The Secret Memos Behind the Supreme Court’s Shadow Docket (with Jodi Kantor)

Welcome to another episode of The Oath and the Office. I am John Fugel Sang and on this week we've got a very special guest in Jody Kanter and Donald Trump's new one point eight billion dollar anti weaponization fund, which is the most honest corruption scheme in American history. Friends, most politicians try to hide their bribes. Donald Trump is basically stable to post it note to the Treasury Department that says money for my friends. For more, let's go to the star of our show, the author of The Oath and the Office, Ivy League political science professor the mac Corey Bretschneider. Welcome, professor, it's good to see you.

Thanks John.

You know, the corruption is just getting so much more rampant, so much more blatant, and yet you know, every week we get to talk to each other at focuses me. It gets me ready for the fight ahead, to be honest about what's happening, but also to talk about how we can have hope in the midst of that. And of course, after our discussion about the important recent topics, we're going to go to somebody who I think is just the premiere person uncovering what's actually happening at the Supreme Court. So much of what we'll discuss today is relevant to the shadow docket, the secret emergency orders of the court, where they don't tell us why they're doing what they're doing. Well, Jody Kanter did more to uncover this process, the motivation, and the reality behind it than anyone else.

Will talk about that.

Also, her reporting on the immunity case, revealing aspects of that that weren't in the light until she came to it, So it's really an incredible person. Of course, she also is the person who broke the Harvey Weinstein story and in many ways is responsible for the Me Too movement. So it's really another incredible episode on the backs last week of an incredible episode with a legal director, Cecilia Wang. And I've heard from so many of you about the power of that interview, so John, I look forward to another great discussion.

Well, Corey, thank you. I'm really thrilled about Jody Kanter, and I'm thrilled to talk about this presidential slush fund with you, This massive compensation fund for people claiming they were victims victims of a law enforcement of Biden era government weaponization. This is all Trump settling his own fake IRS lawsuit, tying himself financially to the process. I mean, this isn't even normal corruption, Corey. This is corruption with stadium lighting at a gift shop that the president controls, the Justice Department he controls, the treasury, he sued the government he controls. Then the government he controls agreed to give him one point eight billion of hour dollars to fund people that he appoints and supports, to reward people who claim they were victimized by investigations for their crime. We have achieved venmo for fascism, Corey. And clearly this is Greeban's politics dolled up in executive power. This will be in the history books as legendary corruption. They don't seem to care how it looks in history. But let me ask you about the history. I mean, do authoritarian movements often create systems that reward political loyalty while framing the leaders as permanent victims? Is this new?

Well?

Definitely, the phrase venmo for fascists, I think I've ever heard that before, and it captured so much of what's happening, because you know, it really is just a payment scheme from the president to himself or to his political interests. And you know, let me just say in answer to your main question, like, how can this happen? And the answer is because of the structure of our system. It's the same way that Trump has escaped liability for his crimes because the Justice Department, despite the immunity case, could continue to prosecute him. That's never going to happen because who controls the Justice depart the president. Who controls the irs, it's the president. And although there were protections to try to insulate civil service decisions and public interests from president's own ambitions, those have turned out to be you know, weak to non existent checks. And increasingly we've talked about the theory of the unitary executive, the control by the executive over the various executive branches, even the civil service.

Well, you're seeing an extreme.

You know, this would have been an absurd, hypothetical example in a law school exam ten years ago. Now it's reality, which is that the president, because he controls the irs, because he controls the Attorney General, has basically come in and say, hey, I want you to pay me to apologize for all the wrongs that were done to me, to the irs.

Now you know his.

Lawyers, and there was a court process that was about to get underway. Something got to him to realize, you know what, that might be a little too on the nose to corrupt two in the spotlight, too much, really sticking a you know, middle finger in the face of the American public. So he comes up with this alternate scheme, that.

Is, is it as bad. It's just different.

It is as bad, and it's to reward his supporters for participating in his own coup.

Yes, and reward criminals and terrorists, to reward people's bread pops for a lie. I mean, even Vladimir Putin, Corey Vladimir Putin has the decency to launder money through oligarchs and shell companies. You know, this is just there's no oversight whatsoever. The fund literally says it can decide its own rules. It can decide who gets this two billion of our money a secret. It has no judicial review. It's just it's a guy who ran a casino into bankruptcy's saying, trust me right, Like, what safeguards, if any, exist against a president effectively turning the federal government into a personal piggy bank for his friends and flunkys.

Wow, this is the oath in the Office podcast.

The president takes an oath to preserve and defend the Constitution. But our question from the beginning has been, while if the president disregards that oath, what can we do? Well in that IRS case, there was a judicial proceeding, there was some pushback, there was at least bringing it to light, and it was such obvious self dealing because it was the president financially and his sons who were going to benefit. So he shifts it a little bit well to demand in settlement support for his militia for those who attacked the capital. He didn't pay the militia as far as we know directly before, but now he is and that's what's happening. So yeah, it is a kind of you know, fascists often have stormtroopers, and those stormtroopers.

Ideally are going to be rewarded.

While they were rewarded with a pardon, but you know, that puts them back to zero.

Now here, they're in the black.

They're going to be paid, and it incentivizes to future action and loyalty, not to the law, not to the Constitution, but to this president. Amazing, and let me just say it again, because you know, we brought it up a couple of times. But I want to be so clear. In a very, very vulnerable system, the president of the United States has more than two million people in the executive branch. And although there used to be in the nineteen seventies and before, either norms or legal limits on the president's ability to do whatever he wants with those two million plus people, with this enormous budget, increasingly the president, under this theory of the unitary executive, enabled by the Supreme Court in part, has exerted control.

Now what you're seeing is legislation.

That handed over money to the Department of Justice to compensate was thought in you know, good faith in dealing with people who were wronged, and there really.

Don't seem to be many limits on that.

