51. Revisiting the American Terrorism of 2021: A Year In Review (with Russ Feingold, Dahlia Lithwick, Joan Biskupic and Dr. George Woods)

With Guests:

  • Joan Biskupic, lawyer and journalist. Currently, she serves as a Supreme Court analyst with CNN. Biskupic has covered the Supreme Court for 25 years and is the author of several books on the judiciary and justices of the Supreme Court, including The Chief: The Life and Turbulent Times of Chief Justice John Roberts. She’s previously worked for Reuters, the Washington Post and USA Today.
  • Senator Russ Feingold is the president of the American Constitution Society. He served in the U.S. Senate as an elected member from Wisconsin from 1993 to 2011. Prior to that, he served as a state senator. Feingold is also the author of While America Sleeps: A Wake-Up Call for the Post-9/11 Era, and contributes regularly to various publications, appearing frequently on MSNBC and CNN.
  • Dahlia Lithwick, lawyer, writer and journalist. She is a contributing editor at Newsweek and a senior editor at Slate. Lithwick hosts the popular podcast “Amicus.”
  • Dr. George Woods, MD, president of the International Academy of Law and Mental Health. Woods also teaches on the faculty at the University of California, Berkeley Law School. His practice focuses on neurodevelopmental disorders, cognitive impairments secondary to neuropsychiatric disorders, traumatic brain injury, ethnopsychopharmacology and workplace safety. In addition to his clinical practice, Woods consults around the world with legal teams dealing with complex criminal and civil litigation.

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In this Episode:

In this episode, we’re bidding farewell to 2021 and hello to 2022 with our annual year in review episode!  It’s been just over a year since armed insurrectionists stormed the U.S. Capitol on January 6, 2021, in an effort to stop the certification of Joe Biden’s 2020 presidential win. In the year since, what have we learned about the attack, and what it says about the current state of American democracy?  It’s also been a year of public health crises, political crises, and more—and we’re going to be breaking it all down.

Have a topic you’d like us to delve into, a guest recommendationor just want to say hi? Drop us a line at ontheissues@msmagazine.com.

Background Reading:

Transcript:

Michele Goodwin: 

Welcome to “On the Issues” with Michele Goodwin at Ms. magazine. This is a show where you know we report rebel and tell it just like it is. On this show, we center your concerns about rebuilding our nation, and advancing the promise of equality. So I’m so happy that you’re joining us today as we tackle compelling issues of our time. 

We talk about history mattering on the show, and it does. So on today’s show, we’re bidding farewell to 2021 and hello to 2022 with our annual year in review episode, and we’re going to jump right to it. There is much for us to think about in terms of the legitimacy of our democracy, the storming of the Capitol and insurrection on January 6, 2021. And what lies ahead for 2022. 

And joining us for this episode, our very special guests, I’m joined by Joan Biskupic. As you know, Joan is a legal analyst with CNN, who’s covered the Supreme Court for more than 25 years, and has written compelling works about the justices.

We’re joined by Dr. George Woods. He is a neuropsychiatrist and the president of the International Academy of Law and Mental Health. He’s going to help us unpack just what the psychological state of our nation happens to be.

And we’re joined by Dahlia Lithwick, who is a lawyer, writer and journalist who writes about the courts and law for Slate.

And rounding us out is Senator Russ Feingold, who’s the president of the American Constitution Society and a former U.S. senator from the state of Wisconsin.

I couldn’t be more pleased than to have these guests join me today. Joan, I want to start with you. We are a year after the insurrection. The legitimacy of the 2020 election is still being interrogated and challenged by many across the country. So I want to start with you. What have we learned about the insurrection exactly a year after it has happened? And are you worried about something like it happening again?

00:00:32 Joan Biskupic:

Good to see you, Michele, and good to be with everyone, even though we’re on such a momentous, still-tragic day in our lives. Yes. Yes, it doesn’t seem like anything has eased. I’m reminded, of course, of how fragile everything feels still. There’s no guarantee of justice. So much intersects with where the Supreme Court itself has been. Some of the, you know, the justices were in their chambers around that time. They had told their staff to go home, but some had been working, and you know, the Capitol itself is just within their sight.

So, this is something that happened a year ago, that intersects so much with where we’re at with the Supreme Court, and just on Wednesday, we heard Attorney General Merrick Garland link some of what was happening on January 6 of last year with other themes involving the Voting Rights Act, and where the Supreme Court has been on voting rights. And I don’t think we can disentangle this moment in the nation’s Capitol with what has been happening across the street at the Supreme Court. 

Trump supporters clash with police and security forces as people try to storm the U.S. Capitol in Washington D.C on January 6, 2021. (Brent Stirton / Getty Images)

So, I would just say that everything has only grown more, weightier in my concept of the Court. Just finally, on a personal note, I’ve been covering the Supreme Court for nearly 30 years now, you know, dating back to the 1990s, for the Washington Post, and I used to like, Michele, to do slice-of-Court-life stories. You know, looking at the Court in such a broad way, about some of the Court culture and operations. I just can’t get my mind around those kinds of stories anymore.

Everything seems so weighty, and consequential, just because of the democracy-in-peril themes that we have seen before [January] 6, but especially after [January] 6, and I’m glad to be with everyone today.

00:02:32 Michele Goodwin: 

You’ve really set the tone for the conversation that we’re having. I want to add another question to that for you, Joan, and that is, to what extent, as we’re beginning to learn that some people may have had some sense of what was going to happen, I mean, what’s your sense of how we disentangle that? I mean, the commission’s still going on. There are still investigations taking place, but I’m wondering to what extent some members of Congress actually understood what that day, that horrific day, was going to turn into.

