Meet the Press full broadcast — May 28

[Music] this Sunday crisis in the Court Trust in the Supreme Court has been declining for years and is now at a record low after the overturning of Roe v Wade a stunning reversal ending 50 years of precedent how much confidence do you have in the Supreme Court I think this is an activist Court getting rid of Roe v Wade was an incredible thing for pro-life simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court is the U.S Senate confirmation process to blame for polarizing the entire judicial branch what you want to do is destroy this guy's life hold this seat open and hope you win in 2020. Donald Trump Mitch McConnell and their Republican buddies are shoving aside the wishes of the American people in order to steal the Supreme Court seat is the court now out of sync with the American public your court is already pretty illegitimate is going to be in full crisis mode and now new questions of ethical standards have the justices damage the Court's reputation further by failing to disclose Financial relationships and gifts from wealthy donors the perception of the American people is important to me the highest court in the land should not have the lowest ethical standards my guest this morning former Republican senator Roy blunt of Missouri Democratic senator Sheldon Whitehouse of Rhode Island I'll also speak with two former Supreme Court clerks Andrew crespa and Jennifer masca and a special panel of reporters who cover the court NBC News senior legal correspondent Laura Jarrett NPR legal Affairs correspondent Nina totenberg CNN senior Supreme Court analyst Joan biscupid and Dalia lithwick senior legal correspondent for slate welcome to Sunday and a special edition of Meet the Press from NBC News in Washington the longest running show in television history this is a special edition of Meet the Press with Chuck Todd good Sunday morning and while official Washington is still consumed by the debt ceiling talks we're going to take a step back this Sunday and look at a larger issue the Supreme Court it's never been more powerful in our lives or more broken when it comes to public trust just a quarter of Americans have a great deal or quite a lot of confidence in this court a 50-year low in the eyes of the American public the justices robes they're no longer black they're red and blue and the political destruction of the Court lies at the feet of another institution the United States Senate it is broken the Judiciary and the Supreme Court the role of the senate in confirming federal judges including Supreme Court Justices is technically of course advice and consent and between 1789 and 1965 more than half of the nominees that went to Senate confirmation vote 65 of 110 or confirmed on voice votes I.E the eyes have it just three justices in that period were confirmed with a margin of fewer than 10 votes but since 1965 of the 22 successful nominees of the Court six were confirmed with less than 60 votes all six of them are currently sitting on this current Court a nod depolarization of the six Republican appointed justices on the court just one John Roberts a bush appointee was confirmed with more than 60 votes by the way were members of the Federalist society which is now the gatekeeper for a republican appointed nominees you cannot be nominated for any judgeship if you're not a member of this institution the goal to get justices on the court and judges on the bench who are as conservative as possible they're not looking for umpires the legitimacy of the Supreme Court depends on a public belief that justices though are impartial referees in the political battles that break out between the branches of government or ideologies left and right just listen to what Chief Justice John Roberts promised during his confirmation hearing and with Clarence Thomas said the day after Bush V Gore was decided it's my job to call balls and Strikes and not to pitch or bat whatever you do don't try to apply the rules of the political world to this institution they do not apply but those are sound bites from another era aren't they now neither party wants a referee calling balls and strikes or even to pretend that's the goal both parties want an activist Judiciary and what has become a race to the bottom since the bork nomination in the 80s every move has been a Tit for Tat and each party has rationalized its escalation in the judicial Wars by claiming the other side did it first here's a stunning fact the last time a republican-controlled United States Senate confirmed a democratic president's Supreme Court nominee Grover Cleveland Administration nearly 130 years ago in 2013 pushed by the obstruction of Obama's nominees to the federal courts in that moment as well as the executive branch Democratic Senate Majority Leader Harry Reid decided to go nuclear in his words ending the filibuster the 60 vote requirement for judicial nominees below the Supreme Court anyway let them do it why why in the world would we care we were trying to protect everybody I mean do they want simple majority fine I mean all these threats about we're going to change the rules more what is the choice continue like we are or have democracy well Democrats did learn to care president Donald Trump worked with Senate Republican leader Mitch McConnell to reshape the federal Judiciary appointing 54 federal appellate judges in four years just one short of the 55 appointed in eight years in February of 2016 less than two hours after the death of Justice Antonin Scalia nine months before the election 11 months before the end of Obama's term McConnell made it clear that he would not even confirm a replacement before a new president had taken office the republican-controlled Senate went further and even refused to have a hearing on Merrick Garland Obama's nominee for that seat one of my proudest moments is when I looked at Barack Obama in the eye and I said Mr President you will not fill the Supreme Court vacancy and in 2017 when Democrats filibuster Trump nominee Neil Gorsuch