- It's really all about appearance, right?

But that's important.

Judges are supposed to appear unimpeachable, so that they don't get impeached.

[upbeat music] - Hello and welcome to GZERO World.

I'm Ian Bremmer, and today, it's the start of summer.

It means barbecues, beaches, and a flurry of decisions handed down from the highest court in the land.

The Supreme Court has already weighed in on major issues this term, like the abortion pills, former President Trump's handling of classified documents and the EPA.

But there are still opinions and potential blockbuster cases that will be released before the end of June.

This year's SCOTUS rulings come at a time when public faith in the court is at an all time blow.

Critics accuse the court of political activism and they're calling for more oversight and a code of conduct for justices.

What happens to us democracy if Americans believe the Supreme Court is just another partisan institution, and what should we expect for major decisions this year?

I'm joined by Yale Law School Legal Expert and Co-host of Slate's Political Gabfest podcast, Emily Bazelon.

Don't worry, I've also got your puppet regime.

- Vladimir Putin here with latest episode of calling the show, Putin' It Out There.

- But first, a word from the folks who help us keep the lights on.

- [Narrator] Major corporate funding provided by founding sponsor, First Republic.

At First Republic, our clients come first.

Taking the time to listen helps us provide customized banking and wealth management solutions.

More on our clients at firstrepublic.com.

Additional funding provided by Jerre and Mary Joy Stead, Carnegie Corporation of New York.

Prologis.

And by.

- This is the story of a divided America, a bitterly fought election, and a congressional session where the loser tried to flip the results.

Sounds familiar, yeah?

I'm talking of course about the 1800 presidential election.

John Adams lost to Thomas Jefferson, and in the 11th hour of his presidency, tried to change the makeup of the Supreme Court to thwart his political rival.

The Midnight Judges Act led to a lawsuit that ultimately gave SCOTUS the power to invalidate laws that violated the Constitution.

There's not going to be a quiz, but I'm giving you this history lesson to make the point that the Supreme Court has been embroiled in politics since the days of the Founding Fathers.

In 2023, Americans think SCOTUS is broken.

Just 25% of US adults have a great deal or quite a lot of confidence in the court.

That's a low in Gallup's 50 years of polling.

A lot of that unhappiness comes from the idea that the court has become politicized, that justices robes aren't black, so much as red and blue.

We're taught that Supreme Court justices are impartial referees that stay above the fray of politics, a point that Chief Justice John Roberts made during his confirmation.

- Umpires don't make the rules, they apply them.

It's my job to call balls and strikes and not to pitch or bat.

- But if you look back at history, the idea of a nonpartisan court was a relatively new phenomenon.

The first ever Chief Justice, John Jay, was George Washington's close advisor and negotiated an unpopular peace treaty with Great Britain while he was on the bench.

In the court's history, dozens of justices were former politicians or openly harbored political aspirations.

Justice John McLean ran for president eight times while sitting on the court.

And William Taft, who became Chief Justice after he was President, not only advised Harding, Coolidge, and Hoover, but he also used his political savvy to expand the power of the court to set its own docket.

But maybe the best example is Abe Fortas.

He made a career of blurring the line between the executive and the judicial branch.

He was LBJ's close advisor, writing the veto of the 1966 crime bill, as well as Johnson's 1967 address justifying sending federal troops to stop protestors in Detroit.

- The federal government and the circumstances here presented had no alternative but to respond.

- Fortas ultimately resigned following accusations of financial corruption, but not political activism.

Which brings us to today.

Major rulings from a conservative majority, like the 2022 decision to strike down Roe versus Wade, have Democrats arguing that the court has a political agenda.

And revelations that Justice Clarence Thomas accepted lavish gifts from a billionaire Republican donor have ratcheted that criticism way up.

The problem is not that the Supreme Court is just conservative, the problem is that it's corrupt.

- The right says Democrats are sore losers, but only in the last half century had the court really cemented its identity as a neutral umpire, which makes calls for reform by either party feel politically motivated.

