Jodi Kantor on the Supreme Court’s Shadow Docket

Welcome to another episode of The Oath and the Office. I am John Fugelsang and on this week we've got us very special guest and Jody Cantor and Donald Trump's new 1.8 billion dollar anti-weaponization fund which is the most honest corruption scheme in American history. Friends, most politicians try to hide their bribes. Donald Trump is basically stable to post it note to the Treasury Department that says, money for my friends. For more let's go to the star of our show, the author of The Oath and the Office, Ivy League political science professor, the Mac, Corey Brettschneider. Welcome professor, it's good to see you. Thanks John. You know the corruption is just getting so much more rampant, so much more blatant and yet you know every week we get to talk to each other. It focuses me, it gets me ready for the fight ahead to be honest about what's happening but also to talk about you know how we can have hope in the midst of that and of course after our discussion about the important recent topics we're going to go to somebody who I think is just the premier person on covering what's actually happening at the Supreme Court. So much of what we'll discuss today is relevant to the shadow docket, the secret emergency orders of the court where they don't tell us why they're doing what they're doing. Well Jody Cantor did more to uncover this process, the motivation and the reality behind it than anyone else. We'll talk about that. Also her reporting on the immunity case revealing aspects of that that weren't in the light until she came to it. So it's really an incredible person. Of course she also is the person who broke the Harvey Weinstein story and in many ways is responsible for the Me Too movement. So it's really another incredible episode on the backs last week of an incredible episode with the ACLU legal director Cecilia Wang and I've heard from so many of you about about the power of that interview. So John I look forward to another great discussion. Well Corey thank you I'm really thrilled about Jody Cantor and I'm thrilled to talk about this presidential slush fund with you, this massive compensation fund for people claiming they were victims, victims of law enforcement, of Biden era government weaponization. This is all Trump settling his own fake IRS lawsuit tying himself financially to the process. I mean this isn't even normal corruption Corey, this is corruption with stadium lighting at a gift shop. The president controls the Justice Department, he controls the Treasury, he sued the government he controls, then the government he controls agreed to give him $1.8 billion of our dollars to fund people that he appoints and supports to reward people who claim they were victimized by investigations for their crime. We have achieved Venmo for fascism Corey and clearly this is grievance politics dolled up in executive power. This will be in the history books as legendary corruption, they don't seem to care how it looks in history but let me ask you about the history. I mean do authoritarian movements often create systems that reward political loyalty while framing the leaders as permanent victims? Is this new? Well definitely the phrase Venmo for fascists, I think I've ever heard that before and it captured so much of what's happening because you know it really is just a payment scheme from the president to himself or to his political interests and you know let me just say in answer to your main question like how can this happen? And the answer is because of the structure of our system. It's the same way that Trump has escaped liability for his crimes because the Justice Department despite the immunity case could continue to prosecute him that's never going to happen because who controls the Justice Department? Exactly. The president who controls the IRS, it's the president and although there were protections to try to insulate civil service decisions and public interests from our president's own ambitions, those have turned out to be you know weak to non-existent checks and increasingly we've talked about the theory of the unitary executive, the control by the executive over the various executive branches even the civil service. Well you're seeing an extreme you know this would have been an absurd hypothetical example in a law school exam 10 years ago now it's reality which is that the president because he controls the IRS because he controls the Attorney General has basically come in and say hey I want you to pay me to apologize for all the wrongs that were done to me to the IRS. Now you know his lawyers and there was a court process that was about to get underway something got to him to realize you know what that might be a little too on the nose too corrupt, too in the spotlight, too much really sticking of you know middle finger in the face of the American public so he comes up with this alternate scheme that is is it as bad it's just different it is as bad and it's to reward his supporters for participating in his own coup. Yes to reward criminals and terrorists to reward people who beat cops for a lie I mean even Vladimir Putin, Corey, Vladimir Putin has the decency to launder money through oligarchs and shell companies you know this is just there's no oversight whatsoever the fund literally says it can decide its own rules it can decide who gets this two billion of our money a secret it has no judo sewer view it's just it's a guy who ran a casino into bankruptcy saying trust me right like what what safeguards if any exist against a president effectively turning the federal government into a personal piggy bank for his friends and flunkies. Well this is the Oath in the Office podcast the president takes an oath to preserve, protect, and defend the constitution but our question from the beginning has been well if the president disregards that oath what can we do well in that IRS case there was a judicial proceeding there was some pushback there was at least bringing it to light and it was such obvious self-dealing because it was the president financially and his sons who were going to benefit so he shifts it a little bit well to demand in settlement support for his militia for those who attacked the capital he didn't pay the militia as far as we know directly before but now he is and that's what's happening so yeah these are kind of you know fascists often have storm troopers and those storm troopers ideally are going to be rewarded while they're rewarded with a pardon but you know that puts them you know back to zero now here they're in the black they're going to be paid and uh it incentivizes to future action and loyalty not to the law not to the constitution but to this president amazing and let me just say it again because you know we brought it up a couple of times but i want to be so clear we live in a very very vulnerable system the president of the united states has more than two million people in the executive branch and although there used to be in the 1970s and before either norms or or legal limits on the president's ability to do whatever he wants with those two million plus people with this enormous budget increasingly the president under this theory of the unitary executive enabled by the supreme court in part has exerted control now what you're seeing is legislation that handed over money to the department of justice to compensate it was thought in you know good faith in dealing with people who are wronged and there really don't seem to be many limits on that now what happens