CNN Supreme Court analyst Joan Biskupic gives off a Nina Totenberg vibe, a longtime legal reporter who's all about diminishing the conservatives. So it's only natural that she was invited on the CNN/PBS-aired talk show Amanpour & Co. Bianna Golodgrya subbed for host Christiane Amanpour and interviewed her CNN colleague to promote her new book Nine Black Robes: Inside the Supreme Court's Drive to the Right and its Historic Consequences.
Biskupic indulges in liberal fearmongering about alleged conservative judicial activism) on the same media outlets that have ignored or even applauded decades of actual liberal judicial activism.
A ProPublica investigation into Clarence Thomas taking luxury trips with a wealthy Republican donor was the news hook. Biskupic stretched Thomas’s ritzy trips to suggest they threatened the “trust” of the American public:
Well, first of all, I think this just shows just how much the integrity of the Supreme Court is always on center stage. When you think of how much concentrated power there is there. This Supreme Court, Bianna, does not have a formal code of ethics. It has rules about what gifts can be disclosed. But until just recently, Clarence Thomas arguably could have avoided disclosing the millions of dollars of transportation that he was able to get from this big mega-donor, Harlan Crow, who also had other people come visit with him and be in the presence of Clarence Thomas as he vacationed, frankly, around the world.
ProPublica's report is, as you say, quite impressive, extensive. Clearly, they were working on this for many years. But it really goes to the heart of the issue of how much trust the American public can put in the Supreme Court and what sort of formal rules even apply to their behavior.
Host Golodryga saw a “crisis in trust” in the Court:
….I'm glad you brought up the question of trust, because less than half of Americans, some 47 percent, according to Gallup, from just last year, say that they have a great deal or fair amount of trust in the judicial branch headed by this specific Supreme Court. How significant is this figure? And is there sort of a crisis in trust in the United States?
Biskupic laid the blame on the liberal-lamented Dobbs decision reversing Roe v. Wade.
….You know, last June, the justices rolled back nearly a half-century of reproductive rights in their Dobbs opinion that reversed Roe v. Wade from 1973, and that just really shook many Americans, even Americans who might have wanted more restrictions on abortion. It's just the fact that after all these years with so many different justices, many Republican appointed justices, voting to uphold it just because it was precedent, to have this particular five-member majority, that included Clarence Thomas, rolling it back.
The PBS NewsHour joined in the abortion-obsessed fear-mongering about the court’s “rightward shift” on Saturday evening, with John Yang asking Biskupic:
You cite the Chief Justice, who famously said in his confirmation hearings that he was going to be an umpire, just calling the balls and strikes. But you also write that the conservatives on this court seem intent on rewriting the law?
Biskupic faulted Chief Justice Roberts for being “on the conservative side to rollback racial remedies...lowering the wall of separation between church and state….”
Liberal judicial activism is enshrined into honored precedent, while conservative attempts to chip away at those liberal rulings are considered dangerous activism.
Relevant transcripts are below, click “Expand” to read:
Amanpour & CO.
4/6/23
1:46 pm (ET)
GOLODRYGA: Well, here in the United States, political influence of the judicial system is a growing concern as court rulings on abortion and other social issues sparked a backlash. And Former President Donald Trump attacks the courts over his indictment in New York….Let me first ask you, though, to comment on this bombshell reporting from ProPublica this morning today that found that Justice Clarence Thomas, Justice Clarence Thomas, for years had been accepting multiple luxury trips from a Republican real estate developer and mega-donor and never declared them, and this was over some 20 years. Just to get your thoughts, obviously, ethics aside because I urge everyone to just go through and read this report on some of the detail and the elaborate trips that he had accepted, but ethics aside, legally, is this legal for him to have done without disclosing?