for that scaliasi McConnell went further and he ended the filibuster for Supreme Court nominees as well so changing the rules and allowing now one party to muscle through its nominees on all levels of the Judiciary and able to reshape all the justices into partisan actors and of course Paving the way for Trump to put three justices on the Supreme Court the most by any one-term president since Herbert Hoover now unhappy with the ideological makeup of this court some Democrats are arguing to change the rules Again by expanding the number of justices on the court or so-called Court packing the political destruction of the court has created opportunities for ethical failures as well the justices have little accountability because their own partisans protect them as in the case of Clarence Thomas and as long as 50 votes is the threshold more presidential candidates are comfortable dropping the pretense that justices should be impartial referees calling balls and Strikes you replace a Clarence Thomas with somebody like a Roberts or somebody like that then you're going to actually see the court move to the left and you can't do that and joining me now is Democratic senator Sheldon Whitehouse who chairs the Judiciary Committee subcommittee on the federal court Senator Whitehouse welcome back to Meet the Press thank you I want to start with I want to go back to 2013 you voted for you praised Harry Reid's decision at the time to end the filibuster for the lower courts um it was I say this I get it and the time but looking back considering where we are with the 50 vote threshold is that is that good governance I think it would be better for the country if the Supreme Court and the nominations process had not been so heavily politicized and we were operating under what more looks like a regular order but we saw back then that there was no amount of persuasion that could convince Republicans to vote for D.C circuit Democratic nominees and that's why Harry had to do what he had to do with the clear understanding the clear bipartisan understanding at the time that this would not move the Supreme Court we carved out the Supreme Court on purposes it was one of the reassurances that the Republicans wanted so when Mitch McConnell then broke through that that was a second uh you know how this goes and I is that each side blames the other for the escalation and I can sit here and rationalize like yeah okay no it starts here it starts here how do we de-escalate this because it does feel like this what we're hap what we have now is judicial activists all most people think the courts are red and blue ropes there are no more black robes so we've created this how do we de-escalate from this because somebody has to be willing to say hey this is this should this doesn't work it is not going to be easy the work that we're doing on ethics in the court ought to be easy and yet it's not it's partisan also so I think that the first step is going to be for the judicial conference the other judges to put some constraints around the Supreme Court's Behavior and treat the Supreme Court the way all other federal judges are treated and that happens inside the Judiciary so it doesn't get into the the chief justice has to make this decision though right separation of powers whether I mean it's pretty established Congress can't make a law that that does that right it absolutely can well it doesn't mean it's constitutional yes it does it means it's constitutional because the laws that we're talking about right now are actually laws passed by Congress the ethics reporting law that is at the heart of the Clarence Thomas ethics reporting Scandal is a law passed by Congress I understand that but in the in the executive branch what cabinet secretaries have to do the president and the vice president don't have to do due to separation of power so it with on the executive branch that's an argument that has been made on behalf of the president I'm not sure that that actually stands well but certainly we can do the administrative side of judicial you can't get into cases I'll be the first one to concede if there's a case in the judicial branch of government we in the Congress have nothing to say about it but in terms of administering how the internal ethics of the judicial branch are done heck the judicial conference which does that is a creation of Congress is there something you can do in the it seems like the separation of powers issue would be taken off the table if you had a if you had some ethics demands and disclosure demands during the confirmation process that were over and above this is there a way to do that is there a way to do this on the front end that sort of erases any constitutional question no because if you try to do it on the front end and get a pledge of some sort in the confirmation process where we saw how the pledges on Roe v Wade went in the confirmation process and then second you get onto the court and there you are and there's no process for learning what the facts are that's part of the problem here when Justice Thomas failed to accuse himself from the January 6 investigation that turned up his wife's Communications he made the case that that was okay because he had no idea that she was involved in Insurrection activities that is a question of fact that's something that could have and should have been determined by a neutral examination and then we'd all know and so the problem with the Supreme Court is that they're in a fact-free Zone as well as an Ethics free zone you have uh spent a lot of time focused on the Federalist society and sort of you you don't call this a conservative Court you call it a captured court it's a strong charge I mean you eventually said that this court is bought and paid for by the Federalist Society um that's a strong charge what how do you uh how do you defend it well first of all I don't think the Federalist Society was exactly the institution that did this if you go down the hall from the Federalist Society you see the judicial crisis Network