MAGA Media Law 101

(upbeat music) - This is Amicus, Slates podcast about the courts, The Law and the Supreme Court. I'm Dialect Lake. (upbeat music) - A note to the press, the press corps, to the American media. - We have to fight back against the fake news. It's one of the many things that President Trump is so successful at in leading out on. - And I want you all to know that we are fighting the fake news. It's fake, phoning, fake. - No one is attacked as basically as he is and as much as he is. And our leaders that get attacked under his brilliant leadership must do the same. - Sometimes it's hard to figure out what side, some you are actually on. It's incredibly unpatriotic. - Why call the fake news the enemy of the people? And they are, they are the enemy of the people. (upbeat music) - Late last Friday, the Atlantic ran a deeply reported piece by Sarah Fitzpatrick about FBI director Cash Patel's unprofessional, erratic and national security threatening behavior, including allegations of rampant alcohol abuse and absenteeism. On Monday, Patel sued the story publication based on a theory of actual malice that evinces zero actual comprehension of the actual law. But the legal merits are secondary always. The point is that serial frivolous lawsuits against the press is one of the ways this administration chills criticism and free speech. Meantime, this is the weekend of manicures and blowouts and spray tans in Washington DC as the press is abuzz with preparations for the White House correspondence dinner on Saturday night. The whole event is getting a special maga spit shine. President Trump plans to be on the day as for the first time his most favorite henchman Stephen Miller will also be in attendance, the self titled Secretary of War Pete Hexeth, whose band disfavor journalists from the Pentagon has also been invited by the good folks at CBS and Brandon, I'm gonna pull your license if you can't be nice. Car of the FCC is also on the guest list. This is not just about an awkward party. This is a still life in media capitulation. In a moment, I'm gonna be talking to Margaret Sullivan, columnist for the Guardian, and former public editor of The New York Times about all this and more. Later on in the show, my Amicus co-host, Marcos Estern, will be here to tackle the thorny issue of the Supreme Court's shadowdocket that got way way thorny or this week, following bombshell reporting from The New York Times, revealing the memos behind one of the most significant early salvos in the high courts shift to doing a whole lot of stuff kind of extra legally. And we're gonna discuss exactly what prompted the president's latest escalation in the new ad hominem attacks on, quote, his, justices, that's coming up. Joining me now to discuss the Trump administration's censorship and control campaign over the only occupation protected by name in the Constitution is my friend and journalism hero, Margaret Sullivan. She is a weekly columnist for The Guardian, starting in 2012, she served as public editor of The New York Times and later was the media columnist for The Washington Post. Margaret's newsletter, "American Crisis" is a must read, you will find it on Substack and we will of course link to it in our show notes. Margaret, welcome back to Amicus. - Thank you very much, it's great to be back. - And I think I wanna start at the place where so much of my thinking is informed by so much of your thinking, which is America's democracy problem is as much a media problem, Margaret, as it is a political or an ideological problem. They are absolutely braided together. And I think, and I've really learned this from you, that you can't really separate the decline of democracy in the United States, which is a topic we've actually been probing on this show for the last few weeks from the decline of the media in the United States, which is completely captured by oligarchs and the forfeiture of a truth seeking mission and a forfeiture of a commitment to precision and to calling out power when it is abused. Do you have a moment or several moments in the grand sweep of the last couple of decades from which you feel like you can carbon date? The beginning of the connection between the decline in democracy and the decline in the media? - Dahlia, you've summed that up so well. And yes, there are a few sort of milestones along the ugly path we've been on. One of them is a weird one because I would say it was the purchase of the Washington Post by Jeff Bezos. This was in 2013 and the Graham family and you know, people who know about the Washington Post might remember our journalism hero, heroin, Catherine Graham, the Graham family, I think in a way very generously and public spiritedly decided to sell the paper to Jeff Bezos. It seemed like a great idea. The post had been struggling. Bezos, we know, has unlimited amounts of money. Jeff Bezos buys the post. It goes extremely well for a while. Marty Baron is the editor and then somehow, rather weirdly and pretty recently, Bezos decides it's more important to cozy up to Trump. And a lot of bad things start to happen. The milestone there is when he Bezos decided to pull or spike, as we say in journalism world, the post planned editorial endorsing Kamala Harris in the fall of 2024, the post lost hundreds of thousands of subscribers at that time. So that's a milestone. I would also say that Trump's lawsuits against CBS news, very frivolous lawsuit over the supposed faulty editing of a piece again about Kamala Harris and his suit against ABC, which was about the way George Stephanopoulos characterized what had happened in the sexual misconduct case. Was that perfect? No, but could it have been successfully defended? Yes, I think it could have. So those are certainly milestones along the way. Also, I have to say big picture, the decline of public media to some extent are the loss of funding for public media and also the decline of local newspapers, which for many, many years gave people sort of a foundation of truth in their communities that helped keep us out of our tribal corners that have been such a problem. So I mean, I'm just sort of throwing out some things that have informed this problem that you are describing so well. In the interests of full disclosure, Slade is a Graham Holdings company. Margaret, I wanna just pick up a little bit of what I said in the introduction, which is the Atlantic ran a deeply sourced. I mean, yes, they had to anonymize the sources, but incredibly reported piece on FBI director, Cash Patel last week. And it made him so mad that he sued the magazine to the tune of $250 million. And in his 19 page complaint, he described the Atlantic article as a sweeping malicious and defamatory hit piece on him. Now, I know you're not a lawyer. It's not even a legal question, but you've taught a lot of journalists, to a lot of journalists. And the basic, basic rules of defamation requires the plaintiffs to prove four things, right? The defendant made a false statement of fact to publish or communicate it to a third party, with at least negligence on the part of the defendant and for the plaintiff incurred damages or harm to their reputation. And that's even before you get to the fact that the defendant is a public figure, right? This is a