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Mark Joseph Stern

Mark Joseph Stern covers courts and the law for Slate.

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Joe Patrice

Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a litigator at...

Elie Mystal

Elie Mystal is the Managing Editor of Above the Law Redline and the Editor-At-Large of Breaking Media. He’s appeared...

Episode Notes

It’s cliché to say that the addition of every new Justice should be considered the beginning of a whole new Supreme Court. But with Kavanaugh’s controversial arrival on the bench, there’s reason to believe the Roberts Court really did become something fundamentally different. Slate’s Mark Joseph Stern joins the show to discuss his new book American Justice 2019: The Roberts Court arrives, tracking the Chief Justice as he navigates “the political fray without abandoning his conservative instincts.”

Special thanks to our sponsor, Logikcull and Themis.


Above the Law – Thinking Like a Lawyer

The Roberts Court Is Here





Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while Thinking Like a Lawyer, here on Legal Talk Network.




Joe Patrice: Hello and welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. With me as always is my co-host the esteemed Mr. Elie.


Elie Mystal: Mr. Elie, that’s why I am now — sick, you just don’t want to get ill.


Joe Patrice: In fairness, I was about to say your last name but then you leaned forward in the mic and I thought you were about to talk and I didn’t want to talk over you, so.


Elie Mystal: That’s a cough, it’s what it’s actually.


Joe Patrice: Yeah, okay, fair enough.


Elie Mystal: No, I got sick.


Joe Patrice: Okay.


Elie Mystal: It’s the subject of my grinding of the gears.


Joe Patrice: Oh, DayQuil?


Elie Mystal: Yeah, well, I got sick on the damn plane. Actually I probably also got people sick on the plane on looking back, one way there, I got sick because — and here’s my problem today, Joe, and other people have noted this, but if you fly a lot, you’ve probably noticed that the airlines have a new technique to screw you, the customer, right? And it’s by offering this like lower fare economy class ticket that doesn’t allow you to pick your seat —


Joe Patrice: Oh, yeah.


Elie Mystal: And you have to pay like $100 more to be able to get the ticket that actually allows you to pick your seat.


Joe Patrice: Right.


Elie Mystal: So I know about this trick — well, my wife knows about this trick and so we avoid it quite often, but when I am sometimes flying for business as I was this week, I went out to LA to do a first amendment talk at Berkeley Law School, you know, the nice people who bought my ticket did not know about this trick.


So the ticket which I was happy to be provided didn’t let me pick my seat, which means that I had choice A) flying cross countries and just for those who haven’t actually met me, I am an over 300-pound African-American male. I don’t need to be in a middle seat for six goddamn hours on a flight, but I couldn’t pick my seat.


So my choices were to buy one of those exit row seats for cross-country flight for like $150 or chill out in the middle seat like a sardine shoved into a Tupperware can.


Joe Patrice: I just feel like if there was an emergency you wouldn’t stick around to help people off the plane.


Elie Mystal: Oh, hell, no.


Joe Patrice: Yeah, see I think you are not —


Elie Mystal: I would not be prepared to do those duties.


Joe Patrice: I think you’re not prepared to be in the exit row.


Elie Mystal: I’m not trying to go down with the ship.


Joe Patrice: Okay, so you sat in the middle.


Elie Mystal: It’s just — no, I paid $150.


Joe Patrice: Okay.


Elie Mystal: And then started coughing on people and then they’ll feel bad about it because you f**ked them. I think the point that I’m trying to make is that there are certain fine print kind of things that as lawyers we are kind of understand and train to protect ourselves from, but not every part of our lives are we the ones in control over.


And so these fine print boilerplate bullcrap can still affect us even as lawyers because not everybody reads the fine print, and sometimes, you have people acting on your behalf, nicely trying to be helpful, who don’t read the fine print and end up screwing you because of the fine print.


Joe Patrice: Yeah.


Elie Mystal: It should be stopped. It should be made illegal.


Joe Patrice: I’m not sure there’s fine printing.


Elie Mystal: It should never be allowed to happen.


Joe Patrice: I mean, they tell you pretty upfront that you’re not getting a seat.


Elie Mystal: No, they don’t tell you that, they really don’t.


Joe Patrice: Yeah, yeah, I mean, when you book it, it says like, oh, this class —


Elie Mystal: You’re defending the airline industry now.


