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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
FEMALE_1: Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American government and offer context around the effects of government agencies in your everyday life. And now, your hosts, Nia Rodgers, Public Affairs Librarian, and Dr. John Agena, Political Science Professor.
N. Rodgers: Hey, Aughe.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm crabby. How are you?
J. Aughenbaugh: Well, I feel like I'm in a boat that's leaking.
N. Rodgers: I'm crabby about the Supreme Court right now. I'm going to tell listeners why briefly I'm crabby, and we will come back to it later on in the episode.
J. Aughenbaugh: Sure.
N. Rodgers: There is a new legislation that has been sprung in the Congress that wants to basically remake the court.
J. Aughenbaugh: Yes.
N. Rodgers: I'm like, "Okay, the court's not nearly as broken as that would imply." And as Aughe and I have been discussing, there is no example where doing thing to the court somehow makes it better. This is not. Anyway, we're going to come back to that, but that's made me all crabby, and then I said to Aughe, "Is it just me or is the Supreme Court falling apart?" He's like, "Well, falling apart is a little strong," but.
J. Aughenbaugh: Listeners, what is generating today's podcast topic is on September 15, 2024, the New York Times published an article which argued that Chief Justice, John Roberts, had a hand in the 2023/2024 Supreme Court term in giving Trump a number of victories, where John Roberts, apparently, sided with the other conservatives on the court, on a number of cases where former President Trump was the defendant or litigant. By my account, there was at least four different cases out of 60 where Trump was a party in the case.
N. Rodgers: That's a lot.
J. Aughenbaugh: Well, particularly when you're a former president, when you're a current president.
N. Rodgers: Yeah. That's pretty common. Your Justice Department theoretically is in front of the Supreme Court on a pretty regular basis.
J. Aughenbaugh: Various regulations from executive branch departments, which you technically lead, being challenged at the Supreme Court.
N. Rodgers: Exactly. You're defending or you're prosecuting all sorts of things.
J. Aughenbaugh: But when you're a former president? Most former presidents, as we've discussed in a previous podcast episode, they retire and then they go away.
N. Rodgers: They're relatively low profile. Not Jimmy Carter, because he did the whole Habitat for Humanity thing and the peace thing. But these days, who hears from George Bush? Who hears from Bill Clinton? Who hears from Barack Obama? Generally speaking, they are keeping low profiles.
J. Aughenbaugh: Yes.
N. Rodgers: In part, that's because that job sucks, it's really hard and when you're done, you're super tired. My guess is that for the first year you just sleep.
J. Aughenbaugh: But they also recognized that when they were president, they appreciated the fact that former presidents did not try to one-up them.
N. Rodgers: There can be one preside at a time.
J. Aughenbaugh: That's right. The story, what alarmed Nia and I about the story, and it alarmed other Supreme Court, if you will, watchers, is that the New York Times report had explicit details about internal memos submitted by Chief Justice Roberts to the rest of the Court.
N. Rodgers: They clearly had copies of those memos.
J. Aughenbaugh: They had detailed almost play-by-play discussions of the Court's conference deliberations, which is probably even more troubling because the Supreme Court's conferences are secret. The only people in the Supreme Court conference room for their conferences are the Justices.
N. Rodgers: Clerks aren't in there.
N. Rodgers: Clerks aren't in there. Administrative assistants aren't in there.
N. Rodgers: The speaker in that instance has to be a Justice.
J. Aughenbaugh: The story also had discussions of case assignment decisions, including rather prominently, how Justice Alito had a majority opinion taken away from him by Roberts, apparently. There was also discussion of the responses of the other Justices to draft memos. Again, those responses would only be seen by the Justices or their clerks. Administrative assistants don't even see that stuff. Then there was a couple of paragraphs about how the clerks in Chief Justice Roberts' Chambers were actually used on the various cases.
N. Rodgers: What we're getting at is that this thing is leaking like a sieve?
J. Aughenbaugh: Yes.
N. Rodgers: Part of any deliberation of any court. Is that they are thinking through and talking through a problem before they release the final case. They're chewing that over. In some instances, they are convincing each other of points. In some instances, they are addressing points and then those turn out in the opinions where they aren't convinced, but they are at least aware.
J. Aughenbaugh: Yes.
N. Rodgers: But that's the work of the court. While it seems like transparency would be a really good idea, think about the last time you worked on a project, would you like your boss to have seen every draft before it came to the final draft? Probably not because your first draft was probably crappy, and it got better as you were influenced by other people, and as you're influenced by better information, whatever it is.
J. Aughenbaugh: Yeah. You did more research. You considered new or different ideas, and you may have ultimately rejected them, but at one point in a draft, you may have considered a strange, if you will, legal theory, or a brand new, if you will, piece of scholarship that's not really been tested or vetted. Do you want that kind of stuff made public? Because it would appear as though, "Hey, you can't make up your mind or I can't."
N. Rodgers: You look indecisive. You look like you haven't done the research.
J. Aughenbaugh: Or you're considering some really strange stuff. Wow. Hey, maybe we should call into question your conclusions.
N. Rodgers: Or you ability as an academic or ability as a worker.
J. Aughenbaugh: Or a judge, in this particular instance.
N. Rodgers: I mean, these are things that sometimes you don't want transparency because sometimes transparency will undermine people's confidence in the final product.
J. Aughenbaugh: What Nia is getting at, listeners, is the fact that, historically, the Supreme Court has highly valued the confidential privileged communication between the Justices, and then between the Justices and their clerks.
N. Rodgers: Would you want to be a Justice if you thought that every time you said something, it was going to get reported? You'd start really being careful about what you said.
J. Aughenbaugh: Yes. On a court that is divided, conservative versus liberal, I would argue we should want and encourage more communication among Justices, and more attempts to find a middle ground rather than less.
