Special: Analyzing SCOTUS season

Jun. 28, 2019 AT 10:13 p.m. EDT

After the Supreme Court finished its term this week, the panelists recapped some of the group's recent decisions and discussed Carl Hulse's new book, "Confirmation Bias: Inside Washington’s War Over the Supreme Court from Scalia’s Death to Justice Kavanaugh."

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Notice: Transcripts are machine and human generated and lightly edited for accuracy. They may contain errors.

ROBERT COSTA: Hello. I’m Robert Costa. And this is the Washington Week Extra. The Supreme Court wrapped up its term this week, issuing decisions on cases ranging from trademarks and profanity to a Census question on citizenship to partisan gerrymandering. The makeup of the bench plays an important role on how cases are decided, and a new book goes deep inside the confirmation process.

Joining me tonight, Carl Hulse, chief Washington correspondent for The New York Times and author of Confirmation Bias: Inside Washington’s War Over the Supreme Court from Scalia’s Death to Justice Kavanaugh ; Kimberly Atkins, senior Washington news correspondent for WBUR, Boston’s NPR station, and also an attorney; Susan Page, Washington bureau chief for USA Today ; and Dan Balz, chief correspondent for The Washington Post .

The Court saved some of the most controversial decisions to the end. In a 5-4 ruling Thursday on partisan gerrymandering, Chief Justice John Roberts wrote, “it is beyond the reach of federal courts,” so now state courts must handle cases that deal with partisan redistricting. The Trump administration had also planned to add a citizenship question to the 2020 Census, but Chief Justice Roberts rejected its reason for adding that question, writing it, quote, “appears to be contrived.”

Carl, your book, right here.

CARL HULSE: Thank you. Thank you, Bob. (Laughs.)

MR. COSTA: Congratulations on Confirmation Bias . Partisan gerrymandering, the Court is still going to – federal courts will still have an eye on racial gerrymandering and also to make sure districts are proportional – one person, one vote – but not partisan gerrymandering. What does that tell you as a reporter on politics and the courts?

MR. HULSE: About the courts. So the book just in some ways is about how one decision can have incredible ramifications. Mitch McConnell decides to block Obama on nominating someone when Justice Scalia dies, and it just rolls and rolls, helps elect Trump. But what it also did was lead to Donald Trump being able to appoint Brett Kavanaugh to replace Anthony Kennedy, who quit. Brett Kavanaugh was – Justice Kennedy didn’t want to get the Court out of this issue; Brett Kavanaugh was happy to do it. And I just think that this – you know, when people look at the Court now and they hold these decisions to the end because they now they’re very problematic, and they look at the Court and go, wow, that was quite a political decision there. Now, Justice – Chief Justice Roberts is a canny guy, right? He gets the politics of the Court. He’s worried about the image of the court, so he sort of maneuvers a decision on the Census question that’s so he kind of kicks that back so they didn’t have two really Republican-favorable decisions come out at one time. But I think the problem for the Court right now is that it’s at a dangerous point. People are starting to wonder if the Court can make an objective decision. And when you see these big headlines – Court allows, you know, partisan gerrymandering – I think that it’s going to be reflected in public confidence in the Court.

MR. COSTA: But what about partisan gerrymandering? We’ve seen it in places that are Republican states like North Carolina. We’ve also seen it in Democratic states like Maryland. Does it mean it just continues now in states like that – if you have a red legislature the districts are drawn by Republicans, if it’s a blue state districts drawn by Democrats?

KIMBERLY ATKINS: Yes, and to an extent that’s always been the way, right, to the victors go the spoils. If your party is in control of the statehouse, those are the things that you get to do. These cases involved really extreme partisan gerrymandering to a point that was – raised these constitutional questions. And to be sure, right now it’s mostly Republican districts across the country that are doing it because the – more statehouses are controlled by them and they’ve sort of forged that plan. But a lot of issues – you brought up racial gerrymandering, which is unconstitutional. If you do a Venn diagram of partisan and racial gerrymandering, they overlap a lot. And so one fear is that when racial gerrymandering claims are brought the lawmakers are just going to come back and say, oh, no, it’s not racial gerrymandering, it’s just partisan gerrymandering.

