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Dahlia Lithwick: Talk Radio Has Ruined the Supreme Court

BEGIN TRANSCRIPT

RUSH: Dahlia Lithwick. Is that her name? I don't have my glasses on.  It's Dahlia Lithwick.  She's a journalist from somewhere.  Moyers & Company.  That's right.  I couldn't believe he's still on the air.  Bill Moyers. Oh.  Moyers & Company. On his website, okay, he had a "web extra."

It was an "extended continuation of the interview he had with the senior editor at Slate, Dahlia Lithwick." Moyers said, "You wrote recently that this is the most politicized and polarized Supreme Court ever on these 5-4 decisions, but is that any different from the way Congress is polarized or the country is polarized?"  Listen to her answer...

LITHWICK:  It's not simply politically polarized.  It's experientially polarized.  Some of the justices are very proud of the fact that they get all their news from AM radio. Some of the justices are very proud of the fact that they don't read any newspaper of record.  They... Some of the justices are proud of the fact that they only speak to audiences who agree with them. Uh, more and more the justices only hire clerks who agree with them.  Gone is the era where justices would reach across the aisle and try to find clerks who would challenge them.  So this court is polarized in terms of who they interact with, who they see, who they confer with, I -- I think, that we have ever seen in history.

RUSH:  I have to take a break but of course we have some analysis and comment after this. 

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RUSH:  I wonder who she could be talking about.  Some justices are very proud of the fact they get all their news from AM radio.  That's not what the justices have said.  There are some justices who have said that they really enjoy talk radio, not that it's their only source of things. And there are some justices who have said that they don't bother reading the New York Times.  It's not that they don't read newspapers.  It's that they don't read the New York Times. 

What does that have to do with what these guys do?  They are dealing with legal issues and the events that are related to cases before them.  They're not supposed to take into account the social concerns of things.  They're not supposed to look at election returns, although it has long been thought that they do. 

How many of you have believed, like Lithwick says (imitating Lithwick), "And they don't even hire clerks that disagree with them. They don't even challenge themselves. They just hire a bunch of people that agree with them and they sit there and they pontificate and that's why there's a partisan divide."  And, of course, she's talking about the conservative justices.  Do you think the libs have ever hired right-wing clerks to argue with 'em?  It's absurd! 

How many of you have grown up or otherwise believe that when the Supreme Court first takes a case, that they sit in a room and discuss it and try to persuade each other that they're right and that they should agree with their take?  How many of you believe that happens?  I used to think that's what happened.  I used to think that the Supreme Court was collaborative.  After oral arguments or at some point during the decision-making period of the case that they would sit down and chat about the case and they would share their points of view and try to persuade each other. 

I had the chance one day to ask a judge, a justice, an actual justice of the US Supreme Court how that process worked. He looked at me and laughed and said, "It doesn't. There's no such process." 

I said, "You're kidding." 

"No.  We don't try to change each other's mind.  We take a vote, and that's it.  We write the assent, the dissenting opinions are assigned, and the majority opinion is assigned, and that's it." 

"I mean, you don't try to persuade one of the liberal justices?" 

"No, I don't need to waste my time. I'm not gonna change their mind. They're not gonna change their mind.  I'm not gonna waste my time.  It doesn't happen."  

BREAK TRANSCRIPT

RUSH:  Now, I've mentioned this before, and you ought to see my e-mail exploding.  "What do you mean they don't debate? What do you mean justices don't discuss cases with each other?"  And then somebody said, "What about after the Obamacare vote?"  'Cause people read that the conservative justices did everything they could to get Roberts to change his mind.  That was reported and I distinctly recall it.  All I can tell you is what I've been told, and it was some years ago.

Another e-mail said: "What about oral arguments?  I hear justices disagreeing with each other and sometimes their questions seem to be aimed at other justices rather than the lawyers that are arguing before the court."  That may well be.  All I'm telling you is that if you believe that there is this collegial, roundtable discussion of each case where each justice or as many justices as wish offer their point of view and try to persuade disagreeing justices to change their minds, and if you think that each Supreme Court decision is the result of debate in chambers around the conference table and a consensus being arrived at, I've been told that doesn't happen. 

The original, when the caseload or a case is presented to the court, they're all there to discuss whether to accept it, take a vote on that.  But I could just tell you that I've been told on more than one occasion that the assumption that this is what takes place behind closed doors is wrong. That a case is presented, oral arguments are heard, and a vote, just like in a jury room, is taken except there isn't any conversation. There may be further votes, don't know about that, and there ultimately at some point is the final vote.  But it isn't collaborative.  It may happen on a rare basis, but not according to what I've been told. 

Look, the only reason I'm bringing this up is because Dahlia Lithwick, in her sound bite, tries to portray only the conservative justices as closed-minded and only the conservative justices as ignorant, because, hey, some admit they proudly listen to AM talk radio, and they proudly admit that they don't read any newspapers and so and that somehow is supposed to equate or equal ignorance or stupidity or closed-mindedness or whatever.  It has nothing to do with what they do, what their news sources are and what they enjoy to access in the media. 

It only applies, of course, to the conservatives 'cause there's no way that she would demand that a liberal justice have a clerk who disagrees with him or her, to challenge her and present points of view that she might not otherwise consider, 'cause that's not the way the left looks at things anyway.  They're not interested in the other point of view.  They're not interested in being open to it and perhaps having their mind changed.  They're not interested in that.  That's a totally different mind-set.  Victory is what matters.  They already know what they believe.  It's etched in stone.  It's like a religion.  

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