Episode 163: The Media-Manufactured Mystique of the US Court System

Citations Needed | June 22, 2022 | Transcript

Supreme Court Justice Amy Coney Barrett is sworn in during the Senate Judiciary Committee confirmation hearing on October 12, 2020, in Washington, DC. (Kevin Dietsch / Getty Images)


Intro: This is Citations Needed with Nima Shirazi and Adam Johnson.

Nima Shirazi: Welcome to Citations Needed, a podcast on the media, power, PR and the history of bullshit. I am Nima Shirazi.

Adam Johnson: I’m Adam Johnson.

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Nima: “John Roberts Passes Test: Politicization of Judicial Appointment is Disheartening,” read a 2005 headline from Salisbury, Maryland’s Daily Times. “Ignore the attacks on Neil Gorsuch. He’s an intellectual giant — and a good man,” Robert P. George pleaded in the pages of The Washington Post in 2017. Ketanji Brown Jackson’s Supreme Court nomination, quote, “is beyond politics,” end quote, South Carolina Congressman James Clyburn told CBS’s Face the Nation just this year in 2022.

Adam: Over and over, we hear the same refrains about the US federal court system in general and the US Supreme Court in particular being beyond politics. They’re independent judiciaries, they abide by the Constitution, the rule of law, the law of the land, they follow legal precedent, they just call balls and strikes, they’re bastions of integrity and impartiality. It’s reassuring to think of our courts as measured, fair, upholding democracy, and acting soberly in the public’s interest.

Nima: But history shows that these articles of faith are wholly undeserved. The courts are profoundly political, and they wield power that affects every corner and facet of people’s lives, from healthcare to policing, education to climate. So why is it that the capital “T,” capital “C,” The Courts are awarded such mystique and majesty? What purpose does it serve to paint them as untouchable and unquestionable existing outside the realm of mere partisan politics? And how does this framing stack the deck against those seeking long overdue, necessary and radical change to our systems?

Adam: On this week’s episode, we’ll examine how media have helped manufacture the sense of ennobled secrecy of the Supreme Court and broader so-called “justice system,”, looking at the ways in which the courts’ power runs counter to the will and needs of the public, the creation of campaigns to feign judicial impartiality and apoliticism, and the American Exceptionalist ideology that undergirds popular framings of one of the world’s most reactionary institutions.

Nima: Later on the show, we’ll be joined by journalist and writer Josie Duffy Rice. A longtime analyst of the criminal legal system, she is also the creator and co-host of the Webby-nominated podcast Justice in America.

[Begin Clip]

Josie Duffy Rice: That court-based media, people who cover the court, people who write about the court, it tends to be this extremely insular community of people who have either clerked for the Supreme Court or know these justices personally or have this very intense relationship with the court, but also who need the court, right? They need sources, they want answers, they want to be able to know what’s happening next term, etcetera, and so there’s this really inherent incentive to not question the very fundamental basics of is this the system we should have?

[End Clip]

Adam: So we want to begin by going into a little history, we’re going to go all the way back —

Nima: Way back.

Adam: Way back.

Nima: We’re going back and then going further back. It’s all a loop. It’s just a time loop and then we’ll wind up back in modern times.

Adam: Yeah.

Nima: Laws and legal systems throughout history were the product of the political environment of the times. Hammurabi’s Code, the 282 edicts of the 17th Century BCE Babylonian king, were certainly of their time. Among the legal precedents of commerce, family law, punishments and codes of justice laid out by Hammurabi, is a note about fees due to doctors for their services. An example indicates that a fee for curing a severe wound would be 10 silver shekels for a nobleman, but five for a freedman and only two for a slave. Penalties for malpractice were similarly scaled: a doctor who killed a rich patient would have his hands cut off, while only financial restitution would be required if the victim, again, were just a mere slave. The Ancient Athenian codes of Draco in the 7th Century BCE and Solon in the early 6th Century BCE were also reflections of their respective eras, relying heavily on matters of class, wealth and hereditary. The Magna Carta of 1215 was created because rich barons insisted on enshrining their right to land and property against arbitrary seizure by the crown.

An engraving of King John signing the Magna Carta on June 15, 1215, at Runnymede, England.

According to some historians though, the notion that courts and law exist outside of so-called “politics” is a relatively new one, arising with the expansion of judicial power in the United States in the late 19th and early 20th centuries. As Penn State professor Rachel Shelden wrote for The Washington Post in 2020, quote:

A significant majority of 19th-century justices were chosen because of their previous partisan allegiances: Most nominees had served in federal, state or local political positions. Senate majorities often declined to confirm or even take up nominations by presidents from an opposing party.

By the late 19th century, continued Shelden, quote:

Congress increasingly granted the court more authority by adding jurisdiction over civil suits arising from questions of federal law or the Constitution, eliminating circuit riding [wherein a judge travels to a judicial district to preside over court cases there] and giving justices the power of certiorari — the ability to determine their own docket. Bolstered by a friendly political atmosphere, the court began to seize even greater authority, although not without some resistance. Key to that transformation was former president William Howard Taft, now serving as chief justice, who used his political acumen to secure a robust expansion of judicial power in the Judiciary Act of 1925.

End quote.

Adam: Also starting around the 1920s, judges and lawyers began to advance the idea that law existed outside of politics, in a process that would seem to indemnify courts from public criticism about their expanding anti-democratic authority. Among other things, this took the form of codes of conduct and ethics that would establish and encourage the concept of universal judicial objectivity. By 1973, the code of conduct for the United States judges was adopted by the Judicial Conference, the national policy making body for federal courts. The code of conduct has been revised over the years, but it currently instructs federal judges to do the following, among other things, quote, “Uphold the integrity and independence of the judiciary; Perform the duties of their offices fairly, impartially, and diligently; Refrain from political activity.” In the process, media and policymakers have taken positions of deference toward the quote-unquote “law” regardless of political and moral impact, urging readers and constituents to quote-unquote “let the courts decide.”

Here’s an example from May 1980 in the Birmingham Post-Herald, the headline read, “Halt to Social Security for prisoners urged.” Quote:

Pressure is rising in Congress to cut off Social Secuirty benefits to thousands of American prison inmates, some of whom qualified for the benefits because of such crimes as mass murder, rape and child molestation.

Representative G. William Whitehurst said, quote:

…some prison newspapers ‘advertise’ that Social Security benefits are available and show inmates how to apply. ‘Word gets out on the prison grapevine,’ he said, and Social Security field representatives ‘solicit new clients’ in prisons.

‘If there’s a constitutional question,’ he said, ‘let the courts decide it.’

Whitehurst said ‘it’s a heck of a note’ when: Three New Jersey murderers each collect between $214 and #351 a month in disability payments; one saved more than $6,000 and bought a car on being paroled.

So here’s this idea that we oppose giving people in prison Social Security benefits, but we don’t want to sort of outright say it so we say we’re going to let the courts decide.

Nima: There needs to be an impartial balance, nonpartisan, non-political entity to just arbitrate on this. But like, obviously, the courts have never just been apolitical, that’s a thing that humans are political, and so that’s a really difficult thing to actually achieve.

Years after that 1980 article that, Adam, you just referenced, The New York Times published an opinion piece with the headline, “Let the Courts Decide.” This was published on November 12, 2000 in the wake of the presidential election of that year and the ensuing Bush v Gore legal case. The author of the piece, “Let the Courts Decide,” was Laurence H. Tribe, the Harvard constitutional law professor, and frequent liberal commentator in the media. He also previously taught such notable Americans as Barack Obama, John Roberts, Elena Kagan, Merrick Garland, and of course, Ted Cruz. In his piece, Tribe apparently sees no reason to question the Supreme Court’s authority in a matter of a supposedly democratic presidential election with global implications. Rather, Tribe prefers to simply defer to the power of the courts. Here’s an excerpt, quote:

Our democracy is constitutionally grounded in the rule of law, and fidelity to the rule of law tells us that the Electoral College — with all its flaws — is the device through which the next president, whatever the popular vote totals nationwide might be, is to be chosen.

End quote.

Adam: Yeah, but what if it’s stupid? Have you ever thought of that?

Nima: And also what if the popular vote goes to Gore, which it did, and yet the presidency, per the Supreme Court, went to Bush?

Adam: Well, the Electoral College also went to Gore but that’s neither here nor there. Meanwhile, would-be confirmed justices, with the aid of media, have sought to obscure their ideologies and present themselves as impartial arbiters, even though many, especially those on the right, come up through explicitly ideological and partisan judicial systsems. As a prelude to the 2005 confirmation of Bush Supreme Court Chief Justice John Roberts — this was one of the more naked examples of this kind of, this was the peak of the post-ideological media environment — for example, media painted the judge as a measured conservative, unflinchingly reverent to the law of the land. Bush appointee John Roberts was constantly portrayed in the media as being a conservative, unflinching adherent to the quote-unquote “rule of law,” who existed outside of politics and was just all about interpreting what the authors of the Constitution thought.

So September 1, 2005, LA Times opinion editor Andreas Martinez, who’s now the editorial director of Future Tense at Slate, wrote this opinion piece, “Roberts to overturn Roe? Don’t bet on it.” Quote:

He is not a right-wing judicial activist eager to chisel away the liberal expansion of the Constitution in recent decades in order to restore some halcyon original intent on the part of the Constitution’s authors.

