 This is an American Issues Take Two. We are joined by Avi Joyfer, a former dean of the William S. Richardson School of Law, and our regular contributor is Stephanie Dalton. And of course, my co-host, Tim Apicella. Welcome all of you guys. So the title of our show is, you know, where is the Supreme Court going? And I guess what the implication there is we already know where it is. And so we're trying to figure out what the trajectory is. And then, you know, the other question is how concerned should we be? So a part of it is that I think it's written on the state Supreme Court building in Foley Square. You know, the firmest pillar of the administration of justice is public confidence, or words to that effect. If you lose public confidence, where are you? And where are you going? Tim, do you have any thoughts on where we're going now? You can wrap around the question of where we are, of course. Well, we're in a quagmire. That's where we are. Where we're going is, you know, there's a whole, there's a plethora of options where this could go. I mean, right now there's a bill in the House. It's HR 250 2584. And it's a proposal to increase the Supreme Court to 12 justices. This was introduced by Hank Johnson of Georgia, Jerry Nadler of New York, Senator Edward Markey, and I think Representative Jones. And here's the point. I mean, they obviously feel that they had to introduce this bill to increase from the current 9 to 12 for a couple of reasons. One was their argument is we used to have a Supreme Court judge for every circuit district. And let's get back to those days. And so that's why they, that was one of the rationale. And then Johnson said this, from Citizens United to Shelby County, the court has been hostile to democracy. If the law suppresses the right to vote, it's constitutional. If the law protects the right to vote, especially for black and brown voters, it's a non-constitutional item. You said it's time that we respond to this, basically. And so there's that hanging out in the weeds. And of course, now you have allegations that the Supreme Court is completely politicized thanks to Mitch McConnell. Is that allegations of the reality? Is that allegations of the reality? You asked where the court is going. Have you got a handbasket available? Ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha. I think there is much to be said about the court and there is even more to be said, I think about this draft opinion, which is just foolish to talk about whether it's in the text or not. If you look at other constitutional rights, and it's remarkable if there were five votes. Now we know there were five votes for a particular result, but we don't know if they joined that draft opinion and I assume it will change. But there's a kind of psychological need that I guess we all have in certain contexts, which is we want certainty. And it is just not surprising that people want the text to give the answers, but of course they don't. You will not find campaign finance mentioned in the Constitution, for example, just for one of many examples, or Shelby County was just mentioned. And there, that was Chief Justice Roberts for the court and he basically says, well, there was a need for the Voting Rights Act, but there isn't anymore. So since when does Congress have to keep up with the times or else it's unconstitutional? I mean, it's just an amazing theory. So we're in trouble. There's no question about that. A little bit of optimism. I am an optimist despite the facts from time to time. Well, that gives us plenty to talk about your optimism. The court did stand up to Trump, not only the Supreme Court, all the other courts, right? So there is that, but more than that, I think that Justice Jackson and Sotomayor are going to be a force way beyond their two votes. They are just gonna be amazing in conference. They're gonna be amazing at oral argument. And I think they're gonna push and pull some of these justices from the brink. Let's hope so. How does that work? I mean, put yourself in that room, the conference room, and make yourself a Katanji Brown Jackson or Sotomayor and say, you guys, you're way off the mark. This isn't what the country wants. You have to change your vote. I mean, conceivably that could even happen if they're, well, I don't know what their schedule is, but when Katanji is seated, right, coming soon, they could bang some shoes on the table. What did they do? They bring a baseball bat, a Louisville slugger. Well, it's reminiscent of what Justice Ginsburg did and famously Thurgood Marshall did, which was to open the eyes of colleagues to some of the realities. The case that's usually cited about Justice Ginsburg was involving a strip search in a high school, I guess, or junior high school, of think a 14-year-old girl. And she basically said, you were never a 14-year-old girl. Let me tell you what this means. And apparently it did change some of the votes. And Thurgood Marshall, many of them said, open their eyes with the lived experience that he was able to convey very effectively. He was a great storyteller. I think the two of them are gonna be a powerful force. I'm not saying they're gonna immediately turn the court around. That's not likely. That's not probable. That's not in the cards. But they will, I think, move some of their fellow justices. So wait and