, not in Manhattan, but in Brooklyn. And, when I was an assistant U.S. attorney in the 1990s, George Herbert Walker Bush was president, but no one even really paid any attention to that, because these jobs. were seen as almost entirely apolitical, that these are I was a career employee.

These are all career employees. The jobs of federal prosecutors. historically have been pretty insulated from politics, and that's what makes what's going on now so extraordinary, because that it's such a shift and there's been so much pressure. from Washington to do the president's bidding, through the Justice Department. And it's why you see these resignations. So you've got Pam Bondi, who is a former, personal lawyer for Donald Trump.

You've got Todd Blanch, her number two. The two of them are running the DOJ. How is the DOJ faring under Donald Trump's second administration? And what are you hearing from people inside the DOJ about how it's going? Well, it's it's. a complete transformation. The the the, you know, I, I don't think I'm naive to think. that, the Justice Department could ever be apolitical.

Law enforcement always has a political dimension. However, going back to the presidency of Gerald Ford, when he took over after Watergate, there has been this real tradition. in the Justice Department of separation. from the political agenda of the president and doing just law enforcement. Now, there has there have been exceptions to that, and it's not a perfect rule, but it has been, by and large. What's what's gone on? This is a complete transformation.

And, what you've seen. is tremendous numbers of resignations in the Justice Department, especially in Washington, in the Civil Rights Division, which now exists, to to support the rights of white people. I mean, that's what the Justice Department's civil rights division. does, is to defend against what they think of as reverse discrimination. and to end any sort of programs designed to help, to help people of color.

You've had a huge exodus from the from the from from the Civil Rights Division. You've had a very great limitation on white collar crime prosecutions. The Foreign Corrupt Practices Act, which, you know, limits American companies, paying bribes abroad. That seems to say it's not. that we're we're no longer prosecuting that right anymore. Another exodus. And and most importantly, you see in the famous, email.

that that was essentially leaked, I think, by mistake from, from President. Trump to Attorney General Bondi, where she said, why aren't you prosecuting. my political enemies? And you saw the prosecution of James Comey, the former FBI director, and, Attorney General Tish James in New York. Now, fortunately for them, these cases. seem to have been brought by complete incompetence. And the the the, so this is Lindsey Halligan. Who?

Lindsey. Her how I'm obsessed by Lindsey. Yeah. She has great hair and I have no idea what she's doing. Yeah. And, neither do the judges who were allegedly, you know, who she supposedly practicing before have, like, they keep asking her, like, why are you here? You have no authority to be here. Right? But but all of this is part of this incredible. politicization, of the Justice Department. And, just today, I saw that the Justice Department,

the FBI executed a search warrant. at the home of a Washington Post reporter, who was investigating, some wrong, you know, various kinds of wrongdoing. The idea that you would search a reporter's home. is so such a departure from the traditions of the Justice Department. I mean, this story is just unfolding now, but it's another example of how, this Justice Department is breaking norms that have been honored for decades.

So how. if there were a change in administration in four years. time, three years time at this point, and the and the president was Democrat, how long does it take to rebuild? You know, this is a question that is being asked a lot. And I think anyone who tells you with certainty that they know how long or how,

because it requires. sort of relying on people to come back here and rebuild it, assuming there'll be stability, assuming there will be stability. And also, I think, you know, one of the, the important things in the conversations. I'm hearing about, you know, what will be the world like after Trump is you. don't necessarily want to rebuild things exactly the way they were in the past. I mean, there's no guarantee that that was some sort of perfection, that how do we, make a Justice.

Department, a Environmental Protection Agency administration? I mean, all of the parts of the government that the Trump has completely gutted. How do you bring them back and do it better? The one thing you know for sure is you can't do it overnight. But you it will be a complicated process and not an not an easy process. But there are certainly a lot of people thinking about this issue of, you know, a project 2029, as it were. But it's going to take a long time.

And by the way, there's no guarantee that a Democrat is even going to win in 2028, which means you could have, you know, president JD Vance, extending what we're seeing now. Right. And and what are you hearing about how safe Pam Bondi is? The Wall Street Journal wrote a piece this week saying that, she was under pressure, that Donald Trump was furious. she wasn't moving fast enough. They clearly leaking against her. So.

do you think she stays the course? It's worth noting that the president's complaint against her. not is that she's violating the norms, is that she's not violating them enough. It is that she hasn't brought enough cases against, the political enemies. I mean, remember, two, this is the week. that we learned that there was a, criminal investigation. of Jerome Powell, the head of the Federal Reserve. Right. Another political enemy of the president under criminal investigation.

