Original subtitles

Hey, hey!

Ho, ho!

Supreme Court has got to go!

Confidence in the Supreme Court

is lower now

than it has ever been.

According to the latest Gallup poll...

Alexander Hamilton famously said,

"The Judiciary has neither the purse"... the power to spend...

"as Congress does,

nor the sword"... the ability to deploy armies...

"like the President does.

All it has is its inherent moral authority."

And when it is behaving in a way that squanders that authority,

that is bad for the Court, and I think,

even worse, it's bad for the country.

Ominous music

The Court's strength comes from its perception of legitimacy,

and legitimacy, I think, comes from the idea that the Court is

perceived as being apolitical, and involved in doing something

different than ordinary everyday politics.

It's not just Liberals and Progressives

who are anxious about the state of the Court,

it's mainstream Americans,

who don't think this Court is legitimate,

and that's problematic because the only power the Court has

is its legitimacy, and if it loses that,

well, then the question becomes: "Why obey?"

curious theme music

Part of the role of the Court is that it

is gonna protect people who may be vulnerable in the

political process.

I assure you, I have no agenda.

My only agenda is to be a good judge.

There's no difference between a white snake and a black snake;

they'll both bite.

My approach, I believe, is neither liberal

nor conservative.

My colleagues and I want to be the most trusted people

in America.

I think we all feel strongly in this

country about our privacy; I do.

I believe the Constitution protects the right to privacy.

Are you a gang rapist?

No.

Life's challenges place hurdles every day,

and one of the wonderful parts of the courage of America

is that we overcome them.

Do you affirm that the testimony you're about to give

before the committee will be the truth,

the whole truth, and nothing but the truth,

so help you God?

I do.

Ominous music

energetic percussion

I have to say, primary campaigns are like weddings;

they bring out the best and worst in families.

Too many times, people have arrived at this wedding with not

just opinions, but their own set of facts.

The campaign narrative has gone from inane to profane.

You've called women you don't like "fat pigs,"

"dogs"...

"Slobs," and "disgusting animals."

Your Twitter account...

Only Rosie O'Donnell.

tense music

We join you with this breaking news:

Justice Antonin Scalia, the Supreme Court's most influential

Conservative, has died.

He died in his sleep of natural causes overnight,

while he was on a hunting trip in Texas.

He was 79 years old.

He's one of those justices that I think,

whether you agree with him or not,

really stands out to you as a law student when you start

reading constitutional opinions, and he said,

on a number of occasions, that he wrote his dissents especially

for law students, to try to persuade people in the future

that his view was correct.

I suppose when one dissents from as many

of the Court's decisions in one day as I have today,

you get to, uh, discuss it.

It is clear from this that the Court has taken sides in the

culture war.

The Court thus proclaims itself sole arbiter of our nation's

moral standards.

Soft tense music

Blessed are those who have died in the Lord.

Let them rest from their labors,

for their good deeds go with them.

May Almighty God bless you, the Father,

and the Son, and the Holy Spirit.

Once asked...

how we could be friends given our disagreement on lots

of things,

Justice Scalia answered,

"I attack ideas,

I don't attack people.

Some very good people have some very bad ideas."

In the words of a duet

for tenor Scalia and soprano Ginsburg,

we were different, yes,

in our interpretation of written texts,

yet one

in our reverence for the Court,

and its place in the US system of governance.

Pensive music

I hope they can replace him with someone who cared about

the Constitution and the law

as it was formed by the Founders.

When it looked like Obama was going to be able to replace

Scalia,

that would have been transformational;

it would have fundamentally changed the balance on

the Court.

Within hours of

knowledge of Scalia's death being disseminated,

Mitch McConnell announced, "Oh, no,

we're not gonna let the President

fill the seat.

It should be filled after the public gets a chance to vote

in November."

soft tense music

This seemed preposterous, totally norm-breaking.

He wanted to do it because he thought it was going

to energize his voters, and help him save his Senate majority.

The Court can function with eight justices.

In the last year, within the last few months of the

President's term,

we should not be appointing Supreme Court justices.

He should; that's his responsibility as President

of the United States.

That's what the Constitution says: that he should nominate,

and the Senate should advise and consent... in this case,

have hearings and have a vote.

Today, I am nominating Chief Judge Merrick Brian Garland

to join the Supreme Court.

Presidents have a right to nominate,

just as the Senate has its constitutional right

to provide

or withhold

consent.

In this case, the Senate

will withhold it.

It was political hardball to be sure.

The Constitution gives to the Senate

the right to advise and consent,

and that's what the Senate did here;

they gave their advice and consent,

and the way they gave their advice and consent

was saying,

"We're not gonna... we're not gonna take this up."

