Pod Insights 5-4 “The Most Destructive Chief Justice in My Lifetime”: Dissecting John Roberts with Lisa Graves About this episode Rhiannon interviews Lisa Graves – right‑wing influence expert, former Justice Department official, co‑host of Legal AF, and founder of True North Research – about her latest book, Without Precedent: How Chief Justice Roberts and His Accomplices Rewrote the Constitution and Dismantled Our Rights.
Check out Without Precedent here https://www.hachettebookgroup.com/titles/lisa-graves/without-precedent/9781645030676/!
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Transcript Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.
0:00 Speaker 00 I think of John Roberts as certainly the most destructive Chief Justice in my lifetime.
0:09 Speaker 01 Hey, everyone. This is Leon from Prologue Projects. On today's special episode of Five to Four, Rhiannon is interviewing Lisa Graves, an expert on right wing influence and the author of the new book, "Without Precedent: How Chief Justice Roberts and His Accomplices Rewrote the Constitution and Dismantled Our Rights." Rhiannon's conversation with Graves covers Roberts' self-styled image as a legal umpire and all the ways he has eroded longstanding constitutional protections against corruption, disenfranchisement, and executive overreach. Also discussed, what you can do about it. This is Five to Four, a podcast about how much the Supreme Court and Justice Roberts suck.
0:58 Speaker 02 All right. We want to welcome Lisa Graves to the podcast. Lisa is an author and expert on right wing influence on the Supreme Court. She's the founder and executive director of True North Research and is a co-host of Legal AF. She has served as a senior advisor in all three branches of the federal government, including as chief counsel for nominations for the Senate Judiciary Committee for Senator Patrick Leahy. Lisa, this year, has written, published, released a book on Chief Justice John Roberts. It is called "Without Precedent." It is available now. That's what Lisa is here to talk about today. Lisa, welcome to Five to Four.
1:36 Speaker 00 I'm so excited to be here. Thank you so much for having me on.
1:40 Speaker 02 Yay, we're really excited, too. Let's jump in. Let's talk about "Without Precedent." This is a really, I think, powerful... Yes, it's a biography, but this isn't like a Doris Kearns Goodwin biography. I would say this is forceful. This is political. This is a take on the Chief Justice, on John Roberts, on his legacy as Chief Justice. So, you know, listeners of Five to Four obviously know this isn't a Chief Justice John Roberts fan club on this podcast. We talk about John Roberts a lot, his approach to the role of Chief Justice. Tell us a little bit, from your view, from your research and what you've written, who is John Roberts? How does he become John Roberts?
2:22 Speaker 00 Well, thank you so much for your praise of the book. I really appreciate it. I hail from the school of Howard Zinn. He wrote this book called You Can't Be Neutral on a Moving Train. And I always add, this train is moving.
2:34 Speaker 02 Yeah.
2:35 Speaker 00 And so, you know, I don't think that my book is unfair to John Roberts. It tries to describe in detail how we got here, how he got the job of judge on the courts and then on the Supreme Court. I think of John Roberts as certainly the most destructive chief justice in my lifetime. And I think that his actions and decisions make him rival the Chief Justice Toney, who wrote the Dred Scott decision in terms of the destructiveness that John Roberts has unleashed. And he's done so deliberately through the counter constitutional decision to create, invent immunity from criminal prosecution for Donald Trump, through other decisions that we've seen on the shadow docket this past 18, you
3:18 Speaker 00 know, nearly 18 months and more, including specifically this continuing assault on the voting rights that millions of Americans, you know, protested for, that thousands of legislators voted for, and that he, with the stroke of a pen, in the Shelby case, you know, over a decade ago, and now handing that pen like a dagger to Sam Alito, has destroyed key protections of voting rights that the court has no right to destroy. So I think of John Roberts as someone who has been a very skillful, talented advocate for his agenda. And that agenda is the agenda of a Reagan revolutionary, on the far right of the Reagan administration early on, who has used his perch on the bench to advance
4:03 Speaker 00 that agenda patiently, strategically, and to get us to this day where we now have a president who has been endowed with king-like powers by a kingmaker, John Roberts, not a fair umpire, but by someone who has a very rigid perspective of where he wants the law to go, regardless of the consequences to the rest of us.
4:26 Speaker 02 I think this is so powerful. The book is really needed, especially when you compare it to how, you know, all of us went to law school. We know how the Supreme Court is talked about. We know how each chief justice is talked about, especially in terms of like that they sort of lead and they sort of try to hold and sustain the legitimacy of the court, that the chief justice is somebody who, you know, kind of is not a controversial figure in really any way. And, you know, Roberts's image, right? The famous quote that you just referred to, that he's an umpire. He just calls it as he sees it. He says, I don't pitch, I don't bat at his confirmation hearings. So that's the image that like the public gets, right? And so I just think this book is so important in really dismantling
5:10 Speaker 02 that and picking it apart. Was there a moment that interested you specifically in John Roberts? Was there a case? Was there something that happened in the news and you were like, oh, I'm looking into this guy?
5:25 Speaker 00 Well, that's a great question. So I became the chief counsel for nominations for the Senate Judiciary Committee in 2002. I was offered the job in 2001, shortly after Jeffords switched parties and the Democrats gained control of the United States Senate. And as the chief counsel, I had a team. Our job was to analyze the judicial nominees of George W. Bush. I'd actually been involved in the vetting process over at the Justice Department in the Clinton administration. I was a career deputy assistant attorney general, before that, senior counsel and counsel. And in that role, I had worked to help screen potential judicial nominees back then and fight what was happening in the Judiciary Committee, which was an effort to block a number of Clinton nominees for the D.C.
