May 28 – Crisis in the Court

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Trust in the Supreme Court has been declining for years and is now a record low after the overturning of Roe v. Wade, a stunning reversal ending 50 years of president. How much confidence do you have in the Supreme Court? I think this is an activist court.

Getting rid of Roe v. Wade was an incredible thing for pro life. Simply because people disagree with opinion is not a basis for questioning the legitimacy in the court. Is the US Senate confirmation process to blame for polarizing the entire judicial what you want to do is destroy this guy's life, hold this seat open and hope you win in 2020.

Donald Trump, Mitch McConnell and their Republican buddies are shoving aside the wishes of the American people in order to steal the Supreme Court seat. Is the court now out of sync with the American public? The court that's already pretty legitimate is going to be in full crisis mode. And now new questions of ethical standards.

Have the justices damaged the court's reputation further by failing to disclose financial relationships and gifts from what they don't? The perception of the American people is worth date. The highest court in the land should not have the lowest ethical standards. My guest this morning, former Republican Senator Roy Blount, Missouri Democratic Senator Sheldon Whitehouse of Rhode Island.

I'll also speak with two former Supreme Court clerks, Andrew Crespa and Jennifer Maska, and a special panel of reporters who cover the court, NBC News senior legal correspondent Laura Jarrett, NPR legal affairs correspondent Nina Toten, CNN senior Supreme Court analyst Joan B. Skupit and Dahlia Lithwick, senior legal correspondent for Slate. Welcome to Sunday and a special edition of Meet the Press, NBC News in Washington, the longest running show in television history. This is a special edition of Meet the Press with Chuck Todd.

Good Sunday morning. And while official Washington is still consumed by the debt ceiling talks, we're gonna take a step back this Sunday and look at a larger issue. The Supreme Court, it's never been more powerful in our lives or more broken when it comes to public trust. Just a quarter of Americans have a great deal or quite a lot of confidence in this court.

A 50 year low in the eyes of the American public. The justice is robes. They're no longer black, they're red and blue and the political destruction of the core lies at the feet of another institution. The United States said it is broken.

Judiciary and the Supreme Court the role of the Senate in confirming federal judges, including Supreme Court Justices, is technically of course, advice and consent. And between 1789 and 1965, more than half of the nominees that went to Senate confirmation votes, 6,510 were confirmed on voice votes. Ie the ayes have it, just three justices in that period were confirmed with a margin of fewer than 10 votes. But since 1965, of the 22 successful nominees of the court, six were confirmed with less than 60 votes.

All six of them are currently sitting on this current court, a nod to polarization. Of the six Republican appointed Justices on the court, just one, John Roberts, a Bush appointee, was confirmed with more than 60 votes. All six, by the way, were members of the fetwist society, which is now the gatekeeper for a Republican appointed nomination. You cannot be nominated for any judgeship if you're not a member of this institution.

The goal to get justice on the court and judges on the bench who are as conservative as possible and outlook for umpires. The legitimacy of the Supreme Court depends on a public belief that Justices though are and partial referees in the political battles that break out between the branches of government or ideologies left and right. Just listen to what Chief Justice John Roberts promised during his confirmation here and what Clarence Thomas said the day after Bush v. Gore was decided.

It's my job to call balls and strikes and not to pitch or bat. Whatever you do, don't try to apply the rules of the political world to this institution. They do not apply. But those are sound bites from another era, aren't they?

Now neither party wants a referee calling balls and strikes or even pretend that's the goal. Both parties want an activist judiciary and what has become a race to the body. Since the Bork nomination in the 80s, every move has been a tit for tat. And each party has rationalized its escalation in the judicial wars by claiming the other side did it first.

Here's a stunning fact. The last time a Republican controlled United States Senate confirmed a Democratic President's Supreme Court nominee Grover Cleveland administration nearly 130 years ago in 2013, pushed by the obstruction of Obama's nominees to the federal courts in that moment as well as the Executive branch, Democratic Senator Lehre decided to go nuclear. In his words ending the filibuster, the 60 vote requirement for judicial nominees below the Supreme Court. Aren't you read Republicans let them do it.

Why? Why in the world did we care? We were trying to protect everybody. I mean, they want simple majority, fine.

I mean, all these threats are about, we're going to change rules more. What is the choice? Continue like we are or have democracy? Well, Democrats didn't learn to care.

President Donald Trump worker Senate Republican Mitch McConnell will reshape the federal judiciary, appointing 54 federal college judges in four years, just one short of the 55 appointed in eight years. In February 2016, less than two hours after the death of Justice Antonin Celia, nine months before the election, 11 months before the end of Obama's term, McConnell declared that he would not even confirm a replacement before new president had taken office. Republican control Senate went further. He refused to have a hearing on Merrick Garland, Obama's nominee for that seat.