That’s a bit too chaotic for Roberts, who seems to revere the law’s ability to provide society with a sense of order and predictability.

Nima: Right. Now, of course, Roe seems to be one of the only cases Roberts may not default — or, you know, for a while, may not have previously defaulted — to a conservative position on, and even that is generous. Roberts has voted, since his confirmation to the court and his becoming chief justice, has voted overwhelmingly conservatively during his tenure. Between 2005 and 2016, according to FiveThirtyEight, Roberts cast a, quote, “pivotal liberal vote,” end quote, only five times. 57.9 percent, nearly 58 percent, of all of his votes were, quote, “coded as conservative,” end quote, while 82.4 percent of his votes for cases decided by any five-justice majority were similarly coded as conservative. Perhaps this says something about what “legal precedent” has meant, as well as the term “law of the land, the idea that, you know, ‘Hey, just calling it down the line, no ax to grind here,’ he, you know, believes in the sense of order, predictability of what the Constitution means, but overwhelmingly, that seems to lean in one direction, which means if you’re talking about the infallibility or the impartiality of the courts, what you’re really saying is that you want there to be staunch conservative opinions routinely.

Adam: Well, yeah. Because when someone says, ‘I’m just going to sort of default to what the framers think,’ well, who are the framers and what do they think? It’s sort of a way of offsetting your moral responsibility and obscuring your ideology by saying, ‘I’m just going to try to interpret and ventriloquize these dead guys from 250 years ago, and, you know, I don’t believe in creating law at the bench’ as a sort of popular trope, and so there was, of course, fear at the time that John Roberts would end up being conservative, which he largely has been, of course, he was appointed by Bush for a reason, and John Roberts was really kind of played to this when he was being, as other justices have, which we’ll get into, he really kind of played to this idea that he was post partisan, post politics and existed outside of any three dimensional space that you and I understand.

Nima: So for instance, here is John Roberts himself during his confirmation hearing before the Senate Judiciary Committee in 2005 outlining the way he views his role on the court and the court’s role in society in terms of a baseball metaphor.

[Begin Clip]

John Roberts: Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

[End Clip]

Nima: During the same hearing, Roberts would then throw in some very apolitical jingoism claiming that somehow the United States was more impartial, laws evolved without human context, they just appeared for the greater good. He said this:

[Begin Clip]

John Roberts: Is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world because without the rule of law any rights are meaningless. President Ronald Reagan used to speak of the Soviet Constitution, and he noted that it purported to grant wonderful rights of all sorts to people but those rights were empty promises because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. We do, because of the wisdom of our founders, and the sacrifices of our heroes over the generations to make their vision a reality.

[End Clip]

Adam: There is no agenda, just calling balls and strikes.

Nima: That’s right. He even did a callback to the umpire metaphor later in his speech.

[Begin Clip]

John Roberts: And I will remember that it’s my job to call balls and strikes, and not to pitch or bat.

[End Clip]

Adam: That doesn’t mean anything, by the way.

Nima: Yeah, it’s meaningless.

John Roberts during his Senate confirmation hearings in September 2005. (Alex Wong / Getty Images News)

Adam: Especially when you watch baseball, you know that balls and strikes are actually quite arbitrary and selective and political. But he’s just a machine, he’s just there to call balls and strikes, he has no agenda at all. As we’ve said in the show many times, if someone insists, especially more than once, that they have no politics that you should check for your wallet, because they definitely have politics.

Nima: Yeah. And clearly the appointment of judges, I mean, especially up to the Supreme Court, but you know, the appointment of judges is routinely political. That’s why the vote harder crowd always insists that if nothing else, vote for president because of — what else Adam? — the Supreme Court! What are you going to do? Supreme Court, right? It’ll be on you when all of our rights are stripped away. So clearly, clearly, it’s a complete charade that these justices exist outside of politics, except that is the game, that is the performance that they play, during their Senate hearings, and that the Senate themselves play back in a very partisan way, right? So that if your political party is in power with the presidency, and therefore, they get to appoint, you know, the next justice, you then act like ‘Well, that justice, you know, is just going to call it straight down the line,’ but the attacks of that justice is that they aren’t completely politicized, but somehow the ‘Hey, we just have to believe in the sanctity of the court and these are the best people who are just going to not bring their own personal experiences do this,’ that somehow is supposed to win out and we’re supposed to all believe in this fiction.

Adam: Yeah, the fiction thought was kind of part of it, right? I mean, I think even people who don’t really believe that it’s post partisan or extra or outside the scope of politics, they think that myth is sort of worth preserving, and you saw this again, because again, when Trump was running in 2016 a lot of people very frantically, and I think correctly, realized that the primary stakes of his election was the Supreme Court. That was absolutely true. And then there was this weird thing that happened when he finally started picking Supreme Court justices, a lot of big time liberal and liberal media outlets, turned to us and said, ‘Actually, never mind, the guys he’s picking are really great,’ because we needed to show Trump that we were not like him, we were not partisan and ideological, we were post that.

Nima: He could be political, but we were not and therefore we were stronger.

Adam: On January 31, 2017, we had Neal K. Katyal in The New York Times writing, “Why Liberals Should Back Neil Gorsuch,” in which he said:

With environmental protection, reproductive rights, privacy, executive power and the rights of criminal defendants (including the death penalty) on the court’s docket, the stakes are tremendous. I, for one, wish it were a Democrat choosing the next justice. But since that is not to be, one basic criterion should be paramount: Is the nominee someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws?

The Washington Post would publish an op-ed a couple days later, from Robert P. George who was a McCormack professor of jurisprudence and director of the James Madison Program in the American Ideals Institution at Princeton — so we have a lot of professional solidarity amongst Ivy League professors — he wrote, “Ignore the attacks on Neil Gorsuch. He’s an intellectual giant — and a good man.” I guess the fact he’s a good man is supposed to really matter here? And then I was sort of watching this unfold, thinking, well, this is really strange. We just were told that the highest stakes in the world, because again, remember that Republicans refused to seat Obama’s nominee, so the second Trump got in there, he put his right-wing ideologue in place — who by the way voted to overturn Roe vs. Wade and other far right extremist positions. I noticed that there was no critical reporting or opinion pieces in the most important outlet there was, which was The Washington Post. I noted in the first 48 hours after Neil Gorsuch was nominated to the Supreme Court, from January 31 to February 2, The Washington Post published 30 articles, op-eds, blog posts and editorials on the nomination. 13 were explicitly positive, 17 could be construed as neutral but not a single one was overtly critical or in opposition of Gorsuch. So The Washington Post in the most important political time was 0 for 30, they provided no criticisms at all, and we saw this again with Amy Coney Barrett three and a half years later. The Washington Post ran several op-eds by supposed Democrats and liberals telling us not to worry. Notre Dame Law Professor O. Carter Snead wrote in The Washington Post, “I’ve known Amy Coney Barrett for 15 years. Liberals have nothing to fear.” Again, this is someone who’s voted on the far right for every case she’s overseen including the Roe vs. Wade decision.

Nima: But they go to conferences together. They’re pals.

Adam: ‘Yeah, we’re all buddies!’ The author said that Barrett was known for her, quote, “incandescent mind,” “remarkable humility,” and her fealty to precedent and the constitution. Quote, “Because of her integrity and rigor,” Snead wrote, “there is no reason to fear that Barrett would casually discard precedents that conflict with the Constitution’s original meaning, or even a statute’s plain meaning.” Why does any of that matter when we knew her record on things like abortion, gun rights, immigration and other important issues that affect working class and poor people, which we knew were right-wing, and so there’s the sense that I think there’s a bit of whiplash amongst the average kind of liberal media viewer or democrat voter who says, ‘The most important thing on earth is the Supreme Court justices,’ which I think is true actually, I think that Supreme Court justices or at least making sure you don’t have the most psychotic foaming right-winger on earth being in the Supreme Court for the next 50 years, is probably the most compelling reason why people should vote, and then when finally we begin the nomination process, liberal institutions like The Washington Post, New York Times editorial boards start to do these PR routines where the people that Trump, again, this sort of racist demagogue who sort of has no respect for the rule of law, as everybody knows, suddenly we’re all supposed to act like these are questions that exist outside of those very same politics, and I think it strikes people as false, and then you have all these high profile opinion pieces and comments, and even reportage in The Washington Post saying, ‘Oh, no, this right-wing zealot who’s been nominated is actually very constitutional and sober minded.’

Nima: ‘You may not agree with them personally on their opinions, but they don’t bring that to the bench.’

Adam: Yeah. And it seems like what they’re really saying is they’re going to maintain the pretense of post politics, which is necessary to the self aggrandizing regard we have for ourselves in our profession, and most importantly of all, it’s central to the jingoistic mythmaking of our liberal classes that we are not like those tin pot dictatorships or those authoritarian regimes or those weird socialist countries in Latin America. We are above all that.

Nima: That’s right. We have an independent judiciary, Adam.

Adam: There’s this theater that emerges that I think a lot of people see and say, ‘Well, that doesn’t really ring true to me.’