6:08 Speaker 00 Circuit and other courts. So when I came into Senate Judiciary Committee, we, I looked at all of the nominees that were then pending, including John Roberts and Miguel Estrada for the D.C. Circuit. And I particularly took up the evaluation, a reevaluation of John Roberts. And it was clear to me from the beginning that he was sort of like a stealth Robert Bork, Robert Bork without the goatee, you know, without the really aggressive, you know, statements, but he was Someone who had been at the center of key fights against our rights, including civil rights during the Reagan administration, including women's rights and abortion access during the George Herbert Walker Bush administration. Back then, I joked that the best thing that ever happened to John Roberts was that Bill
6:53 Speaker 00 Clinton won and he left the government to go work in the private sector where he worked on what I called back then, a talking points resume. So for every issue that he was going to be terrible at on, you know, environmental issues, abortion issues and more, he would do some sort of pro bono work, one case, or play in a moot court where he pretended to be his mentor, Bill Ringquist, to try to gather support from Democrats for his eventual nomination. Again, he'd been nominated to the DC Circuit by George Herbert Walker Bush and didn't go through. And that was under Joe Biden as the Chair of the Judiciary Committee. That was in an election year in 1992.
7:33 Speaker 00 So when he was renominated as one of the first dozen or so nominees of George W. Bush, he was basically signaled as a key player for them for a potential Supreme Court vacancy. So the more I looked into his background, the more convinced I was that he was their gunner. He was the top person that they were going to try to put forward if there were a Supreme Court vacancy. When the Republicans took control of Congress after those midterms in 2002, he was on the first panel that they sought to move forward. We had been holding him up and blocking him. And I was so concerned about his nomination and his confirmation that I asked my boss if I could ask the Senate leadership to not have a recorded vote on John Roberts because
8:16 Speaker 00 I did not want them locked in to a yes vote on a lower court nominee and then have to face the opportunity of voting for him again in 18 or 24 months or so and justify voting no, which I hope that they would ultimately do and keep him off the Supreme Court.
8:32 Speaker 02 You clocked it. You saw the plotting. You clocked it from the beginning.
8:38 Speaker 00 So that's why I wrote the book, you know, 20 years later, I'm sorry to say that I was right, that he, I, my concern was that he was going to be a disaster for people's rights on the court, that he would use his charisma in a way that his mentor, Bill Rehnquist, was never able to.
8:52 Speaker 02 Or Bork, yeah.
8:53 Speaker 00 Or Bork, to persuade the American people and to persuade us on the court to move this agenda forward and that he would be patient in advancing this destruction. And that's exactly what's happened. So I wanted the book to come out to mark the 20th anniversary of his confirmation and really put in context the destruction that he had been doing and also the destruction that was underway and accelerating under John Roberts, aided by the three Trump appointees who had been handpicked for this role of continuing and expanding this destruction.
9:24 Speaker 02 Let's talk about that destruction then and how Roberts has led this wave of destruction, let's say. I think it's so interesting how you lay out the book, like how the book is presented in the sections. You start with inception, then capture, distortion, control, and domination. So what is John Roberts' approach to power?
9:46 Speaker 00 I think of him as a pretty Machiavellian character. He's someone who was very gifted as an oral advocate. And we saw that during the confirmation hearings with that presentation of that sort of indelible image, which we would now call sticky image, of him as the so-called fair umpire. You know, that was a totally constructed metaphor for him. And he did it in part because George W. Bush had been a, you know, former owner of the Texas Rangers and had wanted to be the head of Major League Baseball. And so he crafted this image for him and that's what helped win him the nomination. But that's not actually who he was then, both actually, but literally and in reality, because.
10:29 Speaker 00 It turned out, when I look back through the records, that a major, like, one of the first big dark money efforts came out to get John Roberts on the court. And they were called Progress for America, sort of another deceptive name. But they had interviewed his coach, and it wasn't his baseball coach because he didn't play baseball. He was described by his coach as a particularly strategic and sort of vicious linebacker, a small linebacker who studied how to defeat his enemy. And that's who we really got on the court. And so I think because of that talent for oral advocacy, for making this presentation, he's presented himself as an institutionalist. He's not an institutionalist.
11:08 Speaker 00 He's someone who has allowed corruption to just cloud this court and obstructed efforts to get reforms, reforms that are mightily needed to protect us against having a court that is taking gifts from billionaires and going on luxury trips with them and have other conflicts. And so I think that his approach to power is one of, like, a chess game. He is mapping out, like, this destruction of the Voting Rights Act that we've just seen in the case in Calais in Louisiana. This is years in the making. And it actually goes back to when he was at the Justice Department, when he got that post that Bill Rink was called and got him at the top of the Justice Department, aiding
11:49 Speaker 00 the Attorney General, Reagan's Attorney General, in trying to block this section, Section 2 of the Voting Rights Act, from considering the effects of changes in voting. And then, fast forward here 40-some years, 45 years, almost, and here is John Roberts using the bench to win what he lost as an advocate. And he knows he lost that. He lost that bid. Reagan signed into law the changes of the Voting Rights Act to fix, to overcome, a decision that Roberts's mentor, Bill Rink, had helped bring forward to block effects. So he knows that he's used this post to do so. And look at what he's done. First, he got Section 4 and 5 of the Voting Rights Act in Shelby to say that you don't
12:33 Speaker 00 need to have preclearance to make changes. Immediately, moments after that decision is announced, numerous And voting are adopted or passed like in Texas. Go forward a couple of years and he's already reworking the rules around redistricting, saying that, you know, federal courts cannot be involved in partisan redistricting. But of course, there's still a bar on racial gerrymandering. Fast forward to a couple of years ago, and he has Alito write the decision saying, oh, no, you can erase black voters from a district. You can bleach them out if your goal is partisan and supposedly not racist, despite the findings of the courts below. And then here we are now where this court is actively aiding
13:17 Speaker 00 in the bleaching out of the Black Caucus in the South. That was obviously going to be the result of the decision they issued in Calais. And he's done this all systematically moving these pieces in place in order to destroy a statute, the Voting Rights Act, that was won through blood and sweat and tears, that was embraced by Republicans and Democrats. It was a bipartisan bill that was renewed over and over. And he's done it arrogantly and deliberately and in a calculated way to decimate those core rights. And so I think of someone in terms of his approach to power as someone who relishes holding that power, is not afraid to use it, but wants to use it strategically.