very high bar, uniquely high in the United States. Again, I'm not asking you where a lawyer had. I'm asking you where a journalist had who's thought long and hard about the role of defamation suits in the United States. This suit has a zero percent chance, I think of success on the merits. And I think that Cash Patel, who unlike some of Trump's lawyers, really was a lawyer for a long time, he knows this. So what's the point? What's the play? Well, he's trying to say it's not true. And I guess the most public and the most vehement way he thinks he can say it's not true is to file a big lawsuit. But it's short-sighted, isn't it? Because I think that the Atlantic is very careful. I wasn't the editor on the piece. I don't know what its weaknesses might be, but I think that it was a strong and solid and seemingly well reported and well edited piece. I think on the merits of it, it seems like it's perfectly fine. And so he can say, I'm sure he didn't like being portrayed the way he was and the suit is a way to pursue that. But there is such a thing as discovery, isn't there, Dalia? There's discovery, there's depositions. I mean, this does not redound to the benefit of Cash Patel. And when you've got every bartender who has cooperated with this story, I mean, it's hard to imagine that he comes out the other and looking better. Right. It's been very interesting to watch the Atlantic because they have, for one thing, hired a lot of the people who left the Washington Post either because they were laid off or because they wanted to get out the door. The Atlantic has really staffed up. It has deep pockets. It has strong leadership. And I do not think it will go down. the road of ABC and CBS news. I think they're likely to go down the road of the New York Times in defending their journalism. So maybe what's happening here is somebody in the Trump administration is saying it's going to be great because we're going to get a settlement and the settlement will in essence say to the public our story was flawed. The settlement doesn't say that but it might seem to say that but I think that's a miscalculation because not only do I think the story is solid but I don't think the Atlantic is going to do what ABC and CBS did. So that's actually slightly foreshadows my next question which is a part of this is this is just a routine move Donald Trump going back to his father right this sort of seriatum frivolous over the top suits and hopefully it takes years and years and you let it play out and you grind down the other side right this is a play that is just so Trumpian and it shows in some ways the flaws of the legal system as the bullwark here right because time is not ever on the side of the publication but I do want to go back to where you started which is this is one of many meritless pointless utterly frivolous lawsuits that are filed by Trump and his administration against media actors and even though it is destined I think we agreed a fail in the courts earlier this month the judge throughout Trump's one billion dollar suit against the Wall Street Journal for publishing what the president claimed was a fake birthday poem from him to the sex trafficker Jeffrey Epstein the card signed by Trump about the joys of shared secrets was then released by lawmakers investigating the case Trump alleged that since he just denied this goes to your point this is a way of just saying you're lying since he denied it it was actual malice right that's his theory of the case but I think again there is a play here which is destabilizing the press discrediting the press letting this thing play out right the fact that a lawsuit settles or is thrown out of court or is dismissed eventually that's not breaking news the breaking news the big story is the lawsuit one billion dollars Margaret and the president of the United States is asking for it so it is a way of kind of drip drip drip drip establishing that the press has no credibility and the extortion nature of these demands I mean the amount of money on the line serves purposes that actually do I think chill and deter speech because who wants to be hit by a billion dollar lawsuit it sort of cuts both ways you know journalists are pretty careful the ones I've worked with at my hometown paper the Buffalo News the Washington Post the New York Times and the Guardian very careful we don't want to make a mistake it's not like we're just sort of well let's just throw this story out there and see if it flies you know we hate to have to do a correction we want our stories to be bulletproof so I think this is making journalists even more careful is it also making them censor themselves somewhat we don't know the answer to that I mean that goes on behind the scenes and people's heads for the most part but I do think there's a possibility of self-sensorship here when journalists may say maybe we don't want to do that story or go down that road because this is a very litigious administration and even though we're confident we'd rather not do it right now I don't know that that's happening but I do know that everybody's being extremely careful and I have observed that at the publication I work at now the Guardian which again always has been but I think is being particularly careful now and I'm not saying that's a bad thing but it is a notable development there's one more angle here that I would love your insight on and that is new reporting is suggesting that the FBI was investigating a New York Times reporter who wrote about cash batal using the Bureau's resources and personnel to give his girlfriend government security and transportation so I just want to be clear this isn't just about retribution it's not just you know I don't like something that happened to the Atlantic this is actual harassment and chilling by the FBI against publications that should be doing their job right which is investigating cash batal so there's another kind of chilling threat there that is always shimmering which is if you do this piece the FBI might be looking at your reporters as reporters too that's right and you know it's all part of the much larger story about the weaponization of the Justice Department and this is one of many pieces of it but it's scary certainly will it stop a valid journalistic investigation at a top news organization I don't think so no I don't think so but I still think it's absolutely terrible that that's what's happening and we've mentioned a couple of these suits but let's just add to the pile in October 25 Trump files of 15 billion dollars suit these numbers are astonishing against the New York Times and Penguin Random House he's suing the BBC for 10 billion dollars I mean these numbers on their face are like coffee out your nose funny right Margaret but it is very very deliberate the grandiosity of the sum is part of the the theory of the lie right right and then you do end up with these headlines that say Trump or Patel or whoever it may be you know has filed a 10 billion dollar lawsuit and people often just read headlines you know it's understandable they're moving fast they're not going to read into every nuance of a story so it's like you know does it leave an impression that maybe there was something wrong with that investigation or that story because