All language subtitles for Deadlocked.How.America.Shaped.the.Supreme.Court.S01E04.1080p.WEB.h264-EDITH

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.