Dahlia Lithwick breaks down the justices’ personalities, Scalia’s death, and the Supreme Court’s 2015 term on Amicus.

Has the High Court Changed Now With the Loss of a Justice? Dahlia Lithwick Reviews Last Year’s Term.

Has the High Court Changed Now With the Loss of a Justice? Dahlia Lithwick Reviews Last Year’s Term.

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May 25 2016 3:42 PM
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A Stroll Down Supreme Court Memory Lane

Amicus dishes on the quirks and characters of the Supreme Court.

Chief Justice of the Supreme Court John Roberts Jr. leaves the Inaugural Luncheon in Statuary Hall on Inauguration day at the U.S. Capitol building January 21, 2013 in Washington D.C.  U.S. President Barack Obama was ceremonially sworn in for his second term today.
Chief Justice of the Supreme Court John Roberts at the U.S. Capitol building in Washington D.C.,Jan. 21, 2013.

Photo illustration by Sofya Levina. Image by Allison Shelley/Getty Images.

We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 44, in which Slate’s Dahlia Lithwick looks back on the Supreme Court’s 2015 term.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

The death of Justice Antonin Scalia came as a shock to the American public and an even bigger shock to the Supreme Court. How has the rapport of the highest court in the U.S. changed after the loss of its most iconic conservative? Are the other justices stepping in to fill the void? And what exactly are those justices like, anyway?

Amicus sits down with the National Law Journal’s Tony Mauro to look back on the court over the years and the idiosyncrasies of its justices. And Dahlia talks with Politico’s Josh Gerstein about the developments—and lack thereof—of SCOTUS nominee Merrick Garland.

To learn more about Amicus, click here.

Dahlia Lithwick: Welcome to Amicus, Slate’s podcast about the doings at the U.S. Supreme Court. I am Dahlia Lithwick and I cover the high court for Slate. As we noted in our last episode, the end of April marked the very last oral arguments in the 2015 term. We’re still waiting for some of the term’s biggest decisions to come down, and in the meantime Supreme Court nominee Merrick Garland has been waiting, waiting, waiting for hearings that do not happen.

But he’s been making the rounds on Capitol Hill and making nice with Republican senators who proceed to say that, with all due respect, there will be no hearings. Later on in the show, we’ll look at the latest in the nonstory of Merrick Garland’s nonconfirmation. But, first, as you know, the subversive conceit of this podcast has always been to put the sounds of One First Street right into your earbuds because, well, let’s be honest, for most of you the alternative is either downloading arguments from the court website, or standing in line for hours in the rain if you want to hear what happens up in the marble hall of justice.

So, this week, as we wait for opinions to come down, we thought we’d air a little tribute to the sounds of the 2015 term—the cool jazz of One First Street. Audio moments you may have missed. And to do that we’ve brought in one my most favorite colleagues from the Supreme Court press corps, Tony Mauro, who covers the Supreme Court for the National Law Journal and Legal Times and has been on this beat for 37 years.

Tony has written two books about the court. He serves on the steering committee of the Reporter’s Committee for Freedom of the Press. And together with another one of our colleagues on the beat, Marcia Coyle, Tony wrote a great article last week summing up some of the great moments in oral arguments this term and so we’ve asked him to sit and listen and kibitz. So, Tony Mauro, welcome to Amicus.

Tony Mauro: Oh, it’s great to be with you, Dahlia.

Lithwick: So, Tony, the very first thing I want to play for you is audio of the last question Justice Antonin Scalia asked at an oral argument before his really sudden and surprising death on Feb. 13 of this year.

The case was argued Jan. 20 and raised questions about whether the National Park Service could regulate the use of a hovercraft in the Yukon Charlie Rivers National Preserve. Yes, everything I just said is true. So, let’s listen for a minute to Justice Antonin Scalia.

Justice Antonin Scalia: 100-751 is a general statute. It applies everywhere right? And 3103, section 103, is specific to Alaska, isn’t it?
Female Voice: Yes.
Justice Antonin Scalia: Isn’t there a general rule that the specific governs the general?
Female Voice: Yes. And I think then—
Justice Antonin Scalia: Well, this general provision is limited by what the congress has said about Alaska. And that sentence says only those lands within the boundaries of any CSU, which are public lands, shall be deemed to be included as a portion of such unit.
Female Voice: Yes.
Justice Antonin Scalia: And, if you read that…

Lithwick: So, first of all, Tony, I don’t know if you get a little goosebump-y just listening to Scalia’s voice again. But I do. Thoughts about the death of Justice Scalia? About what it’s meant for oral argument in the rest of the term? The legacy that he left in terms of how oral argument goes down?