Merrick Garland is a Moderate, and Obama proposed him precisely

because he thought here was someone as to whom no one could

have any objection.

McConnell's Republican-controlled Senate

still could've rejected

Obama's nominee,

but they never even held a hearing.

That was a signal to the American public that

maybe the Supreme Court is not as

apolitical as they claim to be,

because if McConnell is willing

to go full-on constitutional hardball

to hold this seat open

for 10 months, then that seat must matter,

and it must matter a lot.

Soft tense music

Today was a very big day.

You have a list of names.

I do.

And you had talked to me for a while now about releasing

these names.

Your judicial philosophy... you said you wanted originalists,

you said you wanted people like Antonin Scalia

and Clarence Thomas on the Supreme Court.

It was unprecedented.

Every president has a shortlist of people who are under

consideration for the Supreme Court;

no president before President Trump had ever made

that list public.

But for President Trump, it was a campaign pledge.

The goal was to energize the Right... in particular,

to energize Evangelical voters, and to energize people who

opposed abortion rights because they were understandably pretty

skeptical about this guy Trump, who had been married three

times, who had contributed to Democrats,

who had a wobbly position at best in his previous life

on abortion.

They were worried about who he was gonna pick.

The list reassured

a whole lot of Republicans...

beginning with Republican US senators...

that...

"Okay, maybe he was doing fundraisers for Schumer four

years ago, but...

looks like he may be...

okay...

on something that's really important to us,

which is 'What kind of people are you gonna put into these

lifetimes positions?'"

I just have it.

I, uh, came up with a list;

the Federalist Society was very much involved...

The Federalist Society really has become

the single most powerful gatekeeper for any lawyer or

judge, um, who's going to be nominated by a Republican

administration.

I want high intellect,

I want great intellect.

These people are all of very high,

high intellect.

They're pro-life.

And so that's my list!

So the President of the Federalist Society

is actually Eugene Meyer,

and Eugene Meyer is the son of Frank Meyer, who,

along with William F. Buckley, ran The National Review.

So there's this lineage of Conservative intellectualism.

The Vice President, Leonard Leo, was brought in later.

He was brought in because of his Washington connections because

he's a DC insider, and he is

the point person

under Donald Trump

for judicial selection.

Curious music

Personal...

accountability...

before God!

You can protest, but be respectful!

At this moment,

I would like to thank

the Evangelical

and religious community,

because... I'll tell you what...

the support that they've given me...

and I'm not sure I totally deserve it...

has been so amazing...

and has had such a big reason for me being here tonight.

True, so true.

Do you want to see the Court overturn Roe v. Wade?

Well, if we put another two or perhaps three justices on,

that's really what's going to be ha... that will happen,

and that'll happen automatically, in my opinion,

because I am putting pro-life justices on the Court.

Soft tense music

The single biggest issue

that brought nine out of ten Republican voters

home to Donald Trump

was the Supreme Court.

Unreal, surreal election we have ever seen.

I think it really did

play a major... if not the defining role,

certainly a major role... in Trump's very narrow victory.

The billionaire entrepreneur,

TV reality star

has defeated the candidate once figured to be

undefeatable.

You know, he played his hand brilliantly,

and that's what we were left with.

Donald Trump comes into office with

the gift that every president wants,

which is the opportunity to name a Supreme Court nominee.

The Trump team is very committed to

the "No more Souters, no more O'Connor" nominees.

They need a nominee who is going to be

a reliable Conservative.

Uh, President Trump wanted to talk to us about, uh,

how important he views the selection he's going to have to

make in the coming months, and I was very heartened by,

uh, the, uh... the focus he's putting on it.

When Leonard Leo sort of appears very publicly

with Donald Trump, at that point, Trump and Leonard Leo...

and, by extension, the Federalist Society...

are branding themselves together.

Leonard has taken temporary leaves from the Federalist

Society in 2005, 2006, and again, most recently,

to lead efforts in support of United States

Supreme Court confirmations for Justice Roberts and Alito,

and really, just most recently, Neil Gorsuch.

Hey, hey!

Ho, ho!

Gorsuch has got to go!

200 million people right now are barred from entering

the United States!

Families are being separated!

Judges' orders are being ignored at airports!

And what is Donald Trump's answer to this?!

It is to nominate an extremist

to the United States Supreme Court!

We are here tonight to demand...

not to ask, to demand...

that the independence of our United States Supreme Court

be protected

from being mangled and mauled by someone

whose administration does not appear......

but it doesn't appear to be committed to protecting the

constitutional rights of all of us!

Obviously, the Federalist Society had...

had weighed in previously...

groups on the left weigh in all the time;

there's nothing surprising about it...

but to simply turn the process over

to an outside interest group was very startling.

It took the better part of...

50, 60 years

to get to where we are today.