00:03:04 Joan Biskupic:

Well, that’s exactly what the select committee is looking at, and I think they’re, from the reports that have come out from members of the committee, and from people who have testified before the committee, I think there are plenty of links, plenty of important figures in Washington and beyond who hold some responsibility. Some of us might’ve just caught some of President Joe Biden’s speech this morning about holding Donald Trump accountable, and how much he was responsible for this, but it certainly goes down to other members of Congress, potentially.

And again, not to make too much of the connection to the Supreme Court, but of all the visuals we saw that day, some of us, you know, still remember Senator Josh Hawley, a former law clerk himself, raising his fist in support to some of the people who had come to the Capitol. And of course, you know, he said he wasn’t looking for violence, but it just shows how much what happened a year ago today was prompted by people who are in very crucial, important positions in government today.

00:04:16 Michele Goodwin: 

So in many ways, this is the point. This is what is also deeply concerning, which is that there’s a government sanctioned vigilantism that some are suggesting is what these times represent and Dahlia, you were writing in Slate very recently that whether it’s QAnon and imperative for them to mistrust anything you haven’t researched yourself, this is what you were writing, or the Trumpist insistence that anyone saying anything you dislike must be a liar. The systematic shredding of realistic touchstones opens the door to believing anything and everything in order to be a part of something. And that’s what you wrote in Slate very recently. And can you unpack that for our audience?

A QAnon follower at a pro-Trump rally in D.C., November 2020. (Geoff Livingston / Flickr)

00:05:03 Dahlia Lithwick :

Well, first of all, Michele, thank you for inviting me on this unbelievable panel. This is like a dream team, and while it’s very depressing to be sitting together on the anniversary of January 6, in some sense, there’s no one I’d rather be sitting with. Yeah, I mean, I was trying to pull out a theme that is very in line with what Joan just raised, which is the connection between some of what we’re seeing from the Supreme Court and what we are seeing in the general populace and the discourse.

And one of the things that I’m worried about, as you said, is the rise of vigilantism, the rise of do-your-own-research, the rise of the idea that, and you know, we can locate it in S.B. 8, the Texas abortion bill, which gives bounties to people for being vigilantes. We can locate it in some of the stand-your-ground and castle laws, and the idea that you can be your own police department if you believe that you can shoot into a crowd of racial justice protesters, and then a jury can, in fact, find that that was a lawful act, then we are really seeing a massive, I think, chilling uptick in an America in which taking the law into your own hands seems like a viable option.

And you know this better than anyone, Michele, we’ve talked about this before. You know, there’s a long racial history of that. In fact, that’s the basic policing structure in America, is predicated on the idea that folks can take the law into their own hands, as long as they’re white and the folks that they are hunting down are Black. But we have really seen, I think, the Court colluding in some of that, not least of which is blessing S.B. 8 and having no problem with a law that is essentially a vigilante bill. 

And then further, I think, really, some of the discourse that we heard in the guns case, in the Second Amendment case, Bruen, earlier this term, which I flagged in this piece, really felt like some of the conservative wing of the Court was saying, hey, why shouldn’t you have a gun on the New York City subway? How come all the bad guys get guns? And maybe it’s a fair or just world if you, too, can carry a gun, without thinking through what it signals when the Court says, every man is a law unto himself going forward.

And so, I think one of the things that for me makes that … I’m looking at your face, and you’re looking quite dour, but I would add this. What makes it even scarier, not just that this is trending, right, we’re seeing elections law that allows people to go out and enforce election. We’re seeing states passing laws that say you can run into a protester with your car. So, this is happening everywhere, this sort of greenlighting of the citizen as law unto his or herself, but I think what scares me the most is the nut of your question, Michele, which is, that coupled with, find your own information.

Make your own determination. The media is not to be trusted. And so, it’s not just a lack of trust in institutions, whether it’s the police department, or your state voter machinery, that in addition to that, you just make your own call, because nobody can trust the news. And so, if you decide that the police are just not doing a good job in Kenosha, then arm up with a weapon of war and go enforce it. And I think the thing that I’m afraid of is this unholy trifecta of lack of trust in institutions, really states rewarding vigilantism, and then this third piece of it, which is, you just can’t trust any information.

And so, if you know a guy who says that X is happening, then that’s good enough to take a gun to the Capitol, and that trifecta in every single way, I think, has worsened in the year since January 6.

00:09:16 Michele Goodwin: 

And it’s a racialized story too, isn’t it? Because it’s hard to imagine that if these had been Black and brown people storming the Capitol, threatening the safety, health and well-being of elected members of Congress, or who were chanting, making death threats and chants against Capitol security and police officers whose actions would result in the harming the maiming the death of officers, who would desecrate what are considered venerated halls in our nation’s Capitol, it’s hard to imagine that the response would be the same if they were Black and brown. 

And as some people are speculating, can you imagine if there were a handful of people who had a background that was Islamic, they were Muslim, if the response would be the same? Might we be framing it in ways in which it’s not this side or that side? But a very clear focus about our democracy is something that together we can see as important and that it was threatened on January 6, 2021. 

But Russ, this brings me to you, you were a senator. You’re from the state of Wisconsin, you were a state senator. And then after that, a very important senator, to our national legislature. And in fact, the work that you did was very important to our democracy, including around protecting voting rights. So Russ, I’d like to know from you, whether you see this as a backsliding in our democracy, the times that we’re in now, and I’ll just say, there are international organizations that are suggesting that the United States is in a tailspin with its democracy. Are they overstating the case?