Joe Patrice: I’m not. I am saying that anybody who books a ticket is pretty clued in that you’re not getting to choose a seat. In fact, when you book the ticket you don’t get to hit the seat selection button, which is a pretty glaring sign.


Elie Mystal: No, I’m sure that the good people who booked my ticket for me know this because on the way back, they booked me a ticket with — that I had my own seat.


Joe Patrice: Okay, so they made it.


Elie Mystal: So they did not understand — because they didn’t understand that one leg of the fare that they booked which was cheaper didn’t come with a seat assignment and the back leg did come with a seat assignment.


Joe Patrice: How much did you pay? 150?


Elie Mystal: I mean, I paid zero — $150 for the upgrade.


Joe Patrice: Yeah.


Elie Mystal: Upgrade into the exit row that I wasn’t willing to perform.


Joe Patrice: Yeah, I think that’s a $75 upgrade which means you probably bought both ways upgraded, which is why when you checked in.


Elie Mystal: No, no, when I checked in, it was I already saw on my itinerary it was checked in — I was checked in on the way back on the way there. Here’s the lawyer question before we get out of here, on this.


Joe Patrice: All right.


Elie Mystal: When they ask, are you willing to perform these duties?


Joe Patrice: Yes.


Elie Mystal: If you are lying when you say “yes”, is that actionable in any way?




Joe Patrice: I wouldn’t imagine it’s — like I don’t know who the private right of action, I mean, I think it is a regulatory violation, but I don’t know.


Elie Mystal: It reminded me of before marriage I went to — I was the Catholic, so if you’re Catholic, you need to marry in church, you have to go to religious instruction and it’s totally bulls**t. I only did it for the trumpets. I wanted to get married in the church because it was a pretty church and so like I had to do the training.


And so, my priest, which I had, whatever, he is my priest, he says to me and my wife during the training, well, you know, the church’s position on birth control and we were like, yes, Father. He’s like, well, good, because some people take crazy pills to stop God’s will, and we were like, yes, well, we wouldn’t do that, Father. Even though clearly we were going to do that in fact did do that. So after —


Joe Patrice: I mean, you should have just said, we are planning to just have abortions every time.


Elie Mystal: So after we got married, I felt the need to go to confession to confess that I lied to the priest during my religious training.


Joe Patrice: Oh, wow.


Elie Mystal: And so that would made me kind of feel like that’s — they reminded me of that when this woman in the exit row was like, oh, are you going from these duties? And I’m all like six, I’m like I’m clearly not helping a damn soul. I just felt like I should — maybe this is my — this podcast is now my confession. I lied to the stewardess. I was not willing to perform my duties, I was willing to take crazy pills, just so my soul is as light as possible should I need entrance past St. Peter.


Joe Patrice: Wow.


Elie Mystal: Catholicism will f**k you up, man.


Joe Patrice: Fair enough. Well, let’s — on that note, transition here real quick. So today’s episode is brought to you by your dog, who’s very mad at you and thinking about running away to the country all because you’re still at the office slogging through an endless doc review project. Make better decisions, keep your pet, and work smarter with Logikcull, an eDiscovery software that gets you started in minutes, law practice is rough.


Elie Mystal: Oh my God.


Joe Patrice: Create your free account today at


Elie Mystal: You don’t have to read the rough that way. You don’t have to make the sound.


Joe Patrice: Yeah — no, I felt as though it conveyed what it was trying to convey there.


Elie Mystal: That’s not part of the read.


Joe Patrice: I mean, none of it was technically part of the read. I rewrote the copy because I thought, I just wanted —


Elie Mystal: You rewrote the copy?


Joe Patrice: Oh, I wrote this because I wanted a different animal. We’ve done the cat a few times, so I thought maybe if I take the exact same concept of the ad read spice it up a little bit. This is sort of service that I’m willing to provide.


Elie Mystal: This is my life.


Joe Patrice: Yeah.


Elie Mystal: Let’s bring on our guest.


Joe Patrice: Yeah, go for it.


Elie Mystal: Today, listeners, we are joined by Mark Joseph Stern, he is the Legal Correspondent for Slate, which is a fantastic online publication that I hope you all read. He is the author of ‘American Justice 2019: The Roberts Court Arrives’. It’s a very good book about basically everything that happened last year at the Supreme Court really getting into the backstory of how these cases kind of presented themselves to the Roberts Court and really examines the critical role John Roberts played in last year’s term and has some thoughts about roles he might play in this year’s term.


Mark, thank you for joining us.


