Brooks and Marcus on the Supreme Court’s history-making term, Jan. 6 revelations

New York Times columnist David Brooks and Washington Post deputy editorial page editor Ruth Marcus join Judy Woodruff to discuss the week in politics, including how the Supreme Court capped off a consequential term as the fallout continues from its decision to overturn Roe v. Wade, and a surprise hearing of the Jan. 6 committee presents testimony from inside former President Trump's inner circle.

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  • Judy Woodruff:

    It has been a remarkable and busy week here in Washington.

    The Supreme Court capped off a consequential term, even as the fallout continues from last Friday's decision to overturn Roe v. Wade. And there was a surprise hearing of the January 6 congressional committee to present testimony from inside former President Trump's inner circle.

    All that brings us to the analysis of Brooks and Marcus. That's New York Times columnist David Brooks and Ruth Marcus, deputy editorial page editor for The Washington Post. Jonathan Capehart is away.

    Hello to both of you.

    Welcome, Ruth.

    Welcome back, David, from your well-deserved time trying to do something — I'm sure it was civilized and let's hope relaxing.

    (LAUGHTER)

  • Judy Woodruff:

    So let's talk about this Supreme Court term, David.

    Whether you liked it, loved it or you hated what they did, it's been historic. How do you size it up?

  • David Brooks:

    Certainly epical.

    I guess I will focus on the regulatory stuff. The abortion stuff, we can also talk about. But in a series of decisions involving OSHA, involving the EPA most recently, involving the CDC, the Supreme Court took power away from agencies and said, no, Congress has to deal with this, and arguing that the agency that had overstepped their congressional mandate.

    And I have a lot of sympathy in theory for the idea that as much as possible should be decided in legislatures and not by unelected representatives. The problem for us right now is that we have a broken Congress. And so if it's not going to be settled in an agency, it's probably not going to be settled at all.

    And that's especially true for climate change. And so I'm afraid our political dysfunction sort of undermines what I think is a very sound principle, that the court should be pushing back at overreach by agencies.

  • Judy Woodruff:

    So pushing it at a time when agencies are not so — when our legislatures are not so…

    (CROSSTALK)

  • David Brooks:

    Right.

    And one of the things I have learned covering — in political science, they say people want power. My career has taught me people don't want power. Congress loves to send power over to the agency, so they don't just take responsibility for anything.

    So we have got this weird thing where the Congress doesn't want to do anything. The agencies now are being permitted — or not being permitted to do anything.

  • Judy Woodruff:

    How do you size up this term?

  • Ruth Marcus:

    Well, this term was — blockbuster is not a strong enough word for what this term was.

    And I would love to talk about administrative law until the cows come home, but it's so much bigger than that. And it really underscored the huge difference between six and five. Six conservative justices can do whatever they want, because they have a justice to spare and still keep the majority. And so they did this term.

    They got rid of the right to abortion. They expanded the right to the Second Amendment right. They further dismantled, to the point where you can hardly see it, the wall of separation between church and state. And they really did change the regulatory landscape, such that, from my point of view, just to argue with you a bit, Congress can't now delegate and say, you guys are the experts, fix this problem.

    Now they're requiring Congress, which means that, as you say, no one can get things done.

  • Judy Woodruff:

    So, what about this notion, David, that it was blockbuster, that it changed things in a way that we haven't seen in decades?

  • David Brooks:

    Yes, absolutely.

    If you look — I saw a graph today of how many decisions of the court over the decades were conservative. And it's like — it's a little like this. And then this year comes along, and it's way up in the ceiling. And so there clearly was really the culmination of 50-year development of the Federalist Society, all this stuff. They now control the court.

    And the one thing that's peeved me a little — and Ruth is going to argue with me about this — is…

  • Ruth Marcus:

    I would never.

  • Judy Woodruff:

    That's OK. It's all right.

    (CROSSTALK)

  • David Brooks:

    There's some — I have heard some argument that we had all these decades of liberal decisions, and now suddenly we get conservative decisions, and suddenly politics is entering the court.

    And, to me, that's not true. There was liberal decisions for a while. And now there's very strong conservative decisions.

  • Judy Woodruff:

    Is that what's happened?

  • Ruth Marcus:

    Well, now there are very strong conservative decisions reached in ways that I would argue are deeply un-conservative, without due regard for the importance of keeping to precedent, cherry-picking history when it suits your purpose and ignoring it when it doesn't.