now there's been this big lawsuit filed I mean I hope not because there've been so many of them and aren't people just used to Trump suing over everything maybe but I still think that it accomplishes its intended purpose to some extent and then as you say it's deny deny deny deny and delay delay delay and things that go on in court take a long time and you know then does it blunt the impact of the story yeah it probably does can we talk about Pete Higgseth for a minute because paradoxically I want to say as a former Fox News presenter he comes out of the media maybe that's too generous but he has been so so opposed to and punitive of the media and right after his confirmation he kicked out storied media outlets that had deep experience in reporting on the Pentagon in the fall he wanted reporters to sign a pledge to only report on information that was pre approved by the Pentagon or they'd get chucked out and now we're hearing that the ombudsman for stars and stripes Jaclyn Smith is saying that she's been fired I mean there's a part of this that I would love to hear about which is how essential it is to have good reporting on the Pentagon particularly in a war which is really this is not a time to be messing around with Pentagon reporters but more deeply can you just explain for our listeners who don't know what stars and stripes is and maybe who don't even know what an ombudsman is those are not trivial actions no not at all I mean stars and stripes is a well-respected legitimate journalism outlet that covers the American military and it's not a house organ you know it's not a propaganda machine it's a real deal and the fact that it has an ombudsman who takes seriously the complaints and you know charges of bias or charges of error is a very good thing if that person is given some amount of free reign as I was as the public editor same thing as an ombudsman at the New York Times I mean I was hired and basically left alone to do my job and if in fact that was this ombudsman's situation probably something like that it's really a shame that she has been let go and it's very telling it's hard I know this it's hard to have an ombudsman saying oh those decisions you made were bad ones but it's also healthy or it can be healthy so I think the loss of a good ombudsman is a real loss to the legitimacy and the validity and the credibility of a news organization and it's very telling that they just don't want that as opposed to by the way the supposed ombudsman that was appointed for CBS news which is a misnomer because that person is really there to sort of report on complaints that CBS news isn't Trumpy enough at least that's my interpretation of it not to represent the public more in a moment with Margaret Sullivan let's return now to my conversation with Margaret Sullivan you wrote a really really smart substack about the moves that are being made at CBS and CNN to use a political frame for you know what is good journalism and I do want to get to it but before we do I think that thus far Margaret we've been talking about what feels like Trump and the Trump administration versus the press right that's the frame and what I want to kind of lean into because this has been I think you're complaint for a long time, which is the press versus the press, because there would have been a scenario in which all of the media could have stood up to this. But that the decision by a lot of big media companies to take the deal, take a knee, cozy up, I think is the word you just used is really the thing that is killing us right now, that it looks like the press agrees. And, you know, I think you have to draw a distinction as I do between reporters and maybe their immediate editors versus the corporate overlords who are associated with huge media companies, you know, for example, ABC News is owned by Disney. CBS, it's hard to remember who they're owned by now because it's constantly shifting in, in, in, in, large entity, but paramount global. And there's an effort to make these companies ever larger and ever more successful. And how does that happen? Well, you don't get it to happen during the Trump administration by aggravating and annoying and making the Trump administration look bad. And so, you know, you're Jeff Bezos and you also care about Blue Origin and you care about Amazon. So then you pull an endorsement editorial, you change the whole tone of your editorial pages. So, you know, my point is it may not be the reporter. It may be the CEO. That's a good clarification because we know fantastic reporters working for every one of the entities that we are describing as taking the deal. But it does result in, you know, as you said, in December 2024, Trump sued ABC News, Trump comes, network pays $15 million, ostensibly to his presidential library, a million dollars and fees, paramount and meta and X have also settled. I think that smart lawyers say that at minimum, some of these lawsuits would have gotten dismissed and that these were settlements that were both premature and ill advised. But there it is. All of this quote unquote settlement money was supposed to go to the quote unquote presidential library and as of the last couple of weeks, we're hearing that money is in the wind. That was I think a way to make it seem like it wasn't going directly into Donald Trump's pockets. But yeah, the presidential library is not, it doesn't give me a lot of comfort. Let's put it that way. You know, I think it's also maybe notable here that when you think about Fox News, which has been something of a propaganda operation for Donald Trump and for the right wing, they had a big, big settlement, you know, almost a billion dollars or up above $700 million that came about because of the misinformation that was spread after the 2020 election about supposed terrible practices by voting machine companies. So those companies have sued Fox and been able to show for real. These are not frivolous suits that misinformation was being spread. So you not only have what's happening on one side, but also some really egregious kinds of things misinformation that's being spread, that has been spread by entities like Fox. And Fox, there are no other entities like Fox, but you know, on the right. We touched on the Paramount Skydance Warner Brothers mega merger with Ambassador Norm Eisen in last week's show. That merger is now another step closer to coming to fruition this week because Warner Brothers investors just voted in favor of that deal. And I would just love to hear your sort of crisp elevator speech on why this is not just a business page of story. This is a palpable threat, not just for democracy, but for press freedom. So overall, this kind of mega consolidation is bad for democracy. It limits the number of outlets. It makes them more susceptible to corporate pressures. It's kind of like the opposite of a well intentioned, you know, journalistically oriented family running a newspaper. So on its own, I think it's highly problematic. And then you have the knowledge that the elephants who are in control of this company, you know, have made all these changes at CBS News that we can see before our eyes. They've installed Barry Weiss. She's much more right leaning. And by the way, it hasn't helped their ratings. There've