when a president abuses that trust well it's unclear i mean i think there will be litigation there'll be an attempt to stop this but i'm not confident about it i mean january 6 terrorists which is what they are folks i mean go to a dictionary though they were terrorists if you're using violence or the threat of violence to bring about policy change you are a t-word new york times letting you know they're now getting paid by weed the taxpayers for the violence they committed at our capital and trump allies and flunkies and conservative influencers i'm sure trump himself is going to get a taste of all this and the legal logic professor is incredible because if the president can sue himself and settle with himself with our money why would congress ever control spending again isn't that the real scandal it's not just trump stealing money he's establishing a principle that the presidency itself is above accountability that congress appropriates funds unless the emperor would prefer cash am i right i mean yeah this reinforces the whole strategy of redefining accountability itself as persecution yeah and you know at the same time that he's claiming to be a victim he is victimizing the rest of us because he's taking this trust you know in congress hands over money like this and gives lots of discretion to the president and sentling lawsuits what are they doing they're essentially you know giving over a good faith effort in the thought that the president is acting in a good faith way wake up congress that's not what's happening here and we haven't seen congress push back on those delegations and those allocations of funds without any limits and the consequences when you have you know bad faith a criminal president let's not call it bad faith it's way beyond that he's going to abuse that trust and we have a structure of presidentialism where the president has been given so much authority and a bad bad criminal president who's just able to you know it's not clear what stopped him exactly from stealing the money from the irs that's what it was an attempt to do but he clearly got a little too embarrassed so he just shifted the focus unless this was always the plan for you unless this was always the plan maybe less always this was always the plan and you go with the lawsuit so you have the settlement at the end right and the lawsuit is to intimidate your way to the settlement that you want to have i mean it's just incredible to me these republicans spent decades screaming at government that this welfare creates dependency and now they've created a billion dollar grievous stimulus package for professional victims i mean this is affirmative action for insurrectionist terrorism and the whole message is stay loyal protect the boss there's money in it for you right i mean it seems like grievance is effective as governing philosophy core you can make a buck trump is not really running as president he's running as a plaintiff in america versus everybody else you know the constitution has two emoluments clauses which bans exactly this kind of self-dealing using the presidency for profit there's a foreign emoluments clause that keeps you from negotiating with foreign leaders in order to benefit yourself of course we're seeing tons of violations of that with the president's son-in-law for instance using negotiation to benefit himself and his son's and his son's and the ghost of hunter biden is screaming and there's also a domestic emoluments clause this is a paradigmatic violation of that which is using the office to either profit yourself or arguably to throw money to your close allies and yet we don't have legislation that stops it we're going to talk with jody canter about the origin story of the immunity case that has enabled trump given him essentially get out of jail free card so even though he's doing things that are arguably illegal and criminal all the time he thinks to himself i'll just say it's official duty with the immunity case says just to clarify for people trump versus the united states is it says the president is at least presumptively immune when he's acting in his official duty so if he's going to kill somebody on fifth avenue maybe he wouldn't get away with it it was for personal reason but as long as he says well it's for my official duty that's why i killed somebody on fifth avenue that's it he might get away with it and at least that's the logic of how he's thinking and that's what's so disastrous about that case that we're going to talk about that it leads to this kind of blatant corruption that we're talking about right now yeah i mean and again you know this is why i don't call donald trump a fascist i can't do it because fascists believe in things right his movement is fascist he's surrounded by fascist flunkies and henchmen but i mean corruption isn't a side effect of trumpism corruption is the governing philosophy it's not conservatism it's not populism it's not christian nationalism with this guy it's friends of trump eat free and that's it the corruption is the point the fascism is just the side effect the fascism is just the car that follows the hood ornament that is trump and to that end i want to ask you about the supreme court because the politics of abortion are getting increasingly difficult for trump he's always been able to straddle the line and lie and say i wanted to go back to the states when in reality that's not what they wanted they want to ban it they want a government that tells citizens they are forced to be pregnant against their will and we see the conservatives in his circle are not satisfied with getting rid of roe v wade they want national restrictions swing voters are not going to let that happen and the supreme court keeps handling major abortion questions through the emergency docket without often any opinions or even transparency i mean professor has this party painted itself into a corner by overturning roe and then discovering voters didn't want that and don't like the consequences well i've been saying in our discussions from the beginning that when it comes to the question of abortion the dobs decision which ended roe v wade sold itself by saying okay we're restoring the power of democracy we're restoring the ability of the states to make this decision abortion or no abortion but from the beginning i worried that people like elito and thomas and justice gorsuch as well have a deeper agenda just and john roberts to john roberts he's more evil than we're gonna talk a lot about john roberts he's smart enough to know better he's more i mean there's two john roberts is the one that we see in the public and one that we see in private but at least with these other justices it's been very clear that they have a different kind of agenda gorsuch for instance in his dissertation and his first book gives i'll call it very strong hints that he favors a national ban on abortion because of the fetus after all is a person and recognized under the constitution there has to be a national equal protection guarantee for that person and that means a national ban on abortion now none of this is in the bible folks none of this is in the bible none of this is in the constitution definitely not and elito in dobs does two things he says yes we're returning it to the states but he also talks a lot about the status of the fetus in a way that sounds very close to what i just said about justice gorsuch well now we're seeing this question which is we have a supreme national federal law that okays as safe myth of pristone abortion drug