Now, what happens when a president abuses that trust, Well, it's unclear. I mean, I think there will be litigation, will be an attempt to stop this, but I'm not confident about it.

I mean, January sixth, terrorists, which is what they are, folks, I mean, go to a dictionary. They were terrorists. If you're using violence or the threat of violence to bring about policy change, you are a tea word New York Times letting you know they're now getting paid by we, the taxpayers, for the violence they committed at our capital. And Trump allies and flunkies and conservative influencers. I'm sure Trump himself is going to get a taste of all this. And the legal logic, professor, is incredible, because if the president can sue himself and settle with himself with our money, why would Congress ever control spending? Again, isn't that the real scandal. It's not just Trump's stealing money. He's establishing a principle that the presidency itself is above accountability, that Congress appropriates funds unless the emperor would prefer cash.

Am I right?

I mean this reinforces the whole strategy of redefining accountability itself as persecution.

Yeah.

And you know, at the same time that he's claiming to be a victim, he is victimizing the rest of us because he's taking this trust. You know, in Congress hands over money like this and gives lots of discretion to the President and sendling lawsuits.

What are they doing.

They're essentially, you know, giving over a good faith effort in the thought that the president is acting in a good faith way. Wake up, Congress, that's not what's happening here. And we haven't seen Congress push back on those delegations and those allocations of funds without any limits and the consequences when you have, you know, bad faith, a criminal president. Let's not call it bad faith, it's way beyond that. He's going to abuse that trust. And we have a structure of presidentialism where the president has been given so much authority and a bad, bad, criminal president who's just able to you know, it's not clear what stopped them exactly from stealing the money from the irs. That's what it was an attempt to do, but he clearly got a little too embarrassed, so he just shifted the focus.

Unless this was always the plant, unless this was always the play on. Maybe always this was always the play on. And you go with the lawsuits, so you have the settlement at the end, right, and the law suits trum intimidate your way to the settlement that you want to have. It's just incredible to me. These Republicans spent decades screaming at government that this welfare creates dependency, and now they've created a billion dollar grievous stimulus package for professional victims. I mean, this is affirmative action for insurrectionist terrorism. And the whole message is stay loyal, protect the boss. There's money in it for you, right, I mean, it seems like grievance is effective as governing philosophy corp. You can make a buck. Trump is not really running as president. He's running as a plaintiff in America versus everybody else.

You know, the Constitution has two emoluments clauses which bans exactly this kind of self dealing using the presidency for profit. There's a foreign emoluments clause that keeps you from negotiating with foreign leaders in order to benefit yourself. Of course, we're seeing tons of violations of that, with the president's son in law, for instance, using negotiation to benefit himself.

And at his sons and the hunter.

Biden is screaming, and there's us.

So domestic emolument's clauses is a paradigmatic violation of that, which is using the office to either profit yourself or arguably to throw money to your close allies. And yet we don't have legislation that stops it. We're going to talk with Jody canter about the origin story of the immunity case that has enabled Trump given him essentially a get out of jail free cards, even though he's doing things that are arguably illegal and criminal. All the time, he thinks to himself, I'll just say it's official duty. With the immunity case says, just to clarify for people Trump versus the United States, as it says, the president is at least presumptively immune when he's acting in his official duty. So if he's going to kill somebody on Fifth Avenue, maybe he wouldn't get away with it it was for personal reason. But as long as he says, well, it's for my official duty, that's why.

I killed somebody on Fifthavenue, that's it. He might get away with it. And at least that's the logic of how he's thinking.

And that's what's so disastrous about that case that we're going to talk about, that it leads to this kind of blatant corruption that we're talking about right now.

Yeah, I mean, and again, you know, this is why I don't call Donald Trump a fascist. I can't do it because fascists believe in things right. His movement is fascist. He's surrounded by fascist flunkys and henchmen. But I mean, corruption isn't a side effect of trump Ism. Corruption is the governing philosophy. It's not conservativism, it's not populism, it's not Christian nationalism. With this guy, it's friends of Trump eat free. And that's it. The corruption is the point. The fascism is just the side effect. The fascism is just the car that follows the hood ornament that is Trump. And to that end, I want to ask you about the Supreme Court because the politics of abortion are getting increasingly difficult for Trump. He's always been able to straddle the line and lie and say I wanted to go back to the States, when in reality that's not what they want it. They want to ban it. They want a government that tells citizens they are forced to be pregnant against their will. And we see the conservatives in his circle are not satisfied with getting rid of Roe v.

Wade.

They want national restrictions. Swing voters are not going to let that happen. And the Supreme Court keeps handling major abortion questions through the emergency docket without often any opinions or even transparency. I mean, Professor has this party painted itself into a corner by overturning Row and then discovering voters didn't want that and don't like the consequences.

Well, I've been saying in our discussions from the beginning that when it comes to the question of abortion, the Dobbs decision which ended Roe v. Wade, sold itself by saying, Okay, we're restoring the power of democracy. We're restoring the ability of the states to make this decision abortion or no abortion.

But from the.

Beginning I worried that people like Alido and Thomas and Justice Gorsich as well, have a deeper agenda.

And John Roberts to Roberts, he's more. We're going to talk a lot about John Robert all of them. He's smart enough to know better. He's more.

Yeah, I mean there's two.

John Roberts is the one that we see in the public and one that we see in private. But at least these other justices, it's been very clear that they have a different kind of agenda. Gorsich, for instance, in his dissertation in his first book, gives i'll call it very strong hints that he favors a national ban on abortion because if the fetus, after all, is a person and recognized under the Constitution. There has to be a national equal protection guarantee for that person, and that means a national ban on abortion.

Now, none of this is in the Bible, folks, None of this is in the Bible. None of this is in the Constitution.