N. Rodgers: I agree.
J. Aughenbaugh: Now, what's troubling about these leaks is that this comes a mere two and a half years after the infamous leaking of the draft majority opinion in the Dobbs versus Jackson abortion case.
N. Rodgers: Which also freaked everybody out because that is not a thing we should have seen before it was released officially.
J. Aughenbaugh: That's right, because the justices are still working on things. Some majority opinions go through eight, nine dozen drafts. And again, we want to encourage that. I think we would want to encourage that so we get better decisions and better opinions, not discourage that, because if you're afraid one of your drafts is going to get leaked.
N. Rodgers: Well, you're not going to share it with people.
J. Aughenbaugh: I'm not going to share it. Again, if you're not going to share it, then it can't be reviewed and improved.
N. Rodgers: Right. It can't be edited in some way. We have no idea if that would have been the final Dobbs decision.
J. Aughenbaugh: Yes.
N. Rodgers: Because it was released in the way it was released, it forced.
J. Aughenbaugh: Yes.
N. Rodgers: It forced the hand of the Supremes.
J. Aughenbaugh: Yes.
N. Rodgers: And we don't know whether that would have been the final final or not, and we'll never know that. Well, we might, after everybody dies, and they leave notes in their.
J. Aughenbaugh: In their papers.
N. Rodgers: In their papers or whatever. We won't go for a very long time.
J. Aughenbaugh: That's one data point, listeners.
N. Rodgers: Then the court is now under siege from within.
J. Aughenbaugh: From within. Another data point, and this occurred three days after the New York Times Article, the FBI indicted Panos Anastacio for making threats against the six conservative Supreme Court Justices, including members of their families. The defendant was charged with the following crimes, threats including murder, lynching, raping Justice wives, etc. It's a long indictment list, Nia. I think it totals almost 6.5 pages. Now, that, in and of itself, you could basically go ahead and say, "Well, that's an anomaly." But on this particular point, this comes on the heels of the arrest in June 2022 of Nicholas Roski, who traveled to the home of Justice Brett Kavanaugh with plans to break into Kavanaugh's home, kill him, and then commit suicide.
J. Aughenbaugh: Then, as I was doing a little digging on this, Nia, as you know I'm want to do.
N. Rodgers: Because you can't never leave anything alone.
J. Aughenbaugh: Big alone, I'm like, well, if somebody wanted to go ahead and kill Kavanaugh, have there been other threats? Then I found new stories that have been confirmed that threats have been made and individuals have been charged for making said threats against Chief Justice Roberts and Associate Justice Coney Barrett. Coney Barrett in a recent speech, commented that after the Dobbs decision was released, she had to have secret service protection and had to wear a bulletproof jacket to and from the court, which led a couple of her children to ask why or if Mommy's job had changed because they noticed that she was wearing a bulletproof jacket to and from work.
N. Rodgers: That's a heck of a thing for your kids to see. Can I just say, Aughe did not mention all of those crazy people who are standing on the lawns of Supreme Court justices?
J. Aughenbaugh: Homes, yes.
N. Rodgers: Yelling threats. Well, there's many things wrong with this but two that I'm going to bring out in my thoughts. The first thing is, this is not how we handle power in the United States. If you think that it's okay to be violent to your political opponents, you are a Schmuck and an idiot because it can be turned on you in a dime. It can be turned on you instantly. Think it through idiot. If you're going to kill a justice, because they're conservative then what's to stop somebody from the other side for killing a justice? Because they're liberal. If you want Thomas to die, would it have been okay for [inaudible] Ginsburg to die that way? Probably not for her fans, I put to you.
J. Aughenbaugh: Yes, I would contend the same thing.
N. Rodgers: There's that. There's also, how crappy do you want the Supreme Court to get? Because what's going to happen eventually is people will say, "I've not taken that job it's too dangerous." The best and the brightest will be like, "Screw that crap. I'm not interested in being murdered as part of some murder suicide plot or I'm not interested in having my family raped or murdered." Even if you don't care about yourself, which let's face it me and Aughe, put us on there, we don't care, except Aughe has a kid. He would rather die than have something happen to McKenzie.
J. Aughenbaugh: Yes, I would.
N. Rodgers: It changes your world when it's your family.
J. Aughenbaugh: Family, yes.
N. Rodgers: Then you're like, no, I have to make better decisions here. I can't be on the Supreme Court if my kids going to be under threat. That's why some people choose not to run for the presidency. When they really get into it, and they really start looking at what the Secret Service has to do for their kids, they're like, "Dude, we need to not do this because this is bad for our children."
J. Aughenbaugh: When the costs become that high.
N. Rodgers: Then really good people aren't going to want to do that. Now you're getting people on the court who are Mediocre. Is that what you want Mediocre Supreme Court? I want the Supreme Court unlike presidents, I do not want to eat dinner with presidents because most of them I don't want to have anything to do with if I can help it on any side. I feel that way about all the presidential candidates, but Supreme Court justice are a different matter. I would have dinner with any one of them because they are interesting people who have studied the law in a way that I find fascinating. Let's not dumb down the court by saying, well, threats against them are okay. Threats are never okay against anybody.
J. Aughenbaugh: We should be better than that.
N. Rodgers: Didn't some sheriff just shoot a Judge?
J. Aughenbaugh: A state judge, I believe in Kentucky.
N. Rodgers: Like, hello, what are you doing?
J. Aughenbaugh: Into your point, Nia.
N. Rodgers: That's how coups come about, we don't want to be that guy.
J. Aughenbaugh: People in a whole bunch of audiences have heard me talk about the current Supreme Court, the Roberts Court. If they've been listening, they know that I don't necessarily like all of the decisions handed down by the Roberts Courts.