JOAN BISKUPIC, CNN SENIOR U.S. SUPREME COURT ANALYST: Well, first of all, I think this just shows just how much the integrity of the Supreme Court is always on center stage. When you think of how much concentrated power there is there, the Supreme Court, Bianna, does not have a formal code of ethics. It has rules about what gifts can be disclosed. But until just recently, Clarence Thomas arguably could have avoided disclosing the millions of dollars of transportation that he was able to get from this big mega-donor, Harlan Crow, who also had other people come visit with him and be in the presence of Clarence Thomas as he vacationed, frankly, around the world. ProPublica's report is, as you say, quite impressive, extensive. Clearly, they were working on this for many years, but it really goes to the heart of the issue of how much trust the American public can put in the Supreme Court and what sort of formal rules even apply to their behavior.
GOLODRYGA: Yes. And I'm glad you brought up the question of trust, because less than half of Americans, some 47 percent, according to Gallup, from just last year, say that they have a great deal or fair amount of trust in the judicial branch headed by this specific Supreme Court. How significant is this figure? And is there sort of a crisis in trust in the United States?
BISKUPIC: Right. You're talking about these high levels of distrust, and they come about for two main reasons. The overriding one is the opinions themselves. You know, last June, the justices rolled back nearly a half century of reproductive rights in their Dobbs opinion that reversed Roe v. Wade from 1973, and that just really shook many Americans, even Americans who might have wanted more restrictions on abortion.
It's just the fact that after all these years with so many different justices, many Republican appointed justices, voting to uphold it just because it was precedent to have this particular five-member majority that included Clarence Thomas rolling it back. So, it's the rulings that are suddenly really getting a lot of people's attention because of the way that they appear a little bit more political. And just as in the side, I know we're going to get to the Donald Trump influence. But remember, Bianna, Donald Trump campaigned on the issue of appointing only justices who would roll back Roe v. Wade, and that's what we got. So, that's one whole element of why public trust in the Supreme Court is diminishing. But then, also, you have things that you just brought up today, this new report about Clarence Thomas and the off-bench behavior. You know, if the justice -- the justices have always felt like they could say to people, trust us, we can police our own. We don't need -- we will look to codes of conduct that lower court judges are bound by, but we don't need to be bound by those, trust us. And I think one -- you know, one episode after another, including this big one from "ProPublica" today, really diminishes the idea that we can trust the Supreme Court in certain off-bench activities.
GOLODRYGA: Yes. That trust is being challenged to the core in ways we haven't seen. I don't -- I mean, you're the expert here, but I don't recall how far back we have to go to get to the place we are right now. You brought up the overturning of Roe and I want to quote from your book on the circumstances surrounding it because you wrote this about that leak that led up to that decision. And you write, the leaked Alito draft, so, it was Justice Alito, was produced in about two months, relatively quick for such a substantial case. The justices who joined him before the 98-page document became public never wavered after the leak. Perhaps they never wavered because of the disclosure. If that's the case, could it have been a justice, like a conservative actually, who had leaked it, who wanted these justices not to waver? Because I don't have to tell you, there was a lot of controversy as to who it would benefit more to have had this leak, the right or the left?
BISKUPIC: You know, Bianna, when you think of what that leak produced, I can see why you would naturally think it was a conservative justice or a conservative law clerk or some conservatives who indeed want to lock in those votes, which it did. I don't believe that it was a justice or a law clerk who leaked it. You know, there's a counter argument that a liberal might have been so enraged by what was happening that he or she leaked it. I tend to think it probably originated with somebody lower level at the Supreme Court. But irrespective of who did it, and obviously, the Supreme Court has not been able to get to the bottom of who did it despite a very extensive investigation, the effect -- I can tell you what the effect was, and that was to lock in those votes. Now, arguably, Bianna, you know, Brett Kavanaugh might have never switched over or gone to the middle as Chief Justice John Roberts was trying to encourage him to come over. He was the most likely justice given that he's not as hard and fast on the right-wing as some of his colleagues. He was the only justice who might have been open really to overtures by Chief Justice John Roberts. And my own reporting suggested that the chief was not making much headway with his colleagues as he tried to argue that the justices should not fully roll back Roe v. Wade. Remember, they took that case, saying they were only going to decide whether a 15-week ban on abortions was constitutional. It was this law from Mississippi just at 15 weeks, which to have upheld that would have been a big deal because prior to that, the justices has always said that government states could not interfere with a woman's choice to end a pregnancy before viability, which is at about 23 weeks.
