Ep. 2 - Why SCOTUS is Climate Action’s Biggest Threat with Elie Mystal

Ep 2 - Why SCOTUS is Climate Action’s Biggest Threat with Elie Mystal

Shilpi Chhotray [00:00:04] This is A People's Climate, powered by Wildseeds Fund, from Counterstream Media and The Nation. I'm your host, Shilpi Chhotray. 

CLIP [00:00:15] The Supreme Court has made an extraordinary mess of our democracy. 

CLIP [00:00:19] The Supreme Court has now swept aside longstanding legal precedent in its ruling today overturning that Chevron doctrine. 

CLIP [00:00:27] Liberal Justice Elena Kagan slammed the decision, writing in the dissent, 'whatever else this court may know about, it does not have a clue about how to address climate change.'

CLIP [00:00:39] Just one in four Americans say they have a great deal, or quite a lot of confidence in the nation's highest bench. That's the lowest the number has been in the nearly 50 year history of the survey. 

CLIP [00:00:52] Speaking at Yale this week, Justice Katanji Brown-Jackson slamming the conservative justices, claiming they've used emergency orders to benefit the Trump administration. 

CLIP [00:01:02] The court's stay decisions can, at times, come across utterly irrational. And ultimately, the justices need to return to acting like the final court of review that the Supreme Court holds itself out to be. This is not a novel concept. Our predecessors called it judicial restraint. We don't hear about that much anymore. I think it's time to bring it back. 

Shilpi Chhotray [00:01:44] There's a familiar voice joining us today on A People's Climate. If you follow The Nation, you probably know exactly who's about to join us. From New York, it's Elie Mystal, justice correspondent for the nation whose razor sharp analysis helps us make sense of the law, politics and the forces shaping this moment. We don't usually start an episode by talking about the Supreme Court, but maybe we should. Because the biggest climate decisions of our time aren't being decided by the public, by state representatives, or even in Congress. It's actually in the hands of a few unelected judges. Today, we're exploring why the future of climate action depends heavily on the role of the Supreme Court. Welcome, Elie, it's great to have you here. 

Elie Mystal [00:02:32] Thanks so much for having me, Shilpi. How are you? 

Shilpi Chhotray [00:02:34] I'm doing good, I'm doing good. I'm really happy to see you. So let's start fairly broad. You know, this is a climate justice show and our listeners fundamentally understand how environmental harm is caused by corporations and politicians, but we often don't name the courts, especially the Supreme Court. 

Elie Mystal [00:02:54] Yeah, so when we think about climate justice, we have to think about the courts and especially the Supreme Court because everything you want in those priorities, everything you're talking about when you're taking about climate Justice or climate legislation or climate reform, all of that can be stopped by the Supreme Court. And in fact, most of it has been stopped by the Supreme Court. See, the way that our system is set up, the Supreme Court essentially gets a veto on the other two elected branches of government. So you can pass your big, beautiful legislation, whatever you think is gonna save the world and help everybody. The president can sign that legislation, and then the Supreme Court, by a vote of five to four, can say, 'nah, I don't think so. Nah, I don't like it. Nah, actually fossil fuels are my friends.' And kill whatever it is you passed. So if you don't control the Supreme Court, if you don't activate around the Supreme Court, then you're not really doing anything. Because the legislation, while necessary, can be stopped in its tracks by the justices. 

Shilpi Chhotray [00:04:04] Let's talk about what this current Supreme Court looks like. We've got a six to three conservative-aligned majority that's led by Chief Justice John Roberts, your best friend. And so I'd love to hear, you know, what are some important things we need to understand about Roberts? 