N. Rodgers: Me neither.
J. Aughenbaugh: For our loyal listeners, we do the end of the Supreme Court term, wrap up about cases.
N. Rodgers: We have on a regular basis said we think that got that wrong. We think that that was not a good decision, we've said that every summer that we have done. We disagree with the court on something.
J. Aughenbaugh: But it's one thing to go ahead and disagree, it's quite another to go ahead and say, the way you go ahead and manifest your disagreement is by resorting to violence.
N. Rodgers: That's Banana Republic crap, we don't do that here.
J. Aughenbaugh: I go back to the words of former President Obama, who has recently, as the August Democratic National Convention, gave a speech about talking to and listening to your opponents, showing grace, showing humanity.
N. Rodgers: On both sides. Giving what you need to get.
J. Aughenbaugh: Because ultimately, if you want to get things done, you need to work with other people. Killing them by removing them as your opposition is not the way to do this.
N. Rodgers: You know what separates us from every other country in the world? The peaceful transition of power. That is what separates us. Seriously, it's the only thing that keeps us from falling into mayhem and destruction.
J. Aughenbaugh: Because we don't like a series of Supreme Court rulings or we think that the [inaudible]. But there are other data points.
N. Rodgers: It doesn't help that the press breathlessly report all of this.
J. Aughenbaugh: In the Court's legitimacy and standing in the public has been under attack. Again, Nia, you and I have talked about this off recording. The Court's public approval and opinion polls today when we record is at its lowest level since 2006, it's at 43%. It's been on a steady decline this millennium since the Supreme Court's ruling in Bush versus Gore, which effectively decided the 2000 presidential election.
N. Rodgers: People saw the court as a political entity in a way, but I'm going to disagree with you. I'm to disagree with you, I say.
J. Aughenbaugh: Fair enough.
N. Rodgers: I think that in our recent memory or you and our lifetimes, Bush V Gore was problematic for peoples for faith in the institution. I put to you that my mother's generation, the Warren Court decisions with race around school desegregation, all that stuff, was their decision of the court is crap and we don't believe it. That's what's so aggravating and Aggies right when he talks about hypocrisy is there were a whole bunch of people who hated those rulings because they didn't want Black people to achieve anything or be treated equally. If you're going to say that that was wrong because we know better, which we do, we know African Americans should be treated equally, everybody should be treated equally. We all agree on that. If we agree on that and we agree that the Warren Court was right, but the people were wrong, the people who believed that the Warren Court was political and terrible and all that other kind of stuff were wrong, then how is it that we can't see that now? When the pendulum swings, we're like, well, no, it's stuff we don't like, so clearly it's all political and right.
J. Aughenbaugh: Actually, Nia, I don't think there's a disagreement between you and me because one of the points I was going to make later on in the podcast is that it is striking how short term our political memories are in this country. Because you don't have to go that far back, to your point, it wasn't just that the Warren Court said that segregation was wrong, it's the fact that the Warren Court overturned decades of precedents to promote and protect the rights of those accused of crime. It was because the Warren Court went ahead and said that people could go to federal court and fight for their voting and election rights. It was because the Warren Court said, perhaps the United States should not be as harsh about punishments for those convicted of crime, it was because the Warren Court said, no more prayer in schools. A whole bunch of people were like, "Hey, wait a minute, here. I like those practices, I don't want to change." In another common theme here, and we're going to revisit this in just a few moments is, you only get those difficult decisions because the court is independent. That it is not accountable to the people via elections, which means at times, the court is going to be unpopular if it's doing it's what?
N. Rodgers: It's job.
J. Aughenbaugh: It's job.
N. Rodgers: If you disagree with what they say now, great. Good for you. I have no problem with that. I disagree with some of the stuff they say.
J. Aughenbaugh: Good Lord. Yes.
N. Rodgers: But by the same token, remember that if people who disagreed got to "fix the court or change the court", schools would still be segregated.
J. Aughenbaugh: Yes.
N. Rodgers: Drinking fountains would still be segregated, hotels would still be segregated. The African Americans wouldn't be able to vote. Think about the stuff that would be wrong that would still be in place.
J. Aughenbaugh: Place.
N. Rodgers: It's hurtful that some things.
J. Aughenbaugh: Yeah. Just think about, for instance, if you are a woman in the United States and you read the Dobbs decision, and you were basically told by the Supreme Court that your right to choose is no longer protected in the US Constitution. This means that now, you and every other supporter of a woman's right to choose has to do the hard political work of convincing all 50 states to protect a woman's right to choose. I understand why you would be upset, and I get it. On the other hand, you had a court who basically went ahead and said, this is not a federal constitutional issue. This is a constitutional issue at the state level. Now, does that mean theoretically all 50 states could pass laws that would restrict or perhaps abolish a woman's right to choose? Yes. Will that cause problems in issues for women? Yes. On the other hand, theoretically, all 50 states could pass laws that protect that right, even more so than what the Supreme Court had said before Dobbs. Because before Dobbs, state governments could regulate and restrict a woman's right to choose first with the last trimester of a woman's pregnancy, and then this nebulous standard of undue burden, which gave states a lot of leeway. Again, I keep on coming back to the fact that we have an independent court for a reason. It's one of the few things that many commentators have pointed to as saying, it's a necessary function in a democracy, because otherwise, majority will. There will be no check on the people's representatives in Congress in the White House.
N. Rodgers: If you look at all the countries that have ever existed. All the empires, all the countries, all the nation states, whatever you want to call them, that have ever existed in the history of humankind, there is no instance where a dependent judiciary, meaning a not independent judiciary has led to successful outcome.
J. Aughenbaugh: Yes.
N. Rodgers: There's no instance.
J. Aughenbaugh: No. We could not find it in our research listeners.
N. Rodgers: Countries that don't have an independent judiciary, countries where the judiciary answers to the military, they answer to either the president or the king. They answer to some parliamentary body.