But my reporting showed that the chief was not making headway with Brett Kavanaugh to get him to move over to a more moderate position, but maybe he could have. I kept saying, don't count out Chief Justice John Roberts to be more persuasive to, you know, pull a rabbit out of a hat here. But bottom line, Bianna, is once that opinion was leaked there was no way anybody was going to switch. And Justice Alito, who wrote that opinion, did not back off of much of his very harsh, unyielding rhetoric, saying, there never was a right to abortion in the constitution, and we're going to, you know, make sure that that's now the law of the land, no right to abortion.
GOLODRYGA: Yes. And the reverberations are still being felt politically and legally, right, throughout the country right now. With Former President Trump having appointed three Supreme Court justices, the question always came about as to whether this was still Justice Roberts' court. Has that been definitively answered?
BISKUPIC: You know, when it comes to abortion and some other, you know, culture war issues John Roberts sees this, you know, slipping through his fingers. He's -- the justices to as far-right are in control on things like religion now and abortion, certainly. But I do want to say that Chief Justice John Roberts still has a fairly strong rightward march himself on things like racial remedies, voting rights, affirmative action, campaign finance regulations, which he has voted against. You know, a lot of government regulations that he is pushing to roll back. So, John Roberts still is chief justice. He still controls the court on many areas. But on the case of abortion and in the defining case of probably his generation and his tenure on the Supreme Court, the Dobbs ruling of last June, he could not control the majority to his right.
GOLODRYGA: You know, during his time in office, there have always been a question as to whether Donald Trump would be the ultimate test on democracy and the judicial system in this country, and it seems to still be continued to be asked as a question even as a former president, given that he has once again a candidate as he is seeking the Republican nomination once again. I'm just curious to get your thoughts from your expertise on what the -- what we saw come out of New York and the D.A. here. And these indictments, and the impact that they may have on the system as a whole, given that this was not the only case that this president, former president, is being, you know, investigated under right now, and the question that that may have, ultimately, for the system as a whole.
BISKUPIC: Yes. You know, either one of the many investigations of Donald Trump right now could end up back at the Supreme Court. But also, to your core question about Donald Trump's effect on the judiciary, let's just pull back and consider what happened in the lead up to this indictment in Manhattan this week, and the criminal charge -- the charges against him. The first thing he did when he found out that the grand jury's indictment was about to be revealed is to attack the judge who is going to be overseeing the proceedings. He said, this judge hates me. And, you know, he talked about how the judge had handled earlier case involving the Trump Organization.
And this is exactly what Donald Trump did throughout his presidency, even before his even before he was elected. He seeks -- he -- you know, I don't know how much he, you know, sets out to undermine the impartiality and the independence of the judiciary, but all of his comments seemed aimed towards that. You know, when he was running for president, he denigrated, judges and justices. When he when he became president, he talked about how, you know, maybe some lower court judges had ruled against him, but wait until I get to the Supreme Court, you know, I'll show you. And then, in time, when the Supreme Court starts, you know, ruling against him, he says, do you get the impression that the Supreme Court doesn't like me? He's always targeting the judiciary one way or another.
GOLODRYGA: Yes. He's always viewed them as my justices, my judges. And not the judges of the United States and upholding the constitution. Joan, it's a fascinating book, a fascinating conversation.
There are some really important cases coming up as well. So, I urge everybody to follow you and to read this book as well. Thank you so much.
BISKUPIC: Thank you, Bianna. I appreciate it.