14:00 Speaker 00 And I think he was disappointed in the abortion case because he wanted to just erode Roe and not provoke a public reaction. His strategy in that instance was to go slow because he knew it was so popular. In this instance, because the power of his party is at stake, he's willing to go as fast as necessary in order to consolidate their power. And so it's very, he's, he's using power very aggressively, like with the immunity decision, literally creating immunity from criminal prosecution for a president, an unconservative, unoriginalist, outrageous counter constitutional act. And yet he has the audacity to state publicly
14:42 Speaker 00 just weeks ago, how dare people think we're political. He is perhaps the most political Chief Justice we've had. You know, ever, but certainly in recent memory. And he's doing it in ways that are changing the structure of our democracy in ways that are illegitimate for a court to do.
14:59 Speaker 02 Yeah, yeah, absolutely. You know, you talk about this calculation within John Roberts. And there is a calculation, you know, you call it an orchestration that's happening external to John Roberts, but he he's a part of this ecosystem. And that's the orchestration of specific and strategic Supreme Court cases getting to the Supreme Court in the first place so that the conservative legal movement can get these wins at the Supreme Court from the federal judiciary that they are not able to attain politically. You give an example, multiple examples. One example our listeners will be familiar with is Loper Bright, the case that, of course, did away with the Chevron doctrine that said courts should defer to federal agencies when
15:41 Speaker 02 agencies are interpreting the power that is given to them by Congress. You know, the John Roberts led conservatives at the Supreme Court doing away with Chevron doctrine in Loper Bright and saying, no, the court actually can step in and define and limit federal agencies and their power to do this. I bring up this example because you don't just talk about the holding in Loper Bright, but you talk about the orchestration that brought Loper Bright and many other cases to the Supreme Court in the first place so that John Roberts can give the argument a big kiss on the lips and the green light and and all of this stuff. And so, again, John Roberts, a calculating person in his own right, but can you talk
16:21 Speaker 02 about his role or his participation or his relationship to the actual case orchestration as well?
16:28 Speaker 00 Yeah, that is a really great question, and there are so many layers to it. And so what you have is a situation in which, just to call back to this period before John Roberts was nominated, there'd been this effort within the federal society, which was led and co-led by Leonard Leo back then and still is co-led by it now, where they wanted, quote, "no more suitors." No more suitors. What does that mean? It means that they thought that they had made a mistake in appointing someone who was going to follow precedent to the Supreme Court, and they didn't want any more suitors. They wanted ringers, people who were going to be on that court and use that power to advance this right wing agenda that the Federal Society was being funded by billionaires
17:11 Speaker 00 like Charles Koch and others to advance. And so when you look at that decision in Loper Bright, the decision to take down the Chevron doctrine, that Chevron doctrine was something that was embraced by a Republican-dominated court in the 1980s for the Reagan administration, to say that it is the job of judges to defer to the agency expertise of these federal agencies on matters unless, you know, certain conditions were met. Because under our governmental system, we have Congress passing statutes that the administration is supposed to execute, and then we have agencies that have developed deep expertise, particularly scientific expertise, that the courts just don't have.
17:55 Speaker 00 And then they propose rules that there's public comment on, based on those scientific findings, for example, and then those rules go into effect. And in this instance, this precedent was at Chevron was around for more than 40 years. But starting in the, you know, about 10 years ago, there was a particularly concerted effort to try to take down Chevron. That was just as, you know, the court's still at a 5-4 majority. Scalia was on the wrong side of this issue, surprisingly, because he had been in the Reagan administration, had had supported this precedent. And a really telling thing happened, which was reported by ProPublica, which is that
18:35 Speaker 00 at right around the time of Scalia's death, you have Justice Thomas going to an all-mens retreat, the Bohemian Club, where he was at this retreat with David Koch, who was then alive. It was at Harlan Crow's, like, perch within that Bohemian Grove meeting, and he was telling the men there that he thought he'd won Scalia over to overturn Chevron. So he's telling billionaires that they were About ready to overturn Chevron, basically.
19:03 Speaker 02 Yeah. Why would that come up in conversation?
19:05 Speaker 00 Yeah, imagine that fireside chat, right?
19:08 Speaker 02 Yeah.
19:09 Speaker 00 So that's happening. And so at that moment, there was a guy who was a law professor. He basically said, there's no way the court is going to be overturning Chevron. It's been cited tens of thousands of times. It helps maintain the consistency of the law. And he didn't say this, but he thought it was impossible. But it wasn't impossible because the right wing legal movement was poised to take advantage of this change. And then when this orchestration happened to block Barack Obama's nominee to the Supreme Court, install Neil Gorsuch, who hails from this same, quote, tradition, to push through Brett Kavanaugh to get Amy Coney Barrett on as people were voting Trump out of office. Suddenly, they really do have the votes to take down Chevron.