J. Aughenbaugh: Yes.
N. Rodgers: When they answer to those folks, you lose any sense of protection of the minority.
J. Aughenbaugh: There's no check.
N. Rodgers: There is no protection of minority will. Minority will does not exist. Because well, the majority of us think X thing. That's why you can see a country like Iran say something with a completely straight face at the UN, there are no gay people in Iran. Really?
J. Aughenbaugh: Really? Yes.
N. Rodgers: Really. You have no people who are same sex attracted in the entire country of Iran? They're like, yeah, because we outlawed it. Well, if that's all it takes, that's insane. We know that sociologically, that's not accurate.
J. Aughenbaugh: But even beyond the sociological, if you will, fact, there's no Iranian court that will challenge, the ruling class in that country to go ahead and say, no, there are.
N. Rodgers: We should protect them.
J. Aughenbaugh: We should protect them. Again, it's not a perfect system when you have an independent judiciary, but at the same time.
N. Rodgers: Sometimes they do crap that we don't like as Aughe and I have reiterated on communications.
J. Aughenbaugh: But at the same time, it is a feature that protects you. Sometimes Nia, you and I hear this argument. Well, a majority of us think that this was a bad decision. A majority of the American public thought that the Supreme Court went too far with Dobbs. I'm like, yes, fine. By that logic, a majority of the public post Brown versus Board, thought that the Supreme Court went too far. The public should have been able to overturn Brown v. Board. They just look at me, and I say, again, understand that you may not always be in the majority on every single legal or constitutional issue that comes to the court. Thus, you want an independent court that goes ahead and says, maybe the majority is wrong.
N. Rodgers: Protects you from the majority.
J. Aughenbaugh: Now, we were talking about the court's, if you will, public approval. Let's be very clear here, listeners. Yes, the court's public approval has fallen this millennium. But as a point of comparison, the United States Supreme Court is significantly better in terms of public approval compared to our most recent two presidents, Trump and Biden, both of whom throughout their presidencies have comfortably been in the mid 30% public approval. Compared to Congress, our Supreme Court should be doing cart wheels.
N. Rodgers: They're pretty popular comparatively because I don't know if that's a good comparison or not. Mosquitoes are more popular than our Congress.
J. Aughenbaugh: But again, if you read the media accounts, and if you listen to certain senators for why we need to reform the court, they go ahead and argue that the court's legitimacy is called into question.
N. Rodgers: That is not cool.
J. Aughenbaugh: Which I think is rather ironic when we have members of Congress saying that the courts should be reformed because the court's legitimacy is called into question when they are members of a government institution who currently, their public approval rating is at 22%, which, by the way, listeners, is one of the highest it's been this millennium.
N. Rodgers: It has been kidding you not less popular than malaria. Like, seriously. Congress's numbers are pretty low. But what paves me about what you're talking about is this constant refrain that we're hearing in the media of the court is not legitimate. There's a legitimacy crisis. It's corrupt, it's this, it's that. One, if you think this Supreme Court is corrupt, I have some countries I'd like you to look into. That's my first thought. My first thought was, y'all should stop saying stuff like that when you don't know what you're talking about.
J. Aughenbaugh: Second.
N. Rodgers: Second, quit talking about the legitimacy of the court. Marbury versus Madison decided that issue 150 years ago, the Supreme Court is the final say. They're the final say. They won the war for the final say. They get to say whether something is constitutional or not. If we don't have that system, what we have is the Wild West. What we have is Lunacy. Because if there's not a body that gets to say whether something is constitutional or not, and we all more or less agree even if we grumble, then what do we have? Then what we have is a constant state of turnover.
J. Aughenbaugh: I would go even in a different direction, Nia. When I hear the media report that the court's legitimacy is called into question, and they start making specific references to behaviors of particular justices.
J. Aughenbaugh: I start screaming at my computer as I'm reading this stuff, because I'm like, if you actually consulted with somebody who studies the Supreme Court. We've had justices who frequently went to the White House to advise presidents on policy. Some of that policy actually got challenged at the Supreme Court and they ruled on the constitutionality of the policy. We've had some justices who took bribes. We've had other justices that when they retired, they got gifts of thousands of dollars. None of that stuff got reported. Do I think, for instance, and again, I'm not breaking any news here. If you've listened to the podcast, you guys know that I think no Supreme Court justice should take any trip paid by anybody else. I'm sorry. It calls into question their partiality. I want them clean. Do I think any Supreme Court justice should get a six figure advance to write a glossy, feel good about me memoir. No. You're a government official, take your government salary and live on it. Do I think Supreme Court justices should have cushy summer teaching gigs at some resort in Europe, where they get paid $25,000.
N. Rodgers: To do couple of seminars.
J. Aughenbaugh: A couple of seminars with a bunch of psychopaths over in Europe? No. But again, the behavior of the current Supreme Court is not all that different from justices of the past. Many of whom get, if you will glorified as these peons of excellent Supreme Court judgeship. That's correct.
N. Rodgers: Other direction.
J. Aughenbaugh: Sorry, listeners..
N. Rodgers: The lions of the Supreme Court, people who are remembered as [inaudible].
J. Aughenbaugh: They did some shady stuff.
N. Rodgers: By man.
J. Aughenbaugh: By today's standards.
N. Rodgers: We can't even talk about the number of times people have had affairs.
J. Aughenbaugh: Yes.
N. Rodgers: Lied on their taxes, like, all stuff. We've invented an episode on that in summer.
J. Aughenbaugh: But nevertheless.
N. Rodgers: But Congress is standing in a great big glass house.
J. Aughenbaugh: Yes.
N. Rodgers: When it comes to that stuff. Excuse me, Mr. Mendez, what is that in your pocket, gold bars? I'm going to need you to give those up. That's just the most recent egregious example, but like Congress people have taken bribes and they've had affairs and they've done all that other stuff. Are there going to be the occasional people who take it too far?