which is the group that put up the ads for these uh judges uh Leonard Leo who is a common operative between the two runs another dozen or so front groups and the whole thing together has been estimated to be about a 580 million dollar spend by a bunch of right-wing billionaires so in the same sense that in the old days railroad Barons used to capture the Railroad Commission so do the decision I think there's a very strong case to be made that that is exactly what has happened to the court right now you have said there uh you've gone down this issue of dark money yeah uh and you and there's no doubt that this is this is a big part of this but now the left is using dark money and you yourself said yes Progressive groups receive Anonymous donations because Democrats have to play by the rules Republican set or else we unilaterally disarm we came late to the game but now we're there here's the difference except the problem with this you see where this goes we just I take your point except you know where this heads it just escalates escalates and escalates unless we change the law so that dark money is no longer accepted should be fully changed absolutely and Democrats to a person vote for that every time we bring it up Republicans to a person oppose it every time because I think they're very dependent on dark money and more to the point I think this operation that has surrounded the court judicial crisis Network funded by dark money Federalist Society funded by dark money the groups that come in in little flotillas of chemical briefs funded by dark money there is a shadow of dark money influence around the court that is very unhealthy for the institution let me close this to where we begin which is how do we restore some faith in the institution because there's some Court reformers on the left let me play what Ed Markey and others would like to see happen to the court so let's start with undoing the Republican thievery and adding four seats to the court Congress can do it by passing the Judiciary Act expanding the court is constitutional Congress has done it before and Congress must do it again now so there's various ideas there's expanding the court there's age limits um term limits also where where are you what's what's reasonable and what's doable I I putting four seats on the court feels like a a pie in the sky I have a term limits bill so I'm obviously for that there's an enormous amount of transparency and ethics work that can be done I have a bill 25 years 18 years okay and ultimately I think in in real life and in real time what's going to make a difference here is going to be the other federal judges on the judicial conference as they did recently with respect to the Scalia personal invitation Hospitality scheme he was running shutting it down and telling the Chief Justice who presides over the judicial conference look you've had your fun we know what you're doing isn't right let's clean this up for once and for all let's do this ourselves bottom line do you trust our federal court system right now to be fair and impartial uh usually I think the trial courts are very strong I think over and over again we've seen honest courtrooms make amazing differences with Dominion versus Fox with the folks at the parents at Sandy Hook against the creep was pretending that their children's murder wasn't real and now recently with the Judgment against Donald Trump so honest courtrooms are really important to cut through to the truth when you get to the Supreme Court if it's an interest in which the big right-wing billionaires are concerned very hard to count on getting a fair shot so you think sometimes you can get a fair shot in the court but not if it's on something that donors want that would be what the evidence suggests I think the statistics are pretty stunning at how often the judges who came out of the Federalist Society do what they're told by the Amicus groups that come in on behalf of the right wing Senator Sheldon Whitehouse Democrat from Rhode Island thanks for coming in sharing your perspective good to be with you thank you sir and joining me now is a longtime veteran of Washington D.C former Republican senator Roy blunt of Missouri he was a member of leadership during his time in the House and Senate by the way in the Senate he led the Republican policy committee Senator welcome back to Meet the Press Chuck great to be with you uh let me start with a conversation you and I had 10 years ago after Harry Reid changed the rules on judicial confirmations the first time take a listen they decided to change the rules I suspect that changes the senate in fundamental ways forever the senate in our system was the example to the world that there was a way in a democracy to protect minority rights to a great extent that's now lost on these nominations why when Republicans got control of the Senate next did they not restore minority rights why Why did Republicans go a step further and get rid of the filibuster for Supreme Court Justices as well yeah well I think I think my prediction was exactly right once these things happen you I can't think of an example where they're rolled back uh and I think that week Senator McConnell said to Senator Reid on the floor uh you're going to be sorry you did this and you maybe saw you did this sooner than you think and that's that's exactly what happened I I just there are almost no instances where you could change the rules in one way and hope that the next Senate will say oh and that's up to us well let's speak of a momentary Advantage the Garland decision the decision not to give Garland a Committee hearing you were in the Senate then it's not necessarily your decision Mitch McConnell's in leadership to do that in hindsight was that the right call you know I think so um again and you've already made this point today it's all well they started it but in as you said to me earlier right it's always that it's always them it's always them Senator Schumer and Senator Biden both at different times in the bush administrations