and yet we have a ban on abortion in states like louisiana that's right so louisiana is like hey you know you can't continue to act in this national government way without interfering on our power to make abortion illegal so the state right is now conflicting with the federal power to enact myth of pristone and people like elito sure enough are like hey you're undermining by allowing that drug to be shipped to states where abortion is is banned you hear him screaming this you're undermining the dobs opinion well you know the reality is that we live in a national system and yes there are states but the idea that you're going to just cordon these off i think from the beginning this has always been an issue that's going to have one resolution and the states rights compromise can't last you're seeing that also from pro-life groups and ultimately there's going to be a question i think not of what states are going to say but what this government will say i hope certainly that the right to privacy is a firm the right to abortion but the force is on the other side we'd like to bring it a different way meanwhile just a last sentence donald trump is pretending there's no issue don't look over here you know if it looks somewhere else this isn't a waiting issue for him well and before the break i wanted to ask you about that because man baby is trying to speak both languages at once right states rights to these folks over here and the national anti-abortion signaling over here i mean it's not legally coherent and it's politically impossible it's just another sign that donald trump doesn't really have any ideology beyond whatever helps me is what i want i think that's right you know i think the idea that he's got some coherent view on abortion somebody who brags constantly about his you know sexual libertinism and you know at the same time sometimes pretends to be a serious christian what does he really think he really doesn't think anything he really thinks i want to do whatever's going to get me ahead and i'll cater to evangelicals when it serves them and i'll cater i hope pretend to be a moderate on abortion when that serves them that's it and i think he was hoping well dobs was sort of the perfect answer for him oh i can say this states rights thing i can say democracy and then in the end what he's learning is it's much more complicated than that it's because we have federal laws that okay abortion drugs and we have state laws that ban it and i again i don't think that conflict's going away and i wonder why the emergency docket here was used by the liberals this time and you know i think i want to actually call that out you know that usually they're complaining about it oddly you have elito saying well the liberals aren't giving any reasons it's like yes supreme court give reasons don't be relying on this secret process all of you and i just want to point out that donald trump always supported women's reproductive freedoms he was staunchly as they say pro-choice for many years until he realized he could gain more power by pretending to be against abortion pretending to be a conservator pretending to be a christian and pandering to people who watch pro wrestling and then break off into discussion groups it's all been a con and it's driven up the infant mortality rate we got to take a quick break when we come back let's talk a bit more about the corpse of the voting rights act this is the oath in the office if you found yourself asking can 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peska on apple podcast spotify or wherever you get your podcasts and tell them i sent you welcome back to the oath in the office i'm john fiegelstein professor bretchnider the supreme court has now allowed alabama to go ahead with elections under their newly redrawn congressional maps again through the emergency docket and again with very little explanation this is a feeding frenzy and it goes to show that boy all along they were going to do exactly what they were going to do as soon as they got that meddling voting rights act taken away all the critics have been proven correct and this follows louisiana redistricting throwing out thousands of already cast votes amidst these continuing fights over the bra i mean the court is just rewriting voting rights law without openly saying so right that's such a good way to put it john and we've talked about this louisiana case that essentially pretended that the 1965 voting rights act remains in place and yet eviscerates it because what it says is the only way to really rewrite districts in a way that preserves black voting powers if you can show that it's correcting intentional discrimination that's very very hard to show even as we talked about even in the travel ban case the supreme court wouldn't admit that the muslim ban was a muslim ban and so what does it leave us it leaves us with a green light as long as people don't admit that they're trying to dilute black voting power as long as they say this is partisan gerrymandering partisan rewriting of the borders they can do whatever they want and if we had any doubt of that because the case makes it more ambiguous the supreme court when it not on the shadow docket went and said oh we're not getting rid of the 1965 voting rights act now that it's implementing that ruling through the shadow docket and that's why it's so important that we're going to talk to jody canter about the details of how this began and how it works this shadow secret docket now we're seeing them say yeah do whatever you want and so louisiana you know alabama all these red states want to rewrite their rules to destroy black voting power that's it courts giving them a green light and not telling us the reason why they're just you know keeping it secret but that's it why it's a okay did in that case they got they essentially got rid of the 1965 voting rights act yeah it's death by a thousand cuts i mean this is a process that john roberts began with every fiber of his racist aristocratic shriveled up black and hard back in 2013 i mean they're weakening the voting rights act incrementally because they don't have the actual manhood to just overturn it outright is that fair to say i think that's right clarence thomas probably would have said you know at least section two is unconstitutional it conflicts with the meaning of the 15th amendment that historically is false but that's the view that clarence thomas would sort of lemonade at a lynching wouldn't he'd show up to he'd show up to give pedicures to the lynchers when it was done well you know i think too john roberts who are going to talk much more about what jody canter has this public persona he's famous by the way for talking about balls and strikes and judges or umpires meanwhile this guy was in the reagan administration and he was from the beginning talking about trying to basically undo the voting rights act from the 1980s and so the idea that this is some sort of neutral balls and strikes you know person of integrity i mean i just don't buy it and when you read which will link to in the show notes the secret memos from justice roberts talking about why it is and this is in a different case but why it is that he's especially worried about of all people all entities the coal industry you really see this kind of libertarianism and that that is the philosophy that i'd say it is an extreme libertarianism not thinking the federal government should intervene with our decisions about protecting against racism not intervening to protect black voting power those