- [Narrator] Production and distribution of City Club Forums on Idea Stream Public Media are made possible by PNC and the United Black Fund of Greater Cleveland Incorporated.

(upbeat music) (audience chattering) (bell dinging) - Hello and welcome to the City Club of Cleveland, where we are devoted to conversations of consequence that help democracy thrive.

It's Friday, March 31st, and I'm Jeremy Paris, principal at the Raben Group, a national public affairs public policy firm.

And I'm pleased to welcome two friends to Cleveland today, author, editor and podcast host extraordinaire Dahlia Lithwick.

(audience applauding) And Senator Sheldon Whitehouse of Rhode Island, who among other things, chairs the Senate Judiciary subcommittee and Federal Courts Oversight Agency Action and Federal Rights.

In today's forum will be treated to a deep dive- (audience applauding) See, I ran right through your applause line.

Today will be treated to a deep dive conversation between them about the state of the courts and the rule of law in the United States.

One of the enduring legacies of the Trump administration was remaking of the Supreme Court and the rest of the federal judiciary.

In four years, Trump appointed three Supreme Court justices and more than 230 federal judges overall, shifting the balance not only on the nation's highest court, but also on a significant number of powerful appellate courts.

The impact is already clear, with major cases overturning longtime precedence, like Roe v. Wade and changing the landscape of individual rights in this country.

At the same time, we have born witness over these last years to an escalation of pressure on our democratic system and our legal system reaching one, but certainly not the only apex on January 6th and its aftermath.

Our speakers today each bring a distinct vantage point, and we look forward to hearing how they see these shift as presenting challenges and maybe opportunities for American society.

First elected in 2006, Senator Sheldon Whitehouse, a former US attorney and State Attorney General, has brought a lawyer's tenacity to his tenure on this Senate Judiciary Committee.

He's the author and I was a staffer on the committee when Senator Whitehouse first joined the committee and he brought just an incredible fierce intelligence and keen eye for chasing the truth.

And a lot of that is now documented in his book, The Scheme: How the Right Wing used Dark Money to Capture the Supreme Court, which chronicles the efforts of major corporations and organizations to fill the bench with hard line conservative judges.

Dahlia Lithwick is the keenness and funniest, no pressure.

(audience laughing) Supreme Court observer in the land, is Slate senior legal correspondent and hosted the podcast Amicus.

She's the author of Lady Justice: Women, The Law, and The Battle To Save America.

The book highlights the women who win the wake of Donald Trump's election, work to protect the country's most marginalized groups, and safeguard the rights of all Americans.

So here's the part for you.

If you have a question for our guests, there will be mics at the corner, but you can also text it if you are in the audience outside of this room, especially, to 330-541-5794.

You can also tweet your question at least while we can to @TheCityClub and City Club staff will try to work it into the second half of the program.

Members and friends of the City Club of Cleveland, please join me in welcoming Dahlia Lithwick and Sheldon Whitehouse.

Dahlia, you're up.

(audience applauding) - So on behalf of both Senator Whitehouse and myself, I cannot thank the City Club enough.

I cannot thank Cynthia, your staff, just the amazing folks who pulled this event together.

And Jeremy, I think I speak for both of us when I say Jeremy, who is like the Energizer bunny of event planning, I don't know how he, in his kind of dervish way somehow makes events happen in his wake, but it's really a treat to be with all of you.

And I also just wanna say, as a point of personal privilege, it is just an honor to be sitting on a stage with Senator Whitehouse who I really urge you to grab his book on the way out because it really is, even for me, who covers this material full of material I didn't know that I should have known.

I think it's an essential sort of walkthrough how we got to where we are.

Senator, I think one of the things that I wanted to start by asking, and I wanna be clear, we're interviewing each other, I am not, this is not my podcast.

(audience laughing) but I get to ask the first question- - We flipped a coin.

- I wanted to start by saying that I think that you and I both produced ultimately books that have to do a lot of explaining.

They have to show and tell a lot of things that are happening under the surface.

I, you know, had to delve into the joys of gerrymandering and reapportionment, not necessarily a topic that sears the eyeballs.

You had to really map out this elaborately opaque system that nobody understands.

And so at the risk of, and I'm quoting Ronald Reagan here, when you're explaining you're losing, I'm at the risk of asking you to explain.

I wonder if you could just lay out for us The Scheme as you laid it out in the book so that we all kind of have a sense of the playbook.

- Is it okay if I give the short version?

(audience laughing) - I think that might be best.

- Okay, I'll do that.

But before I do, let me join Dahlia in saying how proud I am to join the storied history of the City Club of Cleveland here.

And particularly to share the moment with Dahlia who is a hero of mine.

And to recognize Jeremy who the Senate runs not, this is gonna stun you, not because of the exclusive talent of the members, (audience laughing) but because amazingly committed, determined, able, young people come and do brilliant staff work.