Definitely not. And Alito and Dobbs does two things. He says, yes, we're returning it to the States, but he also talks a lot about the status of the fetus in a way that sounds very close to what I just said about Justice Gorsich. Well, now we're seeing this question, which is we have a supreme national federal law that okays as safe hast own abortion drug, and yet we have a ban on abortion in states like Louisiana.

So Louisiana is.

Like, hey, you know, you can't continue to act in this national government way without interfering on our power to make abortion illegal. So the state right is now conflicting with the federal power to enact mifipristone. And people like Alito, sure enough, are like, hey, you're undermining by allowing that drug to be shipped to states where abortion is banned. You hear him screaming this, you're undermining the Dobbs opinion. Well, you know, the reality is that we live in a national system, and yes there are states, but the idea that you're going to just coordin these off I think from the beginning this has always been an issue that's going to have one resolution, and the state's rights compromise can't last. You're seeing that also from pro life groups, and ultimately there's going to be a question, I think, not of what states are going to say, but what this government will say. I hope certainly that the right to privacy is affirmed, the right to abortion, but the forces on the other side would like to bring in a different way. Meanwhile, just allow sentence. Donald Trump is pretending I think there's no issue.

Don't look over here, you know, I look somewhere else. This isn't a winning issue for him.

Well, and before the break, I wanted to ask you about that, because man baby is trying to speak both languages at once. Right states rights to these folks over here and the national anti abortion signaling over here. I mean, it's not legally coherent and it's politically impossible. It's just another sign that Donald Trump doesn't really have any ideology beyond whatever helps me is what I want.

I think that's right.

You know, I think the idea that he's got some coherent view on abortion, somebody who brags constantly about his you know, sexual libertinism. Then you know, at the same time sometimes pretends to be a serious Christian.

What does he really think. He really doesn't think anything. He really thinks.

I want to do whatever is going to get me ahead, and oll cater to evangelicals when it serves them, and O cater I'll pretend to be a moderate on abortion when when that serves them, that's it. And I think he was hoping, well, Dobbs was sort of the perfect answer for him. Oh, I can say this state rights thing, I can say democracy.

And then in the end, what he's learning is it's much more complicated than that.

It's because we have federal laws that okay abortion drugs, and we have state laws that ban it.

And I again, I don't think that conflict's going away.

And see docket here was used by the liberals this time, and you know, I think I want to actually call that out. You know that usually they're complaining about it. Oddly, you have Alito saying, well, the liberals aren't giving any reasons. It's like, yeah, Supreme Court, give reasons. Don't be relying on this secret process all of you.

And I just want to point out that Donald Trump always supported women's reproductive freedoms. He was staunchly, as they say, pro choice for many years until he realized he could gain more power by pretending to be against abortion, pretending to be a conservative, pretending to be a Christian, and pandering to people who watch pro wrestling and then break off into discussion groups. It's all been a con and it's driven up the infant mortality rate. We got to take a quick break. When we come back, let's talk a bit more about the corpse of the voting right.

Sack.

This is the Oath in the Office. Welcome back to the Oath in the Office. I'm John Fiegelsang, Professor Bretschneider. The Supreme Court has now allowed Alabama to go ahead with elections under their newly redrawn congressional maps, again through the emergency docket, and again with very little explanation. This is a feeding frenzy, and it goes to show that boy, all along, they were going to do exactly what they were going to do. As soon as they got that meddling voting right sack taken away, all the critics have been proven correct. And this follows Louisiana redistricting throwing out thousands have already cast votes amidst these continuing fights over the bra I mean, the Court is just rewriting voting rights law without openly saying so.

Right, it's such a good way to put it, John, And we've talked about this Louisiana case that essentially tended that the nineteen sixty five Voting Rights Act remains in place, and yet eviscerates it because what it says is the only way to really rewrite districts in a way that preserves black voting power is if you can show that it's correcting intentional discrimination.

That's very, very hard to show.

Even as we talked about, even in the travel ban case, the Supreme Court wouldn't admit that the.

Muslim ban was a Muslim ban. And so what does it leave us.

It leaves us with a green light as long as people don't admit that they're trying to dilute black voting power, as long as they say this is partisan. Jerry mandering partisan rewriting of the borders.

They can do whatever they want.

And if we had any doubt of that, because the case makes it more ambiguous, the Supreme Court went it not on the shadow docket, went and said, oh, we're not getting rid of the nineteen sixty five Voting Rights Act now that it's implementing that ruling through the shadow docket. And that's why it's so important that we're going to talk to Jody Canter about the details of how this began and how it works, this shadow secret docket.

Seeing them say, yeah, do whatever you want.

And so Louisiana, you know, Alabama, all of these red states want to rewrite their rules to destroy black voting powers.

That's the Court's giving them a green light and not telling us the reason why.

They're just you know, keeping it secret. But that's it's stay ocated. In that case they got they essentially got rid of the nineteen sixty five Voting Rights Act.

Yeah, it's death by a thousand cuts. I mean, this is a process that John Roberts began with every fiber of his racist or aristocratic, shriveled up blackened heart back in twenty thirteen. I mean, they're weakening the Voting Rights Act incrementally because they don't have the actual manhood to just overturn it outright? Is that fair to say?

I think that's right.

Clarence Thomas probably would have said, you know, at least Section two is unconstitutional. It conflicts with the meaning of the fifteenth Amendment. That historically is false. But that's the view that Clarence Thomas.

Clarence Thomas would sy lemonade at a lynching, wouldn't he'd show up to He'd show up to give pedicures to the lynchers when it was done.

Well, you know, I think too.

John Roberts, who are going to talk much more about with Jodi Kanter, has this public persona. He's famous, by the way, talking about balls and strikes and judges or umpires.

Meanwhile, this guy was.

In the Reagan administration and he was from the beginning talking about trying to basically undo the Voting Rights Act from the nineteen eighties.

And so the idea that.