It who he appointed. And and what a transparently bogus investigation involving, you know, congressional testimony about the the physical structure. and the renovations of the building where the fed is this it's it's such. a transparent attempt as as Powell himself. said to, intimidate him. So the idea that, you know, Pam Bondi being forced out, it could be worse.

The replacement. So I, I, I have I really have no idea, whether she's on thin ice or not, but it's certainly not Donald Trump's. complaint that, she is violating the norms, right? No. He's thrilled she's violated. Right. I'm sorry. He wants more norms violated. So who stands up. for the Justice Department at a moment like this? Well, you have, you know, members of Congress.

who who who are speaking out, but you're talking about a, Democratic minority that has no power at the moment. Can't can't call hearings in either the Senate or the House. And you have a Republican majority in the Senate, in the House. that has been, at least so far, almost completely quiescent and completely subservient to Trump. You have a lot of former members of the Justice Department, people who served under both Democratic and Republican presidents,

who have spoken out and said, this is not right, what's going on? But they don't have any physical, any actual power to do anything about it. I mean, usually what happens even in normal Republican administrations, you have, members of Congress speaking up and using their power. to issue subpoenas to conduct investigations, to, challenge or limit the budget of the Justice Department.

But Donald Trump so completely controls the Republican Party now. We haven't seen that. So, you know, just to answer your question of who stands up, no one with any power is standing up, right? All right. So let's move on to the Supreme Court. Which I know you've written a book about. I mean, you've written lots of books, but specifically about the Supreme Court. and the power and the personalities going on there. Six conservative judges, and we're expecting them. to come in with a lot of really important decisions.

Tariffs, birthright citizenship, the list goes on and on. How is. the Supreme Court faring under Donald Trump? Well, I think, the Supreme Court has been so far. And I want to say so far not not, you know, the verdict is not fully in, but it's been a very much a handmaiden to to President Trump. I remember, one of the signatures decisions. of the, of this Supreme Court has been the Trump case itself.

Trump versus. the United States decided in 2024, where they said, essentially, Donald Trump. and any president is essentially, immune from criminal prosecution. ever for anything he does for anything he does in as president. Right, right. And and, even if Harris had won the presidency, basically made the criminal prosecution.

of Trump impossible, because of the rules they set up. Most of the cases that the, the Trump that, that, the Supreme Court has handled so far in this first year of Trump's second term, they have allowed the president. to do what he wanted on issues like an immigration budget. But there are major issues still outstanding. The two you mentioned, I think, most prominently, whether the president unilaterally can impose tariffs.

and whether, he can end birthright citizenship. I think there's a better chance that the Supreme Court stands up to him on. those issues than what we've seen before, but but we don't know the answer to that. Yeah. So so when they're making a decision to what extent are they thinking. about the political ramifications the decision is going to have? I know they're not supposed to, but but how can they know they they. they obviously understand that the political stakes.

of the decisions, that they make, they they are very savvy individuals. They follow the news, they follow politics, they know exactly. what's going on now. They also believe, and I think sincerely, that what they are doing is applying the law, applying. the constitution, applying the statutes, and they, they, they work within that framework, but they are acutely aware. of the political stakes of what they're doing.

Okay. So I thought that what we could do is one game or you know, them. better than I do, is I could give you each of the nine justices named, and you could give me one word to sum them up. Well, how about a sentence I sent my sentences. Yeah. All right. I, you know, I'm a lawyer. I have a hard limit limiting myself to, one, one word as long as we'd have. Are you right? That. That's right. Yeah. All right. So much data. All right. John Roberts, who's obviously the the the chief justice.

Just chief justice. Yeah. You must have thought who can't have seen this in his future. He must have been so excited when you got that job. Well, I mean, I think it's important to remember that, the chief. justice is a conservative and a Republican. I think the most important thing to know about Chief Justice Roberts. is his experience as a young lawyer in the Reagan administration. That's that's what he did after, he got out of law school and his clerkships,

and he one of his. his big causes, there were, protecting executive power and limiting, civil rights, limiting affirmative action, ending, the Voting Rights Act. These are causes that are very close to his heart. So Trump v United States, the end of affirmative action, the. the almost end of the voting rights Act, all conservative causes that Roberts.

definitely believes in and has happily, led on the Supreme Court. He is not a true movement conservative, doesn't care a lot about abortion, doesn't care a lot about, gay rights and and same sex marriage. So he is not fully on the MAGA team. But don't kid yourself. He he was and is a conservative. Okay. And he was appointed by George W Bush, George W Bush, 2005.

Yeah. But he's a sort of less government, not more government. Yeah. I think that that that's safe to say, although he is someone who, believes in a powerful executive, you know, one of the, one of the big issues when he was coming up as a lawyer. was, is after Watergate, the presidency. being weakened for a vis-a-vis the courts vis-a-vis Congress. So he's someone who's not for small government when it comes to the president.