And nobody was better than Jeremy on the Judiciary committee while I was there.

(audience applauding) So that was all pretty cool.

And I came to the Senate with Sherrod Brown.

(audience applauding) And if you look at the Senate, you can imagine there could be just some who were a little bit confused about both a Sheldon and a Sherrod showing up at the same time.

Sheldon Whitehouse, Sherrod Brown.

And we added to the confusion by creating a third senator named Shellrod Brownhouse.

(audience laughing) So I'm very happy to be here in Shellrod country.

And to your question, I think we often, particularly as Democrats, treat what is happening as just the thing that is happening without bothering to peer behind the curtain and look at the machine that is making it happen and that is presenting it.

And we have catastrophically failed it for decades in watching this machine develop to seize and capture the court.

And the two nutshell ideas that I think will help you understand the theory, one has to do with agency capture or regulatory capture.

And if you think about a late 19th century railroad commission with all the commissioners chosen by the railroad barrons doing what they're told, it's not a conservative court, it's a captured court.

And you have to think in terms of what's called agency capture and regulatory capture.

And the second thing you have to bear in mind is covert operations.

The intelligence community does covert operations all the time.

And a lot of what was done to capture the court is very familiar trade craft to people who've been engaged in intelligence operations, cut outs, hidden funding, front groups, people who identify as one thing but in fact are something completely different.

And a lot of that a technique was brought to bear over many decades along with immense amounts of money.

Lisa Graves of Center for Media and Democracy has pegged it so far, at $580 million fed into the apparatus of front groups through which this was accomplished.

And I'll say one last thing in case you're doubting that 580 million is a credible number.

The guy who ran the soul racket was sort of the central spider in the web, is named Leonard Leo.

And he just got a $1.6 billion slush fund dropped on him by a rather eccentric and extreme right wing billionaire.

So they're playing for keeps, they're playing with big money.

The goal was to capture the court and they did it.

Short enough?

- Good answer.

(audience laughing) - Okay.

So first of all, my book is basically kind of a long pros memo.

Anybody who's been a prosecutor knows what a pros memo is.

It's sort of the last in-house thing you do before charging the case to prove it to your boss and to look for last problems.

This book is different, this book is a song.

It is so beautifully written and it's so many wonderful memorable phrases in it.

When I read a book, if I really like it, I stop and go back and start again with a highlighter.

And I just like flipped through the unbelievably good phrases that are in here.

"The capacity to bear life had suddenly turned the womb into a crime scene."

(audience laughing) "It's been a shallow, scary journey through a legal system designed chiefly by men."

This all of her stories are about different women who've made a big, big difference in the law, "Creating a simulacrum of justice instead of the real thing."

I mean, it is really, really fun and wonderfully written.

And there's one place where we overlap, virtually identically.

And that is Justice Kavanaugh, (audience laughing) And his approach to the court.

And we both use the same word in our books independently, which is auditioning.

You actually say it better.

Dissenting in part and auditioning in part I think was your phrase, which is a pretty nifty one.

So talk a little bit about what it means about the larger environment in which Kavanaugh was operating that auditioning was a necessary and successful strategy and how did he do it?

- I'm not capable of speech right now other than my mom.

- You're gonna have to.

- Nobody has ever said anything like that about me.

And I don't know that my mom has ever said anything like that.

(audience laughing) So thank you.

I mean I think we were making essentially the same point, which is that then Judge Brett Kavanaugh was left off the short list when Donald Trump running for office for the first time in history published his list of, these are the people I'm gonna pick.

That was unprecedented.

Somebody was not on the list and he wanted to be on the list.

And we should note, and I think you note this in your book as well, that then Judge Kavanaugh had a long history right back to Bush v Gore, right back to work on the judiciary committee.

This is the person who had been- - On the judiciary White House staff.

- Yes, yes.

Who had made it very hard to get records on judges and who had been deeply involved in seating judges for Republican administration.

So he had in some sense been auditioning for decades and yet wasn't on the list.

And the point that you make in your book and that I make in my book is how easy it was for him to get himself not on the list, but to become the list, and that was simply a function of some writing he did.

I describe writing in a really horrifying case that involved, you may recall, a migrant teenage girl who wanted to terminate a pregnancy.

She was granted a waiver, which does not happen, by a court in Texas.

She should have been allowed then to leave the shelter that she was in, terminate her pregnancy.

And the Trump administration locked her in functionally, did not let her get the procedure that she was entitled to get.

This case kind of rockets through the federal courts, aided abley by Bridget Amir at the ACLU, who I describe in detail.