This is some sort of neutral balls and strikes, you know, person of integrity, I mean, I just don't buy it. And when you read which we'll link to in the show notes, the secret memos from justice. Roberts talking about why it is and this is in a different case, but why it is that he's especially worried about, of all people, all entities, the coal industry. You really see this kind of libertarianism, and that is the philosophy that I'd say it is an extreme libertarianism, not thinking the federal government should intervene with decisions about protecting against racism, not intervening to protect black voting power.

That was all.

Undermined freedom season and the freedom of the coal industry is another part of his freedom.

That he cares about. So the idea that.

This is some neutral justice, yes, he's got this public persona, he's giving speech as always about umpires and neutrality. This is not somebody who's operating in that way. And you know what, it It all be conjecture except for the fact that Jody Canter found the good. She showed us the memos as we'll talk about that reveal the true John Roberts. And the other place that we're seeing it certainly is in this voting rights area as well. Well.

I'm ready to talk to Jody Canter. Let's take a quick break. We'll be right back. This is the oath and the Office.

Heyl Clan Kirshner Here, So, friends, I hope you'll join me on my audio podcast, Justice Matters. You care about ethics and government, criminal justice reform, a conflict free federal judiciary. I thought so. On Justice Matters, we take on issues involving the need to reform our government and its institutions, and we talk about real, achievable reform. I hope you'll join us. Look for Justice Matters wherever you usually get your podcasts.

Welcome back to the Oath in the Office. It's my pleasure today to welcome Jody Canter. Jody Canter is a reporter at the New York Times, and it goes without saying that her journalism has really been a shining light into the hidden functioning of the Supreme Court, an institution that we need to know more about and often don't know a lot about how it actually functions. And I'll mention in particular, and we'll talk to her in depth today about her major work on the origins of the what's often called the shadow docket.

She's a winner of the Pulitzer Prize.

And of course we'll ask her to and I need to mention her new book which is a New York Times bestseller. It's called how to Start Discovering Your Life's Work, A guide for recent graduates, college graduates, and others. Many people listen to this show or in that position, they're going to want to know.

How to start.

So I look forward to talking about that too, Jody, if you don't mind, will start by asking about a question that really is on all of our minds. Listeners to the show, our guests, we've all been talking about the Shadow Docket. I think our listeners know what it is, but we do have new listeners, and if you wouldn't mind just saying something about what the Shadow Docket is, and also what you're reporting revealed about the origin story of the Shadow Docket. Sometimes the court pretends that it's been doing whether it's the theory of originalism or whatever its work is, that this has been going on since the eighteenth century or something. You, of course, tell a much more recent origin story. So what is it and what did you reveal in your reporting about its origin?

Okay? Great, So, first of all, thank you so much for having me on pleasure to be with you. When we think of Supreme Court cases, we think of a slow speed think of deliberation, We think of being very very careful. Your classic Supreme Court case takes a really long time to play out, and there are many, many, many, many, many steps that ensure careful consideration, like rounds of briefs, like oral arguments that, as you know, can go on for quite a long time, many hours, in which the justices really hash out the legal issues with the attorneys and the public can listen in via audio. There are opinions that circulate within the Supreme Court before they become public in draft form, and that's in part so that as the collective they can improve the opinions. They can really think about what they want to say, they can deliberate, they can change their minds. Another step in the process is that for merits cases, or what we think of as classic Supreme Court cases, the justices meet in person to discuss them and vote. They have this meeting called the conference meeting, that is a super confidential meeting. It happens in a special room, at a special table. And the point of all these steps is that they are meant to ensure thoroughness. So let's think of that as like kind of the ideal of Supreme Court decision making. The shadow docket is an alternate track, and it's existed for a long time, but until about ten years ago, it was really used for true emergencies like death penalty cases or election cases that had to be decided immediately. In the last ten years, what we've seen is that the shadow docket has swelled, that the Court is making more and more decisions on this emergency basis. And just structurally, it's not as in depth or slow or careful, and it's much more secretive. It is a rushed, fast track process. Yes, And the reason why so many people have criticized that is that they're really too worries. I mean, first of all, the Court has awarded a tremendous amount of power to President Trump using the emergency docket. Since President Trump returned to office, it's been over twenty cases. And these cases, as I said, like move very very quickly. The justices are skipping some of the time tested steps of deliberation. They're also very secretive. Perhaps the most important step that they often skip is these cases don't really have opinions, they have orders. Some of these if you've never seen one, to picture one of these orders, picture like a paragraph of legal boilerplate. We counted when we wrote about it was one hundred and forty two words. And they don't have any reasoning, like they say such and such. You know the court is going to green light this or red light this. But the essence of how a court gets author already in trust is an opinion. A judge sits down and writes an opinion that is an act of humility and accountability, saying here's how I got to the result that I got to. And you may not like it, you may disagree. This decision may be bad for you personally, but I want you to know that I did it in good faith and I really followed all the steps of the law.

So I mean, that is.

What the docket is. And then I could then if you want, I thought I should stop for a second, But if you want, I can tell you about the particular sort of scoop and reveal we had about how the shattered docket originated.

Yeah.

I was going to say also in transition that you know, as you noted, so much of the these recent decisions enabling President Trump, who have been done in secret without any kind of reasoning, and that reveals on the one suspicion is that that reveals the kind of partisanship on the part of the justices, the conservative majority, doing this. And what I wanted to ask you about the origin story is it seems to further excite that worry because its origin seems to be about conservatives blocking a more liberal president. So yeah, tell us that origin story, and maybe you could in the process tell me.

I mean, am I right? Is it as bad as it looks in your reporting?