One of my proudest moments is when I looked at Barack Obama in the eye And I said, Mr. President, you will not fill the Supreme Court vacancy. And in 2017, when Democrats filibustered Trump nominee Neil Gorsuch for that scaliacy, McConnell went further and he ended the filibuster for Supreme Court nominees as well. So changing the rules and allowing now one party to muscle through its nominees on all levels of judiciary and able to reshape all the justices in a partisan action, of course, paving the way for Trump to put three justices on the Supreme Court, the most by any one term president since Herbert Hoover.

Now, unhappy with the ideological makeup of this court, some Democrats arguing to change the rules again by expanding the number of justices on the court or so called court packet. The political destruction of the court has created opportunities for ethical failures as well. The justices have little accountability because their own partisans protect them, as in the case of Clarence Thomas. And as long as 50 votes is the threshold, more presidential candidates are comfortable dropping the pretense that justices should be impartial referees calling balls and strikes.

You replace a Clarence Thomas with somebody like a Roberts or somebody like that, then you're going to actually see the court move to the left and you can't do that. And joining me now is Democratic Senator Shelton, White House, who chairs the Judiciary Committee subcommittee on the Federal Court. Senator, White House, welcome back to the press. Thank you.

I'm going to start with when we go back to 2013. You voted for, you praised Harry's decision at the time and the filibuster for the local courts. It was, I say this, I get it at the time, looking back, considering where we are with the 50 vote threshold, is that, is that good governance? I think it would be better for the country if the Supreme Court and the nomination process had not been so heavily politicized and we were operating under what more looks like a regular order.

But we saw back then that there was no amount of persuasion that could convince Republicans to vote for D.C. circuit Democratic nominees. And that's why Harry had to do what he had to do with the clear understanding, clear bipartisan understanding at the time that this would not move the Supreme Court. We carved out the Supreme Court on purpose.

It was one of the reassurances that the Republicans wanted. So when Mitch McConnell then broke through that, that was the second. You know how this goes, is that each side leans together for the escalation. And I can sit here and rationalize like, yeah, okay.

No, it starts here. Starts here. How do we de escalate this? Because it does feel like this.

What we're. What we have now is judicial activities. Most people think the courts are red and blurbed. They're more black ropes.

So we've created this. How do we de escalate from this? Because somebody has to be willing to say, hey, this is. This shouldn't.

This doesn't work. It is not going to be easy. The work that we're doing on ethics in the court ought to be easy, and yet it's not. It's partisan also.

So I think that the first step is going to be for the Judicial Conference, the other judges, to put some constraints around the Supreme Court's behavior and treat the Supreme Court the way all other federal judges are treated. And that happens inside the judiciary. So it doesn't get into. The Chief justice has to make this decision.

Right. Separation of powers, whether. I mean, it's pretty established. Congress can't make a law that does that.

Right? It absolutely can. Well, doesn't mean it's constitutional. Yes, it does.

It means it's constitutional because the laws that we're talking about right now are actually laws passed by Congress. The ethics reporting law that is at the heart of the Clarence Thomas ethics reporting scandal is a law passed by Congress. I understand that in an executive branch, what Cabinet secretaries have to do, the President and the vice president don't have to do to separate power. So with an executive branch, that's an argument that has been made on behalf of the president.

I'm not sure that that actually stands well, but certainly we can do the administrative side of judicial. You can't get into cases. I'll be the first one to concatenate the case. In the judicial branch of government, we in the Congress have nothing to say about it.

But in terms of administering how the internal ethics of the judicial branch are done, heck, the Judicial Conference, which does that, is a creation of Congress. Is there something you can do in the. It seems like the separation of powers issue would be taken off the table if you had a, if you had some ethics demands and disclosure demands during the confirmation process that were over and above this. Is there a way to do that?

Is there a way to do this on the front end that sort of erases any constitutional question? No, because if you try to do it on the front end and get a pledge of some sort in the confirmation process, we saw how the pledges on Roe v. Wade went in the confirmation process. And the second you get onto the court and there you are, and there's no process for determining what the facts are.

That's part of the problem here. When Justice Thomas failed to recuse himself from the January 6th investigation that turned up his wife's communications, he made the case that that was okay because he had no idea that she was involved in insurrection activities. That is a question of fact. That's something that could have and should have been determined by a neutral examination.

And then we don't know. And so the problem with the Supreme Court is that they're in a fact free zone. As, as an ethics free zone. You have spent a lot of time focused on Federalist Society and sort of.

