By Anne Trominski:
In case you were unaware, things are a bit crazy in the United States right now. In an era of shocking news stories, unheard of court cases, and generally unprecedented political events, discourse has gotten a tad tense . . . some might even say divisive. Can we still discuss the events of the day over the dinner table? Can we realistically look to the past to deal with the problems of today? Is there an appropriate cocktail to serve for the end of times?
Three friends tackle these topics and distract themselves with other tangents in their podcast Civics on the Rocks. Steve’s an engineer, Mack’s a history teacher, and Anne’s just trying to get the mics to work correctly (with varying amounts of success). The long-form episodes are released at the beginning of each month. Living in Texas, they have plenty of political fodder to chew on, but topics cover all types of history and government. The hosts are unrepentant geeks, so they are just as likely to drop movie references as knowledge bombs but, ultimately, their goal is to try and figure out how to be engaged citizens in modern America. They’re also drinking and making cheesy jokes while doing it.
Full episodes with citations (geeks, I say) are available on their website, CivicsOnTheRocks.podbean.com, as well as all the major podcast carriers and socials.
In this episode, the trio tackles the United State Supreme Court and some of their recent controversial decisions. They also delve into whether anything can be done about them.
Read the edited transcript or listen to the entire episode linked below.
The question of the day: Can we still call the court “supreme”?
Mack: I think we have to. We don't really have any choice.
Anne: Is it actually called “the Supreme Court” somewhere? Like in the document?
Mack: In the Constitution.
Anne: It is literally the Supreme Court. It's not just like . . .
Mack: The court that we call the Supreme Court.
Anne: That big court, that high court.
Mack: Somebody spray-painted “Supreme” on it.
Anne: Well, we call them the Commander in Chief. That's not in the Constitution.
Mack: Yes, it is.
Anne: No way!
Mack: Commander in Chief of the Armed Forces. It's the Supreme Court because that's actually written into the Constitution. It's basically the court of last resort.
Anne: The court of no return.
Mack: More or less. They have the final say on interpreting the Constitution and federal law. If you want to overturn a Supreme Court opinion, basically there's two, well there's three ways to do it, but the two main ways are: Congress proposes and the states ratify a constitutional amendment that changes the Constitution itself so that whatever the relevant Supreme Court opinion is --
Steve: It doesn't have to be Congress proposing, but yes.
Mack: Well, that's . . . when you look at how the amendment process in Article V, it's been done that way 100% of the time.
Steve: But it's not the only way. There can be a constitutional convention convened instead of Congress.
Mack: If so many of the states call for one.
Steve: Never been done. Which has never been done.
Anne: Well, now’s the time.
Mack: Well, no . . . okay, pause, we got to talk about this. Because this is a thing, because there's a lot of people who want them to happen, and those people are the Heritage Foundation.
Anne: Well, I don't agree with them.
Steve: What's interesting is it would start a constitutional convention. It would not be a limited constitutional convention, is what's interesting. It would actually be open, as I recall. Because the other path, isn't the other path Congress puts out an amendment to be voted on by the states?
Mack: Well, that's the main way.
Anne: That's the only way it's been done so far.
Mack: So far, yeah. But to propose an amendment, it's got to be a two-thirds vote of both houses. Then that proposed amendment—and by the way, the president is not a part of that process at all. A president can lend political weight to it and, famously, Abraham Lincoln said he wanted to sign the Thirteenth Amendment, but that's just because he wanted to sign it. The president's signature is not required on an amendment. It's not required in any part of the process. But anyway, after a two-thirds vote in Congress, it goes out to the states, and three-fourths of the states have to ratify. And so right now with 50 states, that's 38 of the states would have to ratify.
Anne: Okay, so that's one way you can . . .
Mack: Yeah, that's one way is a constitutional amendment so that it renders null.
Anne: . . . overturn a Supreme Court case.
Mack: And incidentally, that is the role of, one of the roles of the Thirteenth and Fourteenth Amendment, and Fifteenth Amendment, in effectively overturning the entirety of the Dred Scott opinion with respect to Black Americans. Now the other way it can happen is the Supreme Court reverses itself, and that is relatively rare. There have been times that the Supreme Court may have --
Anne: Really? Because we listed like four of them last episode.
Mack: Okay, but when you think about the thousands of cases over the years that the Supreme Court has heard, usually it's not involving reversing themselves.
Anne: Actually, quite seriously, about how many cases do they listen to per year?
Mack: 100 to 150. That's what it is now. In the past, there were years, like, if you go back decades, where it may have been like 300. But the way it's been now for quite a while is there's about 7–8,000 cases that get appealed to the Supreme Court every year, and they choose to hear somewhere between about 100 and 150. And by the way, the way they pick that is --
Steve: I believe they're not always appealed to the Supreme Court, however. Some of them are under original jurisdiction.
Mack: Yes, there are, yes, but very few.
Steve: I caught something he missed on a law point.
Anne: Give me an example.
Mack: Yeah, give us an example.
Steve: Okay, when there is a direct conflict between the states. For instance, Missouri just brought suit against New York because they claimed that the gag order against Trump violated the rights of Missouri citizens to hear from their preferred elected officials or whatever for campaigns. And so Missouri petitioned to have this heard under original jurisdiction. So it wasn't like there was a lower court finding that had to get appealed to the Supreme Court. And yeah, I can tell that he's looking at me because I probably got it wrong.
Mack: No, you're right. That was that look.
Steve: I think I'm going to retire from the podcast now. Everything else is downhill.
