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So this is really coming out on Flag Day? That is hilarious.
(SINGING) Flags!
[LAUGHS]:
[MUSIC PLAYING]
From “New York Times” Opinion, I’m Carlos Lozada.
I’m Michelle Cottle.
And I’m Lydia Polgreen.
And this is “Matter of Opinion,” where thoughts are always allowed.
(WHISPERING) Yes.
[LAUGHS]: [MUSIC PLAYING]
All right, we’re back. Actually, Ross isn’t back until next week, but Michelle and Lydia and I are reunited. And it feels so good.
[HUMS]:
And we’ve got a special guest today for a conversation about the Supreme Court. Jesse Wegman is a member of “The New York Times” editorial board and writes frequently about the high court. Any action on that beat lately, Jesse?
None. None. Yeah, it’s been a quiet eight years. I’ve had nothing to do.
So quiet.
Between the court and Trump, it’s like I haven’t seen my family since 2015. Wow.
They send their regards. They miss you.
“The New York Times” is grateful for your service.
Yeah.
Well, we are glad you are with us, even if your family misses you. Because the court has lots of big decisions still coming this term on abortion rights, on presidential immunity, on the regulatory power of the executive branch, to name just a few. And I should say, we’re having this conversation before the court issues this week’s opinions.
And the reason we’re doing that is because there’s been a lot of focus on the behavior and conduct and statements of the justices themselves, in particular, Associate Justice Samuel Alito. Not to recap all of it, but first, there was that revelation in “The Times” that in early 2021, Alito’s home in northern Virginia flew an upside down American flag, a symbol that has been associated with Stop the Steal efforts. That was just apparently one of two controversial flags on Alito properties.
And then just this week, we learned that Alito had been secretly recorded discussing American politics and political polarization and saying, among other things, that it’s the media’s fault that the public trust in the court is so low. Now, Justice Alito is absolutely right that trust in the court has fallen in recent years. And we’re going to explore why that is in our conversation and what happens to an institution like the Supreme Court when the public trust that it commands weakens. So does that sound like a plan?
Let’s do it.
That’s so good.
All right, beautiful. First off, though, let’s start off with that sort of weird recorded conversation. Michelle, can you tell us what that was all about?
Oh, you know I’d be delighted. So earlier this month, a woman who self-identifies as an advocacy journalist posed as a conservative Catholic in order to secretly record conversations with some of the justices at this private Supreme Court gala.
So at the event, she pushed Samuel Alito and John Roberts on the idea that the SCOTUS should be working to put the United States on a more godly moral path. Alito totally agreed with her. Roberts pushed back, to his credit. And the episode has thrown gas on the already brewing controversy over some of the justices, and especially Alito’s, ability to serve as objective umpires in hot button cases. So that is kind of where we are with another burst of outrage over personal questions about the justices’ behavior or statements.
So what struck you guys most from what Alito said in these unguarded moments?
Well, the bar is remarkably low here to say the right thing. I think if you’re a Supreme Court justice, it’s probably wise to assume that somebody somewhere is recording every single word you say. And John Roberts, the chief justice, said what a Supreme Court justice should say, which is, that’s not our job. It’s not our job to put the nation on a moral path. Our job is to decide the cases before us. And he also pushed back on the notion that America is a Christian nation.
This is a low bar. Like, it’s not hard to say those things because that’s the job of a justice, is to show that you are approaching the job with as much fairness as is humanly possible. Samuel Alito either isn’t capable of or doesn’t care to do that. He and Justice Thomas, in particular, seem just to essentially be flipping the bird to the country and saying, we have no obligation to you, even though we’re unelected. Even though we serve for life, we are unanswerable to you.
Yeah, I mean, that’s what struck me about him with Alito’s response. I question the appropriateness of secretly recording people in private or kind of what they understand to be private settings.
But that said, it kind of just fuels the whole sense that he just has complete disdain for the public’s concerns about the court, especially when public trust in the court is in the absolute toilet. So whatever he really thinks or whether he was just being agreeable or whatever, it just kind of feeds the bigger picture of him as somebody who cannot be bothered.
Well, Alito is notorious for his agreeability, right? Everyone knows that. He’s just —
Well, it’s the same thing —
It’s his brand, right?