Mauro: Well, that bit of tape doesn’t necessarily display it all, because it was a fairly dry argument, but he had an enormous impact over oral argument. I mean, he was bombastic. He was rude. He was controlling. I remember once he dressed down a lawyer who was reading from his opening statement. You’re not supposed to read. I remember another time when he asked a question and the lawyer paused a little too long and Scalia said to this lawyer, “Counselor, you have four choices. Yes, no, I don’t know, or I’m not telling. Which one is it?” At which point I would have fainted, I think.

But he was so full of bluster that very often, many times I would come out of the oral argument and think, wow, the court is definitely going to go this way in this case. And then I’d look at my notes and I’d realize only Justice Scalia was talking that way. But he so colored the entire argument that you came away thinking that he had turned the tide, when he didn’t always do that.

But sometimes controlling the conversation can control the doctrine. I mean, lawyers quickly learned that they shouldn’t talk about legislative history as a justification for a certain interpretation of a law, because if they did Scalia would laugh them out of town. So they stopped making that argument. And over time it had influence over decisions as well.

Lithwick: Tony, do you see a difference in oral arguments now that Justice Scalia’s seat is vacant at the high court?

Mauro: Oh, yeah, it really has changed the dynamics. It’s a little bit hard to put your finger on it, but it just isn’t the same. Some of the other justices seem to be kind of jumping in to fill the void. But nobody asks questions like Scalia. I mean, he loved the thrust and parry of an oral argument. Sometimes I think he thought the argument was more important than winning, because he really wanted to sort of show off his inquisitorial skills, and he wanted to put the lawyers off balance. It was quite a spectacle.

Lithwick: Well, speaking of spectacles, it’s a nice segue to our next audio clip, because probably the most famous words that Justice Scalia spoke in this term happened in Fisher v. University of Texas. That was a challenge to that state’s Affirmative Action program. And listeners probably recall—and you were there, and I was there—people actually gasped in the courtroom when Justice Scalia started pressing on this question of whether it in fact hurts minority students to put them in first tier schools. Let’s listen:

Justice Antonin Scalia: There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a slower track school, where they do well.
One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them. You know, I’m just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer. You know, when you take the number of blacks, really competent blacks admitted to lesser schools, turns out to be less. And I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible. I just don’t think…

Lithwick: Tony, people did gasp when he said that. And the Twittersphere exploded in outrage. Is it fair to characterize Justice Scalia as saying there that minorities shouldn’t go to schools like UT? That they should go to lesser schools where they might succeed? Is that what he was saying?

Mauro: Not exactly. Although it certainly came across that way, and I think that’s the way I would fault him for having said it that way, because he’s such a wordsmith and the way he articulated this argument was so heavy-handed and so susceptible to being interpreted as almost racist, or maybe not just almost, that it was remarkable that he said it that way. But in his defense, or partly in his defense, he didn’t just make it up.

You know, there were these briefs that have articulated the so-called mismatch theory. That it doesn’t do minority students any good to be placed in a school where they can’t succeed because of their history of inferior education at lower levels. So, there were briefs that purport to make that case empirically. There were also briefs on the other side, so I just think it was something that really distracted the whole argument. And I doubt that you’re going to see that in the actual decision.

Lithwick: Do you think that it’s fair, Tony, to say that sometimes Justice Scalia did deliberately pick the most artless, the most provocative language in order to kind of play out this enfant terrible, you know, “I’m just a badass,” justice?  I mean, as you say, he was such a profoundly gifted speaker that when he chose to say things in that kind of provocative way, did it feel deliberate to you?

Mauro: I think it had to be. Because I don’t think he would say things without deliberation. And I think it is, as I said, he sort of was the happy warrior. He would like to really stir the pot, and to provoke controversy. And maybe he wanted to destabilize the lawyer, Greg Garre, who was arguing. And he kept interrupting Garre. Or Garre interpreted him. And Scalia wouldn’t let him talk during that exchange. But, yeah, he was definitely the bad boy of oral arguments.