J. Aughenbaugh: Far. Yes.
N. Rodgers: Of course. That is going to happen with any position of power. It is really hard to resist when people are throwing stuff at you.
J. Aughenbaugh: They are putting you on a pedestal.
N. Rodgers: It's really hard to say, no, I'm just a regular Joe.
J. Aughenbaugh: Come on now. If you're Clarence Thomas, and again, I am not excusing his behavior, but if I'm a Clarence Thomas and I was born and raised Dirt Poor.
N. Rodgers: Somebody says, we're going to summer in Nice. Would you like to go with?
J. Aughenbaugh: Hello.
N. Rodgers: How fast can I say yes? Especially if I'm going to enjoy the company of the people. They are like mind politically, they are of like mind socially. Why would I not do that? I don't agree, I'm with you, I think it looks bad, I think it is bad, but I also understand it's very human.
J. Aughenbaugh: It's very human.
N. Rodgers: These are not people who are not human. They have human characteristics and acting like they are somehow angelic and perfect. Then when they aren't that, well, they're a miserable failure. Why does it have to be this level of extreme.
J. Aughenbaugh: All of a sudden, they're now corrupt. Hey, wait a minute, here.
N. Rodgers: Are you saying that there's never been a good opinion out of this justice ever? On any topic, I find that hard to believe.
J. Aughenbaugh: The other thing that really troubles listeners, Nia and I, and this is of Nia to my next point in our prep notes is the rhetoric. It is really troubling. This probably should not surprise our long term listeners. I mean, again, think about the title of the podcast. We believe in civil discourse. We believe that you don't change people's minds and behavior by using uncivil language.
N. Rodgers: Found by name column.
J. Aughenbaugh: But I found some quotes coming from members of Congress that are troubling. I'm just going to give a couple of examples. The extreme far right Mega make America great again. Majority of the United States Supreme Court is totally out of control. Another one. The problem is not that the Supreme Court is just conservative, the problem is that it is corrupt. The US Supreme Court is a cesspool of corruption, devastating our communities. These all come from members of Congress. This is the body that as Nia alluded to at the beginning of the podcast is currently considering two Supreme Court reform proposals.
N. Rodgers: Wait. Can I, before we move on from that?
J. Aughenbaugh: Yes.
N. Rodgers: That's liberals talking about the current court?
J. Aughenbaugh: Yes.
N. Rodgers: I neglected to find quotes about.
J. Aughenbaugh: The Warren Court.
N. Rodgers: The Warren Court, but they would have been in the opposite direction.
J. Aughenbaugh: No. There's plenty of them listeners. I could have given you easily, like, 2-3 dozen quotes of Southern Democrats in the 1950.
N. Rodgers: Stepping their boundaries.
J. Aughenbaugh: It's an activist court.
N. Rodgers: Cultural destruction.
J. Aughenbaugh: They are destroying our states and our cities.
N. Rodgers: Because the hypocrisy, she is thick through here. On all sides. If you are digging what the courts doing, you're like, I love this court. This is the best court ever.
J. Aughenbaugh: Hugs and kisses.
N. Rodgers: Let`s buy them all drink at the bar.
J. Aughenbaugh: Yes.
N. Rodgers: If you don't like what they're doing, a bunch of low life jerks who are trying to ruin the country and bring us down corrupt and broke and I hate to break this to you, but it happens no matter who.
J. Aughenbaugh: Yes.
N. Rodgers: Each court does that, there's, once the pendulum swings in the other direction, then it becomes crabby on the other side.
J. Aughenbaugh: Side, that's right.
N. Rodgers: We're not trying to pick on liberals at this instance.
J. Aughenbaugh: No.
N. Rodgers: We aren't picking on liberals currently because they're the ones currently doing this.
J. Aughenbaugh: Doing this, but.
N. Rodgers: They're in the newspaper and in some ways, their critique is more far reaching and powerful because this is the first court that's dealing with TikTok and Instagram and Facebook and X and the threads, all the other ways that people are promulgating ideas.
J. Aughenbaugh: Yes.
N. Rodgers: As the Warren Court had to deal with newspapers.
J. Aughenbaugh: Yes.
N. Rodgers: Pretty much.
J. Aughenbaugh: Yes.
N. Rodgers: That's pretty much and some TV.
J. Aughenbaugh: Some TV and radio, but it was.
N. Rodgers: Mostly newspapers, which took at the time 24 hours to get published.
J. Aughenbaugh: Yes.
N. Rodgers: Your letter to the editor that you fired off in fury.
J. Aughenbaugh: It might not show up until the next week or the next one.
N. Rodgers: It didn't show up for a while, as opposed to your infuriated text or your infuriated ex, which shows up instantly.
J. Aughenbaugh: Yes
N. Rodgers: You can get followed by.
J. Aughenbaugh: By.
N. Rodgers: Your hometown paper reached unless you're in New York where it reached millions. But your hometown paper reached thousands of people.
J. Aughenbaugh: That's.
N. Rodgers: In the 60s. Your ex now has the potential to reach millions instantly, so there's some strengthening of that criticism because of the delivery systems.
J. Aughenbaugh: It's more immediate.
N. Rodgers: That's. Thank you. I was looking for. Not stronger, but more immediate.
J. Aughenbaugh: More immediate, and.
N. Rodgers: Which should scare us?
J. Aughenbaugh: It should scare us.
N. Rodgers: Because nobody is slowing the Internet. Isn't it lies to travel through the Internet before the truth gets its shoes on.