So here's what we've been in the paper that felt momentous at least us For a couple of years now, many many, many observers of the court, people like yourself, scholars have been saying, how did the Court start doing this? Like why, like, especially given historically low trust ratings in the court, and given the fact that the Chief Justice really has a reputation for being careful and you know, very conservative but also very deliberate, why would they kind of throw out the time tested judicial playbook and adopt this rushed and secretive new way of doing cases. So they didn't do it, obviously, all in one day. But there's one case that's like really a Hinge case. It's a pivot point, and that is a twenty sixteen case in which the Court blocked Obama's climate change plan. It was really a shocker at the time because the Court stepped in front of the DC Circuit to intervene, which the Court had never done anything like that before, and there was this tiny little order that had no explanation. And so when we look back at like the origins of the modern shadow docket and the origins of the controversy over it, this is like the Signal case. So usually Supreme Court papers are secret for a long time, like generations to come. So I am I think if people are listening to this particular podcast, they might know about this New York Times article already. But I'm just going to say for anyone who missed it that I am really happy to tell you that Adam Liptak and I put sixteen pages of the Justice's internal correspondence into the paper, allowing you and anybody else in the world to finally see the reasoning behind this decision, which the Court never shared, and to literally see the origins of the shadow docket. With these papers, we can eavesdrop and witness the justices backing into this new way of doing things, like literally the moment of the decision where they're saying, yeah, we usually like we've always done it this way, but now we're going to do it. Now, We're going to do it this way. So to your question about like does this reveal a totally part is in court? I think what I definitely reveals a part isn't divide in the case, right. I mean, the conservatives are rearing to go and the liberals are truly worried about what's happening. The figure who really leaps out is Chief Justice John Roberts, because he's cultive this reputation, as I said, for you know, being very deliberative, being very careful. He's talked about being a minimalist and only calling balls and strikes. And the figure who and he doesn't say much in public, right, this is like not a person who gives regular interviews. The person in the papers comes across as a really different jurist. He's super duper in a rush, like he's moving. This whole thing is a flurry of five days of It's like five days that changes the Supreme Court. They're moving very very fast. He from his very first memo, he's like a bulldozer. He comes on very strong. He wants it the way he wants it, and he doesn't. There is some back and forth among the justices, but when the liberal justices raise like pretty common sense procedural objections, they're saying, I've never done this before, We're uncomfortable. Why the rush, he's very dismissive. And it also turns out that he's in a power struggle with the Obama administration and particularly the EPA. He feels that the Court was sidelined in a previous EPA case and he doesn't want that to happen again. So it's not like I want to be careful. People should look at it themselves and see what they think. It's not the kind of rank partisanship where you know, the justice where like the conservative justices are saying like, great, we now get to, you know, like enact our anti regulatory agenda. What I would say the standout is is that it's nobody's idea of like really first class liberation.

It's not legal thinking the way that the justices need to display when they're doing asking questions in oral argument or writing opinions.

And yeah, that's something to dig into.

More is well, what does it reveal and one thing that you've told us, which I think does jump out at you, is that this balls and strikes neutrality that Roberts portrays.

That's not what's going on behind the scenes. And it might be obvious with just.

For lit one in one case, like I just feel the need to save fairness. It's very, very very rare to see these kinds of papers, right, Like this is one example in years and years and years the Chief Justice's writings. For all we know there is.

Like, right, there's a bad moment or something.

Well, there could be five x or ten x the material in which he is that cautious figure.

We're going to ask you about what it portrays about him, because it does strike me as such a huge contrast from this public persona when I was reading the sort of sympathy for the coal industry and for industry, the worry about cost. You know, those are not the way that conservative justices who focus on the text of the Constitution or its original meaning or the me meaning of statutes. It's really seems to be not just a straightforward policy one worry about an administration doing regulation.

I mean, am I reading it wrong? I mean that's what j.

I'm saying about he comes across as extremely skeptical of regulation and it's interesting, you know that, so like not to get too technical, but the term irreparable harm comes up in these decisions because the standard for moving quickly is like, oh, is there going to be some irreparable harm? That provides a rationale for moving quickly, like meaning if we didn't do this thing, would there be some irreparable harm? And he talks about irreparable harm to the coal industry, to the state. Nobody, none of the justices mentions irreparable harm to the climate, like basically what Alma was trying to do. And by the way, again for fairness, there was a real legal question about whether the Obama administration was within the boundaries of the Clean Air Act, like were their actions awful? Tru legal debate there they were pushing it right and differents has felt things broke down along partisan lines basically about the merits stage of the case. But what we see is a Chief Justice who is extremely concerned about what's going to be expensive for industry and states. In fact, like Justice Brier, who's always been a close ally of the Chief says what's the rush, Like why would we do this, and the chief's answer is we have to move quickly because this is the most expensive regulation that has ever been imposed.

On the I mean, that is what leaps out at me.

I mean, if it was a behind the scenes look at sort of the blunt way they talk about their own judicial philosophies, I could imagine Robert saying, Wow, this is a blatant disregard of the text of the.

Clean Air Act, and this is an instance in which.

The EPA is surping its authority and threatening constitutional governance because this is really the domain of the legislature and there's no delegation of power something like that.

That's emphatic.

Okay, that wouldn't have been as careful maybe as what you get in public. But instead, I guess what I'm reading is a kind of blunt libertarianism, which is that there is an excessive regulation that's going to be high cost, and not the kind of reasoning that you usually get from a justice who claims allegiance to you know, textual interpretation.

So that, I guess is why I was thinking.

Not partisanship in the sense of, you know, for against one party, but a kind of partisan libertarianism.

These are the politics that I care about.

This is the policy views that I hold, and that is something that some justices over time. Justice Holmes for instance, said let's just do policy, and sometimes you do hear that from Justice Bryer. But the whole basis of modern conservatism, it is supposed to be this allegiance.

To the text and it's neutrality.

It's not about policy, and I guess that's what really grabbed me and reporting, And although you're being careful about it, I guess I don't hear you dissuading me from that idea that Roberts really is not doing what we think of as law here, but as a kind of policy. But there might be more to it, or a more sympathetic justification.