Nima: And yet it keeps continuing. January 2022 there was this Washington Post editorial. So, written by the editorial board of the Post, insisting that Joe Biden’s replacement for retiring long-time Justice Stephen Breyer needed to be — what else? — quote, “impartial” and devoid of, quote, “ideology”, writing this, quote:

The first and foremost qualification — a commitment to judicial independence — is the opposite of what many progressive activists desire. Supreme Court impartiality is an ideal that nine human beings, each with individual biases, who consider some of the toughest questions facing American society, will not meet. But the country is undoubtedly better off with justices who strive for that ideal, preserving the legitimacy of an institution at which a case’s merits and the force of an advocate’s arguments should prevail over judges’ private partisan or ideological commitments. Some justices have remained mindful of this charge, even amid today’s white-hot partisanship. As a result, the court sometimes issues surprisingly non-ideological rulings reflecting unexpected alliances among the justices or efforts to forge compromise across the court’s divisions. At other times, however, justices issue decisions geared to achieve particular ideological ends or are otherwise inconsistent with the court’s traditions. In recent years, Justice Breyer, 83, has argued publicly that Americans should not see the court as a partisan institution, but one in which justices try to apply in good faith Congress’s instructions and the Framers’ constitutional commands. Though solidly in the court’s liberal wing, he has often sought to diminish the role that ideological differences play in the court’s decisions. It would be fitting for his replacement to share his overriding commitment to these principles.

End quote.

Adam: So after three Trump Supreme Court picks that radically altered the composition of the court, The Washington Post, right, the kind of holy holy clergy class of centrist orthodoxy that would throw its own, if newspapers could have mothers, it would throw its own mother under the bus to make sure that there wasn’t the slightest hint of the dreaded “I” word, “ideology,” right? The worst thing you can be as ideological.

Nima: The stench of partisanship that sometimes wafts through, but really, we should always strive, right? The new strivers of the highest achieving judges in the land.

Adam: Of course, there’s no institution on earth more ideological than The Washington Post. It just has an ideology that it views as being like water to a fish or air to humans. It’s just kind of always there, which is American exceptional liberal imperialism or centrist imperialism, and the attendant ideological priors that go along with that, but that to them is not ideology that’s just like, you know, gravity or the tides, sort of a law of nature, and anyone who can test those, whether it be from the left or right, but nine times out of 10 it’s really the left, they’ll hand wring about some Nazis or Trump’s, you know, attempt to have a fascist coup because that’s kind of unseemly, but fundamentally their objections are to the left, that that’s viewed as being dreaded ideology, right? Because people who are ideological are people who call out the prevailing ideology that we all swim in and that’s sort of the ultimate sin and so, so after Trump totally kicks our ass, puts on, you know, Trump appoints three Supreme Court justices after the Senate Republicans torpedo Obama’s appointment, and he lingered in limbo for over six months when Obama proffered Merrick Garland to be in the Supreme Court, and Trump appoints three consecutive right-wing justices.

Nima: In one fucking term.

Adam: In one term, and the second, in the first year, Biden has an opportunity to appoint a Supreme Court justice, The Washington Post rushes in to say, “No, no, no, got to make sure it’s not too left-wing,’ which is weird, because they’re very careful to say like, they’re going to have their preferences but they need to not be overtly ideological.

Nima: Sometimes, hey, hey, they can’t be perfect, but at least they try.

Adam: Yeah. So it’s mostly aesthetic. Basically, they have to have a career in politics where they don’t, they never really stood for anything. They’ve kind of operated within a partisan framework but nothing messy, no advocacy, no working on criminal justice reform, god forbid no allegiances to any political radical organizations. They need to be a faceless liberal kind of manager.

Nima: Well, because in this construction, ideology is seen as anathema to reason.

Adam: Well, maintaining the centrist consensus.

Nima: Right, exactly. Rather than ideology being the product of actually reasoning things out, then you kind of land somewhere because you’ve thought of these things. It’s like you’re not supposed to think of anything, and that’s reason, but if you’ve actually thought of something and have an opinion, have your mind made up about maybe how the world works or how it could work, that is seen as being radical and ideological.

Adam: Yeah, so clearly Gorsuch and Barrett, Trump appointees, were among the justices in the Roe vs. Wade decision who decided to overturn abortion protections, and so after this leak happened on May 2 of this year, we saw again, this mystique of the court and those who have a deep ideological interest in the maintenance of this fiction, rush to be outraged by this.

Nima: Not outraged by the decision that was pending, outraged by the leak because of the decorum of the court.

Adam: Right, because it’s important that they be not transparent and have a mystical like property where they bestow opinions on us mere humans. Washington Post opinion deputy editorial page editor Ruth Marcus was totally apoplectic, writing, quote, “The leaked draft Roe opinion is a disaster for the Supreme Court.” Her op-ed would go on to say, quote:

Whoever the source, leaking a draft opinion isn’t bravery — it’s betrayal. I love a leak as much as the next reporter, and kudos to Politico for its scoop, but unlike Congress and the White House, the court can’t function this way. It’s one thing for information to dribble out after the fact about switched votes, but something else entirely for a draft judicial work product to make its way into breaking-news alerts.

And as much as I fear the consequences of the current six-justice conservative supermajority, I’m not prepared to believe the institution should be destroyed, which would be the consequence of a culture of preemptive leaking.

New York Times also ran a hand wringing piece writing, quote, “A Supreme Court in Disarray After an Extraordinary Breach.” The Hill Opinion, same day, “Supreme Court’s Roe v. Wade leak: The end of integrity and ethics?” For NBC News, Ryan C. Williams, Assistant Professor of Law at Boston College Law School on May 8, later that week wrote, quote, ”Supreme Court draft leak is indefensible, whatever side of Roe you’re on.”

Nima: Now, of course, according to much of the media, the tremendously adverse effects of overturning Roe are not a good enough reason, still, to view the Supreme Court as an institution or its justices individually as agents of political decision making, right? Especially reactionary political decision making. This was thrown into sharp relief, I mean, the idea that, you know, even this was not evidence of bias of, you know, stark partisanship, when the media condemned the act of protesting outside of the houses of conservative justices like Brett Kavanaugh for instance, the media has gone fucking apeshit about this because justices ‘need to be protected, they need to be safe,’ regardless of how unsafe they make the lives of Americans.

Adam: From protesters, right?

Nima: Right. So The Washington Post editorial board, of course, this is on May 9, 2022, had this to say, “Leave the justices alone at home,” was the headline.

Here’s an excerpt, quote:

To picket a judge’s home is especially problematic. It tries to bring direct public pressure to bear on a decision-making process that must be controlled, evidence-based and rational if there is to be any hope of an independent judiciary. Critics of reversing Roe maintain, defensibly, that to overturn such a long-standing precedent would itself violate core judicial principles. Yet if basic social consensus and the rule of law are to be sustained — and if protesters wish to maximize their own persuasiveness — demonstrations against even what many might regard as illegitimate rulings must respect the rights of others. And they must be lawful.

End quote.

Two days later, the Post was back with this analysis by Aaron Blake headlined, “Yes, experts say protests at SCOTUS justices’ homes appear to be illegal.” Now the Post was really going to bat for conservative justices here. Most outlets didn’t quite have the gall to state this overtly that protesting outside justices’ home is illegal, but rather framed as possibly not fully within the laws of, you know, Republicans were arguing, but The Washington Post decided to, you know, publish a piece where it just really established the illegality of doing this to, you know, shame protesters while protecting our independent judges.

Adam: Yeah, and the whole thing is even more absurd when you consider that one of the major Supreme Court justices, Clarence Thomas, his wife, Ginni Thomas, is a foaming Trump right-wing activist. She’s a member of the Council for National Policy, the group she founded with right-wing support along with Steve Bannon and other right-wing billionaire donors, she was central to Trump’s attempt to overturn the 2020 elections, and reporting in The New York Times over the last few months has revealed this. As Mark Joseph Stern noted, Ginni Thomas emailed 29 Republican legislators in Arizona urging them to overturn Biden’s victory by appointing fake electors. She was involved in a lot of the, as we’re learning in the January 6 committee hearings, she was involved intimately in a lot of the efforts to overturn the election in 2020 and the line from Clarence Thomas and the conservative circles is actually they’re separated, she kind of does her own thing, but nobody really believes this, right? I mean, the whole thing is so goofy.

Nima: Yeah, in America, decorum is always better protected than dissent. The legitimacy of the current court, with its conservative majority, Christian zealotry and deliberate destruction of fundamental — and already hard-fought, won and allegedly guaranteed — rights has rarely been more fragile — especially in light, Adam, as you mentioned, of Ginni Thomas’ ties to January 6 insurrectionists. But it’s in these very moments when decorum and sanctimony — yes, the majesty of the court itself — is strenuously advocated for by liberal voices — and namely, by Democrat-appointed Justices themselves, who justify their own job’s legitimacy by coming to the defense of their fascist colleagues. Just last week, Supreme Court Justice Sonia Sotomayor spoke of her deep affection for Justice Clarence Thomas, heaping praise on him during a talk before the American Constitution Society.

Sotomayor said that, despite being the justice whom she disagrees with the most on matters of law and who disagrees with her the most:

[Begin Clip]

Sonia Sotomayor: Justice Thomas is the one justice in the building that literally knows every employee’s name. Every one of them. And not only does he know their names, he remembers their families’ names and histories, He is the first one who will go up to someone when you’re walking with him and say, ‘Is your son okay? How’s your daughter doing in college?’ He’s the first one that, when my stepfather died, sent me flowers in Florida. He is a man who cares deeply about the court as an institution, and about people who work there, but about people.