Uh, and it's gonna take a long time to get the courts...

and the Supreme Court... back to where we would want them

to be as a country premised on limited constitutional

government.

The Federalist Society is an impressive success story for how

to effectively create legal change.

So you can agree or disagree with the legal ideas that they

were embracing, but it's a remarkably effective way of how

to change the law.

Donald Trump's partnership with Leonard Leo...

who's a devout Catholic, also very anti-abortion...

has resulted in probably the strongest anti-abortion cadre

of judges in the last 40 years.

Judge Amy... Coney... Barrett.

Judge Brett Kavanaugh.

Judge Neil Gorsuch.

Do you view Roe as having super precedent?

"Super precedent" is a...

In numbers.

- Uh... - 44 c...

It has been reaffirmed many times.

- I can say that. - Yes.

Yes.

Yes, dozens.

Planned Parenthood versus Casey

reaffirmed Roe,

and did so by considering the stare decisis factors.

So Casey

now becomes a precedent on precedent.

Is Roe a super precedent?

How would you define "super precedent?"

I...

I... I actually... I might have thought someday I'd be sitting

in that chair.

I'm not... I'm up here... so I'm asking you.

Okay, well, people use "super precedent" differently.

Okay.

The way that it's used in the scholarship and the way that I

was using it in the article that you're reading from

was to define cases that are so well-settled

that no political actors and no people seriously push

for their overruling,

and I'm answering a lot of questions about Roe,

which I think indicates that Roe doesn't fall in that category.

America first!

Hey, fuck Trump!

America first!

How 'bout your momma?!

God bless America!

Whoo!

Justice Gorsuch's hearings,

at the time, you needed a filibuster-proof majority

to get through.

Judge, you're done for the day.

We will not have a successful filibuster

of a Supreme Court nominee,

because, if we have to,

we will change the rules,

and it looks like we're going to have to.

We are witnessing history in the making.

Senate Republicans have changed the way the chamber confirms

Supreme Court nominees from the 60-vote threshold

to a simple majority,

saying they're going back to business as usual before

Democrats started requiring that 60-vote threshold

for judges years ago.

You've needed a supermajority in order to install someone on

the Court.

That all changes in the Obama Administration.

The Obama Administration has just a really,

really difficult time getting their lower-court judges through

the Senate, and so Harry Reid, who is the leader of the

Democrats in the Senate at the time,

launches this plan to get rid of the filibuster

for lower-court nominees.

Remember, when the Democratic majority in 2013

changed the threshold,

they did it for everything on the executive calendar except

the Supreme Court.

I think the Senate made a mistake when it

got rid of the filibuster.

I just think it's a better circumstance when we're able to

have a system where there's broad consensus.

All of my members argued against changing the rules

back in 2013

with a simple majority.

With a supermajority requirement,

neither party could put up really extreme candidates

because they always had to be courting

the votes of people on the other side.

So when it became clear we were not gonna be able to get

60 votes...

McConnell, basically relying on the precedent that Reid set

in 2013, makes a rule change so that it is only

a simple majority that is required to confirm

a Supreme Court justice.

As we're talking, the Senate has voted to confirm

Judge Neil Gorsuch to the United States Supreme Court.

Senate Republicans invoking, of course,

that so-called "nuclear option," confirming him with just a

majority vote.

Congratulations.

Thank you.

After those hearings, the filibuster got blown up,

and that's where we are today.

The announcement that Kennedy was retiring handed Trump

the opportunity to really change the Court.

Justice Breyer and the other three Liberals,

their life has really changed as of this moment because...

Mm-hm.

Any time they were able to win,

it was because of Justice Anthony Kennedy.

When Justice Kavanaugh was nominated,

I was relieved.

He was not the person I would have picked... as a idealogical

matter... to be on the Supreme Court,

but for a choice of a Republican president,

he's kind of a mainstream Republican.

The Kavanaugh nomination was pitched as this incremental move

to the right.

Kavanaugh had clerked for Kennedy,

Kennedy would often refer to him as his "favorite former clerk."

I think a lot of folks thought he'd be another John Roberts.

Can you share your views on the importance of religious liberty,

and how the Constitution protects it?

You look at, for example...

Senator Collins and Senator Murkowski,

listen to your constituents!

They want you to vote no!

They want you to protect women!

In... in other countries around the world...

you know, in China, for example...

So the hearings are proceeding much as, I think,

folks might have expected,

there's disagreement about his substantive views and where that

puts him on the spectrum, but no obvious obstacle

to confirmation

until a lightning bolt drops.

Soft tense music

Brett Kavanaugh's path to the Supreme Court just got

supremely complicated.

The woman accusing Supreme Court nominee Brett Kavanaugh of

an assault decades ago is speaking out in a new interview.