Elie Mystal [00:04:21] All six conservative justices come to climate antithety through different means. They all have different reasons for getting to the idea that they want coal to win, right? It has already been said that the Roberts Court is the most pro-big business court in American history by a long way. So basically any time that you have a large corporation coming to the court wanting to make more money, wanting to make better profit margins, the Roberts Court has their back. And that is especially true of Roberts and Barrett, and Kavanaugh to an extent. Clarence Thomas and Sam Alito, they come to their awful positions from kind of a more pure evil conservatism, if you will. They're in it for the suffering. They don't believe in the concepts of things like equal justice, things like fairness, things of that nature. And so being against climate reform is very easy for them. Not only do they also believe in all of the pro-business things that the Roberts branch does, but they also kind of just straight up don't like you. 

Shilpi Chhotray [00:05:32] Yeah, and that's why we're seeing all of this evil manifesting across the country through the immigration, the racial profiling, and then of course, you know, dismantling Voting Rights Act. 

Elie Mystal [00:05:42] Right, and then I don't want to forget, I never want to leave out in this discussion Neil Gorsuch. Neil Gorsuch's mom was the former head of the EPA during the Reagan administration. And Neil Gorsuch's mom's remit at the EPA was to destroy it from the inside out. The Gorsuch family has been crusading against the EPA for two generations now. In some of these cases we're going to talk about, they let Gorsuch write these opinions. So it's like they let Gorsuch in so many ways finish his mother's job. 

Shilpi Chhotray [00:06:20] That's really shocking. I actually had no idea about that family history. I want to ask aside from the court being so conservative and so pro-business, what makes this Roberts Court distinct compared to earlier courts? 

Elie Mystal [00:06:33] Pragmatism. I always like to start the clock in 1992, because in 1992 Republicans thought that they had the perfect case to kill abortion rights, right? It was called Planned Parenthood v. Casey It was a frontal challenge to Roe v. Wade and we think that the current court is bad because it's six to three Republican to Democrat -- that court in 1992 was eight to one Republican to Democrat. Eight of the justices were appointed by Republican presidents. So they thought they had this done. And of course they didn't. It did not facially overturn Roe v. Wade. And the reason why, the reason stated by Republican Justice Sandra Day O'Connor, and Republican Justice Anthony Kennedy, and Republican Appointed Justice David Souter -- the reason they said they would not overturn Roe V. Wade was pragmatism. Sandra Day O'Connor famously says. People will get abortions, whether the government allows them or not. And so when you think about the practical effects of the Supreme Court's rulings, they were trying to align their legal decisions with the practical realities on the ground and they were doing that as Republicans, as conservatives. Fast forward to where we are now, fast forward to 2022 in Dobbs v. Jackson Women's Health when they did overturn Roe v. Wade. And what do we have? We have justices who are untethered from practical concerns. We have Sam Alito literally saying, in his opinion, that nobody reasonably relies on abortion rights because abortions are always an accident. So what happened in the last 30 years is that the conservative justices abandoned practicality for pure straight ideology. They don't care what happens on the ground, they care about their political and ideological priors. And that has huge effects for the climate. Because if you don't care about the facts, well then there's no way to bring a conservative-minded person, bring them around. If they think science is incompatible with law, which is a position that Clarence Thomas and John Roberts to an extent has, well, you've lost the whole game. You've lost the entire game. 

Shilpi Chhotray [00:08:48] It's a really good point. And I want to name that, historically, the Supreme Court has operated very slowly, very deliberately. But now, increasingly, some of its most consequential rulings don't seem to follow that model of really being slow and deliberate. Can you walk us through what that traditional process is actually supposed to look like and what's been changing and how the court is actually making these decisions today? 

Elie Mystal [00:09:17] Yeah, so we're talking about the shadow docket really, right? And what the shadow dock it is, is the colloquialism for the Supreme Court's emergency docket. Now, there is a reason for the Supreme Court to have an emergency docket. And it's had an emergency way of ruling on cases without full briefing, without a full hearing. And so the quintessential emergency docket case is a death penalty appeal, right. Somebody is gonna get executed on Monday. Well, when the appeal hits your desk on Sunday, you gotta rule on Sunday. Cause if you'll wait till Tuesday, person's already dead. And so, that's why we have an emergency docket in the first place, right? What has happened recently in the past 10 years really, is that the Supreme Court has broadened its definition of emergency to anything they don't like. And what we see repeatedly over the past decade is that the Supreme Court is stepping in in an emergency fashion to stop democratic laws, to stop the democratic agenda, to stop the liberal agenda and slow walking cases that could potentially stop the Trump agenda. And this all started over Obama's clean power plan. 