[End Clip]

Just like we heard George W. Bush, a war criminal, torturer, a man whose administration, with of course, the bipartisan help of Congress, murdered and destroyed the lives of millions, was a good guy right? He gave people cute nicknames. He was a good dude to have a barbecue with. Share a beer with. Sotomayor defends Thomas personally as a friend, as if that has any bearing whatsoever on the relevant critiques and calls for his removal from the bench. I mean, look, everyone, except maybe Ted Cruz, has friends at work. Who fucking cares about this? KKK members go on family picnics, too. Sotomayor in her recent comments would go on to say that she and Thomas “share a common understanding about people and kindness toward them,” despite their “differences of opinion.” Now, look, personal kindness to those proximate to you doesn’t mitigate or undo the harm that you visit upon the lives and rights of others you don’t see around the water cooler every day. But this is just one more example of the liberal legitimization of this fundamentally flawed institution. But on personal grounds, right, not on structural grounds. Personal relationships are what drives Sotomayor’s belief in this system.

And of course the media followed suit with conservative outlets like The National Review boosting Sotomayor’s comments as if that is supposed to silence critics.

Adam: Yeah, clearly they’re political actors and a political player and so what you see is you see this double standard happen when people talk about other countries, especially countries that are on America’s enemy list, just to give a couple of examples. So in recent years, it’s become totally mainstream democratic opinion, it’s become trendy to talk about court packing or court enhancing or court expanding, I believe it’s the preferred euphemism, as a way of countering the right-wing efforts to not only co opt the court system, but also prevent any kind of meaningful legislation that’s urgently needed with respect to climate change or inequality or a number of things, and this is interesting for anyone who’s observed some of the hand wringing around Latin American socialists or left-wing pink governments in Venezuela and Bolivia specifically. In 2004, Hugo Chavez was widely condemned for court packing to try to change the constitution and change the political dynamic of Venezuela after an election where he won 65 percent of the vote. Human Rights Watch in 2004 wrote, quote:

The Venezuelan Congress dealt a severe blow to judicial independence by packing the country’s Supreme Court with 12 new justices, Human Rights Watch said today. A majority of the ruling coalition, dominated by President Hugo Chávez’s party, named the justices late yesterday, filling seats created by a law passed in May that expanded the court’s size by more than half.

Coverage of Bolivia’s left-wing President Evo Morales did something similar. So The Washington Post editorial in January of 2019, when they were kind of pumping the gears for the coup that would happen 10 months later, they wrote in their editorial, “The cynicism of Evo Morales’s reelection bid in Bolivia.” The excerpt said, quote:

While socialists in Venezuela and Nicaragua lay waste to people’s standards of living, the government of President Evo Morales has overseen more than a decade of economic stability and real poverty alleviation. But it has also hitched economic competence with the standard leftist suite of authoritarian measures: packing courts with cronies, ignoring checks and balances, presiding over pervasive, unabashed corruption, etc.

NPR, weeks after the right-wing coup wrote, quote:

Already one of the region’s longest-serving leaders, Morales kept on reaching for more. On Oct. 20 he ran for a fourth term even after the public voted in a 2016 referendum that he shouldn’t. The Constitutional Court, packed with his allies, overruled the referendum and authorized his reelection because it said — no joke — term limits would unfairly constrain his human rights.

Something that we also have in this country, no term limits, but whatever, until the 1950s president. Also presents the coup of Anez as a failure of Morales’s authoritarian regime. And so you see this, oftentimes they’ll say Chavez cronies or Morales allies. Well, yeah, it’s because they’re all someone’s allies. The three justices who Trump appointed are Trump cronies and Trump allies. That’s how judicial appointments work. They’re not separate from politics and so one of the reasons why it’s important to maintain this pretense of politics, of justices and Supreme Court justices existing outside of politics and partisan politics, because it’s a way of preventing activists from ever being engaged in, it’s a cultural chilling effect for anyone who wants to be, you know, any lawyer who wants to advance to stay away from nasty politics or ideological activity which is to say really trying to change the world or being overly ideological in a way that doesn’t conform to The Washington Post standards of what ideology is supposed to be. But also, it’s part of nationalist mythmaking to separate us from those sullied, dirty, authoritarian regimes. Now, of course, in the context of Bolivia and Venezuela, these are democratically elected governments that are attempting to undo constitutions or systems.

Nima: That were written by either colonial powers or oppressive governments. Right.

Adam: Right, that have the greatest inequality in the world, the most entrenched racism in the world, anti-Indigenous systems, overtly white supremacist constitutions, so naturally, you’re going to rely on quote-unquote “cronies.”

Nima: But also to do that constitutionally, right? So even by liberal American standards —

Adam: Well, they’ll just say the Constitution is fake.

Nima: It’s not about just, you know, rewriting the constitution because the President has that whim, it’s that a constitutional court is still a process by which to do that, and so therefore, there are people appointed to that court who can therefore have the authority to change a constitution of a country from being super oppressive to maybe less oppressive, but even going through that process.

Adam: Well, it’s a way to make things sound sinister when they’re just things that we do. It’s like when Nicolas Maduro won the election after Chavez died and they called him his handpicked successor and of course, the handpicked successor is just the vice president.

Nima: Right.

ABC News headline claiming that Venezuelan President Nicolas Maduro can be both democratically elected and a “handpicked succesor” [sic].

Adam: But unlike American vice presidents, he actually had to run for election and he won the election barely, but he won the election, and so you see this like, how do you take something that every country has, which is politically appointed justices, and you make it seem sinister? You say cronies or party allies or what’s another funny one they do? Party apparatchik. It’s like, well, isn’t that what we do? Isn’t that why we have elections here, so we vote, didn’t you just tell us the Supreme Court was on the ballot?

Nima: Right, but it’s all about the veneer, right? It’s all about this facade, and so even the way that court packing is described in, you know, socialist Latin American countries, is fundamentally different from what then we see here, even though it is gaining mainstream liberal traction. So court packing in the US is presented, oftentimes in our media and in our politics, as a way to depoliticize the court, to add more seats to therefore dilute the conservative stranglehold, right,? Thereby maintaining independence. And so you see The Washington Post — keep going back to The Washington Post — October 8, 2020, with this article, “What is court packing, and why are some Democrats seriously considering it?” The article quotes Elizabeth Warren, a staunch proponent of Supreme Court expansion by saying this, quote:

It’s not just about expansion, it’s about depoliticizing the Supreme Court. It’s a conversation that’s worth having.

End quote.

Adam: And so she is not called an authoritarian, even though she does the same thing that other leftists have realized, which is that if you’re a progressive or a leftist or you want to sort of meaningfully change society, you can win all these elections to your heart’s content, but if you have a Supreme Court that is a reactionary vestige of a different time, it’s very difficult to actually implement the will of the people because you’re constantly going to be said you’re overturning the sort of independence of the judiciary, and so I don’t think necessarily by design, but as a matter of manifest reality, it becomes a reactionary check against left-wing populism or broadly popular progressive movements.

Nima: To discuss this more we’re now going to be joined by journalist and writer Josie Duffy Rice. A longtime analyst of the criminal legal system, she is also the creator and co-host of the Webby-nominated podcast Justice in America. Stay with us.


Nima: We are now joined by Josie Duffy Rice. Josie, it is so great to have you on Citations Needed. Welcome.

Josie Duffy Rice: I am so excited to be here. So thank you for having me.

Adam: Yeah, obviously on this topic, there was no one we were more excited to talk to than you, you are an expert in this particular field with respect to cynicism in the law and much experience in this. I wanted to talk about the news around the Supreme Court that has made this question more urgent, and increasingly, we’re seeing some criticism around the quasi-religious like reverence for the capital “T,” capital “L,” The Law.

Josie Duffy Rice: Right.

Adam: Specifically, the courts and the Supreme Court. The implication of the framing around the court as kind of this, for most of the media, is that it’s an oracle-like, almost mystical, quasi-religious institution that is opaque by design. That has people who sit on there for what appears to be 250 years. As someone who is both a lawyer and who’s written, spent a lot of time trying to peel back this mystery, I want to sort of talk about the broad media convention, which we’ve detailed at great length at the top of the show, to speak about The Court, capital “T,” capital “C,” or the Supreme Court, as this kind of mystical, quasi-clerical institution and the extent to which you think media reinforces this idea and what do you think some of the negative externalities of this are?

Josie Duffy Rice

Josie Duffy Rice: Oh, God, I mean, the negative externalities are just countless. Anytime I think that media treats the powerful as knowing more than they do inherently, that is just the biggest mistake that media can make. That court-based media, people who cover the court, people who write about the court, it tends to be this extremely insular community of people who have either clerked for the Supreme Court or know these justices personally or have this very intense relationship with the court, but also who need the court, right? They need sources, they want answers, they want to be able to know what’s happening, next term, etcetera, and so there’s this really inherent incentive to not question the very fundamental basics of is this the system we should have? It’s very easy for people in media who cover the Supreme Court to kind of buy into this. I will say that is sort of changing, I think Balls and Strikes is really good, five/four is really good at that, right? But in general, the way that media covers the court is they said it so that it feels like there must be a reason they said it and very often there is not. But I do think there’s another thing here, which is that legal nebulounessness is exactly this, right? Anything can be law and anything can be politics and it’s really hard to draw the line between the two of them and so I think as a rule the judiciary is generally less “political,” quote-unquote, than Congress in the sense that Congress is maybe riding waves and the judiciary is maybe riding tides. But I don’t know that being less political on its face is a value, right? I think that we’re kind of taught to believe that saying, ‘Well, this person doesn’t have a right to counsel,’ as a value is less admirable than saying it as the law and I just don’t know where the line is between those two things. I think the last thing I would just say is that the law is sort of like any other job in that you often get mired in the detail, you know, you work in the factory and you sew on the buttons and you don’t often step back and realize what everybody else in the factory is doing and what you’re kind of creating together, and the law really plays into that problem, right? You end up parsing the footnotes of two Supreme Court decisions from 1961 instead of saying, wait a second, let’s talk about why would this, what do we believe in?