Mark Joseph Stern: Thank you so much for having me on. I loved hearing all of those weird straight people’s stories beforehand. I feel like getting married in a Catholic Church is a heterosexist microaggression, but I’ll accept your apology off the air.


Elie Mystal: No, fair enough. In fairness, it was terrible for all. But, dude, the trumpets at my wedding were so like they hit the raft, it was amazing.


Joe Patrice: I know, and they don’t allow trumpets in any other kind of church.


Elie Mystal: Not that I was aware of.


Joe Patrice: Fair enough.


Elie Mystal: Mark, you wrote a book about last year’s term and you really focused on John Roberts’ role in shaping what our legal system is going forward. Can you give us just a brief overview of how you view Roberts, because I feel like there are quite a few people who view Roberts as some kind of swing vote, some kind of centrist that can kind of save us from the Trump from the full excesses of the Trump era, that’s not the portrait of Roberts I get from your book.


Mark Joseph Stern: No, absolutely not. So it’s a bit of a contradiction because Roberts is the swing vote on the Court but he is not a swing-voter. Roberts is at the center of the Court but he is not a centrist. When Justice Anthony Kennedy retired, the Supreme Court lost its actual swing vote, by which I mean, a Justice who actually swings from one side to the other.




Kennedy love him or hate him, he would swing very far to the right in some cases like Citizens United and then he would swing very far to the left in other cases like Obergefell establishing a constitutional right for same-sex couples to marry. There is no swing vote today, but Justice Brett Kavanaugh is not a swing vote, he is an arch-conservative and while Roberts is very conservative too, he does have a deep concern for the institutional legitimacy of the Supreme Court.


And so, from time-to-time in a very small set of cases, it is possible for progressives to persuade Roberts to kind of inch toward the center from the far right wing and sort of throw breadcrumbs to liberals, and liberals always get down on their knees and lick up the breadcrumbs and say, oh, thank you so much, Mr. Chief Justice, because they have such low expectations.


Elie Mystal: What kind of arguments do progressives need to make to sway Roberts — as you talk about like there were people who thought Trump v. Hawaii was going to go the progressive way, right? That didn’t work out.


Mark Joseph Stern: Not me for the record, but yes.


Elie Mystal: For the record, right? And I am on the record of thinking that I thought we had a better chance in Hawaii than we turned out to have. So he doesn’t — the progressive arguments failed in Trump v. Hawaii they succeeded in something like the Census case, what kind of arguments do you think Roberts is persuadable by?


Mark Joseph Stern: So, it almost always goes to this question of institutional legitimacy, right? Roberts has said I don’t want to be the Chief Justice who wrecked the Supreme Court. He knows that the Supreme Court does not have an army to enforce its rulings, it really sort of relies on magical thinking to make sure its decision stick. And if the Court loses its legitimacy and the political branches just start ignoring it, that’s a real problem and not one that the Court can necessarily fix on its own.


And so, the key to understanding, Roberts, I think is that he really wants to rule for the conservative side, for the Republican side, in essentially every case, but sometimes that side screws the pooch so badly that he just cannot bear to sign his name to their handiwork and agree with the garbage that they have brought him.


So, Trump v. Hawaii this is the travel ban case you’re talking about, I never had any hope that Roberts would rule the right way because, yes, the first travel ban was horribly sloppy and if it had gotten to the Court in that form, maybe Roberts would have ruled the right way.


But by the time it actually got to the Chief Justice on the merits, it was the third iteration of the travel ban. All of these lawyers and security experts had sort of papered over the obvious anti-Muslim bias behind the ban with all of this vs about how it was necessary for the national interest in the national security, and the President is just trying to protect American citizens and blah, blah, blah and it was more than enough for Roberts to say, sure, I’ll pretend to believe that. That’s enough for me.


The opposite ended up happening in the census citizenship case, which is what I think we’ll talk about today. The Trump administration was so bad at lying about its motivations in that case that I think it embarrassed Roberts and he recognized that if he pretended to believe Trump that he would really kind of lower the Court’s place in the public eye that he would kind of humiliate the Court and so he just in the end wasn’t able to rule for the Conservatives in that case.


Joe Patrice: It feels to me sometimes that what’s important about Roberts is that he gives America and — how Roberts does these things is that he gives America the opportunity to look into a mirror and figure out exactly where the lines are because of the way — like you said about institutional legitimacy, what part of that is you can get over a lot institutionally if it’s an issue that people care about but he’s kind of exposing the cracks that sometimes get sucked up and papered over in electoral decisions because obviously coalition building whatever, but he’s really showing where America says like, oh Muslim bans, I guess that’s not enough to rise to the ire of that being an institutional problem.