Could her allegations derail his nomination?

- We believe! - Anita Hill!

We believe!

We believe!

Ford, a psychologist and professor,

says the Supreme Court nominee "pinned her to a bed,"

"put his hand over her mouth,"

and "groped her" at a high school party.

Brett Kavanaugh says, "That's completely false."

What else can he say?

I want to have both individuals

come before the Senate Judiciary Committee

and testify under oath.

We won't go back!

We won't go back!

Who's court? Our court!

Who's court?

Soft tense music

Release...

this demon of sexual abuse!

Cokie, you remember well... 1991,

Hill, Clarence Thomas, the last time we saw something like this.

We're in a very different time now, George,

and so this credibility question is absolutely key.

I am here because I believe it is my civic duty to tell you

what happened to me while Brett Kavanaugh and I

were in high school.

I was having, honestly, PTSD when I was watching

Judge Kavanaugh testify,

because it was the Clarence Thomas playbook all over again.

It was "Anger is going to win the day for me."

This whole two-week effort has been a calculated and

orchestrated political hit,

fueled with apparent pent-up anger about President Trump

and the 2016 election,

fear that has been unfairly stoked about my

judicial record...

50 to 48 is the narrowest margin for a

Supreme Court confirmation in more than 130 years.

Now, Susan Collins, who put him on the Court with her yes vote,

has said that she got assurances from Kavanaugh that he will

respect so-called "stare decisis"... precedent.

And, of course, Roe v. Wade is now Supreme Court precedent.

So stare decisis is this just deeply-embedded idea that the

law is the law, and it doesn't change because one person leaves

the Court and another comes back.

The law is a body of rules that is ongoing,

and it needs to have a lot of continuity to it.

That doesn't mean it never changes,

but it does mean that it doesn't sort of,

you know, give you whiplash by radically changing in an

unanticipated way that really upsets people's expectations.

Chief Justice Rehnquist not doing away with the Miranda

warning, he literally was like, "'Cause on 'NYPD Blue, '

they say it, and so people think it's true!"

But that matters, you know, that people rely on these things.

With the departure of Justice Kennedy,

it's not just that his politics put him between

the two blocs,

it's that he moved between them, so that you couldn't be sure;

he wasn't predictable.

The disappearance of that

really clears the way for now the five

Republican appointees to not have to worry about

anybody else.

Soft tense music

We see, starting in the summer of 2018,

small cases where the majority is more comfortable overruling

precedents than it had been, at least in some period of time.

We see more inclination on the part of the Court to grant

emergency applications,

especially coming from the Trump Administration.

"Shadow docket" is a very evocative and kind of

sinister-sounding term for

something that the Court has to do,

which is decide cases on emergencies.

The phrase "shadow docket" comes from a

friend... Professor Will Baude.

Was a shadow docket...

Shadow docket...

From the so-called "shadow docket"...

I think it's a phrase that's overused,

it suggests there's something

spooky going on, something in the dark of night.

It's not!

It's "What do you do with emergencies?"

The Rosenberg execution happens on the

shadow docket.

There's lots and lots of

particularly death penalties that the Court does not have

time to say, "Let's docket this for six years from now and hear

it," and so there's always been an emergency docket,

and that is as it should be.

The real, I think, pivot is the Court is starting to hear

merits cases on its emergency docket.

As judges during the Trump Administration issued rules

saying, "No, he can't have the travel ban;

no, he can't build the wall;

no, he can't add this question to the census"...

Trump, instead of waiting for the case to percolate through

the courts...

waiting for it to go up through the appeals courts,

waiting for it to go to the Supreme Court...

would just race it to the US Supreme Court and say,

"Decide this now."

soft tense music

During the George W. Bush and Barack Obama administrations...

two very different two-term presidencies...

the Justice Department only asked the Supreme Court to

intervene through an emergency application

a total of eight times in 16 years,

and the Court did four times,

and in one of those four cases, there was a dissent.

During the four years of the Trump Administration,

the Justice Department asked the Court to intervene 41 times,

granted all of part of what they were asking for 28 of those

times, and almost all of these cases,

there are dissents.

When you're deciding things on an emergency basis,

the Court traditionally does not explain itself,

'cause it doesn't have time to issue a written opinion,

so we don't know why these things are happening often.

In some cases, we're not even quite sure which justices

signed off; you have to kind of reverse-engineer

from the dissents.

It is the absolute polar opposite of showing your work.

Those decisions are concerning...

not just in the civil rights area,

but litigants across the board,

but certainly in the civil rights area,

where we're trying to understand

what is the basis for decisions from the Court.

Supreme Court Associate Justice

Ruth Bader Ginsburg has died at the age of 87,

and in the shadow of a presidential election now just

45 days away.