You don't call this a conservative court, you call it a captured court. It's a strong charge. I mean, you eventually send that this court is bought and paid for by the Federal Society. That's a strong charge.

How do you, how do you define it? Well, first of all, I don't think the Federalist Society was exactly the institution that did this. If you go down the halls in the Federalist Society, you see the Judicial Crisis Network, which is the group that put up the ads for these judges. Leonard Leo, who was a common operative between the two, runs another dozen or so front groups.

And the whole thing together has been estimated to be about $580 million spent by a bunch of right wing billionaires. So in the same sense that in the old days railroad barons used to count for the railroad Commission. So do the decision. I think there's a very strong case to be made that is exactly what's happened to the court right now.

You have said there, you've gone on this issue of dark money. Yeah. And you. And there's no doubt that this is, this is a big part of this, but nonetheless, is Using dark money.

And you yourself said yes. Progressive group retrieval, anonymous donations because Democrats have played by the rules publicly set or else we unwindly disarmed. We can take the game, but now we're there. Here's the difference.

The problem with this, you see where this goes, which is, I take your point. Except you know where this heads. It just escalates, escalates, escalates. Unless we change the law so that dark money is no longer accepted, should be fully treated.

Absolutely. And Democrats to a person vote for that every time we bring it up. Republicans to a person oppose it every time. Because I think they're very dependent on dark money and more the point, I think this operation that has surrounded the court, judicious crisis network funded by dark money.

Federal society funded by dark money. The groups that come in a little flotillas of kimmicky cure edify briefs funded by dark money. There is a shadow of dark money influence around the court that is very unhealthy for the institution. Let me close this to where we began, which is how do we restore some faith in the institution?

Because there's some court reformers on the left. Let me play what Ed Markey and others would like to see happen in the court. So let's start with undoing the Republican sleevery and adding four seats to the court. Congress can do it by passing the Judiciary Act.

Expanding the court is constitutional. Congress has done it before and Congress must do it again now. So there's various ideas, there's expanding the court, there's age limits, term limits. Also, where are you, what's reasonable and what's doable?

Putting four seats in the court feels like a pineless guy. I have a term limit spell, so I'm obviously for that. There's an enormous amount of transparency. Ethics work can be done.

I have a bill that turned 25 years, 18 years. And ultimately, I think in real life and in real time, what's gonna make a difference here is gonna be the other federal judges on the judicial conference, as they did recently with respect to the Scalia personal invitation hospitality scheme he was running, shutting it down and telling the chief justice who presides over the judicial conference, look, you've had your fun. We know what you're doing isn't right. Let's clean this up for once and for all, let's do this ourselves.

By the line, do you trust our federal court system right now to be fair and impartial? Usually, I think the trial courts are very strong. I think over and over again we've seen Honest courtrooms make amazing differences with Dominion versus Fox, with the folks at the parents of Sandy Hook, against the creep who's pretending that their children's murder wasn't real. And now recently with the judgment against Donald Trump.

So honest courtrooms are really important to cut through to the truth. When you get to the Supreme Court, if it's an interest in which the big right wing billionaires are concerned, very hard to count on getting a fair shot. Do you think sometimes you can get a fair shot at the court, but not if it's on something that don't respond? That would be what the evidence suggests.

I think the statistics are pretty stunning at how often the judges who came out of the federal society do what they're told by the amicus groups that come in on behalf of the right wing. Senator Shelton, White House Democrat from Ronaldo, thanks for coming. Good to be with you. Thanks, sir.

And joining me now is a longtime veteran in Washington, D.C. former Republican Senator Roy Blanc, Missouri, who's a member of leadership during his time in the House and Senate. By the way, in the Senate, he led Republican Policy Committee. Senator Buck, welcome back to the press.

Let me start with a conversation you and I had 10 years ago. After Harry Reid changed the rules on judicial confirmations the first time. Take a listen. They decided to change the rules.

I suspect that changes the Senate in fundamental ways forever. The Senate in our system was the example to the world that there was a way in a democracy to protect minority rights to a great extent that's now lost on these nominations. Why, when Republicans got control of the Senate next, did they not restore minority rights? Why did Republicans go a step further and get rid of the filibuster for Supreme Court justices as well?

Yeah. Well, I think, I think my prediction was exactly right. Once these things happen, I can't think of an example where they're rolled back. And I think that week Senator McConnell said to Senator Reid on the floor, you're going to be sorry you did this, and you may be sorry you did this sooner than you think.

And that's, that's exactly what happened. I just, there are almost no instances where you could change the rules in one way and hope that the next Senate will say, oh, and accept us. Well, let's think of a momentary advantage. The Garland decision, the decision not to give Garland committed here you're in the Senate.