So, I think the importance of him is the way in which he’s kind of exposing fault lines that I think some people might not see if they say, if we elected a Black President I’m sure we don’t care about race anymore, and Roberts is right there to go, no, I’ve decided that getting rid of voting rights is not over the line institutionally, people are not going to go to war over that, people are not going to care about the Supreme Court being illegitimate over that, which I think is something that I think is exactly what you are talking about where he has this limited interest and it’s in legitimacy and I think the problem is what constitutes legitimacy is what we’re getting to see kind of beneath the surface of.




Mark Joseph Stern: Absolutely, and it’s really difficult to craft an argument around legitimacy that will persuade the Chief Justice. I’m certainly not the only person to see this pattern in his votes and a lot of advocates are trying to frame their cases as challenges to the Court’s legitimacy, but most of the time Roberts is willing to sort of follow his conservative Republican instincts to their logical outcome.


For instance last term’s case are two terms ago now, Janus, right? Crushing public sector unions by overturning laws in 22 states in the District of Columbia, that simply allow unions in the public sector to collect fair share fees from workers to cover the cost of collective bargaining. This is not a big deal. This is not a threat to any constitutional value. This is Union saying, hey, we’re bargaining over your ability to take breaks and go to the bathroom and have healthcare. So, we’re going to collect a few nickels from your paycheck to make sure we can keep doing that, and John Roberts joins an opinion that says that is a dire threat to freedom of speech, it’s compelled political speech, these laws must end right now, the unions should be grateful for the windfall they’ve had so far. These evil conspiracies, basically it’s a Fox News decision, right? It could have come out of Bill O’Reilly.


And to Roberts, no problem at all. He doesn’t think that’s a threat to the Court’s legitimacy, and frankly, based on the limited fallout from Janus, I think he might have been right.


Joe Patrice: 40 years of precedent is a real question of legitimacy right up until it isn’t.


Mark Joseph Stern: Yeah.


Elie Mystal: Yeah, I mean, look, my take is that Roberts, I mean, going along with what you guys are already saying, it’s that Roberts doesn’t want to be Roger Taney, right? Like, he doesn’t want to go down as a guy who started a war and anything less than that, if he believes that it’s less than that, he’s going to go for. But, Mark, to your point about how advocates are trying to craft their arguments to make a legitimacy challenge that Roberts generally is willing to waive away.


It seems like if you’re a progressive, the real hope is not that your advocates are going to persuade Roberts, it’s that the other side is going to be just that dumb, and that’s really I think the lesson of the census case, right? Like that the Republican side, the conservative side was just too dumb for even Roberts to stomach, and noting that the progressives did to convince him. It’s that the Conservatives screwed the pooch.


Mark Joseph Stern: Totally. I mean, the census win is not a kind of durable strategy for the progressive movement because it only happened, the Chief Justice only joined the Liberals to block the citizenship question on the 2020 census because the Trump administration was so incredibly stupid in going about this conspiracy to add the citizenship question and pretend like they were doing it to enforce the Voting Rights Act and so bad about lying under oath in Court which they did over-and-over again, by the way, not that it seems to matter anymore, but they were so bad at crafting these lies and keeping their story straight.


I mean, you can read different depositions and it’s clear that they did not think they would face serious scrutiny but basically what happened is progressives got a great Judge in New York; U.S. District Judge Jesse Furman, he really drilled down in discovery and all of these lies and all of this mendacity surfaced and it all proved that the citizenship question was designed to basically lower the response rate from immigrants and Hispanics to deprive them with representation, to boost White voting power and that the Voting Rights Act explanation was a laughable pretext.


And John Roberts looked at all of this evidence a veritable mountain of evidence and said at the end of the day, I just can’t approve of this, I cannot pretend like I’m not seeing what I’m seeing, and I don’t think there will ever be another case like that because at a bare-minimum I think that most of Trump’s bureaucrats and confederates are smarter than Wilbur Ross, the Secretary of Commerce who was sort of the ringmaster of this when he wasn’t dozing off at meetings. And I think that moving forward it’s going to be a lot more difficult to find these cracks in the façade of pretext.