For the last 50 years, we've leaned into the idea that the Supreme Court is nonpartisan, but the truth is, it's always been political.

We're talking about the politics of the Supreme Court, Clarence Thomas, and the impact of the Dobbs decision one year later with my guest, Yale Law School Legal Expert and Co-host of Slate's political Gabfest podcast, Emily Bazelon.

Emily Bazelon, thanks so much for joining me again.

- Thanks for having me.

- Great.

So last time you were with me, about a year ago I think it was, we talked of course a lot about the Dobbs decision and specifically that so much was going to matter in terms of where we were going to see major restrictions and what kind of restrictions we'd see state by state.

Have you been surprised by the politics around this over the last 12 months?

- So here's what's not surprising.

14 conservative states have banned abortion, more or less, and there are more of severe restrictions and bans pending in a few other states.

I think we expected that.

What has been surprising have been the ballot initiatives that have uniformly so far protected abortion rights in the six states where they have been up for a vote, including in Kansas.

- A conservative state, a red state.

- Conservative.

Exactly.

- And Montana and Michigan, a famously Purple state.

And Kentucky actually also, another red state.

So I think what we're seeing here is that when abortion is put to voters directly, one issue they can concentrate on, they are more interested in protecting abortion rights than I think a lot of people on the right and the left expected.

- Is this because these individual referenda were overly restrictive compared to, I mean what Roe v Wade originally was protecting?

- Yes, but what's interesting about the ballot initiatives is some of them protect abortion rights up to viability.

If abortion opponents thought they would succeed by making voters focus on second trimester abortions as opposed to first trimester abortions, which are much more common, that strategy does not seem to be working so far for them at the ballot box.

- I mean, the vast majority of people that are getting abortions are getting abortions early when they find out about it, right?

That's well over 90, 95%.

That's my understanding, right?

- Yes.

It's about 90% in the first trimester.

You're absolutely right.

As a political issue, sometimes second trimester abortions get emphasized by opponents as a way of making it seem as if that's more common than it really is.

- So much of the politics here actually has very little to do with the rights that people experience.

Is that correct?

- Yes, I think that's true.

The other thing that we should talk about are abortion pills.

- I was just about to go there.

So first of all, that has been, it's been a huge issue for the corporations that are offering or not offering them in red and blue states.

It's been a huge issue for the legality and whether or not they are meant to be legal in the entire country.

Can you send them over state lines?

Talk about the politics of that.

- Yeah, so abortion pills now account for more than half of the abortions in the United States, and I think before Roe was overturned, people thought that women seeking abortions would fly to New York.

It turns out that while they're willing to drive quite far distances, people who are struggling to get abortions, people of color, people without a lot of money, people who need to line up childcare, take time off their jobs, women in those positions are more interested in staying home to have abortions that they manage themselves than I think a lot of clinics and pro-choice organizations expected.

And so what we're seeing is that people are finding a way to get pills, it's like a giant legal gray area, into states with bans or restrictions.

A lot of the pills, so far, are coming from countries like India, which means they can take a while to get here.

But there's an increasing effort on the part of blue states to pass shield laws that try to protect abortion providers in their states.

So a doctor in York who prescribes pills across state lines, into a state like Texas, that is going to raise a lot of unanswered legal questions going forward.

But it's an important potential avenue of access.

- Are there potential legal repercussions for a doctor in a state where it is legal to provide abortion pills, providing them to someone who clearly is in a state where that would be illegal?

- Well, states like Massachusetts are trying to do their best to say, "We will not cooperate.

If a state with an abortion ban wants to prosecute one of our doctors for prescribing pills across state lines, we're not going to extradite her.

We're not going to let you use our court system to go after her medical license or to sue her."

Whether that works in the end, whether states can oppose each other's efforts to enforce laws like that, that's a big open question.

- Would that doctor then face liability if they decided to go to the state?

So in other words, you're in New York, you're just not going to that state anymore.

- I think the doctors who are planning to do this, and there are several of them, they are not planning to travel to states where there could be a warrant for their arrest.