had said the year before the election if there's a vacancy we won't fill it and there wasn't even a vacancy this is just kind of a preemptive shot to let that happen and even if we weren't going to approve Garland and you could argue maybe we should have had a hearing I think the way these hearings go that one in many ways have been unfair to him to put him through a hearing to know that to not be approved I I actually supported the majority leaders decision at the time and still think in the politics of the country and the way these confirmations have happened when you have the majority and the presidents from the other party they're just a long history of not filling an election year vacancy yeah but don't you look at the Amy Coney Barrett thing I mean it looked like it was rammed through at the last minute right it was exactly let's take Joe Biden at his word of what he was worried about back then that was exactly the the picture that I think anybody was comfortable with we're in the midst of a presidential election you throw that in there where you know depending on the depending on on when somebody might pass away depends on on on how that works given what happened with Garland do you see how so many people look at that and think come on the rules for thee but not for me well I will say in uh in that year I had more people at the airport and other places mentioned that that single thing to me than I've ever had of any other thing why don't you give Garland a hearing and I think I probably gave them the same answer I just gave you he won't be confirmed having a hearing would be a mistake for him and for the country but I get it now the difference of course the next the next year before a presidential change is that the president's party has the majority and that's a different circumstance in a substantial way if you don't do that let's say you don't do that two months before the election you've always got the sense that your side will just collapse on Election Day because they wonder why they sent you there if you could have done this and didn't and so that's that's a big difference you're uh you're a student of History we had to go back so George H.W bush had two supreme court justices confirmed by democratic senates do you know that the last time a Democratic president had a Republican Senate confirm a supreme court nominee uh no I don't know the numbers have not worked good yeah Cleveland Senator Grover Cleveland this is why I think you have so much distrust between the two parties on this inside the Senate right well yes yes but you do have to remember that you've got this long period of time from like 1932 until uh the 60s where there is no Republic into the 80s where there's no Republican Senate we're sort of two Democratic parties that that could yeah that's right Democrat presidents got a lot of president got a lot of nominees confirmed but there was no Republican Senate to to Really I hear your example but I think it's it has one big flaw to it I hear you but it is an astonishing situation when you think about it let me play one more quote uh from the late Senator John McCain after the 2017 decision on on Supreme Court filibusters take a listen now that we're entering into an era where a simple majority decides all judicial nominations we will see more and more nominees from the extremes of both left and right I do not see how that that will ensure a fair and impartial judiciary and it's that last line look I should point out Senator McCain said what he said and also uh supported Mitch McConnell's decision um but is this any way to get an Umpire right if that is the goal and and look you didn't vote for judge Jackson because of Judicial philosophy but should that be the requirement are we just looking for qualified umpires or are you looking for partisans well I I do think in the last 40 years the country changed a view on this and even maybe less than that you know the the Thomas confirmation uh was uh was was uh 50 uh 48 52 nobody even considered the 60 votes uh structure Democratic Senate by the way it's reasonable into Democratic Senate 58 48 52 uh the whole idea that would take 60 to confirm is a reasonably new thing and again it happened when Chuck Schumer went to the Senate and suddenly well you have to have 60 now instead of 50 there was great deference given generally to presidents until that became a standard and then you know I also think if Democrats at the time of the Gorsuch nomination which replacing Scalia didn't change the balance of the court if they would have produced enough votes to get to 60 for Gorsuch who knows if the rule would have the atmosphere you think it would have held there you think I would have helped rule to to you really think I don't know yeah I think I think it would have been harder later in that Congress than it was at that moment yeah and I even said to a couple of Democrats at the time the smartest thing you could do right now is let let your members who will actually be helped by this now not hurt by this let me go back to this guy that's perfectly acceptable let me go back to the last question that I asked Senator Whitehouse and I'm going to ask it to you um okay in a different way look we we know the Supreme Court's uh approval ratings essentially have fallen and Fallen badly what would be your recommendation to help the perception of the Court well I I certainly think that the court is still a such a critically important part to our structure the court does bring finality to things that sometimes I don't agree with sometimes others don't agree with but what we don't want to do is to bring the court down with the rest of us Senator Roy blunt uh it's good to see you uh thanks for coming on sharing your perspective uh and I look forward to seeing you again soon you bet has the Supreme Court damaged its reputation by having no official ethical standards I'll talk to two former Supreme Court clerks Andrew Crespo and Jennifer Masco [Music] welcome back it is a tradition for Supreme Court Justices