19:52 Speaker 00 And so, of course, these groups emerged to make this case, to make these claims. And in the case of Loper Bright, both aspects of that litigation were bankrolled by Charles Koch's fortune. So there were two main cases that were teed up for the court to decide which case to take. Took them both. And the other case was called the Lentless. Both cases were fueled by lawyers where Charles Koch had spent millions of dollars to fund this litigation and presented as fishermen, you know, who didn't want to have a fishing inspector on their boat. But it was really about much more than that. And we know that in part because of the impact of the decision, but in part because Charles Koch's own law firm, Quinn Emanuel, talked about the previous decision,
20:35 Speaker 00 which created the major questions doctrine, which again was funded by Charles Koch, that decision against the EPA, among others. And they talked about how it was a sea change to allow industry to attack any major changes. But they couldn't attack them all. Chevron still, you know, Chevron was still in the books. And so they needed to take down the Chevron doctrine and this deference. And so when we calculated how much money has gone into these, this amicus flutilla, as Senator Whitehouse has described it on the floor and in hearings, it's millions of dollars have gone into building up this network to bring cases to the court. And this court, as you know, and your listeners know, Almost its entire docket is discretionary.
21:18 Speaker 00 Means it doesn't have to take those cases. Supposedly, you know, would take cases where there's a circuit split and has to clarify the law, but that's not what's happening. The Roberts Court is creating a sort of its own legislative agenda on an annual basis of which cases it wants to destroy, which precedents it wants to destroy. And this was a case that it wanted to destroy that precedent. And it, in some ways, that amicus, what I call it kind of an amicus racket, it's not illegal what's happening, but a lot of these law firms are getting very rich, sometimes directly from money from nonprofits. So the billionaire funds the nonprofit, the nonprofit hires the big right wing law firm, the law firm gets paid hundreds of thousands of dollars per brief, they get to declare
22:00 Speaker 00 victory, but when the case is accepted, almost in every instance, they're going to win. So it's sort of a done deal. It's sort of like the fix is already in when they take the case, they have the votes to destroy that precedent. And you can see this play out. So for example, when Scalia died, there was a case pending before the Supreme Court. It was called Friedrichs versus California. It was an attack on labor rights and it resulted in a four to four decision. So it meant that the court did not overturn the 37 or so years of the abud precedent, which allowed unions to negotiate for all the workers in the workplace and not have free riders who would benefit from being part of those benefits and wages without paying any fees. And so the court rules, there's, you know, four, four decision.
22:46 Speaker 00 So that like a year later, they take up another case that was just conveniently in the wings, waiting to come forward, um, the Janus case, and which then by the time Gorsuch was confirmed, they had the fifth vote to destroy almost 40 years of legal precedent protecting those union rights and, and the power of unions. So they just waited till the next time so they could take that case up again. You see that in front of action. At certain point, they don't have the votes to do it. So they wait, wait, wait until they have the votes and they take it up. And then that time when they have the votes, they take out affirmative action in college admissions. And the related point is when John Roberts was trying, in my view, to stop the United States Senate from subpoenaing Harlan Crowe and Leonard Leo,
23:27 Speaker 00 investigating what the newspapers, what ProPublica and others had uncovered about the gift to Clarence Thomas, Roberts announced on the eve of that subpoena vote, this was just a few years ago, oh, no, no, there is a ethics code for the court. And all the justices have signed it and said that they comply with it, which is absurd, given the fact that if that's what it means, it allows Clarence Thomas to take all these gifts.
23:50 Speaker 02 Right.
23:50 Speaker 00 But when you read that code, it's lower. It sets a lower standard than for all the other federal judges in the entire country, including a provision in there that says that they can sit on a case, even if they have a conflict, if the vote is needed to resolve it. And so I don't, there's no exception for that in the rest of the world. Like, oh, you have a huge conflict.
24:10 Speaker 02 So if you have a particular incentive to decide one way or another on a case, then you can be and should be the deciding vote, actually.
24:18 Speaker 00 Yeah.
24:19 Speaker 02 Yeah.
24:19 Speaker 00 Versus just leaving the law as it is. And so I think that's a big tell of John Roberts and his agenda. And you saw that look in the Trump cases, where Clarence Thomas clearly had a conflict. His wife was actively trying to subvert the election. She wrote emails to legislators in Arizona and Wisconsin to try to get them to appoint fake electors, you know, so-called alternative electors. And he still allowed Thomases in the case. Similarly with Alito, he needed their votes to secure the results that he wanted on immunity and the other issues for Trump. And so we have this completely ridiculous, unenforceable ethics code that even if it were enforceable, which it's not, it sets a standard that's absurd in terms of conflict.
25:07 Speaker 02 Let's talk about conflict and John Roberts' relationship, let's say, to corruption. You know, you just mentioned that nonprofits and certainly lawyers, they stand to benefit very much from participation in this ecosystem. They stand to make lots and lots of money. And it turns out conservative Supreme Court justices. Also stand to benefit in lots of ways, even though maybe it's not their actual salary. But you say in the book on corruption, you say through action and inaction, Roberts has allowed a culture of corruption to run rampant. And of course, we know about the gift scandals, Clarence Thomas, as you said, trips to Bohemian Grove, hanging out with billionaire Harlan Crowe,
25:52 Speaker 02 Sam Alito also, their corruption and gifts from billionaires, controversies around Alito. So can you talk about how has Roberts allowed this culture of corruption to run rampant?