And if you look at his decisions, giving the president. a lot of power is something that that he, he has stood for throughout his career. Okay. What about Clarence Thomas? And you can't say man with, difficult wife. Yeah. He's he's I not difficult for him. I mean, they seem very they seem very happily married. He he is now the senior justice in terms of tenure on the court. He,

he was appointed in 1991. He's he's now approaching one of the longest tenures in Supreme Court history. And I wish I could do the math fast enough. It's at 35 years. Okay. And and, he, has seen views. that he expressed early in his tenure, very much as an outsider on the court. Become the law of the land. I mean, he has been vindicated by the Republican appointees to the court.

So anti-abortion and, you know, overturning Roe v Wade, which, which ultimately happened, giving individuals a constitutional right. to own firearms under the Second Amendment a great cause of his. He was the only justice who believed in it in 1991. By 2008, the court embraced. a, a constitutional right to bear arms. Lots of these, more on the social side, you know,

lowering the barriers between church and state, something. you feel strongly about making it easier to conduct executions, all of which are our our our, Thomas causes. that have come to command a majority on the court. Okay. And then do. do we care that his wife told people that they should keep protesting over January? The sixth and that, I mean, you know, the ethical issues around Thomas are so extensive.

You have to start with, you know, the circumstances of his arrival. there, where Anita Hill, a former aide to him, told Congress, you know, how he had sexually harassed her? Back when when she worked for him? Yes. His wife is a big political activist. I actually think that is of less consequence. You know, we live in a world of two career families. I don't think that the she she was a political activist.

before she married, Clarence Thomas. I think she's entitled to her career. I think a much more serious issue is the fact that he's been given. all these gifts worth hundreds of thousands of dollars, right? From people, right wing billionaires with business before the court. I think that's a lot more troubling than Ginni Thomas's political activity. But, there is no remedy for misconduct.

by Supreme Court justices except impeachment by Congress. And that's so difficult. And so cumbersome. It's never going to happen. And they don't have their own code of ethics. Right? That's another, weird fact about the Supreme Court is that. lower court federal judges, appeals court judges, district court judges. do have a code of conduct that they are obliged to follow. The Supreme Court has has made the argument that constitutionally, that cannot apply to them. They say they apply in some general way to some general code of conduct.

But the fact is, there is nothing binding that's imposing imposed on them. Right? So he can carry on taking expensive. holidays from people who want to curry his favor. Correct. He he he apparently is not doing that. anymore, but, there's nothing stopping him. Okay. All right. So Samuel Alito also long serving. Correct. He is the next, most senior associate justice after Thomas.

appointed in 2006 by George W Bush, he replaced Sandra Day O'Connor. And and I think they the replacement of O'Connor by Alito. was a real turning point in the court because, O'Connor was a true moderate. I mean, she was not a liberal by any means. She voted, for George Bush in the infamous case of Bush v Gore. Right. So, I mean, but but when it came to abortion rights, when it came to the death penalty, when it came to, affirmative action,

she was, on the on the liberal side on those issues. Alito is. not was not only conservative when he, took office in. 2006, he's gotten considerably more conservative. over the course of those 20 years, for reasons that remain mysterious to me. There is a tremendous anger in Justice Alito. You see it in his off the bench statements.

You see, it has he he feels perpetually. aggrieved for a guy who keeps winning all these cases. Who is the author of the Dobbs decision which overturned Roe v Wade? I mean, things seem to be going pretty well for him. Why he's so angry all the time. I don't get it. But he seems at this point very much to embody. a sort of Fox News approach to, his work. And he too, is winning most of the time. So. So if you, Samuel Alito or Clarence Thomas, are you irritated that I would say.

that's a far fetched hypothetical if I were Clarence Thomas or Samuel Alito. But go ahead. Yeah, I ask your question, but are you irritated by John Roberts? John Roberts is young. I mean, how does it work in terms of. like, you would. think that perhaps the most senior of the members. who's been the most longest serving would be the chief justice? No, that's that's not how the Supreme Court operates, very strictly according to seniority rules, but according to those seniority.

rules, regardless of length of tenure, the chief justice is always first. and the most important power that the Supreme Court. that the Chief Justice has is when he is in the majority. He can assign who writes the opinions, okay? And opinions come out very differently depending on who writes them, even if they're, you know, the justices are on the same side. So that's but but if if, Roberts.

is not in the majority, then it goes in seniority in terms of tenure. So Thomas first, then Alito, then. Sotomayor, then Kagan, etc., that, that that is a significant power, I think, based on my, my reporting, Thomas and and especially Alito. regard Roberts as what a lot of right wing Republicans call a squish. You know, someone who is not a fully on board.

with the Republican agenda, that he's sort of almost there, but not there. And that's a source of frustration to them. But, there's no doubt at the Supreme Court. that when it comes to seniority, the chief is always first. Okay. And do they do the conservatives all guys own, you know, I was one of the one of the metaphors. that's always been, useful to me in describing the Supreme Court.

is that it's like nine separate law firms that they. they understand that they are stuck with each other. Right? That these are the these are lifetime appointments. Yeah. So they serve year after year, decade after decade together. And Chief Justice, Rehnquist, who. was the Roberts predecessor, established a kind of norm of good fences, make good neighbors, don't harass each other. Let's just do our votes.