with sharply different legal views to be dinner party friends Opera companions in other words to get along but after the leak of the Dobbs decision last year tensions on the court have broken out into the open according to reporters including Nina totenberg who will join us later this hour the atmosphere behind the scenes is so ugly that as one source put it the place sounds like it's imploding Justice Samuel Alito recently told two partisan Defenders at the Wall Street Journal that the leak quote made us targets of assassination saying I personally have a pretty good idea who is responsible Justice Clarence Thomas complained he began to look over your shoulder and Justice Sonia Sotomayor said she felt shell-shocked after the overturning of Roe and has a quote sense of Despair about the direction of the court on Tuesday Chief Justice John Roberts addressed public questions about the acrimony and concerns about the Court's ethics while accepting an award I want to assure people that I am committed to making certain that we as a court adhere to the highest standards of conduct We are continuing to look at things we can do to give practical effect to that commitment and I am confident there are ways to do that that are consistent with our status as an independent branch of government under the Constitution's separation of powers and joining me now are two former Supreme Court clerks Jennifer mascot an assistant law professor at George Mason University she clerked for justice Kavanaugh while he was on the D.C circuit and for justice Thomas on the Supreme Court and Andrew Crespo is a professor at Harvard Law School he is clerk for Justice Kagan and Breyer Jennifer and Andrew welcome uh to Meet the Press let me start with the leak uh and how Bush V Gore Andrew didn't seem to create personal divisions on the court the way the leak of Dobbs did what's your sense of what's going on behind the scenes you know Chuck we have to remember there was an investigation into this league right and I think that investigation approves a 20-page report taught us three pretty important things first the report seems to make clear that this leak did not come from a law Clerk or a court employee all right this was an investigation done by experienced criminal investigators it was reviewed by the secretary former Secretary of Homeland Security looked at forensic cell phone records and it asked every employee and law clerk who had access to that opinion to swear under oath exposing themselves to a potential prison term for penalty of perjury that they didn't do that they were not the leaker and they didn't know who was it basically ruled out Court employees and law clerks but crucially and this is I think the second really important thing that this investigation uh highlights for us the report was not able to rule out whether or not the league came from the justices themselves because the only people who had access to the opinion and who were not investigated within the within the league investigation were the justices because the court didn't look at the justices themselves in that investigation I think that shows us really the third most important thing that we learned from this the leak investigation is one example now in a string of many where we're seeing the Supreme Court Justices basically view themselves as above the law not subject to the same rules as everyone else whether that's the leak investigation whether it's accepting potentially millions of dollars in gifts without having to disclose it whether it's refusing to adopt an Ethics code refusing to even engage with Congress on that question this is a court that tells everyone else what they can and cannot do tells Congress you can't regulate guns tells the president you can't do anything about climate change tells women what they have to do with their own bodies but says to everyone else don't you dare try and suggest that we have to follow rules for ourselves Jennifer what's your sense of what the leak has done to trust between the nine well I have to tell you last year at this time we were talking right after the leak and from my standpoint over the last year it's actually reconfirmed my faith and the Supreme Court as an institution because I think here we have nine justices who have taken an incredible amount of attack in Victorville from the outside we've had assassination attempts and quite frankly the Dobb's opinion when it was handed down was almost precisely the same as it was when the leak was made and what does that matter well I think because it shows that the justices have Fidelity principle that they didn't let the attacks the threats the attempt to change the outcome have any impact at all so the ruling been different from the leak you think this would be a far more explosive thing inside the institution well I think clearly that would have depended what the change was obviously if there had been a vote change of some kind that would have certainly communicated that those kinds of tactics were but I think it's really astounding that's the justices who are facing the attacks from the outside and here you know we are questioning the institution the institution's strong they're continuing to do their jobs just this week is the clip you played shows chief justice Roberts and Justice Kagan were together with Justice Roberts receiving an award talking about the collegiality of the institution despite all of the buffeting on the outside that's continuing to go on let me talk about ethics when you guys are brought in as clerks do you sign anything is there an F what is there a bat what what do you pledge is there anything you've put into writing pledging some sort of fidelity of the Court well nobody's asking anybody to pledge Fidelity I don't think to any institution I think all law clerks just like government employees across the board are trying to be hired we want people of Integrity who are there to serve the institution and the principle of the law and the Constitution and so like all federal officials