She meant so much to millions,

to millions of people's lives,

and I know what her last fervent wish was:

that she not be replaced until a new president is installed.

Soft tense music

Ruth Bader Ginsburg's death gives the

President the chance to nominate his third Supreme Court justice,

which could make it a six-three Conservative majority ahead of

November 3rd.

Senator McConnell's rationale for not moving on the

Garland nomination was because it was too close to

a national election.

Amy Coney Barrett was literally in the middle of an election.

Thank you.

People were early voting in a number

of jurisdictions.

We were literally

on the road to that Tuesday in November when we choose

a president.

- Vote now! - Are you gonna pack the Court?

Make sure you, in fact, let people know...

He doesn't wanna answer

- the question. - Your senators.

I'm not gonna answer the question because...

Why wouldn't you answer that question?

- Because the question is... - You wanna put a lot of...

- The question is... - New Supreme Court justices...

- The question... - Radical Left...

- Will you shut up, man? - Who is your...

Listen, who is on your list, Joe?

Soft tense music

Amy Coney Barrett was given a good clerkship,

which then propelled her to

a Scalia clerkship.

She was one of Trump's first appointees to the Federal Court.

So when Justice Kennedy retired and her name was put forward,

President Trump reportedly said,

"No, not yet, I'm saving her for Ginsburg."

President Trump's pick for the Supreme Court,

Judge Amy Coney Barrett, has spent the day defending her

judicial philosophy,

and dodging questions about how she'd rule on future cases.

I've never expressed a view on it.

I can't answer questions like that.

She would not say if she agreed with the Court's 2015

decision guaranteeing the right to same-sex marriage.

To the raw numbers, then there's no way to stop.

exciting news music

CNN projects Joseph R. Biden Jr. is elected

the 46th President of the United States.

Please raise your right hand, and repeat after me.

Even if Trumpism

and the ideas and policies that brought him to power

fall far out of fashion,

Democratic politics is still going to have to

reconcile itself...

All right!

With a Supreme Court that is far more

conservative than the average American.

This Court is likely to be in place until 2030, 2040.

Band playing fanfare

I think a lot of folks were waiting for visible signs on

the merits docket that Justice Barrett's confirmation was gonna

have this massive impact, when, in fact,

the impact happens almost overnight.

The Supreme Court overnight blocked one of the measures

New York State took to combat the pandemic.

Justice Amy Coney Barrett playing a crucial role,

the Court shifting to the right since her confirmation just

weeks ago.

So it sets off this remarkable six- or seven-month period,

where the Court is intervening over and over and over again

through these emergency injunctions... so before these

cases have had any real opportunity to make their way

through the Court... to block COVID restrictions,

exclusively in blue states,

and exclusively on religious liberty grounds,

where the claim is that these state laws...

that are basically trying to adapt to this public health

emergency...

are unfairly treating and unfairly interfering with

religious practice.

None of this would have been possible without Justice

Barrett, because in many... if not most... of these cases,

John Roberts is dissenting.

So the irony is that you've got justices who got there as a

result of internalizing the ideas of the Reagan Revolution,

the core idea of which is judges shouldn't meddle

in what government is doing.

Well, they've become the meddlers.

And I think one of the things that's most problematic about

how often the Court was intervening at that preliminary

stage in the COVID cases is that it's the exact same lineup

that refuses to intervene in the SB8 case.

The Texas Heartbeat Bill is now law in the Lone Star State.

While abortion is legal and constitutional,

every woman should have access to it.

My surmise before the Court actually took up SB8

was that it was so aggressive and so flagrant

an effort to circumvent

the Court's ordinary processes

that the Court couldn't possibly countenance it,

especially because the Court was on its way to overruling Roe

later that same term anyway.

And so, overnight, what had been this contested but

not-yet-undermined constitutional right basically

is turned off in Texas,

and it's turned off in this unsigned,

thinly-explained order,

where the justices certainly look like they're being

inconsistent, and where it's not just the Liberals

who are dissenting, it's also Chief Justice John Roberts,

himself no fan of abortion.

Chief Justice John Roberts sided with the three

Liberal justices.

In a blistering dissent, Justice Sonia Sotomayor called her

colleagues' decision "stunning,"

and the Texas law "flagrantly unconstitutional."

That was a pretty strong signal that all of our

settled understandings of the kind of institution

the Supreme Court is were basically out the window.

It's really not a conservative Court,

it's a quite radical Court.

And I think that was the moment coincidentally or not...

that the Court starts to see its public polling numbers go into

the toilet, really lower than we've ever seen in history.

John Roberts is a very conservative person,

and believes in changing the course of the Court from what

it's been over the years.

He's doing it much more carefully and gingerly than some

of his colleagues seem to be wanting to do.