We're going to disagree some of the time. But but it is not an especially collegial place. They, they, they sit together for oral arguments. They have their conferences on Friday afternoon where they vote together, but they don't spend a lot of time together. The days of close friendships among the justices have have really passed. And I think Rehnquist was pretty wise to say, look, just leave each other alone and let it and let us do our jobs.

Right. So does John Roberts have like an annual Christmas party where he invites people. and they all come? Yes, there are events and they have a certain number of lunches. together and they, especially under wood centered O'Connor. was someone who really tried to cultivate a relationship. among the justices because she was the first woman. Well, she was the first woman, and she also had been an elected official. She was a politician, a state senator in Arizona. She believed in, you know, talking and trying and and she would bring in.

guests to, to talk to, you know, all nine justices, you know, artists, from the Kennedy Center, the Trump Kennedy Center. Yeah, yeah, it was it was it was the Kennedy Center then. Right. But but since O'Connor's left, there hasn't been someone. who's who's really tried to do that. And, you know, yes, there are certain events. that they all go to, but it is not a, warm and cuddly workplace.

Okay. All right. So let's go through the remaining justices. What about the, I'm not going to club the women together. That's not fair. So. Well, but but I mean, it's it's not that you're clubbing the women together. It's the three Democrat, right? It's the three Democrat, but they're four women, but they're three Democrats. I mean, Sotomayor and Kagan were both appointed by President Obama. President, Justice Sotomayor, New Yorker from the from the Bronx. First, Hispanic, to be on the court, very liberal, very,

you know, outspoken person, Elena Kagan, also from New York, but from Manhattan. Someone who came out of the law professor world. worked also worked in the Clinton White House. Had been the solicitor general, more of an institutionalist, but also, definitely liberal, aligned with Sotomayor most of the time. But the two of them, one appointed in 2009, the other appointed in 2010, in important cases, have been in the minority.

almost their whole careers. So it's, you know, timing in the Supreme Court is is everything. They have not been tremendously influential. because they don't have the votes. And are they destined basically now for the rest of their career. in the Supreme Court to be in the minority? Well, in less, something dramatic happens in terms of vacancies if, you know, Gavin Newsom becomes president in, 2029 and for some reason,

Clarence Thomas and Samuel Alito. have to leave the court, probably for health reasons, because they're not going to leave voluntarily. Right. While Gavin Newsom or some Democrat is president. and somehow there are two more Democratic justices than there. Sotomayor, Kagan could could, you know, command a lot more influence. I think that scenario is extremely unlikely. So in answer to your question, I think, yes, they are likely.

to be destined to be in the minority in big cases for most of their careers. And the Angie Brown Jackson will be in the same group. Right. Exactly, exactly. And what about how's Brett Kavanaugh doing after his tricky, tricky. What's it? Confirmation. Confirmation? Yeah, I, tricky is a. is a kind way of describing what went on. You know, Brett Kavanaugh, a very conservative justice, someone who comes out of the Republican political world,

who I think more than, say, Clarence Thomas or Neil, Gorsuch, cares about how the court is perceived. And I think Kavanaugh wants the court to be perceived and wants himself. to be perceived as, someone who's a law person, not a political person. But don't kid yourself. He's a reliable vote for, the conservative positions.

he voted to overturn Roe v Wade after, suggesting he wouldn't during his confirmation hearings. So, you know, he's a loyal Republican soldier, but someone who cares. more about public perceptions than Thomas or Gorsuch. Okay. And what about Gorsuch, who's supposed to be a bit more of a maverick, isn't he? Not really. I mean, in fact, he is. He is. He is more conservative even than Kavanaugh. He he's not. So he he's he's kind of a loner. He's a Westerner.

He's from Colorado, has a very, much a libertarian streak. He has, carved out a position for him. self as a great defender of the rights of Native Americans, of Indians, which is, I think, been a surprise to a lot of people. He, he did write. one opinion, saying that, gay and trans. people could, could sue for discrimination under federal law. Somewhat of a surprise to to have joined the liberals on that.