26:06 Speaker 00 Well, so when I was on the Judiciary Committee back in the early 2000s, and then my colleagues, some of whom stayed on the committee, continued to work not just on nominations, but on court reform, basically. And at that period, which was to try to get an ethics code for the Supreme Court, because the Code of Conduct for US judges only applies to the circuit and district court judges. And also to try to get some disclosure of the types of junkets that some judges were participating in, these little trips where they go out to, you know, corporate funded or other secretly funded events and get taught about how to rule on cases. So that effort was ongoing throughout the early 2000s into the mid 2000s. And every time Congress was thinking about, talking about the possibility of having an ethics code,
26:51 Speaker 00 basically John Roberts would try to stop that. He opposed that and he asserted that the court cannot be held to an ethics code, that Congress doesn't have the power to pass an ethics code under his assertion of separation of powers. And yet, these justices every year certify that they are complying with the Ethics in Government Act, you know, from 1977, 78, that requires them to provide financial disclosures. They certify that it's accurate what they're filing. But he's in essence suggested that they're not bound by any rules except for their own. That's really extraordinary. When you look at the court, Congress clearly has the power in Article 3 to decide the size of the court, decide the jurisdiction of the court.
27:36 Speaker 00 To create the lower courts, it was Congress that set the number of justices on the Supreme Court. It was Congress that created the Judicial Conference that is the internal body that helps the court create rules. And so you have this person now at the helm of the entire judicial system that is basically asserting that Congress's laws don't apply to it, that it cannot impose an ethics code that would prevent this sort of corruption, this sort of ridiculous claims by Alito, that he was just happened to be going in the same direction on the private jet with Paul Singer to a resort where they were going to hang out together. It was a trip for them and he could just take the private jet trip to Alaska
28:19 Speaker 00 worth tens of thousands of dollars because Singer had an empty seat for him. He had a seat for him, you know?
28:27 Speaker 02 Yeah, it was reserved. It was a reserved seat for him.
28:31 Speaker 00 Just happened to be going in the same direction. You know, and so you have this situation in which John Roberts has not responded to these scandals. Now, look what happened when the Dobbs leak happened. Suddenly, he was engaged in an investigation, hiring investigators to go find out who leaked it. Of course, he didn't have his fellow justices testify basically under oath. Unlike the staff, the spouses and justices should have been subject to those same standards where they would be committing perjury if they lied about it. That leak was, in my view, clearly from the right. It was designed to try to lock in that reversal, right? It wasn't from the left, but John Roberts sprang into action about this leak, outraged about this leak.
29:13 Speaker 00 But where was his outrage about the corruption, these corruption scandals? He has been party to it because he needs their votes. He wants this solid right wing majority, super majority, to be able to advance this agenda. He doesn't want anything that would, he can't, you know, doesn't want to confirm anything that would undermine the credibility of the court. But the American people get it. The court's public approval ratings have been falling dramatically over these past three, four, five years with these ethics scandals and these extreme decisions that people increasingly now recognize how out of control the court is. And so John Roberts has been really... Instrumental in impeding these efforts to hold the court accountable and have, you know, reasonable rules that apply to all other judges.
29:58 Speaker 00 But beyond that, John Roberts has been a key sort of actor in himself, directing himself, in essence, to convey to the American people the lie that this court is not political, that this court is just hauling balls and strikes. Yeah. Or, you know, as Gorsuch went on the air about a month ago, saying, oh, you know, we're, we're just, you know, trying our best to interpret what the Constitution says. Well, the Constitution, for example, says nothing about immunity from criminal prosecution for a president. It specifically provides immunity for members of Congress on the floor, the speech and debate clause, that they cannot be sued for their statements on the floor. So the founders and framers knew how to create immunity if they wanted to. They did not create immunity for a president because that makes a president like a king.
30:42 Speaker 00 And in fact, the Constitution specifically says that the job of a president is to faithfully execute the law. Nothing could be less faithful than breaking the law. And yet, John Roberts and his cohorts, these Republican appointees, moved this immunity decision forward despite the evidence that Donald Trump had sought to subvert an entire presidential election. They created this for him, to basically pardon him. And they issued that decision in the summer before presidential election where they basically signaled to some subset of the American people that Donald Trump could do no wrong and did no wrong. But it's worse than that because in that opinion, if you read it closely, John Roberts asserts
31:26 Speaker 00 that Donald Trump and any president cannot be held criminally accountable or accountable by any court or by Congress for the use of the pardon power as an official act. And so he basically was saying that the president can be a criminal, can, can, can be engaged in criminal activity without consequence, and he can pardon anyone at any time for any reason, including his co-conspirators, basically, which is what Donald Trump did when he pardoned the January 6 folks. And now the Justice Department is in the, in the midst of trying to get a slush fund To enrich those individuals who attacked our capital and attacked our democracy. And John Roberts asserted that the pardon power was beyond review.