And then Brett Kavanaugh, when it shows up on his doorstep, writes this shocking, shocking opinion, not just on the merits, which it was clear he was just running out the clock until she would not be able to terminate her pregnancy 'cause she'd run out of time, and doing it under this pretext, always under the pretext of, oh, I just have her best interest at heart, really wanna make sure she's getting good guidance, but also just dropping language in his opinion that was clearly red flag language about his intention to reverse Roe and his parroting talking points that have nothing to do with legal doctrine, everything to do with a movement.

And as soon as that happened, in several other cases that you describe in your book, it became very manifest that he was gonna be the guy.

And I think the larger point, we can talk about it if you want, is the ways in which that which used to be a sober, careful process of selecting a justice has turned into a kind of performative, here's who I am, here's what I think, put me on the court.

And one just footnote- - My wares.

- One footnote to that that I think is really troubling that we are seeing right now is lone District Court judges around the country who are similarly auditioning, whether it is a judge who is about to strike down medication abortion nationwide, or judges who are single-handedly taken upon themselves to use these kind of deliberately Twitter-ish trolling language in order to say you thought he's nuts.

I'm way crazier.

(audience laughing) And this has become the coin of the realm.

- And the other thing about the auditioning process is that it implies somebody that you're auditioning to, it implies a panel or a judge or some group that is gonna pick you out for your auditioning and get you on.

And that obviously is the group that operated within and under the cover of the Federalist Society, picking the judges whose names went to Trump for him to then nominate so that they could put their apparatus into action to cram the judges through, really often irrespective of merit or hazard just because the machinery was going to run and have its way.

And so the auditioning implies something else, which is that there is this thing out there to whom you are auditioning.

And we still don't know enough about it.

But one of the theories that I put forward in my book is the list that Dahlia mentioned, that there is a little bit more to that than just being a list.

I propose, and I hope it's eventually discovered, that the list was actually the peace agreement between House of Koch.

Remember the Koch brothers hated Donald Trump and House of Trump, remember Trump hated the Koch brothers back, and mocked all the other candidates going out to kiss their ring, their big gathering.

So they couldn't have disagreed more, they couldn't have disliked each other more.

And all of a sudden there was peace between House of Koch and House of Trump that happened to correlate with, oh, a list that means House of Koch will get to pick the Supreme Court justices for Trump.

And I suspect they also threw in all the energy and environment positions as well just to like close the deal.

Someday, how that all happened will come out.

But that's my theory and I think most of the evidence that we have so far supports that theory.

- I wonder if I can ask you, if we're quoting each other to each other, (audience laughing) to talk briefly.

You know, we could sit here and both of us have devoted hours, weeks, years of our time to sort of laying out iterations of the scheme that you lay out in the book.

But you do have a footnote in here that I won't read at length, but I think it's a moment of real mea culpa, some real self scrutiny, not necessarily of yourself but ourselves, how we allowed this to happen under our noses.

And I think you flicked at this at the beginning, but I want you to maybe pull on this thread a little bit, Senator, because the truth is for anyone who saw Merrick Garland get nominated and then just benched while one side took- - Interesting word.

- Unbenched, if you will.

(audience laughing) Binned, maybe.

One side took to the campaign trail to say, let me be clear, if Hillary Clinton wins the 2016 election, we will hold this seat open for four more years or eight more years.

We can happily live with eight people on the court.

And the other team was very, very quiet.

And I think your footnote, which I would just commend to folks, page 132 for when you buy the book is a lot of meditation on our quietude in the face of this.

- Yep, yep, if it's one I'm thinking of, it's compares the creeping burglar to the sleeping century.

And while the creeping burglar has more culpability than the sleeping century, the sleeping century is not without culpability.

And I emote a little bit on that culpability, which I think is a significant and recurring problem for our party.

When we are talking in the green room, and I was venting about this a little bit, here we are in Cleveland, I said that, you know, when a baseball team comes here to Progressive Park to play the Guardians, the Guardians have a better book on the opposing team than the Democratic Party has on the dark money operation that is out to basically wreck our democracy and destroy our party, and disable everything we fight for, you know.

Who's good at the inside pitch and who isn't, who runs faster to left than the right, who's likely to steal a base?

You know, how have they run plays in the past?

Some effort is put into that.

We have no effort and we have nobody charged with that effort, and we have no place where that effort is required to be done and somebody gets fired if it doesn't happen.

And I think we're operating in a very different level of preparation and diligence than the dark money operation, which is all about winning, all about persistence, all about subterranean and clandestine effort.

And we're just terrible at, I mean, we may hear the miners digging below the walls and we just roll over and go back to sleep again rather than go dig out the minors.

So yeah, I little creed occur there.

- That's a little depressing.

- But let's switch to something more positive, right, because we'll go from depressing, because one of the really cool things about your book is that the women who you feature very often are fighting uphill struggles.