    Elena Kagan, Justice Kagan, in the regulatory decision that you were citing, said, we're all textualists now, except when it doesn't suit us. And, in that case, we just read words out of statutes.

    So I have problems not just with the outcome, but with the way they did it.

    But there's one other really important point. This term was the culmination of this battle for conservative control, but it wasn't the end of it. Next term also looks to be shaping up to be a blockbuster. We're going to see, I think, the end of affirmative action in higher education. We're going to see religious freedom, religious liberty prioritized over gay rights. We're going to see the further shredding of the Voting Rights Act. Just buckle up.

  • Judy Woodruff:

    We're going to — there's a big decision coming on redistricting at the state level.

    So, David, look, you said setting aside abortion for a moment. I mean, it's the big one out there.

    (LAUGHTER)

  • Ruth Marcus:

    Other than that, how did you like the term?

  • Judy Woodruff:

    Other than that. Exactly.

  • David Brooks:

    Right. Right.

  • Judy Woodruff:

    The repercussions are coming by the day. We talked about it at the beginning of the program.

    The states are now trying to figure out, what in the world are they going to do? What about the political repercussions of this? I mean, how do you see it changing the landscape?

  • David Brooks:

    I don't know. That's — and that's what's interesting to me, because opinion abortion has been astonishingly stable for decades.

    And now, suddenly, this happens and, as we heard earlier in the program, it's just going to be a period of intense flux. And new things are going to happen. Joe Biden's comment earlier that people are going to watch a woman get arrested for crossing state lines, that is actually going to be shocking to people, because most people are sort of in the middle on abortion.

    But when they see that, they — what the heck is going on here?

    And so I think that and all the legal and all the tussling we're going to be facing and all the flexibility could have the possibility of shaking up what has been a very stagnant public opinion rule. In political terms, in narrow political terms, it has clearly helped the Democrats. It has clearly motivated voters.

    If you look at the polls, who do you want to control the next Congress, before, it was slight Republican. Now it's slight Democrat,. Whether that be longstanding, I'm not sure. But it's clearly had some mobilizing effect.

  • Judy Woodruff:

    You see that same, same way?

  • Ruth Marcus:

    Some mobilizing effect.

    I'm a little bit of a skeptic on how much mobilizing effect. For years, it's been clear that Republicans have done a better job of mobilizing their voters on abortion — on single issues like abortion and gun rights, much better on mobilizing them about the courts than Democrats have.

    But we are in new territory, as you say, David, not just the first woman who's arrested crossing state lines, but the first woman who's prosecuted, women who die because they can't get appropriate care.

    So, look, if you are Democrats, talking about abortion being on the ballot is a lot better than talking about gas prices being on the ballot or the border being on the ballot or crime being on the ballot. Will that be enough for Democrats to change the tide of what is historically and looks like this year certainly will be a bad midterm outcome? I'm a little doubtful.

  • Judy Woodruff:

    You're saying you don't think — you don't — you're not sure it's going to stay the issue that it is right now for Democrats?

  • Ruth Marcus:

    It may stay, but it might not be the motivating force.

    And, of course, there are still motivations on the other side. And it also is a state-by-state issue. So we have all sorted ourselves geographically, so that you may turn out to vote in a state where your turnout doesn't matter very much.

  • Judy Woodruff:

    But I'm asking you to predict how long — how much staying power does this have?

  • David Brooks:

    I agree with Ruth. Limited. Limited. I mean, it'll mobilize some voters clearly in some places. Maybe I'm not…

    (CROSSTALK)

  • David Brooks:

    Maybe you can say that…

    (CROSSTALK)

  • Ruth Marcus:

    And I want to be wrong, just to clear.

  • David Brooks:

    Yes, but I'm just — my feel is, the election is going to be about inflation, about the economy; 83 percent of the country thinks the economy is in bad shape. That's an unprecedented number.

    And so that's just, I think, going to be the dominant issue. And prices may go up on July 4 weekend and all that kind of stuff.

    One other thing that's going to happen as a result of this is the further bifurcation of America into two different countries. We're going to have different abortion regimes. We may, because of the other Supreme Court decisions, have other — more states' different regimes.

    And so we could be seeing ourselves becoming a country with two different kinds of economies, two different sets of cultural values, and two different sets of governing policies sort of held together by string.

  • Judy Woodruff:

    It does divide further what's already a divided country.

  • Ruth Marcus:

    It does divide into the question of staying power among Democrats. As much as they are energized, they are also frustrated, understandably frustrated, because there's not much they can do now. Lots of pressure on President Biden, do something, do something, do something. Not a lot he can do.