Nima: Right.

Josie Duffy Rice: What do we want? What do we want the world to look like?

Nima: To that point Josie, you know, I think, as you mentioned, some of this feeling about the court is changing a bit — I’m not trying to be the resident optimist here, because we don’t really do that on the show — but, you know, over the past few years, certainly, the Supreme Court has gotten maybe even more brazen in its dismantling of labor rights, abortion rights, civil rights, and with that there is the kind of attendant questioning of the sanctity of the robe in liberal and certainly more progressive circles with some even adopting more radical critiques, right? We see the kind of ever so slight mainstream-ification of court packing, and obviously critiques about the nature of, say the Senate and why and how that was created in the first place are popping up more and more. Basically, as we look at existential crises like climate change, breakdown in social trust, runaway inequality, it’s clear the current system set up by a few dozen slave owning, white landowning guys in the late 18th century may not have been the best, most just most logical system, but was in fact set up to promote impotence and anti democratic quote-unquote “checks and balances” really against the will of the people. So saying this, I think, you know, offends most of the legal norm world, the lawfare blog type, because they argue without the Constitution, legal precedent, federalist papers, and reverence for that kind of holy writ, what is there in its place? What is there that we can believe in? Where is the foundation of our society supposed to sit? And so the law then becomes subject to the, you know, whim of whoever’s in political power, and that’s supposed to be okay or does there need to be power returned to the unwashed masses that it was deliberately set up again? So without this kind of reverence, without the sanctity of the court, or the law, do we lose something? What do you say to people who kind of worry about that and do you think that maybe they have a point?

Josie Duffy Rice: Yeah, I think it’s a good question, and I think, and maybe this is just Stockholm Syndrome from law school, but I don’t know if you lose something without the sanctity but I do wonder if you lose something without the checks on the other two branches of government. Do I think this is the best checks and balances? Probably not. If I were starting from scratch, I don’t think I would have thought this up. But then you can imagine how a world in which the Supreme Court looks different. You can imagine a world in which, I mean, it’s hard to imagine, but theoretically, you could think of a world in which the Supreme Court has nine people chosen from groups that are underrepresented. What if it’s nine people making minimum wage? What if it’s nine people who have felony convictions, what if it’s, you can imagine a world in which the way that we think about checks on power is not just more power. Now, there is nobody on the Supreme Court right now who has not been powerful for a very long time, even if demographically, they represent a group of people who aren’t as powerful the nature of getting to the Supreme Court is you have done, you know, you have been at the top of the top of the top for 30 years, that’s the only way you get there, and so the problem is that the Supreme Court reifies all of the patterns we see in politics and also just society, right? That hands power to powerful people and hands them more power and allows them to speak for the less powerful. So I do think there is something to be said for keeping a check on a Congress on a political system that caves to the whims of the most emotionally charged and the simplest perspective but I also think the way we’re doing it is just shrouding politics in law, as we always sort of have and that will fail you every single time. I also think, whenever I think about the founders and the founding documents, I think I think of two things. One is that it’s been so long since those documents were written, that’s like trite and everybody knows that, right? But we’re talking about, the world has changed so much, you think about the Second Amendment and what guns were back then, right.? You think about communication and how we communicated back then, you think about what the country looked like, how big the country was, all these questions, they were working with a different set of facts. But then you also think about how new those documents are, right? This is a relatively new country, relatively new society. There are so many lessons, we have not learned about preservation, there’s so much hubris. So I feel like we are always both facing both of those impasses, right.? One is that we are too far away from it and then the other is that we’re a little too close.

Adam: Yeah, because I feel like one of the more bizarre charades is when we do the questions when the Senate does the hearings for the Supreme Court justices there’s this cheekiness around making political commitments, because they, I guess, there’s some sense that they don’t want to prejudice or bias, you know, future rulings by being clear about their intentions. So there’s this code that emerges where they kind of say, wink, wink, here’s what I expect to do politically, because this is supposedly supposed to be some Democratic authorization for this immense power. I mean, just tremendous, I would say, to some extent, you know, they’re probably, in their lifetimes, more powerful than the President.

Josie Duffy Rice: Oh, yeah, definitely.

Adam: You know, maybe not on a per year basis but in the aggregate — as I’m accustomed to saying — and this kind of opacity in this code becomes, the average person watching these hearings will have no fucking clue what’s going on really. So there emerges a clergy class of pundits and commentators and writers who sort of interpret this for you and then there’s this sort of parallel sense that they’re all just friends that, you know, we know, famously conservative and far right, anti woman Supreme Court justices are, they go to the same, you know, parties and have dinner parties and play puzzles with the lawyers and this is something that comes up a lot. When Neil Gorsuch was up, he was, you know, going to be central to dismantling Roe versus Wade, it was all of his former clerks who were like, ‘I’m a liberal, but he’s a nice guy.’ ‘They’re all nice guys.’ It gives the distinct impression, not only is this kind of an opaque, quasi-religious activity full of seers and priests and Franciscan monks who have to interpret this inscrutable Latin text, but also, nobody really takes, it’s kind of a game a little bit.

Josie Duffy Rice: Mm hmm.

Adam: And I think that makes people cynical, and also very confused, because it seems very important, but it’s difficult to sort of pin down what people’s politics are, and my question to you is, (a) to what extent do you think that that process can be more democratic? Or, again, maybe you think that’s wrong? Maybe that kind of leaves it subject to the whims of the demagogue or the whims of the foaming masses. Or (b) shouldn’t they seem a little bit more ideologically committed to these really important things that they’re supposedly doing? I mean, you know what I mean?

Josie Duffy Rice: Right.

Adam: I don’t know.

Josie Duffy Rice: Do you mean just in hearings or generally?

Adam: Well, both. I mean, the process by which we nominate Supreme Court justices and approve them is not a very democratic process by design. The President does it unilaterally, the Congress has no say, it’s just the Senate.

Josie Duffy Rice: Right.

Adam: It’s all kind of very magisterial.

Josie Duffy Rice: Yeah, I mean, look, I think it’s worth noting that right-wing justices are extremely ideologically committed. You saying that made me think, can I think of a decision in the past 20 or 30 years that I think a right-wing justice regrets? They think, ‘I voted for this,’ you know, ‘I ruled this way because I thought that’s what the law said but I should have followed my values more,’ and I actually can’t think of one because they always follow their values.

Adam: Well, that’s what makes the whole thing so silly is because we’re supposed to act like they’re not doing that.

Josie Duffy Rice: Right. But I would say that like on the quote-unquote “left” or left of center, when you think about the quote-unquote “liberal judges,” they often don’t follow their values, right? They’re often like, ‘Well, actually, you know, the 14th Amendment doesn’t allow this,’ there is kind of this weird thing where you see some people trying to pretend this is about law, and some people not pretending it’s about law.

Nima: I feel like that sums up American politics completely.

Josie Duffy Rice: Totally, totally, completely.

Adam: Yeah, totally asymmetrical warfare.

Josie Duffy Rice: Right. And I don’t know if it’s about being in good faith, or what, I don’t know what it really, you know, I’m not a psychologist, I can’t diagnose these people, but it does feel like just lying to themselves, right? That’s how I feel so often when I read Supreme Court opinions, when I listen to Supreme Court arguments. I think I have two examples about this that really stick with me. The first example would be of that healthcare decision, which I think was 2012, and I remember when that came down, and Roberts quote-unquote “voting” with the liberals, right, because he said it could be a tax, and feeling relieved, and then also feeling like that’s just made up, right? He actually just thinks this should be legal and so he made up that it can be a tax, you could completely argue the other way, everything can go either way, right? This is just, this is how fragile our judiciary is, which is that you can just argue whatever you want as the outcome. I think the other example I have of that is that there was a case in the fall called Wooden v. US that was, I won’t get into the details, but it was about a man who was facing either a couple of years or many more years, depending on how his crime was categorized when he broke into a storage facility and robbed 10 different units, was that 10 different crimes or one crime? And so you watch the arguments, and you see both sides go up there and make these deeply esoteric, detailed arguments about why unlocking this storage unit is another crime or it’s the, you know, you’re just like, actually, we all know that this is one crime. We all know that this is one storage unit, it is one night, it is one thing, we all know that, and I don’t have to actually see the statue say that it has to be seven feet apart or whatever. It’s just so fake. It’s just so made up. And I went through all of law school, three years of law school, not realizing that. I went through all of law school feeling like I just don’t get it. I guess I’m stupid because this all seems fucking ridiculous to me and it took me many years to realize it wasn’t me, it was that.

Nima: Yeah.

Adam: I think you’re touching on the sense that liberals have this frustration, again, I think it’s been amplified by Roe and the other major court rulings, which seemed to kind of shake the broad bipartisan social contract where the right is just basically doing a coup, obviously, handing Bush the White House in 2000 being —

Josie Duffy Rice: Right.