32:10 Speaker 00 Now, the reality is, is that hasn't actually been tested in the law. And if anything, these pardons by Donald Trump suggests that we really do need to visit this question and say, there should be rules. You shouldn't be able to make a corrupt pardon. You shouldn't be able to pardon people who fund your party or your family. You shouldn't be able to pardon people who are unequivocally guilty of defrauding the American people and try to bar the American people from getting reparations for their harm from fraud. But Donald Trump is acting as if he is above the law in many ways. And that's because John Roberts helped make it so. And so when I think of corruption in the broad sense, not necessarily in the legal
32:50 Speaker 00 bribery sense, that is just a manifestly, in my view, morally corrupt act to use the power of the court to alter our constitution in such a dramatic way in order to give someone uncheckable power to engage in criminal activity through official acts that could be war crimes in terms of what's happening abroad, unauthorized actions, targeting civilians on boats, et cetera. Like there, and domestically, what has been unleashed in terms of the sieges of our cities and people being attacked, even the White House for a moment claiming that there's unlimited immunity for people who harm citizens who are protesting ICE in Minneapolis.
33:30 Speaker 00 This lawlessness, these eruptions of lawlessness that we're seeing have a direct line to John Roberts' use of the judicial office to give Donald Trump powers that no president has ever had and to try to put those powers beyond the reach of the law of Congress and the courts.
34:07 Speaker 02 We get this question a lot, Lisa, from listeners. When we travel and talk at various law schools, I would say we almost always in a Q and A get a question like this, which is, do you think John Roberts, when he is writing a majority opinion, do you think that John Roberts is being sincere about his view on the law? Because somebody looking at it, if you're, you know, if you have four brain cells, this is ridiculous. The immunity decision on the law on its face, these decisions are ridiculous on the Constitution and the way things have been interpreted for decades, right? This is ridiculous.
34:50 Speaker 02 Do you think John Roberts is sincere in his view on the law, believes that he is making sound legal decisions? Or is this actually a pretty bad faith actor?
35:04 Speaker 00 Hmm. I have a couple of thoughts about this. One, just generally my view, and I get this question in other settings as well with my work on billionaires and some of these operations, these groups that they have put forward to destroy people's rights. So on the one hand, I don't care how sincere they may be if they have their boot on your neck.
35:26 Speaker 02 Yes.
35:27 Speaker 00 Like sincerity actually probably makes it worse.
35:28 Speaker 02 Yes.
35:29 Speaker 00 Not like, you know, I get out of jail free, oh, I sincerely am a racist and so I get to be racist and so like, forgive me my sincerity. So there's that part of it that I just want to say out loud. In terms of, you know, John Roberts' actions, I think there's, there are two sort of components of it that are worth considering. One is, I think he is in fact, a right wing revolutionary, a radical Republican, you know, Reagan revolutionary from that period. And he's sort of baked in that way. Like, it's surprising to me in some ways that he had such hardened views as a young man and he has not let them go. He's just sort of used his power to make them law.
36:13 Speaker 00 And that shows a sort of sincerity in terms of a devotion to that agenda. But that's precisely the type of person who shouldn't become a federal judge, shouldn't be a federal judge. Because the reason we have judges in our legal system is because We need people who will fairly decide things like Solomon, you know, like the kind of archetypical historical notion of a judge. They're supposed to set aside their personal political views in order to try to follow the law faithfully and to apply it fairly to the parties. And instead, you have someone at the helm who sort of posed as this umpire, but he's really a player. And that's why he was chosen. That's why he was confirmed. And that's what he's using the bench to do.
36:58 Speaker 00 And so there's a sincerity in that. That is not something that sort of immunizes his culpability. Yeah. But there's also a component that is insincere. And the insincere part is the way this court is routinely lying about the law and the facts. And there are two other components. So one is this court has set aside detailed factual findings by judges below in these voting rights cases and other cases, where the job of the Supreme Court typically is not as a fact finder, although it can find facts. But it's supposed to, under our legal system, defer to the fact finders below, who listen to witnesses, assess credibility based on temperament and the presentation, the cross-examination. And unless there's clear error in those facts,
37:43 Speaker 00 the court is supposed to defer to those facts and then apply those facts to the law. But over and over again, we see this Roberts Court just ignoring the factual findings below because they're in the way of their legal agenda, their agenda, not meaning a lawful agenda, but their agenda for the law. Yeah. And the other part of that is how the insincerity is just the complete illusion and fabrication of this notion of this pure originalism. It is absolutely destroyed by this immunity decision. That decision was the antithesis of anything that someone could be, could call originalist in terms of reading the Constitution for the language that it has.
38:24 Speaker 00 But more than that, you have a court that is engaged in a kind of judicial supremacy. To try to assert that it can set aside these findings in Congress on the Voting Rights Act. That's what John Roberts did in Shelby. With the stroke of a pen, he just says, things have changed, even though Congress, just a few years earlier, had made detailed factual findings for why we needed those preclearance provisions, for the very reasons that we saw happen after John Roberts issued the decision that these jurisdictions would go about making it harder for Americans to vote, in particular, for Black Americans to vote, and have their votes be meaningful. And so you have a court that is both distorting the facts and the law. And also, in this notion of that Roberts asserted of he's this institutionalist,
39:09 Speaker 00 and he's going to be a modest judge, and not be an activist dispersion that they were casting on people who dared to read the court to borrow racial segregation, or have lawyers assigned under our constitution, you know, this attack on the Warren Court. You have John Roberts basically usurping congressional power. Having a court say it's not going to defer to these factual findings of Congress. And like with Chevron that you mentioned earlier, having courts believe with sort of an arrogance and hubris, that they have more expertise than these agency scientists who spent years investigating matters and getting public support for their actions for these regulations. The arrogance and
39:50 Speaker 00 hubris of John Roberts, that may be sincere. Like, he may be sincerely arrogant, but the arrogance is manifesting in a way that is deeply destructive to the actual checks and balances in our government, and to the actual proper role of judges in our society. And this damage to the congressional power is particularly troubling, sincere though it may be, because Congress, they are the people's representatives. And to deny us the power to have Congress, you know, write these rules to protect voting rights, and have those be respected by the court unless they really are an outlier. The notion that
40:31 Speaker 00 somehow, for 60 some years, we got it wrong on the Voting Rights Act, that there was some sort of little escape hole that if- If blacks mostly voted Democratic, you could just target Democrats and pretend like this wasn't, didn't have any racial effect and nullification. Like, this is, it is, in my view, obscene because it is in such defiance of the longstanding precedent of the 20th century of the court in interpreting the 14th amendment and the 15th amendment. And it is obscene in the sense of having unelected judges act so arrogantly that they think that it's their role to restructure our voting system to prevent people's votes
41:14 Speaker 00 from being diluted, which was the part of the, you know, massive purpose of the Voting Rights Act was to prevent this very thing. And so I think, like, so that was a long answer to your question about sincerity, but that's my sincere answer.