Elie Mystal: Yes, so I was going to ask a different question but since you brought up Trump’s henchmen, what — again this isn’t really in your book, but what’s your impression of Noel Francisco? Is he — as Henchmen go is he particularly effective? Is he particularly ineffective? Is he just the mere functionary that’s playing with a rigged hand and he already knows he’s going to win?




Mark Joseph Stern: I think he is really effective. I think he is excellent at arguing. I actually sort of enjoy watching him in a perverse way. I mean it’s masochistic, because he is making these horrible arguments that are totally dishonest and quite often built on falsehoods, but he is good at doing that and he is good at taking —


Elie Mystal: He is good at lying.


Mark Joseph Stern: He is a good liar, and there is a certain art to that that I guess just — I have to kind of step back and say, all right, hat off to you Mr. Francisco, like you pulled that off nicely. But he is good at sort of giving the justices the outs that they need to believe his lies. I mean his performance in the census citizenship case was brilliant in its smooth mendacity, because he just said look, this is just about the Administrative Procedure Act, we don’t have to get down into the weeds here, all we are doing is looking at what’s on the record, we don’t have to get into all of these depositions and whatever and as we now know he initially won over the Chief Justice, right?


Elie Mystal: Right. He was going to win that.


Mark Joseph Stern: He was going to win that. Roberts sided with the administration before changing his mind. And so I think he is more than just another Trump functionary, I think he is extremely cynical. I think he enjoys the challenge of defending these rather indefensible executive actions, and I think that he knows on some level that he is sort of playing the justices, that he is hoping they will be suckers and that he really is likely to win in almost every case.


I have to say this, because you are going to think I am crazy, but it’s true. I swear to you that right before Francisco stood up to argue the DACA case recently, he looked straight at me and winked. I promise you. I know it sounds crazy, but I really think — and he is so funny, he slouches down in his chair, his hair is a mess, he looks like this weird like lounge lizard, who is like four drinks in and about to do karaoke. He is such a strange dude.


Elie Mystal: That sounds like George W. Bush, like we have got to stop these terrorists, now watch this drive, right?


Mark Joseph Stern: Exactly.


Elie Mystal: It’s like the perfect criminal, he wants somebody that can appreciate what he is about to pull off, and you were the somebody. You were the audience eye in that situation.


Mark Joseph Stern: Apparently so. And look, I thought he did a great job as a performer. I thought it was disgusting what he was arguing, but procedurally he pulled it off.


Elie Mystal: That’s amazing. Mark, I want to get you on air on this, and I know your book is about Roberts and again for those listening, it’s ‘American Justice 2019: The Roberts Court Arrives’. I want to get you on air on this though. Your discussion of the death penalty cases that happened last year was fascinating to me because it really kind of focused in on Brett Kavanaugh, our newest Supreme Court justice, hopefully our newest Supreme Court Justice for a while, knock wood, what the fuck does Kavanaugh believe about the death penalty, because I think you did a really good job of explaining how he is kind of all over the map.


And just to preview what I think before I let you answer, like to me one of my worst fears about Brett Kavanaugh, who has been credibly accused of attempted rape and other sexual misconduct, is that when you kind of dive into some of his ethical allegations, what he presents to me as is one of those classic hangers on toxic male guys. Like he is not the leader of the party, he is not the leader of the bum-rush, but he is the guy in the background, always happy to cheer along and kind of would like to participate, but doesn’t always know how to get in there.


And so I find him to be like eminently persuadable by what the cool kids are doing, and when you look at his death penalty decisions last year, it really seems like sometimes he thought Gorsuch was the cool kid, sometimes he thought Roberts was the cool kid, but as opposed to having any kind of core belief himself, he was just trying to figure out if he wanted to please Gorsuch or please Roberts at any given moment or please Thomas or whoever.


Do you think that Kavanaugh has a core belief or ideology about the death penalty or is it just what I think this kind of pathetic beta male, I just want to be the guy riding shotgun with my boys?


Mark Joseph Stern: Very vividly put. I am glad you said that, because I have been observing Kavanaugh for more than a year now, frequently in person as he is performing on the bench, and the one thing I feel like I know for sure is that this is a dude who wants to be popular, even after everything that he went through and his horrific performance at the Christine Blasey Ford hearings, he still wants approval, not just from Republicans and conservatives, but from everybody.




He wants to be liked. He does not want to be scorned or despised even by people he may perceive to be his enemies. And that really separates him out from Neil Gorsuch, who is a nihilist, who does not care what the general public thinks.