see. And yet, you know- Sure, I hope so. You know, there's a provision of the Constitution says, and other unenumerated rights. And- Well, that's a prime example. Yeah, so for the would-be textualists, here's what the Ninth Amendment says. The Ninth Amendment says, the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. There's the answer to what Alito, and apparently a majority have agreed to. There's the answer. The Constitutional text says, open sesame, the text is not the end of the question. There are other rights. They belong to the people. There it is. What is Samuel's problem? You heard it here on Think Tech. I just noticed this. He was in the lower court in Casey, as a matter of fact, dissenting. So he's been involved with these questions before he was on the court. And he's been a pretty rigid guy by all accounts for a long, long time. His hobby apparently is to wake up each morning and look for shark attacks around the world. That's pretty weird. There is a letter. Are they from attorneys or from real sharks? I heard that. Well, there is a letter from his classmates at Princeton, one of the first classes. And they've written a letter about his misogynistic position that it goes throughout his draft. And they're asking for attention to that, not that they expect any change, but that they feel an obligation to come forth and explain a little bit about what they know of this man and that he's not the one to arbitrate the decision on Roe and that the write-up is in need of improvement, to say the least. He was a member of a group that opposed coeducation at Princeton. Princeton isn't what it used to be. For that matter, neither is Harvard or Yale. I'm sorry, Abby. I'm sorry I said that. These schools, what have happened to our schools? They're a lot more diverse than they used to be, but when this Supreme Court gets through with the Harvard admissions case, it's gonna be tougher, I suspect, in my fear. Hey, Jay, I wanna throw something out if I could. Okay, but after you, it has to be Stephanie. Okay. You know, there's a lot of talk right now that is it really fair that the Supreme Court is taking the tact of strict constitutionalists when the constitution was really geared for white male property owners? And is that fair that this strict interpretation in 2022 is not taking into account all the rights that people of color and people of females and gay populations have, they've earned certain rights now. And is that fair? Oh, you want to show it? I mean, is that legal, too? Well, it's not fair, clearly. Abby, is it legal? I had a colleague who used, when a first year student would make some reference to something not being fair, he would say, quesca say fair. That's not what you're supposed to think as a law student. Correct. I do think there ought to be some connection between fair and legal. Yeah, and decent, decent is good. Decent is always good. We need to be a decent country. Stephanie, you know, there's all this noise in the Congress yesterday and the Senate trying to pass a bill codifying Roe v. Wade. And there'll be other bills like that, which will fail, it's the way it is. Congress is broken and it's clear that Supreme Court is also broken. But my question is, if the women, like you, go out on the street and you campaign and make a stink and get on all the media and express yourselves, which is exactly what is happening, do you think that's gonna have any effect on Samuel and his friends? They already did that the day after Trump's election and around the world, as a matter of fact. But I think that what we have going on here is a matter of democratic legitimacy for the court. And the court is not elected, of course, as you know. But without the election, they gained their democratic legitimacy because of their impartial arbitrators of the law. And they are also the pure reasoning. These are people that are obligated to pure legal reasoning in making their decisions. And according to my reading of newspapers, like the New York Times, of course, but there's a problem in the perception of people as to their impartiality. And the leak is a major fact of meaning that it is not impartial. And if that leak means that the court is not comprised of impartiality and attends mostly to pure legal reasoning, that means that it's political. And then if it is a political institution, without even any electoral backing, the court's likely to be perceived in another way and in a way that doesn't include, that it has democratic legitimacy. And it may be time for people to not listen to it any longer. Are they even listening to it on this latest decision? So many people- That's an interesting prospect. If the country decided that it wasn't worth listening to them and we just didn't listen to them, that would be a problem. And how do you enforce their decisions, you know? Yeah, and so they may decide that it's time, the people may decide that it's time to reform the court and then dismantle the Elgaten majority that it holds. So it's possible that perceptions and the public mood may change a lot. Then your answer to my question is if all the women get out on the street and make a cemis everywhere in every city, every state, which is not likely to happen, is that gonna change this decision? It's gonna come out in July? A better solution was already suggested or performed