Mack: Yeah, no, there are very few cases that come under original jurisdiction, but there are some. And original jurisdiction means for the Supreme Court that they are the first and only court that will hear that particular case. But in all other cases, the other kinds of cases are those affecting ambassadors, other public ministers and consuls. And cases where a state should be a party. Now, to be clear about that, that's not always, that may confuse people because you could have a case like, I don't know, like somebody versus, you know, Illinois or somebody versus whatever, and it's something that originated in state court or whatever. We're not talking about that kind of thing. We're talking about like what you mentioned. But in every other kind of case, the Supreme Court has appellate jurisdiction. Now the whole of jurisdiction for federal courts is much broader than that. But anyway, so it's, in order to hear a case out of all of these 7 or 8,000 appeals, and every one of the appeals is technically a document called a petition for review that the appealing party sends up to the court. And all of the . . . justices are sort of assigned the different circuit courts of appeals to read the appeals coming from those different circuits. But anyway, they read them and as long as you get four of the nine justices to say, “We should hear this case,” the court issues a writ of certiorari, which is basically an order to that lower court --
Anne: A writ of what now?
Mack: Certiorari.
Anne: I'm sorry, that is a magical spell from like a 1980s fantasy movie. I'm pretty sure Tim Curry was the devil.
Mack: I'm not going to argue that. And it's definitely not like a Latin pronunciation. It's sort of just the way it's pronounced.
Steve: Kind of like the voir dire.
Mack: Right. A writ is a court order. In this case, a writ of certiorari.
Anne: Oh, we know what “writ” is.
Mack: Not everybody, this may be some people's first time listening. Hopefully. And it's sent down to that court, you know, that the appeal came from, and it's in order to, you know, send that case up. And that's how they, as long as it's, you know, four of the nine, and they'll hear the case. So let's say I want to appeal a case. First of all, if you're appealing, the whole basis of your appeal is that the trial judge made an error of law. That's going to be your basis for appeal. Texas is part of the Fifth Circuit Court of Appeals. All the states are divided into, we have 11 numbered circuit courts of appeals and then there's a couple of other special circuits. I send a petition for review up to the Fifth Circuit. The courts of appeals have to act on every appeal in some way, shape, or form. And it could simply be to just deny the appeal.
Anne: Right.
Mack: If they grant the appeal, usually when lawyers are sending a petition for review, if the appellate court agrees to hear it, you're going to ask for, in your briefs, both parties will send briefs, you're gonna ask for oral argument, but they don't have to grant you the oral argument, they can make a decision just based on the briefs, okay, just based on your written argument—the brief is your written argument—but they're gonna act on it in some way, whereas the Supreme Court has discretionary jurisdiction, they don't have to.
Steve: One of the kind of weird things when it comes to checks and balances and stuff is the Constitution talks about the Supreme Court. That's it. It kind of provides, “Oh and Congress should do other courts because we know you're gonna need some, but we don't really know what those are and also we're very tired.” So they just left it to Congress.
Mack: It's August, September . . .
Steve: Yeah, yeah. When they got into the first two articles, it was a whole thing. So yeah, so it’s totally up to Congress how it gets funded . . . what the pay is, how many—with conditions—but you know, how many circuits there are, how many district courts they are, where they are, all that stuff is ultimately Congress. Now a lot of that is they just kind of like allocate funds to the judiciary, and they kind of run their own show to a degree just because it's logistically easier. But yeah, really, it's all created by Congress.
Anne: Does that mean it can be destroyed by Congress?
Steve: Yes, except for the Supreme Court, yes. And the Constitution doesn't say anything about, because you're going to go there, how many justices are on the Supreme Court . . .
Anne: Well, yeah, we're going there, but I don't know if you're ready to go there yet or if you had more to say.
Mack: Not yet. Well, because I want to finish off the whole how can you reverse a --
Anne: Asking for 10 million friends.
Mack: Yeah. There have been some occasions where the Supreme Court has reversed itself in a period of like 10 or 12 years. I was thinking of how they overturned the Lawrence [v. Texas] case, the sodomy case. But then there was Brown v. Board of Education, which overturned Plessy [v. Ferguson], but that was like 60 years of sort of building up to that with, especially, the NAACP looking for cases of a civil rights nature where they could establish enough of . . . several precedents by the Supreme Court to sort of build them up to give them a foundation to do the ruling in Brown. Or you have Dobbs [v. Jackson Women’s Health Organization], for which there was basically no foundation—it was six justices saying Roe [v. Wade] was egregious and we're overturning it, which they can do.
So that's the two ways you reverse a Supreme Court decision. You either get a constitutional amendment: which is very, very difficult, or the court reverses itself, which is very, very rare.
And I said that there was a third way, and technically if there's, like, say for example, there's a federal law where the Supreme Court interprets the law, the plain letter of the law, and the outcome is something that Congress did not anticipate, and they're like, “Oh shit.” And so they go back and amend the law in order to fix the problem. And so then if another case comes up, then you get the right outcome. But that's really, that's just a matter of, like, “Oops, we fucked up the law.”
Steve: It's funny because the way they write it is, well, the law says this, which seems dumb to us, but it's the law. And so they issued the decision. And everybody's like, “Oh, yeah, that's not what we meant. Oops.”
Anne: Where to start? There's so many questions I have. Let's say, I know we touched on this on a previous episode, but I'd like to revisit it here. Let's say you want to get somebody off the Supreme Court, desperately.
Steve: Legally?
Mack: You have to impeach or expel them.
Anne: Okay, who impeaches them?
Mack: The House of Representatives. And the trial of impeachment is in the Senate, and conviction takes a vote of two-thirds of the senators present.
Anne: And what do they have to be guilty of?
Mack: Treason, bribery, or other high crimes and misdemeanors.
Anne: So like taking bribes?
Mack: Yeah.
Anne: That would be a high crime or misdemeanor?
Steve: Yeah, bribery is listed separately.
Mack: Well, treason, bribery, and high crimes or misdemeanors.
Anne: What if their spouse was, say, an insurrectionist?