all undermine freedom as he sees it and the freedom of the coal industry is another part of his freedom that he cares about so the idea that this is some neutral justice yes he's got this public persona he's giving speeches always about umpires and neutrality this is not somebody who's operating in that way and you know what it'd all be conjecture except for the fact that jody canter found the good she showed us the memos as we'll talk about that reveal the true john roberts and the other place that we're seeing it certainly is in this voting rights area as well well i'm ready to talk to jody canter let's take a quick break we'll be right back this is the oath and the office hey all glenn kershner here so friends i hope you'll join me on my audio podcast justice matters you care about ethics in government criminal justice reform a conflict free federal judiciary i thought so on justice matters we take on issues involving the need to reform our government and its institutions and we talk about real achievable reform i hope you'll join us look for justice matters wherever you usually get your podcasts welcome back to the oath in the office it's my pleasure today to welcome jody canter jody canter is a reporter at the new york times and goes without saying that her journalism has really been a shining light into the hidden functioning of the supreme court an institution that we need to know more about and often don't know a lot about how it actually functions and i'll mention in particular and we'll talk to her in depth today about her major work on the origins of the what's often called the shadow docket she's a winner of the Pulitzer prize and of course we'll ask her to and i need to mention her new book which is a new york times bestseller it's called how to start discovering your life's work a guide for recent graduates college graduates and others many people listen to this show or in that position they're going to want to know how to start so i look forward to talking about that too jody if you don't mind we'll start by asking about a question that really is on all of our minds listeners to the show our guests we've all been talking about the shadow docket i think our listeners know what it is but we do have new listeners and if you wouldn't mind just saying something about what the shadow docket is and also what you're reporting revealed about the origin story of the shadow docket sometimes the court pretends that it's been doing whether it's the theory of originalism or whatever its work is that this has been going on since the 18th century or something you of course tell a much more recent origin story so what is it and and what did you reveal in your reporting about its origin okay great so first of all thank you so much for having me on pleasure to be with you when we think of supreme court cases we think of a slow speed we think of deliberation we think of being very very careful your classic supreme court case takes a really long time to play out and there are many many many many many steps that ensure careful consideration like rounds of briefs like oral arguments that as you know can go on for quite a long time many hours in which the justices really hash out the legal issues with the attorneys and the public can listen in via audio there are opinions that circulate within the supreme court before they become public in draft form and that's in part so that as the collective they can improve the opinions they can really think about what they want to say they can deliberate they can change their minds another step in the process is that for merits cases or what we think of as classic supreme court cases the justices meet in person to discuss them and vote they have this meeting called the conference meeting that is a super confidential meeting it happens in a special room at a special table and the point of all these steps is that they are meant to ensure thoroughness so let's think of that as like kind of the ideal of supreme court decision making the shadow docket is an alternate track and it's existed for a long time but until about 10 years ago it was really used for true emergencies like death penalty cases or election cases that had to be decided immediately in the last 10 years what we've seen is that the shadow docket has swelled that the court is making more and more decisions on this emergency basis and just structurally it's not as in-depth or slow or careful and it's much more secretive it is a rushed fast track process and the reason why so many people have criticized that is that there are really two worries I mean first of all the court has awarded a tremendous amount of power to president trump using the emergency docket since president trump returned to office it's been over 20 cases and these cases as I said like move very very quickly the justices are skipping some of the time tested steps of deliberation they're also very secretive perhaps the most important step that they often skip is these cases don't really have opinions they have orders some of these if you've never seen one to picture one of these orders picture like a paragraph of legal boilerplate we counted when we wrote about it was 142 words and they don't have any reasoning like they say such and such you know the court is going to green light this or red light this but the essence of how a court gets authority and trust is an opinion a judge sits down and writes an opinion that is an act of humility and accountability saying here's how I got to the result that I got to and you may not like it you may disagree this decision may be bad for you personally but I want you to know that I did it in good faith and I really followed all the steps of the law so I mean that is what the docket is and and then I could then if you want I thought I should stop for a second yeah if you want I can tell you about the particular sort of scoop and reveal we had about how the shadow docket originated yeah I was going to say also in transition that you know as you noted so much of the these recent decisions enabling president trump have been done in secret without any kind of reasoning and that reveals on the one suspicion is that that reveals a kind of partisanship on the part of the justices the conservative majority doing this and what I wanted to ask you about the origin story is it seems to further excite that worry because its origin seems to be about conservatives blocking a more liberal president so yeah tell us that origin story and maybe you could in the process tell me I mean am I right is it as bad as it looks in your reporting so here's what we put in the paper that felt tremendous at least us for a couple years now many many many observers of the court people like yourself scholars have been saying how did the court start doing this like why like especially given historically low trust ratings in the court and given the fact that the chief justice really has a reputation for being careful and you know very conservative but also very deliberate why would they kind of throw out the time-tested judicial playbook and adopt this rushed and secretive new way of doing cases so they didn't do it obviously all in one day but there's one case that's like really a hinge case it's a pivot point and that is a 2016 case in which the court blocked Obama's climate change plan it was really a shocker at the time because the court stepped in front of the DC circuit to intervene which the court had never done anything like that before and there was this tiny little order that