Then it's not necessarily your decision, Mitch McConnell's leadership, to do that. In hindsight, was that the right call? You know, I think so. Again.

And you've Already made this point today. It's all. They started it. But in.

Right. It's always them. It's always them. Senator Schumer and Senator Biden both at different times in the Bush administrations had said the year before the election, if there's a vacancy, we won't fill it.

And there wasn't even a vacancy. This is just kind of a preemptive shot to let that happen. And even if we weren't going to approve Garland and you can argue maybe we should have had a hearing, I think the way these hearings go, that would in many ways have been unfair to him. To put him through a hearing, to know it to not be approved.

I actually supported the majority leader's decision at the time. And still think in the politics of the country and the way these confirmations have happened, when you have the majority and the President's from the other party, there's just a long history of not filling an election year vacancy. Yeah, but don't you look at the Amy Coney Bear thing? It looked like it was rammed through at the last minute, right?

It was. Exactly. Let's take Joe Biden as word what he was worried about back then. That was exactly the picture that I think anybody was comfortable with.

We're in the midst of a presidential election. You throw that in there where, you know, depending on the, depending on when somebody might pass away. Depends on, on how that works given what happened with Garland. Do you see how so many people look at that and think, come on, the rules for thee but not for me?

Well, I will say in, in that year I had more people at the airport and other places mention that, that single thing to me than I've ever had of any other thing. Why don't you give Garland a hearing? And I think I probably gave them the same answer I just gave you. He won't be confirmed.

Having a hearing would be a mistake for him and for the country. But I get it now. The difference, of course, the next, the next year before presidential change is that the President's party has the majority. And that's a different circumstance in a substantial way if you don't do that, let's say you don't do that two months before the election.

You've always got the sense that your side will just collapse on election day because they wonder why they sent you there if you could have done this and didn't. And so that's, that's a big difference. You're a student. History.

We gotta go back. So George H.W. bush had two Supreme Court justices confirmed by Democratic Senate. Do you know that the last time a Democratic president had a Republican Senate confirmed Supreme Court nominee?

No, I don't. The numbers did not work. Good. Cleveland.

Senator Grover Cleveland. This is why I think you have so much distrust between the two parties on this inside the Senate, right? Well, yes, but you do have to remember that you've got this long period of time from like 1932 until the 60s where there is no Republic, until the 80s where there's no Republican Senate. Two Democratic parties.

Yes, that's right. Democrat presidents got a lot of President got a lot of votes of nominees confirmed, but there was no Republican Senate to really. I hear your example, but I think it has it. I hear you, but it's an astonishing situation.

But you think about. Let me play one more quote from a late Senator John McCain after the 2017 decision on on Supreme Court Fillbusters. Take a listen. Now that we're entering into an era where a simple majority decides all judicial nominations, we will see more and more nominees from the extremes of both left and right.

I do not see how that will ensure a fair and impartial judiciary. And as that last line look, I should point out Senator McCain said, he said and also supported Mitch McConnell's decision. But is this any way to get an umpire right if that is the goal? And look, you didn't vote for Judge Jackson because of judicial philosophy.

Which should that be the requirement? Are we just looking for qualified umpires or are you looking for partisans? Well, I do think in the last 40 years the country changed a view on this and even maybe less than that. You know, the, the Thomas confirmation was, was a 50 48, 52.

Nobody even considered the 60 votes structure reasonable. And Democratic Senate 58, 48, 52. The whole idea that would take 60 to confirm is a reasonably new thing. And again it happened when Chuck Schumer went to the Senate and suddenly, well, you have to have 60 now instead of 50.

There was great deference given generally to presidents until that became a standard. And then I also think if Democrats at the time of the Gorsuch nomination, which replacing Scalia didn't change the balance of the court if they would produce enough votes to get to 60 for Gorsuch, who knows if the rule would have atmosphere, change the rule to change. It would have been harder later in that Congress than it was at that moment. And I even said to a couple of Democrats at the time, the smartest thing you could do right now is let your members who will actually be helped by this not hurt by this.

Let me go back to this guy. That's perfectly acceptable. Let me go back to the last question that I asked in the White House, and I'm going to ask it to you. Okay.

In a different way. Look, we know the Supreme Court's approval ratings essentially have fallen and fallen badly. How? What would be your recommendation to help the perception of court?

Well, I certainly think that the court is still such a critically important part to our structure. The court does bring finality to things that sometimes I don't agree with, sometimes others don't agree with. But what we don't want to do is to bring the court down with the rest of us. Senator Roylott, it's good to see you.