00:10:46 Russ Feingold:

I don’t think there’s any question, Michele, that this is an example of a democracy that is backsliding, and you know, I’m the kind of person that sort of says, well, you know, we’ve seen these things before, but you know what, this really strikes me as different, and much more disturbing. You know, you had Charles Fried writing the other day, a conservative, he had seen this quote before, referring obviously to Europe, and the Nazis. That’s a comparison that many people are very careful not to do.

But at some point, you begin to see similarities in fascist and authoritarian tactics that can’t be ignored. So, for me, and I actually find it, not only is it fun to be with these other people on this call, but comforting to hear Joan and Dahlia’s comments, because we do need to recognize that this day, when you hear January 6, it’s chilling. It’s chilling to hear the date. For those of us that lived through the Kennedy assassination, November 22, permanently a date you can’t hear without having a very disturbed and upset feeling.

And yes, there is a nexus between the damage to democracy and what’s going on across the country, and I can’t wait to hear George’s comments, because I’m actually more concerned about the mental state of people of this country than anything else. But this summer, we had the opportunity to drive down to see my wife’s brother in Lincoln, Nebraska, and we also went up to Northern Wisconsin, and we drove, so, through Nebraska, Iowa, Wisconsin and Michigan, and what did we see everywhere?

You cannot miss the “Trump Won” banners, the “Trump 2020” banners still up, or yard signs, rather…

00:12:36 Michele Goodwin: 

Still up, Russ? Still up.

00:12:39 Russ Feingold:

…still up, and being repainted to say “2024.” And finally, you get to the Wisconsin and Michigan border, right there in Hurley, Wisconsin, which is an interesting town, and on the border there, there is an overturned rowboat with sort of red paint, it almost looks like blood, that says, “Thank God Trump won the election.” That’s going on all over this country, and I know that from other people. So, there is a terrible attitude that you guys have already well articulated, but let me bring it back to this question of the Supreme Court.

You know, the people that are doing this commission are doing a fantastic job. They wisely, I heard Jamie Raskin last night on NPR talking about, look, we’re doing this, we’re going to make recommendations to make sure it doesn’t happen again, but that’s not all of it. It is also accountability, and where will that accountability ultimately go? It will go to the United States Supreme Court, and the question will be, will the Court go along with these people, or will they do what the Supreme Court did to Richard Nixon? 

When he asserted executive privilege, they unanimously said, no, you can’t do this. The Court will be the ultimate decision-maker about whether there’s going to be accountability and a condemnation of this, and one way or another, I think that’s going to be critical, not only for the Court, but for the country, and whether or not somebody’s out there saying to everybody, you know, this is your Supreme Court. You like these people, they don’t even think you can do it, or, are they going to give in?

00:14:14 Michele Goodwin: 

George, Dr. George Woods, I wanted you on this show. You’re the president of the International Academy of Law and Mental Health, we’ve been together across a number of venues. And I really wanted you on the show, to help us unpack these times that we’re in and the mental health of our nation and really there are stresses in terms of democracy all around the world. 

But given the backdrop of what it is that we’ve seen, and you know, we need not just rest our case at January 6, but in fact, rest the question about America’s mental health going back to Heather Heyer, and even before but but let’s just be clear five years ago, in Charlottesville, there was the killing of Heather Heyer. And for many people that in of itself was a shock and a wake up call in terms of a spiraling of our democracy. What did we learn from that and how do we put our nation’s mental health in context given where we are?

00:15:13 Dr. George Woods:

Well, first of all, again, like everyone else, I appreciate being on the show, Michele, and having the opportunity to talk about these weighty issues. I think my perspective is a bit different, and it’s really, to me, the question of trust versus trustworthiness. It’s really difficult. The whole idea of racialization, I think, is a very important factor, because I think what we describe is racialization, and those things that perhaps would happen to Black and brown people are becoming a integral part of the dismantling of our democracy.

So, there are numbers of people that this is new to, but there are also numbers of people that this is not new to.

00:16:14 Michele Goodwin: 

Okay, unpack this for us, George.

00:16:18 Dr. George Woods:

Well, I think that in order for our institutions to want the trust, it’s imperative that they are trustworthy. And when we look back on the history, not only the recent history, and I mean, when I say recent, I mean the last 50 years, I had my 74th birthday on Monday, and so, I’m kind of speaking as an old head—but when I look at the last 50 years, there are many things that have moved forward, but have they changed? You know, cars can move forward, but the car doesn’t change. It’s still the same car.

It maybe has moved to a different position, and many of our institutions have asked people of color, and women, and people of different sexual orientations to be with them—and yet, at that moment, proving that they are trustworthy, were found lacking. It makes it very, very difficult. And so, I think when you see that January 6, is it a seminal event? There’s no question. Is it an unusual event in our history, for many people? Well, maybe not. Maybe they’ve seen this before.

Maybe they’ve looked out their window, like I have in Oakland, California, and seen police and others shoot with guns, because I don’t necessarily see it as the police versus non-police. I see it as a gun violence issue. And so, I have both a real concern about what’s happening within our government, but I’ll tell you, I have a real optimism about what’s happening on our streets, and I see people day to day working hard on our streets to make, to get people voting, working hard on our streets to control gun violence.

Do I think that it is going to turn things around by 2024? I’m not so sure, but I will tell you, I have an optimism in young people that … and some older people, that I think we will pull this out.