41:28 Speaker 02 Yes. No, it's perfect. And it's often what we say, like, it kinda doesn't matter. If there's a modicum or a thread or a theme of sincerity or a genuineness to any of this sincerity here, it's destructive at the end of the day. It's damaging. It's dangerous.
41:44 Speaker 00 Yeah.
41:44 Speaker 02 Understanding it that way, I think, is much more important than like, well, is he being for real or is he kinda lying, you know?
41:51 Speaker 00 Yeah.
41:52 Speaker 02 You have this, again, long career of having been involved at high levels in the federal government and working with the Democratic Party. And I guess what I'm saying is, like, you don't talk like an institutionalist. It doesn't feel like people who have had long careers working for folks, you know, working for Democratic politicians, et cetera, working in the federal government. It doesn't feel right now that they criticize the institutions like this. It doesn't feel like they are coming out with this kind of full-throated criticism and, again, political takes, like you are.
42:35 Speaker 02 And I just wonder how you think about, like, your role in the system and how you Are so critical. In what I'm saying is like a pot, this is a huge compliment, right? Like, and what I'm saying is a really important way that I wish more people were doing.
42:53 Speaker 00 Well, I haven't worked for the Democratic Party. Occasionally, I have volunteered for GOTV or election protection stuff. And I occasionally give a speech in my personal capacity to a party group. But I have voted Democratic and certainly have voted against Donald Trump and for Democratic candidates for president in the primaries and the general. So that's my personal perspective. But I also think that, you know, one of the things that I observed back in the Clinton administration, when I was a career appointee, stayed for a bit to advise John Ashcroft, the first Attorney General for George W. Bush, before leaving to go to the courts and then ultimately go to work with Senator Leahy, who was a Democrat elected from Vermont.
43:37 Speaker 00 What I observed was that the right wing movement in the country was treating the courts like players on a chessboard. So, you know, Reagan, I used to call it Reagan, Reagan, Bush. There was this effort to have litmus tests about abortion in particular and other issues as a test for whether someone would get a nomination to the Supreme Court or other courts. It wasn't a very sort of effective test. In essence, they got some people on the courts who were anti-abortion, but were not part of the broader sort of right wing infrastructure agenda. But after Reagan, Reagan, Bush, when Clinton came in, he sort of said, no, that was wrong to have these litmus tests. We're not going to have them.
44:19 Speaker 00 And then he, he eventually started facing a Republican enrolled Senate, which was blocking anyone who had any progressive credentials, basically, for the bench. They blocked a judge on the Ninth Circuit named Richard Paez for, I think, 1,532 days. He had dared to work for legal services as a young man, and they did not want him on the Ninth Circuit. So Clinton ended up appointing a bunch of federal prosecutors and big firm partners, didn't go and appoint a counterweight to 12 years of Reagan, Reagan, Bush. And, you know, I think the notion was judges should be fair. We shouldn't be appointing extremists. We should be appointing moderate people who are going to be fair. And that was their view of the federal prosecutors and big firm partners.
45:03 Speaker 00 You know, personally, I think that was not the right call, although I was involved in the vetting in that process. I think that we needed to have a counterweight to what was happening. But there has been this discomfort in terms of the right wing really actively pursuing this effort to capture the court and put people who are super young and devoted to this extreme agenda on the court. And you've had for most of this, you know, 40 years, Democrats appointing people who are much later in their career, who've been, you know, big firm partners, who defended a bunch of corporations, or been prosecutors, not public defenders, or not public interest group leaders and the like. And the two
45:43 Speaker 00 parties have been playing in two entirely different games, basically. And the effect is that the right wing has captured the courts. And they did so in order, as you said at the outset, to accomplish things that they could not accomplish with the vote, that they did not have the votes to do, like overturn abortion, or, you know, block voting rights and the like. And so you have, only in recent years, for example, the Biden appointees, you have this broadening of the perspective of people being put on the bench, that you need to have a broader perspective. Even within that perspective, the objective has not been to put ringers on the bench, but to put people who they think will be fair. And I can tell you, looking at these Trump appointees, they are not appointed to be
46:28 Speaker 00 fair. They are appointed to advance this agenda. And they, right now, in this second term, will not, and cannot even admit that Joe Biden actually won the presidency. They will only admit that he was certified the president in 20, you know, 2021, because they're so devoted to this MAGA agenda. And so to the question of the, you know, criticizing the institution, you know, I believe in having a fair Supreme Court. I think we had a fair Supreme Court under Earl Warren, who was trying his best to interpret the law as it was written, equal protection of the law, right to counsel, you know, no establishment of religion. But that was attacked by this right wing movement, similarly to this attack on government.