Thanks for coming on, sharing your perspective, and I look forward to seeing you again soon. You bet. When we come back, has the Supreme Court damaged its reputation by having no official ethical standards? All doctored to former Supreme Court clerks Andrew Crespo and Jennifer Mess.

Welcome back. It is a tradition for Supreme Court justices with sharply different legal views to be dinner party friends, opera companions, in other words, to get along. But after the league of the doubts, this decision last year, tensions of the court have broken out into the open. According to reporters, including Nina Tottenberg, who will join us later this hour, the atmosphere behind the scenes is so complete that, as one source put it, the place sounds like it's imploding.

Justice Samuel Leno recently told two partisan defenders of the Wall Street Journal the leak quote, made his targets of assassination, saying, I personally have a pretty good idea who's responsible. Justice Clarence Thomas complained, you begin to look over your shoulder. And Justice Tony Son, mayor, said she felt shell shock after the overturning of Roe and has a, quote, sense of despair about the direction of the court. On Tuesday, Chief Justice John Roberts addressed all the questions about the acrimony and concerns about the court's ethics while accepting a word.

I want to assure people that I'm committed to making certain that we as a court adhere to the highest standards of conduct. We are continuing to look at things we can do to give practical effect to that commitment. And I am confident there are ways to do that that are consistent with our status as an independent branch of government under the Constitution's separation of powers. And joining me now are two former Supreme Court clerks, Jennifer Mascot, an assistant professor at George Mason University.

She clerked for Justice Kavanagh while he was on the D.C. circuit and for Justice Thomas on the Supreme Court. And Andrew Crespo is a professor at Harvard Law School he is clerk for Justice Kagan and prior Jennifer Andrew. Welcome to Meet the Press.

Please start with the leak and how Bush v. Gore Andrew didn't seem to create personal divisions on the court the way the leak of Dobbs did. What's your sense of what's going on behind the scenes? There was an investigation into this leak.

I think that investigation, which is a 20 page report, tells us three pretty important things. First, the report seems to make clear that this leak did not come from a law clerk or a court employee. This is an investigation done by experienced criminal investigators. It was reviewed by the Secretary, former Secretary of Homeland Security looked at forensic cell phone records and asked every employee and law clerk who had access to that opinion to swear under oath exposing themselves to potential prison term for penalty of perjury, that they didn't do that, they were not the leaker and they didn't know who was.

They basically ruled out core employees and law clerks. But crucially, this I think the second really important thing that this investigation highlights for us, the report was not able to rule out whether or not they came from the Justices themselves because the only people who had access to the opinion and who were not investigated with the leak investigation were the justices, because the court didn't look at the justice themselves in that investigation. I think that shows us really the third most important thing we learned from this. The League investigation is one example now in a string of many where singing Supreme Court justices basically view themselves as above the law, not subject to the same rules as everyone else.

Whether that's the League investigation with accepting the tension of millions of dollars in gifts that have been disclosed to adopt ethics, even engage with Congress on that question. This is a court that tells everyone else what they can and cannot do, tells Congress you can't be la guns, tells the President he can't think about climate change, tells women what they have to do with their own bodies, but says that everyone else don't dare try and suggest that we have to follow rules for ourselves. Jennifer, what's your sense of what the leak has done to trust between the nine? Well, I have to tell you, last year this time we were talking right after the leak and from my standpoint, over the last year, it's actually reconfirmed my faith in the Supreme Court as an institution because I think here we have nine justices who have taken an incredible amount of attack and vitriol from the outside.

We've had assassination attempts and Quite frankly, the DoD's opinion when it was handed down was almost precisely the same as it was when the leak was made. Why does that matter? Well, I think because it shows that the justices have fidelity principle, but they didn't let the attacks, the threats, the attempt to change the outcome have any impact at all. Had it changed, it wouldn't be different from the leak.

You think this would be a far more explosive thing inside the institution? Well, I think clearly that would have depended what the change was. Obviously, if there had been a boat change of some kind, that would have certainly communicated that those kinds of tactics work. But I think it's really astounding that the justices who are facing the attacks from the outside and here, you know, we are questioning the institution.

The institution's strong. They're continuing to do their jobs. Just this week is the clip you played shows Chief Justice Roberts and Justice Kagan were together with Justice Roberts receiving in a warrant, talking about the collegiality of the institution, despite all of the buffeting on the outside, is continuing to go on. Let me talk about ethics.

When you guys are brought in as clerks, do you sign anything? Is there an ethics. What do you pledge? Is there anything you put into writing pledging some sort of fidelity of the court?