CLIP [00:10:40] And today, after working with states and cities and power companies, the EPA is setting the first ever nationwide standards to end the limitless dumping of carbon pollution from power plants. With this clean power plan by 2030, carbon pollution from our power plants will be 32% lower than it was a decade ago. 

Elie Mystal [00:11:05] Recent reporting in the New York Times. Basically, the Times got a trove of kind of leaked documents and personal memos that showed the Supreme Court's decision making around the Clean Power Plan. And what those leaks showed is that John Roberts was willing to use this emergency process to eschew the normal ways and the normal processes for hearing Republican objections to Obama's clean power plan. And instead use the shadow docket because he didn't like the policy. And there are memos where John Roberts is talking not about law, not about whether or not the Clean Power Plan is legal and how many parts per million of them can be in it. He's talking about the cost to business and how there will be irreparable harm, not in the death row sense, nobody's dying here, but irreparable arm to the bottom llines of businesses if they don't immediately, through the emergency docket, through what we now call the shadow docket stop the Obama clean power plan in its tracks in 2016. The birth of the current shadow docket all starts with the clean power plan and John Roberts's policy, political objection to it, not his legal objection to it. 

Shilpi Chhotray [00:12:28] So in the leaked memos, Chief Justice Roberts is described as not weighing potential downsides or considering any alternatives. And what struck me is that even though the plan's first deadline for power plants to reduce their emissions was six years away, full compliance was actually required until 2030, Roberts argued that speed was essential because the regulation would be very expensive for states and the power industry. So not once is he even trying to consider the harm to the environment or the frontline communities, the fence line communities, whose lives are most impacted. And so I'm just curious, like, Roberts is emphasizing how the cost could approach, you know, $480 billion and that industry groups would have to start preparations immediately. Not a single justice conservative or liberal mentioned the dangers of. The exceedingly warming planet, the climate crisis we're in, as one of the possible harms that the court should consider. And I guess to your point, this is exactly what the shadow docket does. It eliminates any other counterpoints or really holistically looking at the full spectrum of things. 

Elie Mystal [00:13:40] What happens when they do talk about the harms? What happens when they do get into the weeds of it, right? And what you find is that they are ignorant. Put it like this, as a person who went to law school, right, when I get to law school, I'm like, I was told there would be no math. Like there, you don't go to law school because you are comfortable with science, right. You know, whether or not the Supreme - these are not, these are not scientists. And not only are they not scientists, these are not people who are comfortable with science or statistics or math or quantitative reasoning. What is Roberts talking about? Where's the law that Roberts is talking about. It's not there. He's just talking about it from the perspective of his rich friends who he believes will be harmed. 

Shilpi Chhotray [00:14:25] The other thing, Ellie, that was striking to me is I sort of looked at how many times the shadow docket has been used over the last several years. And actually in the Bush administration era, it was only used five times. Obama three times, Trump's first term, 41 times, Biden 19 times, and then Trump's second term already has been 34 times. What does this say to you? 

Elie Mystal [00:14:52] It goes back to my earlier point that if you don't control the Supreme Court, you don't control anything. That at this point, even Congress and the president know that their laws aren't real until the Supreme Court says they're real. And that is an inversion of how this country is supposed to work. That doesn't sound like a democracy to me when you have nine unelected, unaccountable officials telling us which laws we're allowed to have. I went out, I voted for a congressperson, I voted a senator, I vote for a president. All of y'all did too, I hope. And the laws that they pass in my name don't matter until five unelected people say that it's okay. 