47:12 Speaker 00 On the New Deal, on having these agencies. And so we're in a situation in which there was very significant reluctance to criticize the court as an institution. That's in part because there's so much investment in litigation to try to protect us. And the lower courts are, for the most part, with the exception of some Trump judges, holding the line in following precedent. So people don't want to criticize sort of what they perceive is the only check left, the court. But the reality is, is that this court, the Roberts Court, is out of control. It's not acting like a court. It's acting like a partisan weapon of Donald Trump with few exceptions, where the business
47:54 Speaker 00 community dissents, like with tariffs and the plain language of the Constitution makes clear. And so I feel like there's a moral imperative to speak clearly about the court, that it's not an institution that we can defend in the way that it's acting, because it's acting in a way that is deeply destructive of our rights. And although I have been alone or like one of the few voices in the wind early on in making this criticism, more and more people are coming on board to recognize that the Roberts Court is on a path of destruction. And unless and until we reform it and limit its ability to damage our rights, it is going to continue to dismantle our rights.
48:41 Speaker 02 All right, Lisa, we also get this question all the time. What can be done? What is there to do about a Chief Justice John Roberts, about a Supreme Court that is acting this way?
48:54 Speaker 00 Well, I didn't mean to tee up that question. I didn't know you were going to ask it at the end, but I'm delighted to answer it because there's a lot of reasons to be hopeful despite what's happening, despite this destructive ruling in Calais and the related rulings around Tennessee and Virginia and the like. What's happening is more and more people understand that this court has to be reformed. And it's not just ethics reform, although that's necessary. If we are going to pass a John Lewis, a Voting Rights Amendment or restoration- Act, we need to limit the ability of this court to destroy it because John Roberts has shown quite clearly that they will reinterpret the law like blue is pink or whatever, you know, just in order to advance this agenda. We've seen this time and time again. And the
49:38 Speaker 00 Constitution, specifically in Article three, says that Congress can set limits on the jurisdiction of the court. And I think we have to consider that. As my colleague Alex Aronson over court accountability, you know, he said, like, if you think about the Star Wars analogy, you can't reform the Death Star. You know, you have to actually address what the Death Star is doing. You can't just send in your emissaries to be like, please, Death Star, have an ethics code, you know. But we do need an ethics code, right? We do need to have an enforceable ethics code. We do need to have term limits. And I think we need term limits up and down the judiciary so that people aren't gaming these circuits, so that Republicans replace Republicans. And they, once they've gained control of a majority of a circuit, they hold it forever and ever.
50:20 Speaker 02 Yes.
50:21 Speaker 00 You know, people should not be able to pull that trigger to advantage their party. We should have those rules in place. But we also need substantive changes. We need rules that apply to disclosures of where the spouses and the kids of the justices are working, who's paying their salary, whether there are any conflicts there. But we substantially need changes in addressing the jurisdiction of the court, particularly on voting rights and other issues where, like climate change, this court has sought to put its hand on the scale of justice to block our ability as a nation to mitigate climate change. It knows in a real politics way that with the filibuster in the Senate, that the Republicans who are
51:06 Speaker 00 fossil fuel funded will stop any really meaningful climate change legislation from going forward, despite what we saw with Biden's effort to get investments in renewables. Then we saw Trump claw those back to basically stop those renewable investments. The only way we can really move forward on climate change, for example, is by having agencies. That can use the laws on the books in order to try to mitigate the climate changes that are underway. And that's the very thing this court has claimed the agencies cannot do, that only Congress can do. And that means the Senate, which is now more and more anti-majoritarian, where we know Wyoming has as much say as California despite having
51:46 Speaker 00 so many fewer voters. So the Senate is a problem for having progressive reform in almost every way. And so the Senate has to be reformed, too. So what can people do? Support the reforms, call for the reforms. The other side is counting on us thinking it's hopeless, thinking that we can't change it, that we're just stuck. But we're not stuck. And certainly, the right wing doesn't ever think that it's stuck. It has such a bold and regressive agenda for us. If we do not counter it, they are going to prevail and turn America into a further dystopian situation for most of the people living here, including for our liberties. And so I think we have no choice but to embrace reform and to say,
52:29 Speaker 00 if you want voting rights restored, you need to reform the court. If you want abortion access to be protected at federal level, you have to reform the court. If you want to do something about climate change for real, you need to reform the court with that. And call your members of Congress, call your senators, demand that they support meaningful, real, bold, robust court reform, along with the robust changes we need to help our economy thrive, to protect our families and to protect our liberties from not just a president who's out of control, but from a court that has acted like the kingmaker and his furthering, this decimation of our, you know, American society in the 21st century and try to drag
53:09 Speaker 00 us back to that robber baron era that was so hard for the vast majority of Americans.
53:16 Speaker 02 What are three adjectives you would use to describe John Roberts' legacy? And if you want to cuss, that's okay.
53:26 Speaker 00 Okay, three adjectives. I would say destructive, arrogant, and illegitimate.
53:35 Speaker 02 Beautiful. Lisa Graves, thank you so much for joining us. We really appreciate your time.
53:40 Speaker 00 Oh, my goodness. It's been an honor to be on with you and have the chance to talk with you and your audience. Thank you so much for inviting me.
53:52 Michael Liroff? Five to Four is presented by Prolog Projects. This episode was produced by Alison Rogers. Leon Nafok provides editorial support. Our website was designed by Peter Murray. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.
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