  • Judy Woodruff:

    Let's talk about something else equally, shall we say, divisive, the January 6 Committee.

    David, the last time you were on the program, it was early June. You said the committee — I looked it up to just get the exact David Brooks…

    (LAUGHTER)

  • Judy Woodruff:

    You said the committee was fundamentally ill-pointed, that it should have been focused on preventing another one.

  • David Brooks:

    Let me revise my remarks.

    (LAUGHTER)

  • David Brooks:

    I mean, the point I was trying to make is, we need a committee to focus on the future January 6's.

    But what happened this week was — I mean, it's amazing we're talking about this possible indictment of a former president as our third topic.

    (LAUGHTER)

  • Judy Woodruff:

    Yes.

  • David Brooks:

    And — but…

  • Ruth Marcus:

    When it happens, it'll be the lead.

    (LAUGHTER)

  • David Brooks:

    Yes, right.

    And so this is what we really saw, something I did not think we would see, which was that there really could be a case made against Donald Trump for inciting an insurrection. And what we saw today — and, to me, the crucial — of Cassidy Hutchinson's comments, the crucial one was, take out the magnetometers. Take out the metal detectors.

    That is clearly a guy who knows there's violence, that there's armed people capable of violence, and he wants to make it easy for them. That's a pretty — if other people testify that he said that, that's a pretty damning thing.

  • Ruth Marcus:

    Very damning.

    And I think it's always been critical that we look both forward to prevent another January 6, but also backward to find out what precisely went on, not just that day, though the testimony about that day was riveting, but also in the lead-up to that day.

  • Judy Woodruff:

    Is it — is it — Ruth — let me stay with you on — is what the committee is finding going to have a material effect on the former president and what he's — and his political standing?

    I mean, David's saying he may be in legal jeopardy. But he's — he may also be running for president.

    (LAUGHTER)

  • Ruth Marcus:

    Yes, pretty amazing. He may be in legal jeopardy.

    The political jeopardy, minds are pretty well made up. There is a core of people who are Trump supporters, Trump true believers who will not be shaken by anything Cassidy Hutchinson or anybody else has to say. There's a group of Republicans, though, the sort of remaining rational Republicans and Republican-leaning independents, who are going to be shaken by this and think, do we need to stick with this guy, or can't we get somebody who's like Trump without all that baggage?

    And they're increasingly being presented with more options, Ron DeSantis, maybe the governor of Virginia, Glenn Youngkin. And then there's a group of people like me who watched the hearings who have been extraordinarily squeamish — I still am — about the notion of indicting a former present, this president's chief political opponent.

    But look at this testimony and say, how can we close our eyes to this?

  • Judy Woodruff:

    How are you looking at that?

  • David Brooks:

    Yes, I do think there's going to be a lot of Republicans, or at least some, who say, Donald Trump, I support you, thank you for your service, let's go to the next chapter.

    And there was a poll in New Hampshire a couple of weeks ago now that Ron DeSantis was leading Donald Trump. That certainly is a significant poll. So, I do think it's an excuse for people to say, nice job, Donald. Let's move on.

    So I do think it weakens his grip on the party a bit.

  • Judy Woodruff:

    It does still raise questions about the number of Republicans who are still defending him, who are saying that: We don't believe the election was legitimate. We think it's still an open question.

  • David Brooks:

    The Republican Party should have more 26-year-old young women who have guts.

  • Ruth Marcus:

    Twenty-five.

  • David Brooks:

    Twenty-five.

    (LAUGHTER)

  • Ruth Marcus:

    But what a witness.

  • Judy Woodruff:

    Yes.

  • David Brooks:

    Yes.

  • Judy Woodruff:

    Well, she — and, and she is one of a number of others who could come forward, but who haven't. I mean, we're still waiting to hear Pat Cipollone, the White — Cipollone, the White House former chief — former legal counsel and others.

  • David Brooks:

    Yes.

  • Ruth Marcus:

    We need to hear — there — one of the things that this testimony underscored was the degree to which we need to hear testimony from others, from Mark Meadows, from Pat Cipollone, from some of the members of Congress, from the people who were at the Willard Hotel plotting the insurrection in the days leading up to it.

    We need to hear that testimony either compelled by the committee or by the Justice Department.

  • Judy Woodruff:

    We're waiting to hear from the committee to see what they do when they come back.

    Ruth Marcus, thank you. David Brooks, thank you.

  • David Brooks:

    Thank you.

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