As you say through the Sheriff's Bureau journey of a court system designed for and by men, and very often, you know, failing catastrophically and being put up against judges who were there with the ulterior motive to make sure that they lose.

And yet there's this continuing positivity both in them in their persistence, but also in their confidence in this semi-rigged system.

Tell a little bit about how that played out through your book, that's a pretty cool notion.

- I mean, you know, one sort of accident of history is that the book, I sold it in 2017, it took me years to write.

It was shipping in June and then Dobbs came down.

So the minute the Dobbs decision came down, I called my publisher and I said, I need it back.

I'm gonna have to tweak some stuff.

This is a very hope-y book in the face of what we have just lived through.

And I really did in four days rewrite the introduction, the epilogue, and the chapter about the teen migrant at the border seeking an abortion.

So I was actually on that seam myself of, is the law in fact going to be the agent of our salvation and dignity and equality?

Or is the law going to be weaponized against women?

And I should note, we are now in a moment, not even a year after Dobbs, where there are women in jail in Oklahoma and Alabama and there will be women in jail in Idaho and there are gonna be women in jail around the country because the machinery of law that was meant to protect us and to protect our rights and our dignity and our equality is now going to be weaponized against them.

And one of the themes in the book, which feels very apropo for today, is the chanting of crowds at Trump rallies.

Lock her up, lock her up, lock her up, directed at Hillary Clinton.

Nobody was saying these are the charges, nobody was saying have a trial.

They were just saying like, put her in jail.

We'll figure out why.

(audience laughing) And like I said, a little bit apropo for today, but I do think that that theme, Senator, of women, minorities, people of color, migrants, LGBTQ Americans, vulnerable populations, have always, in this country, lived right on that seam where the law is both the instrument of our oppression of horrific violence against us, it is the instrument of our salvation and redemption.

And every woman I interviewed lives on that seam as well.

And so every one of them has a slightly different fraught relationship with the question of does the arc of the moral universe really bend toward justice or is that just a thing we print on our t-shirts?

Or is it in fact the case that if I double down, double down and double down and put my trust in the law, then the law will show up for us.

And quite frankly, I often joke the title of this book could be "Welcome To My Nervous Breakdown" (audience laughing) because I'm not even sure anymore, as somebody who's poured, you know, my career into having confidence that the law could get us where we need to go.

I'm not sure anymore that it will, but I think- - But you do say, and you have a t-shirt that emphasizes it, speaking of T-shirts, women plus law equals magic.

- Well, and this brings me to, and we'll take questions in six or seven minutes so start percolating on them.

But this brings me to I think another through line between both of our books, which is, I think, we are both describing systems that in some sense operate exactly as they were intended to operate.

That we think that these are pathologies, but they are systems that are cobbled together from norms and conventions and ideas of grace and dignity and institutional.

And if you really want a crater, the legal system in this country, it's super easy.

And as you point out, not very expensive.

It is really cheap as it turns out, to buy some courts.

And you wanna buy a Supreme Court?

I got one on sale outback, like it is really cheap to do this, to break democracy.

- Can I give an example?

- Yes please.

- So the $580 million number about how much Center for Media Democracy has been able to trace going into this apparatus of court capture, the International Monetary Fund, not an environmental group, a economic group, has quantified the full effective subsidy for fossil fuel in the United States of America, most recently at 660 billion per year.

Mostly from the economic benefit of being able to pollute for free, contrary to the most basic economic principles that negative externalities need to be baked into the price of the product for the market to operate.

So let's just say that the Obama Clean Power Plan might have just whittled 10% off that subsidy, just 10%.

66 billion per year.

What is spending 600 million for a court that will blow up the Clean Power Plan before it even has a chance to go into operation, and buy you, what's it been now, seven years?

Seven years of 60 billion a year worth of value.

So when we're thinking about how valuable it is to capture this court, and it seems horrifying to us in politics, they dropped 1.6 billion on this dark money scheme.

Oh my God, that's an impossible number.

No, it's a bloody bargain.

I think the fossil fuel industry makes more money off of their political machinations than the new offs selling fossil fuel.

- I'm gonna ask a question, because people are looking super sad.

(audience laughing) See, read the room, Senator, they're sad.

(audience laughing) - No, you gotta diagnose the disease and then you go fix it.

- Well this is, you have read my mind because my thought is that both you and I do some diagnostic work, we name things.

And I think that as you say once you name a thing, you can fix it.

And both of us I think have deep confidence that the systems can be repaired.

And that norms that were soft norms can be hardened.

And you've had a kind of consequential win on Supreme Court ethics.

- We had a little one but a good one.

- I would like you to tell people that we can fix things.

- So we absolutely can fix things.

First of all, the weapon through which the court capture effort was accomplished was dark money, and we can get rid of that.

Even the Citizens United decision left a huge opening for laws that prohibit dark money in politics.

