John Roberts Gave the Game Away With This Quote

As we enter the final weeks of the Supreme Court’s term, it’s easy to be distracted by the theater of it all—the drama of opinion announcement days and the meticulous parsing and vote-tallying—all of which serves to solidify the impression that this is a regularly constituted court doing workaday legal decisionmaking in its centuries-long tradition. But to fall into that mode of thinking requires blinding oneself to what the court is doing, why it was warped by moneyed interests in order to do it, and all the ways democracy has paid the price for this capture. On this week’s Amicus podcast, Dahlia Lithwick discussed the court built by the oligarchs for the oligarchs with Michael Podhorzer, the former political director of the AFL-CIO and a senior fellow at the Center for American Progress. His Substack, Weekend Reading, has been focused on the role of the Roberts court in deconstructing the New Deal and paving the way for rule by fiat. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: You have been sounding the alarm that the Supreme Court was put up on the auction block and sold off to moneyed interests, while a lot of court watchers insisted that you were being hyperbolic. So can you start by sketching out how a bought-and-paid-for SCOTUS manifests in 2025?

Mike Podhorzer: Thinking about it as something that’s put up on the auction block is the kind of thing that makes it seem hyperbolic. It seems improbable and dismissible. But what this Roberts court represents is the success of a several-decades-long project to create the whole right-wing legal movement.

It used to be that Republicans would put “conservative” justices on the court. What happened in the 1970s and ’80s was a sort of Powell memo 2.0 for the courts. Some of those same players realized that instead of trying to do a better job of working the refs, filing good briefs, or having the right kind of arguments, they would instead just hire the refs, and if they could get a majority, they would be able to accomplish the goals they could not accomplish through democratic means.

The players were a coalition of plutocrats who were still unwilling to accept the constraints of the New Deal and right-wing religious folks who were unwilling to accept the equality gains of the 1960s and ’70s. They understood their agenda was so unpopular it couldn’t be publicly championed or won through Congress. The only way to do it was to have a majority on the Supreme Court.

So as silly as it sounds to think about an auction block where the Supreme Court on First Street gets auctioned off, it seems like entirely rational behavior. If you are billionaires, and you think this should be a different country, it makes total sense to put together the resources, the billions of dollars it took, to create a legal movement to shape a Supreme Court majority that delivers what you want.

That’s what is unprecedented—the current Supreme Court’s majority was put there to achieve a certain set of goals. At other times in our history, the court has done terrible things, but it wasn’t because those justices were put there to do it. That’s the difference.

You wrote an important piece a few months back, “The Courts Will Not Save Us.” Can you explain what you call the “bipartisan acceptance of judicial supremacy” and the passivity and the learned helplessness that comes with it, and how that has delivered us into what you say is actually a decades-long constitutional crisis?

I want to use two quotes that I think really capture the question you’re talking about and why this “judicial supremacy” idea is so baked into everybody’s brains that they don’t think there’s any other way to think about the law. After the Dred Scott decision, when Lincoln was inaugurated, in his first inaugural, he said, “if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers.”

That really captures to me what’s essential here. All of the procedure, the Constitution, everything really has to always go back to be checked against the idea that our government has the consent of the governed, that we are actually the sovereign. That’s what Lincoln captured there—the idea that if something that big can be decided irrevocably without any recourse by the people, we are kidding ourselves if we think we live in a democracy or that our vote matters. Unfortunately, because it’s been bipartisan and the elite media all just passively accept what the court says as true as necessary, we’ve lost sight of what it means to have a government that has our consent.

When you think about the things the Roberts court has done: let’s let billionaires spend as much money as they want, let’s erase the Voting Rights Act, let’s overturn Roe with Dobbs, every one of those things—think about the way they’ve changed the country since 2008 and not a single vote was taken in Congress on any of it, not a single vote to do it. No president said, “This is what we should do.” Our eyes are so misdirected and trained on what happens in the White House and in Congress that we just accept it. But in fact, the Roberts court has governed us in that way.