Elie Mystal: Or Clarence Thomas, who went through arguably what Kavanaugh went through and came out like all the more bitter and just vengeful because of it.


Mark Joseph Stern: Yeah, yeah, Dahlia Lithwick, my colleague, described him as a one-man vengeance machine. Clarence Thomas truly is that. Kavanaugh is not that. He is persuadable, but the factors that go into persuasion of Brett Kavanaugh are still obscure to me.


One thing I know is that he doesn’t want to be seen as bloodthirsty or barbaric or intolerant of religious minorities and all of that sort of came into play during these death penalty disputes, where the justices were so angry at each other, right, just firing these missives back and forth, these poison pen letters and you frequently had Kavanaugh in the middle trying to find some kind of common ground.


And the big flip, the illustration of Kavanaugh craving popularity in my view was during this dispute over having a spiritual adviser in the execution chamber, right? So Alabama would not let this Muslim inmate have access to his imam when he was killed. Alabama said it’s a Christian chaplain or nothing. And the five conservative justices allowed Alabama to execute him under that rule, didn’t stop the execution.


Kagan issued this blistering dissent, joined by the other liberals. A bunch of editorials came out, including in places like the National Review really condemning the conservatives decision saying religious equality is important even if it’s not just for Christians.


And then a few months later when Texas wanted to execute a Buddhist inmate and denied him access to his spiritual adviser and said you can only have a Christian chaplain, guess what happened, Kavanaugh flipped, and Kavanaugh joins with the liberals and blocked the execution and has this totally pretextual reason for this flip, but the actual reason is very obvious, which is he didn’t like everyone screaming at him after the Muslim guy got killed. He does not want to be seen as a total asshole, and he wanted to kind of bask in the glow of praise that he knew he would receive if he blocked this execution. That’s my read on him. It’s maybe a little shallow, but I don’t think he is that deep of a dude in the first place.


Elie Mystal: I mean it’s so weird though, because I mean we are trained as lawyers and as legal pundits and as people who watch this stuff, we are trained to kind of understand that the Court doesn’t give a damn about their clippings. They don’t get high on their own supply, that’s the benefit of having a lifetime appointment, and we are trained to feel that like Gorsuch just doesn’t care what you say about him, he is there for life, yo. Same with Roberts. Sometimes as they get older, we understand they have a little concern about —


Joe Patrice: Legacy stuff, yeah.


Elie Mystal: How they will be viewed by history and in stone tablets, but kind of day-to-day they don’t really give a damn. Your contention and I think mine too is that Kavanaugh seems to — he is reading the National Review at least, right?


Joe Patrice: Yeah.


Mark Joseph Stern: Yeah, yeah, that’s right, which I guess that’s better than the Federalist, right? He is at least getting a little David French from time to time, I don’t know.


Joe Patrice: I mean that’s why Gorsuch strikes me as, to the extent there is any kind of a swing where you could engage in kind of litigatory strategic essentialism, like you could aim for Gorsuch with some like bullshit, like this is really a core libertarian value and like really try and get him to be — because he doesn’t care about anything, but his firm belief that 00:28:51 was right or whatever the hell, and you can just go for — like I don’t think it’s a viable strategy to win all the time, but I almost feel like that’s the one that you can almost swing, because he doesn’t care.


Mark Joseph Stern: Absolutely.


Joe Patrice: Yeah.


Elie Mystal: Mark, Joe and I talk about this a lot on the show, but like the danger of Gorsuch is that he believes this crap, right, like Scalia and Thomas, they kind of knew that originalism was really just an agenda and a way to get the Republican ideology through, but Gorsuch, kind of hatched as he was, almost like incubated by the Federal Society, actually has the misfortune or sometimes fortune of actually believing that originalism is a thing, and so sometimes you can maybe persuade him on straight up originalist and textualist grounds, corrupt though they may be.


Mark Joseph Stern: Yes, although not in cases with real partisan felons, right?


Elie Mystal: Right, right.




Mark Joseph Stern: You are not going to get him on the next Bush v. Gore or even something about guns or campaign finance or abortion, right, but on these smaller issues, especially criminal justice, Gorsuch’s vote is absolutely gettable, and has been gotten. There have been a number of 5-4 decisions with Gorsuch joining the liberals in say striking down criminal statutes as void for vagueness or enforcing the Sixth Amendment right to a jury trial or I think we will see soon, arguing for the right to confront your accuser in Court. He has expressed a real interest in reviving that.