had no explanation and so when we look back at like the origins of the modern shadow docket and the origins of the controversy over it this is like the signal case so usually supreme court papers are the secret for a long time like generations to come so I am I think if people are listening to this particular podcast they might know about this New York Times article already but I'm just going to say for anyone who missed it that I am really happy to tell you that Adam Liptak and I put 16 pages of the justice's internal correspondence into the paper allowing you and anybody else in the world to finally see the reasoning behind this decision which the court never shared and to literally see the origins of the shadow docket with these papers we can eavesdrop and witness the justices backing into this new way of doing things like like literally the moment of the decision where they're saying yeah we usually like we've always done it this way but now we're going to do it now we're going to do it this way so to your question about like does this reveal a totally partisan court I think what I definitely reveals a partisan divide in the case right I mean the conservatives are rearing to go and the liberals are truly worried about what's happening the figure who really leaps out is Chief Justice John Roberts because he's cultivated this reputation as I said for you know being very deliberative being very careful he's talked about being a minimalist and only calling balls and strikes and the figure who and he doesn't say much in public right this is like not a person who gives regular interviews the person in this papers comes across as a really different jurist he is super duper in a rush like he's moving this whole thing is a flurry of five days of it's like five days that changes the supreme court they're moving very very fast he from his very first memo he's like a bulldozer he comes on very strong he wants it the way he wants it and he doesn't there is some back and forth among the justices but when the liberal justices raise like pretty common sense procedural objections they're saying I've never done this before we're uncomfortable why the rush he's very dismissive and it also turns out that he's in a power struggle with the Obama administration and particularly the EPA he feels that the court was sidelined in a previous EPA case and he doesn't want that to happen again so it's not like I want to be careful people should look at it themselves and see what they think it's not the kind of rank partisanship where you know the justice where like the conservative justices are saying like great we now get to you know like enact our anti-regulatory agenda what I would say the standout is is that it's nobody's idea of like really first class no liberation it's not legal thinking the way that the justices need to display when they're doing asking questions and oral argument or writing opinions and yeah that's something to dig into more is well what is it reveal and one thing that you've told us which I think does jump out at you is that this balls and strikes neutrality that Roberts portrays that's not what's going on behind the scenes and it might be obvious but just for living in one case like I just feel the need to say fairness yeah it's very very very rare to see these kinds of papers right like this is one example in years and years and years the chief justice's writings for all we know there is like right there's a bad moment or something there could there could be five X or 10 X the material in which he is that cautious figure I ask you about what it portrays about him because it does strike me as such a huge contrast from this public persona when I was reading it sort of sympathy for the coal industry and for industry the worry about cost you know those are not the way that conservative justices who focus on the text of the Constitution or its original meaning or the meaning of statute it's really seems to be not just a straightforward policy one worry about an administration doing regulation I mean am I reading it wrong I mean that's what he comes across as extremely skeptical of regulation and it's interesting you know that so like not to get too technical but the term irreparable harm comes up in these decisions because the standard for moving quickly is like oh is there going to be some irreparable harm that provides a rationale for moving quickly like meaning if we didn't do this thing would there be some irreparable harm and he talks about irreparable harm to the coal industry to the state nobody none of the justices mentions irreparable harm to the climate like basically what Obama was trying to do with and by the way again for fairness there was a real legal question about whether the Obama administration was within the boundaries of the Clean Air Act like were their actions awful true legal debate there like they were they were pushing it right and different justices felt things broke down along partisan lines basically about the merits stage of the case but what we see is a chief justice who is extremely concerned about what's going to be expensive for industry states in fact like justice brier who's always been a close ally of the chief says what's the rush like why would we do this okay and the chief's answer is we have to move quickly because this is the most expensive regulation that has ever been imposed right I mean that is what leaps out of me I mean if it was a behind the scenes look at sort of the blunt way they talk about their own judicial philosophies I could imagine Robert saying wow this is a blatant disregard of the text of the Clean Air Act and this is an instance in which the EPA is usurping its authority and threatening constitutional governance because this is really the domain of the legislature and there's no delegation of power something like that that's emphatic okay that wouldn't have been as careful maybe is what you get in public but instead I guess what I'm reading is a kind of blunt libertarianism which is that there is a excessive regulation that's going to be high cost and not the kind of reasoning that you usually get from a justice who claims allegiance to you know textual interpretation so that I guess is why I was thinking not partisanship in the sense of you know four against one party but a kind of partisan libertarianism these are the politics that I care about this is the policy views that I hold and that is something that some justices over time justice Holmes for instance said let's just do policy and sometimes you do hear that from Justice Breyer but the whole basis of modern conservatism is supposed to be this allegiance to the text and it's neutrality it's not about policy and I guess that's what really grabbed me and you're reporting and although you're being careful about it I guess I don't hear you dissuading me from that idea that Roberts really is not doing what we think of as law here but as a kind of policy but there might be more to it or more sympathetic justification well what I was going to say is that I think the biggest like a lot of people have asked the question there have been different readings of the papers I mean not surprisingly it's broken down along partisan lines there are many many people who've had the exact same interpretation as you did there are other people who have focused on the fact that there was a real legal issue with like whether the Clean Air Act authorized the Obama law the Obama administration was leaning pretty heavily on like a you know kind of obscure