clerks obviously are supposed to take an oath to uphold the Constitution and try to do that and serve the justices as they apply principles of law but is there any look is there anything about your personal financial situation and the background yeah when I was there and this was you know uh 10 years ago or so now um I don't remember having to sign anything but I do remember very early in the year the Chief Justice I didn't clerk for the chief justice but the Chief Justice would get all of the law clerks 30 plus of us into a room and it was the ethics talk and it was almost entirely don't talk outside of this building about what happens in this building this is well before Dobbs it was really impressed you're violating this right now no I don't think so I think the chief has made clear that he wants that you know that that was something impressed upon law Clerks you're not supposed to talk outside of the Court about the opinions and work of the court so there wasn't like a as I recall the signing but it was very much impressed on law clerks that you're not supposed to disclose what happens inside the building then or ever Jennifer do you remember political debates political debates within the institution not legal debates not constitutional debates but just good old-fashioned political debates to be honest not really that much I mean I I feel like there was a striking amount of collegiality and actually if you look at the most recent terms the last 10 terms of the court I think there are at least 40 percent or more of the merits-based decisions that are issued unanimously so a lot of times on the outside we talk about the handful of decisions that seem to be quote unquote political or controversial but the court has got really challenging issues coming to it a lot of times there are issues that are not necessarily the topic of dinner time conversation and I really love the opportunity to be able to meet clerks from across the Spectrum and still keep up with many of them today in my practice as a law professor let me move to the issue of what's deemed the shadow docket and maybe you guys can explain this let me put up a statistic up here and this is about sort of administration when the Department of Justice on behalf of an executive branch is looking for emergency relief during the the four terms of bush and Obama eight times the Supreme Court was asked for emergency relief in the one term of Donald Trump 41 times it appears that this is no longer emergency relief this is political disputes and we never know what the rationale is is this scotten overused Andrew I think we're seeing a greater uh sort of frequency of folks turning to the Judiciary and one of the biggest challenges now is that parties can pick their judges in the lower courts right you can file a lawsuit in Texas pick the the the location where you're going to file the lawsuit and there will be one judge who's going to hear that case and you know the political party who appointed that judge and you know the political balance of that judge when you see parties rushing to the Judiciary and getting to pick the lower court judges it's an accelerant that forces everything up faster to the Supreme Court and is making the Supreme Court which is now a very conservative Court basically sitting in the driver's seat on all of these issues as they get shot up to the court and is using that shadow DACA to act faster on these issues and Jennifer one of the complaints is that we don't know the rationale behind it it's what we can have a debate whether these should be ruled on but then we don't even get a rationale how do we change that well I think to Andrew's point it is true that the court is responding to these cases as they find them and so it's often the lower courts or outside parties that are bringing these cases to the Court's emergency docket one I mean obviously unique circumstance of the Trump Administration was the pandemic and so that caused a lot of state orders that were not necessarily happening as rapidly in years previous to that and so that increased the use of the orders docket but I think the court has been attentive to people wanting to understand its reasoning and so some of these cases actually have resulted in written decisions perhaps not as likely as the merits ones uh in fact there have even been oral arguments issued more rapidly sometimes in cases when the courts wanted to rule on issues of big importance so I think the court is trying to issue its reasoning for the American public and quite frankly in some ways is one of the most transparent institutions in the sense that at least with the merits cases we're getting dozens and dozens of pages looking for transparency that is no transparent institution but I understand within the legal Community or argument there Jennifer mascot Andrew Crespo thank you both for being out here appreciate it up next the public now sees the court as more partisan is the court actually behaving that way the download is next [Music] welcome back data download time as we discuss the Supreme Court's evolution particularly how it's standing among the public has deteriorated as they perceive it to be more and more partisan we're here to provide a reality check on exactly what is driving this ship uh there's one simple way to describe this and that's just simply the number of appointments since LBJ Republican presidents have been in office for 32 years and have gotten 16 Supreme Court Justices democratic presidents have been in office 22 years and have only gotten five justices some of that is actuary tables you have the Jimmy Carter was served four years got zero appointments George H.W bush served four years got two Donald Trump four years got three so you see how that happened now let's look at the views the polling views of whether this court is too liberal or too conservative going back to the start of the century as you can see here it is fluctuated between two liberal and two conservative narrowly you know during the bush years and the