Shilpi Chhotray [00:15:37] Totally agree, and you're not alone in that sentiment. I want to end this part of our conversation with a clip of Supreme Court Justice Katanji Brown Jackson. Here she is speaking in April about the court's use of the shadow docket. Let's give it a listen. 

CLIP [00:15:52] The Supreme Court's power comes from its reasoning, so it really does need to inform the public as to why it has decided to chart a particular course. Issuing important decisions in such a cursory manner disrespects not only the people whose lives are upended by its rulings, but also the public that has given it trust and authority. And then there is the fact that significant real world harms can follow Supreme Court rulings. And when our orders don't acknowledge that reality, they seem oblivious and thus ring hollow. 

Shilpi Chhotray [00:16:37] So let's talk about Loper Bright. This is a major Supreme Court decision we need to talk about, which was overturned, this long-standing Chevron doctrine, also known as Chevron deference, and basically has required courts to defer to federal agencies like the EPA when laws were ambiguous, especially in technical arenas like environmental regulation. Well, that standard is now gone. So can you break down why this is so bad for the environment? 

Elie Mystal [00:17:08] Yeah, so Chevron deference is this like legally jargony term that sounds more complicated than it is. Think of it this way. Congress passes a law. After they pass the law, you have to actually enforce that law. You have to make rules and regulations to uphold that law when Congress passes the Clean Water Act. It doesn't define what water is. And you might think that's a real obvious thing. But does the Clean water Act apply to the ocean? Okay, that's obvious. A stream. Groundwater. My pool in my backyard. Wait, what? That has to be - a puddle in my driveway. Okay, okay, now you're... What's water, Congress? Doesn't say. And so for all of these things that Congress doesn't say when it passes its laws, we have what we call the administrative state. Executive agencies that fill in the blanks that Congress does not say so we leave it to the experts and of course we do this across multiple fields right? We've got NOAA we've got NASA we've got the Bureau of Alcohol, Tobacco and Firearms, we've the IRS. We've all of these executive agencies, so if the EPA says, well, this is the rule, we should have the deference as if Congress had said, this is the rule. As you can imagine, Republicans hate this. 

Shilpi Chhotray [00:18:29] Yes. 

Elie Mystal [00:18:30] Hate this, right? Because what am I talking about? Regulations. What am I taking about? Stopping capitalists from having their way. That's what I'm talking about. 

Shilpi Chhotray [00:18:40] It's a really good point you make and leads me to my next question is that Koch funded charities pumped nearly 18 million in recent years into the new civil liberties alliance and cause of action. These are the public interest firms that brought the lawsuits. So, we're talking about Koch, you know, the second largest privately held company in the U.S. Consisting of several energy and chemical companies, including petrochemical companies, so they have an interest in reducing the environmental regulation that you're talking about. What do you make of the fact that the very groups bringing Loper Bright were heavily funded by like the Koch networks? And I guess the second follow-up question to that is how susceptible is the court to this particular kind of influence? 

Elie Mystal [00:19:25] It's 100% susceptible to this particular kind of influence. A lot of these justices, I don't wanna say they're on the take exactly. It's not as one-to-one as that, but they're all part of the piece, right? So like if you only go on fishing trips with other fossil fuel executives and rich people, right, you're gonna get one side of the coin. You're not ever gonna hear the counter argument. And I've already explained these people aren't experts in their own right. I'm not saying that these justices are being bribed for their votes. It's not that simple, and you don't have to. You don't to bribe them for their vote if you get them to agree with you. I would love to be able to hang out with Neil Gorsuch for a couple of hours every Saturday. 

Shilpi Chhotray [00:20:09] And just have a little bird in his ear. 

Elie Mystal [00:20:11] And just tell him my view of things for a couple hours every Saturday. That'd be great. I would take that opportunity, right? I don't have that opportunity cause I'm broke. 