provision of the Clean Air Act but what nobody I haven't heard a good explanation on the right for the rush or the lack of transparency like particularly the lack of transparency you know as you know Justice Kavanaugh has defended the court's handling of the emergency docket to some degree but in the commentary I have not heard I maybe I missed something but I have not personally heard anyone even on the right say yeah that's totally fine to be big moves without issuing opinions I think that is a major thing to focus on again because I mean listen Corey I'm not a like I'm a law school dropout right I'm I'm a proxy I'm not a law professor type am I proxy for the everyday reader who wants to ask common sense questions of the Supreme Court and I think a powerful common sense question is courts issue opinions that's how courts protect their authority even if your views are very conservative like don't you want to win people over don't you want people to buy in to what you're saying don't you want to preserve your own authority so like like here is where we got I think beyond our reporting and into like you know a realm of psychology that like is is very hard to touch as a reporter but we can ask the question even if we can't answer it which is like okay Chief Justice John Roberts given that the use of the shadow docket has so greatly expanded over the course of your tenure given that there are so many important decisions that the court hasn't explained how do you justify that and what effect do you think it is having on public trust right yeah I mean I should say you're being extremely modest of course you've you've done more to explain what's actually going on with this court than I think years and years of scholarship you know a common way to study the court is to praise the justices or to take their words at face value and I think what this reporting shows in a really deep way is that there is of course a politics of the court that's going on we've known that but what it is we haven't known and now we do know it so I I mean that's sincerely you have taught us a great deal way more than certainly most law professors or political scientists could teach us so thank you for that I mean I do want to transition as a way of getting into your question you're really deep deep question here about what happens when this court writes opinions as opposed to what they do in secret and one worry is there too that I'm not convinced about that there are genuineness and I know that in particular you and Adam Liptec did some amazing reporting on the immunity case which we've often focused on Trump versus the United States and so I wanted to ask you about that case and going at the same time go deeper into the views or even psychology of Justice Roberts in particular because he does present himself as wanting unity wanting to be neutral and yet what stands out to me about this case and you know I give my opinions bluntly and freely so I'll just say is that it really is crafted out of thin air that there is a precedent that they rely heavily on about Richard Nixon firing of Richard Nixon and a civil immunity that he was given if it's Gerald case for this firing and yet you know it's a totally different question than January 6 the destruction of our democracy and a criminal case by the way not just any kind of crime but the crime that is linked to a possible coup and yet here Roberts is you know acting in public as though he's got this carefully crafted opinion so what's going on I mean what is your you're reporting about Roberts in the court generally when I mean the dissenters the liberals have been willing to say Trump is a threat to democracy what is going on in in the understanding of John Roberts and Donald Trump is it I mean here again you know I just have to as I exclude other possibilities I think well it looks like a kind of sympathy or partisanship and no he's not really that bad or so what to help me here help me when we when we look in particular Trump versus the United States well thank you and also I'm glad you mentioned Adam I meant to say his name about 10 times on the podcast he's my reporting partner and also my teacher when it comes to a lot of supreme court matters so yeah so a couple weeks after the immunity decision came out Adam and I published a story taking readers behind the scenes and there were some really clear there were two clear questions to ask about that decision just to refresh the memory of anybody who's you know has like an understandable fog about all these different this was actually before the presidential election President Trump was going to be held criminally accountable he was going to be tried for what he did on January 6 there was a huge legal fight which we won't go into here about you know whether he could be tried or not like essentially he petitioned the court he appealed a decision made by the DC circuit that said you know of course he can be tried for these things it went up to the Supreme Court the whole thing was super sensitive because it was like running up against a presidential election so even relatively small procedural matters like well what's the timing of how this is all going to be decided like got very very hot and in the end the court awarded President Trump this is a few months before the presidential election way more immunity than most legal experts thought they would so the two big questions about this decision were whoa how did they end up giving him such broad immunity like kind of even more than his lawyers asked for and then second the decision as you say was scholars almost across the board thought this decision didn't really like work as a piece of legal reasoning that it was disjointed that it was messy that there were holes it raised as many questions as it answered there was a lot of worry about like whoa does this decision like legitimate bribery by a president and especially since we know that the Chief Justice who wrote the decision has a reputation as a really solid judicial craftsman that was question number two is like why is this not a more well constructed decision even you know for people who disagree with it so what we found and this was also like very sensitive reporting in which we were able to obtain some information internally from the Supreme Court it was a little bit similar to the shadow docket reporting we talked about where the Chief Justice like was holding the ball and he came out of the gate really strongly like he had he had very definite views about how this should all go down and what he I think was trying to do was not deal so much with the trumpness of it all but write a decision for the ages you know like the opinion is like you know like has all this like soaring rhetoric about like George Washington and a vigorous presidency and he was trying to like what we see in the opinion and in the reporting is that he was attempting to kind of like glide over politics and write something very far-reaching but the response of many people was like you're not you're not really dealing with like the thing you described like the grave crisis provoked the January 6th insurrection like like this presidential this former president and presidential candidate tried to overturn an election and like they're like if you're not accountable for that under the law like how do we go forward as a country so you see the Chief Justice's reluctance to deal with that glaring issue and then what's also interesting is you see the other conservative justices like sort of egging him on we obtained