He triangulates not just against

"What outcome do I want in this case?"

but "How do I make sure that a Court that,

again, has neither an army nor a... a treasury,

is legitimate in the eyes of America?"

And I absolutely know that when John Roberts is flossing

at night, that's the thing he thinks about before he goes

to bed.

We deserve better!

This moment is scary, but it's also an opportunity for us to

liberate abortion, and make sure everyone is able to have the

abortion care...

We will hear argument this morning in

case 191392:

Dobbs versus Jackson Women's Health Organization.

Prior to Ruth Bader Ginsburg's death,

John Roberts was exceptionally mindful

of how far he could push the law in a conservative direction

before it would invite backlash, before it would invite attacks

from the American public that they were being illegitimate.

When Amy Coney Barrett joined the Court,

John Roberts lost control of the Conservative majority.

He's not in the pole position among that Conservative bloc.

That was evident in the Dobbs oral argument.

I'd like to focus on the 15-week ban,

because that's

not a dramatic departure from viability.

It is the standard that the vast majority

of other countries have.

He starts out trying to appeal to his colleagues;

like, "We don't have to overrule Roe versus Wade.

We said we were only answering this question about

the constitutionality and permissibility of HB 1510...

this Mississippi 15-week ban.

We can just uphold this law,

and never get to this other question!"

And they're like, "No!"

The more liberal justices warn today that

overturning Roe would undermine public confidence.

Will this institution

survive the stench

that this creates

in the public perception

that the Constitution

and its reading

are just political acts?

Soft melancholy music

I think that... particularly if you're a woman or a person of

color or any vulnerable minority who lived through

the difference between, you know,

in a couple generations,

Jim Crow South and Obergefell;

you know, that arc... it's an extraordinary story about being

pluralistic and tolerant and inclusive and

"Make sure that everybody's voting and make sure

that everybody has equal access to the same rights,

then we could be better."

And I grew up... that was the, you know,

mother's milk for all of us.

And I think the...

tragedy is that there isn't a Plan B.

This could be a very important moment for...

a conversation.

"Okay, we've got this major institution of government,

it's quite unique in the world,

no other constitutional court has the power that ours has.

What do we have a right to expect?

What do we want?"

You know, question the assumptions that many of us,

um...

have come of age believing.

Maybe it's time to think again.

President Biden is fulfilling a campaign promise to

establish a commission to examine the expansion of the

Supreme Court.

I'll put together a national commission of...

bipartisan commission of scholars...

constitutional scholars;

Democrats, Republicans;

Liberal, Conservative...

The commission was charged with looking at all of the issues

with respect to the Supreme Court.

People like me were reached out to.

I'm a political Conservative, so I guess I, uh,

helped them achieve the bipartisan nature of that.

The President did not want recommendations.

What he wanted was for us to describe to the American people

and to him... the nature of the debate.

"What's the nature of the debate about whether the Court should

be expanded or not,

whether there should be term limits?"

There's nothing magic about the number nine.

It's not mandated in the Constitution.

The Court has expanded in its size before,

and it can again.

That is something that could be done tomorrow,

assuming the configuration in Congress.

Term limits would require a constitutional amendment;

there's some debate about that, but most believe

it would require a constitutional amendment.

Sparse tense music

The Supreme Court actually has no code of ethics

that... that binds them.

Chief Justice Roberts has given reasons that the Court hasn't

adopted a code of ethics.

Unlike lower courts, where there can be panels that review

alleged misconduct by other judges,

'cause there are only nine justices,

it's hard to have some judges reviewing the

complaints against others, and people might also

selectively make allegations in the hope of kicking someone off

a case, essentially.

On the other hand, there are many nonpartisan observers of

the Court, including the Biden Supreme Court commission,

where both Liberal and Conservative members recommended

that the Court adopt a code of ethics for its own sake.

Three days after election day,

the wife of Supreme Court Justice Clarence Thomas texted

Trump White House Chief of Staff Mark Meadows,

urging him to keep fighting the results.

"Do not concede," Ginny Thomas wrote.

"It takes time for the army who is gathering for his back."

That text is one of 29 between Mrs. Thomas and Mr. Meadows,

which he provided to the January 6th Committee last year.

We need a code of conduct, because the Supreme Court has

shown it can't be trusted to police itself.

We're in a modern world, where justices are not all men,

they have spouses, spouses have careers.

When your spouse is a Supreme Court justice,

there are things that it's difficult for you to do.

One of those things is being a very intense partisan activist.

Critics argue the texts present a troubling

conflict of interest for Justice Thomas,

the lone dissent in an eight-to-one January

Supreme Court ruling forcing Mr. Trump to turn over documents to

the January 6th Committee.

Justice Thomas at least would have been wise

to recuse himself.