But but almost all the time he is. with, Thomas and Alito on the far right end of the court. Okay. So I think I think we've covered all the. No. You left out Amy Barron. Oh, I left out Amy Coney Barrett. Yeah. You also said that it was unlikely she would overturn Roe v Wade, correct, in her confirmation. And you know, she. has not aligned herself. fully with the far right of the court, with Thomas, with Alito, with Gorsuch. She's no moderate either.

Don't don't get me wrong. But she does. Her vote does seem to be in play in more cases. than some of us that some of us expected. So, I mean, just if you want to think of the court structurally, you have the three Democratic, you know, Democratic appointees, Sotomayor, Kagan and Jackson, who are, you know, more or less permanently in the minority. You have three, who are of the far right of the court,

which is Thomas Alito and, Kavanaugh and and, Gorsuch. Okay. And then you have, Chief. Justice Roberts, Amy Barrett and Brett Kavanaugh, who are mostly with the. the three hardcore conservatives, but not always. It is a very conservative court. But if you were looking for any play in the joint, it's going to come from Roberts, Barrett or Kavanaugh.

So if you're the liberal judges, What is the point in being, at this point? Well, remember the the Supreme Court decides about 75 cases a year? You know, 10 to 12 are very high profile, but a lot of the others are very important in the legal world. They and and, you know, these justices and they are not all decided 6 to 3. There are a lot of them that are decided, you know, unanimously.

And these justices get to, write some of those opinions. So, I mean, you know, we talk about the Supreme Court. as if all they ever do are these big, high profile cases. There are, in fact, lots of cases, and they are very important, even if they're not and and the, the liberal justices get to write their, their share of those, it is also, you know, a great tradition in the Supreme Court, that to write dissents that sometimes, in later years, become law.

Famously at the turn of the century, Oliver Wendell Holmes and Louis Brandeis, wrote a series of dissents about free speech issues, which, once the Warren Court came in in the 1960s, were essentially adopted by the court as, the law of the land. So there is always the hope when writing a dissent. that future generations see, you. see that and think that that was right. All along. It's also a bummer to be in the dissent all the time.

Right? I it it's, you know, Justice Sotomayor has talked. about going back to her chambers and crying sometimes. because she's so upset about what the court's doing. So, I mean, I don't want I it's it's certainly better to be a Supreme Court. justice in the minority in the majority than in the minority. It's still a pretty good job, even if you're in the minority. So Alito and and Clarence Thomas have been there a long time. Is there any chance that they would resign? Yes, yes, they are both.

They're both in their 70s. And, I think they can be confident. that, President Trump would appoint. a successor who shared their views. And I think as you go into this year, I think June of 2026, there is a realistic possibility that one of the two. or of the two of them would leave, because, you know, there's going to be. a Republican majority in the Senate, at least until the end of 2026.

So that conversation will take place at the end of the day, I think neither Robert, neither, Thomas nor Alito will leave. They both have all their marbles. They both are writing opinions on issues they care about. Why should they? Why should they leave? I think that's their own calculation. I think just, President Trump would love to see them leave. He'd love to have a fourth appointment to the court. Who would be younger, who would be much, much younger.

And, you know, not. many presidents have had four appointments to the Supreme Court. And no one since Nixon, Reagan, I think, had only three. Wow. So so it could be how Donald Trump is leaving his mark absolutely everywhere. Not only is he rebuilding the white House, he's rebuilding the Supreme Court. He he, you know, three appointments, those three appointments, and especially. the fact that he got to replace Sandra Day O'Connor and Ruth Ginsburg and, and and,

and and and and Anthony Kennedy. All right. So, you know, not not O'Connor. He a Kennedy. It was Kennedy. Ginsburg. Ginsburg, and, Scalia. So, so so two of those three men, a big change in the makeup of the court, right? Because they went from being sort of more moderate. and in the middle to being to being much more conservative. You know, Biden had one appointment, but. Ketanji Jackson replacing Stephen Breyer.

didn't really change the makeup of the court much at all. So the fact that it's not just. that, Trump had three appointments, two of the three change the balance of the court dramatically. Okay. So Donald Trump notwithstanding, it seems like the court. is more conservative than the majority of the population. Is there a point where the Supreme Court. loses loses the people, as it were? You know, I hear that said, but I don't see it,

you know, Justice Robert Jackson, who was a Franklin Roosevelt appointee, was the best writer. prose stylist ever to appear ever. And one of the things he said, which, I really believe, about the Supreme Court, he said we are not final because we are infallible. We are infallible because we are final. They have the last word in.

to an unusual degree among democracies. compared to great Britain, compared to India, compared to Canada. The power of the United States Supreme Court. to declare laws unconstitutional. without any possibility of review. is greater than any other democracy. Germany, France to pick your country? Yes, the Supreme Court is less popular than it used to be, even since, you know, Bush v Gore was it was, you know, an assault.

on the court's popularity, the Dobbs case overturning Roe. v Wade, ending affirmative action, limiting voting rights. These are things that are not popular with the rest of the country. And I think the attitude of the Supreme Court, by and large, is, so what? What are you going to do about it? And the answer is nothing. Nothing. Yeah. So the one person who might. do something about it turns out to be President Trump, right. Because he loves overturning institutions.