some bits of their responses internally to the Chief Justice and like here there's he's the Chief Justice has written this decision that's about to be like massively criticized but inside the court there's like total back slapping going on and Justice Kavanaugh and Justice Gorsuch are telling the Chief Justice this is a brilliant opinion this is amazing incredible it it feels like they're egging him on or you know kind of pumping him up yeah when I read those congratulatory notes you know in the midst of what I would have assumed they would have understood how much this opinion was going to be criticized and you know he leaves exceptions there and it's immunity for outside the core areas of executive power it's presumptive immunity it can be over comments within the outer perimeter of official duty and yet what you get from those memos is the sense that you know this was an obvious decision not because it's subtle but because it defended our guy maybe maybe I'm going too far and you didn't read it that way yeah I think I mean in my work I really try not to be in the Justice's hits just reported out yeah just just out of reportorial restraint we don't know and then also remember that there was another concern at the same time which is that Trump was going to be elected and try to prosecute Biden so what conservatives have said is like God is this is the court trying to protect Biden from being prosecuted inappropriately so I don't know I only know what I reported about what they thought one last question about this and it does tie back to our great conversation about the shadow docket is about timing you know here he had to know that intervening in the case although it you know it never resolved the question of whether or not there is immunity for January 6th and maybe this isn't Trump was going to have to show it's somehow official duty and you know that was what they were prepared to do but we didn't get it's not like the opinion says Trump is immune in the in the end they give a set of standards they sent it back but they do for all intents and purposes clear the way for Trump to run for office and once he wins you know nothing is happening of course with that case with this department of justice so I mean what about that kind of worry that the sort of logic and I'm trying to put it in as careful a way as I can but that they had to realize that they were intervening in a way that did clear the path for him to run for and possibly win the presidency and isn't that a kind of well non-lawyerly on judicial way of thinking I mean you are really getting at why we are stepping up our reporting on the Supreme Court you know I'm not the only player at the Times here we now have a five person so like the past was these heroic incredible reporters like Linda Greenhouse and Adam Liptak yeah took kind of sole responsibility for covering the Supreme Court huge huge job the service they performed which is essential is explaining the cases and arguments and decisions but we've recently built on that and we're going further and it's me it's Adam it's Ross Helderman our editor it's Anne Maramow it's Abby Vansickel we each perform different functions but we really work together as a group and we're trying to ask some of the big questions about the Supreme Court and you're alluding to a very important one which is is the public version of these cases the same as the private version yeah there is a story we hear in the oral arguments and in the opinions on some cases that's like the same thing that happened in private there's there's no real interesting differential on some cases there's a gap between the public explanation of how the law was decided and what really happened and the timing concerns that you're talking about I think are in that category of things that the justices consider privately but don't discuss publicly I know that for example because Adam and I did a behind the scenes story about the Dobbs case that overturned Roe and the justices were heavily weighing timing considerations you know there was also a lot of speculation if we want to actually do something current about the Voting Rights Act case yeah which launched you know a whole new round of redistricting wars and so you know given that the justices are making this decision in the middle of this chaos over redistricting and know that their timing is going to have a lot of influence relative to election day how do they think through that and you're right yeah and like it's interesting because like how can they not like their you know citizens of planet earth but as you say it's an extra judicial factor it's not part of a strict legal calculation yeah I mean isn't part of it too just looking at the history of these justices they don't come you know to us fresh once they're nominated they have long histories and commitments and many of them Roberts included associated with the Republican Party and the Reagan administration in particular so is that part of it that what we're seeing in these behind the scenes is a reveal of yeah long-standing partisan they might say they're philosophical commitments but it has changed you know one thing that was so educational about doing this 2016 story is that we spoke to people who were you know knowledge of the deliberations at the time and they really described this court as a different place in 2016 even though I mean the composition was somewhat different not entirely but even though that court leaned conservative the court felt very alive with debate that justice Anthony Kennedy was a true swing vote that there was a genuine sense of suspense inside the building about which way cases would come out very interesting and it is not and in in a decade that is that has really changed well linked to the story so that as you said people can read these amazing memos for themselves and of course what a rare important moment actually for democracy to have them revealed to see these primary sources rather than guessing what's going on behind the scenes or worse just taking the opinions and the public presentation of justices as empires you know baseball umpires of face value I'm anxious to ask you about your book of course there are listeners to this podcast who are recent graduates I'll mention the name again how to start discovering your life's work tell us about it you know I mean I'll throw one thing in as a transition which is I just know from students and I'm so inspired by so many of them that although they're worried about the future of the economy you know a lot of them are devoted to wanting to fight threats to democracy to seeing the rise of authoritarianism in the United States and doing something about it so I mean tell us about the book and tell us you know what can I it's a very practical question for me like what can I tell people who really want to know like what can I do to to save democracy to make the world better and you know they mean it I think especially at that age and absolutely and the worst thing would be to not have a good answer so I'm looking to you for one well I'll tell you how the book started and then I'll tell you the most important thing in it so this was like really unexpected as we have established Corey I am really busy with my supreme yeah I did not plan on like doing a whole other thing on our thing secret memos from the supreme court but what happened is that in February of 2025 Columbia my alma mater asked me to give the undergraduate commencement address a huge honor but your listeners will remember what was happening