It’s the same thing with the flag, right? I mean, he has all these kind of flimsy excuses about his wife putting the flag up, and he didn’t see it. And he didn’t know what it meant. And I don’t really necessarily believe any of those.
But even let’s credit him with all of those, and say, even still, you’ve been a justice of the Supreme Court going on two decades now. You know that is hugely inappropriate to do something like that. I mean, people in far lower positions of government would be fired over things like that. So just the absolute disregard for the most basic obligations of one of the top jurists in the world is what’s so shocking here and so upsetting and so damaging to the legitimacy of the court.
OK, can I dissent here?
Please, please.
I just —
Your Honor.
I listened to the recordings, and then I read the transcript of the recordings multiple times, just to see if I was getting something wrong. Because I did not have a major freak-out, or even a minor freak-out, over the content of these recordings. It does not surprise me, or bother me, to learn that Samuel Alito believes the decline of religious observance in America is not a good thing.
The godliness thing — by the way, that’s the term that everyone has seized on. It’s not a term he used. He expressed agreement with the idea. He did it in what he thought was a one-on-one conversation with someone he’d met before at this nonprofit fundraising dinner. I’m frankly more upset with the fact that annual dues in 500 bucks can buy you that kind of direct access to the justices.
His views on polarization were, to my mind, fairly mainstream and probably correct. Like, he said, there can be ways of working, of living peacefully together, but it’s difficult. Then he explains why it’s difficult. Because the differences on fundamental things really can’t be compromised. That, to my mind, is an entirely accurate description of how polarization and culture wars are playing out in America.
The last thing I’ll say is that I think the comparison with Roberts is slippery and is unfair. The comments by the two justices are in response to two very different questions. When Lauren Windsor is talking to Alito, she’s saying broadly that people of faith should try to win moral arguments in America. That’s what Alito is agreeing to. When she’s talking to Roberts, she asks him far more specifically, should the court use its power to guide us down this moral path? That’s what he disagrees with. These are two different questions. And —
But I mean —
— that’s why I’m not surprised they elicit different answers.
Yes, but I also think — this is, I think, in some ways, bolsters your point. There are things that Alito has said quite intentionally in speeches that you can watch on YouTube that make very clear his beliefs about the role of religion in public life and what religious liberty actually is, which is, I would say, a very unorthodox American interpretation of what religious liberty is.
So I would tend to agree with you that these remarks, in and of themselves, might not seem that sort of shocking. But when you take them as a —
Not in a vacuum.
— sort of constellation of his priors — but sorry, Jesse, you were about to jump in.
I actually was going to say what Lydia just said, which is this is part of a much larger pattern that we have become very familiar with in Sam Alito. Let’s not forget, he’s the author of the case that struck down Roe v. Wade. And while he couldn’t directly say in that case, well, it’s religiously based, Justice Alito is on that side.
And so it’s really hard to, I think, hear these kinds of comments, which, I will agree with all of you, are not, on their own, the most egregious things I’ve ever heard a justice say. But it’s hard to hear them and not tie them into all of these other examples of his attitude about religion, not just in public life, but in government, right, in terms of how the government treats religion, how the government treats religious claims as compared with other claims. And so I think you can’t hear all of that without the echoes filtering through.
So how much of an outlier on the court do you feel Alito is? Michelle talked about his complete disdain for the public’s concerns about the court. How do the other justices sort of deal with that kind of question?
I think that Alito and Justice Clarence Thomas are in a category of their own, just in terms of really, really being incredibly dismissive of questions of accountability for their speech, behavior, things like that. Because I think Thomas is — there’s just been like a string of reporting —
Whew!
— both about the activities of his —
[INAUDIBLE]
The political activities of his wife, but also his very, very, very expensive luxury travel sponsored by people who arguably have business before the court. And there is an unseemliness to that. And I think that the total disdain and disregard for any kind of scrutiny of that behavior is, to me, pretty shocking.
Yeah, this is a question of being on a spectrum. All the justices, at some point, have done things that had to be reported or that you could arguably complain about. They’ve taken a trip. They’ve taken tickets. But the question is, is this just a huge pattern?