been a bunch of different things that have happened at CBS News that indicate that should they get a hold of CNN, which is part of this whole thing that something very similar might happen there. And while I don't think CNN or the old CBS News were faultless in any way, they were or are serious legitimate news organizations. And you don't want to see them affected by pure politics. Can you give us a minute, Margaret, the consolidation that happens in local TV markets and media markets, because I think that's also quite invisible to people who, you know, hear a lot about CBS or a lot about ABC, but don't know what it's like when like one small family has bought up entire markets and how that also distorts the mission here. Right. Well, you know, local TV news is increasingly owned by a couple of mega corporations, next star and TeGna. And they too are joining together. You know, we're looking now at fewer and fewer owners, owners that are very interested in protecting their corporate interests, even if that affects the journalism. And then, you know, I have to always say that you have to look to at the economics of local newspapers, which have really been the engines behind a lot of local journalism. And, you know, just to give you a quick number, when I was the editor of my local paper in Buffalo, we had 200 people in the newsroom. That's pretty good. You can do a lot with that. They're down below 50 now. And that has happened all over the country. So you have this really, really sort of shrunken and withered local news scene that also has become much more corporate. Yeah. I think you and I have talked in years past about even legal coverage is so impoverished when you can't afford to send a local reporter down to the local courthouse to cover a trial. It really does take a huge bite out of the ways we think about the sort of press function as anticipated in the First Amendment. And I just want to talk about your most recent newsletter because you noted that all these Leviathan media companies say that the thing that they want to do, they have this misguided notion of how to fix the news. And they want to do that by earning back the confidence of their consumer by finding some mythical political middle ground, right? They're going to find the guy in the middle who is dissatisfied with how liberal the news is. And so they're moving to this. I mean, it's exactly what you described the new ombudsman's role at CBS moving to this. Like we're going to be a watchdog against being too liberal. That's the new vision. And I'd love for you to just amplify it. I thought that was such a smart column. Why, you think that's a myth that that middle guy should be the determinant of what is news, but also why the entire framing of news along this political axis is so dangerous. You know, I think the problem is they're trying to make a political decision the way they say it is. We're going to appeal to people who are centrist and that they define that at least, you know, for show as from the center left to the center right. And I think the thinking behind that is, well, there's a lot of people there and they're not really being satisfied by what's out there. So let's aim for those people who are kind of centrist, but that isn't journalism. You know, that's a political statement, not a journalistic one. I mean, I also think it's a little crazy to try to aim at people's politics when you're doing stories. A good story is a good story and investigation of a government official for wrongdoing or malfeasance. It doesn't and shouldn't have anything to do with that person's party or politics or the party or politics of the people reading it. It's about the truth. So this idea that, oh, we're going to have a big tent and we don't want to alienate anyone. So we're going to kind of brush the edges off of things and make everything more palatable. And the thing is it hasn't worked. It was tried at CNN, not under kind of current administration, but a previous one. It's being tried at CBS News and me, you know, articulated this way too. We're going after the center and it doesn't tend to attract people. It doesn't tend to make for good journalism, actually. I regret to inform you that now we have to talk about the White House correspondence dinner, which neither you nor I will be attending this year. Correct. I've gone before. I'm sure you've gone. I think we know who's going this year. You've expressed some very strong feelings in a guardian column recently, not just about the Ick factor of the dinner itself, which is a whole other show. I mean, I can only describe my experience as journalists sitting in a ring around Hollywood a list of them in the middle of the room and just like not at all understanding what any of this had to do with journalists or journalism. But you're really, I think, laying down, you know, a red flag and saying, "When serious journalists are joining Stephen Miller and Brendan Carr and Pete Hexeth and Donald Trump, and let's be clear if this hasn't threaded through the whole show I want to say it, Trump is demonstrably the most anti-press president we've ever had. He calls journalists the enemy of the people. Joining with him for cocktails and yaks. And, you know, we're hearing little whispers of a, that what people are going to get up and they're going to walk out or people are going to not stand. I don't know what the, what the plan is. This is not about begrudging journalists putting on bow ties and being fancy and having cocktails. This is not just a cocktail party. It is a serious materialization in your mind. And I think in mind of what it looks like to bend the knee. And it feels so emblematic of everything you and I have talked about where the press is punching itself in the face by showing up to this event. This has been an extreme campaign against the press for the past 10 years, if not more, by Trump. The cries of fake news, the lawsuits, the disparagement of individual journalists, particularly women, particularly journalists of color. I mean, it's a clear effort to undermine the role of the press, which is, as you said at the top, a protected occupation in our constitution. We know where he's coming from in terms of attacking the press. And do we really think that he's going to do anything other than what he's always done? So it puts journalists in a really, I think, awkward and unfortunate situation to be sort of rubbing elbows with the likes of Brendan Carr, who's done everything in his power to not just disparage, but to undercut and undermine the press. So it's really awkward, you know, is the White House Correspondent's Association a well-intentioned organization? Yes. Does it have a lot of terrific people in it? Absolutely. But I really think that this dinner, which has always had bad optics, if you will, is now in a situation where it's just very, very problematic and I think inappropriate to be partying with this administration. And someone said, I think very well, my sort of journalistic colleague, Oliver Darcy, said, it's like a firefighters organization, you know, inviting arsonists to an event that's supposed to benefit firefighting. I mean, if we're really all about the first amendment and, you know, good journalism, why are we bringing in the