But he even if even Donald Trump, there's not much. he can do about the Supreme Court. And I think we're going to see now the tariff decision he has, you know, to an unusual degree and in typical Trump fashion, has been lobbying the Supreme Court to vote to uphold his powers. Right. And, and but if they say no, if you can't, if they say you can't. impose these tariffs, I don't think there's anything you can do about that.

Well, it sounded like from the questioning they had, there might be a moment where they didn't approve the tariffs but didn't, just because of the sheer logistical nightmare of it. in grandfathered, the decision into when he started. So we're sort of that's in the rearview mirror. But going forward, you know, that's a definite possibility that. that's something the court could do that you know, if if you invalidate if you say that. the president doesn't have the power and never had the power, the people who had to pay the tariffs could go to the government.

and said, give me my money back. That's a recipe for chaos. I think the court understands even more chaos, even deep. Right. But it certainly logistically would be a lot easier to say, you know, just no, not going forward. No, no, no presidential tariffs going forward. But but. even though in the oral argument, it seemed the court was heading in.

that direction, I have been burned myself making too many predictions. about what the court will do based on what they say at oral argument. Famously, during the Obama administration, the, the Obamacare case. where they were asked to, overturn. the Obamacare law is unconstitutional. It seemed like there were five votes against it from the oral argument. That's what I said when I covered it.

And I was definitely wrong when they it turns out they upheld. they upheld the Obamacare. Right. So do you have any insight into, the birthright citizenship, which is also in front of them? Yes. I mean, that seems incredibly complicated, actually, one of the least complicated cases. that you can imagine because, if you read. the text of the 14th amendment, you don't have to, you don't have to.

be a lawyer to read the text of the 14th amendment, which says all persons born in the United States. born means. born white and, the Supreme Court. every time they have considered this issue, including in a famous decision. from 1898, they have said that. if the 14th amendment says you're a citizen, if you're born. in the United States, you're a citizen and you're born in the United States. Now, there is this phrase in the 14th amendment, born in the United States.

and subject to the jurisdiction thereof, which opponents of birthright citizenship. have used to try to get rid of birthright citizenship altogether. What seems clear is what that phrase meant is. children of foreign diplomats who are not subject to the jurisdiction. If they're born in the United States, they're not citizens. American Indians who have a sort of separate set of laws that apply to them.

They're not necessarily subject to the 14th amendment. But I just think the birthright citizenship case. is an easy case, because born means born. And, there's also. the issue of the chaos that would be created, right? If you suddenly had to start telling hospitals, you know, you have to determine the, immigration status of the women giving birth.

and to say nothing of the people who already gave birth, you know, non-citizens who gave birth in the United States. I just don't think the court is up for that kind of chaos. And I think the words of the 14th amendment are just simple enough. Born means born, right? Although we're living at a time when almost any word or anything. can be taken and somehow, you know, that's why God and that's. why God invented lawyers is to tell you that born doesn't mean born. And words don't mean what they say, what they seem to to mean.

sometimes they actually do mean what they say. And I think I think at least as far as birthright citizenship goes, I think even this Supreme Court is not going to go that far. But that case hasn't even been argued yet in the Supreme Court. So we haven't heard their questions. That oral argument, we just sort of know their track record. We know the legal history of the issues, so we'll know more. That case is not going to be decided until at at fall of 2026 at the earliest.

Okay. So all right, so final question for you, which is sort of law adjacent, which is that in the Epstein files, the Clintons have been subpoenaed. They appear to have ignored the subpoenas as far as we know. And they were due to appear, I think, before the oversight Committee. Right, right. Mid, December then earlier this week. and there seems to have been no progress. What. what is I mean, it seems. incomprehensible that you could have.

a former president in contempt, but is that is that possible, sir? Sure it's possible, but but I don't think it's it's it's particularly meaningful. The Clintons have a very good political argument against these subpoenas. I don't think they have a great legal argument against the subpoenas. You know, Congress has great freedom in who they subpoena. I mean, you know, they get to decide who they want to hear from. And I think that's a good thing, basically. And the Clinton argument is, well, this is not, pursuant to any real legislation.