Adam: — one such example where you have a kind of firm ideological commitment to this libertarian originalist perspective that Republicans pick certain justices from, that obviously has a very clear-eyed kind of ideology, there’s edge cases here and there, but more or less, that’s where you kind of, they’re brought up through this filtering system of kind of legal societies and such, and then the liberals don’t have firm political commitments other than credentialism and formalism, and so you’re already, you know, what we can debate why this is, we can, you know, why universities and law schools are set up to kind of produce and reproduce this, but I think what you see is a frustration on the part of liberal activists or even progressive activists where it’s like, like you said, you can cite plenty of examples of liberals kind of being a little bit roguish or saying, ‘Well, technically, the law says this and that’s what the lie is,’ whereas conservatives, because they do rely on this psychological interpretation of what some crusty guy in the 18th century thought, that by definition, their positions are going to reflect that ideology at the time, and this strikes me as unsustainable politically or at least I’m hoping it’s unsustainable, where, you know, we had a more liberal Supreme Court for a few decades, right, in the ’60s and ’70s, relative to where the kind of quote-unquote “society” was. I think it was largely in line with it, but it was not, and now that’s not really the case it seems, and so this asymmetrical warfare obviously is very troubling to people who value certain things other than the rights of a golf course in Florida, which is basically the primary mascot of the Republican Party, a golf course in Florida, and its right to sort of mow over the spotted owl.

Josie Duffy Rice: Right. Yeah, I think that’s right. I think that it’s not sustainable politically, I just don’t know which way it plays, right? I have a lot of trouble imagining 10 years down the line, 20 years down the line just because let’s take juvenile sentencing as an example, if you’d asked me three years ago, I would say we were around the corner from having the Supreme Court ruled that juveniles, it’s unconstitutional to sentence a juvenile to life without parole. That’s what I would have said, right? We’re on that path, we’ve been on that path. That’s where we’re going. I don’t think that anymore. I think we’re 30 years out from that, because the court changed and the values have changed, and you have a lot of people on the court who just don’t share my values fundamentally, party aside, they just don’t, they don’t see the world through the same lens through which I see it. I think where I have come since law school is Roe being an example, right? We’re having this long, kind of drawn-out fight over whether Roe is constitutional or not constitutional and I just don’t care whether you can read Roe into the Constitution —

Far-right Supreme Court justices Brett Kavanaugh, Samuel Alito, John Roberts, Neil Gorsuch, and Amy Coney Barrett. (Source: CNN)

Adam: Because Roe is also made up.

Josie Duffy Rice: Roe is also made up. It’s all made up. Roe is valuable to me as a value, not as a law and so when you get into this back-and-forth about whether you can read Roe into the Fourth Amendment, maybe not, maybe I’m, you know, whatever. I don’t know, I’ve never practiced law for this exact reason because I actually don’t want to. I can’t do the fiction. I can’t do this thing where we pretend as if what matters is the question of how do you slot this thing into this document? Now I do understand the value of guidelines and norms and boundaries. I understood the value of norms, even a little bit more over the past, since I’ve graduated, in some sense, some norms, right? But it’s not my fight, and I’m just, I just think that every time we’re playing on the ground of, ‘Is this constitutional?’ — we’re going to lose. The right has originalism on their side, they can always just say it doesn’t say that, right? It is a losing proposition for the left every single time to fight the war on that ground, and yet, that’s the only ground we know how to fight, and so it feels just like quicksand. Again, it just feels to me like, are we excavating the actual tenets of a real conversation about who do we want to be?

Nima: So considering, Josie, you have been to law school, let me ask you this question.

Josie Duffy Rice: Okay.

Nima: How much of this idea of professional norms, you’ve been speaking to this, has been just drilled into law students, and then, you know, furthermore lawyers in practice? I mean, both in law school and then after effectively normalizing what, I mean, I think, in so many other contexts would be, you know, seen as just sociopathic behavior, right? You’ve commented on this, civil rights core founder Alec Karakatsanis, who’s been a guest on the show, talks about this all the time. This dogmatic deference to “the law” permitting a state of say, let’s get real, right, let’s take it down from even where the Supreme Court is fucking things up now, but just daily city or town courts, the system of mass incarceration being set up by the system, deliberately, but then it’s shrugged away as, ‘Eh, that’s just the way it is,’ right?

Josie Duffy Rice: Mm hmm.

Nima: Tell me about kind of how law school does this to future lawyers, the idea that this is your role, do this thing, but don’t ask bigger questions about the moral culpability of this system, right.? And I think that, you know, someone sitting in, you know, a Kings County, Brooklyn courtroom or Cook County in Chicago, on any given day, and just watching the proceedings, would be horrified, horrified. That’s why organizations like Court Watch exist, right? But because judges just toss out sentences or fines or fees that have unbelievably terrible consequences on the people themselves, but they’re just kind of, it’s just like, run of the mill, whatever, go on about their business, right? And this somehow is seen as normal. Which kind of brings me to my long winded question. How does, again, the sanctity of “the law,” of courts, of the system contribute directly to harm of people, and certainly, you know, let’s say, for example, mass incarceration again by desensitizing lawyers, reporters, law makers themselves as to the real human stakes of our legal system?

Josie Duffy Rice: We could do five years on this because it truly is, to me, remains like one of the most shocking parts of law school to me, which is that saying this is wrong, is seen as unserious.

Nima: Right. Unlawyerly.

Josie Duffy Rice: Unlawyerly, and it’s seen as almost lazy, ‘Okay, but give me the reason it’s wrong, cite the law, give me the constitutional argument,’ and in this effort to make you sort of this rigorous lawyer, it stamps out this part of us that recognizes, that immediately recognizes, the gut check that says this is wrong, this just feels wrong, and that is something that matters. When your gut tells you, I don’t like this, that’s something to trust and law school stamps that out of you so, so quickly, I mean, like week one or two. I think I have a couple examples of this that I think about, one of them is felony murder. So I just did a story in Tennessee on felony murder, so I’ve been thinking about it a lot, but when I was in law school, this concept of felony murder basically means okay, so you commit a felony, someone dies in the commission of that felony, but you didn’t kill them or intend for them to be killed, right? You are charged with murder. So the two of you are robbing a house, Adam shoots the homeowner, you both get charged with murder.

Adam: Better yet if the cop shows up and shoots the homeowner, right?

Josie Duffy Rice: Exactly. Right. Or someone’s in the car.

Nima: Don’t try and avoid responsibility for what you did, Adam.

Adam: Oh, sorry.

Josie Duffy Rice: Right, exactly. So that is the, I mean, the example I just gave us the example they give where you’re sort of like, well, I guess it could have been either of them to shoot the homeowner, right? But then the truth is that people are getting felony murder charges for like you said, the cops show up and shoot your friend, and so you get felony murder or you’re in the car and you get felony murder. So that’s just a long way of saying on its face, felony murder makes no sense. You’re like, well didn’t kill anybody so why would I be charged with murder? That doesn’t make any sense. That’s not a value, that’s not a deterrent, you know, nobody doesn’t do the armed robbery, because they’ve heard about felony murder. Every story about felony murder is something went horribly wrong and this is the end result is that now both of us are going to prison for life, and yet, when you’re in law school, and you’re sitting there and someone explains it to you, it makes a little bit of sense, that’s how dark it gets there, where you are sorting through the statutes and not what you know as a human being.

Nima: Yeah, because you’re like, well, but for and then therefore it wouldn’t —

Josie Duffy Rice: Exactly.

Adam: Yeah, and at the risk of being mawkish, to some extent you sort of understand it. Because, you know, I have a 12-year-old niece and she does CX debate, and I did CX debate when I was in high school — one of the reasons I’m an insufferable prick — but I remember thinking, oh, the part of it you spend 50 percent of your time arguing for one side and 50 percent of your time arguing for another side.

Josie Duffy Rice: Right.

Adam: And basically, what you learn is the kind of formalism of argument and debate.

Josie Duffy Rice: Right.

Adam: And you keep doing that and doing that, and you go to law school, and you do that, and at some point, you cross over to the threshold of reality, where it’s not a game anymore but there are 55-year-old adults who still think it’s a fucking game, who still think they’re my 12-year-old niece.

Nima: That the debate is the point and that’s where the zealousness comes from, not being for justice.

Josie Duffy Rice: And also the fact that they can see it on both sides makes them more valuable, more intelligent, and more moral than the rest of us. I mean, that’s truly the bottom line in this way, that really is just so, it obscures so deeply what drives people when you are taught to be able to justify anything by shifting your perspective on the statute just a little bit. It goes against everything we’re kind of taught as human beings, which is a value set, right? To stand for something, to stand for the law, that’s not standing for something, the law is not a value.

Adam: And this is one of the existential criticisms of the Democratic Party is it’s a party effectively run by lawyers.

Josie Duffy Rice: Yeah.

Adam: Lawmakers are overwhelmingly lawyers, policymakers are lawyers. Most of the pundits are lawyers, where if the highest order is formalism and argumentation —

Nima: And doing so civilly, right? Within a structure, where we all believe in the good faith of everyone else.