And so that ability to travel is something they are willing to give up.

- Is that new?

- This is new.

It is- - Has that ever happened before where people from individual states in the US couldn't travel other states because they'd suddenly get arrested?

- I always hesitate to say nothing has ever happened before, but to see this kind of conflict over state law, you kind of have to go back to the Civil War.

What we're talking about, I think at bottom here, is a real clash over law and morality.

So a state like Texas is saying that abortion is murder and the state of New York is saying, "This is a human right.

We want our abortion providers to be able to help women in states like Texas."

That's such a fundamental clash.

That's what we're seeing here.

One thing that's important to note is that in almost every state, it is legal to self-administer an abortion.

So that means the person receiving the pills and taking them is not subject to criminal charges, and that's just important for thinking about who's taking risks here and how this all lands.

- That's even true in states that have banned abortion as a legal right?

- Yes.

There are only a couple of exceptions to that in all of the 50 states, and it's not totally clear how those laws apply.

- Well, glad we cleared that up.

Okay.

So let's move on to something a lot easier, which is the ethics of the Supreme Court.

I have certainly been surprised to see Clarence Thomas so heavily on our bingo cards right now.

Talk a little bit about what is at stake with this case.

- So Clarence Thomas is really testing a very poor design at the Supreme Court, which is the justices themselves are not subject to any code of judicial ethics.

That's a bad design.

Nobody should be above the law and have no oversight, but that is the way things have worked out.

Federal judges on lower courts are subject to this code, but not the Supreme Court justices themselves.

There aren't any ways to police whether they recuse themselves from a case they might have an interest in.

It's up to them.

In this case, what we're seeing is evidence that Justice Thomas took lavish gifts, travel, paying for the private school of a child whose guardian he was, from this one friend, a super rich guy named Harlan Crow.

And when you look at the Ethics and Government Act, which is a law that Congress passed in the '70s, it looks like Thomas violated that law because you're supposed to disclose these kinds of gifts and you're not supposed to take them in the first place.

- Violated irrespective of the fact there isn't a code of ethics for the justices.

- Exactly, yes.

This is a law.

But the court has never acknowledged that the Supreme Court is subject to this particular law.

They, it seems, might want to argue, "Well, we're a separate branch, you can't tell us what to do."

That's a kind of unresolved question.

In order to resolve it- - That'll ultimately have to be resolved by the Supreme Court, I take it.

- Exactly.

- That's a problem.

- And that's a problem.

- It struggles all the way up.

- And to get started even figuring this out, the Biden administration would have to prosecute or bring some kind of action against one of the justices, which has its whole own awkwardness to it.

So there's really this problem here, and the predicament that Justice Thomas had gotten the court in, you might think would motivate Chief Justice Roberts.

The court has his name on it.

It's the Roberts Court.

Might motivate him, try to get the justices together over the summer to come up with some way of binding themselves to some set of rules to address this problem.

Because there's just really no question that the American public is losing faith in the Supreme Court.

You look at its public approval ratings, the measures of- - Lowest in history.

- Yes, lowest in history.

People do not have faith that this is a non-political institution, and that's what courts are supposed to be.

At least in theory, they're supposed to be doing something called law that's separate from politics.

Judges are supposed to.

They're supposed to appear unimpeachable so that they don't get impeached.

Their integrity has to be really strong and pure, and I think that's what's at issue here.

- Is it remotely possible to appoint nonpartisan justices in this environment?

I mean, we see, justices used to get votes once they got through from pretty much everybody.

That doesn't happen anymore.

- You're right.

I mean, there was this period, at least from the '40s, to say the '80s or '90s, where lots of senators voted routinely for Supreme Court appointees, whether or not they were put forward by their own party.

That era is kind of lost to us now.

Whatever the reasons for it, we are at this extremely politicized moment for Supreme Court appointments, in which it's gotten hard to imagine a senate that was in the opposition party to the President approving anybody.

- More broadly, what does the United States lose?