at Columbia at that time it was like total meltdown and toxicity so it was kind of a bad offer and my friends from college were very protective they were like you're gonna get booed don't go Colin said but something in me was like give me those kids for 15 minutes I was just so upset to see like how far down the place it slid and and wanted a chance to say something to the graduating class and then they asked me an incredible question you know like I love hard questions and this is one of the best ones I've ever heard they said in this crazy environment how do we find and start our life's work and their question gripped me because it means very similar to the question you just asked about your students and also I've covered employment for most of my career like my partner Megan Tuhey and I broke the Harvey Weinstein story I've reported for years I've reported stories about the digital transformation of the workplace and what it's like to be managed by machines and the effect it has on relationships and the employer employee relationship and so I really wanted to give them something good I saw the rising cynicism about the workplace the dread the fear I saw that you know seeking work has become a very lonely endeavor it was always anxiety producing but it used to be more of a social process involving like coffees and handshakes and interesting encounters job applications have become very digital very sterile very lonely first round screening is taking place more and more by AI so AI is performing interviews and so in addition to it being a rough job market for entry-level workers like their first encounter with the workplace is so lonely and negative they're saying things to me like Jodi I applied for 150 jobs and I didn't meet anybody in the process and like this is a black box and I I can't even get any feedback you know or tell how I'm being received so I wrote this book essentially as an argument to fight for your ambitions and dreams and to still have belief in the workplace not like a blind optimistic belief but at a time when we see so many parts of our political system failing or feel very stuck I still believe that the workplace is our engine of progress like we can't afford to give up on the workplace it's you know it's it's how we do new things it's how we move forward and so that goes to your second question which is like what is the most important thing to tell people the most important thing to tell people and I will read you the most important paragraph in this book do not give up before you start because like I'm talking to undergrads and recent grads who are writing off any possibility for achievement or happiness in the workplace too early before they're really in the game and I understand that it's tough out there I'm a reporter but I want them to try so here is like the key here's the key paragraph do not give up before you even start frustration and disappointment are certain failure is possible but if you abdicate the search for satisfaction now you will put it further out of reach resist the urge to arm yourself with uninformed cynicism masking as osu! wise pragmatism that's really just good old fear of rejection we do not yet know what the world will offer you oh nice I mean we've talked about some worrying things you know insurrection and sort of hiding the real reasoning and so we're always on this podcast trying to put hope in there too because you know we've faced threats to democracy before and have prevailed and then you're bringing this down to a personal level is really helpful too that of course individuals who want to do the right thing have meaningful lives and careers especially as they're starting out or facing a lot of their own crises and totally and problems are opportunities they are like they offer a chance to contribute and you can like I think what you really want is a craft that helps you contribute like reporting is my way of coping with what's going on in the world not on an ideological basis but just by saying like our information systems are not doing well and so I am just going to contribute the best information I can to our public debates and it brings me tremendous peace of mind in this like truly shattered world of ours because I get up in the morning I say I get what my role is on the playing field of democracy I'm going to play it as best I can and know that you know I made my contribution well on behalf of the listeners Jody Cantor I want to thank you not just for joining us for this great conversation but also for your amazing reporting which as I keep saying really has taught us what's going on behind the scenes in a way that's been hidden from us deliberately and I can't think of anything more important in this moment if we're going to save democracy we have to know what's actually going on in the halls of power and that's what you're teaching us about and thank you for this book as well and the inspiration that it'll provide especially the young listeners Jody Cantor thank you for joining us on the Oath in the Office I'll give you one last chance to share a final thought if you want I'll say this like maybe maybe this ties together everything we've talked about I'll take a shot at it which is like truly thank you for having me on and one of the reasons it's so significant to me is because I did drop out of law school to become a journalist and so like it turned out many years later like I was very drawn towards the law but it turns out I wanted to report on it not practice it but if you ever would have told me that I would be reporting on the Supreme Court I never would have believed you but the magic of journalism really is that if you learn these tools and you learn this craft we can scrutinize people in power this is a time tested tool of democracy right like a peaceful civil tool that involves words and involves truth that I just think has like tremendous meaning in power so thank you so much for spending this time and for anyone who's listening thank you thank you so much for buying into the idea that newspapering can still be a contribution. Thanks so much Jody Cantor what an amazing conversation. Take care. Wow I want to thank Jody Cantor and I want to thank you professor for setting up that interview. Cory what is the best way for our listeners to follow you and to keep up with your astonishing brilliance on a regular basis the other six days of the week? Well the first thing I've got to say is subscribe wherever you listen to us we're on of course Apple and Spotify and wherever you get your podcasts click that subscribe button review us that helps spread the word send it to one person and if you want to check out the other areas the other places where you can find the Oath in the Office there's the Oath in the Office sub stack there's the Oath in the Office YouTube channel you can also find me on Blue Sky as democracy prof. Right on and I'm at John Fugelsang on all the socials at John Fugelsang I have a sub stack and I'm on Sirius XM Progress five nights a week my book is called separation of church and hate and I really want to thank Wendy and Beowulf and all of the brilliant people who help us put this show together every week most of all you professor Brecht Schneider thank you so much again. Thank you my friend what a pleasure to do this with you. Thank you Cory there's going to be no shortage of malfeasance in the weeks ahead I'm very grateful a long hot summer is going to have your brilliance to talk me off the ledge we will see you guys next time on the Oath in the Office