people who would undermine that and who have undermined it at every turn? It's so interesting because as you're talking, I'm thinking about Brendan Carr and attacks on not just journalism, but comedians, right? I'm thinking about the fact that there will not be a, you know, headliner who's a comedian at this year's dinner, there's a mentalist performing. And all the ways in which Trump has elided responsibility for the really cruel and vicious things he has said by claiming things are just a joke. And this kind of slippery line between, oh, it's just funny, it's just comedy. And well, it's not comedy when it's directed at the president is so compounded when you have an event that is kind of rooted in the notion that everything is lighthearted and fun. At the end of the day, nothing is really serious. It's all just, you know, bonamé and jibes. And it's so inverted by the reality of what is and is not funny in the world and the ways that you draw the kind of curtain of comedy around real actual violence. So it does, as you're talking, I'm just reflecting on the sort of symbolism of allowing a bunch of people who have just gotten away with so much by redefining who gets to be the butt of a joke and who doesn't in a celebration of, you know, the lightheartedness of the press. You know, the idea behind this is that journalists and government officials are going to take this one night and they're going to lay down arms and be civil and it's a celebration of civility. But I don't really think that makes any sense at this moment because in fact, a lot of journalists lay down arms far too much every day and aren't challenging enough. And I don't think that we're going to see the likes of Pete Hague Seth, you know, display some other pro-press side of himself just because there are canopies involved. So, you know, I understand that this is a long tradition. It actually, I believe, goes back to the Harding administration and there's a real reluctance to say, you know, what, maybe this isn't really working anymore if it ever did. But this particular one is really problematic. In just a second, I'm going to be joined by my co-host, Marcos of Stern, to talk about the bombshell reporting that came out of the court this week. Jody Cantor and Adam Lipteck have this amazing series of leaked memos about the genesis and really the slightly tragic origin story of the court, so-called shadow docket. But legality aside, there's a really important journalistic point to be made about this because so much of the reaction to Jody and Adam's story was we have to punish the leaker. We have to catch and punish whoever leaked these secret memos. And I'd love for you to just talk for one minute again as a journalist's journalist about sources and power and leaks and institutional secrecy and what this job involves and why the breaking of that sacred seal at the Supreme Court is really, really significant. And I would say in this moment as Jody and Adam keep proving really vital. Right. And I mean, you know, journalism, good journalism is sources. You must have sources. You must have trustworthy sources. You have to have sources that you verify and check out and make sure they're telling you the truth and all of that. Without that, we don't really have anything. Journalists are their sources. And so the ability to protect our sources is really important. This business of going after leakers is something we've heard about for decades, not to look at the actual wrongdoing here, but to look at, oh, it's so terrible that it was leaked because we wanted to keep it a secret. And then, you know, as you know, there have been real pursuits of journalists and their sources, including Hannah Naitensen at the Washington Post. And this was a case in which the FBI entered her home and took her laptops and her other devices. I mean, she's an investigative reporter. So there's very little understanding or acceptance that this is a part of how our society and how our culture and how our government actually works in this moment and in this administration. Yeah, it's interesting. It dovetails perfectly with where we started about cash Patel, which is you're making me look bad is not in fact a defense against good journalism. I want it just to wrap up because you write about this so often and it has not made its way into this conversation. You actually have been really heartened by good journalism. You have a lot to say about the fact that there is a resurgence. You know, we keep talking about, you know, oligarchs and corporate media, but there is really important journalism happening. And I don't want anybody to walk away from this conversation, Margaret, and think that you are despondent or think that, you know, we're cooked because you more than anyone have taught me like there is a way to cover this president. There are people doing it. We have been through these eras. We can get through them with good journalism. Can you just kind of land us on a note of optimism? Sure. You know, my sub stack is called American Crisis, but the original title of it was, "Can journalism save democracy?" And I've been sort of, you know, using my newsletter to try to answer that question. And the answer is not all by itself, but good journalism is necessary, but not sufficient to save and to preserve democracy. And I mean, I'm a lifelong journalist. I believe in the power of journalism. And I think we have to do it right. So we can't normalize, we can't say in wash, we can't make things sound better than they are. We have to seek the truth and publish it. And that is absolutely essential. And yes, I do see a lot of it. You know, it's also really heartening to see new news organizations cropping up all over the country that might be nonprofits or that might be just upstarts that really want to do this work. And the work that's so essential to American democracy. So no, I'm not despondent. I'm actually always hopeful if not optimistic. Margaret Sullivan is a weekly columnist for the Guardian. Starting in 2012, she served as the public editor of the New York Times and later became the media columnist for the Washington Post. Her newsletter, which I continue to commend to you, is called American Crisis. It is a must read piece of thinking. And Margaret, I'm just very, very grateful for you, not just in this moment, in this conversation, but just for the work that you have persistently done to kind of keep me oriented on what the actual mission here is and what is the fluff. Thank you for your time. Thank you, Dalia. Thank you for having me on. And thanks for the work you do, which I find so important and inspiring. So back at you. Take care. Thanks, Margaret. Let's pause to hear from some of our sponsors and when we come back, Marcos of Stern joins me to talk "Shadowduck It Follow." And now back to the Supreme Court, which is looking more and more like the little engine that we don't try. Quite a week at the High Court, separate in a part from oral arguments and opinions which we'll be talking about in our Amicus Plus bonus episode right after this one. Sign up at slate.com/amicusplus if you want to listen to that. But right now we want to talk about last weekend's stunning reporting from the New York Times that landed somewhere around