This is just a political expedition. You know what? Congress does a lot of things that are political. I think what is really going on here. is that the Clintons are betting that they can tie. this, issue up legally, for several months. And then the Democrats are going to probably retake the House. of Representatives in the midterm elections in November. Did you the the oversight committee at that point. will turn over to Democratic control, and they'll make the subpoena go away.

They'll just, you know, withdraw the subpoena. Right. So I think but that's another 9 to 10 months. Yeah. So so they can just drag it. Oh yeah. It's I mean, it is not hard to drag out a legal issue for nine months. That's child's play for for lawyers in, in our system. and so and and in terms of contempt. Yeah. You know, Attorney General Eric Holder was held in contempt.

Attorney general, Merrick Garland was held in contempt. It it's not like they put you in stocks when you're in contempt, right? It is a lie. It is a it is something that the Congress does, but has no legal effect until it's upheld by the courts. And that means the Clintons will be able to challenge in the district court, in the Court of Appeals, and maybe even the Supreme Court. All of which will take a very great number of months. And if the Democrats retake the House in November,

the subpoena is going to go away anyway. Okay. Okay. Well, that's very helpful. All right. So hugely helpful, understanding the mess that's going on. And, and I guess what will be interesting is. if the Supreme Court make a decision that Donald Trump doesn't like, and he decides not to adhere to it, that will that's you know, there is a famous, largely apocryphal story about President Andrew Jackson.

who had a, confrontation with the Supreme Court. And he is said to have said, Chief Justice. Marshall, he was chief justice at the time, said Mr. Marshall has made his ruling now. Let him enforce it. I mean, the Supreme Court in our country. doesn't have any individual enforcement powers. They don't have an army. They don't have, a police force. that can do anything except protect their members. So they rely on the, understanding in the other branches of government that.

the Supreme Court has the last word. I think Donald Trump is not going to directly defy the court, but they this administration has figured out ways. to to get around court rulings. And, in a way that I don't think it's for certain. I don't I don't think it's entirely clear how. he would react to a, adverse decision.

But we'll see. Yeah. So do you think that could happen with tariffs. if they came back and said you cannot impose tariffs? And he said, well, I'm going to impose them. I think what what he would do, what he would do is he would say, well my Lord, I understand. the Supreme Court has said. these tariffs are unconstitutional, but I'm going to make some changes. And these tariffs, these new tariffs, will be different enough. and then force litigation on those sets of tariffs.

that that, you know, there are ways to play with the wording. and play with the response so that you don't seem like. you are in direct defiance of the courts, even if you really are Jeffrey, you can't give him ideas. If he's watching this podcast, he's like, oh my God, I'm just going. there are better. There are better lawyers than I who thought of all this stuff already. So I have one more final question for you, which is about the president's ability. to fire the heads of supposedly independent government agencies.

That's also under the supreme docket this year, right? Yes. Do you have any insight into how they will address that? Trump wins for sure. For sure. This is a done deal. There's a famous case called Humphrey's Executor, which said from the 1930s. that the president can't fire, heads of the independent agency, Securities Exchange. Commission, National Labor Relations Board, all the Federal Trade Commission.

Conservatives have had that decision in their sights for years. There is absolutely no doubt. the president, will will win that case. And this is an example of John Roberts. believing in presidential power. This is a crusade he's been on that, it's sometimes called. the unitary executive theory that anything under the executive branch, as these independent agencies are, has to be under the control of the president.

So he should be able to fire their leaders for any reason. And that and I have no doubt that's what they're going to do. All right. There must be a positive note in all of this. What is the positive note please find us for? You're the lawyer. Well, it's a lovely day in New York City. The weather's terrific today, so that's a positive. Now, I, what about lawyers bills? You know, is bills going up because there's so much more. Yeah, yeah, yeah, there's there's there's plenty of, of legal work.

Look, you know, we're going to I was talking to a law professor. about this yesterday, and I said, well, like, how bad are things? You know, it's sort of a similar questions like, well, you know, he said, look, I'm not going to pretend. things are things are anything other than bad. But you know what? We're going to have an election in 2026. We really are going to have an election. And the idea that Donald Trump is some kind of are going to cancel the election. or interfere in a serious way is, is, I don't think, realistic.

And we'll see. We'll see what. what the people's verdict is on that and then we'll have an election in 2028. I mean, that's a pretty low bar. The fact that I'm saying the good news is we're going to have an election, but it is another year. Yeah, but it is. But it is good news, I think. And and, you know, that's all I got for you, Joe and I. Sorry. So under Joe Biden, there was, as a report into the Supreme Court in terms of should they extend it,

should they expand it, because obviously he inherited a conservative court. How long. would it take to or. what would it take to actually sort of if a new Democratic president. were coming in and he wanted to offset the conservative. nature of the Supreme Court, what would it take? Well, you know, I think one thing a lot of people don't know is that. the Constitution establishes a Supreme Court, but it does not set the number of justices.