Adam: Yeah, that you’re like, ‘Well, wait a second, what about the union guy or that Black Lives Matter activist or the committed abortion fighter,’ that these people are secondary to that kind of clergy class of law, and again, to some extent, at some point it sort of reminds me of the story of how baseball cards emerged, right? Used to get little packs of gum in the ’20s, and then to sell them they would give you a little baseball cards, and then eventually, they would add two because people really like trading them, and then they added three, and then eventually just had a pack of baseball cards with a little stick of gum. When I was a kid, and then eventually they just got rid of the gum, where the formalism to sort of, in the ’60s and ’70s, to fight the man, at some point, we abandoned the reason why all these people decided to go to law school.

Josie Duffy Rice: Right.

Adam: And obviously, that’s not a categorical rule. There are nonprofits, organizations, people who are lawyers who do try to, you know, this is obviously, we’re generalizing here, but similar to the way economics departments basically institute a kind of sociopathic thinking, people don’t shed the thing that was supposed to be the point to have that kind of thinking to begin with. It was supposed to be a tool pursuant to political or ideological objectives, and now we just have the baseball cards with no gum. We just have a lot of formalism, but what the fuck are we doing here?

Josie Duffy Rice: Right. I mean, a lot of that also just ends up being about class, right, which is a set like you get a J.D. and you enter a new world of access, and in a world that’s separate from most people, and then you actually just don’t have to think about this stuff. You just don’t have to think about it. So you can think about it in theory, but you know, the example I would use is like a lot of people who argue criminal law in front of the Supreme Court, maybe have never been to a prison or met a defendant, right? This is often appellate work, I mean, I shouldn’t say never, but I would say in decades, you know, people who are teaching criminal law in law schools, when’s the last time they met someone who’s currently in the criminal justice system, right? And so there’s also this sense that, it’s almost like if you were to write a book about parenthood without ever having been a parent or met a parent in the past 20 years, the way you would talk about it would be just divorced from the emotional and moral import and the complication of what it means to raise a kid, and I think that so often the refusal to engage with people who are at the mercy of the law instead of shaping the law, contributes to this dynamic that you just noted.

Nima: Well, I mean, Josie, you said earlier, you know, in this conversation, you were like, what would it look like if the Supreme Court were populated by people who made minimum wage? And immediately I was like, oh, imagine if you floated that idea?

Josie Duffy Rice: Right.

Nima: What would be the first thing that would be said, ‘Oh, but they don’t have the education. They don’t have the expertise in this. How could they do that?’

Josie Duffy Rice: ‘They’ve never ever served on the Fifth Circuit.’

Nima: Exactly. So automatically, it is a deliberately selected group who could even approach getting this and then you get into all the different things where like, you know, Justice Jackson has to basically, you know, disavow being a public defender, god forbid, because she wasn’t prosecutorial enough and Kavanaugh can just like, be like, hey, whatever.

Josie Duffy Rice: Right can do whatever. I mean, I think on that same point that what the job does is it corrupts you a little, no matter if you’re the best, I’ll go with federal judge, no matter if you’re the best federal judge in history, you’ve made some decisions because of quote-unquote “the law” that stand in opposite of what you think your values are and you’ve done that nine times so the tenth time, you can do the thing that the other judge wouldn’t have done, you can do the bold thing, but what does it do to a person to every day kind of disappoint themselves under the law? That’s not good.

Nima: Do you think, and this is maybe super naive to even say, but do you think that that’s the case much more for people who would describe themselves as liberals? Whereas conservatives are like, as you said before, do they regret any of their decisions? No, it actually works very much in line with how they want to operate in the world.

Josie Duffy Rice: Yeah, you can always take the crueler angle, right? Sometimes it’s very difficult under the law to take the humane angle.

Nima: Right.

Josie Duffy Rice: But I don’t think it’s ever very difficult to take the cruel one. So I think most conservative judges sleep perfectly fine at night. I don’t think they ever, you know, have to grapple with that.

Adam: Yeah. Well, because mass incarceration built up its own moral ecology, in relation to watching our prison population become 500 percent, 600 percent greater, where it was like, ‘Oh, we’re protecting the victim,’ and the bleeding-heart liberal lawyer is actually the one who wants to harm people and that’s how you sort of got over the cognitive dissonance, and it was why every third scene in Law and Order was about them saying that because that was kind of the pro-prosecutor, Holy Bible was like, ‘Oh, well, what about the victims?’

Josie Duffy Rice: Oh yeah, I mean, I think that there is no easier moral stance than for people to adopt than prosecution or pro prosecution judges. When you think about the bad guys, and you are able to characterize, we are able to isolate a decision, make that decision of a person and then punish them, it is like a high for a lot of these people.

Adam: You’re taking out the trash.

Josie Duffy Rice: Yeah, it feels really good to them and that was a big thing I had to realize when I went into a courtroom with prosecutors for the first time where I thought there was going to be some sheepishness and there was none, there wasn’t any sheepishness, and so that ability to think, you know, it’s like superhero stories, there’s a bad guy, I’m a good guy, I’m fighting the bad guy, that is so pervasive, in a way that, yeah, I think that they sleep fine at night. I think it’s a lot harder to be the public defender and make the deal for the guy you think is actually innocent or you think he’s guilty, but you don’t think he deserves this deal but you need to make this deal because, in some ways, your job is politics, right?

Adam: Yeah. And obviously fear as much, I mean, again, all this sort of work that, you mentioned three years ago versus today, and I think back on all the kind of progress that was made that’s basically pissed out the window because crime ticked up 1 percent and The New York Times decided it was going to become Breitbart.

Josie Duffy Rice: Right. And also, we just decided to ignore the fact that we know how to solve crime. We actually know how to address crime and we’re just not going to do it because it’s expensive and it’s not as easy as saying just put them in prison.

Adam: It’s easier to round up the surplus population.

Josie Duffy Rice: Exactly, exactly.

Adam: So yeah, one of the things we want to obviously not do is be, we touched on this a little bit, but not be too cynical, or overcorrect, because I guess the question that happens, I think when anyone sort of adopts a radical ideology, whatever that is, or kind of abandons liberalism as a good, it’s extremely, liberalism as a mode of change, which is to say, like argumentation and voting harder. Let’s just say, you see the existential crisis facing this country or the world in general, and you think liberalism is not going to cut it, that it’s sort of nice, but it’s just not going to work. That next breath you take is the scariest breath in your life, because you’re like, ‘Holy shit, that means I now have to replace that organizing scaffolding with something else.’

Josie Duffy Rice: Right.

Adam: And I think it’s because it’s easy to criticize — in fact, that’s 99 percent of what we do — and so if for all the criticisms of rule of law and norm fetishization of the kind of Aaron Sorkin dorks who comprise this contingent we’re talking about here, what replaces it is obviously a very scary question, and you see this a lot in the kind of precedent fetishizing where you’ll see like, the right-wing will do some horrible extrajudicial thing, let’s say court packing, ‘We can’t pack the courts because it will set a precedent,’ and it’s like, meanwhile, the right-wing is storming the Capitol and arming to the teeth and doesn’t give a fuck about any precedent at all.

Josie Duffy Rice: ‘But we don’t like that precedent.’

Adam: Yeah, they’re going after trans kids. They’re just basically begging the Supreme Court to, you know, prevent them from running concentration camps, and liberals are still talking about precedent, and I definitely feel like I’m kind of going insane or handwringing about Antifa or whatever, it’s like, they don’t care, they haven’t cared in 30 years, they probably never really cared but they’re don’t even run through the motions anymore.

Josie Duffy Rice: Right.

Adam: So then the question becomes, if you do talk about court packing, if you do talk about — I don’t know — whatever kind of extra legal or quasi-legal means or god forbid, quasi-constitutional means of bringing about change, my question to you is does that scare the shit out of you? I know that it’s something that people like you and like you mentioned, we mentioned five/four who we talked about, we know, I know, places like Balls and Strikes that are thinking deeply about what does it mean to kind of fuck the norms? You get it’s easy to sort of tear things down, obviously, what the alternative is a very scary prospect. So what does that look like? Is it this kind of squishy mass politics? Is it something resembling norms but without all the kind of ventriloquising people that have been dead for 250 years who wore powdered wigs? What does that look like?

Josie Duffy Rice: You know, I think it’s a really good question and I should say off the bat that I don’t exactly have the answer or I don’t have the answer at all, I shouldn’t say exactly as if I like maybe you have an answer, I don’t have the answer. But here’s what I do think more and more constantly, which is just that all of this ends up being, for lack of a better phrase, about culture. Guns I think are a good example where it’s like, is the Second Amendment good.? Is it not good? We’re talking about something so much deeper than law, so much deeper than policy, what people shape their values around. What I think is our mistake is that we start thinking about really kind of deep rooted preferences as being about policy when they aren’t, and so one of the places in which I’m very grateful for the at least theoretical protections that exist are defendants in court, right? So you think about the fact that some norms are good, and if it was not a principle that everybody deserved a robust defense, there’s no way it would be a principle that everybody deserves a robust defense. There’s just no way that we would live in a world in which people would think no matter what, this person deserves a lawyer, no matter what the prosecution should have to prove beyond a reasonable doubt, that is an incredible principle on his face, and a lot of places don’t have that principle, and when I think about what I’m grateful for, about the law, I think about protections for defendants, and I think there is something about some of the lofty values that our founding documents or our legal documents pretend to enshrine, I think they fall short very often, but I think equality is good. I think democracy as a general rule is a good thing. I think that freedom of speech is a very good thing.