How much does it matter if the Supreme Court is seen to be just another partisan institution?

- In the United States, if the Supreme Court is seriously out of step with the American public, it's fine for the American public to push back.

The American public has a role to play in deciding what the Constitution means.

In the end, this is a document that belongs to all of us, and so democratic participation is key.

And it doesn't matter if the court is out of step to the left or to the right, the public should be able to assert itself.

Presidents who choose Supreme Court nominees, the senators who decide to confirm them, we elect those people.

And so people's views of the court in the end should shape the court.

That's how our system is set up.

- There is a concern that internationally, the American Supreme Court has been a real symbol for a strong judiciary, and that that is something other countries lack.

We have a very strong, maybe too strong judiciary, but some other countries don't have strong enough judicial branches.

And so when I talk to people who study constitutions in other countries, they worry that the diminishing reputation of the American Supreme Court could make people lose faith in courts elsewhere.

- So I want to get to this recent case around the EPA, which is related to whether or not the Supreme Court is going to limit the ability of existing institutions to make regulations, and inserting itself around wetlands, for example, and the rest.

Talk a little bit about the importance of this case.

- Yeah, well, first of all, you're right.

We have a Supreme Court that is very skeptical of the power of federal agencies to enforce and make regulations.

And of course, that is itself a stance that tends to give corporations more power because the EPA is the one saying to various companies, "You can't pollute our water or our air."

So in this particular case, a couple in Idaho sued, and the court has really, really cut back in response to this lawsuit on how much the EPA can regulate wetlands.

The technical dispute in the case is about the word adjoining in the Clean Water Act.

When is a wetland adjoining a US river or ocean, whatever.

But the upshot of this is that millions of acres that have been regulated up till now won't be anymore.

And so when you think about the record of the Clean Water Act, which has been really important for preserving and cleaning up Americans' waterways and rivers, now the EPA has a lot less reach to do that.

- So we also have these cases involving education right now, one on affirmative action, another on student loans, hot button issues in both cases.

Where are they heading?

- Well, it looked at oral argument like the Supreme Court was ready to end race-based affirmative action.

These are lawsuits against Harvard and the University of North Carolina, and the justices seem skeptical that race-based affirmative action is consistent with, the conservative justices, with their view of the Constitution as being totally race blind.

And there are also issues in that case about the way in which Asian-American applicants have been treated, especially by Harvard.

- And the student loan issue?

- So this is a challenge to President Biden's loan forgiveness program, and there is a boring but important technical problem with the plaintiff's case.

Missouri is suing on behalf of its Higher Education Loan Authority, saying that it will lose a lot of money because of the loan forgiveness.

Not clear that that's really true at all, or whether Missouri can just sue on behalf of this agency, which is not itself named in the suit.

On the merits, I think the President Biden's side has a challenge, which is that Biden forgave loans under the HEROES Act that was originally passed to address a national emergency after 9/11.

It's been extended.

The idea is that the loan forgiveness is necessary for pandemic relief- - Which is now over.

- Right.

The National Emergency for COVID ended in May.

The Biden administration says, "Well, there can still be bad financial impacts on people rolling out from the pandemic."

We'll see whether the court accepts that explanation.

- As we head towards 2024 and an election that is almost certain to have the same level, or more, polarization concerns about the way it's going to be managed, oversight state by state, talk about some of the things we should be watching out for in terms of the role of the judiciary.

- Yeah.

Well, another thing the Supreme Court is skeptical of is the reach of the Voting Rights Act.

And so this term, there is a case in Alabama where Alabama did redistricting in a way that people argued dilutes the power of black and Latino voters to elect the candidate of their choice.

If the court says that Alabama's map is fine, then you're just going to see less enforcement of an important part of the Voting Rights Act.

And then there's another case from North Carolina also about the reach of the Voting Rights Act that is introducing a really extreme theory called the Independent State Legislature theory, that in theory, could give legislatures the power to overturn elections or set rules in a way where they get to pick the winner in a presidential election.