Lithwick: So I want to turn now to another audio clip. This one, there really only were a handful of us in the chamber when it was actually going down, and that was really only a few days after Justice Scalia passed. His chair was draped in black crepe. The whole place was grieving. And suddenly we heard in Voisine v. United States a challenge to a federal ban on firearm possession—a sound we had not heard in oral argument for ten years. Let’s listen:

Female Voice: If there are no further questions…
Justice Clarence Thomas: One question. Can you give me—this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a Constitutional right?
Female Voice: Your honor, I…

Lithwick: So that is, for people who don’t recognize a sound they haven’t heard in 10 years, Clarence Thomas. That’s Justice Clarence Thomas actually asking a question for the first time in 10 years.

Tony, what do you think was animating Clarence Thomas’s decision to just jump in and ask a question after really studiously and stubbornly preserving silence in the face of really terrific criticism over a decade. What makes him say, you know, I think I’m going to talk today?

Mauro: It really was a shock. I happened to be in the courtroom then and people literally looked up like some stranger from another planet had interrupted the arguments. And as you said, it was right after Justice Scalia died, so it was sort of hard to not think that it was Justice Thomas was channeling Justice Scalia, or trying to fill the void. And they were questions that I could imagine Justice Scalia asking. But the other thing as you could hear in the argument, the lawyer was just about to sit down before Justice Thomas asked the question. And he may have felt that, well, you know, this argument is running short, so I’ll fill the time with a question.

He’s always said that he comes to the court with questions in mind, but if other justices ask them instead, he’ll keep his mouth shut. Well, he kept his mouth shut for 10 years and for some reason he thought this was the time.

Lithwick: And you can probably also hear a little bit in that clip that we just played, you know, this is a government lawyer who was wrapping up almost 10 minutes early. The bench was very quiet. She was kind of picking up her papers and going home. And you can hear a little bit in her voice that sensed that she’d been hit by a two-by-four. You know, I think she may have muted that 200 times, and at no point did anyone say, “Hey, what if Clarence Thomas interrupts,” you know? She just looked completely taken aback.

And I think we may have to wait another 10 years till he asks a question, but it was a remarkable piece of timing that he sort of leapt into the fray to ask a question in a Second Amendment that I think you’re quite right—what he was hearing was the absence of that question that would have come from Justice Scalia.

Mauro: Yeah. I think so. And it was also a case where the Second Amendment issue really wasn’t in the case, but so he took a total detour. And I think that threw the lawyer off as well.

Lithwick: So, Tony, I want to play something else that is maybe a little bit unfamiliar and that is some of the audio from the big abortion case, also from Texas. This is Hellerstedt. And this is the audio of an oral argument in which I think for the first time in my career covering the court the women justices were just on a rampage. So, let’s listen to a little bit of audio from that oral argument, and then we can react:

Justice Sonia Sotomayor: I’m not talking about the doctrine. I’m talking about the question I asked which is, according to you, the slightest health improvement is enough to impose on hundreds of thousands of women. Even assuming I accept your argument, which I don’t necessarily, because it’s being challenged, but the slightest benefit is enough to burden the lives of a million women. That’s your point?
Male Voice: And what Casey said is the substantial obstacle test examines access to abortion. Now, if a law had no health benefits, presumably it would be irrational. But even their expert, and this is a JA 256 and 258, acknowledged that some doctors do believe that there are benefits for the ASC and admitting privileges—
Justice Ruth Bader Ginsberg: What is the benefit of the medical— the two pills that you take? What is the benefit of having an ambulatory surgical center to take two pills when there is no surgical procedure at all involved?
Male Voice: Two responses, Justice Ginsberg…

Lithwick: So that’s Sonia Sotomayor and Ruth Bader Ginsberg beating up on Scott Keller, Solicitor General from the State of Texas. And, Tony, is it fair to say that the women justices in that abortion case just were completely off the hook dominating argument, at least with respect to pressing on Texas’s claims that their admitting privileges and ambulatory care centers were somehow necessary to women’s health. These women justices were pretty bonkers. Was it different watching three women justices in a major abortion case for the first time?

Mauro: Oh, absolutely. Although this is kind of a delicate issue for me, because when Justice Ginsberg joined the court 20 plus years ago, I wrote about how she and Justice O’Connor would ask questions in tandem sometimes, and sometimes they’d interrupt each other. And for years after that, Justice Ginsberg went around talking this sexist reporter, namely me. And I, of course, I didn’t mean it that way. But since you raised it, I can say it. And I think it’s true. I mean, it’s not a case of stereotyping women as Chatting Cathies or anything like that, but it was absolutely true that in cases like this abortion case, and also to a degree in the other case.