I want to add on here. Lydia used the term “unseemly.” It’s certainly that, but I would go a good deal further. This is illegal behavior, right? This is against the law. Federal recusal law, for example, is very clear. It says any justice, judge, or magistrate judge of the United States — note the word “justice” in there — shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
Now, obviously, that’s some broad language, but I think we have plenty of examples, in recent years particularly, of justices refusing to recuse themselves, even in pretty extreme circ*mstances, like the ones we’ve seen with justices Thomas and Alito. And these justices seem to act largely with impunity.
OK, Jesse, can you just back us up for a minute and go over the kind of recent brewing controversy over the January 6 themed cases and the refusal of recusal with these guys?
Well, so that might be the most egregious example of, all right, we have several cases relating to the events on and around January 6, 2021. The highest profile one is the one in which Donald Trump is being prosecuted for his role in the insurrection and has claimed complete immunity from prosecution because he was president at the time.
I won’t get into the weeds of the argument, but it’s an absurd, completely ahistorical, completely illogical argument. And the Supreme Court is taking its sweet time deciding it, essentially making it impossible to have a trial in that case before the election. But in all of these cases, all nine justices are sitting.
And the argument you could make is that, at the very least, Justice Clarence Thomas should be recusing himself from anything related to January 6 because of the behavior of his wife. Ginni Thomas is a well-known, hardcore, right-wing activist who has been in the middle of so many issues that have come before the court for the last several decades. And on January 6, she was literally at the ellipse, listening to Donald Trump give his speech, sort of riling up the crowd, which then later stormed the Capitol.
Now, she says she left before the crowd went to the Capitol — fine, I believe that. But the bottom line is, she is way too close to this case, and she is way too close to him by his and her own admission — they are an extraordinarily close couple — to make anybody, I think, feel reasonably comfortable that Justice Thomas is approaching these cases with anything like an open mind. And so I think that might be the most extreme example of where a justice should be recusing under the standards of federal law and is not.
How about Justice Alito? After the flag stories were reported in “The New York Times,” Democratic lawmakers called on Alito to recuse himself from these cases involving the Trump immunity case and sort of in cases involving January 6.
Alito wrote a letter explaining why he was declining to do so. He said, “I am confident that a reasonable person who is not motivated by political or ideological considerations or desire to affect the outcome of Supreme Court cases would conclude that the events recounted above do not meet the applicable standard for recusal. I’m therefore required to reject your request.”
Required, no less!
So, yeah. It’s not him. It’s not him. It’s just —
He’s got it.
But so should Alito — you’ve laid out the case for Thomas. Do you all think Alito, as well, should recuse himself from these cases, and why?
I mean, let me say this. This gets to the ethics code. Sorry, I’m going to give a little background here. The Supreme Court is not bound by any code of ethics. The lower federal courts have been bound for about 50 years by a very clear code of ethics, which probably would have required the recusal of both justices Thomas and Alito in these cases.
But the Supreme Court has never been bound in this way. It drafted its own code of ethics last fall. And I and many other observers of the court pointed out very quickly, because it was very obvious, that this code falls short in a number of ways. And you can hear the echoes of the way it falls short in Justice Alito’s letter there.
So just to use one example, what does he say there at the beginning, Carlos? He says something like, I am confident that a reasonable person who is not motivated by, what, political —
Right, that’s the standard —
OK, all right.
— in the code of conduct.
That is a weird —
Yeah, but this new code of conduct, for better or for worse, has that standard that a —
I know that —
— justice should disqualify himself when a reasonable person aware of all the circ*mstances —
Where the hell — excuse me, but where the hell did the court come up with that standard?
[LAUGHS]:
Right? I mean, that — all right, let’s talk about that for a minute. OK, the reasonable person standard, that’s a real thing that the law relies on a lot. It’s a kind of common sense approach to gray areas in human conduct. All right? But the court’s code of conduct says “reasonable, unbiased person.” And I was like, wait, where did “unbiased” come from? That’s not a standard in the law. And what does “unbiased” even mean?
And what does Justice Alito even mean when he says, “who is not motivated“? What is he talking about? Why is the person’s political motivation or personal politics even relevant here, right? I mean, yes, a single kook could ask for the recusal of any justice. And we’re not going to just accept that that will — that any one person could change the makeup of the court for a given case to affect the outcome.
But come on! I mean, this is, like, millions of people around the country are pointing out that the justice himself has implicated himself in his behavior and in his wife’s behavior. And I just — I’m shocked at the weakness of his arguments for why he shouldn’t recuse.