CLIP [00:20:23] Tonight, trips to luxury resorts, a tour around the Bahamas and a 126-foot yacht with a full bar and a baby grand piano, and 26 private jet flights, including at least two in a full-on 737. Now, those are just some of the lavish gifts that Justice Clarence Thomas has been given by wealthy benefactors, according to a new investigative report by ProPublica. All of the gifts, which in many cases, Thomas did not disclose, coming from these four billionaires on your screen. ProPublica estimating that the value of these gifts is likely millions of dollars. 

Elie Mystal [00:20:57] In terms of the Koch brothers being partially behind the Loper Bright plaintiffs, I mean, you gotta understand, they've been trying to get rid of that decision ever since it came out, and they finally succeeded in Loper Bright. Loper Bright, written by Neil Gorsuch. Again, let's take this seemingly fanciful example of what water is. Congress says there must be clean water. The EPA says water includes groundwater. Do we have deference to the EPA? If not, who gets to make the decision about whether or not groundwater is water? Turns out, the Supreme Court. That's the point of getting rid of Chevron deference. So whenever the Supreme court says they're giving power back to Congress, that is a lie. They are taking power from themselves, which is why I have written that Loper Bright is the biggest Supreme court power grab in 200 years. 

Shilpi Chhotray [00:21:56] This is what Justice Roberts wrote. 'Chevron's presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.' This is exactly what you're talking about. What narcissists? They're like a God complex over here. 

Elie Mystal [00:22:14] These people are drunk with power right now. And part of the reason why, in fairness to them, they are operating on a who-gonna-check-me-boo position. Right? And they have proven that Democrats are too weak and ineffectual to stop them. And that's why they're high on their own supply. 

Shilpi Chhotray [00:22:40] Let's go to Suncor Energy because this is pretty relevant to what's happening right now. 

CLIP [00:22:46] The U.S. Supreme Court will hear a bid by oil companies to toss a lawsuit brought by officials in Boulder that seeks to hold big oil liable for fueling climate change. It's one of many claiming the companies deceived the public about how fossil fuels contribute to climate change. 

CLIP [00:23:03] There's a lot at stake when this case goes before the high court, not just for Boulder, but for dozens of other state and local governments all around the country that are all suing oil and gas companies for billions of dollars. 

Shilpi Chhotray [00:23:15] If the courts side with the oil companies, what does this mean for states and residents who have been harmed by these companies? 

Elie Mystal [00:23:23] When the federal government won't regulate, when you don't have administrative agencies and regulations and laws for Congress, what's the next level down to stop businesses from doing whatever they want to whoever they want? And I will tell you that the next force you look for is the tort lawyers, right? Like the lawsuit after lawsuit after a lawsuit is why Walmart has to mop its floors. Lawsuit after lawsuit after lawsuit is why your car has airbags. It's why they're a seat belts - like these are not these things do not start from a federal regulatory perspective. A lot of times they start from the ground up with litigation from normal plaintiffs who have been affected by rapacious capitalism. That's why businesses hate it so much because tort law is another way to hold businesses accountable for their actions. So in the Suncor case, what we're talking about is whether or not tort lawyers, plaintiffs, and states can hold fossil fuel companies liable in a tort action for their excesses, for their dumping, for their environmental catastrophes. And so obviously, the businesses, the fossil fuel industry wants to say, no, you can't. There is one other industry that has this, what lawyers will call a liability shield. You cannot sue the industry for the harm their products cause. You wanna know what it is? Guns. 

Shilpi Chhotray [00:24:58] I just got chills. 

Elie Mystal [00:24:59] The reason why we have an epidemic of gun violence in this country, and I wrote about this in my most recent book, Bad Law: Ten Popular Laws That Are Ruining America. 

Shilpi Chhotray [00:25:08] We'll drop that in the show notes. 

Elie Mystal [00:25:09] And the way that it works is that if your gun is used to kill a bunch of people, the families of those victims cannot sue the gun manufacturer for personal injury, for tort law. No other industry has that kind of liability shield. The car, the automaker industry doesn't have it. The tobacco industry doesn't have it, only the gun industry has this liability shield that was given to them by George W. Bush. 