Lithwick: In Zubik.

Mauro: Yes, the contraceptive mandate case. It was like a one-two-three punch with Ginsberg, followed by Sotomayor, followed by Kagan. And then, you know, an assist from Justice Breyer here and there.

But it was really the women who took the lead. I don’t think it was coordinated. I don’t think they sort of huddled before the argument and said, here, I’ll ask this and then you ask that. It’s just spontaneous. And I think it’s understandable. And it’s a valuable thing. We all want justices with different backgrounds. And the three women bring to it, you know, experience and perspective that the clueless men on the court don’t have.  

Lithwick: And it is interesting. I mean, I can recall abortion cases—I haven’t been covering the court as long as you, but I think, you know, when I think back to cases where Ginsberg was the only woman, or O’Connor was the only woman, there is something pretty profound in having three voices instead of one. Even if the same point is being made, it’s sort of this hyper stereophonic, woofer-tweeter, I don’t know what all. But it’s really different when there’s more than one voice, I think.

Mauro: Absolutely. And especially when they’re kind of arrayed across the bench. They’re not all bunched together. So the lawyers have to kind of look left, right, and center, and they’re seeing women. And it’s a terrific thing. I just wish the American public could see it, too, because it’s remarkable. And it’s about time.

Lithwick: Yeah. And it’s historic. So, this brings us, big sigh, to Justice Stephen Breyer who asks extremely long questions. You and Marcia Coyle wrote in your piece last week that Breyer uttered nearly 60,000 words in this term’s oral arguments, and that’s compared to the next highest speaker, 43,000 words spoken by Elena Kagan. 60,000 words.

Tony, what is up with Stephen Breyer? Is he just a talker? What’s going on?

Mauro: Sometimes I think—you know, he used to be on the staff of the United States Senate—and I think he’s filibustering. But I think it’s just his penchant for hypotheticals. You know, if you’re making this argument, does that carry for this odd situation that might be down the road? Hypotheticals are useful. But he just sort of goes on and on and just is impossible to follow very often. And he knows he does this, but he just can’t help himself.

Lithwick: So, let’s listen to one of his incredibly lengthy hypotheticals. This one is from the public corruption case, McDonnel v. United States, argued on April 27 at the court. I think it sounds to me as though this question itself contains 60,000 words. But let’s just have a listen:

Justice Stephen Breyer: It’s not a campaign contribution. What it is is, is he takes him to lunch. And an expensive lunch at that. OK? Because the quid side is not limited. The government has argued continuously that in for a penny, in for a pound. OK? So we don’t have the limitation on the quid side. We have a possible limitation frame of mind in that we’re looking to the quo side. And you want to remove any limitation there. OK?
Now, why do I think that’s a problem? Two very fundamental reasons: that’s a general vagueness problem, and the second is I’d call it a separation of powers problem, where the Department of Justice and the executive branch becomes the ultimate arbiter of how public officials are behaving in the United States. Particularly when the quid is a lunch, or a baseball ticket, throughout this country. Now, suddenly, to give that kind of power to a criminal prosecutor, who is virtually uncontrollable, is dangerous in the separation of powers. So as I said, in my mind, this is a very basic separation of powers problem for me.
I’d appreciate your help on what the right words are. And I’ll tell you right now, if those words are going to say when a person has lunch, and then writes over the [crosstalk] will help with what I see as naughty and complicated and basic a problem as I can think of.
Male Voice: Justice Breyer, let me first argue the position…

Lithwick: So, Tony, what was the question there? I feel like you look at these oral advocates and they have this look on their face like, “How am I meant to answer this, Justice Breyer? This is a 14-part question with three footnotes.”

Mauro: You could feel for that lawyer who saw his 30 minutes ticking away as Justice Breyer took up his time. It was just incredible.

The question I guess was if a government employee goes out to lunch with somebody, and then asks another government employee to take a meeting with that person, is that a felony? That is what the issue was in this case. So, it was rambling and it was ridiculously long, but I think Justice Breyer ultimately was making a pretty powerful point. And in that sense, I think he dominated the argument. And I think the points he was making, we’ll probably see them in a decision whether it’s by him or someone else.