by Greece. I remember the play, maybe it's a Sophocles play or one of them is Lysistrata, where the women refuse to engage in infancy with any man, great husband. Hey, what an idea, you heard that on Think Tech. I think that's where we go if we wanna make anything happen because women won't be put on the street. So Avi, what about reform, you know? I mean, I'm sure, you know, we've seen that for a while and you know, I'm sure you've thought about it and they certainly, they thought about it in the days of FDR's attempt to court pack. But is A, could that happen politically? And B, assume for a moment with me that it does happen. How does it change things? Well, it depends on what the court reform is and there have been court reforms over time but pointing to FDR's failed and badly failed court packing scheme, he was a consummate politician and he had just had an overwhelming presidential election almost sweep, the all-time smashing victory at that moment. And then he got in big trouble because he took on the court, which deserved to be taken on. They were doing terrible things and there were the four horsemen of reaction as they were called who repeatedly were striking down the new deal legislation, progressive legislation even before that in the name of avoiding socialism. Some of these things never change. But when he tried, he tried in a kind of hand-handed way and it really blew up in his face. So what does that tell us? It tells us among other things that you got to be very careful if you try to take on the court in a direct way. Clearly Congress does have the authority but politically are they likely to do this? I know and like Senator Markey but I don't see it even if he's a co-sponsor of this bill. But it ought to be noted that the number of justices has changed over time. There's nothing in the constitution that says it has to be nine. And some of those changes of course were in part politically motivated. So there are other ways. And the commission I think did a pretty good job. They weren't supposed to make a recommendation. This is the Biden commission I guess it's called to look into reform of the court. And it might be that term limits, for example, would have appeal before he announced his retirement. Justice Barr said, well, at least it would help me getting all these questions. I wouldn't get them anymore if I had a term limit. But I think if it's done carefully and well that might actually sell with the American people. On the other hand, it's not gonna get rid of the current court. I think they are necessarily grandfathered in and they have these appointments for life after all. So that would require a constitutional amendment. Yeah. And I've always wondered, it's grandfathered in. So the problem is that the conservative court would stay for life and the new appointees would stay for what 15 years. So that puts the new appointees at a disadvantage. It isn't necessarily a solution that way. Right. Now what happened with FDR, of course, in part was whoever, divine or otherwise, fate intervened and the number of the justices either died or retired. And that could happen at any time. We don't know. And it isn't necessarily, of course, age that determines that. And that was one of the mistakes he made. He tried to say, oh, this is an aging court and they can't do their job. And even the justices who were more or less on his side said, oh, yes, we can. We're doing fine. Thank you very much. We'll come to work every day. So Tim, you know, there was an article in a Washington Post yesterday about the fence, the unclimbable fence. I mean, I don't know why, but this seems to be an important aspect of the fence. You can't climb over that fence. And of course, there's security all around and have all these photographs of people looking through the grading of the fence at the Supreme Court. It's a new vision of the Supreme Court. And the fence is somehow emblematic of the distance between the public and the Supreme Court. How does this affect government? We've had an ongoing failure in Congress and Trump and the presidency, that was a failure. And Biden may not be able to go for a second term. Trump may even come back despite the 14th Amendment, section three. And despite the select committee, I mean, he's really a master at coming back. So when the court fails, as it is, how does that affect the country? How does that affect the other branches of government? This is not an easy question. No, it's not, it's convoluted. It's very difficult. Hey, but you know what? Guess what? The fence metaphorically and in reality is being breached. They're climbing over the new fence, but they're hurting themselves in the process. So all the local hospitals are filling up with people that have been injured trying to climb over the fence. And to go to Ari's point that maybe you shouldn't take on the Supreme Court because you might get hurt too. So I think we've kind of touched on this a little bit about this dysfunction and how it's affecting other avenues of government, but maybe it's government that's affecting the Supreme Court. And that is, we really, since Ronald Reagan and taking in Jerry Falwell and the moral majority and the influence of Catholics in the recent days, we're kind of moving into a theocracy. And that's not good. I'd like to see the provisions that a firewall