Shilpi Chhotray [00:25:39] This is despicable. 

Elie Mystal [00:25:41] During the Clinton administration, there was a huge case, there was huge settlement, and the gun industry voluntarily agreed to take certain guns off the market. You didn't need an assault rifles ban because the tort lawyers were eating them for lunch. And so then the Bush administration passed this law which removed liability from gun manufacturers, and that is what's supercharged our epidemics of gun violence, of school shootings, because now you can't sue them. And so the fossil fuel industry in Suncor is looking for exactly that type of liability shield. If states can't sue them, if plaintiffs can't sue them, and the EPA isn't allowed to exist. Again, who gonna check me, boo? 

Shilpi Chhotray [00:26:28] So for my climate listeners, I really need you to understand how much is at stake and I don't think we're focusing enough on the Supreme Court. We need to, it's almost like a come to Jesus moment for a lot of us is again, like yes, vote, yes, direct action, but we need to talk about court reform, which we'll get to in a moment. 

Elie Mystal [00:26:48] It's also this asymmetry, the fact that our side isn't focused on this, is why we're losing, right? I can go to any diner in any red state and I can meet a trucker who's wearing a MAGA hat and ask him why the Supreme Court is important. And he can say, he will tell me, well, I got to have my guns. You know, if I don't have the Supreme court, I'll got no guns, but he will know that. Right? He will understand in a one-to-one way why Supreme Court important for his guns. He gets that, right? I can go to Brooklyn and I can find the crunchiest hipster out there and I could say, okay, what's really important to you? And they can say like, oh my God, like we got to do something about these plastic straws, man, like they're so bad for us. We like, we need a Green New Deal. I'm like, yes, so that's why we need court reform. They can be like, what? No, we needed, we needs AOC to pass the Green New Deal, man. Like, no, you need the Supreme Court to uphold the Green New Deal. Well, we're not gonna have to uphold it if we can't even pass it. I'm like, you're doing it backwards, man! And this is why we fail. The Right understands how important and crucial the Supreme Court is to everything they care about, and the Left simply does not. 

Shilpi Chhotray [00:28:16] One more thing, Justice Samuel Alito has not recused himself from this case. His most recent financial disclosures showing holdings in individual stock worth between $60K and $245K. I know that's a bit of a range, but this was in ConocoPhillips, Phillips 66 and five other oil and energy companies. Alito was also up to $100,000 invested in a Vanguard fund in which Exxon is the third largest holding. So I wanted to ask you, and this might be a little naive, but is this an outlier or does it point to a broader pattern in how the court approaches potential conflicts of interest? 

Elie Mystal [00:28:57] Let me explain to you the rules for a Supreme Court recusal. Here are the rules for when a Supreme court justice has to recuse themselves from the case. I just explained them. There are none. There are absolutely no rules requiring a Supreme Court justice to recuse. The guidelines say it's up to their own conscience. 

Shilpi Chhotray [00:29:20] They don't have to disclose anything? 

Elie Mystal [00:29:22] They don't have to disclosed crap. There is no law. There is not ethical requirement for them to recuse themselves in cases where they are financially or otherwise compromised. It is one of the biggest issues of reform to me that Congress should pass such a law. But if Congress passed such a lot, you know what? The current Supreme Court, they wouldn't follow it, which is why I always say that if you want the Supreme Court to have ethics, not only do you have to pass ethics reforms, you also have to cut their budget until they agree to follow them. 

Shilpi Chhotray [00:30:02] There has to be some sort of pressure. And I feel like, you know, we're really in this situation now where neither the courts nor the regulators are able to act on climate. It feels like they're closing off all of the avenues. 

Elie Mystal [00:30:14] Yes, absolutely. The Supreme Court is incredibly powerful, and that is unusual on the global stage. Most Americans do not understand not only how powerful our Supreme Court it is, but how overpowered it is compared to other high courts across the world. The Canadians do not know the names of the people on their high court because the Canadian high court is not empowered to overrule Parliament and the Prime Minister at the drop of a hat. 