Mack: Well, before we get to that, remember that bribery --
Anne: Would that count? I'm asking if that would count. Poor marriage choices.
Steve: Freedom of association.
Mack: Okay, hold on. Let's get to the . . . There's something I need to say about --
Anne: That sounds like a misdemeanor. I mean, I don't know what that is legally, but I'm sure it is one.
Mack: I can talk about it, but first, let's finish talking about the bribery thing, because it's fucking important.
Anne: I'm sorry. Please go ahead.
Mack: Congress gets to define what bribery is. We say treason, bribery, and other high crimes and misdemeanors. Treason is actually defined in the Constitution itself. There are several crimes mentioned, but treason is the only one that's actually defined by the Constitution in Article III. But bribery is defined by federal law. And so now the House doesn't have to follow that, they could impeach somebody for bribery that does not actually follow it because they can impeach anybody for whatever they want. I mean, Gerald Ford was right. But yeah, I mean if they're gonna be guided by that then . . . and so, does the acceptance of, you know, hunting trips to Montana and, you know, flights in private planes, and does any of that constitute bribery?
Steve: And yachts to Russia. That was the cool one. More of the point here, yeah, if the House can impeach them for whatever the House wants to impeach them for, and they can call it bribery if they want to, and it doesn't matter, A) what the bribery statute is, or B) what the Supreme Court thinks the bribery statute is, they can impeach them.
Mack: But then you've got to have the trial in the Senate. There's not going to be enough votes.
Anne: Currently?
Anne: But theoretically at some point . . .
Mack: You could. Because ultimately it's a political thing. The worst that can happen from that is they get removed from office.
Steve: They could say it’s bribery, they could say it’s undue financial influence.
Anne: Be persecuted in the court --
Mack: “Prosecuted.” Prosecuted.
Anne: Yes, thank you, that is a very important distinction, and I appreciate you pointing that out. To be prosecuted for bribery, that's through the court system. Supreme court justice whoever, to actually be tried for the crime, that would be traditional . . . you get arrested . . .
Mack: There would have to be some kind of federal investigation.
Steve: You get indicted, you know . . .
Mack: There would still need to be in indictment. That's the thing, you could . . . There's nothing that says you could not indict a Supreme Court justice for committing a crime. But then it's a matter of, okay, the Justice Department, that somebody in there—FBI, whoever—is going to have to be doing an investigation to see if this constitutes bribery and then, like, recommend charges or give a report to federal prosecutors.
Steve: Yup. Go in front of a grand jury to get an indictment.
Mack: Yeah. And they're going to have to think that, not only am I going to have to make sure I can get a grand jury indictment, which again, famously, you know, ham sandwich. But that ultimately they're going to have to prove every element of the crime beyond a reasonable doubt to a jury of 12.
Steve: In front of a district court judge. Who ultimately is in the hierarchy reporting to the Supreme Court.
Anne: Well, at this point they've probably been . . . I mean, to get to the point where you could actually charge them with bribery, I would think they would have to be removed from the Supreme Court.
Mack: No, there's no mechanism to do that except for impeachment and expulsion.
Anne: But that's what I'm saying is that, like, is anybody going to indict somebody sitting on the Supreme Court of anything?
Mack: I mean, potentially they could. It depends on how much evidence they have. And also their willingness—sure, their willingness—to run the political risks, I guess.
Steve: There’s nothing that says they can’t. . . . You don't shoot the king unless you're going to get him.
Anne: Because I'm thinking to get to that point, they would have had to have been impeached by . . .
Steve: It would be easier, but they don't technically have to have been.
Anne: They don't technically have to. Okay.
Mack: The only person who would have to be prosecuted once they're out of office is the president, although the Supreme Court recently, infamously, just said, “No, there's a whole bunch of stuff that you can't actually prosecute him for, and we're granting a president here blanket immunity.”
Anne: One horrific thing at a time. I brought up the bribery thing. We have sitting justices right now who --
Mack: Who've received a lot of gifts.
Anne: Who, yeah, have been accused publicly --
Mack: From the same people who pushed their nominations through.
Anne: I mean by people of the public, by no authoritative body, but just by reporters mostly, of being under influence of bribery.
Steve: Well, two senators I believe have written a letter to the Justice Department requesting an investigation. So not just the press, but yeah.
Mack: Now the other thing is if there is going to be—this is important—if there is, there could be a federal investigation already ongoing and we don't know because federal investigations generally are kept secret unless somebody leaks the information. If they're going to be investigating a Supreme Court justice, I don't think they're going to be leaking.
Anne: A case just recently was ruled on by the Supreme Court having to do with bribery. Can you give a short summation for the kids at home?
Mack: Do you want to take that one?
Steve: I can't go into the details. I know that that case, as well as several others they've had over the last several years, have all reduced and reduced and reduced what counts as a bribe against elected officials. It's really been a trend over time. There was a recent case, and that was the one, as I understood it, that made it so if basically, if the official got the money first, maybe it's a bribe, but if the money came after the act, then it's totally not a bribe, it's just a gratuity.
Anne: We can tip our publicly elected officials?
Steve: Yes, and that's not a bribe. So if they make the decision that you want, and then you give them a million dollars in a suitcase, that's just a tip, a token of appreciation.
Mack: Even though there might be an understanding that it's going to happen as long as you don't talk about it.
Steve: So there's been, as I understand it, a creeping contraction of what counts as a bribe, even Menendez, who got gold bars for whatever. So they've reduced what counts as bribery under the federal criminal statutes, again, to differentiate from impeachment.
Mack: OK, was that recent Supreme Court case, did that come from a state?
Steve: I don't remember.
Mack: I don't remember that one either, because the other case that happened drew a lot more of my attention.
Steve: Yeah. I could only see the big dumpster fire.
Anne: So again, these are for elected officials. That case actually didn't affect anything on the Supreme Court, the Supreme Court members.