00:19:00 Michele Goodwin: 

George, there are people right now absolutely afraid about where our democracy is right now in the United States. And if you look at the footage, and the videos from last year, and you see people scaling the walls of our Capitol building, you see them pushing against police officers, you hear the definitely kinds of chants. And are you saying that somehow this isn’t an attack on our democracy, that it’s not vulnerable? Or are you saying that, perhaps has been for a very long time that we’ve had a fragile democracy—only it took January 6, to be able to see it for some people who hadn’t before

 (UN Human Rights @UNHumanRights / Twitter)

00:19:31 Dr. George Woods:

Our democracy has always been a democracy of privilege. We can’t deny that. And so, the idea of saying it’s, our democracy is a homogenous democracy is not true. And what we’re now seeing is less people are becoming privileged, and that makes a difference, and I do think in the long run, it will make a significant difference, but we can’t talk about democracy without talking about privilege. And once we start talking about privilege, it changes the dynamic, right, and it changes the focus.

00:20:11 Michele Goodwin: 

George, thank you so much for centering the conversation about the legitimacy of our institutions and that they are not above the law, and that they can be fallible and that it’s important to think in nuanced ways when we think about what a democracy is, and the legitimacy of its institutions. 

And this brings me to you, Joan, because who knows better one of the key institutions that upholds our democracy, and that protects it, and that is the United States Supreme Court. And a person playing a critical role on that court happens to be the Chief Justice. You have written a book that was published a couple years ago called The Chief about John Roberts. And I’m curious to hear from you about how you think that the Chief Justice might be contending with these times, especially as matters of our democracy are making their way before the court, not the least of which are matters of reproductive health rights and justice. And I certainly see those as important matters for our democracy, and that they’re not just about health care, but significantly about the constitutional rights of people who would want to be able to make decisions about their own bodies as it relates to their reproductive health care.

00:22:01 Joan Biskupic:

I think it’s so revealing of where this Court is at this point, that a man who was nominated by George W. Bush, who has such a conservative record on all sorts of racial issues, who is a hardcore business conservative, who’s rarely wavered on social policy issues, is now at the center of the Court, and what abortion rights advocates are hanging their hopes on to save any shred of Roe v. Wade. I think that that’s revealing of where we’re at, and I also think it’s very revealing of the control he has lost.

What happened with the court on September 1, when a majority over his dissent allowed the Texas abortion ban to take effect, essentially with the Texas legislature gaming judges, you know, just pulling one over on them. You know, as Justice Elena Kagan said so derisively in the court hearing, some geniuses came up with something to, as a workaround, and succeeded. And the chief, the normally very persuasive John Roberts, someone who is recognized for his skills, his smarts, his ability to see ahead, was not able to pick off just one more vote to block S.B. 8 at three different points, is very revealing.

And I think we have to look at him in two realms here, Michele. First of all, on the kinds of things that George was talking about, and that we’ve all touched on already, in terms of racial justice and non-abortion-type issues, including guns, Chief Justice John Roberts is with the far-right. He was someone who was quite active in the gun-rights hearing back about six weeks ago, that Dahlia referred to. He was all in, and you know, we’ll talk probably about the Harvard affirmative action case coming up, and I think that’s another thing that he has, he has wanted to get rid of racial affirmative action on campuses.

And he, of course, was the author of Shelby County vs. Holder, which really cut out the heart of a portion of the Voting Rights Act of 1965. And it hasn’t come up yet, but I’m sure it will for the rest of our hour here, the gerrymandering decision of 2019. It was Chief Justice John Roberts who wrote that federal courts cannot intervene at all with extreme partisan gerrymanders, which is, again, you know, part and parcel with what we’ve seen on voting rights.

So, the chief is getting his way on many important conservative agenda items that are changing democracy, but on ones that feel very urgent right now, on reproductive rights, he’s trying to slow that. Now, he might be trying to slow that for institutional reasons in the Supreme Court, or he might be trying to slow it because he realizes that Texas has essentially nullified Roe v. Wade, as he wrote. So, I think he’s in a very tricky position, but I think it says a lot that he is a hope, the last hope of so many liberals in America.

00:25:30 Michele Goodwin: 

Well I want to open up the conversation then, and to ask you all about what these times represent in terms of the status of our courts?

00:25:58 Dahlia Lithwick:

Now, I’m looking up for the hope, actually. I mean, you know, I agree with everything Joan said, but I think I’ll just put a really fine point on it, which is that John Roberts is not the median of the Court anymore. The median of the Court is Brett Kavanaugh, you know, and the hope that, when you see John Roberts, and I fundamentally agree with Joan, that John Roberts is a movement-conservative in every single way that matters. What he doesn’t like is unseemliness.

You know, the words we’ve used at Slate over the last couple of years is that John Roberts often is imploring folks to lie better. Lie better about the census, you know? If you can do a better job of creating a pretext, I’m fine with the citizenship question on the census. Lie better in S.B. 8. You know, I was fine in the arguments about the Mississippi abortion ban, no fan of abortion, and I think, again, just to put really Joan’s point into context, nobody doubted, after the Mississippi oral argument, where John Roberts is going to come down on a 15-week abortion ban.

So, I think to suggest, you know, like, what’s really chilling is that what John Roberts doesn’t like is bad optics. So, really, if you just do it right and smart, you will always get John Roberts, and what is scary about the fact that now he is with the four liberals on the bad-optics cases, is that if you just do it smart and good, you’ll get him every single time. That we are now turning our imploring eyes to the “centrists,” Brett Kavanaugh and Amy Coney Barrett, is really what is chilling, that we are hoping that they’re the ones who are going to pump the brakes, because it’s quite clear where Justices Gorsuch, and Thomas, and Alito are.