Lithwick: I want to turn now to Chief Justice John Roberts, because I think maybe a lot of Amicus listeners don’t know how funny he is. He is one of the really quickest wits on the bench. And he doesn’t always get credit for it. Here’s a little snippet of audio that you and Marcia Coyle picked up on your piece. This is from oral argument on March 1 of this year. Arguments were in Nichols v. United States. This involved the registration of sex offenders who’d moved abroad. And suddenly the lights in the chamber flicker and they go out. And here’s the Chief Justice:

Chief Justice John Roberts: I knew we should have paid that bill.

Lithwick: So, Tony, that was a classic, right, John Roberts doesn’t plan for those. I’m assuming he didn’t say, “Somebody cut the lights so I can get a joke in.” But he is really, I mean, this is not by any means the first time we’ve heard him just land a hilariously funny line with one second to prepare, right?

Mauro: Oh, absolutely. He does have a knack. I think when he said that, he probably calmed the nerves of the audience, because you know, you’re in the Supreme Court and suddenly the lights go out. I bet the police were panicking, too.

But he just disarmed everybody by saying, “We should have paid the light bill.” He did that the first months of his tenure, 10 years ago now, or more than 10 years ago, when one of the light bulbs in the Supreme Court chamber suddenly exploded. And there was little bits of glass floating down on the heads of the justices. And the police, you know, moved to the front of the court as if there was some terrorist attack coming. And he just said, “Oh, this is the joke that people play on the new Chief Justice.” And so that, too, disarmed the audience. But he is funny.

When he was advocate before the Supreme Court, and we all, members of the press corps knew him then as John Roberts, not the Chief, he once argued a case where he lost unanimously. And someone asked him once, “Why did you lose nine-to-nothing?” And he said, “Well, there were only nine justices,” implying that if there were more than nine he would have lost the tenth and the eleventh. So, he does have good humor, although he also can be a pretty tough questioner.

Lithwick: Tony Mauro covers the Supreme Court for the National Law Journal and Legal Times. He has been on this beat for almost 40 years. He’s written two books about the Supreme Court. And I would say as a reader that he has done more to bring the court to life and humanize it than pretty much anyone else on this beat. Tony Mauro, thank you so very much for joining us today on Amicus.

Mauro: Oh, I really enjoyed it. Thank you.

Lithwick: Joining us now, just to gossip about Supreme Court vacancies and such is Josh Gerstein. He is the senior White House correspondent with Politico. And he specializes in legal and national security issues. Josh, welcome to Amicus.

Josh Gerstein: Hey, Dahlia. Great to be with you.

Lithwick: Now, you have done that which is almost impossible in this media climate, which is you’ve written a lot about the Merrick Garland nomination, even though nothing has in fact happened for two months. Is that correct?

Gerstein: Well, I don’t know, I think some things have happened. But if you mean has the ball actually moved down the field, probably not. I guess I could make one argument that it had moved a little bit, perhaps, when -

Lithwick: Make that argument, Josh. Go.

Gerstein: Well, I think when Donald Trump won the Republican nomination, that was probably something that gave a little bit of a push to Garland’s effort to get on the court. And probably makes it more likely that after, say, the election, it’s possible that we might see a move towards putting Garland on the court. But I think most of the other stuff that’s gone on has been window dressing. I mean, the funny part is I feel it’s gone about as well as the White House could have expected. They’ve really won a lot of these mini battles. And it seems to me pretty clear that they’re going to lose the war, at least if we’re timing it out through the election.

Lithwick: Can you talk just for a brief moment about how Donald Trump clinching the Republican nomination changed the calculus last week, how things shifted slightly, and if it really matters?

Gerstein: Well, I think it crystallized in the minds of some conservatives their concern about Donald Trump and they felt that someone like Garland, who is not a way out liberal by any stretch of the imagination, and is I think most people would describe him as a moderate, might be better than whatever kind of pick Trump might put on the court.

The flip side to that is I think a lot of folks calculating that Trump clinching the nomination means essentially that Republicans are going to lose the election in November. And that the country would then be facing the possibility of a Hillary Clinton nominee. There is conventional wisdom or analysis out there that Clinton might pick someone more liberal than Garland, more of what some folks might see as an activist judge, or somebody with a clearer record on the liberal side of the equation. I think those fears are kind of misplaced. Garland is very, very well wired in with Hillary Clinton’s camp. I think part of his calculus in accepting this nomination of the Supreme Court in fact is that should there come a time when a the Obama White House asks Hillary Clinton, after she’s won the election in November, whether she wants them to withdraw the nomination of Garland, I think his calculation is that he has enough purchase with Hillary and Hillary’s people that she won’t withdraw it. And she’ll decide that they should go forward with it.