In fact, the decision actually says that the only reason this unlimited money isn't gonna be corrupting, their theory not fact, is that it's gonna be transparent.

If it's anonymous, QED, it's corrupting.

So there's a huge lane to fix that and we should, unfortunately for the dark money forces, the evil that allows all the other evils to happen is protecting the dark money tool.

So you're really going at the center of the death star when you're going at it, you've gotta go at it with real, you know, vigor and determination.

So that's like the big thing.

And then you can chop your way through the court, the court should have an ethics code.

And it should have a means for somebody to actually find the facts about whether something happened in violation of the ethics code.

If it's the thesis of the court that Clarence Thomas was fine, not recusing himself from the January 6th investigation, despite his wife's behavior, because he absolutely knew nothing whatsoever about his wife's role in the insurrection?

That is a fact that can be investigated.

And even at the most basic level, you send somebody in to take a little statement, okay, this is what you say, Justice Thomas, fine, would you sign where you said it?

Okay great.

And then if it turns out later that it wasn't true, there can be real consequences.

But it's just part of the automatic nature everybody in government has to face not only a code of ethics but also an investigative process to look into whether they blew it against the code of ethics, except nine justices on the Supreme Court, you can fix that.

And our little victory was a little nasty stunt that they had pulled as a matter of practice.

The Supreme Court was saying that the exemption that lets you not have to disclose hospitality when it's personal hospitality, like Christmas with your daughter and son-in-law, or a family holiday, applied if you received a personal invitation from the owner of an establishment.

So all you had to do is go find the owner of a resort, ask for a personal invitation, and bingo, you're in free comped holiday land, not to be reported.

Worse still than the Justice doing that for themselves would be a big lobby with a big interest before the court, like the gun lobby, saying to the owner of a hunting resort, hey, there's a Justice we'd like you to invite personally to come and spend a happy weekend in your very expensive and luxurious hunting resort.

And as long as you're inviting him, why don't you invite some of us?

'Cause we're gonna have some really nice, private conversations and none of it gets disclosed.

The only way we got a window into that was because Scalia went to one on Air Force 2 and he went to another and died.

But it turns out there were about 80 of them- - for Scalia.

- For Scalia, just Scalia, he was the ultimate frequent flyer and the judicial conference, all the other judges, this sort of the administrative body of all the other judges this past week sent a letter to me saying, okay, you're right, we're getting rid of that.

- It's a win.

- It's a win.

(audience applauding) - And to be fair, it was the Supreme Court Justices who were up to this.

I have no evidence that the Circuit Court judges were up to this, because they are under an ethics code and subject to investigation.

So it'd be a stupid move for them to do.

And it was the junior judges who made the move against the senior justices and that was a interesting little, intrajudicial scrap that I think signals maybe some discomfort with the way the Supreme Court's been behaving.

- I mean we haven't talked a lot about these legitimacy questions, but one of the things that the Senator and I think have long agreed on is we actually want to have a legitimate Supreme Court.

We are not here to have no functioning Supreme Court.

It is actually not just in the justices self-interest to behave according to the ethics canons, which by the way they say are advisory to them, right?

Like I think the Chief Justice's line was, oh we consult them, the way you'd say consult a map or a menu.

But we're not bound by them, we just sort of feel that we should look at them.

And I think one of the things that is profoundly misunderstood.

Correct me if I'm wrong and then we will take questions after this.

But we are not here to take down the court.

- Were here to have- - It took itself down.

- A functioning court.

(audience laughing) - That's part of the sorrow of all this is that these justices and the service of whatever it is that they're serving have been degrading the institution that they serve.

And really imperiling it.

And it was hard for me to come to the point to say, you know, this has gotten bad enough, I'd actually rather have a court with a deservedly bad reputation than a court that is captured and not delivering justice and getting away with it without anybody blowing the whistle.

But as somebody who's argued in that court, as somebody whose life has been dedicated to the law in various ways, that was not an easy moment.

But we've made that call and I think that's how you build it back.

You clean it up and then you build it back.

- So maybe before we take questions, which we are gonna do right now, but you have to do it according to your very strict instructions that you were given while I was shoveling salmon in my mouth.

So I don't remember what they are.

(audience laughing) but I will just say this, just as you know, sort of to close this loop Senator, I think both you and I ultimately wrote hopeful books.

And I think the paradox is, you know, a lot of people think these are gloomy books, but they are books about system failure that can very much be repaired, but it is gonna be the work of all of us over decades and generations.

It's not gonna be easy.

But I think we have to sort of lose the mindset that somebody else is gonna fix it.

- Yeah, it's our day and if we do it right, it can be morning in America again.

(audience laughing) - Okay.

- Alright.

We are about to begin the audience Q&A.