Well, what I was going to say is that I think the biggest like a lot of people have asked the question, there have been different readings of the papers. I mean, not surprisingly, it's broken down along partisan lines. There are many many people who've had the exact same interpretation as you did. There are other people who have focused on the fact that there was a real legal issue with like whether a Clean Air Act authorized the Obama law. The Obama administration was leaning pretty heavily on like a you know, kind of obscure provision of the Clean Air Act. But what No, No, I haven't heard a good explanation on the right for the rush or the lack of transparency, particularly the lack of transparency you know, as you know, Justice Kavanaugh has defended the courts handling of the emergency docket to some degree, But in the commentary, I have not heard I maybe I missed something, but I have not personally heard anyone, even on the right, say yeah, that's totally fine to be big moved without issuing opinions. I think that is a major thing to focus on again, because I mean, listen, Corey, I'm not a like, I'm a law school dropout, right. I'm a proxy. I'm not a law professor type. I am a proxy for the everyday reader who wants to ask common sense questions of the Supreme Court. And I think a powerful common sense question is court's issue opinions. That's how courts protect their authority, even if your views are very conservative, like don't you want to win people over, Don't you want people to buy in to what you're saying. Don't you want to preserve your own authority. So like, here is where we get I think, beyond our reporting and into like, you know, a realm of psychology that is very hard to touch as a reporter. But we can ask the question even if we can't answer it, which is like, okay, Chief Justice John Roberts, given that the use of the shadow docket has so greatly expanded over the course of your tenure, given that there are so many important decisions that the Court hasn't explained, how do you justify that? And what effect do you think it is having on public trial?

Right?

Yeah, I mean I should say you're being extremely modest. Of course, you've done more to explain what's actually going on with this court than I think years and years of scholarship.

You know, a common way to study the.

Court is to praise the justices or to take their words at face value. And I think what this reporting shows in a really deep way is that there is, of course the politics of the court that's going on. We've known that, but what it is we haven't known, and now we do know it. So I mean that sincerely, you have taught us a great deal way more than certainly most law professors or political scientists could teach us, So thank you for that. I mean, I do want to transition as a way of getting into your question. You're really deep, deep question here about what happens when this court writes opinions as opposed to what they do in secret. And one worry is there too that I'm not convinced about their genuineness.

And I know that in.

Particular, you and Adam Liptak did some amazing reporting on the immunity case, which we've often focused on Trump versus the United States, and so I wanted to ask you about that case and going at the same time go deeper into the views or even psychology of Justice Roberts in particular, because he does present himself as wanting unity, wanting to be neutral. And yet what stands out to me about this case, and you know I give my opinions bluntly and freely, so I'll just say is that it really is crafted out of thin air. That there is a precedent that they rely heavily on about Richard Nixon firing of Richard Nixon in a civil immunity that he was given the Fitzgerald case for this firing. And yet you know, it's a totally different question than January sixth, the destruction of our democracy and a criminal case, by the way, not just any kind of crime, but the crime that is linked to a possible coup. And yet here Roberts is, you know, acting in public as though he's got this carefully crafted opinion.

So what's going on?

I mean, what is your reporting about Roberts in the court generally, when I mean the dissenters, the liberals have been willing to say Trump is a threat to democracy? What is going on in the understanding of John Roberts and Donald Trump?

Is it? I mean?

Here again, you know, I just have to, as I exclude other possibilities, I think, well, it looks like a kind of sympathy or partisanship, and no, he's not really that bad or so what to help me here? Helped me when we when we look in particular Trump versus the United States.

Well thank you, and also I'm glad you mentioned Adam. I meant to say his name about ten times on the podcast. He's my reporting partner and also my teacher when it comes to a lot of Supreme Court matters. So yeah, So a couple weeks after the immunity decision, came out. Adam and I published a story taking readers behind the scenes, and there were some really clear there were two clear questions to ask about that decision, just to refresh the memory of anybody who's you know, has like an understandable fog about all these different Tumps. This was actually before the presidential election. President Trump was going to be held criminally accountable. He was going to be tried for what he did on January sixth. There was a huge legal fight, which we won't go into here about, you know, whether he could be tried or not. Like essentially, he petitioned the court. He appealed a decision made by the d C. Circuit that said, you know, of course he can be tried for these things. It went up to the Supreme Court. The whole thing was super sensitive because it was like running up against a presidential election, So even relatively small procedural matters like well, what's the timing of how this is all going to be decided like, got very very hot, And in the end the court awarded President Trump, this is a few months before the presidential election, way more immunity than most legal experts thought they would. So the two big questions about this decision were whoa had they end up giving him such broad immunity, like kind of even more than his lawyers asked for. And then second the decision, as you say, was scholars almost across the board thought this decision didn't really like work as a piece of legal reasoning, that it was disjointed, that it was messy, that there were holes. It raised as many questions as it answered. There was a lot of worry about like whoa does this decision like legitimate bribery by a president? And especially since we know that the Chief Justice who wrote the decision has a reputation as a really solid judicial craftsman. That was question number two is like why is this not a more well constructed decision, even you know, for people who disagree with it. So what we found and this was also like very sensitive reporting in which we were able to obtain some information internally from the Supreme Court. It was a little bit similar to the shadow dock at reporting. We talked about where the Chief Justice like was holding the ball, and he came out of the gate really strongly like he had he had very definite views about how this should all go down. And what he I think was trying to do was not deal so much with the trumpness of it all, but write a decision for the ages. You know, like the opinion is like, you know, like has all this like soaring rhetoric about like George Washington and a vigorous presidency, And he was trying to Like what we see in the opinion and in the reporting is that he was attempting to kind of like glide over politics and write something very far reaching. But the response of many people was like, you're not really dealing with like the thing you described, like the grave crisis provoked the January sixth insurrection, like this presidential this former president and presidential candidate tried to overturn an election, and like the if you're not accountable for that under the law, like how do we go forward as a country. So you see the Chief Justice's reluctance to deal with that glaring issue. And then what's also interesting is you see the other conservative justices like sort of egging him on. We obtained some bits of their response is internally to the Chief Justice and like here is he's the Chief Justice has written this decision that's about to be like massively criticized, But inside the Court. There's like total backslapping going on, and Justice Kavanaugh and Justice Gorsic are telling the Chief Justice, this is a brilliant opinion. This is amazing, incredible. It feels like they're egging him on, or you know, kind of pumping him up.