Nima: Pursuit of Happiness sounds pretty lovely.

Josie Duffy Rice: Yeah, pursuit of happiness sounds great. Let me know when I can start pursuing happiness, thrilled to start at any point.

Adam: It’s like access to healthcare, it’s like you can try —

Josie Duffy Rice: Right.

Adam: You’re not entitled to a house or —

Nima: You can pursue it, you’re not entitled to any happiness.

Adam: Pursue it to your heart’s content.

Nima: Go for it.

Josie Duffy Rice: Right. You can like John Q your way into health care if you need to.

Adam: Health care. Good reference.

Josie Duffy Rice: Yeah, I think about John Q a lot. But, you know, so, to me, I think that so often the conversation is just shallow, because it’s not actually getting at the fact that, again, if you can read Roe under the Fourth Amendment, if healthcare is attacked, none of that is irrelevant to me. What is irrelevant to me is that these are rights that I value, that the people around me value, and that I think are inherent to a healthy society, and many other people disagree with me, and to me the law matters in terms of how it plays out but it doesn’t actually matter in terms of how you solve the problem because the problem is actually not just the law. It is what we come to the law with.

Adam: Right. But then I guess the politically relevant question would be less does this have any objective value? It is, can 15 liberals or leftists get into, you know, 20 liberals or leftists get into some courtroom and make enough clever arguments to trick a judge into voting their way? And I guess the question of that is not really either because the deck stacked against you too.

Josie Duffy Rice: Right. I think court packing is a great idea. Do I think it’s a solve? No, it’s not a solve. It’s like a policy that would be good, right? But none of this is a solve.

Nima: It’s a tactic. It’s not a strategy for real change.

Josie Duffy Rice: Exactly.

Nima: But yeah, I mean, you know, even saying that this is about, you’ve labeled it culture, I may also label it deep narratives, right? What are the things that motivate and animate people? And so there are these narratives about fairness and justice in the system and foundational aspects. I think that constitutionalism kind of falls into that in this way that then has horribly damaging consequences. But then there’s, you know, yeah, a reverence for due process and representation, which is wonderful.

Adam: Twelve Angry Men, man.

Nima: Right? Of course, you know, and due process is really the only, it’s the only thing that the Constitution mentions twice in the Bill of Rights, like it’s repeated.

Josie Duffy Rice: They’re like, ‘No, no, you really need this.’

Nima: ‘No, this is really important,’ and yet, then you see all of these carve outs and where things aren’t as cut and dry, and people think they are, but they’re not, right? So, if you’ve been charged with a crime, you have the right to public defense, even if you can’t afford it, right? Now, there are all sorts of problems with that, but just on paper, okay, fine. But if you’re facing detention or deportation as an immigrant, you don’t get that guarantee because you have not been charged with a crime because immigration court is basically a misdemeanor court and so therefore, you’re not guaranteed a lawyer.

Adam: Yeah, or you’re rotting away at Rikers for two years.

Josie Duffy Rice: Yeah or your housing or, you know, you have a right to a lawyer, but you have the right to that lawyer having funding, it falls short in almost every way, and also without the basis it would just be so much worse, and so that’s what — I am always, I am a, I’m definitely a it-could-be-worse person, not an it-could-be-better person. As a rule, I think it could be better, but I spent a lot of time just worrying about how much worse it’s going to get — but there are, you know, I believe that there are really important fundamental norms in our legal system that matter. I just think they are obscured by the ones that don’t.

Nima: Right. Well, and because they should be the floor.

Josie Duffy Rice: Right.

Nima: Except conservatives make them the ceiling.

Josie Duffy Rice: Yeah, exactly. Yeah and then they’re like, actually, it’s not even a ceiling.

Adam: So you’re basically Martin Luther, you want to reform the Catholic Church.

Josie Duffy Rice: Yeah, I’m going to nail some shit to a door.

Nima: Let’s nail that shit.

Adam: But you don’t want to, you don’t want to reject the divinity of Christ. Okay, you don’t believe in the vicar of God. Okay.

Josie Duffy Rice: If you could pass on the message that I’m like Martin Luther to everybody in my life, that’d be really great.

Nima: Yeah, please. Before we let you go, Josie, please do let us know what you have been up to, word on the Street has it that maybe potentially writing something, in maybe book form? I don’t know. Let our listeners know what you’re up to and what they can look out for.

Josie Duffy Rice: Thank you for the question. I am theoretically writing a book. Getting to that, if you are my book agent and listening to this, I am so on it, you would be shocked. But I recently went to Tennessee and did a project for Al Jazeera about the first degree murder sentence that juveniles can get in Tennessee when convicted of felony murder, as we were just talking about. It’s the longest mandatory sentence in the country. It’s 51 years. And so that, I made a short documentary with Al Jazeera that came out June 8, it’s with a program called Faultlines Al Jazeera, and it can be found on YouTube and at aljazeera.com, and that, to me, that’s the kind of work I like to do, I got to really kind of embed with a story and really look at the human impact, as we were just saying, that’s a big deal. So, you know, and other than that, I’m just trying to be on Citations Needed all the time. So those are my plans. That’s my future. Let my kids know that I have a really good plan for them.

Nima: Well, we can’t thank you enough for joining us today. We’ve been speaking with Josie Duffy Rice, journalist and writer covering police, prisons, prosecutions, the criminal legal system as a whole. Also the creator and co-host of the Justice in America podcast, full disclosure, produced by Citations Needed producer Florence Barrau-Adams —

Josie Duffy Rice: Our fave.

Nima: But Josie, thank you so much for joining us today on Citations Needed.

Josie Duffy Rice: Thank you so much for having me.


Adam: Yeah, I think the issue of what do you lose when you lose the mystique is an interesting one. I think you have to kind of maybe build a more, because I get, I think some of the most black-hearted cynics who support this mythology will say that the mythology is important. It kind of reminds a lot of Napoleon’s view of religion where he’s like, he didn’t personally believe any of it, but he’s like people are, you know, they need some kind of mythmaking, they need to have a king.

Nima: Right, they need something to believe in otherwise everything just sort of falls apart. Right.

Adam: Right. And so I think in many ways, a lot of these, especially like lawyers are not gullible necessarily, they know that, and I think some of them believe their own bullshit, but I think there is probably a lot of them who kind of know that this is a lot of theater and that all these kinds of post partisan pretenses and you never see them outside of their robes, right? They have to have the robe because it’s kind of vaguely, you know, has its origins in the monastery. It has its origins in religion.

Nima: And it’s kind of anonymized, right? It’s very formal. It’s not personal.

Adam: Yeah, the church ran the courts for centuries. You have to have this majesty to it. Otherwise, it’s just nine ass holes, all went to Ivy League schools, except I think for one now, whose opinions are as important as anyone else’s, and the veneer of this mystique is central to this kind of jingoistic mythmaking. But if you lose it, what is the collateral damage? Is there something that’s lost in that, does it become, do people lose, because I think there’s a broader trend here, there is a broader theme to this episode, obviously, which is a broader erosion of trust in institutions that is reflected in the media, the government, Congress, the White House brought about by many forces, which we don’t have time to get into. But you see the kind of mainstream invocation of discussions about packing the court or the kind of more overtly partisan way we talk about these conservative justices where people who are losing faith in these institutions, and I think that can be for the good, I think that’s mostly for the good.

Nima: Yeah, because it can animate positive change, but it also —

Adam: Right, the question is, what do you replace it with? And that, I think, is frightening to a lot of people.

Nima: Right.

Adam: Understandably so.

Nima: Right. Because without a clear answer, it seems like well, then at least, you know, you get into the devil you know, and then you can live in that devil you know space endlessly, which is why these systems perpetuate and become more and more entrenched, because the idea of change, the idea of imagining something different winds up being stifling, right? It winds up being almost fatalistic, or winds up being paralyzing to even view what could be different because you’ve lived with this for so long, and even if it’s imperfect, at least it has some sort of legacy, some sort of majesty, some sort of tradition that it comes from that you can look to, and you can trace back through documentation and precedent, and you can kind of lean on that instead of imagining something more just that might be a bit scary at first or may take a more kind of radical change than the incrementalism that people are much more used to.

Adam: Right. And these are the same arguments that monarchists used for centuries, right?

Nima: Right, well.

Adam: If you get rid of the majesty of the, you know, ordained by god then what do you have in its place? That’s frightening, you know, you have Robespierre and mass beheadings and it’s like well, sometimes you have to crack an egg.

Nima: Right, exactly. Well, that will do it for this episode of Citations Needed. Thank you all for listening. Of course you can follow the show on Twitter @CitationsPod, Facebook Citations Needed, and become a supporter of the show through Patreon.com/CitationsNeededPodcast. All your support through Patreon is incredibly appreciated as we are 100 percent listener funded. And as always, a very special shout out goes to our critic level supporters on Patreon. I am Nima Shirazi.

Adam: I’m Adam Johnson.

Nima: Citations Needed is produced by Florence Barrau-Adams. Associate producer is Julianne Tveten. Production assistant is Trendel Lightburn. Newsletter by Marco Cartolano. Transcriptions are by Morgan McAslan. The music is by Grandaddy. Thanks again for listening, everyone, we’ll catch you next time.


This Citations Needed episode was released on Wednesday, June 22, 2022.

Transcription by Morgan McAslan.