I'm Cynthia Connolly, Director of Programming here at the City Club of Cleveland.

We are joined by author Dahlia Lithwick and Rhode Island Senator Sheldon Whitehouse, talking about the state of the US federal judiciary.

We welcome questions from everyone, City Club members, guests, students, and those joining via our livestream at cityclub.org or radio broadcast at 89.7 Idea Stream Public Media.

If you'd like to tweet a question for our speaker, please tweet it @TheCityClub.

You can also text it to 330-541-5794.

That's 330-541-5794.

And our City Club staff will try our best to work it into the program.

May we have our first question, please?

- Senator Whitehouse in March, 2020, Senator Schumer said, "I want to tell you Gorsuch, I want to tell you Kavanaugh, you have a released whirlwind and you will pay the price.

You won't know what hit you if you go forward with these awful decisions."

He later said that he did not mean it, but the damage was done.

Sure enough, there were later violent protestors at Justice Kavanaugh's home, including one who was later charged with attempted murder of Justice Kavanaugh.

Today in your book, you again targeted Justice Kavanaugh.

Are you concerned that you're targeting a Justice Kavanaugh will further endanger his life?

- I'm not I think that, my discussion about the book is not personal, it's about systems that went wrong.

And with respect to Justice Kavanaugh, I talk about the auditioning that he did to get on the court.

I talk about the relationship he had with Leonard Leo, who was the guardian of the list and could move him up onto it.

I talk about the insufficiency of the FBI investigation and how they failed to follow their own procedures under intense political pressure.

And I talk about the overlay between the funders of the operation that made the list and escorted those justices to be into the nomination vestibule and the forces that fund the Republican party in the Senate where they had to line everybody up for these votes that were not at all easy, really hard votes.

And I think every piece of that is policy and reform oriented.

And we need to clean up these messes because they're systemically wrong.

- So I listen to some of the Supreme Court hearings, I listen to your podcast, Dahlia, I listen to strict scrutiny and sometimes I get to hear you, Senator Whitehouse.

And I'm trying to, so there's poop and whiskey and there's wedding cakes and wedding websites and there's originalism, and all this very highly technical stuff about computers.

How does it all fit into originalism?

It seems like originalism only comes up when it's like women's rights and stuff like that.

(audience laughing) Help me make sense of this.

- I'll take a first crack and then Senator Whitehouse has a nice section about originalism in his book.

So you can take a crack, I mean I think we probably are pretty aligned in our answer to this, which is that there was a moment in which originalism at least hued to some notion, some principled notion of what the project was.

And so whether you agreed with him or not, Justice Scalia could say in a sentence, in between hunting trips I guess, but could say in a sentence what it was he was seeking to do.

And whether you call it original public meaning, or whether you call it originalism.

There was a notion that when we are interpreting a constitution or a statute, what we do is we adhere to the original public meaning of the words in the statute of the Constitution.

That's originalism, agree or disagree, it made sense.

The problem that I think you've identified is that as a project, the wheels come off when you're talking about virtually anything in modern society, whether it's women's reproductive rights or whether it's a surveillance state or whether it's famously, you know, a case about garage door openers.

There was just not a strong Madisonian position on garage door openers or GPS tracking.

And so the answer I think is twofold.

One, it was limited at the time and it was always going to reward, right, ravantious white male prerogatives that are enshrined in the Constitution.

That was the flaw from the beginning.

But now that we can actually say, okay, we're all gonna do the project, right?

Famously after the Heller case, everybody said, you know, because Justice Breyer and Justice Stevens and Justice Scalia all did originalist approaches to the Second Amendment.

And it famously we said, we're all originalists now, Elena Kagan said, so we're all on board for originalism but now we're doing this other thing.

It's been totally abandoned in the interest of, I would say completely purpose driven.

You know, this is the outcome I want.

And maybe the last thing I would say is, and this is explicitly now, I mean there are very smart conservative academics now saying, oh originalism served its purpose, now we're gonna do this next thing that's way better.

So I think that partly it's the, as you know, critique of for instance what Justice Alito does in Dobbs, which is cherry picking, right?

He's like, I'm gonna go around and pick and choose the bits and pieces of constitutional history that adhere to the end I want.

That's bad enough, right?

Bad originalism.

And to this end I would say Justice Katanji-Brown Jackson is putting on a clinic of, if you really wanna know what originalism is, let me read to you from the drafting of the reconstruction amendment, so she's doing it.

But I think the more urgent problem is the deep cynicism under that project that was purportedly the load star, this is what we're all gonna do now, which it turns out was just instrumental.

- Agreed that originalism is bogus.

And if you want to dig into that, Dean Chumurinski, the law school dean at Berkeley, has just written a quite excellent book on that subject.

Even if it were not bogus, if it's really a doctrine, it ought to be adhered to regularly instead of selectively.