And so, I think we’re in a very funny moment in the country, where, and this was, Joan will correct me if I’m wrong, I’ve been covering the Court for 20 years, this was the first time that the term-openers in October were not just about these blockbuster cases that were coming down, abortion, guns, possibly affirmative action, the environment, church/state. But all of those curtain-raisers on the term talked about the Court’s shoddy poll numbers. And how in the history of polling, the Court has approval numbers in the 30s, low 40s. And that was supposed to be the thing that would actually suggest that the Court was going to pump the brakes.

That didn’t happen. We didn’t see the Court pumping the brakes. We saw the Court pushing back on public opinion, giving speeches. Justices Alito, and Amy Coney Barrett, and to a lesser degree, Justice Thomas, and certainly Justice Breyer giving speeches about how there’s no problem with the Court. The problem is the press, that we are to blame for those low numbers, and I take very seriously the fact that, given a red flare in October, that the public essentially wants what John Roberts wants, lie better. 

Just do a better job on the optics, and you will have the Court, and for the Court to turn around and say, no, no apologies, no remorse, we’re going to do the same thing in that Texas abortion case S.B. 8 after briefing and oral arguments that we did in September. And that scares me.

Counter-protesters in front of the U.S. Supreme Court at the March for Life, an anti-abortion rally, on January 22, 2015. (Elvert Barnes Protest Photography / Wikimedia Commons)

00:29:41 Michele Goodwin: 

Russ, you’ve started us off with saying that as we look at January 6, the real arbiter, ultimately, will be the Court.

00:30:09 Russ Feingold:

Well, I’m wondering about this question of who we really look to on the Court. Clearly, Roberts does not have the control you would expect the Chief Justice to have, and I’m not sure Kavanaugh’s going to be the guy. I think you might want to look at Clarence Thomas to understand the future of the Court, because of the nature of the political environment in this country, and the true-blue test that’s being applied to right-wingers, and whether some of these others, like Barrett and Kavanaugh, would really risk, you know, being sort of pivotal people.

I understand that they have life terms, but I think they care a lot about being connected to this right-wing movement in this country. And so, you know, the way I look at Roberts, I was involved in the confirmation of Roberts, and I voted for him. Why did I vote for him? Because I knew the next guy would be Sam Alito, and I voted against Alito, because I thought Roberts, and this is, I think, crucial, yes, unseemliness bothers him, but something else is concerning him: the reputation of the Roberts Court in history.

I believe that drives him more than anything else. That doesn’t mean he doesn’t have a conservative agenda, but what it does mean is that he doesn’t want to go down as the guy that brought the Supreme Court under by kowtowing to a crazy right-wing approach that destroys the credibility of the Court. There’s no question that that’s why he voted as he did on Obamacare. I think it’s also true that that’s why he would vote, for example, in the Maui case, in favor of a decision that was sort of decent with regard to the Clean Water Act, and basically stays away from some of the other crazy stuff.

On the other hand, I completely agree with Joan and Dahlia, that when it really comes to the fundamental issue of race, and voting, and reapportionment, he’s in the tank, and he is willing to do anything in that area, and sort of covers it by doing these other things in the hope that in the end, somehow, he looks like the great centrist who kept things balanced at a difficult time, so that the Roberts Court will go down as a great era in the history of the Supreme Court.

It is not working out very well for him, but I do think it’s important to see that as a motivation of his. Based on my exposure to him, and what I watch, I think that really matters to him.

00:32:34 Michele Goodwin: 

And you’ve spent private time with him during the confirmation process.

00:32:40 Russ Feingold:

Yes, and the contrast between him and Alito during that hour was just stark. Roberts was cool and calm, and you know, he didn’t seem particularly slippery, really, although the balls and the strikes thing that he did at the hearing was pretty bad. But you know, he seemed very comfortable. In fact, I even remember when I was questioning him at Judiciary Committee, I asked him about the FISA Court, the secret court, and he actually candidly said, well, that troubles me.

You know, that concerns me, when I did not realize that. Alito was a complete stonewall, a person whose personality and whole approach was completely the opposite of what you would expect a judge to be. And so, yeah, it’s not like they’re my best friends. I just spent an hour with each one of them, but the contrast was stark.

00:33:31 Michele Goodwin: 

So, Joan, I’m wondering if you have any response to that, and then, George, I want to turn to you, because polling has suggested that people have lost faith in the Court. But Joan, based on what you’ve heard from Dahlia and Russ, any comment, reflection on that?

00:33:47 Joan Biskupic:

Well, I think Russ really summed up what a lot of people think of John Roberts, and what a lot of, why a lot of liberals still admire him, that he can say the right things. He can sometimes do the right things, but I don’t think people should lose sight of where his core really is, and I think that, you know, Sam Alito certainly just does not have those personal skills. I’ll just put it that way, and even though they both, you know, they both came from the same sort of traditions of conservatism, from kind of believing in the Reagan/George H.W. Bush/Federalist Society agendas.

It’s just that one just is so accustomed to being so careful in how he presents himself, and the other can shake his head at a State of the Union, saying not true, and it goes viral. So, we’ve got two different characters here, but they often come out the same place on the law, and I’ll just remind everyone, on our most recent voting rights decision, on Section 2 of last term, the Chief gave that opinion to Sam Alito to write, and I’m sure, and he was with him a hundred percent on that.

So, when it comes to voting rights, when it will come to school integration plans, as we saw in the Parents Involved decision in 2007, they are more alike than they are different on the law, Russ, even though you’re exactly right on the personal styles.