J. Aughenbaugh: Yes.
N. Rodgers: I mean.
J. Aughenbaugh: What this has led to is something that Nia mentioned listeners at the beginning of the podcast.
N. Rodgers: What makes me crappy.
J. Aughenbaugh: It made her very crappy.
N. Rodgers: It did. Aughe had to listen to me rant for several minutes because I was talking about I'm like I'm crabby [inaudible]
J. Aughenbaugh: Somebody who is in the business of grading rants, listeners, it was an A-grade rant.
N. Rodgers: Thank you.
J. Aughenbaugh: Yes.
N. Rodgers: If I'm going to rant, I want it to be epic.
J. Aughenbaugh: Again, this was off-recording, but even if we were recording, it's too bad we don't have a visual component to the podcast.
N. Rodgers: It's true because my arms were.
J. Aughenbaugh: Nia's arms were flailing.
N. Rodgers: That's what I do, when I get really crappy and I get really upset my arms flail.
J. Aughenbaugh: I mean, she leans forward a couple.
N. Rodgers: I do [inaudible].
J. Aughenbaugh: She leaned back, and I was just like, ' Wow, hey.'.
N. Rodgers: This means it.
J. Aughenbaugh: This is impressive.
N. Rodgers: This is theater.
J. Aughenbaugh: Again, and I'm not being critical because again, as my students well know, when I get really enthusiastic.
N. Rodgers: You`re similar.
J. Aughenbaugh: The hands start.
N. Rodgers: One hand holding coffee goes way up over your head sometimes.
J. Aughenbaugh: Yes, then I start leaning forward and then as one student wants describe Nia, it's like a lion chasing its prey. I mean, I just start moving around, I'm like,' Where is it? Where is it? I'm going to get it.' But Nia made reference listeners to there are two current reform proposals being considered by the US Senate.
N. Rodgers: Stupid. Sorry, I was just clear my throat. Sounded like I was saying stupid. I was just clearing my throat.
J. Aughenbaugh: One of which we actually touched upon in a previous podcast episode. That is the one that would have 18-year term limits for Supreme Court justices.
N. Rodgers: I don't think that's stupid action.
J. Aughenbaugh: Well, no, listeners. The only thing that Nia and I had some concerns about in regards to that particular element of the proposal is whether or not Congress could pass it as a law, or would they to amend the constitution.
N. Rodgers: Exactly. Not the idea itself is a bad idea so much as how would we go about instituting this idea not that idea this idea. Because we both think that term limits there are some real positives to term limits. There are some negatives, but there are some real positives to that, and it might restore people's confidence.
J. Aughenbaugh: Yes.
N. Rodgers: In the impartiality of the court.
J. Aughenbaugh: The Court and Nia and I have evidence.
N. Rodgers: Eighteen years is a nice continuous long.
J. Aughenbaugh: Well, it gives a new justice time to get acclimated to the work of the court, then they would still have 15, 16 years to have an impact on the court's decisions and opinions in the development of law. But also.
N. Rodgers: Both Aughe and I think that there should be an Emeritus court after that where if people re-accused themselves and you needed somebody.
J. Aughenbaugh: To step in.
N. Rodgers: To step in, then they could step in and listen to the case.
J. Aughenbaugh: In previous podcast episodes, Nia and I have talked about the real danger in all branches of government of how grain, our government positions have become. We have a lot of government positions occupied by people in their 70s and 80s and we have some concerns about their ability to perform their job at a high level. Again, we're not being ageist, it's just the reality that there have been some noteworthy examples of recent vintage where that has come to mind. But the most recent proposal actually got announced earlier this week, the week where we're recording this podcast, the proposal comes from Senator Ron Widen from the Fine State of Oregon. There are a number of elements to his plan, but a couple really jumped out at Nia and I. One, Senator Widen just he went for the Gusto. He actually proposes a court packing plan where we would add six new justices over the next five years.
J. Aughenbaugh: Listeners the look on Nia's face right now.
N. Rodgers: Because 15 justice and what Widen is not taking into account is. What happens when the Republicans control? Are they going to add six, are we just going to keep doing this until we've got 9,000 people on the Supreme Court?
J. Aughenbaugh: Yes I think.
N. Rodgers: Me and Aughe are on the Supreme Court? That would be a terrible idea.
J. Aughenbaugh: Good luck getting decisions handed down in the Millennium.
N. Rodgers: In a Millennium. That's hugely problematic. Also, I don't know why six is magical.
J. Aughenbaugh: Wow.
N. Rodgers: Except that he's saying that six would counter the six conservatives.
J. Aughenbaugh: That's correct.
N. Rodgers: Then it becomes the political game of.
J. Aughenbaugh: Well, if there's four liberals, and now we Republicans are in control of the Senate, we're going to add four new justices to.
N. Rodgers: Exactly. That slippery slope has no end.
J. Aughenbaugh: Yes.
N. Rodgers: That's a terrible idea and we've done pretty decently for approximately 250 years with nine.
J. Aughenbaugh: We've had a it's five as many as 10, but nine has worked really well.
N. Rodgers: For time.
J. Aughenbaugh: For roughly the last 150-160 years.
N. Rodgers: Of course, we should jack with it.
J. Aughenbaugh: He also resurrected Nia an element from the previous proposal, where the Supreme Court's jurisdiction would be restricted to where it could not hear appeals in cases concerning presidential immunity. This is in direct response to the court's ruling in Trump versus the United States, where the US Supreme Court said that the president cannot be held accountable for behavior associated with the outer limits of the presidential office
N. Rodgers: Right. We're going to restrict the court from presidential immunity, and then the next president is going to restrict the court from bodily autonomy, and then the next president is going to restrict the court from guns. Then you see where that?
J. Aughenbaugh: Again, where does this end?
N. Rodgers: Why was standing on the biggest slippery slope, he could find going, looks good to me and I'm like, what are you thinking but that's not the one that makes me angry. That's not the part that makes my arm fail. Can I mention the part that makes my arms fail?