Yeah, I think that this gets to the bigger question of bias and politicization and this idea of the legal priesthood and how the court has talked about itself. Right? I mean, Amy Coney Barrett, who was speaking at an institute named for Mitch McConnell, one of the most skillful politicizers of the court in American history, she declared that this court is not comprised of a bunch of partisan hacks. Judicial philosophies are not the same as political parties.
I mean, that sounds great, even if you ignore the venue. But people are going to look at the actual outcome of these decisions and see that there is really no ideological deviation, or very, very, very little ideological deviation, which does, I think, make people ask the question, are these just a bunch of partisan hacks?
Well, I’m going to take a slightly different position. I draw a distinction between following a process and reaching a certain outcome that is in keeping with the job in general, versus, say, being Clarence Thomas and going and speaking at a right-wing fest or —
Which I think ideology versus partisanship, right?
Ideology —
Right, those are two different things. That’s what you’re — is that the distinction you’re drawing?
Like judicial ideology versus naked partisanship that you are doing publicly, in many cases, which just thumbs your nose at the American people. And we’re talking about more than half the country now think that the court is, if not broken, then kind of irretrievably bent. And so I think that that is its own sin.
Well, and I think that’s why the recusal question, to me, doesn’t actually matter all that much. A, he’s not going to do it. And B, he’s not going to do it.
And that points to the deeper underlying problem here, right, is that this is a court that feels completely untethered from accountability in any sort of big, reasonable sense.
And look, our Constitution was designed that way, right? I mean, these are lifetime appointments. These are not elected judges. We can talk about the role of politics and judges and the history and all that kind of stuff. But what’s absolutely clear to me is that the Democratic sort of legitimacy of the court was always tenuous by design, but it feels that there has just been a fundamental uncoupling in a way that feels quite dangerous.
Yes, the court, by design, is a fragile institution. It exists both within and without American politics. And that is why the justices need to be so scrupulous about their behavior, about their comments, about how they write their opinions, because they are holding a very delicate trust in their hands.
And they need to honor the previous courts. They need to think about future courts. And courts have been made up of people who are chosen for political reasons all the time. I don’t want to pretend that this is somehow new, but there is something new in the partisan hard-headedness of this.
I think what we haven’t mentioned yet is the makeup of this current court was created entirely out of the most intense, partisan hardball any of us has ever seen in our lifetimes, which is Mitch McConnell and Senate Republicans literally blocking Barack Obama from filling a seat on the court after Justice Scalia died in 2016, and then doing the exact reverse in 2020 by forcing through Amy Coney Barrett at the last minute, after people had already started voting in the 2020 election. There’s no principle to it. It’s simply about power, and it’s about partisan political power.
And that is what changed, for me and for a lot of people, I think changed the way we think about the court and what the court does and how the court behaves and what its role is in American society. So everything that I think about this court is through that lens.
[MUSIC PLAYING]
Let’s take a break. And when we come back, we’ll talk more about what can be done, if anything, to restore trust in the Supreme Court.
[MUSIC PLAYING]
I want to follow up on something that both Lydia and Jesse talked about, and that is, we talk about trust and legitimacy as if they were almost sort of like interchangeable concepts, but they’re not really necessarily the same thing. And how do they affect one another? Why is trust so important to the legitimacy of the court?
So here’s how I would put it. As Alexander Hamilton pointed out more than 200 years ago, the court has neither money nor guns. It’s not like the Congress or the executive branch. They rely on the American people believing in them and accepting their rulings in order for them to have the power that they do. That is their legitimacy.
And that legitimacy derives from the trust of the people. If the people don’t trust in the court, there is going to be increasing pushback to the rulings of the court because they say, this is not a valid ruling or this is a politicized ruling, whatever it might be.
And the court gets a lot of breathing room in American society. The court has issued a lot of rulings that people abide by, even though they make a lot of people very mad. But I think this current court is really testing those outer limits. And I fear for what we’re going to see in the coming years if it continues on the aggressive path that it’s taking.
So does anyone see a way forward for restoring some of this trust, or is that just wishful thinking?
Part of it depends on how we pinpoint the problem, right? And this is an issue with the practice of democracy writ large. Do you think of it as a process, or do you think of it as an outcome? Is the problem with declining trust in the court, if they only got their code of ethics right, you know?