so thick between church and state that you can't see between it. We're not seeing that anymore. And I think we're losing our way as a country because we need the political support and votes from either the evangelicals or the Catholics or whatever. And I think we've lost our way in every president that brings the camels known or the tent in the form of religious groups. Those candidates have lost their way. Stephanie, what's wrong with the theocracy? I mean, this court seems to be going there. I mean, if they believe it at least a third or 40% of the country believes it, maybe it's a good thing. I mean, if this is the will of the people, let's go back to witchcraft. Well, they just are putting the burgers back on across the ocean. So I don't think any of us want to do that. But I do appreciate the comment about the two new women justices and what impact they may possibly have, which I don't think they're very strong and couldn't ask for more. But in the situation, I don't know if this is moving the mountain. Of course, Martin Luther King did move the mountain a bit, but it'll be interesting to watch them. But if Justice Roberts is looking at things from his perspective that we've come to understand is more general and neutral and maybe more democratically legitimate. I mean, he, according to the news and the newspapers, he's been trying to do another approach to it that and even trying to convert one other to leave the row in place, to leave that particular decision in place. But put in some other things that the majority want to have. But the point of that is what is Roberts doing? And based on what we know he has done in the past, is he strong enough? And is he powerful enough? Great, great questions. He seems to be less strong. We thought the Chief Justice had more clout than this. He can't have been stopped Clarence Thomas, really. And he's probably not going to be in the majority of that decision because he didn't show up as the writer of the decision, Alito showed up. So maybe he's going to write a concurring decision in part maybe, what do you think? Well, I think that's right. I mean, the inside baseball rule is that if the Chief is on the majority side, that's what Jay's referring to, then he, so far it's always he assigns the majority opinion. If it's not the Chief Justice, it's the most senior justice. So that is some authority. And Kennedy loved that position actually. So that's why sometimes people think he voted the way he did. So he'd be the one to assign the opinion. Sometimes, of course, to himself. But I think there's a lot in what Tim says about what's happened with religion. And it also relates to what Stephanie was talking about. The court has gone to not playing by the rules in terms of their internal stuff, their shadow docket, as it's been called, only in the last few years. The shadow docket has been there for a long time. It's where you give extra time. You say, yes, you may file that brief. That sort of thing or kind of technical day-to-day stuff. All of a sudden, they're issuing emergency orders when there is no emergency, if they think free exercise is at stake. And free exercise is suddenly not just equal to other speech. It's actually favored over other speech. And they've forgotten, apparently, that the First Amendment has another clause about religion which is called the non-establishment clause. They're not supposed to have the state mingling with religion. And they're clearly doing that. And I think that's what really has pissed off Roberts, actually, and he's been unable to control that because there are enough votes for them to try to just jam it through. And they've done it repeatedly about voting as well. So these are really serious things. And I think a lot of the trouble we're in can be traced back to the court. Guns, for example, nobody thought there was, well, not nobody, there was no independent right for an individual to have a gun until Scalia discovered it in Heller in 2008. And then they extended it and applied to the state. Unenumerated, if you will. Right, and he had to do that by saying the Second Amendment naturally has two clauses. And that naturally kills me every time because he didn't believe in natural law, but suddenly he's naturally reading the text. He said, I don't have to talk about the First Clause, which is about the militia. I'll talk about the Second Clause. But when you talk about gambling, I mean, I think we really have a sports gambling scandal about to happen because it's all over, all the ads when you're watching a basketball game. Here's the way we'll give you a free whatever. That's because the Supreme Court struck down Congress's authority over the states in the name of federalism. So now the states in theory can regulate or not, which means it's unregulated. And on and on, the problems with race, the problems with voting, the court has been a major player in our crises plural. And it has changed structurally and philosophically and even in terms of its own procedure. By the way, I noticed that so far we haven't spent a whole lot of time on the leak. And this is good because Larry Tribe said, when you talk about what the Supreme Court did, you should talk about the content, not the leak. That's what he said. He's right. Well, I have to go take a leak. No. I hope it was nothing we said, Avi. So