a seven on the Richter scale in the form of Jody Cantor and Adam Liptac story about the memos behind a pivotal shadow-ducket decision, possibly the typhoid Mary of Shadowducket Decisions, which dropped back in 2016. It was pivotal because it was the first time the Supreme Court had intervened in a way that has now become routine, chaotic, opaque, and routine. And the aftershocks of this story are still being felt because it revealed so much about how the court's conservatives and in particular the Boles and Strikes Chief Justice reached decisions when unfettered by the pesky constraints of the law or explanations as required on the merits' docket. Amicus's co-pilot, my jurisprudential writer, Dai, co-host Mark Joseph Stern, joins me now to shine a spotlight on the shadow-ducket. Welcome back, Mark. Hi, Dahlia. Can we review what we knew about, what we now know about that 2016 EPA case, that in some ways launched this era that we now live in and just completely accept, which is the unsigned perfunctory back-of-the-nappkin opinions that 10 years out almost is just the water we swim in. Now, what was that case about? So this was a major case, challenging President Barack Obama's Clean Power Plan, which was an EPA policy that would have required the energy sector to shift away from polluting fossil fuel sources of energy and toward green energy like solar and wind. And it was President Obama's effort to impose some kind of climate policy after Congress had thwarted him at every turn in trying to move the United States toward green energy. And at the time, it felt like the challenge to the Clean Power Plan was going to proceed the same way that challenges to every other executive action did, right? The red states and the industry groups that hated it were going to go to court. They went to the DC Circuit. They asked for the DC Circuit to block the plan as they challenged it. The DC Circuit said no and refused to stay the plan while the challenge was pending. It calendared the case for arguments. So the plaintiffs here leapt over the DC Circuit and went straight to the Supreme Court and asked the Supreme Court to block this plan while they were challenging it in the DC Circuit. So to be clear, this is before the DC Circuit has heard arguments before the DC Circuit has rendered any kind of decision on the merits before the DC Circuit has had time to act, right, to do anything other than to say, no, we're not going to block this immediately. And the request at the time in 2016 for the Supreme Court to then prematurely step in and halt the plan was radical and shocking and almost nobody thought that it would succeed. Can you just do one more beat mark of what the ostensible emergency was here because I think it's really important for listeners to understand what the exigent, imminent harm to the fossil fuel plaintiffs and the red states was going to be if the court didn't step in immediately. The harm was that the red states were going to have to eventually produce some kind of proposal to shift power generation within their borders toward greener sources. And the fossil fuel companies were going to have to invest in or create more green energy sources in order to shift away from the fossil fuel emissions that they were polluting the planet with. The key to note here, Dalia, is that the states didn't actually have to come up with this proposal for at least two more years, right, not until 2018. And the requirements that were placed upon the fossil fuel plaintiffs did not take effect until 2022. So six years later. So the harm was that there was going to be a gradual implementation of power generation shifting toward greener sources over the span of six years. And yet these plaintiffs had the gall to go to the Supreme Court and say that they faced imminent and irreparable harm and that the plan had to be stopped in its tracks at that moment. So now we have Jody Cantor and Adam Lipteck at the times who actually bring the goods, right? They have these leaked internal memos. And to be clear, usually we don't get to see this kind of sausage making the internal memos until decades later, but we've got them now. And what they show is that the court decided that this was, in fact, in emergency, they were going to short circuit the ordinary appeals process. As you said, argument was calendar at the DC circuit. This was going to get resolved on the merits soon, right? Quickly. And the memos suggest nevertheless spearheaded by Chief Justice, I'm going to say it again, calls and strikes, John Roberts, consider this emergency nonetheless. Why? Because John Roberts' feelings have been heard. I mean, that's our main takeaway, I think, from these leaked memos and it's hard to come to any other conclusion. Basically the Chief Justice got this request for this unprecedented stay and sent it around to the court. We now know with a very strong recommendation that the full court grant the stay of the clean power plan. And his argument was that the industry groups and the red states faced this irreparable harm because they were going to have to at least start thinking about complying with the policy. And he was concerned that if they started down that road in 2016, that they would never be able to turn around and go back and end their compliance with the plan if the Supreme Court eventually struck it down, that it would be sort of built into their future plans to have greener energy production. And so they wouldn't be able to return to the dangerous and planet polluting fossil fuels that they want to focus on. By the way, no consideration here of harm to the government by having its policy blocked prematurely, zero consideration of harm to the American people by allowing polluters to continue polluting full throttle and not to shift to cleaner energy sources. No mention of those interests. The only interest Roberts cared about were those of the plaintiffs, the red states and the industry groups. And he found them paramount. It seems like he developed this concern specifically because the EPA had said that it felt that once this ball got rolling down the hill that it would just keep rolling, that this would become baked into the system that the energy sector would start shifting toward green power as soon as this policy started to take effect and it would never go back. And he was angry that another EPA bureaucrats had said in the recent past that the Supreme Court had basically failed to stop a Mercury emissions plan, even though it struck down the Mercury plan because it struck down the plan too late and most factories had already complied. And Robert said, "My feelings are hurt. We told the EPA it couldn't limit Mercury in this way, but we ended up seeing Mercury limited in this way anyway because most industries had already complied. We don't want that happening here. We want these fossil fuel emissions to keep going full throttle. And we have to step in right now to make sure that those nefarious bureaucrats at the EPA don't succeed in, again, starting the ball for clean energy rolling down the hill. We've got to prevent it from ever leaving the top of that hill and rolling even an inch." One thing to note is, Justice is a late-night Kagan and Justice Stephen Breyer. We're like, "Wait, wait, wait, this