00:35:29 Michele Goodwin: 

Wow, there is so much to wrestle with in the conversation that we’re having. George, I want to turn to you and pull back from D.C. to think about how Americans are understanding and viewing the legitimacy of our courts. There are polls that suggest that the court is losing Americans’ confidence and faith in it. What’s your take on that?

00:36:34 Dr. George Woods:

I have to respond to that as an American, rather than informed, and I think the truth of the matter is we don’t what the Court does. We have no real understanding of the incredible complexity, of the incredible power that the federal court has had, and the state courts, but certainly the federal courts. And so, I don’t think that people understand the law in general. It’s not just the courts. I don’t think that people really understand the law.

I don’t think that they really understand, you know, the power of the law, the power of the nuisance laws in the 1920s that really put, and earlier, that put African Americans back into jails, really renewing the ability of sheriffs to sell their services to the different corporations. People don’t have that history any longer. And so, they don’t really understand the, I think, the longer-term historical perspective that the courts have played in really making a difference in people’s lives, as well as perhaps undermining them.

On the other hand, I think there’s also a significant proportion of folks in the United States that feel as though, and this really relates to COVID, that really feel as though no court should have that kind of power over my life. No one should have that kind of power over my life. So, I don’t care whether it’s the court or not. You know, I’m an individual, and no one should be able to tell me what to do. So, I think it really extends itself past the law, into our everyday lives now.

00:38:46 Michele Goodwin: 

And so, Dahlia, you know, what’s your take, then, on the legitimacy of the Court? This is something that you spend a lot of time thinking about and writing about.

00:38:54 Dahlia Lithwick:

I just think it’s really important. I think Russ flicked at this in his opening comments, but I think it’s worth saying, that there’s a sense that is, I think, absolutely wrong-headed, that liberals are delighted in these tanking approval numbers, that liberals really love the fact that the Court is going through a crisis of legitimacy, and you really, really heard it in the reporting around the commission that was supposed to study structural court reform, that there’s something about even suggesting that we could bolster the authority of the Court that is actually a really subversive plan to delegitimize it.

And I just want to say, and I think, again, Russ said it, nobody wants a legitimate Court more than I do, that when the 2024 election is thrown to the Courts, the single worst thing that could happen is an America that has no confidence in the Courts, because there’s no plan B. If the Courts do not decide these essential issues with legitimacy and with sobriety and seriousness, plan B is the army. Like, we really are then in a bad state, and so, I think that the critique that liberals just hate the Court because they hate these results, because they like abortion, is so short-sighted, because nobody, nobody stands to gain from a Court that is seen as a paper court, that has no legitimacy.

The Supreme Court at dusk, January 31, 2017 in Washington, D.C. (Drew Angerer / Getty Images)

And so, when we have these conversations about legitimacy, I think it’s really important to understand that when those approval numbers tick down, that is bad for everyone. We dodged a bullet in 2020, because the Court didn’t have to decide this election, but I think that the idea that the 2024 election, everything we now know about the plan is that this is going to be a hellscape of an election. And if the Court has to jump in, none of us wants a Court that is seen as a joke.

And that’s why, when we say to the justices, the only way to earn legitimacy is to behave with the absolute kind of north star of guiding yourself by the ethics rules and by the rules of the appearance of propriety, none of us are saying that because we want to ding Clarence Thomas. We’re saying it because a Court that has no legitimacy is a really, really, I think, terrifying prospect in a country when democracy feels as shaky as we’re all feeling about it.

00:41:34 Michele Goodwin: 

All right, so … yeah, well, tie in there, Russ, and then I just want to ask about what are some of the cases, then, or some of the issues that are concerning you going forward for 2022. But Russ, why don’t you respond to that?

00:41:52 Russ Feingold:

Thanks, Michele. I just want to reinforce what Dahlia just said, is this question of legitimacy of the Court, and what are people’s motivations here. Keep in mind that the court did decide a presidential election already, with George Bush. This is why the American Constitution Society exists. It was in response to the feeling that the United States Supreme Court had, in a partisan way, chosen the president, and of course, that’s the risk for 2024 and going forward. But that delegitimization of the Court was in part significantly started at that point, and so it continues.

But even in that context, even … and of course, Al Gore didn’t contest it, and liberals and progressives haven’t been calling for demolishing the legitimacy of the Supreme Court since then. Now, at this point, things are so extreme, given the destruction of the norms of how justices are chosen, that many of us have come to the view that something has to be done about the way the Court is structured. We’re talking about maybe adding seats, term limits.

These things, I think, are actually legitimate, but they are, again, to reinforce Dahlia, not in order to undermine the Supreme Court, but to restore it to some kind of legitimacy for the very purpose that she just said. So, I just think that’s a terribly important…

00:43:06 Michele Goodwin: 

Yeah. Well, in fact, and on that note, right, so, during the time in which President Trump was in office, he was able to nominate to the federal bench more judges than any other president, save George Washington. The record with regard to race, and also sex, was not in keeping with the trends that had been taking place with other presidents, some would say what is absolutely awful. Just months before he left office, there was not one Black person that was nominated by the president to the Federal Circuit Courts of Appeal.

And so, there’s significant concern, particularly given that the American Bar Association deemed some of those judges to actually be unqualified, and in their own states, some of these judges had been deemed already to be unqualified. So, this is where, you know, this is the backdrop for then thinking about, what are the cases that concern you, the areas of law that concern you? 