*
PBS NewsHour
4/8/23
7:17 pm (ET)
William Brangham: Today's Supreme Court is no stranger to controversy. Earlier this week reporting by ProPublica revealed that Justice Clarence Thomas took undisclosed lavish trips funded by a Republican megadonor. This comes as the country waits to see just how the justices will rule in a number of contentious cases dealing with affirmative action, voting rights and LGBTQ rights. Last week, John Yang sat down with Supreme Court analyst Joan Biskupic to discuss her new book, that details the courts recent conservative shift, and how that could shape the country's future.
John Yang: The most prominent results so far of the Supreme Court's rightward shift may be last year's overturning of Roe vs. Wade racing the nearly half century old right to seek an abortion. But there are many other consequences whose effects will be felt for generations to come. It's all detailed in a new book, Nine Black Robes: Inside the Supreme Court's Drive to the Right and Its Historic Consequences. The author is Joan Biskupic, the Senior Supreme Court Analyst for CNN. Joan, thanks for joining us. How crucial were the four years where the Republicans controlled both the White House and the Senate in this shift to the right?
Joan Biskupic, Author, " Nine Black Robes": Completely crucial. You know, Donald Trump got three appointees and four years. That's really remarkable. It's not, you know, a record but it's remarkable for modern history. And the reason he was able to get those three appointments through so speedily was because he had a Republican Senate and he had a real partner and Senate Majority Leader Mitch McConnell.
John Yang: You write about the whole apparatus that there is to try to get the judiciary to be more conservative Leonard Leo, the Federalist Society. How Central was Donald Trump to that? Could this have happened without Donald Trump?
Joan Biskupic: A version of it could have happened without Donald Trump, but it was crucial to have Donald Trump, his White House Counsel, Don McGahn, Senate Majority Leader Mitch McConnell, and Leonard Leo, as you mentioned, all working together to pick people and to speed them through the process. Let's just use as an example, the third appointee Amy Coney Barrett, Ruth Bader Ginsburg dies on September 18. She's buried at the very end of the month. And at the very end of September is when Donald Trump announces the nomination of Amy Coney Barrett. Her hearings happen almost immediately. She's confirmed at the end of October, and we're right at the election. Contrast that to what happened in 2016 when Mitch McConnell said upon Antonin Scalia's death in February of 2016, there is not enough time to have a new Justice confirmed until the November election all those months versus just those few weeks and days, that shows how Donald Trump working with this team made such a difference.
John Yang: You write of Donald Trump that his effect on the justices relationships with each other, was even at times pernicious as he sowed distrust.
Joan Biskupic: I noticed something happening as they were all maneuvering differently inside to sort of counteract his effort to undermine the integrity of the judiciary, you know, think of the disdain that Donald Trump had shown toward the judiciary, even as a candidate, you know, mocking a judge who ruled against him as a Mexican judge. And then he had that one pretty unprecedented clash with the Chief Justice, when he disparaged a judge who ruled against his administration as just an Obama judge. And that was when Chief Justice John Roberts said there are no Obama judges, there are no Trump judges, Clinton judges, Bush judges, but that showed how much the chief and some of the other justices were trying to counteract the idea that the justices were not going to be neutral based on their politics. But the bottom line is that we have a cord that has signaled to the American public, as polls reflect that it is politically energized.
John Yang: You cite the Chief Justice who famously said in his confirmation hearings, that he was going to be an umpire just calling the balls and strikes. But you also write that the conservatives on this court seem intent on rewriting the law?
Joan Biskupic: A lot of our viewers will remember that the Chief Justice John Roberts broke away from the five conservatives to his right in the Dobbs ruling that reverse Roe v. Wade, he did not want to go so far so fast. But John Roberts has been with the others on the conservative side to rollback racial remedies, to restrict regulations. And much of that involves reversing precedent. You're lowering the wall of separation between church and state, diminishing the ability of the federal government to regulate the environment, public health and safety. And then also on social policy issues, we have many ongoing clashes between religious interests, and LGBTQ rights. And those that's another area where I think we're going to increasingly see the core siding with religious interests.