war on terror it was seen as too conservative during the Obama years Obamacare ruling same-sex marriage it was seen as too liberal but look at this it has skyrocketed now 42 percent currently think it is too conservative and in fact what makes that number unique it's above the there's a third punch we ask here it's of course too liberal to conservator about right about right LED throughout the entire Century until these last couple of years now let's move to the issue of whether they're right about this it's the public right is the court shifted its views to the right well the National Academy of Sciences sort of compared key Supreme Court rulings with public opinion for different decades in 2010 uh versus where Democrats wanted rulings and Republicans want ruling to the court basically came down in the middle in 2020 essentially the same thing the court shifted dramatically in 2021 between Ruth Bader Ginsburg dying Amy Coney Barrett making Brett Kavanaugh the center and what has happened not only is the perception of the court is too conservative the rulings are actually not just to the right of where the average would be between the two parties but to the right of where even Republicans thought the court would rule so the perception in this case that it's too conservative may play out in reality when we come back it was the only Supreme Court case to decide who would win the white house we're going to look back at the moment a divided Court ended a disputed election straighters outside this morning welcome back the public crisis of confidence in the Supreme Court didn't start with its overturning of Roe v Wade in 2000 the court ended the Florida vote recount in the election between George W bush and Al Gore clearing the way to certify Bush's win the controversial 5-4 ruling hurt the Court's legitimacy among Democrats and further divided an already fiercely polarized Nation just five days after that decision the house Democratic leader dick that part appeared on this program and refused to call George W bush the legitimate next president the Supreme Court decision was that based on law or politics well we have to accept that decision I criticized the decision I didn't think it was the right decision I wish we could have counted all the votes but the court made its decision so George W bush is legitimate 43rd President of the United States George W bush is the next president of the United States but is he legitimate does he have to respect we have to respect that the presidency we have to respect the law and we have to work with him to try to solve the people's problems that's the task in front of us now but why can't a leading Democrat say he is a legitimate president of the United States he is the president of the United States when we come back can the court fix itself our special panel of court reporters is next [Music] welcome back panelists here NBC News senior legal correspondent Laura Jarrett Nina totenberg NPR legal Affairs correspondent and author of dinners with Ruth Joan biscupic CNN senior Supreme Court analyst and author of nine black robes and Dahlia lithwick slate senior legal correspondent and author of Lady Justice Nina totenberg let me start with you is the court in crisis well it's in a very bad and dysfunctional situation I think and I've covered the court for a long long time and I don't think I've ever seen a court so at odds and the best example is they had a fairly minor in the greater scheme of things decision a couple of weeks ago and there were five opinions there was no opinion for the court there were three opinions on on one side and two opinions in dissent what does that tell you it tells me that they don't like and trust each other that the China is broken and they're not getting along and when you can't get along you can't reach some sort of consensus on most things Laura what does it look like to you well it didn't interesting because that's what's going on internally and what's going on externally is another sort of crisis of its own sort of devising on public legitimacy and the idea of whether it's an institution uh that the public can trust and and feel that the decisions are being made even-handedly uh most recently because of all the ethics issues that have emerged that in many ways are not new but there is a different level of heightened attention to them now I think which is a good thing uh but there's no meaningful check on them because they are not treated like all other federal judges John I want to pull something from your book uh I'm sure you're happy about that yes it's about John Roberts uh some of Chief Justice John Roberts's colleagues were suspicious of his maneuverings and cases and what they saw as an exalted sense of his authority as chief justice he exerted a strong hand on internal operations at the court building and in various public Communications separated himself from the associate justices and I highlight this quote because to go with what Nina said and to go with what Laura said we have to look to the Chief Justice does he have if he leads does he have any followers well and that was written capturing a time when he was more in control when he had uh this is pretty Barrett yes this was February when he was the key vote so he could do a lot of maneuvering behind the scenes he was the fulcrum right that's exactly right and some of that behavior frankly has come back to haunt him because the other justices to his his right now they have just as Amy Coney Barrett they don't need him they don't need him on big important cases like the Dobbs and they might not respond to him and I think we've seen they are not responding to him on issues of Ethics so his problem right now is twofold one hasn't having to do with consequential opinions like the Dobb's opinion that rolled back Roe v Wade and also what kind of formal ethics policy they will even adopt he does not have a team with him right now Talia I was actually talking off camera with Jennifer mascot and she just sort of implied she goes she