Shilpi Chhotray [00:30:43] There's gotta be some hope. There's got to be some, you know, you are such an expert at the advocacy that has to happen in court reform. So you definitely want to spend some time here and talk about solutions and just maybe at the high level, Elie, like what can be done? 

Elie Mystal [00:30:58] You have to expand the court. The court is nine justices. It doesn't have to be at nine justices. Nine is not the constitutionally mandated number. There is no constitutionally-mandated number. You can change the number of justices on the Supreme Court with a simple act of legislation. So it has to pass 218, currently 218 votes in the Congress, 51 votes in the Senate, not 66 like impeachment, not 60 if you get rid of the filibuster. A 51-vote majority in the Senate should be enough. And then signed by the president. That's all it takes. 

Shilpi Chhotray [00:31:32] So I have a question about that though, because adding more judges isn't necessarily good for us if they're more assholes. How do we add more good judges? 

Elie Mystal [00:31:42] Two things. Well, first of all, obviously, I think court expansion should be done the next time the Democrats control the House, the Senate and the White House. However, however, to your point of we don't want more judges that are assholes, I don't necessarily agree with that. I think that more judges is better objectively. But if you think about this, Shilpi, if you think about you and your friends are going out to dinner. You might start off going out to dinner, but you might end up at some places, right? You might go to some places you ain't supposed to go. You might end at Thunder Down Under. You just gotta get three, four people. Now imagine instead of trying to get you and your four best friends from college to go someplace, now you're planning a family reunion. Now you've got 20, 30 people showing up for dinner. Where are you gonna go? You're gonna go to Applebee's. You're gonna go to the Olive Garden. You're going to go to some center mass anodyne place, because center mass, anodyne place is how you can get 30, 40, 50 people to agree, right? It moderates your choices when you have to get more people involved in the choice, right? The same thing would happen on the Supreme Court. We have all of these 5-4, 6-3 decisions now, If we had 29 justices, and my number, by the way, is 29. The Ninth Circuit Court of Appeals, which runs, which is the lower circuit for California, Oregon, Washington, all the Western states, they have 29 judges. If it works for California it should work for the rest of the country. In a 29 justice court, even if that court is majority conservative, you're gonna, it's gonna be the rare case that you lose 15-14. That's a ridiculously difficult margin to maintain when you count all of the quirks and legal differences, and differences of personality and opinion once you start expanding the numbers of Supreme Court justices so not only is that my argument for like don't be too afraid of even more assholes would be better than where we are right now. But it's also my answer to the classic kind of like oh my God oh, yeah, Democrats expand the court the Republicans will expand the Court when they have the chance. So what? Not only is more justices is better along the lines that I'm saying, worst case scenario, you go from losing 6-3 to losing 16-13, you haven't lost anything, and that assumes that the Republicans will be able to expand back afterwards. 

Shilpi Chhotray [00:34:12] The other thing I know you're vocal about is term limits. 

Elie Mystal [00:34:15] I love term limits, I think they're a good idea. The Constitution actually doesn't say a lot about how we organize the Supreme Court beyond the idea that they are appointed for life. Now. In fairness to the founding generation, and I'm not often fair to them. There are good reasons why the Supreme Court is appointed for life. One, they want them kind of removed from the political back and forth. Of course, the founders didn't think they'd have this much political power. This is just a failure of their imagination. But I mean, they lived in a world where like getting a cold was a life threatening, you know, situation. Right? They were in a world where like, you know, lifetime appointment meant that you were probably going to die soon. Um, if you got appointed to a court at like 45, 55 years old. 

Shilpi Chhotray [00:35:00] Got a good 10 years left. 

Elie Mystal [00:35:01] Right, this idea that people would wield power for 30, 40 years. 

Shilpi Chhotray [00:35:04] It's so insane. 