The other quote that is sort of the perfect balance here is what John Roberts actually said on C-Span at the beginning of his term as a justice on the court: “The most important thing for the public to understand is that we are not a political branch of government. They don’t elect us. If they don’t like what we are doing, it’s more or less just too bad.” How that didn’t set off alarm bells everywhere. And they follow through, and they just keep doing it.

I wonder if you can affix that to this set of categories you have made about the difference between rule of law and rule by fiat. Because I think we very myopically tend to hyperfocus on the rule of law as though that has some meaning, and that it is unerringly a thing that we all have a fixed agreement on. Your point is that rule by fiat is something entirely different, and we are conflating the two.

Broadly, people want an America with freedoms and democracy, right? But there is this unexamined and uninterrogated idea that some received procedure is the only thing that we have to evaluate what’s happening against now. The distinction I was making, which I think is really important, is what I call rule-by-law (to create a new word), which is what most of the district courts have been doing over the entire Trump term. Judges who were not appointed by Trump have been following the law. But the judges he appointed, and especially the Supreme Court that he appointed, have not. They just make it up as they go to get the outcome they want. That’s what I call “rule by fiat.”

If you look around the world at countries in the process of democratic backsliding or transition to competitive authoritarianism, we rapidly have to develop an exceptional vocabulary. As long as we talk about elections as if they’re always the same no matter what, we can’t see that we used to have elections where outside groups didn’t spend a majority of the money in every competitive race in the country. In fact, they spent nothing. But as long as we just have one word: “elections,” we end up thinking that we still live in a democracy, in the same kind of democracy, because we get to cast votes every two years.

The biggest point here, one really important thing, is to develop a new vocabulary around the court. Instead of talking about these rule-by-fiat decisions as “the Supreme Court did X,” we need to say “the Roberts court did X,” because it then pulls out that this is a mission—it is an outcome-oriented result, it is a result of this successful coup that’s transformed the courts.When, as I suspect, they don’t go along with what Trump wants to do on birthright citizenship, it will be all the justices, or close to it. That is a Supreme Court decision. But when we get those fiat decisions, the imprimatur of being a Supreme Court decision, we’re really defeating ourselves in any conversation we’re going to have. We do desperately need a court system that follows the law, but we have to be able to distinguish it from the one that is just making it up as it goes along.

We are now in June, and for all the reasons that you hate it, and I hate it, the world is gearing up to watch the closing days and hours of the Supreme Court’s October 2024 term, and they’re reverting to all the behaviors that drive you and me absolutely insane. They’re going to call those 6–3 and 5–4 fiat decisions “Supreme Court decisions” instead of your preferred “Roberts court.” They’re going to import all their hopes and dreams into Good John Roberts or Good Amy Coney Barrett showing up to save the rule of law. Then cable news is going to report this as the law, and we’re going to pop popcorn and speculate about whether Amy Coney Barrett is good or bad, a secret liberal, our new best hope.

You’re very careful about the language that you use. If you were going to advise those of us who are both reporting on the court in the coming weeks and listening to reporting on the court, what are the best ways to think about these closing weeks of the term using the sort of schemas you’ve just laid out and a language of truth-telling that is useful as opposed to accruing more harm?

I think the most important thing is reporting any decision that doesn’t have Kagan, Sotomayor, or Jackson on it as a “Roberts court decision,” and instead of explaining it in terms of precedents, explain it in terms of the interests the decision reflects. Because we know that the more extreme religious cases and Dobbs are reflecting the Leonard Leo and white Christian nationalist portion of that coalition. We know that the ACA and Moore v. Harper decisions are reflecting more the mainstream business part of that coalition.

They are not representing different legal theories. They are reflecting the different interests that are represented on the court. We should pay less attention to the precedents and more to the impacts, and we need to stop abstracting the actual gains and losses that come out of these decisions.

I don’t know anyone who talked about the 2024 election and Elon Musk spending so much money as being only possible because of a 5–4 decision by the Roberts court to let that happen. That should always be part of it. Every time something happens in the world that wouldn’t have happened without those decisions, that has to be brought back. And we need to talk prospectively about what this means, especially on our friend Humphrey and his executor, and what that actually means. It’s not just about an executive-versus-Congress power grab, it’s about corporate versus you.

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