Well, nobody's asking anybody to pledge fidelity. I don't think it's any institution. I think all law clerks, just like government employees across the board, are trying to be hired more people of integrity who are there to serve the institution and the principle of law in the Constitution. And so like all federal officials, clerks obviously are supposed to take the Constitution and try to do that and serve the justices as they apply principles of law.

But is there any. Look, is there anything about your personal financial situation, the background? Yeah, when I was there, this is, you know, 10 years ago or so now, I don't remember having to sign anything. I do remember very early in the year, the Chief justice, I didn't work for the Chief justice, but the Chief justice would get all the lock clerks, 30 plus of us into a room.

And it was the ethics talk, and it was almost entirely don't talk outside of this building about what happens in this building. This was well before Dodge. He was really impressed on lockers violating this. Right now, I think the chief is made clear that he wants that.

You know, that was something impressed upon lock clerks. You're not supposed to talk outside of the court about the opinions and work of the court. So there wasn't like a, as I recall, assignment. It was very much impressed on lock clerks that you're not supposed to disclose what happens inside the building.

Jeffrey, do you remember political debates, political debates within the institution. Not legal debates, not constitutional debates, but just good old fashioned political debates. To be honest, not really that much. I mean, I feel like there was an abstracting amount of collegiality and actually if you look at the most recent terms, the last 10 terms of the court, I think there are at least 40% or more of the merits based decisions that are issued unanimously.

So a lot of times on the outside we talk about the handful of decisions that seem to be, quote, unquote, political or controversial. But the court has got really challenging issues coming to it. A lot of times their issues are not necessarily the topic of dinner time conversation. And I really love the opportunity to be able to meet clerks from across the spectrum and still keep up with many of them today in my practice as a law professor, let me move to the issue of what's deemed the shadow docket and maybe you guys can explain.

Let me put a statistic up here. And this is about sort of administration. When the Department of Justice on behalf of an executive branch is looking for emergency relief. During the four terms of Bush and Obama, eight times the Supreme Court has asked for emergency relief.

In the one term, Donald Trump, 41 times, it appears that this is no longer emergency relief. This is political disputes. And we never know what the rationale is. Is this gotten overused, Andrew?

I think we're seeing a greater sort of frequency of folks turning to judiciary. And one of the biggest challenges now is that parties can pick their judges in the lower courts. Right? You can file a lawsuit in Texas, pick the location where you're going to file a lawsuit and there will be one judge who's right here, that case, you know, the political party who appointed that judge and you know the political balance of that judge.

When you see parties rushing to judiciary again to pick the lower court judges, it's an accelerator that forces everything up faster to the Supreme Court. And it's making the Supreme Court, which is now a very conservative court, basically sitting in the driver seat on all these issues as they get shot up to the court and is using that judge to act fast around these in general. One of the complaints is that we don't know the rationale behind it. Look, we gotta debate whether these should be ruled out, but then we don't even get a rationale.

How do we change that? Well, I think the Andrew's point, it is true that the court is responding to these cases as they find them. And so it's often the lower courts or outside parties that are bringing These cases to the court's emergency docket one, I mean, obviously unique circumstance. The Trump administration was the pandemic.

And so that caused a lot of state orders that were not necessarily happening as rapidly in years previous to that. And so that increased the use of the order's docket. But I think the court has been attentive to people wanting understand its reasoning. And so some of these cases actually have resulted in written decisions, perhaps not as likely as merits ones.

In fact, there have even been oral arguments issued more rapidly sometimes in cases in the courts wanted to rule on. Issues have been I think the court is trying to issue reasoning for the American public and quite frankly, in some ways is one of the most transparent institutions in the sense that at least with the merits cases, we're getting dozens and dozens of pages lengthy reading, looking for transparency. That is no transparent institution. But I understand within the local committee argument there's time for massacre.

Andrew Crespo, thank you both for being on here. Appreciate it. Thank you very much. Up next, the public now sees the court as more partisan.

Is the court actually behaving that way? Data Download is next. Welcome back. Data download time.

As we discuss the Supreme Court's evolution, particularly how its standing among the public has deteriorated as they proceed to be more and more partial, we're here to provide a reality check on exactly what is driving this shift. There's one simple way to describe this and that's just simply the number of opponents since LBJ. Republican presidents have been on office for 32 years and have had 16 Supreme Court justices. Democratic presidents have been in office 22 years and have only got five justices.

Some of that is actuary table. You have the Jimmy Carter was for four years got zero appointments. George H.W. booster four years, got two.

Donald Trump four years, got three. So you see how that happens. Now let's look at the views, the polling views, whether this court is too liberal, conservative. Going back to the start of the century, as you can see here, it is fluctuated between two liberal and too conservative narrowly.