Yeah. When I read those congratulatory notes, you know, in the midst of what I would have assumed, they would have understood how much this opinion is going to be criticized. And you know, he leaves exceptions there, and it's immunity for outside the core areas of executive power. It's presumptive immunity, it can be overcome. It's within the outer perimeter of official duty. And yet what you get from those memos is the sense that you know, this was an obvious decision, not because it's subtle, but because it defended our guy. Maybe I'm going too far and you didn't read it that way.

In my work, I really try not to be in the justice's heads.

I just just reported out.

Yeah, just out of reportorial restraint, we don't know. And then also remember that there was another concern at the same time, which is that Trump was going to be elected and try to prosecute Biden. So what conservatives have said is like God, is this is the court trying to protect Biden from being prosecuted inappropriately. So last question about this do you only know when I reported about what they thought.

My last question about this, and it does tie back to our great conversation about the shadow docket, is about timing. You know, here he had to know that intervening in the case although you know it never resolved the question of whether or not there is immunity for January sixth, and maybe this isn't. Trump is going to have to show it's somehow official duty. And you know that was what they were prepared to do, but we didn't get It's not like the opinion says Trump is.

In the end, they give a set of standards.

They sent it back, but they do, for all intents and purposes, clear the way for Trump to run for office, and once he wins, you know, nothing is happening of course with that case, with this Department of Justice. So I mean, what about that kind of worry that the sort of logic and I'm trying to put it in as careful a way as I can, but that they had to realize that they were intervening in a way that did clear the path for him to run for and possibly win the presidency. And isn't that a kind of well, non lawyally non judicial way of thinking.

I mean, you are really getting at why we are stepping up our reporting on the Supreme Court. You know, I'm not the only player at the times here. We now have a five person So like the past was these heroic, incredible reporters like Linda Greenhouse and I'm love Tech took kind of sole responsibility for covering the Supreme Court, huge, huge job. The service they performed, which is essential is explaining the cases and arguments and decisions. But we've recently built on that and we're going further. And it's me, it's Adam, it's ros Helderman, our editor, it's Anne Merrimou, it's Abby van Sickle. We each perform a different functions, but we really work together as a group, and we're trying to ask some of the big questions about the Supreme Court. And you're alluding to a very important one, which is is the public version of these cases the same as the private version. There is a story we hear in the oral arguments and in the opinions. On some cases, that's like the same thing that happened in private. There's no real interesting differential. On some cases, there's a gap between the public explanation of how the law was decided and what really happened and the timing concerns that you're talking about. I think are in that category glory of things that the justices consider privately but don't discuss publicly. I know that, for example, because Adam and I did a behind the scenes story about the Dobs case that overturned Row, and the justices were heavily weighing timing considerations. You know, there was also a lot of speculation if we want to actually do something current about the Voting Rights Act case, which launched, you know, a whole new round of redistricting wars. And so you know, given that the justices are making this decision in the middle of this chaos over redistricting and know that their timing is going to have a lot of influence relative to election day, how do they think through that? And you're right, and like it's interesting because like how can they not like they're you know, citizens of planet Earth. But as you say, it's an extra judicial factor it's not part of a stray legal calculation.

Yeah, I mean, isn't part of it too? Just looking at the history of these justices. They don't come, you know, to us fresh once they're nominated. They have long histories and commitments, and many of them Roberts included, associated with the Republican Party in the Reagan administration in particular. So is that part of it that what we're seeing in these behind the scenes is reveal of yeah, a longstanding partisan, they might say their philosophical commitments.

But it has changed.

You know.

One thing that was so educational about doing this twenty sixteen story is that we spoke to people who were, you know, knowledge of the deliberations at the time, and they really described this court as a different place in twenty sixteen, even though I mean the composition was somewhat different, not entirely, but even though that court leaned conservative, the court felt very alive with debate that Justice Anthony Kennedy was a true swing vote, that there there's a genuine sense of suspense inside the building about which way cases would come out.

Very interesting and it is not that.

And in a decade that has really changed.

Well.

Linked to the story so that, as you said, people can read these amazing memos for themselves. And of course, what a rare important moment actually for democracy to have them revealed, to see these primary sources rather than guessing what's going on behind the scenes, or worse, just taking the opinions and the public presentation of justices as empires, you know, baseball umpires of face value.

I'm anxious to ask you about your book.

Of course, there are listeners to this podcast who are recent graduates. I'll mention the name again, how to start discovering your life's work.

Tell us about it, you know.

I mean, I'll throw one thing in as a transition, which is I just know from students, and I'm so inspired by so many of them that although they're worried about the future of the economy, you know, a lot of them are devoted to wanting to fight threats to democracy, to seeing the rise of authoritarianism in the United States and doing.

Something about it. So I mean, tell us about the book and tell.

Us, you know, what can I It's a very practical question for me, like what can I tell people who really want to know, Like what can I do to save democracy? To make the world better, and you know they mean it. I think, especially at that age, absolutely the worst.

Thing would be to not have a good answer. So I'm looking to you for one.

Well, I'll tell you how the book started, and then I'll tell you the most important thing in it. So this was like really unexpected. As we have established, Corey, I am really busy with my Supreme Court.

I did not plan. I'm like doing a.