I was sitting at home on my couch and the phone

starts pinging, and Politico is reporting

that they have a leaked draft majority opinion in

Dobbs versus Jackson Women's Health Organization.

At first, I was just, like, flummoxed.

Like...

you don't really get leaked draft opinions...

certainly not majority opinions of this consequence.

Written by Justice Samuel Alito,

it says, "Roe was egregiously wrong from the start.

It's time to heed the Constitution and return the

issue of abortion to the people's elected

representatives."

It is almost unthinkable.

Clerks who work for the justices who help draft opinions,

they take an oath of secrecy,

they vow never to speak of the cases they worked on,

or any other Court secrets.

I was a Supreme Court law clerk.

Now, Chief Justice Rehnquist,

in our orientation session at the Court,

he looked at us and he said,

"If you leak anything from this Court,

you can kiss your legal career bye-bye!"

So this is an entire institution that relies

on secrecy

in order to do its job effectively,

the argument being if the justices were subjected to

public scrutiny, well, it might change or affect their

decisions.

The fact of this leak suggests that

trust between the justices and their chambers is likely

diminished considerably.

You know, Justice Thomas gives an interview in which he says,

"You know, it used to be the case,

when Rehnquist was the Chief Justice,

we were friends!

We didn't always agree, but we were friends!"

We may have been a dysfunctional family,

but we were a family.

I mean, you trusted each other, you laughed together,

you went to lunch together every day.

It's slightly shady to the Chief Justice.

Like, you know, "And then John Roberts came,

and now we hate each other."

And look where we are,

where now, that trust or that belief is gone forever.

You begin to look over your shoulder.

It's like kind of an infidelity.

Supreme Court Justice Samuel Alito is denying accusations

that he leaked a Supreme Court decision before

it was publicly announced.

The New York Times writes, quote,

"Mr. Schenck said he learned about the Hobby Lobby

opinion because he had worked for years to exploit the Court's

permeability."

Our overarching goals were to gain insights into the

Conservative justices' thinking,

and to shore-up their resolve to render solid,

unapologetic opinions,

particularly against abortion.

At the law, we call it "hearsay."

You know what we call it in the world away from law?

"Gossip."

The issue there is not what Reverend Schenck himself

was doing.

I don't even think the issue is whether Justice Alito happened

to actually let slip... right?

The result in the Hobby Lobby case.

The issue is that this seems to be the new normal,

where this kind of access is not something the justices are

questioning, where this kind of access is not something that

anyone in the political branches is pushing back against unless

it's partisan,

and so I think it's all of a piece with this broader story

about a Supreme Court that really has no one left looking

over its shoulder.

I've never been more worried than I am now about

the legitimacy of the Court, and the willingness of the public to

accept the rulings of the Court,

and that's not just because I disagree with many

of those rulings,

it's because I think they are reaching rulings in a way that

is contrary to their stated practices.

They are abandoning precedent willy-nilly.

Sometimes cases have to be overruled,

but that should be done with extreme care;

it's not.

They say they'll look at history in figuring out what

constitutional provisions mean.

When the history doesn't go their way,

they just cherrypick the history.

How would you categorize sort of the mindset of this

Conservative majority on the Supreme Court?

Uh, Conservative, large, in charge,

uh, eager to move ahead.

They... you know, they don't wanna follow the model of

Chief Justice John Roberts of taking little incremental steps.

At other points in the Court's history,

the Court has done the same thing.

The Warren Court decided a number of massively-important

cases,

and I never heard the critique that "Well,

they went too fast, and they should've, like,

not recognized the rights of criminal defendants for a

little while longer, and they should've held off on really

important decisions like Brown versus Board."

You know the critique of going too fast seems like a critique

that one side says of the other.

It's not just Conservative justices coming to conservative

results, but rather, it is procedural shortcuts,

it is shifts in the mentality of how the Court structures its

docket that raise bigger questions about why the

Supreme Court has all of this power in the first place,

and why we let it.

Hey, hey!

Ho, ho!

Supreme Court has got to go!

It is true in every term that the most high-profile,

the most divisive, the most controversial cases

just get put off until the very last days of the term.

What's a surprise here is just

how many cases

that make such dramatic changes in the law

come out in basically the last two days of the term.

The Court's Conservative majority ruled today that a

public high school football coach in Washington State has

the right to pray on the 50-yard line after a game

with members of his team.

Two more big decisions, including a major ruling

severely limiting the EPA's ability to fight climate change.

We just received some very disturbing news from Washington.

For the first time in American history,

the Supreme Court ruled that when the Second Amendment says

there's a right to keep and bear arms,

that means a right to carry a handgun outside the home for

self-defense.

This is an absolute disgrace!