MR. COSTA: Many civil rights groups have expressed that thought –


MR. COSTA: – this week, that partisan gerrymandering really in effect could be racial gerrymandering. And you mentioned that Republicans control most of the state legislatures in this country. Does this decision – partisan gerrymandering – raise the stakes for 2020 for Democrats to try to come back in the states?

DAN BALZ: Absolutely. I mean, it raised the stakes in 2018 in the gubernatorial races, and Democrats were able to take back a number of state governorships that they had lost in 2010 and didn’t win back in 2014. In those states, particularly where governors have power over it, they now have a way to check a Republican legislature. But the Republicans at this point hold many, many more. So Republicans have been much more effective over the last 10 to 12 years in focusing on state legislative races, and Democrats are trying to get back in the game but they’ve been slow to do it.

SUSAN PAGE: You know, it’s not just a matter, though, of electing some more Republicans or Democrats; it skews our politics to have this level of gerrymandering because it – in both parties it means that the members being elected from a congressional district are more worried about somebody from the left challenging a Democrat, from the right challenging a Republican. It encourages extreme views, extreme partisan views. It penalizes candidates that might be in the middle of these districts, where they’re – where effectively you’re deciding who serves in Congress in the primary, not in the general election.

MR. BALZ: One aspect of this debate because of the controversy over partisan gerrymandering is that in a number of states and perhaps growing are moves to turn redistricting over to independent organizations, to take it out of the hands of politicians in order to make it more fair. That’s moved slowly, but there is some momentum behind that.

MR. HULSE: Yeah, people want to do that. You know, it’s funny, though, Mitch McConnell, who was so instrumental in all of this, you know, in blocking Merrick Garland and getting these justices confirmed, the day after he said this is pretty much exactly what I wanted. This is a strict constructionist interpretation of the law. The justices looked at that and said it’s in the Constitution, we should stay out of it. But by staying out of it they’ve really opened the door to this new extreme gerrymandering which is computer-driven, right? You’re going – you’re not just going, you know, street by street; you’re block by block, house by house. You really can tell what’s going on here. And they admit in their opinion that this is a threat to democracy, it skews democracy, but we’re just going to keep hands off.

MR. COSTA: What about the Census? Kim, you wrote this week about the Census decision that, quote, “Challengers argue the government wants to suppress the count of immigrants to diminish the strength of Democratic districts.” Several state attorney generals challenged the question in court. What do states have to lose in particular if noncitizens are not counted?

MS. ATKINS: A lot. Federal funding is based on the Census count. Congressional districts are decided by the Census count. And there is this concern that this was a purposeful plan. There was evidence that came out that backed that up. And in this case, I mean, I agree with you about the chief justice really being an institutionalist when it comes to the court. But in his opinion he basically said come on, guys, this doesn’t even pass the giggle test, that you set – you did this for the purpose of enforcing the Voting Rights Act? No. You have to go back and try again. I think that –

MR. HULSE: Come up with a better –

MS. ATKINS: Come up with a better reason. That was the – that was the compromise.

MR. HULSE: Do you think they could sort of get this on the Census?

MS. ATKINS: That’s the question. I mean, the government said that they needed to print these forms by the end of June, I have heard even before that there’s a couple of months to play with. It depends on how quickly the lower courts move to do this. But states are already pushing very hard to get these forms printed. It’s hard enough to administer them and there’s a real concern that already with all of the publicity around it there’s going to be a lot of suppression of participation in the Census because immigration is such a hot-button issue and immigrants are really nervous.

MR. HULSE: I mean, things are so partisan right now, do we really need more polarization? And that seems where it’s heading. The efforts are to make it even more strident. And, you know, it’s going to just contribute to the –

MR. BALZ: But the chief justice’s ruling on this still certainly leaves open the possibility that if they come back with something –

MR. COSTA: What do you mean by that?

MR. BALZ: I mean basically said what they presented with contrived, but they – but they have every right to make this decision.

MR. HULSE: It was a punt. And the White House – the president has said, you know, we’re going to try and get this on still. This issue isn’t over.