Whole other thing on earthing secret memos from the Supreme Court. But what happened is that in February of twenty twenty five, Columbia, my alma mater, asked me to give the undergraduate commencement address, a huge honor. But your listeners will remember what was happening at Columbia. It was like total meltdown and toxicity. So it was kind of a bad offer. And my friends from college were very protective. They were like, you're going to get booed, don't go callin se But something in me was like give me those kids. For fifteen minutes. I was just so upset to see like how far down the place had slid, and wanted a chance to say something to the graduating class. And then they asked me an incredible question, you know, like I love hard questions, and this is one of the best ones I've ever heard. They said, in this crazy environment, how do we find and start our life's work? And their question gripped me because, I mean, it's very similar to the question you just asked about your students. And also, I've covered employment for most of my career, like my partner Meg and Twey, and I broke the Harvey Weinstein story. I've reported for years. I've reported stories about the digital transformation of the workplace and what it's like to be managed by machines and the effect it has on relationships and the employer employee relationship, and so I really wanted to give them something good. I saw the rising cynicism about the workplace, the dread, the fear. I saw that, you know, seeking work has become a very lonely endeavor. It was always anxiety producing, but it used to be more of a social process, involving like coffees and handshakes and interesting encounters. Job applications have become very digital, very sterile, very lonely. First round screening is taking place more and more by AI. So AI is performing interviews and so in addition to it being a rough job market for entry level workers, like their first encounter where the workplace is so lonely and negative, they're seeing things to me like Jody, I applied for one hundred and fifty jobs and I didn't meet anybody in the process, and like this is a black box and I can't even get any feedback, you know, or tell how I'm being received. So I wrote this book essentially as an argument to fight for your ambitions and dreams and to still have belief in the workplace, not like a blind optimistic belief, but at a time when we see so many parts of our political system failing or feel very stuck, I still believe that the workplace is our engine of progress. Like, we can't afford to give up on the workplace. It's you know, it's it's how we do new things, it's how we move forward. And so that goes to your second question, which is, like, what is the most important thing to tell people? The most important thing to tell people? And I will read you the most important paragraph in this book. Do not give up before you start, because like I'm talking to undergrads and recent grads who are writing off any possibility for achievement or happiness in the workplace too early, before they're really in the game. And I understand that it's tough out there. I'm a reporter, but I want them to try. So here is like the key. Here's the key paragraph. Do not give up before you even start. Frustration and disappointment are certain, failure is possible. But if you abdicate the search for satisfaction now, you will put it further out of reach. Resist the urge to arm yourself with uninformed cynicism masking as OsO wise pragmatism. That's really just good old fear of rejection. We do not yet know what the world will offer you nice.

I mean, we've talked about some worrying things, you know, insurrection and sort of high the real reasoning, and so we're always on this podcast trying to put hope in there too, because you know, we've faced threats to democracy before and have prevailed. And then you're bringing this down to a personal level. Is really helpful too. That, of course, individuals who want to do the right thing have meaningful lives and careers, especially as they're starting out or facing a lot of their own crises.

And totally and problems are opportunities. They are like they offer a chance to contribute, and you can, like, I think what you really want is a craft that helps you contribute. Like reporting is my way of coping with what's going on in the world, not on an ideological basis, but just by saying, like, our information systems are not doing well, and so I'm just going to contribute the best information I can to our public debates. And it brings me tremendous peace of mind in this truly shattered world of ours, because I get up in the morning I say, I get what my role is on the playing field of democracy. I'm going to play it as best I can and know that I made my contribution well.

On behalf of the listeners, Jody Canter, I want to thank you not just for joining us for this great conversation, but also for your amazing reporting, which, as I keep saying, really has taught us what's going on behind the scenes in a way that's been hidden from us deliberately. And I can't think of anything more important in this moment. If we're going to save democracy, we have to know what's actually going on in the halls of power.

And that's what you're teaching us about.

And thank you for this book as well and the inspiration that it'll provide, especially to young listeners. Jody Canter, thank you for joining us on the oath in the office, I'll give you one last chance to share a final thought if you want.

I'll say this, like, maybe this ties together everything we've talked about. I'll take a shot at it, which is like, truly thank you for having me on. And one of the reasons it's so significant to me is because I did drop out of law school to become a journalist, and so like it burned out many years later, Like I was very drawn towards the law, but it turns out I wanted to report on it, not practice it. But if you ever would have told me that I would be reporting on the Supreme Court, I never would have believed you. But the magic of journalism really is that if you learn these tools, and you learn this craft, we can scrutinize people in power. This is a time tested tool of democracy, right like a peaceful civil tool that involves words and involves truth that I just think has like tremendous meaning and power. So thank you so much for spending this time and for anyone who's listening, thank you. Thank you so much for buying into the idea that newspapering can still be a contribution.

Thanks so much, Jody Canter, what an amazing conversation.

Take care.

Wow.

I want to thank Jody Canter, and I want to thank you, professor for setting up that interview.

Corey.

What is the best way for our listeners to follow you and to keep up with your astonishing brilliance on a regular basis the other six days of the week.

Well, the first thing I've got to say is subscribe. Wherever you listen to us. We're on of course Apple and Spotify, and wherever you get your podcasts, click that subscribe button.

Review us. That helps spread the word, send it to one person. And if you want to check out the other areas, the other places where you.

Can find the Oath in the office, There's the Oath in the Office substack, There's the Oath in the Office YouTube channel. You can also find me on Blue Sky as Democracy prof.

Right on, and I'm at John Fugelsang on all the socials at John Fugelsang, i have a substack and I'm on Serious XM Progress five nights a week. My book is called Separation of Church and Hate, and I really want to thank Wendy and Beowulf and all of the brilliant people who help us put this show together every week. Most of all you, Professor Bretzchneider. Thank you so much again.

Thank you, my friend. What a pleasure to do this with you.

Thank you Corey. There's going to be no shortage of Malfeasons in the week's ahead. I'm very grateful of long hot summer is going to have your brilliance to talk me off a ledge. Will you guys next time on the Oath and the Office