Mack: Well, it wouldn't matter anyway.
Steve: Yeah, I mean, it depends on how the law was written, if the law was limited to elected officials or public officials. So you get into some of that, which you get into some nuance there and blah, blah, blah.
Mack: Actually, I think there's stricter rules for people who are in appointed positions or civil servant positions about what they can and can't.
Steve: Yeah, but that's also, but see if you're an actual straight-up civil servant not an appointed position, then yeah, you, like, can't accept a lunch.
Mack: You can only accept gifts of like $25 or less.
Steve: It's like de minimis stuff.
Mack: So like swag.
Steve: Yeah. Well, like, we, in some agencies, take it very seriously. I am not able to take clients from the local utility to lunch because they are not allowed to accept a lunch. And so that's a very strict interpretation. That's true for if you're an employee of the federal government. If you're a political appointee, however, I don't know that those same rules apply. And then you get up to the Senate confirmed officials and all the way up to the Supreme Court type of appointed officials. So there's gradations there. If you're a line employee, for lack of a better word, yeah, yeah, no, there's very clear rules and you just can't. Yeah, but political . . . Spoils, I think, is the . . . that's the . . .
Mack: Yeah, well that's what they want to bring back. They want to get rid of the civil service system and just make it . . .
Steve: Jackson, he the man.
Mack: No, it really is. It's another Project 2025 thing.
Anne: Yeah. Okay. So we talked about how to get rid of, potentially get rid of, a Supreme Court justice. What if they were, like, say, arrested and put in jail? But they're still on the court.
Mack: So if somebody's arrested, and I would imagine they would have to go through the regular bail hearing --
Steve: Hold on a second: How were they arrested? Was it on a federal or a state crime?
Anne: They were, they murdered somebody . . .
Steve: So state.
Anne: At Four Corners.
Steve: Don't do that.
Mack: Let's just say, if it's a state. That's going to be handled by state courts.
Steve: No. Well, it's going to be handled by state courts and pretty quickly you're going to come into some sort of sovereignty thing, and then they're going to say, “No, you can't jail a federal active” --
Mack: Who is gonna tell them that?
Anne: Well, they're in Washington, D.C., they probably killed him in Washington, D.C.
Mack: Well, no, then it's federal if it’s Washington, D.C.
Anne: Okay so that's a legit federal crime.
Steve: In which case it’s a separation of powers --
Anne: That’s very realistic for my crime novel . . .
Mack: If you've got a Supreme Court justice on one of these, like, vacation junkets in, like, Montana and then kill someone --
Steve: Shoots Dick Cheney in the face.
Mack: As opposed to him shooting somebody else in the face. But, like, where it's, like, deliberate murder, you know, whatever, the state has every right to handle that as a regular crime and do a bail hearing, whatever, and if they decide to . . . if the local judge says no bail because they're a flight risk or whatever, then they're gonna have to sit in jail until their lawyer tries to appeal the bail decision, but it's all going to be governed by state law. You had said, at some point, you're going to have sovereignty issues and I'm like, who's going to do that? It's going to have to be argued by the Supreme Court Justice's attorney. I don't know, because it's not written anywhere. And are we effectively saying then the Supreme Court Justice could get away with murder. They've already said president can.
Steve: The reason I brought it up was because that came up. I've heard that discussed many times in the context of the president and, like, in the Georgia case. The president in the Georgia case. How does that go? What if he gets convicted and one of the comments was, well, they straight up can't jail the president if he's the current president because that would overstep the separation . . .
Mack: Because federalism works both ways. I mean both have sovereignty. The thing about that is, though, is that those are principles, and it is not written anywhere in the Constitution or anywhere other than just the concept of federalism . . .
Steve: Kinda like the idea that no man is above the law.
Mack: Yeah.
Steve: I’m saying if that logic could potentially be applied to the president it could also then logically be applied to the Supreme Court.
Mack: Yes, and so that's the thing. But that's what I'm getting at is that if this whole mess with a Supreme Court justice sitting in jail in Montana ultimately gets to the Supreme Court, they could decide that, well, all Supreme Court justices have immunity. However they word it, however they say it, to just bust their pal out of jail. And there's not much you can do about it at that point.
Steve: Nope. Nope. Exactly. . . . The reason why I asked if it was federal, like in D.C., and he shot somebody, then it becomes—okay, probably the same outcome. But in this case, it's not a federalism, it’s a dual sovereignty thing.
Mack: It's a separation of powers.
Steve: Yeah it's, “No no no, you executive branch, you can't detain a judicial official, that's a separation of powers thing.”
Mack: Or at least not this judicial official, because they're in the Supreme Court. Because they're literally at the highest end of the judiciary.
Anne: So I shouldn't frame him for murder? Okay.
Mack: Again, this is the novel.
Steve: That's why I said the legal ways to get rid of the Supreme Court. There are any number of ways to get rid of them illegally.
Mack: So here's a scenario that I want to make. Let's say that you have a Supreme Court justice who's charged by the feds with bribery. And, you know, bail hearing isn't going to be, they'll be out on bail, and it'll be, you know, whatever. So let's say that you eventually, you have a conviction or some interlocutory appeal that goes up to the D.C. circuit, but what happens if it gets appealed to the Supreme Court and that justice has not been removed from, assuming that they have --
Steve: Or that hasn't recused.
Mack: Yeah, but so a recusal question. So there are guidelines for recusal, but they're only guidelines. And famously, there are some Supreme Court justices that have sat on decisions that you would think they should recuse themselves on but did not --
Steve: So speaking of, let's mention though that the guidelines for the Supreme Court when it comes to recusal and other ethical-type things are literally only guidelines, while there are some very strict and clear rules about all the other federal judges.
Mack: Because Congress can constitute tribunals inferior to the courts. They get to set those rules and make them law.