And I think his vote is gettable there, in part because as you said, he does not care about the consequences at all, so he issued this decision striking down this pretty major federal sentencing law last term in a case called Davis and it was 5-4, Gorsuch and the liberals versus all the other conservatives and Kavanaugh wrote the dissent, accusing Gorsuch of driving the Court off a constitutional cliff.


I mean Kavanaugh was apoplectic, basically saying you are soft on crime, Neil, you are letting all these bad people out of prison, and Gorsuch did not care at all, because that’s just who he is. He was hatched in a Federalist Society lab, like Jurassic Park style. He popped out of that egg talking about like James Madison’s original intent. And if that leads to him tearing down a bunch of federal criminal statutes that we all may hate for different reasons, but we all hate for pretty good reasons, then he will do it.


Elie Mystal: Sorry, last question, I know I said the last one was the last question, but you just made me think of something else, and it will be good because we will full circle it back to Roberts. Should the worst happen and I can’t speak the name, but should we end up with Amy Coney Barrett as the next Supreme Court justice, does that make Roberts more of a swing vote, because now the five of them; Thomas, Alito, Gorsuch, Kavanaugh and Barrett will be so off the constitutional cliff that Roberts is pushed to defend the institution more than he is now?


Mark Joseph Stern: Right. So I think that if another liberal justice steps down under Trump and is replaced, Roberts becomes largely irrelevant. All of his institutional concerns are sort of immaterial, because you will have five votes to do whatever the hell Leonard Leo wants to do at this moment.


If you have Amy Coney Barrett on the same Court as Alito, Thomas, Gorsuch and Kavanaugh, that Court is going to be joyriding right back to 1791. It is going to be obliterating the New Deal, obliterating Roe, Obergefell, Miranda, right, all of these really vital decisions and progressive jurisprudence, I think they are going to be gone. And Roberts can complain, he can go along for the ride, he can try to moderate them, but as Brennan always said, with five votes you can do anything around here and once Roberts is pushed out from the middle and that conservative faction has an extra hardcore nihilist, then Roberts doesn’t matter.


Elie Mystal: Yeah, okay. So great, I wish I had ended that earlier, because now I want a drink.


Joe Patrice: I mean yeah, we have liquor in the office.


Mark Joseph Stern: I was about to say like it’s — with Brett Kavanaugh on the Supreme Court, you should always want to drink. If you are sober for more than 24 hours in any given period, there is something wrong with you. You are dramatically underestimating what’s going on over here.


Elie Mystal: It’s so bad. Thank you so much Mark. The book is ‘American Justice 2019: The Roberts Court Arrives’ by Mark Joseph Stern from Slate. Thank you so much Mark.


Mark Joseph Stern: Thanks so much for having me on.


Joe Patrice: And thanks everybody for listening. You should be subscribing to the show, you should be giving it reviews, and not just the stars, write something about it, try to use keywords like law and lawyer when you are describing it in there. Those things all matter.


Elie Mystal: Or rough.


Joe Patrice: I mean rough, you could always use the word rough, like we did when we were talking about our sponsor Logikcull. You should be following us on Twitter. He is @ElieNYC. I am @JosephPatrice. You should be reading Above the Law. You should be listening to The Jabot, which is Kathryn Rubino’s podcast, the other offerings from the Legal Talk Network.


Elie Mystal: Let Mark do his Twitter handle.


Joe Patrice: Oh yes, yes, Mark’s Twitter handle.


Mark Joseph Stern: My Twitter handle is @mjs_DC.


Elie Mystal: Boom.


Joe Patrice: All right, thanks everybody. We will be back in the near future.


Elie Mystal: This is our last episode before Thanksgiving, right?


Joe Patrice: This is our last one before Thanksgiving, yes.


Elie Mystal: Happy Turkey Day.


Joe Patrice: Yes.


Elie Mystal: Happy Turkey Holocaust.


Outro: If you would like more information about what you heard today, please visit You can also find us at,, iTunes, RSS, Twitter, and Facebook.


The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.



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Episode Details
Published: November 26, 2019
Podcast: Thinking Like a Lawyer - Above the Law
Category: Legal Entertainment , Legal News
Thinking Like a Lawyer - Above the Law
Thinking Like a Lawyer - Above the Law

Above the Law's Elie Mystal and Joe Patrice examine everyday topics through the prism of a legal framework.

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