Explain to me how Citizens United, allowing corporations unlimited spending in our politics has any originalist footing when corporations were given no role in our politics by the founders.

And finally the new originalism, if you will, the history and tradition bit that was used in Dobson in the new gun case, Bruin, opens up a whole arena of mischief for the Supreme Court justices to engage in a particular kind of fact finding, which is fact finding their way to history through history to say what history says.

And when you've got Supreme Court Justices making up history in the privacy of their chambers, you're gonna get what you got in those cases, which is history that was roasted when it was put out and seen for the first time by real historians.

One of the big flaws of both Dobbs and Bruin was that all that was confected in the Supreme Court.

Ordinarily fact finding like that, you'd have expert witnesses, what is the history here?

And you'd drew it in court and opposing witnesses would quarrel with each other and it would always be happening in the light of day.

And then the judge would make a decision based on that evidence, and you'd have a chance to review that decision on appeal, granted that it's a tough standard, and eventually it would get up to the Supreme Court with a record of what the real history is, instead turn them into amateur and motivated historians to create a historical narrative that supports where they want to go.

But that doesn't comport with the actual complete picture of history.

So it's a kind of triple whammy of bad ideas.

Bad idea to begin with, not enforced fairly and consistently, and now opening a window to new areas for mischievous appellate fact finding.

- And can I say one more beat just 'cause this has been very arcane and it feels like, you know, scary con law, but I would just say this, you know, since Bruin, the gun case that the Senator has described that said, oh, if the rule was not existent at the time, then it doesn't exist.

We have had courts around the country saying, you know what, it doesn't matter.

If you've got a domestic violence order against you because there was no such thing as domestic violence or domestic violence orders at the founding so out of luck set that aside.

State rules that say you cannot bring a weapon into a shelter for abused partners have been set aside because there were no shelters for abused partners at the time.

So just to make this very, very concrete for people, this is the project and it is, I mean again you can say it's sort of fatuous as an idea, but the notion that we are gonna live under the dead hand of drafters who had no conception whatsoever of what life would be like, not to mention what reproductive freedom and autonomy would be like is on its face insane.

- First of all, I just wanted to thank you both for being here and the clear points that you've made so far.

Something you both hinted at a little earlier in the conversation was about the role that the Federalist Society plays as a sort of shell for this scheme that you discuss.

And that's a process that starts on law school campuses around the country.

I'm 22 years old, I plan to attend law school and right now it seems that those of us on our side of this issue have lost.

What advice do you have for law students and for young people in general as to what we can do to combat this capture of the court and this seizure that you've described for the past 30 minutes?

- Well let's talk about the Federalist Society for one second.

First of all, it started at Yale University and spread across law schools as a forum and gathering place for students with conservative views to share thoughts and, you know, ally themselves with each other and enjoy companionship.

A hundred percent fine, that should continue.

Of course it should.

Then it moved to Washington and a sort of think tanky type operation was set up, which is kind of smelly, but all Washington think tank operations (audience laughing) are usually kind of smelly.

So it doesn't really stand out and it's fine to be able to go and do its thing.

What got weird here is it became the host entity for whatever, we don't know what it was yet, whatever it was that cobbled that list together.

And that happened within the Federalist Society, but it did not happen through the Federalist Society.

Like every other corporate entity it has bylaws and procedures and meetings.

There is no indication that any of these lists and the judges and all that was done through any ordinary Federalist Society internal procedure.

Some group of people just kind of got together and under the rubric of the Federalist Society, a secretive group of very, very wealthy people, had billions to spend, came up with these lists.

And that should never happen in any country.

- And maybe I'll say one thing about law students, 'cause I'm here for the Hopi.

(audience laughing) I think a couple of things undergird both our books and one of them is a deep sense that we have been very myopic in what we see and what we don't see.

And I think, and I say this as somebody who went to law school, all I understood was the federal constitution.

Nobody taught me anything about state constitutional law or state and local law.

Nobody taught me anything until I left law school.

About the extent to which activism, organizing, you know, thinking about democracy is a part of what lawyers do.

And so I think as I look around, and we saw this, I think vindicated in the midterms, that it's the young people who showed up in droves, who cared about the environment, who cared about reproductive freedom, who care about guns, who care about all the things that the court seems to say, well you know, the environment didn't exist in the founding.

(audience laughing) So not worried about that.

I have seen, the amount of energy in young law students that I have seen post Dobbs is breathtaking.

And I think we have a whole generation of young law students who are starting to look around and say, A the law is not per se magic, it is not self effectuating, it is not a thing that just happens in the sky.

I'm gonna have to bend it toward justice, that's new.

And the other thing is, I think that saying the playing field is vast and you can get involved in state government, you can get involved as you're doing here in direct democracy, in getting things on the ballot, in making sure that in spite of gerrymandering and vote suppression, people are heard.