is weird. Like what you're doing is Hinky AF and we don't think that this is the remedy. They didn't squawk as loud as they might have squawked had they known. This was about to become the norm. The other thing, and this is so important, and I think you've said it, but I want to say it again, this was an institutional diss. And you really get this from both the Chief Justice's like, "How dare someone say on the BBC something that belittles the court? How dare something be written on an EPA website that belittles the court?" A blog post on the EPA website, right? It's just the tiniest of the insult is institutional, right? It is not an insult to science or to procedure or to ordinary legal processes. It's just, "You made me feel bad because the court should get to vet all the things in advance." And this really, in some ways, prefigures how the court is going to start to treat regulatory agencies in big ways in the years to come. I guess the other thing, you and I wrote this, but it really puts the lie to the court. the defenses that some of the justices have offered about the shadow docket which "No, no, it only exists for emergencies. It exists," you know, Justice Kavanaugh says, "When there is something really imminent and exgen, it's not our fault that plaintiffs run to us. These are serious emergencies." No, the emergency here is that some of the justices, apparently the majority of the justices, felt that they were not respected enough by Obama's EPA and they were going to stop that and they were gonna stop it and it's tracks because the theory now is that you made us feel yucky." Right, I mean, just to put a finer point on it, I highly doubt that the Chief Justice would have ever put this reasoning in an opinion, right? The reasoning in the memo that he sent around to lobby for this stay and remember this was 2016, right before Scalia died, Kennedy was still the swing vote. Some of this was about lobbying Kennedy and the Chief says to his colleagues, in a very kind of like petty way, we are being disrespected and we've got to put this administration in this EPA back in its place and it's just very difficult to see him writing that opinion. That's not the polished eloquent Roberts that we see on the written page in the published materials. I really doubt that if you ever wrote an opinion at this time striking down the plan, he would have said, "Wow, wow, wow, where mad?" Because we said you couldn't restrict Mercury this way, but the EPA had already enforced a lot of these rules and Mercury was being restricted anyway and this is at a front to the Supreme Court's power. I doubt he would have said, "Hey, this EPA administrator said on some TV show at some point that once the Green Energy Revolution starts, that it's not gonna stop and it's baked into the system and we didn't say it was okay for there to be a Green Energy Revolution, how dare the EPA try to do this without our thumbs up." And again, that is not legal reasoning. That is like a power struggle between one branch of the government and the other, one of which is elected the other isn't. That is the chief saying, "We deserve to hold the power here and we're going to put the Obama administration back in its place." And I just think based on this glimpse, based on some of the other stuff we've seen come out from the shadow docket, this is frequently what's motivating shadow docket decisions, right? And it's like the inverse under Trump. It's a bunch of justices who think Trump should be able to do almost anything he wants, getting mad at lower courts for standing in his way, saying he was the rightfully elected president, he should be able to do this. That's not legal reasoning either. And if the Supreme Court had to actually write out full opinions on some of these cases, I think it would be difficult for them to justify their actions. And that's the magic of the shadow docket. They can hide it all behind a one-line order, an cryptic paragraph with no reasoning, no explanation, no justification. They can conceal all of their sort of power grabs and partisan wrangling and petty grievances behind these orders that tell us nothing. And so I do think this is a seven at least on that scale, because it is confirming something that we have suspected, which is that much of what goes on when the court is debating the shadow docket decisions isn't law and is barely pretending to be. - And all of this institutional self-protection, the dignity of the institution, the integrity of the institution, the need for the court itself to be the decider. All of this just vaporizes, right? When it's Donald Trump, willy-nilly changing immigration law, willy-nilly defunding entire entities cutting off funds, that all gets greenlit. So it's not about in the purest sense, oh, we don't want the president to act in ways that we haven't vetted yet. It's just really, we don't want Obama or Biden to act in that way. And that is now perfectly clear. So to the extent that there was ever any doubt that the shadow docket was a little bit of a curtain around a bunch of slop, I think that has now gone away. It does lead me, this is a painful segue. Donald Trump still can't take yes for an answer from the Supreme Court, which has given him so many of the things he has wanted on a silver platter, including, let's be clear, nearly limitless immunity. And yet, he's big mad this week. And he's big mad because he has thoughts on the Supreme Court betraying him. And again, we're not going to be labor this because, oh my God, the only thing I hate more than like criminal analogy about what was a justice thinking is the Jackson Pollock deconstruction of what Donald Trump is thinking. But truth social rant, again this week, going after the high court for just failing to be the furry little hobbits that service his every need. I'll just quote briefly, there were several rants, I'll quote from one, he said, the Democrat justices stick together, like glue never failing to wander from the warped and perverse policies, ideas and cases, put before them. They always vote as a group or a block, even that new low IQ person that somehow found her way to the bench, which is KBJ. He attributes this to Sleepy Joe. And then he says the Republican justices don't stick together. They give the Democrats win after win, like $159 billion pile of cash on a completely ridiculous tear up decision. It goes on and on like that. He projects a loss in the birthright citizenship case, which is correct. He's very likely to lose it. And he's just furious. And I think this is worth lifting up. He's mad at the Democratic justices, but he expects this from them, right? He thinks that they're pure partisan hacks. And so he doesn't spend too much time complaining about them. He is much angrier at his quote unquote justices. And the Republican appointee is who are not shoring up his agenda at every turn, which is incredible based on our discussion over the last 50 minutes because they are shoring up his agenda. So frequently he should be on his knees thanking these justices for incessantly stepping in to clear away lower court decisions that impose modest restraints on his power. It's not enough for him. It's still not enough. He's still furious about the tear of decision. He's