And to just set the stage here, we’ve talked about Texas’s S.B. 8, and also the Mississippi law on the Dobbs case, but to put it in context for our listeners, 1973, Roe v. Wade was not a close decision. It was a 7-to-2 decision. Five of those seven justices were Republican-appointed. Justice Blackmun was put on the Court by Richard Nixon, right? So, where we are today, for those that, you know, might think, well, this is just in keeping with conservative values, nothing of that resembles anything about the trajectory of Roe v. Wade, or the Court at the time, and that brilliant opinion, and I would say by Justice Blackmun.

But what is it that we ought to be concerned about going forward, in terms of what the Court may be looking at? Joan, do you want to start us off? And I’m just going to open it up here.

00:44:53 Joan Biskupic:

You know, I’ll just say, in regard to that, in 1973, the seven-justice majority rooted a right to end a pregnancy in the 14th Amendment, due process, liberty guarantee, same, you know, it encompasses the privacy a woman would have to end a pregnancy in its early stages. That ruling, that also gave the viability firewall, saying that a woman can make that choice up to the point where a fetus can live outside the womb, what’s known as viability, that’s gone.

No matter what the justices do, if John Roberts can get some sort of compromise on his terms, not on an outsider’s terms necessarily, but on his terms, we know from what has happened in Texas that since September 1, the women of Texas have not had the right to abortion as Roe laid out. And given what we know from the oral arguments, and where a majority of these justices have been, Roe as we know it today is gone. It’ll be gone sometime, like, the last day of June.

Outside the Supreme Court after the decision on Whole Woman’s Health v. Hellerstedt, another Texas abortion case in June 2016. (Adam Fagen / Flickr)

The question is, will there be some shred of an abortion right, for example, for women to be able to end a pregnancy at even a much earlier stage, you know, before 15 weeks, at ten weeks, whatever. So, I think that, you know, half a century of jurisprudence there is now going to change, because of the appointees of Donald Trump, who vowed during his campaign to appoint justices who would overturn Roe, and that’s exactly what he got. I don’t think there’s any question about that, that that’s what’s happening here. 

So, you’ve got that, and then, just to put on the table some other cases, since you asked, Michele, we of course have the expansion of Second Amendment rights in the New York carrying firearms outside the home. That seemed like there’s a majority to expand Second Amendment rights there, and then, we also have coming up…and well, of course, on Friday, when I think many listeners will first start hearing this podcast, the justices will be looking at two Biden administration vaccine requirements for large businesses and for facilities that take care of Medicaid and Medicare patients.

And then, one last one going forward will be campus affirmative action. Likely, the justices will take that up at some point in the near future. So, just to put those on the table, but to know that every sign we’ve seen is that Roe v. Wade as the country has known it for nearly half a century is gone.

00:47:30 Michele Goodwin: 

Russ, Dahlia, George?

00:47:33 Russ Feingold:

Look, I want to reinforce this gun issue. There is no reason that you can’t have the idea of an individual right to bear arms as in Heller without going insane. But the Court is starting to move in a direction that is just truly frightening, if they do this New York thing. I mean, I happen to be here in Wisconsin, near Kenosha, where my sister is a rabbi, and the idea that it’s somehow a constitutional right for a 17-year-old kid to go across state lines and stand around, and be part of something like that, with a horrible weapon, is ridiculous.

And yet, somehow this is where it appears the Court is heading, and there needs to be rational jurisprudence in the context of some kind of right to bear arms that does not involve complete chaos.

00:48:34 Dr. George Woods: 

Russ, I want to tag onto that, because I think when we talk about issues of mental health, we can’t get away from gun violence. The idea that somehow gun violence does not translate and have such an impact on mental health, because gun violence is not just police violence, it’s not just gang violence. It’s suicide. It’s really, suicide is the greatest rate on gun violence in this country, and yet, when, I know, I talk to my friends about the violence we see here in Oakland, it’s very difficult for them to connect that to gun violence.

Their story is the gangs, you know, or it’s, they are progressive, their story are the police, but you know, the story is never the guns. The story is never the guns, and yet, that is the story.

00:49:42 Michele Goodwin: 

And it’s a story that we should pay much closer attention to, and that case is the New York State Rifle and Pistol Association v. Bruen case that they’ve been talking about. Dahlia, what should we be paying attention to, in terms of cases before the Court, either this term or that you think will be making their way to the Court maybe in the next term?

00:50:04 Dahlia Lithwick:

I think, in addition to everything you’ve heard that is so important, we haven’t talked much about religious liberty, but I do think we are seeing a sea change, in a very compressed amount of time, on what religious liberty means in America, and a lot of that happened on the shadow docket, which is another big theme of this past year, that decisions were being taken late at night, unsigned orders, that really fundamentally changed the test for what religious liberty claims can do and can effectuate.

We really saw that in connection with COVID restrictions, but even if you bracket religious liberty, abortion, guns, I think two big themes that folks need to pay attention to are the dismantling of the administrative state, and it goes to George’s initial point about trust in institutions, I think the Court is sowing the seeds, and those vaccine cases that Joan talked about, really at the heart of them are these questions about what government is authorized to do to quell a deadly pandemic that has killed more than 800,000 people.

And I think that raising questions as some of the Court’s conservative wing is doing, whether it’s under the umbrella of the nondelegation doctrine, or the major question doctrine, or some other kind of half-baked, inchoate theory of why the government cannot do what the government is tasked with doing in a pandemic, but also equally applied to environmental crisis, equally applied to so many other government functions. That is a theme that is happening before our eyes at the Court, that I think we need to surface as urgently important. I hope it gets attention in the commentary around the COVID vaccine cases.