It did not seem an oral argument that the justices even, the conservative justices, really had the stomach for the most extreme version of this Independent State Legislature Theory.

But we don't have a decision in that North Carolina case yet.

So that is still up for grabs.

- Is there a useful distinction to be made here?

I understand that the majority of the court is conservative in temperament and ideology, and their belief about the role of founding documents in the US political system.

They've been appointed by these political players, but it's not like they are working together to accomplish a political goal.

In other words, there's no reason to believe the judiciary is not independent, even though it's political.

I say this only because I want people to see or sense the difference between a political leaning court in the United States, one way or the other, and a court in Turkey or a court in Hungary, or God forbid, a court in Russia, which of course has no independence whatsoever, but actually is simply an arm of an authoritarian government.

That is not what we are remotely talking about in the United States.

- Exactly.

And it's an important distinction.

And you can see it in the court's responses to the 2020 election challenges from former President Trump.

- Absolutely.

- Right?

- Yeah.

- If the court was merely an instrument of a strong man, they would've gone along with those challenges, which had very little evidence behind them.

- And they all failed.

- They all failed.

The court said, no.

It's not interested in saying, "We are a tool of President Trump the way the constitutional court in Hungary has unfortunately become a tool of Viktor Orbán."

It's also true that, on these big questions about what equality means or liberty, how that affects things like abortion or access to guns or religion, there's a lot of wiggle room here.

And so you can be a perfectly independent judge or justice and come to a really different conclusion based on your ideological beliefs and values.

And I think that's what we see in these big cases where you see conservatives dividing from liberals.

- Well, thanks for helping explain that.

Emily Bazelon, great to see you.

- Thanks so much for having me.

[light music] - And now for Puppet Regime, where Vladimir Putin keeps getting bombarded by robocalls.

- Vladimir Putin here with latest episode of, calling the show, Putin' It Out There, where you ask questions and I invade your country.

Today, I am taking calls from secret location as Moscow has been unsafe lately.

- Okay.

First call is from Nocallerid.

Nocallerid, you are live.

Put it out there.

- Hi, it's Marsha.

- Hi, Marsha.

- Are you spending too much on car insurance?

- Yeah.

Yes.

Insuring everything is a lot more expensive these days, especially that one tank we have left.

Marsha, can you please put me.

- Competitive rate on a home?

Marsha?

Marsha?

Ah, robocall.

Got me again.

Dimitri, please find this Marsha and poison her.

Okay.

Looks like next call is from Spam in Jersey City, New Jersey.

Spam, you've live.

Put it out there.

- [Riley] Hi, it's Riley from Tech Support.

- Ha.

- Are you having problem.

- I think I'll be responsible for any phishing scams around here, Riley.

Next call.

- [Molly] Hi, it's Molly from Medicare.

There's a problem with your part B enrollment.

- Medicare scam.

What is this, Sheepshead Bay or Brighton Beach.

This is actual Russia.

Next caller.

- [Man] You won.

- I did?

What?

Did Zelenskyy give up?

- [Man] An all expenses paid trip to Belarus.

Just call us back in the next five minutes.

- Belarus.

Dimitri, why are all of these unmanned calls getting through today?

Don't we have screeners?

What?

They've all been drafted?

To do what?

Jesus.

Can somebody or something I actually need please call me?

Next caller.

[speaking in a foreign language] - Ah.

The Chinese robocall.

♪ Puppet Regime.

♪ - That's our show this week.

Come back next week.

And if you like what you see, or even if you don't, but you're saying, "Hey, I want to nominate my own Supreme Court Justice.

I could do that," check us out at gzeromedia.com.

[upbeat music] - [Narrator] Major corporate funding provided by founding sponsor, First Republic.

At First Republic, our clients come first.

Taking the time to listen helps us provide customized banking and wealth management solutions.

More on our clients at firstrepublic.com.

Additional funding provided by Jerre and Mary Joy Stead, Carnegie Corporation of New York.

Prologis.

And by.

[bright music]