starting to get furious about the forthcoming birthright citizenship decision. And I guess the question remains, how if at all will this affect the court? Will this affect the justices? And I don't think it will. Like we've said many, many times, the Republican appointee justices have an agenda, right? It often coincides with Donald Trump's. They clearly favor Trump and his policies over Democrats. But there are places where they deviate and they're going to continue deviating. And in all of those other areas where their interests overlap with Trump, they're just gonna support him easily without much debate and over the shadow docket without having to explain themselves. Am I wrong? No, you're not wrong. Look, first and foremost, let's be clear, who put them on the court? It wasn't Donald Trump. It was Leonard Leo and the Heritage crew and all the people who were picking justices and they weren't picking justices to be serviled to Donald Trump, right? They had an agenda that is an agenda that is decades in the making. That's happened. The fact that that is not completely aligned with every piece of insanity that Donald Trump burps out in a given day doesn't mean they're not fulfilling exactly the agenda of the folks who put them on the court. Donald Trump is making a mistake in thinking they work for him, they don't work for him, they work for Leonard Leo. I guess the other thing I would just say and I think this is maybe a useful place to end is that I never again want to hear a speech from Justice Clarence Thomas or Samuel Alito or really any of the defenders of justices who say, oh, these liberal reporters and academics who write pieces critical of the court, right? You and I have certainly had an earful of. Why, you know who brings violence and threats of violence down on the heads of the nine justices? It's you, Mark Joseph Stern and the things that you say on the Amicus podcast, right? It is you, Dalya Lathwik, when you criticize a decision that was made in one sentence on the shadow dog. No, no, never again can the justices say that the threats to them and their families and the institution comes from journalists or liberal academics. Donald Trump is threatening them multiple times a week. He is going after them, he is absolutely plain that they are destroying America. So please let the buck stop with the guy who can't stop talking. This is not on you and me. - Yeah, he's openly trying to pressure and coerce the justices into ruling in his favor and using insults that we would never think of using. And one of these rants he calls certain Republican justices, quote, weak, stupid and bad. And he knows he is fomenting hatred against these justices quite possibly fomenting violence against them, but we've yet to hear them speak out, except for one little comment by Chief Justice Roberts a while ago, in which he very kind of gently suggested without mentioning Trump, without even directly alluding to Trump, that this kind of targeted hate against judges and justices needs to stop. And I think this is especially funny in light of the new Molly Hemingway book on Justice Samuel Alito, the hagiography of Alito that's coming out, which is reportedly at times all about the threats to Alito when the other conservative justices supposedly posed by liberal commentators and activists, right? The claim that everybody who's ever criticized Alito has put his life at risk and that there are these mobs out there who want to kill the Republican appointed justices and liberals are egging them on and all of our criticisms are just basically death threats or at least incitements to violence. Like that is one of the key claims in the book. And here we have the president of the United States whipping up his followers into a frenzy of fury against the the justice is calling them derogatory, like childish insults, and their families should be ashamed of them. And not a peep from Molly Hemingway or the conservative side of the Scotus commentary yet, right? And so yeah, I think it just confirms something you and I have always suspected, which is the accusation that criticism of the Supreme Court is dangerous because it threatens the courts legitimacy and it's very safety is all just designed to muzzle legitimate criticism of the court. That's all it is meant to do. And we should not pretend to believe that anyone who raises those claims is operating in good faith because look what Trump is doing. That is the worst we have ever seen. And nobody on his side seems eager to try to stop him. Right. And with one tiny note, which is we know that Trump is capable of stirring up a mob to foment violence that actually hurts people, not just threatened stirred people, but actually like ends lives. And it's amazing that that was utterly invisible to the same people on the Supreme Court who are now being threatened, right? Like this is not a theoretical problem. I guess the other thing I just want to say is with all due respect to the words of the shadow, docket, maybe we just end on the note. We should start to call this the id docket, right? It's just all feelings all the time. It's just like petulence and grievance. And as you said, Mark, just hurt feelings. And it's so funny that on the same week, the idness of the id docket, the fact that it is transparently about grievance is absolutely mapped on to the president of id. The president is just like, I am nothing but a mass of proclamations and feelings. In some ways, you all deserve each other. Have fun. Mark, just a stern, my ride or die always co-host on the show and amazing, amazing Supreme Court correspondent. Thanks, Mark, for being with us. Thanks so much, Dahlia. That's all for this episode, but Amicus Plus members. I cannot wait to see you in the bonus where Mark, just a stern and a surprise special guest will be joining us for a packed edition of Amicus Plus. We're talking about whether Republicans' efforts to stymie Virginia's Constitutional hardball and the courts has any chance of succeeding. The fifth circuit decision that kind of tells the US Supreme Court to go jump in a lake over its prior 10 commandments in classrooms decisions. And we'll also unpack a shadow-ducket decision that further augments police on accountability. Visit slate.com/amicusplus to hear all of it. By joining you support our work and you get loads of extras and ad-free listening and paywall-free reading at slate.com, you can also subscribe to slate plus directly from the Amicus Showpage on Apple Podcasts and Spotify. Our bonus episode is available for you to listen to right now. We'll see you there. Thank you so much for listening and thank you so much for your letters and your questions and your comments. Keep them coming. We are always reachable by email at amicusitslate.com. You can find us at facebook.com/amicuspodcast. You can also leave a comment if you're listening on Spotify or on YouTube or rate us and review us on Apple Podcasts. Sarah Burnham is, "Amicus is Supervising Producer. Our Producer is Sophie Summergrad. Hillary Fry is Slates Editor in Sheep Susan Matthews is Executive Editor. Meele O'Bell is Executive Producer of Slate Podcasts and Ben Richmond is our Senior Director of Operations. We'll be back with another episode of Amicus next week.