J. Aughenbaugh: Yes, please do.
N. Rodgers: The institute ethics guidelines, which would be enforced by the lower federal court judges. While at the first blush, that sounds like a good idea. If you want Justice Thomas, if you're upset about Justice Thomas' trips, and you want him to be brought up on an ethics violation, and you want someone to do that work. Well, the lower federal courts could do it? The district courts or the appeals courts.
J. Aughenbaugh: Judge Courts. Judges judging judges, they know what is good.
N. Rodgers: That seems fine until you really think about, those people. When, we know that in the lower federal courts, we've had a problem with, we don't want to decide this because it's poky, so we're just going to pass it on to the Supremes.
J. Aughenbaugh: Correct.
N. Rodgers: Which we've seen in numerous cases.
J. Aughenbaugh: That does happen.
N. Rodgers: That's problem because what happens if they're like, this is really hard? We just don't want to do it. Then they don't make a finding for years and years and years and years. They just sit on it because there is no requirement that you come to a conclusion or write an opinion in a timely fashion. People who think that that's the case are wrong. Justice can take years to write an opinion if they choose to. Also these are the people who are gunning for your job, and they're going to be judging you.
J. Aughenbaugh: Yes.
N. Rodgers: Now, what on earth makes you think that these very smart people would not find you in trouble, get rid of you and then apply for your job?
J. Aughenbaugh: Well, it begs other question.
N. Rodgers: It opens the courts to corruption that is just, potentially could be horrible.
J. Aughenbaugh: You're talking about some serious game playing here by litigants. I may think about.
N. Rodgers: What federal court judge has not clerked for the Supreme Court?
J. Aughenbaugh: Yes.
N. Rodgers: Find me one, so really you're going to turn on your own?
J. Aughenbaugh: Yes.
N. Rodgers: Talk about, at some point people will say, well, it's a kangaroo, of course it is. Of course it is, you're asking people to judge one, their direct superiors which they're going to be uncomfortable doing or they're not going to be uncomfortable doing, which is dangerous on either end. More importantly, that's an old boy network, what makes you think you're going to get factual.
J. Aughenbaugh: Serious, if you will reform in terms of ethics.
N. Rodgers: Right, or serious judgment in individual cases. It's going to depend on whether they like or dislike this person, it's going to depend on and if you're looking to make a name for yourself, the dude who brings down Justice Thomas is going to make a serious name for himself. But is that really how we want Justice Thomas to be judged by people who are trying to make a name for themselves? This is terrible idea. I got to put my arms down.
J. Aughenbaugh: But I'm also thinking about for instance, if you're talking about lower federal court judges, they probably are not given opportunities at expensive trips and book deals and paid speeches like Supreme Court justices. How much is envy and jealousy going to play role in those ethics panels?
N. Rodgers: Excellent point because these are humans we're talking about.
J. Aughenbaugh: Moreover, either of the two reform proposals that propose this ethics if you will process. Give the Chief Justice the role of appointing the lower court panel. Now, if you're Supreme Court of justice and you really have a problem with one of your colleagues and you are gifted an ethics complaint from some litigant or some interest group. Wow, you want to talk about a temptation. To really screw with one of your colleagues that you don't like. I've been in too many small group organizations where that ping stuff goes o that's a temptation that's almost impossible to resist.
N. Rodgers: The last thing on this, can we briefly mention the last part of this proposal?
J. Aughenbaugh: This one by the way, just absolutely drove me nuts.
N. Rodgers: This is the one that makes Aughe's arms fail.
J. Aughenbaugh: The last part of Warden's proposal. For the justices to overturn a law passed by Congress or a regulation issued by the president, I would require two thirds of the votes of the justices.
N. Rodgers: No more five, four majority?
J. Aughenbaugh: No. You would need in effect a supermajority.
N. Rodgers: You need 63 on any vote.
J. Aughenbaugh: Yes.
N. Rodgers: That's going to apply to 95% of their cases.
J. Aughenbaugh: Well, particularly the difficult cases.
N. Rodgers: Be locking up the court even more.
J. Aughenbaugh: You want to talk about dividing the heck out of the court.
N. Rodgers: I'm going to need you to sit down.
J. Aughenbaugh: If the end of result is, you don't want any law or regulation overturned by the Supreme Court. That's fine. But what happens when these are laws and regulations you don't like and you want the Supreme Court to overturn it. You have basically now screwed you and all your friends in your party on your side of the ideological spectrum.
N. Rodgers: Also two thirds?
J. Aughenbaugh: Yes.
N. Rodgers: Is not what we require.
J. Aughenbaugh: No. It's not in the Constitution, which means you would need a constitutional amendment.
N. Rodgers: Right.
J. Aughenbaugh: Now, I'm all fired up, right?
N. Rodgers: Exactly.
J. Aughenbaugh: Yes.
N. Rodgers: Really, to wrap up.
J. Aughenbaugh: Yes.
N. Rodgers: Right now the court is under siege.
J. Aughenbaugh: Yes.
N. Rodgers: Yes, there are legitimate criticisms of the court.
J. Aughenbaugh: Yes.
N. Rodgers: Yes, there are probably reforms that need to be made to the court. I would argue that there need to be. With you, that there do need to be some ethics reforms. Quit taking copious amounts of money from people. If you don't understand inurement any more than that, then I can't help you.
J. Aughenbaugh: Yeah, I mean, to your point.
N. Rodgers: Because Aughe, and I can't even take a coffee mug from people.
J. Aughenbaugh: Yeah, to your point Nia. Most Americans don't care whether or not these rich benefactors are influencing your vote. We just know we don't have those rich benefactors that want to go ahead.