You know, during the Bush years in the war on terror, it was seen as too conservative. During the Obama years, Obamacare ruling, same sex marriage, but seems too liberal. But look at this. It is skyrocketed now 42% permanently.

It is too preservative. In fact, what makes that number unique? It's above the there's a third punch. We ask here it's court too liberal to preserve about right led throughout the entire century until these last couple of years.

Now let's move to the issue of whether they're right about this. Is the public right, is the court shifted its views to the right? Well, the National Academy of Sciences sort of compared key Supreme Court rulings with public opinion for different decades. In 2010 versus where Democrats wanted rulings and Republicans wanted rulings, the court basically came down in the middle.

In 2020, essentially the same thing. The court shifted dramatically in 2021 between Rick Bader Ginsburg dying, Amy Coney Barrett making Brett Cavanagh out of the center. And what has happened. Not only is the perception of the court is too conservative, the rulings are actually not just to the right of where the average would be between the two parties, but to the right of where even Republicans thought the court would rule.

So the perception in this case that it's too conservative may play out in reality. Let me come back. It was the only Supreme Court case to decide who would win the White House. We'll look back at the moment a divided court ended the dispute election.

Welcome back. The public crisis of confidence in the Supreme Court didn't start with the total attorney. In 2000, the court ended the Florida vote recount and the election between George George W. Bush.

Now cornwalling the way to certify Bush's win. The controversial 54 ruling heard the court legitimacy and further divided an already fiercely polarized nation. Just five days after that decision, the House Democratic leader dictates part appeared on this program and refused to call George W. Bush the legitimate next president.

The Supreme Court decision, was that based on law or politics? Well, we have to accept that decision. I criticize the decision. I didn't think it was the right decision.

I wish we could have counted all the votes. But the court made its decision. So George w. Bush is legitimate 43rd president of the United States.

George W. Bush is the next president of the United States. We have to respect the presidency. We have to respect the law, and we have to work with him to try to solve the people's problems.

That's the task in front of us now. But why can't a leading Democrat say he is a legitimate president of the United States? He is the president of the United States. When we come back, can the court fix itself?

Our special panel court reporters is next. Welcome back. Panelists here, NBC News senior legal correspondent Lord Jerry Nina Tottenhamber, NPR legal affairs correspondent and author of Dinners with Ruth Joan Biskupic, CNN senior Supreme Court analyst and author of Nine Black Rose and Thalia Lithwick, Slate senior legal correspondent and author of Lady Justice Nia Tobinburg. I'M starting with you.

Is the court in crisis? Well, it's in a very bad and dysfunctional situation, I think. And I've covered the court for a long, long time and I don't think I've ever seen a court so at odds. And the best example is I had a fairly minor in the greater scheme of things decision a couple of weeks ago, and there were five opinions.

There was no opinion for the court. There were three opinions on one side and two opinions in dissent. What does that tell you? It tells me that they don't like and trust each other, that the china's broken and they're not getting along.

And when you can't get along, you can't reach some sort of. On most things. What was it look like? Well, it's interesting because that's what's going on internally.

And what's going on externally is another sort of crisis of its own, sort of devising on public legitimacy and the idea of whether it's an institution that the public can trust and feel that the decisions are being made even handedly, most recently because of all the ethics issues that emerge that in many ways are not new, but there is a different level of heightened attention to them now, I think, which is a good thing. But there's no meaningful check on them because they are not treated like all other federal judges. John, wanna pull up from your book? I'm sure happy about that.

Yes. That's about John Roberts. Some of Chief Justice John Roberts's colleagues were suspicious as maneuverings in cases where they saw as an exalted sentence of his authority as chief justice. He exerted a strong hand on internal operations, support building and in various public communications, separated himself from the eight associate justices.

And I highlight this quote because to go with what Nina said and go with the Laura said, we have to look at the chief justice. Does he have, if he leads, does he have any followers? Well, and that was written capturing a time when he was more in control, when he had the Supreme Barrett. Yes, the Supreme Eric, when he was the key vote so he could do a lot of maneuvering behind the scenes.

He was a fulcrum, right? That's exactly right. And some of that behavior, frankly, has come back to haunt him because the other justices to his right now they have Justice Amy Coney Barrett. They don't need him.

They don't need him on big important cases like the Dobbs, and they might not respond to him. And I think we've seen they are not responding to him on issues of ethics. So his Problem right now is twofold. One has having to do with consequential opinions like the Dobbs opinion that roll back Roe v.

Wade and also what kind of formal ethics policy they will even adopt. He does not have a team with him right now. Dahlia, I was actually talking off camera with Jennifer Mascot. She just sort of implied to you because she thought that it is now clear Justice Alito doesn't necessarily follow Justice Roberts Alit anymore.