Steve: Yeah, but not for the Supreme Court.
Mack: But not for the Supreme Court because it is created by the Constitution. And so if you're gonna have something like that, it has to be in the Constitution.
Anne: Can other members of the Supreme Court get rid of one of their own?
Mack: So let me talk about this. Let me just talk through the scenario here. Let's say that you have a situation. Nine justices, one of them is on the court, and the court is hearing the appeal of a case where that person was either convicted or it's an interlocutory appeal from whatever. And so that justice is going to sit as one of the deciders of the outcome of that case. Now the thing is there's nothing in the Constitution that would prevent that. However, there is a very important—one might even say the first and most important principle of due process of law—that would be violated, and that is that a man shall not be a judge in his own case. And that, kids, is Dr. Bonham's case, in which Lord Coke was the judge that decided that. There was a law passed by Parliament, and he said, and this one thing --
Steve: We're going back to those laws now.
Anne: Yeah, we're in England. That doesn’t apply here.
Mack: No, it does.
Steve: It's the background. And this is like 1400s, I think?
Mack: 1600s. Because we're talking about due process of law as a constitutional and legal concept that we inherited from Britain, although it is important to point out that even in Britain, not everybody agreed on what it meant. And here, not everybody agrees on what it meant. But the idea that a person shall not be a judge in their own case. Like, if you have a regular judge that's arrested, and oh, the court that this case is getting sent to is his court, no, you can't do that. Because there's . . . Well, first of all, because there's laws that would prevent that, he would be required to recuse. But when we're talking about a Supreme Court. . . . To your question, could the other justices of the court make this person not part of this case, there isn't any written rule for that in the Constitution. I wonder what they would do.
Anne: I'm thinking more mundane, quite frankly, situations because these are appointments for life. I know it's been discussed before but never proven, I guess, but, like, some of these people have gotten quite old, not necessarily people in place right now, but over time, there's some that got quite old, and their senility . . .
Mack: Yeah. That there were some questions about . . .
Anne: Yeah. Could the other members of the court go, “Look, we love them. They did a great job, but they are no longer fit.”
Mack: There's no provision for doing that.
Anne: It would have to be an impeachment process?
Mack: Yeah. Or if the justices went to that one and convinced them to resign.
Steve: And that's the thing, if you were chief justice --
Anne: ‘Cuz like what if one was in a coma?
Mack: They would not take part in the decisions.
Steve: Yeah.
Anne: So then it would be an eight people court.
Mack: It would be four to four.
Anne: Okay, but it would have to go through the whole impeachment process to get rid of them, to put somebody else new, and confirm them, and all of that before you could have a full court again.
Mack: Actually, you know what? That's one of those things where I would wonder if Congress might make a rule that if for some reason, like a Twenty-Fifth Amendment—not an amendment, though, there would not need to be an amendment—but if they made some sort of a rule—actually it may only have to be in the Senate that it would need to be a rule—that if there is a Supreme Court justice that was incapacitated and it looks like it's going to be long-term, that a president could appoint a replacement or a temporary—well, it couldn't be temporary—could appoint a replacement that the Senate would consider for. Because I, because the thing, actually, it couldn't just be the Senate, it would have to be Congress would, like, have to pass a law that says if a Supreme Court justice is incapacitated and it looks like it's going to be long term, then the president can appoint a person. And if that means that the person recovers and then we end up with 10 on the court, then we just end up with 10 on the court. I mean, they could do that.
Anne: Oh, so you're not thinking it would be, like, a temporary position?
Mack: Well, you couldn't do it because once you're appointed, you're appointed for life. It's your term of life during good behavior.
Anne: Let's do the abomination ruling. Let's address the king trying to take over our country.
Mack: Trump v. the United States. So just to summarize a couple of things . . .
Anne: Everything's doomed, our country is going to hell.
Mack: Actually, the first thing I want to . . . the two sides of people reacting to this decision, including the dissenting justices, saying that this effectively puts a president above the law, a president could murder a political opponent or order a murder and the court's reasoning in this case means that could happen. But then the majority opinion itself reacts to the dissenting opinion saying that, “Oh, this is extreme, it's ridiculous, this is not what we're saying,” and is very dismissive of that. But when you read what their opinion is, there's more than enough reason to be very, very concerned about what Justice Sotomayor wrote in the dissent. I think it was Sotomayor, wasn't it?
Steve: Yeah, it was Sotomayor.
Anne: Yeah, “With fear for our democracy, I dissent.”
Mack: So about the case itself and why it's an issue, because the Supreme Court did not say, “Okay, he's got immunity in every case.” So firstly, if you're looking at Madison's notes of the Constitutional Convention or where . . . subjecting the president to prosecution after being impeached and expelled is discussed in the Federalist Papers, there is no discussion of any level of immunity for a former president. That is not even entertained. It is only discussed as whatever he gets impeached and expelled for is potentially something he could also be prosecuted for, no exceptions. So the Supreme Court with this opinion made up new law, which conservatives are supposed to not like. Political conservatives are supposed to hate this idea of justices making up law. Now, granted sometimes, and we've talked about this, when you get to kind of weighty constitutional issues, sometimes the Supreme Court has to come up with rules that are not, but it's how you interpret things. But this is made up law granting the president a lot of immunity for a lot of criminal things, potentially criminal things.
Steve: I just wanted to, as a scene setting thing, I wanted to point out also that this was appealed to the Supreme Court, but what the Supreme Court actually took up was not what was appealed. They kind of reframed it and said, “No, no, no, we don't want to deal with that question. Let's deal with this other question that we made up just now.” So that's what they decided. It was a completely different kind of question.
Mack: Because that, well, and as Chief Justice John Roberts wrote in the opinion, he said, “Because we're looking long-term, we want a rule that can apply to everything, always.” And I get that, but you still fucked it up.