I actually think there’s a strong chance that Merrick Garland could be confirmed to the Supreme Court this November after the election, perhaps without even a hearing. Maybe just sort of by maybe not acclimation, but a relatively expedited process.

Lithwick: Well, let’s push back on two things you said. One is that there was a little bit of panic when Trump became the presumptive nominee, because everybody is saying that, I think I said it, but other than sort of one piece in red state that said, “Ah, let’s have Garland’s nomination hearings right now,” it really hasn’t changed much. In fact, it feels like, you know, Rick Perry, people who you might have expected to draw a line in the sand and say, “Uh, maybe we’ll go with Garland because it’s better than Hillary’s pick,” everybody seems to be falling in behind the Mitch McConnell line and saying, “No, this blockade remains firm.” There wasn’t real movement after Trump, although I think it felt like there should be. Is that fair?

Gerstein: I don’t think there was real movement in the sense that I don’t think there’s a great incentive for a lot of people to immediately step up and say, “Let’s cave on the Merrick Garland nomination right now.” If you’re in politics, you’re going to try to take a read of the situation. And I continue to believe that there’s probably a decent size camp in the Republican ranks who may get greater clarity of thought on this when the election comes around.

I think you’re right, the notion of like rushing through a confirmation of Garland at this point, there’s no indication that that’s going to happen, but the red state outing was immediately denounced by various people on Red State and others.

Lithwick: Now, the other thing you said that was interesting, Josh, is you say that the White House has actually won a fair amount of skirmishes. And I think by that you’re saying, you know, a lot of Republican Senators who refused to meet with him at all are now grudgingly meeting with him and I guess talking about the artwork on the walls of their offices. And, you know, the weather. It doesn’t seem like these are substantive meetings and it doesn’t seem like it’s moving the needle at all.

But are there other ways in which the White House has won any ground on this?

Gerstein: Well, I think you’ve seen some degree of movement since the beginning in the republican line, not only with meetings, but you had a few senators say they would like this to go to a vote, or they would like him to get a hearing. A few Republican Senators, I mean. And it happened fairly quickly after the nomination was announced.

You also had a bunch of people coming out and in particular trying to put pressure on Chuck Grassley, the head of the Senator Judiciary Committee, who I think we should say it’s never been totally clear how enthusiastic he is about this particular gambit. It does seem like it’s much more something of McConnell’s creation than Grassley’s, but he’s definitely gone along with it and defended it every time he’s been challenged on it.

But in terms of incidents where at events Grassley was challenged or local activists have come out after him, you know, I think it has gone about as well as the White House could have hoped within sort of reasonable expectations. You know, they’ve said they thought things would just tick along in the normal process. And I think a lot of us thought that they were insane. And I still think that’s insane. But, I do think that there have been a few instances such as the Trump victory that kind of pushed things their direction, but it hasn’t been enough to change the overall dynamic.

Lithwick: Josh, do you want to talk a little bit about the war of the polling? Because, you know, a lot of Merrick Garland supporting groups are releasing polls saying, “Oh, Kelly Ayotte is in trouble. Ron Johnson is in trouble. Even Chuck Grassley is in trouble.” You know, this is going to flip the Senate because this is intransigence and moderate republicans hate it. And a lot of polling on the other side, the anti-Garland side saying nobody cares. And that you would have to sit down and patiently explain to voters for 25 minutes who Merrick Garland even is before you could persuade them that this is a voting issue.

What does that tell you? I mean, first of all, do these polls matter? Is the Senate really up for grabs over this? Or is this just messaging that is further clouding an already murky issue?

Gerstein: Well, I think part of the polls are designed to contribute to the rhythm that you alluded to when you said there’s no news on this. The White House has made a deliberate effort to sort of have things happen almost every day on this. We get either a poll, or a report from some interest group saying how great Merrick Garland’s record is.

So, it’s part of the pitter-patter of trying to keep this moving forward and keep some semblance of a possibility he’s going to get a hearing, so it doesn’t completely die out. My personal take on the polling is that both of those things are true if you just ask people do you want the Senate to sit on this nomination and not act on it, most people are going to say, no, I think there should be a hearing and a vote. It does contribute to perceptions about the Republicans of inaction.