Soft tense music

[woman VO The Supreme Court has gone against the will of the

people, the majority of whom polls consistently show

back abortion rights.

Soft melancholy music

In an opinion authored by Justice Alito,

six justices of the Court

voted to uphold the Mississippi 15-week abortion ban.

They then go further to examine the Court's precedents

Roe versus Wade and Planned Parenthood versus Casey;

they're constitutional apostasies 'cause they're not

rooted in the texts, they're not rooted in the history and

traditions of this country, therefore,

it's fine for this majority of five

to overrule these two cases that have been in place for years.

Nothing changed about the Constitution,

the only thing that changed was the membership of the Court.

When that becomes the reason that the interpretation of the

Constitution changes, the Court just looks like

it's an institution where individuals are imposing their

own views on the country.

Chief Justice Roberts' concurrence in Dobbs

was an exemplary example of his philosophy of

incrementalism and legitimacy;

he crafted a pragmatic compromise.

It showed a respect for precedent,

for the Court as an institution.

According to some reports, he tried to win over

Justice Kavanaugh,

who seemed like the most natural sympathetic ear,

but Justice Kavanaugh didn't go for it,

and the result was that Chief Justice Roberts lost the Court.

Justice Thomas, in his concurrence,

he specifically names Griswold versus Connecticut...

the contraception case...

Lawrence versus Texas... same-sex sodomy...

and Obergefell versus Hodges same-sex marriage...

and he says that these are all constitutionally problematic;

they should be overturned.

It is an invitation for litigants to bring cases to the

federal courts that challenge these precedents,

and I think it is an invitation to his colleagues

to take up and reconsider all of these precedents.

Move aside!

Move to the side!

Ma'am! Ma'am, move to the side!

It's a blessing; it's a miracle!

What about victims of rape?!

It is so wonderful, and I think we have to worry about the

Radical Left.

They're the ones that are gonna perform an insurrection here at

the Supreme Court.

Goodbye, Roe!

Goodbye, Roe!

Goodbye, Roe!

Goodbye, Roe!

Goodbye, Roe!

Goodbye, Roe!

Goodbye, Roe!

Goodbye, Roe!

President Biden has begun interviewing candidates to

replace Justice Stephen Breyer.

Mr. Biden has vowed to nominate a Black woman

to the High Court.

Some Republicans have criticized that.

President Nixon had actually considered appointing a woman to

the Supreme Court.

A great number of letters have recommended the appointment of a

woman, since no woman has ever been appointed

to the Supreme Court of the United States.

President Reagan announced during his campaign that he

would appoint a woman to the Supreme Court,

and he did.

I'm announcing today that one of the first Supreme Court

vacancies in my administration

will be filled by the most qualified woman

I can possibly find.

President Trump made clear that he would appoint a woman to

replace Justice Ginsburg when she passed away.

I will be putting forth a nominee next week!

It will be a woman!

And there was no outcry, uh, in any of those circumstances.

I think of it as a false controversy.

Hello?

Judge Jackson?

Yes!

This is Joe Biden, how are you?

I am wonderful!

How are you, Mister President?

Well, you're gonna be more wonderful.

I'd like you to go to the Supeme Court.

How 'bout that?

Sir, I would be so honored!

Well, I'm honored to nominate you.

Thank you, Mister President.

Now, I meant what I said; I think it's important.

You're incredibly well-qualified,

and I think the Court should look like the country.

Pensive music

This term...

has seemed to be like the Court checking off

the Conservative Legal Movement's to-do list.

Like, abortion... check, right?

Dismantling the administrative state... check!

Expanding religious freedom... check.

I think we're gonna see more of that next term.

We have an obligation to obey Supreme Court decisions,

even when we disagree with them.

That's the essence of the rule of law;

it's what distinguishes us from a

illiberal autocracy.

So they're challenging, very complicated,

and... and...

precarious times for the Supreme Court.

I still get choked up walking up the stairs.

You know, etched in the frontage of the Supreme Court:

"Equal justice under law."

You know, it's not just, like, a statement of fact,

it's a demand, it's a...

it should be a conviction,

it's a... it's something that should power us every day.

I fear that some of the political discourse surrounding

the Supreme Court seems to have given up that judges

can be impartial.

What I've seen is that judges strive really hard

to... to be impartial,

for many reasons but one, because...

they've taken an oath,

and an oath's a serious matter.

It's a serious matter.

Raise your right hand.

Do you affirm that the testimony you're about to give before the

committee will be the truth, the whole truth,

and nothing but the truth, so help you God?

I do.

And that I will well and faithfully discharge the duties

of the office on which I am about to enter.

- So help me God. - So help me God.

Dark moody music

And now, on behalf of all of the members

of the Court, I am pleased to welcome Justice Jackson

to the Court and to our common calling.