Tim, this really doesn't speak very well. And I guess you and I, Tim, have talked about Trump's legacy for the past five years. He's still giving us legacy even now. And my question to you is how much of what has happened? The philosophical shift in the court, the procedural shift in the court, the whole attitudinal thing and the fence outside the court. How much of that do you ascribe to our friend, Donald? A lot. And it's, again, it's the permission. Governor White said, when people are given permission, they act badly. And we've been given permission by the Commander-in-Chief, the President of the United States to look past the rule of law, to look past poor behavior, really raunchy speech in the public discourse. And now it's like, okay, if there's set rules that weren't, and they were tradition for hundreds of years, well, tradition be damned because Donald Trump destroyed tradition of government, even though they weren't in black and white in our Constitution. So he is the wrecking ball of many things. And it has not been a good day for democracy or the Republic. Okay, we're running a little out of time here, Stephanie. I'd like to ask you, how do you think this decision and other decisions that the Supreme Court will undoubtedly issue, such as in the area of contraceptives, and maybe gay rights as well, how is it gonna affect the country? How is it gonna affect our quality of life? How is it gonna affect the marital institution? How is it gonna affect the economy? In that narrow area of human rights, how is what this court is doing, where it's going, gonna affect our daily lives? Well, we're gonna see a lot more pregnant women walking around the streets of America, and we're gonna need some expansion of the obstetrical services at the local hospitals. And it just reminds me of the book about going, Alison, we are going back to the 16th century. What would you see there that's different from now, mostly? And the number one thing, that was all the women were pregnant, okay? And the other thing was that the teeth were a problem because they didn't have dentistry. So they were all in trouble there. So is that, I mean, and then I think we ought to have a check to make sure that all Supreme Court justices married to childbearing age women have either, just had a baby or having the next one now. So I think that's a major difference, okay? But any, I mean, it's unthinkable. And when I hear leaders talking about this, elected leaders talking about it, it's beyond my comprehension, how they have the nerve to go against public opinion. And contraception must be much, much higher than 70% opposing abortion regulation or prohibition. So could it happen? Yes, and I think people ought to get ready. I would hope that this is a stimulus for voters to turn out to strengthen the impact on individuals' personal lives. I think they will. I'm hoping that they will. I think they will. I mean, women have got to be thinking about this, if not for themselves, for the rest of their families where they have childbearing people. I mean, because all we're learning about now that the Republicans want to ignore is not about, is about how it interferes with women participating in the society. I mean, things are really different from pre-birth control, you know, the 60s. There wasn't any birth control in the 60s and even in the early 70s. And look at the difference. I mean, why do we have women on the Supreme Court? Why do we have women in professions? Because they don't have that. Because they have control over their reproduction and the amount of childcare they need to do personally in their lives. So it will be a major shift of life. Well, I think we can expect a lot of major shifts. You know, one of the reasons when I framed this, Avi, to say, you know, how concerned should we be in where the court is going was with the thought in mind that this is only one very, very important civil right, human right in the country, and enlightened human right in the country, as in most of the world actually, there are only 24 countries out there that actually ban abortion. The rest of them are perfectly agreeable to it, including a number of Catholic countries right now today. But it's not just that. It's the whole thing unleashes an attack on our civil rights, on a bill of rights, on freedom of the press, which is probably the scariest one of all. So could you comment on, you know, this trend, this arc, this trajectory in terms of the civil rights that we have assumed belong to us? Well, it can't be done in the name of textualism to protect a lot of the things that some of these conservatives want protected, including parental authority over the education of their children, which was, as we call it, substantive due process in a couple of important decisions in the 1920s. So that's become a big political issue, but it's not in the Constitution. The parents have authority over the education of their children. I think it does finally get back to Stephanie's suggestion and Liz Estrada. I mean, it will affect people, and particularly in that way. And those things are certainly in danger, depending on how this opinion finally comes out. I doubt it's gonna be what we saw in the first draft. And I was kind of surprised that Robert said it was authentic. I don't know why he did that. There's a conspiracy theory there