That is the work of young lawyers.

And I truly believe, I'm not just saying this to be Hopi, that we are seeing a renaissance of this huge aperture opening up about what young lawyers can do.

You all are gonna do it 'cause we're old.

(audience laughing) (audience applauding) - You've both used the word hope today.

And I consider myself a basically a hopeful person, most of the time.

How do you apply that hope on a practical level to one of the chambers of Congress, the House of Representatives, which these days seems to represent William Bendix philosophy, don't confuse my head with facts, my mind's made up.

- Well it's gonna be interesting to watch the House as it has to perform legislatively.

So far they've been legislating performatively.

(audience laughing) And with nothing that has any real intent of actually passing in the Senate or becoming law.

And it's not clear that they have figured out, you know, where the gear shift is and how the clutch connects and how you actually do legislating yet with their very, very divided caucus.

We have a very frightening test coming up with the debt limit.

And at the moment, the strategy seems to be we don't have a plan, to the extent we do have a plan, we know the public hates it, so we're not gonna share it with anybody, we're not gonna make any of our people vote on it because the public hates it.

What we're gonna do is to try to get in a back room with Joe Biden and the debt limit hand grenade and use the hand grenade to get him to agree to the stuff that the public hates, so we can hide behind him when we come out and announce what our deal is.

Which has a whole number of problems with it.

But for us, Dahlia and I who look at, you know, courts and constitution stuff all the time, that's not the way that the founding fathers set up the Constitution to have legislation work.

There's a reason it's by camera.

So two bodies get a good look, there's a reason there are committees so that you can have a good look.

There's a reason that bills have to be filed publicly.

There is a whole array of constitutional imperatives that are built into the legislative process being open and clear so that the public gets a look at what is going on, and you're not a country that's run by backroom deals that even if people are agreeing without a hand grenade, that's just not the way it's supposed to work.

So there's something fundamentally anti-constitutional about the way they're behaving in addition to being, at this point, let's just say not demonstratively competent yet.

(audience laughing) - Do we have time for one more question?

Okay, we have time for one more question.

- Okay, so the topic is rule of law, the state of the US federal judiciary.

I've heard one side, but only one side.

I've heard a lot of accusations lobbed against conservatives.

Wouldn't it have better served the community, and this question is also for the City Club leadership, to have included somebody on the other side that could defend what's been going on?

That's a question for you, because I think these forums should cover the entire topic, not just half.

Thank you.

- Well, I read the founding document of the City Center while I was waiting and it says that this is a place where different views get to be ventilated, and I understand that you've got Bill Barr coming.

I don't know that he's got a counterpoint to him, but I suspect he would have slightly different views than we do.

So I am actually pretty satisfied with the way the City Club has handled its distinguished history here.

(audience applauding) - Dahlia Lithwick and Senator Whitehouse, thank you so much for joining us today at the City Club of Cleveland.

Today's forum is part of our authors in conversation series.

In partnership with Cuyahoga Arts and Culture, the John P. Murphy Foundation and the Cuyahoga County Public Library.

The City Club is grateful for your continued support of authors and democracy.

We would also like to welcome guests at the tables hosted by the American Constitution Society, the Buckeye Institute, Cleveland State University College of Law, John Carroll, the Legal Aid Society of Cleveland, and Ulmer and Byrne.

Thank you all for being here today.

(audience applauding) Next week on April 5th, we will host a special City Club event featuring the United States Surgeon General, Dr. Vivic Murthy.

He will be here for a live recording of his podcast, House Calls, joined by author Dr. Lisa Damour in conversation about teenage mental health.

Then later in the evening on April 5th, we'll be back at the Happy Dog in Cleveland's Gordon Square District.

Stephen Love with the Cleveland Foundation will be joined by the Ohio Environmental Council, Cleveland Neighborhood Progress, Environmental Health Wash, and River Valley Organizing, to discuss environmental justice and lessons from the train derailment in East Palestine, Ohio.

Note that the City Club will be off next Friday, April 7th, as tens of thousands of Cleveland Guardian fans will descend upon downtown to celebrate opening day.

You can catch us again on Tuesday, April 11th when we will hear from our other champion, Ted Gin Junior, head coach of the Glenville High School football team.

You can learn more about these forms and others at cityclub.org.

And that brings us to the end of today's forum.

Thank you once again to Dahlia and Senator Whitehouse and thank you members and friends of the City Club.

I'm Cynthia Connolly, and this forum is now adjourned.

(audience applauding) - [Narrator] For information on upcoming speakers or for podcasts of the City Club, go to cityclub.org.

(futuristic music) Production and distribution of City Club forums on Idea Stream Public Media are made possible by, PNC and the United Black Fund of Greater Cleveland Incorporated.