The other thing is just to kind of end where you started us off, which is voting. I think that when we ask this question, of how is it possible that 70 percent of Republicans think that this election was stolen, that, you know, what is it, 40 percent of the country is not sure that Biden was legitimately elected, what possible utility in saying that over and over? The utility is in passing voter-suppression laws. The utility is in passing the kinds of laws we’ve seen since one year ago, that will make it harder to vote.

And also, and I think this is really distressing, shifting powers to state election officials, away from the courts and their oversight. And so, arcane ideas like the independent state legislature doctrine, that are really, really forcefully going to decide elections, that has been ceded by at least four members of this Court, that states have vast powers to oversee their elections. 

And so, this is all dorky, dorky, like, it’s doctrine dancing on the head of a doctrine pin, but it is really stuff that we don’t do a good job of communicating to folks that this Court is not only, I think, very invested in the project of dismantling the administrative state as we know it, but it’s actually deeply invested. You know, we talked about Shelby County, we talked about Brnovich. It is invested in the project of making sure that not every vote is counted, and that’s the stuff that I am looking forward to.

We don’t have a major voting case this term, but I think we’re going to see in 2022 and 2024 some of the seeds of this suspicion about the idea that every person is entitled to vote. We saw flicks of it in 2020, in dissent. I think it’s coming, and I think we need to be prepared.

Between January 1 and September 27, at least 19 states enacted 33 laws that make it harder for Americans to vote. (NAACP / Instagram)

00:54:01 Michele Goodwin: 

I simply don’t have enough time with you. I wish that I had more. And we’ve reached this point in our show where I ask about a silver lining, and even in the darkest times and reflecting on January 6 of 2021, reproductive health rights and justice, affirmative action, racial equality, sex equality and issues that we didn’t even get the chance to touch on. I’m wondering what you see as the silver lining going forward. Is there something that you’re hopeful about, and I’m going to start with you, Russ.

00:54:48 Russ Feingold:

I never thought I’d say this, but there is this person named Liz Cheney. She thinks the future is our institutions, and protecting our democracy, and stopping these insurrectionists. So, yeah, I think maybe that’s her way to become president, but that is something that people have to recognize as an unusual thing that should give them a little hope that not everybody on the other side is crazy.

00:55:17 Michele Goodwin: 

All right. Dahlia? Quick take on a silver lining.

00:55:21 Dahlia Lithwick:

You mentioned Charlottesville, Michele, and I feel like that was a real lesson for me this year, that four years after Charlottesville 2017, and you know I lived there then, four years later, a jury found millions of dollars in damages against alt-right organizers. And to me, not only does it bolster my confidence in the rule of law as an organizing principle, that jurors when faced with actual Nazis and Nazi salutes, did the right thing, but it’s a real template for holding leadership responsible, not going after the little fish, but saying, we’re going after the big, big, big leaders who thought they could do this without consequence.

And I think that win in Charlottesville really, to me, signals a way forward, using the rule of law, using the tools of democracy and decency, and not using the tools of nihilism and anarchy.

00:56:19 Michele Goodwin: 

Wow. So well said. Thank you, Dahlia. Joan, what do you see as a silver lining, or something that we can be hopeful about going forward?

00:56:28 Joan Biskupic:

Well, two things. I originally was going to just talk about how everyone’s now so directly confronting these issues. I mean, when I think of President Biden’s speech today, calling out Trump directly in a way that he hadn’t before, when I think of these kinds of conversations, and what Russ said about Liz Cheney, those kinds … that everybody’s tackling it. 

That’s one silver lining, but the other thing I just have to say is what George did right at the start. It just gave me so much hope when he talked about the people in the streets, people he knows at a local level who are out there talking about voting, talking about making things better, because Lord knows, it’s not going to come from the five of us with our figurative and literal talking heads right now. It’s going to come from the people that George is in touch with, right there out in the country. So, that’s it.

00:57:19 Michele Goodwin: 

Thank you, Joan. George, final words for today’s show? Hopefulness, silver lining?

00:57:27 Dr. George Woods:

I believe in America, and America isn’t necessarily our institutions, and I see kids that are 19 to 30, and I see people that are in their 70s that are fighting every day in the streets, trying to figure this out. And they may not be in our mainstream, they might be on Twitter, you know? There was a great article in Wired magazine this last week on Black Twitter, and the development of Black Twitter, and it may be places that we don’t know, that aren’t necessarily privy, or reached by the polls. But I see it, and I love it.

00:58:15 Michele Goodwin: 

Thank you all for being with me. I couldn’t have had a more distinguished group of people, friends to be with me, to start this new year. Thanks, everybody.

00:58:26 Dahlia:

Thank you, Michele.

00:58:27 Dr. George Woods: 

Thank you.

Michele Goodwin:

Guests and listeners, that’s it for today’s episode of “On the Issues” with Michele Goodwin. I want to thank my guests Senator Russ Feingold, Dahlia Lithwick, Joan Biskupic and Dr. George Woods for joining us and being part of this critical and insightful conversation. And to you our listeners, I want to thank you for tuning in for the full story. I hope you’ll join us again for our next episode where we will be reporting rebelling and you know, we’ll be telling it just like it is as usual, it will be an episode you will not want to miss. 

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This has been your host Michele Goodwin, reporting rebelling and telling it like it is. “On the Issues” with Michele Goodwin is a Ms magazine joint production. Kathy Spillar and Michele Goodwin are our executive producers. Our producers for this episode are Roxy Szal, Nassim Alisobhani and Oliver Haug. Our social media intern is Lilian LaSalle. The creative vision behind our work includes art and design by Brandy Phipps, editing by Will Alvarez and Kyle Goode, and music by Chris J. Lee.