are many, of course, that it may have been Roberts himself who leaked it, but we'll see if we ever find out. Yeah, you wonder about that. You wonder about why the reference to the 13th century was really special. So, Tim, again, where are we going on this? And your thoughts, your closing thoughts as my co-host here, your summary of where this is going, because our discussion's not over, but it isn't happy. Where it's going is I'll take Avi's comment about where's the handbag. The Supreme Court, remember they said they got it right when slavery was constitutional. Until they didn't get it right. They said they got it right with the internment of Japanese-Americans until they didn't get it right. They now are writing a draft decision about getting it right about this issue and ignoring what states are doing, which is to say, if you are a female who has been the subject of rape, the subject of incest, you have now said we've gotten it right that women are nothing more than human incubators and not a carer or wit to the psychological damage to women by forcing them to term under a case of rape or incest. And I don't think they have it right. And so there needs to be a middle ground here on this decision. Maybe it's 15 months, I'm a Catholic. Maybe it's 16 months, 17 months. I don't know where the exact magic number is, but to force a woman to come to term with rape or incest is outrageous. And not only that, but also allow states to pass laws that they will prosecute them when they return from having an abortion service outside the state where it's illegal. That's even more outrageous. And that's where I'm gonna stop because I'm just warming up. Yes, I know. We live in a world of outrageousness. It's not only the Supreme Court. Stephanie, I'll offer you just one last moment for rebuttal, if any, of Tim. And then I'll offer Avi the same. Where are we going on this? Do you agree with what Tim said? Are you concerned that this is a low point for the Supreme Court from which we cannot easily recover? Yeah, absolutely. Well, I think we can easily recover and science can take us there and can take us beyond transcend these issues. I mean, we have medical abortion and all kinds of ways of operating now because of science and medicine. And that's gonna be the next thing they're gonna wipe out all that too. This is just against all notions of American progress that we lead the world in. And the other issue that I'd like to see brought forward is the womb that is an artificial womb. I mean, there's got to be research going on about that so that people can choose to not have a surrogate that's a human. There also probably could be a surrogate that's not human and that has all those. So those are pretty radical positions. I know that, and I'm Catholic too so I understand this is very radical. It's not too late for you guys to convert. But the point is that we've got to go to science and I see no hint that any of these people on the Supreme Court are enlightened by any of that. So there's also better notions we can develop out of scrutiny of the viability of life and those kinds of definitions. There's been nothing about that. And so I have this vision of it's bedtime. It's bedtime for Bonzo. And we have the wife and the husband and the husband turns the wife, he says, good night dear and he gives her a kiss. And on the other side of the bed is Samuel Alito and he turns around and gives her a kiss too because he's there with them enjoying the sanctity of the marriage. It's a three-part marriage now. Avi, you and me have talked about so many times we've talked about where is the Supreme Court in terms of its historical sine curve. And we'll have to agree that there have been ups and downs in the Supreme Court since 1789. But where are we now? Is this one, this is like a Passover question, is this down different from all the other downs? Very good question. And you are the guy who knows what question to ask the wise son. So that's good. I think we tend to forget and I think Jay himself tends to forget that there have been some other really serious down. Fred Scott, of course, being one of them. But so was Plessy versus Ferguson and the court had lasting impact. There was a civil war after Fred Scott. What the court did to embrace and legitimize Jim Crow is a horrible story which tends to be forgotten and the court did that over many decades in the late 19th century. It wasn't just Plessy. A whole bunch of cases that did in voting rights, for example, there had been a promise right after the civil war in the constitutional amendments and statutes. And the court did them in very quickly, very soon after the civil war. And that lasted for a long, long time and we're still paying the price. So, how long does a down remain a down to be called a first down or anyway? It's time to pump Jay. It's time to pump. It's four times. All right, there you have it. Tim Epicellas, thank you so much. Abhi Soifers, Stephanie Stoll Dalton. I leave you with only one thought. Thank you for making the time. Thank you. Thank you. Thanks for your insights. I think it's what you're also supposed to say. We appreciate you being here. I do. I love it. Thank you so much for watching Think Tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram, Twitter and LinkedIn and donate to us at thinktechhawaii.com. Mahalo.