N. Rodgers: And influence our votes.
J. Aughenbaugh: Who want to give us this trip, it's going to engender all jealousy, envy, and that can't be good.
N. Rodgers: And suspicion. That's what it engenders. It's the, I don't know what's wrong here, but I feel like it's wrong. It's suspicion. It's not even necessarily have to be based in anything. The other thing we would like to make note of is, if we could, please, is please let's stop with the assassination attempt. This is so terrifying right now. The idea that any of the justices could be hurt or the presidential candidates could be hurt. This is bonkers.
J. Aughenbaugh: Yes.
N. Rodgers: Is it going to take somebody getting killed for people to stop talking like this?
J. Aughenbaugh: Yeah. I mean, and I even put that listeners in my research prep notes. I asked the question. Will the rhetoric only be dialed down if an assassination attempt is successful? I don't care if we're talking about Supreme Court justices, presidential candidates. I mean, let's face it. We had an individual break into former speaker Pelosi's House.
N. Rodgers: And hurt her husband.
J. Aughenbaugh: Attempt to brain her husband. We got to stop this.
N. Rodgers: Well, and we've had now two attempts on Donald Trump's life. Now, I would venture that people who have listened to this podcast know that I'm not hugely fond of Donald Trump. I've tried to be fair to him when I thought that he did something good or that they had a reason for doing something. But he's not my favorite person.
J. Aughenbaugh: We try to understand his behavior and where it originates, and he comes from a different, if you will, sector and culture, blah, blah, blah.
N. Rodgers: Yeah. He's not my favorite dude.
J. Aughenbaugh: No.
N. Rodgers: Stop with trying to shoot him. That is wrong.
J. Aughenbaugh: Yes.
N. Rodgers: If you believe that murdering people straight out, Ala George Floyd is wrong, then you believe that murdering Donald Trump is wrong.
J. Aughenbaugh: Yes.
N. Rodgers: It matters. It matters that we're in a time where people are honestly following justices home and plotting to do things to their families. That's wrong with you. This is not, I don't know. It's really scary. Democrats, I'm looking at you now. Y'all need to calm down on the rhetoric because the more you fire this stuff up, the more people who are not mentally well will think that it's acceptable to do these kinds of things.
J. Aughenbaugh: Yeah, because then all of a sudden it become.
N. Rodgers: They feel like they have cover.
J. Aughenbaugh: Yeah. Because it becomes then normalized, right?
N. Rodgers: Right.
J. Aughenbaugh: Your rhetoric has gone ahead and basically said that this violent response is an appropriate way to go ahead and address people who think and behave differently than you.
N. Rodgers: Well, and your hypocrisy is thick, because you're crabby about the people on January 6.
J. Aughenbaugh: Yeah.
N. Rodgers: I'm not disagreeing. Nobody should've been violating the capital, nobody thinks that's a good idea, right?
J. Aughenbaugh: Yeah.
N. Rodgers: But their rhetoric that day and your hatred of their rhetoric that day is getting turned around now. Because you're starting to sound like them. You're starting to sound like people who are saying, the election was stolen. The election is not stolen, and the Supreme Court is not corrupt.
J. Aughenbaugh: The last point I wanted to offer to our listeners is something that I mentioned a few moments ago. If you prize judicial independence because it has benefited, protected, promoted your interests.
N. Rodgers: Or minority interests that you believe in.
J. Aughenbaugh: The civil liberties of you and people in your tribe. I'm not saying that condescendantly.
N. Rodgers: No.
J. Aughenbaugh: Then it can't just be to your benefit. It has to be a core principle that applies throughout.
N. Rodgers: Right.
J. Aughenbaugh: Some of the behavior that we're seeing, a lot of the attacks that we're reading and hearing about, and some of these reform proposals, at least for Nia and I, would seriously erode that judicial independence. That should be something that we talk about. Because Nia and I both agree that the current Supreme Court has some things it needs to address.
N. Rodgers: Right.
J. Aughenbaugh: But here to four, some of the stuff that we're hearing and some of the proposals that are being made.
N. Rodgers: Are only going to make it worse.
J. Aughenbaugh: Worse.
N. Rodgers: In the long run may solve your immediate political goal.
J. Aughenbaugh: Sure.
N. Rodgers: In your short term political goal, it probably does solve a lot of what you don't like.
J. Aughenbaugh: Yes.
N. Rodgers: But in the long term, this is going to be boogered up for other people. That's a technical term, so don't throw it around. I mean, you're talking about changing the court fundamentally in ways that 50 years from now will backfire.
J. Aughenbaugh: Yeah, I mean, Nia and I are not generally fond of slippery slope arguments. But in this particular instance, the only thing that we see.
N. Rodgers: This is a Mount Everest Slipper slope. When you start sliding off, you're going to go for five miles before you stop.
J. Aughenbaugh: Yeah. It's high, it's steep.
N. Rodgers: There's no getting it back.
J. Aughenbaugh: You're not going to like how this stops.
N. Rodgers: Yeah.
J. Aughenbaugh: Because when you're rolling down Mount Everest,
N. Rodgers: You're going to hit every rock.
J. Aughenbaugh: There's no soft landing here.
N. Rodgers: Exactly.
J. Aughenbaugh: Anyways, Nia, thank you very much, and listeners. We will return to our, shall we say, more stayed, less rant filled of discussion.
N. Rodgers: That's true.
J. Aughenbaugh: With our next podcast episode.
N. Rodgers: Although the elections are coming up, and I expect there will be more rantings just to be heard.
J. Aughenbaugh: Yeah.
N. Rodgers: Stay tuned for that if you like the ranty bits.
J. Aughenbaugh: Yeah. If you like the ranty bits, we do promise.
N. Rodgers: There will be some.
J. Aughenbaugh: Have a good day, Nia.
N. Rodgers: Thanks, Aughe.
FEMALE_1: You've been listening to civil discourse brought to you by VCU Libraries. Opinions expressed are solely the speakers zone and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the workshop for Technical Assistance. Music by Isaac Hobson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harm to the making of this podcast.