Steve: Yes. Well, and most people that I thought that were thoughtful commentators going into this were like, you know what? Yes, you can come up with places where the president totally should have some sort of immunity in some circumstances, because otherwise people could just randomly sue him . . . there's gotta be some sort, some sort of immunity, some places, somehow, because there's things that --
Mack: Like from lawsuits for decisions made pursuant to the job.
Steve: Which was kind of already there under --
Mack: That Nixon v. Fitzgerald, 1982, which the court cites in this --
Steve: But that's civil not criminal.
Mack: It’s problematic that they kind of took that regarding lawsuits, and were like, oh, we're gonna apply to criminal stuff.
Steve: Does the same thing. So everybody thought, okay, there’s certainly some places where there's immunity so what they expected him to do was to kind of acknowledge there's some sort of immunity but not really define it because it's a hard problem and then look at this case in specific. So yes, there's immunity, yes, there's two different flavors of immunity that they came up with, which is great.
Mack: Bitter and sour.
Steve: Yeah. In some ways the creepier thing isn't the immunities they came up with, it's the fact, “Oh, and by the way, you can't use anything that was done as an official act as evidence against anything else even if it wasn't an official act that was a crime.” You can't use anything the president did basically as evidence, even if he said, “Hey, you know I shot this dude.” If he said that officially . . .
Mack: Well, not if he said it officially, but it was like pursuant to his official . . .
Anne: So like at a White House press conference?
Steve: No, I got a better one: complete immunity for core presidential acts. The president stands up at the State of the Union address, which is called out as to give the State of the Union in the Constitution, and he says, “I'm ordering a hit on my political rival.” That is complete immunity because it's part of his core constitutional acts.
Mack: There's two things about what you said. Okay, so first of all, he's in Congress giving the State of the Union, that's part of his official acts. Now, he says, “I'm ordering a political hit.” So that's not a core . . . Now if this is pursuant to, as Commander-in-Chief, I believe this person is working for a foreign entity and represents a threat to the United States, so I'm going to order them to be drone bombed or whatever, and that's it. So it would have to be something like that.
Steve: Fine.
Mack: But the other thing is, even a statement from the president about, I'm doing this as a political hit, the court said in this case would not be admissible because you can't admit anything as evidence that goes to motive.
Steve: Exactly. Sorry, that was the point I was trying to get to, which is the, if he says it, even if he's saying it that goes to motive or whatever, you can't use that as evidence to consider. Now technically there's some weird wiggle language and a footnote about, “Oh well if it's in the public record obviously that's fine.”
Mack: But that was addressing what Justice Barrett . . . Justice Barrett's concurring opinion, so she was in the majority with this. There was a few things about it that was odd because there was a number of places in her concurring opinion where she's agreeing with the dissent. When you have, you have, it gets reported, the majority opinion authored by whoever, in which Justices A, B, and C joined, dissenting opinion in which, whatever. But you can have a thing where Justice so and so wrote a concurring opinion in which they—but it can say that the justice agrees in part with the majority and agrees in part with the dissent, but that wasn't, it was just a concurring opinion in which it was mentioned . . . she mentions that she agrees with some of what the dissent brings up. But it wasn't 5 to 4, it was still 6 to 3. But she had an issue because she agreed with the majority except for part 3C, which is what, in the majority opinion, the footnote later on was about—or wherever it showed up—addressing her, where she was, in fact, dissenting from 3C. But it wasn't listed as an opinion concurring in part and dissenting in part. It just said concurring, which is a little odd, to me anyway.
Anne: Has there before [been] done concur in part, dissent in part?
Mack: Yes. But . . . as long as the justice concurs in the judgment, then they get counted on that side. And she did.
Steve: But they basically label their opinion concurring in part, dissenting in part. But the other thing, like officially, hers was just, “I'm just concurring.” But then there was other qualifying language.
Mack: And not getting too much into the, I mean, I'm not going to start citing textual evidence from her concurring opinion or the majority opinion, but I really started getting the feeling that the outcome of this case was close to being like 5 to 4, where the majority opinion for the 5 would have been more of like what she wrote. But then in the end, there was, like, somebody or a couple people that weren't going to be on board with that 5, and so it ended up being the opinion that you have. It sort of had the feel to me that it was very close, the majority opinion was very close to being what she ultimately wrote as a concurring opinion, but that it didn't turn out that way, for what it's worth. But that would, I mean she brings up a very good point about, why would this not be admissible? This is ridiculous. The biggest problem is, you know, if it's part of the core responsibilities of the president, he must have immunity because we don't want to put a chill on executive actions. And it's like, actually, maybe you do.
If you've got somebody who is the chief executive of the United States, maybe you want them thinking about, “Hey, maybe I should make sure that what I'm doing is not a fucking crime.”
And I know that there are people out there who say, “Well, that's naïve because political opponents will go after him.” It's like, well, it hasn't really happened before until you started to have Trump threatening to go after people and then him actually committing a bunch of fucking crimes, including insurrection.
Steve: Mm-hmm. Yeah. No, 100%.
Mack: Yeah, I'm pretty fired up about this.
Anne: That's the thing is, it's like, I'm sorry, all the things that like, oh, he might need immunity from—no, I don't agree. I get the frivolous law suits, you know, I understand shit like that, but . . .
Steve: I can give you an example. There are some hypotheticals where yes, you need a president to get some . . .
Anne: Oh, he might need to assassinate somebody. No, I would like that to be hard for him. I'm sorry. That's the kind of country I want to belong to.
Steve: Well, okay, so let me give you that example. Somebody said, oh, this is . . . somewhere there was a stupid post that said, “Oh, there's always been immunity, Obama got it when he assassinated whoever . . . somebody got assassinated, an Iranian general or something, right?” Okay.