[LAUGHS]:
That’ll do the trick.
Is it procedural, right? Or is it like you see certain outcomes, and then you decide, oh, this is a court that is too politicized and I don’t trust it? Is trust a problem of process or a problem of outcome?
Well, I mean, or is it also just a problem of perception, right? One comparison that I would make is, obviously, a much less powerful position, but one where the appearance of impartiality or of being partisan is really fatal, is the leader of a major news organization, right? You don’t give money to political parties.
You just sort of instinctively know that not just your personal conduct, but the conduct of your family members is going to be scrutinized, and that it’s absolutely crucial to establishing the belief that you are approaching news and leading your organization with an open mind. And so, I could just never imagine an editor of a major newsroom having a Stop the Steal flag flying and then blaming their wife. Like, it’s just not a thing that would happen.
But I will also note, with some ruefulness, that our profession, journalism, is one of the least trusted. So, we have these very strict ethical codes that we abide by, I think, to great effect. But that clearly has not solved the trust problem, right?
And I think that that should chasten us in thinking that the adoption to great fanfare of certain standards of behavior are, in and of themselves, going to transform the landscape of trust. And I think there are many, many reasons why people don’t trust journalism, that don’t trust journalists. But I don’t think it’s because of the ethical codes that we hold ourselves to.
It’s also the other branches of government have far more power than they currently wield. So Congress, in particular, has become a largely dysfunctional and f*ckless branch, but it could do a lot more to pass laws and then to respond to Supreme Court rulings than it is currently doing.
So we don’t need to treat the court as the be all, end all of American constitutional interpretation. It is an important voice in that national debate. It is not the last word.
But the other thing that I’ll say — and this gets to this question of legitimacy and representation and I think underscores your point about Congress — look, I’m in my late 40s, right? So my entire adult lifetime has been spent in a time where Republicans have been unable to capture the presidency via the popular vote, except for once, in the aftermath of 9/11.
So it does feel strange that we live in a country where an incredibly important branch of government, which is proposed by the president and then confirmed by the Senate, is essentially dominated by Republicans. To me, that sort of speaks to this kind of broader issue. It’s issues of American democracy and representation and things like that. But I just think that it feels weird in a democracy to have a court that’s so untethered from where the national popular vote is.
OK, so if we take political feasibility out of it, would there be systemic solutions that you think would address that? Like, say, term limits or staggered terms or — I’m not a huge “pack the court” fan or “expand the court” fan, but what about some other stuff? Or if you are a “pack the court” fan, let me know.
I mean, I think I’d be open to almost anything [LAUGHS]: at this stage because I don’t think that we can get much worse than we are now. But yeah, I don’t know. Carlos —
Oh, we can.
Oh, no. No, never challenge Jesse on that question. Jesse, what about you? You’ve thought about this so much.
Look, there have been many, many proposals over the years for how to reform the court, term limits. 18-year term limits is one. That would give every president two appointments per administration. And adding justices to the court is another idea. And obviously, in Congress — in that case, Congress has done that many times. That’s just a matter of federal law. It has nothing to do with the Constitution.
But again, I think some of that is tinkering around the edges. I do think how we conceive of the court and how we use our power as citizens and as other governmental actors, say, in Congress or in state legislatures, really matters a lot here. And I think to throw up our hands and say, well, this is a uniquely bad court is somewhat giving away our own authority and our own power over our government.
So I would argue for turning the focus away from the court right now. It’s never been a great institution. It’s particularly bad now. And as someone who’s tasked with writing about it, it’s been dispiriting over the last several years. I never thought the court — when I started at this job, the court had just come off of some of the worst rulings in decades — Bush v. Gore and Shelby County eviscerating the Voting Rights Act and Citizens United.
And yet, I still considered the court. I was accepting of its legitimacy. I was willing to say, OK, this is a body that tries to get it right. And after what happened in 2016 and the few years after that, it’s very hard to approach the court that way. So I’ve started to pull back from the court and think more broadly about the structures of American government and how they can balance it off.
Well, that call for a more engaged citizenry seems like a very good place to wrap up our conversation. I’m sure that the upcoming court decisions will prompt lots more discussion on these issues of trust and legitimacy. So let’s take a little break. And when we come back, we will get hot and cold.