That is something that's set by statute, by Congress. So, and in fact, in the early years from, you know, the. in the early 18th century to just after the Civil War, the number of Supreme Court justices actually varied. The Congress changed it several times. And it was only after the Civil War that, it was set at nine, Franklin Roosevelt famously, during, you know, went when the Supreme Court,

was striking down, many aspects of the New Deal during the, during the depression, he came up with what was known as the court packing plan, where he was going to raise. the number of justices for every justice over the age of 70. It was it was packaged as an attempt to help the elderly justices. It was transparently an attempt to raise the number of justices. And he could appoint the new ones so they could overturn what happened instead.

This is the good thing about getting elected four times as president. Those justices just retired, and Roosevelt wind up having nine appointments. to the Supreme Court, and the court wound up doing his bidding on on those issues. tomorrow, Congress could pass a law if the president signed it and said, there are now 15 justices on the Supreme Court, and the new president could appoint six of them. I that so so, you know, that could be done. There are also possibilities. And here is where there are constitutional issues.

They could set mandatory retirement and that might take. a constitutional amendment, might set term limits. I mean, there are there are many proposals out there for term limits. I think they're good proposals. You probably would need a constitutional amendment to do it, but, frankly, when you look at how our Congress. is as polarized as it is and you'd need 60 votes in the Senate. to get past a filibuster on these things, to say nothing of passing in the House,

increasing the number of Supreme Court justices. so that the incumbent president got a bunch of new appointments. It could theoretically be done, but I think it's just extremely unlikely, could also backfire. with the next president then, you know, doing the same thing. Exactly. Except, I mean, and that's one of the arguments against. it is once you, you know, open that Pandora's box. of increasing or decreasing the number of Supreme Court justices, it could become, it's.

sort of like what, what redistricting has, has become it. You know, there was a norm that said, you know, congressional districts. are only, changed once every ten years after the census. Right now, of course, you know, it's open season all the time. And we have Texas, we have California, we have, you know, all these states that are changing. That's the worry. about any sort of change on the makeup of the Supreme Court. is that once you, change it, once it becomes something easier to change.

Okay. So you mentioned term limits. You wrote an excellent piece in The New York Times last week arguing. that Judge Alvin Hellerstein, who's been put in charge of the Maduro. case, should not be in charge of the majority case. because he's going to be 93, which feels very old today. I don't think it feels very old. I think it is very, you know, 93 is not the new anything as far as I'm concerned. I thought that 93 would be, you know, if you're a fan, it's looking better.

And better to me. So. So what would the should the be age limits? How would you deal with this? Well, 93 seems very old to drive, let alone oversee a case of a South American dictator. Well, you know this again. You know, this comes from the Constitution. Article three of the Constitution, which covers the judiciary, says. judges should serve during good behavior. What that means is, unless you're.

impeached, you you can you can stay indefinitely. And there are judges who have stayed into their 90s. There have been norms. There have been, you know, part of the judicial culture. is asleep in the Bay, which which is just it's it's a bar. And, there is peer group pressure among judges. not to embarrass the judiciary and stay too long. But there have been sleeping judges, sleeping federal judges in history. Many states, like New York, for example, have mandatory retirement for judges at 75.

I think that would be unwise. Judge Hellerstein still will because he is a federal judge. and federal judges have no mandatory retirement. because they can serve during good behavior, which means. until you're impeached and judges have historically never been impeached. I think, the combination of public pressure and pressure. from his colleagues will lead him to, to, let another judge take the Maduro case.

I'm pretty confident about that. I have I have no illusion about the power of my, my my journalism. My record is almost perfect and having no influence on the outcome of events. But on that one, I think, there may there may actually be some change. But you certainly started a conversation about. I don't think anybody realized. he was going to be 93 when the case really got going. And the minute you hear it, you're like, okay, this, this, this is no sense. No, no. Unfortunately, it makes no sense. All right. Thank you so much for coming. And really, please promise that you will come back.

when we have big decisions that we need to unpack. My pleasure. So my favorite part of. that was just learning more about the justices. as they sit swinging their legs from their grand chairs in chambers. I can't imagine what their lunches are like on Friday, when they get ready to to sit around and discuss the decisions they're making. And of course, it's terrifying.

The idea that Donald Trump might be able. to replace the two older justices, Samuel Alito and Clarence Thomas, with younger justices, which means that the court remains. conservative for years and years to come anyway. Leave us a comment. I would really like to know what you think, and whether or not you think Jeffrey was laying out. a blueprint for Donald Trump circumventing Scotus decision. If they come back and decide that he can't apply tariffs.

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