MR. BALZ: Yeah, no.

MS. PAGE: But if Justice Roberts is concerned about the integrity of the court and the respect that Americans traditionally have had for this – remember when that disputed election was decided by a divided Supreme Court in 2000 and Americans accepted it almost immediately? How can we have confirmation battles like this that are so pitched and so partisan for a justice and then expect Americans to think that someone who gets confirmed on the court for the rest of their life will suddenly not be a partisan figure?

MR. HULSE: Yeah. I think – well, I addressed this in my book. (Laughter.) But I think it’s a real problem because the Supreme Court relies on other government institutions to enforce its rulings and to go along with them. And it’s not just that, but, you know, the country demographically is going one way, the court seems to be going another way. You know, 20, 30 years from now, if there’s a big divide, I think that is a real problem and people may just say, you know, treat the court as irrelevant. Where does that leave us?

MR. COSTA: What do you make of some of the Democratic presidential candidates like Pete Buttigieg who say the court should be expanded? Is that a rising talking point, a rising suggestion on the left?

MS. ATKINS: No. And more candidates actually should be talking about the Supreme Court because the stakes are so high. You know, whatever you think about Mayor Buttigieg’s plan, at least he’s talking about it. I was really surprised at how little the issue of the Supreme Court came up during the debates.

MR. HULSE: Bernie Sanders talked about rotating –

MS. ATKINS: Bernie Sanders did answer, but de Blasio was asked a direct question about it and he started talking about something completely different. The Republicans have made the Supreme Court and the federal judiciary a cornerstone of their message and it’s worked. The Democrats have not found a way to do the same.

MR. COSTA: And it’s not only the –

MR. HULSE: You’re seeing groups, though, spring up, you know, Demand Justice, the Brian Fallon group. You’re seeing the Democrats trying to make a bigger effort, which, by the way, is now spurring more Republican groups to spring up to fight the effort.

And, you know, the court – I do think that – I agree with you that it wasn’t talked about as much in the debates as I had expected. But I do think during the campaign you’re going to see Democrats talk a lot more about the court than they have in the past.

MR. COSTA: When I was reading your book, Carl, I kept wondering why. Why are the Republicans so driven to really focus on the federal courts? Is it the issue of abortion?

MR. HULSE: I think it’s abortion.

MR. BALZ: Well, I think abortion is one of the issues, but I also think that in the view of Republicans the federal government is the real problem and that whether it’s president or Congress it is all about more power for the federal government. And in that way, they believe that that is against the basic principles of conservatism. You know, they’re a small-government party. And what they see is the government apparatus, other than the court, aligned against them.

MS. PAGE: You know, that’s true. But Roe v. Wade really spurred Republicans to take on the court as a fundamental issue and as a voting issue. And you know what could make Democrats feel that way? Overturning Roe v. Wade and that’s a possibility.

MR. HULSE: Roe v. Wade – if that – if that – you know, there’s a lot going on at the state level. If that got to the court at that point – but I make this point in the book, Bob. Gorsuch and Kavanaugh were put on the court by Don McGahn, the chief counsel of the White House, and other conservatives. They get them on abortion. But to deconstruct the administrative state, they want to –

MR. COSTA: Your book reveals that’s really why those two people were chosen.

MR. HULSE: That’s why they were there.

MR. COSTA: It wasn’t because they were – of their position on abortion. That was part of the checklist.

MR. HULSE: It’s about – yeah. It’s rolling back the agency power. There were a couple of decisions this week that came up to the edge, didn’t quite get there because of Justice Roberts again. But Justice Alito and others and Justice Gorsuch writing this is coming, so we’re going to make this change.

MS. ATKINS: Yeah, that’s absolutely right. I mean, it didn’t get any – talking about administrative law doesn’t get headlines. Nobody knows what “our deference” means. But there are crucial, crucial issues when it comes to this issue. It’s a big issue that Republicans are pushing.

MR. COSTA: That’s it for this edition of The Washington Week Extra. You can listen wherever you get your podcasts or watch on our Washington Week website. While you’re online, check out the Washington Week -ly News Quiz.

I’m Robert Costa, thanks for joining us. See you next time.


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