Mack: Well, Trump did that one.
Steve: Well, not that one, but there was some . . . There was some . . . There was a drone strike. And people were like, no, there wasn't immunity, which is why Obama worked with the DOJ to make sure there was a legal justification for what he was doing because there wasn't fricking immunity there.
Mack: Whereas Trump is not going to take that time.
Steve: He didn’t take that time before. Yeah, it doesn't matter. So, yeah, I mean, presidents have done things that are not great.
Mack: And sometimes illegal. Straight up.
Steve: Yeah. But very often they have some sort of legal justification for what they're doing, which is why it isn't directly criminal, but it forces them to stop and say, “I better have a damn good reason for doing what would otherwise appear to be criminal. Cause otherwise it's criminal.”
Anne: So this court sucks. Like it's not the Supreme Court. It's the Suckage Court.
Steve: It's a good nickname. I'll take it.
Anne: There's a lot of talk about what we can do about it. We could impeach certain people on the Suckage Court.
Mack: It's not likely.
Anne: Okay. I know none of these are likely, dude. That's not what I'm doing here.
Mack: Okay, if you want possibility, sure. You can impeach and expel Supreme Court justices.
Steve: No, no, going back to the important thing: you can get out and vote more often for Congress and Senate and president.
Anne: Who can help make this situation on the Supreme Court better.
Mack: Or maybe become active in a political party and do your part to make sure the political party is actually addressing these as things that need to be issues that are in the forefront of election campaigns.
Anne: Okay, so those are things we can do. The other thing that comes up all the frigging time, and I admit to not understanding how this would help the situation, is increase the number of people sitting on the Supreme Court.
Steve: The theory about how it would help . . .
Anne: First of all, that is legal?
Mack: The thing is Congress that has said, okay, there's going to be nine justices on the court --
Steve: If Congress said, “Hey, we'd really like to change the number of Supreme Court justices to 29.”
Mack: Yeah, they could.
Steve: They can, and if it gets through both houses and the president signs it . . . And ta-da, there's 29. And that president can then nominate 20 new Supreme Court justices and they all get added to the bench. And so you would effectively completely change the makeup of the Supreme Court if you do that.
Mack: And it wouldn't need to be that many to change the makeup of the court.
Steve: You don't have to go to 29, you can go to 12.
Mack: You would need like five more.
Anne: Well, it would have to be an odd number, right?
Steve: It could be whatever number you want.
Mack: It doesn't have to be an odd number. It would be a good idea if it was. Yeah, I think it's always been an odd number.
Anne: Well, has it ever not been?
Mack: Well, sometimes there have been decisions that have been an even number if a justice has recused themselves or if it's had to be released. But the set number is always, it was like 5, 7, and then went to 9. But it's been 9 for a while.
Anne: It started at 5? I did not know that.
Mack: Yeah, well, because for a while, the number of justices mirrored the number of circuit courts of appeals, so that like each justice would sort of be like, would sort of oversee the things that happen sort of administratively.
Steve: Which they still kind of do.
Mack: They still do.
Steve: There's a whole separate administrative thing which I think is fascinating.
Mack: But now we're up to 11 numbered circuit courts plus another couple of the federal circuit court and then the D.C. circuit court.
Anne: So that'd be 13.
Mack: And so yeah, some people have suggested that we up it to 11 or 13. You've got a lot of people like, “Hey, we should just pack the court. We should allow the president, we should allow Biden, to keep putting as many members on the court as he needs to in order to get a majority.” Well, you have to remember that if you let that, I mean, that can work both ways. If we get to another point in time when there's a Republican president, Republicans control both houses of Congress --
Anne: That's always been my question.
Mack: And you're going to be fucked.
Anne: Okay, so why do people think this is a solution?
Mack: Because they’re stupid.
Steve: Because it's short term. Because they’re thinking short term, and they want one simple fix --
Mack: I'm sorry I know that that's harsh that I just said that they're stupid, but they are because you can't think short term.
Anne: Honestly that makes me feel better because there are people that I respect who are all like, “We need to do this,” and I'm just, like, I don't see how this would work. Okay, so I'm not crazy.
Steve: No, you're not crazy. A lot of it is desperation. A lot of it is anger. . . .
Anne: It's understandable, even though it's too late now.
Anne: So last call for the United States?
Mack: No.
Steve: No.
Mack: Oh no, we're in some pretty deep shit. But I'm not I'm not ready to sign off.
Steve: We've been through deep shit several times. We've come out.
Mack: Yeah, so I mean I'm hesitant.
Anne: Besides for Civil War . . .
Mack: Yeah, I'm like it's like, oh, we've had a civil war before. It's like well, it can still get pretty bad, so let's not, you know, tempt fate.
Steve: I mean, but also like the 60s were actually pretty rough. We’ve had some rough times.
Mack: Nobody stormed the Capitol though . . . Those fuckheads.
Anne: I was gonna say, don't you think this is at least—at least—as divisive now as it was during the Civil War?
Steve: I will say it’s in that tier.
Mack: Yeah, I think we made it up to that level. I think that's fair. Unfortunately.
Mack: Wasn't today supposed to be the day we found out what the sentencing was supposed to -- ?
Steve: It would have been, yeah. But that got pushed back to September.
Mack: Because they're looking at whether or not Trump v. the United States was going to have any impact on that case. And honestly, it shouldn't. Because it was all about stuff that happened before he was president.
Steve: But there were several pieces of evidence that were introduced that occurred while he was president that arguably could be official acts and if they could have influenced the verdict, if they didn't fall under the harmless errors type thing, then you might have to have a retrial.
Mack: Well, if I'm the state of New York, I would tell the Supreme Court to fuck off.
Steve: I'm with you on that.
Mack: Because their decision was bad.