And in the first few years he did that Clarence Thomas is almost the conservative leader these days. Is that your free. I think there is a block on the court that is Justice Alito and Thomas and sometimes Justice Borsuch that are very much doing their own thing that is very separate from what the more centrist bloc of Roberts and Kavanaugh and sometimes Barrett are doing. I think that that to the extent you can call it a centrist.

I was just gonna say that's a centrist block and it's important of the 3, 3 and 3. And it's important to say, you know, to Joan's point, Justice Kavanaugh is now the median justice on the court. There's nothing that will tell you where this court is more than that statistic. But I think it's interesting that at least sometimes sense that on that center there are votes in play.

I don't think there are votes in play in Justice Alio and Justice Thomas's world. So let's talk about this ethics situation. I mean, do we expect Mina anything from Justice? We put up these headlines.

The perception of the core is just that they're being politicized here with a big donor. McCarthy said that Clint Thomas fellow reporter's wife's income. Clarence Thomas's wife Jenny tells the generator she didn't discuss the election with her husband. I don't know what.

Mary Copeland didn't discuss the election. They're the only ones that did. Judicial activist, director declared houses, whatever mention what in theory could Chief Justice Roberts do to create a better ethical picture? Well, part of the problem here is, as Joan said, he doesn't have a team with him and you don't need to lose much.

So let's just say he were to sit down and say, look, we've got to do something. Let's do what a lot of the ethics professors say they could do in a half of a day. Write the code for ourselves. Two of his members say, well, I'm not going to abide by it.

I don't think we ought to have that. He doesn't have no recourse it's not even a question of a majority. He has no recourse. And I would argue that the, the kinds of potential conflicts of interest raised by Justice Thomas's friendship with Harlan Crow and his refusal to recuse himself in January 6th matters are materially different from the kinds of potential conflicts that might be raised by, you know, justices, for example, who don't recuse themselves in cases involving publishing companies where they've written book.

It's just different. It's materially different. And it's understandable by the public that the it does look like this is gonna get worse before gets better. We're having basically more than 19th century Supreme Court where it's overtly political.

I want to play something again that Ron DeSantis said about his philosophy of Supreme Court Justice. You replace a Clarence Thomas with somebody like a Roberts or somebody like that, then you're going to actually see the court move to the left. And you can't do that. I want to remind viewers, Laura, Justice Roberts said, I'm an umpire.

I call Bolson strikes. He wants, he does not like to be viewed as a partisan. Potentially the next president of the United States is saying, oh no, I'm not a partisan. But part of what's interesting about that is he's playing to the crowd.

You do hear it there. But after he says all of the things about how he's going to make the court even further to the right, everybody's applauding, everybody's enthusiastic about the court and packing the court in a way that I think would be interesting to people who think of it as sort of a political branch. He's claiming to an alliance that cares deeply about this. Well, look who did it in 2016.

And I would argue that Donald Trump won the election and part because Justice Scalia had just died, he'd been alive. I don't know. Trump wins. I seriously believe that.

I seriously believe that. Because remember, he did. Donald Trump did something very unprecedented in May of 2016. He released a list of his potential candidates and kept adding into it, adding to it, and then fulfilled that value.

Well, just remember in that same election, we have three octogenarians on the court and an MPC for months and months. And we have one side campaigning on the issue that we will pack the court. And we have Democrats who are saying like screen save, screen save. Let me see here.

No, they can do that again before we go. Every more or late. We can. We are making the press remember the American service members who have died in the line of duty in the past year.

This year we're going to remember 32 year old Marine Staff Sergeant Samuel D. Lechi who died from a non combat related incident in Iraq. He was from Jefferson, Tennessee. But we'd be remiss if we didn't draw attention to a growing problem both in our society, which is more cute in our active duty military.

Last year alone, at least 320 active duty service members died by suicide. If you or a loved one are struggling with mental health, you can dial 988 and you can press 1 right now to be connected to the Veterans Crisis line. You can find the local VA center to access your counseling. You can visit the Military One Source website to get connected to the best available resources to fit your needs.

And spend some time this morning thinking about those who serve and defend us. That's all for today. Thanks for watching. We'll be back next week because if it's Sunday, it's weekly.

I'm Craig Nol. Cheers. Cheers. Cheers.

I've always been a glass half full kind of guy, and now I'm talking this to people who look at the world that way too. Some really fascinating folks who share their defining moments, their triumphs, their challenges, their stories are fun and my candidate. So I hope you'll join me each week. Who knows, you might just come away with your own Glass Apple.

Search Glass Apple with Craig Melvin. From today on to wherever you get your podcast.