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All right. It’s time for Hot, Cold, where — you know what?
At this point, everyone knows what it means. So I’m just going to say —
— and now it is time for Hot and Cold. Who’s Hot, Colding for us this week?
I got it. I got it. So I am weirdly warm on diss tracks, but specifically the recent high-profile beef between the rap legends Kendrick Lamar and Drake. I can hear Lydia breathing heavily right now.
Yeah.
So, look, I’m not a rap aficionado. I’m not going to pretend this is what I obsess about. I generally limit myself to Eminem and Pitbull, who, OK, full disclosure, I have seen twice in concert, but that’s about it. But this Kendrick Lamar and Drake thing has gotten so big, even I have gotten sucked in and mostly with my college kids insisting on playing tracks for me.
So, the rap world has always had its feuds, but these guys have said some really wretched things about each other. And it has dominated the charts. These songs have all gone up, and it has dominated. Even folks, like one of my kids has no interest in rap, except this has completely sucked her in. And me, I am mesmerized.
You’re all in on the beef.
So, yeah.
I’m dipping into the wayback machine here to say that the first thing I thought of when this thing started was Andy Kaufman and Jerry Lawler, you know?
Yeah, there you go.
These kind of manufactured beefs to get everyone interested. And it’s not that Kendrick or Drake, not that they need a ton of help in becoming popular and well-known artists. But I sort of devolve into cynicism with these kind of stories. Was it fun? Oh, god, yes.
Yeah, it is fun. And I will say, I mean, it seems clear — I mean, first of all, “Not Like Us” is, like, a total banger. And I think it’s going to be the song of the summer.
(RAPPING) Wop, wop, wop, wop I’mma do my stuff
Why you trolling like a
Ain’t you tired?
Tryna strike a chord and it’s probably A-Minor
So it’s clear that Kendrick Lamar has won. But —
Oh, you’re going to get some hate mail.
— the other thing that I will say is that, the core and substance of this beef is actually about something real, which is authenticity and who actually belongs. And — I don’t know — the cultural and social analysis opportunities that this beef offers up is totally fascinating. And there will be PhD dissertations written about this beef.
Oh, no doubt. My 20-year-old can hold forth on all of the deep meaning of this, whereas my 18-year-old just thinks it’s a bop. So, it’s — [LAUGHS]:
By the way, is “beef” the preferred nomenclature?
Yes.
Like, everyone says “beef“? That is the term you have to use?
They are beefing. They are beefing.
OK, all right. Giddy up.
It’s tough for vegetarians, but — you know.
We’ll have Jesse tell us whose side he’s on later.
No.
Pick a side, Jesse.
As a journalist, I —
Aw!
— am going to express my neutrality on this matter.
You are an opinion journalist.
Jesse’s recusing himself. He’s recusing himself from the discussion.
Sorry, that’s what I should have said. I recuse myself.
Oh, dear God. Fine.
All right. Well, one thing you will never hear on “Matter of Opinion” is diss tracks against one another.
Aw.
We keep it nice and sweet here, but maybe that would give us more listeners. I don’t know. We’ll see. We’ll see. Tune in. Tune in next week. Next week.
Drop one on Lydia next week.
The Lydia-Ross diss tracks and beef is —
Woo-hoo!
— on its way.
I am there for that.
It’s on its way. Thank you, everyone. Great to see you all again. Thank you, Jesse, for elevating our discussion.
Jesse! Woo!
Oh, Jesse, thank you.
Thanks for having me. [MUSIC PLAYING]
Thanks so much for joining our conversation. Give us a follow on your favorite podcast app, and leave us a nice review while you’re there to let other folks know why they should listen. Do you have a question you want us to cover in a future episode? Share it with us in a voicemail by calling 212-556-7440. You can also email us at matterofopinion@nytimes.com.
“Matter of Opinion” is produced by Sophia Alvarez Boyd, Phoebe Lett, and Derek Arthur. It’s edited by Jordana Hochman. Our fact-check team is Kate Sinclair, Mary Marge Locker, and Michelle Harris. Original music by Isaac Jones, Efim Shapiro, Carole Sabouraud, Sonia Herrero, and Pat McCusker. Mixing by Carole Sabouraud. Audience strategy by Shannon Busta and Kristina Samulewski. Our executive producer is Annie-Rose Strasser.
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