But I’d say I probably agree more with the conservative take on public opinion here, which is as you know most people can’t identify who Merrick Garland is probably and say what’s going on with the Supreme Court more generally. And when I try to think about in my head about a voter who couldn’t be bothered to go to the polls because they don’t see a significant policy difference between say Ted Cruz and Hillary Clinton, or say Donald Trump and Hillary Clinton, but you inject the possibility of a ninth Supreme Court Justice into the mix and they’re going to rush down to their local polling place.

I just don’t find that plausible. I don’t know who that person is. I’d like to meet somebody like that. And learn a little bit more about how they go about their daily life, because it just doesn’t seem like any people I run into in the very elite quarters of which I move.

Lithwick: Some underground Merrick Garland groupie in Wisconsin, maybe. Somebody who really lies awake at night worrying about this. But, yeah, no, I think that guy is probably singularly alone. And I agree. One of the things that’s really hard in writing about this is trying to say, you know, this matters. It matters. It matters to the court.

The court is behaving weird because this four-four thing is freaking them out. And they haven’t taken any cases for next year. And I think the general response to that is, OK, sorry about your court. Let’s close with this question, because I think you made this point early, which is the White House is getting pretty much as good as it can out of this. You know, they’re trying to keep it in the spotlight.

People don’t much care. Garland is going on, doing whatever it is that he does. Is there a way that the White House in your view could have played this better or differently to make this something that folks would have cared about? Or is this as you suggest, just too arcane, too wonky, too inside baseball? This was never really going to be a fight. And that pretty much the day that Justice Scalia died, when GOP leadership announced there would be no hearings, this was over?

Gerstein: I think that it’s very hard to see how the White House could have moved Mitch McConnell off of this strategy, if he’s really committed to it. That said, there’s always more the White House could have done. I mean, you know, the President could be out there more talking about the need for this.

He’s done a few events. He went to the University of Chicago and spoke to law students there. You know, you also need to remember that he isn’t always the greatest messenger on these things because he did filibuster Sam Alito or vote against cloture on Sam Alito, however you want to phrase it. And so he’s had to do his own—the President has had to do his own mea culpa and say that he contributed to this long war between Republicans and Democrats over judicial nominees in a way that now he feels regrets about.

But about which he didn’t mention any regret at the time. So, I think there are things they could have done to garner even more attention. Whether they would have succeeded in moving Republicans or Republican leadership in particular, I’m dubious.

And also, you got to remember to go back to the Trump issue, Trump has been like a burning bush out there that the media could not help but cover for the last few months, and the notion that you were going to get them to pay protracted sustained attention to the Supreme Court nomination issue with the distraction of repeated pileups on the highway that they cover that has been the Trump campaign and the rest of the Republican field, it may have just been a bridge too far for the White House under these circumstances.

Lithwick: I like the biblical illusion. It is. A burning bush that somehow never gets consumed.

Josh Gerstein is the senior White House correspondent for Politico. He specializes in legal and national security issues. Josh, thank you so much for joining us this week.

Gerstein: My pleasure, Dahlia. Take care.

Lithwick: And that’s going to do it for this episode of Amicus. As always, we’re eager to hear what you thought of the show and ideas for future shows. Our email is Amicus@Slate.com. And we love your letters. Keep them coming. We also love your reviews of Amicus in the iTunes store. You’ve heard us say this before, but we will say it again, those reviews are a really great way to help other folks find out about our show. Just search for Amicus in the iTunes Store and click the ratings and reviews tab. And thank you.

And as we wait for the term’s remaining decisions to come down, you can catch up on any Amicus episodes from this term that you might have missed. You’ll find them all at Slate.com/Amicus. If you’re a Slate Plus member, you’ll also find transcripts there. And if you’re not, you can sign up for a free trial membership at Slate.com/AmicusPlus.

Thank you as always to the Virginia Foundation for the Humanities, where our show is taped. Our producer is Tony Field. Steve Lickteig is our executive producer. Panoply’s chief content officer is Andy Bowers. Amicus is part of the Panoply Network. Check out our entire roster of podcasts at iTunes.com/Panoply. I am Dahlia Lithwick and we will be back with you in a couple of weeks with another edition of Amicus.