thought that it is now clear Justice Alito doesn't necessarily follow Justice Roberts lead anymore and that in the first few years he did that he wrote that Clarence Thomas is almost the conservative leader these days is that is that your breed I think there is a block on the court that is Justice Alito and Thomas and sometimes Justice Gorsuch that are very much doing their own thing that is very separate from what the more Centrist block of Roberts and Kavanaugh and sometimes Barrett are doing I think that that to the extent you can call it a Centrist I was just going to say there'll be some people listening going that's a Centrist block and it's important in this of the three three and three this kind of is and and it's important to say you know to Jones Point Justice Kavanaugh is now the median Justice on the court there's no nothing that will tell you where this court is more than that statistic but I think it's interesting that at least sometimes you have the sense that on that Center their votes in play I don't think there are votes in play in Justice Alito and Justice Thomas this world so let's talk about this ethic situation I mean do we expect Nina anything from Justice let me put up these headlines these are the perception of the court is just that being politicized here with a big donor we've got these headlines Clarence Thomas failed to report his wife's income Clarence Thomas's wife Jenny told the January 6 committee she didn't discuss the election with her husband I don't know what married couple didn't discuss the election apparently they're the only ones that didn't um judicial activist directed fees to Claire Thomas's wife mentioned I what in theory could chief justice Roberts do to create a better ethical picture part of the problem here is as Joan said he doesn't have a team with him and you don't need to lose much so let's just say he's we're to sit down and say look we've got to do something let's do what a lot of the ethics professors say they could do in in a half of a day write a code for ourselves if two of his members say well I'm not going to abide by it I don't think we ought to have that he doesn't have there's no recourse there's no recourse it's not even a question of a majority he has no recourse and I would argue that the the kinds of potential conflicts of interest raised by Justice Thomas's friendship with Harlan Crowe and his refusal to recuse himself in January six matters are materially different from the kinds of uh potential conflicts that might be raised by you know justices for example who don't recuse themselves in cases involving publishing companies where they've written a book it's just different it's materially different and it's understandable by the public it does look like this is going to get worse before it gets better and that we're going to have them basically more like the 19th century Supreme Court where it's overtly political I want to play something again that Rhonda Santos said about his philosophy of Supreme Court Justices you replace a Clarence Thomas with somebody like a Roberts or somebody like that then you're going to actually see the court move to the left and you can't do that I want to remind viewers Laura Justice Roberts uh said I'm an Umpire I call balls and Strikes he wants he does not like to be viewed as a partisan potentially the next president of the United States is saying oh no I'm nominating partisans but part of what's interesting about that is he's playing to the crowd and you didn't hear it there but after he says all of the things about how he's going to make the court even further to the right everybody's applauding everybody is enthusiastic about the court and packing the court in a way that I think would be uh interesting to people who think of it as sort of an apolitical Branch he's playing to an audience that cares deeply about this well I mean look who did it in 2016 and I would argue that Donald Trump won the election in part because Justice Scalia had just died he'd been alive I don't know if Trump wins I I seriously believe that Chuck I seriously believe that because remember he gets Donald Trump did something very unprecedented in May of 2016 he released a released a list of his potential candidates and kept adding it to it adding to it and then fulfilled that dial last week well just remember in that same election we have three octogenarians on the court and an empty seat for months and months and we have one side campaigning on the issue that we will pack the court and we have Democrats who are saying like screensaver screensaver nothing to see here yeah I don't think they'll do that again uh before we go every Memorial Day weekend we here at Meet the Press remember the American Service members who have died in the line of duty in the past year this year we're going to remember 32 year old Marine staff sergeant Samuel D leche who died from a non-combat related incident in Iraq he was from Jefferson Tennessee but we'd be remiss if we didn't draw attention to a growing problem both in our society which is more cute in our active duty military last year alone at least 328 active duty service members died by suicide if you or a loved one are struggling with mental health you can dial 988 and you can press one right now to be connected to the Veterans Crisis Line you can find a local VA Vet Center to access free counseling or you can visit the Military One Source website to get connected to the best available resources to fit your needs and spend some time this Memorial Day Weekend thinking about those who serve and defend us that's all for today thanks for watching we'll be back next week because if it's Sunday it's Meet the Press [Music] thanks for watching our YouTube channel follow today's top stories and breaking news by downloading the NBC News app

Channel: NBC News

Views: 219,723

Keywords: dc, election, government, meet the press, mtp, politics, washington, washington d.c.

Id: LPuk_jR86zw

Length: 47min 58sec (2878 seconds)

Published: Sun May 28 2023