Anne: Well, I think a lot of the United States right now is telling the Suck It Court to fuck off.
Mack: The Supreme Court.
Anne: The “Suck It” court.
Mack: Oh, sorry. I thought you said “second” court.
Steve: “Suck It.” Yeah, okay. That's fine.
Anne: They-Can-Suck-It-Court.
Mack: Wow.
Steve: So the way to fix the Supreme Court is to get out and vote.
Anne: Burn it down.
Steve: First of all, it's marble. It's not going to work well. But you go out and vote.
Mack: And it's a nice building.
Anne: Take hammers.
Steve: It is a nice building. Finally, they didn't . . . They had a kind of a crap building where they were meeting in like a tavern for the first several years or something.
Mack: Well, but for a long time, they met in the Capitol.
Steve: Yeah. And then there was a tavern for a while, I'm pretty sure.
Mack: Yeah, the Supreme Court building only dates from the 30s.
Anne: Really? Interesting. Built by the Masons.
Mack: Because before that they met in the old Senate chamber.
Steve: Probably. Well, wouldn't you want a mason to build something of stone? Why wouldn't you? You want a carpenter to build a stone building? That doesn't make any sense.
Mack: Oh, my god.
Anne: I just want to see that look right there on Mack's face. And I achieved it, thank you.
Mack: Can I just say, I've had, you know, people in my, I'm not a Mason, I've had people in my family that were Masons. I know Masons, I'm friends with Masons.
Anne: I don't believe in Mason conspiracy theories.
Mack: Okay, good. Because they're very nice people that do a lot for charity.
Anne: I was being silly.
Mack: Okay, good, thank you. Now the Illuminati . . . No. That's bullshit too.
Steve: So vote. Go vote.
Mack: Join a secret society. No wait.
Steve: Vote and get politically engaged. That's the way to make things better.
Anne: It doesn't feel like it, man. I know that it is. I'm trying to believe. I really am.
Mack: Keep the faith, as Nixon would say.
Anne: Thanks. You're not helping. I need you to say something that inspires me. Please give me hope for the future, sir.
Steve: We all matter, or none of us do. So it's important, and I'm stealing that from Patrick Skinner, we have to act like all of us matter.
Mack: Which is one of the core values of democracy.
Steve: Everybody gets to vote. Act like everybody matters.
Anne: Except the one guy gets to matter more because of the Supreme Court.
Steve: We've got to fix that by voting. By showing them the error of their ways.
Mack: Which, by the way, which we can. I mean . . . it may not happen now. And we are, I mean, it's true, the United States at the time, it doesn't matter what generation we are, we've got to have it now. It's got to be now. Some things are going to take time, and we have to build.
Steve: Democracy isn't the end game, it's more of the journey. Every single day you have to get out there, participate, and you vote. All the time, every time. And by participating all the time, every time, that's how you affect change. Not in one election, not one time.
Mack: And if you want to be active --
Anne: Well, I'm sold on that. Like, y'all need to vote more than every four years.
Steve: Yes. Yes.
Mack: Yeah.
Steve: You need to vote in every single election.
Mack: Like, in Texas, the quote-unquote “off year elections” are the elections for the frickin' governor, lieutenant governor, attorney criminal general. I'm sorry, just attorney general.
Steve: No, criminal.
Mack: Yeah, I know.
Steve: Oh, I forgot, that's a fun anecdote of the whole Trump's immune thing. He's a criminal. And he can't clear his name in court. So he's a criminal.
Mack: Well, unless the appeal . . .
Anne: Well, unless he becomes president again and then he can pardon himself.
Mack: No, he can’t.
Steve: I mean as far as the insurrection, well, as far as the insurrection --
Mack: If it's a state conviction, he cannot pardon himself. Because a president cannot pardon somebody who has been convicted --
Anne: See that’s hopeful. Why didn’t you start with that?
Mack: I thought we talked about it before.
Steve: It's good to remind us. I just like the fact that he can't --
Anne: I found out Russia is imploding since then.
Mack: Russia's been imploding. They need to, I'm sorry, but they need to implode. We need to do more to help Ukraine. I'm sorry, but we do.
Steve: We do.
Anne: Well, I'm not disagreeing with that.
Mack: And why this isn't fucking clear.
Steve: I don't even know.
Mack: You know, this is . . . Like “Oh no, but this is different.” It’s like . . .
Anne: Well, that's true. If they implode, they can no longer bribe our officials. And then maybe we can get some shit done in our own country.
Steve: See, see . . .
Mack: But that's but a lot is riding on November, not just what happens in this country.
Anne: No, I know.
Steve: Yes.
Mack: Because if we withdraw from NATO, which is what Trump is going to want to do because he wanted to do that the first time.
Steve: For Putin to improve his balance sheet is to take over the rest of Europe.
Mack: Yeah. But it was made tougher by the people of Britain and how they just voted. It was made tougher for Putin by the people of France and how they just voted.
Anne: If they can do it, we can do it.
Mack: And so whatever happens we need to get out there and vote.
Steve: We're different. It's not a one to one. But yes, they showed you get together and you just oppose fascism in whatever its form. Period. That's the vote.
Anne: Here’s to opposing fascism.
Mack: Yeah, fascists can suck it.
Anne: Just like the Suck It Court.
Anne Trominski was born and raised in El Paso, Texas, but now resides in San Antonio. She graduated from Trinity University after majoring in English and Communication. She spends her dull working hours as an editor for a major publishing company and her personal time as an oft-frustrated writer and amateur podcast producer. She has written two yet-to-be published novels, countless reams of heartfelt poetry, and has tried her hand at blogging a few times. Anne is also a gastronomist, amateur chef, and student of health science. She is a constant learner and explorer and likes to drop knowledge on others like it’s hot. Most recently, she helps disseminate social science info through the podcast Civics on the Rocks.
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