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Street Roots News COVERING THE COURT Journalist Dahlia Lithwick says Justice Scalia’s philosophy o f originalism is a farce - and so is judicial activism. She shares her P H Ö T O C O U R T E S Y O F D A H L IA L IT H W IC K Slate senior editor Dahlia Lithwick covers the US. judicial system for the magazine. BY AMANDA WALDROUPE justice? thoughts about what’s next for the Supreme Court. power struggle. STAFF WRITER D.L.: I think the most notable one was the ahlia Lithwick, a senior editor for Slate, Obama immigration executive action. The court writes about the Supreme Court and the split The executive action never went into effect United States’ judicial system. But this ) The other big one was what would have been isn’t the leaden copy of briefs and summaries. Hobby Lobby 2.0, which would have been a huge This is jurisprudence for the common man, with religious liberty case. The Supreme Court kicked it insight into the more fascinating consequences of back to the lower court and basically said, “Work it the highest court’s decisions, process and political o u t” There were a whole bunch of other cases we interference. didn’t get to. One person, one vote was on the line On Feb. 25, Lithwick gave the keynote address in Texas. There was a California case about during the ACLU of Oregon’s Liberty Dinner, financing public-sector unions. They all just fizzled. arguing, that public engagement and resistance to . A.W.: It is unprecedented for a president to the Trump administration is a key component to nominate a justice for the Supreme Court who was energizing the country’s courts system and not considered by the Senate, as what happened with enabling it to be a meaningful check of the President Barack Obama’s nomination of Merrick administration. Garland. What ramifications do you think we will Before her address, she sat down with Street see because .of that in the future? Roots to talk about the politicization of the Supreme Court, the nomination of Neil Gorsuch, D.L.: I think you will never again see a and the role the judicial system will play during president get someone seated unless their party the next four years. controls the Senate. What that means is that every single confirmation hearing will be a A m anda W aldroupe: You’ve said that this is hostage situation. not a typical year for someone who covers the D Supreme Court as a journalist. How so? D ahlia Lithwick: I can carbon-date i t It’s Feb. 13, 2016: That is the day that Justice (Antonin) Scalia died. No one expected him to pass away. Nobody expected that if there was a vacancy, it wouldn’t be filled. I think the 2015 term, which ended in 2016, if Scalia had lived, would have been the blockbuster term for the ages, if you look at the cases that were docketed. They all sort of fizzled into 4-4 splits. And there were several that the court didn’t fully decide. A.W.: What cases suffered from the lack o f a ninth A.W.: And a political situation, which makes the Supreme Court a political ball that gets tossed around. D.L.: Yep, it’s just a football now. If you look historically, we’ve had nine presidents seat 13 different justices over the years, and in an election year, there’s no precedent for what just happened. As of now, the precedent will be that you can never seat anyone in your third year. By the end of October, you were hearing Republicans like Ted Cruz and John McCain say, even if Hillary Clinton wins, we’re going to go four years without a confirmation hearing. We’re just in a full-on A.W.: Is Neil Gorsuch going to be the newest Supreme Court justice? D.L.: I think Democrats in the Senate are making a decision about w hether this is the hill they want to die on. I think the thing that happened that stiffened their resolve (on voting against confirming Jeff Sessions as attorney general) was the airport revolution that happened when all the lawyers and all the judges pushed back. They looked around and said, “Holy crap, rule of law really m atters to the American people.” I think that really emboldened them to fight the nomination of Jeff Sessions. I suspect they’re trying to figure out if Neil Gorsuch is going to be worth a filibuster. It is filling Scalia’s seat. It’s swapping out a conservative for a conservative. T here’s going to be no net change. So maybe they’re going to be willing to fight another day. My sense is that it has changed in the past week or two. Chuck Schumer is pushing back, and Sen. Richard Blumenthal recently came out and basically said if he doesn’t (publicly) denounce Trump’s attacks. I on judges, I cannot vote for him. This is new. It’s part of tying Gorsuch to this administration. A.W.. What role do you expect the Supreme Court to play in the next four years? D.L.: You happen to be asking the question we’re all asking about Gorsuch himself. We know where his head is on religious liberty and criminal procedure. What we know almost nothing about, because the 10th Circuit Court just doesn’t do it, See COURT, p a ge 9