Elie Mystal [00:35:05] Wasn't really in their mindset when they're thinking about the Supreme Court. To really get at term limits, you have to have a constitutional amendment because the constitution says that the justices on the Supreme Court, doesn't say how many there have to be, but does say that they get to serve while in good behavior, which has credibly been interpreted to mean for life. So like the current best term limit plan is to have them on a rotating 18-year term. And again, I am no math leap, but I have been told that the math works out that every president, every four years, you should be able to replace two justices once you get the system rolling. And that sounds great, right? Except for the fact that you need a constitutional amendment to do it, right. The current justices on the court who have served for more than 18 years are as follows: Clarence Thomas, John Roberts, and Samuel Alito. Who wants to go to John Roberts, Clarence Thomas, and Samuel Alito and say, by the way, guys, we're gonna pass this 18-year term limit law, and that means at least two y'all gotta go, like now. 

Shilpi Chhotray [00:36:10] What, they should just go retire, like enjoy your life. Stop fucking everyone else's up. 

Elie Mystal [00:36:15] Oh, I think screwing everybody else's up is what they- 

Shilpi Chhotray [00:36:18] That is their retirement plan. Oh my gosh. Okay. So there's also a bigger question around civic participation. I know, Elie, we're almost at time, I just want to ask this last one. Over the last few election cycles, we've seen a lot of progressives reject voting and refuse to vote for what they see as the lesser of two evils. You know, we're talking about Kamala and Biden. But we've see Trump appoint three Supreme Court justices and more than 200 federal lifetime judicial appointments. So we're now living with those consequences. How do you think people should be thinking about the stakes of voting in that context? 

Elie Mystal [00:36:58] This is always a hard one for me because I understand people who are disaffected. I understand the people who want to opt out of the system. At some level, I feel like it is not their fault that they don't want to vote. It is the job of the candidate to make people want to for them. That is, nobody's vote is predetermined. Candidates have to earn it. And if candidates don't earn your vote, then I have difficulty criticizing people who were not inspired by either candidate. That said... I also feel very strongly that people should act like fricking adults and do something that is basic and try to help, right? 'Cause like voting between the lesser of two evils, yeah, it's called an adult decision. I make the decision between the lesser of two evils every goddamn day. That's just part of growing up, right. Do I wanna work out? No. Would I like to have a cigarette? Yes. Am I gonna? No. Cause I'm an adult, cause I'm a grownup, right? It's a hard choice. It's not a fun choice, but life isn't all fun. And so if all you can tell me is like, yeah, yeah, both candidates, they're both, like it is incumbent at some level on you to understand what you are voting for when you are not voting, right. Because whether or not you participate, you are making a choice. I was one of the people who was screaming at the Harris campaign to take a stronger stance on Gaza, because I knew it would cost her votes. 

Shilpi Chhotray [00:38:33] Absolutely. 

Elie Mystal [00:38:34] I knew, I knew what cost, sorry, I knew - A) because it was the morally right thing to do, and B) because I know it cost her votes. 

Shilpi Chhotray [00:38:42] Yeah, yeah, exactly. And I live in California, so a lot of people, their answer was, well, my vote doesn't really count. 

Elie Mystal [00:38:49] Look, I always, I was a guy who voted for Hillary Clinton and I wrote a, I wrote an endorsement of her called I'm With Her I Guess. 

Shilpi Chhotray [00:39:02] I need that on a t-shirt, are you kidding me? 

Elie Mystal [00:39:05] Because remember her thing was I'm With Her, I was like I'm With Her, I Guess, right? Joe Scarborough had me on his show, you know he just saw the headline and he thought I was gonna like slam Hillary Clinton. It's like, oh, this would be fun, like, you know loud Black guy slamming Hillary Clinton. I'm like, no, I'm not here I'm gonna vote for her and I'm going to vote for her because at that time Ruth Bader Ginsburg was 82 years old. That's all I needed to care about, that's all I needed it to know to give Hillary Clinton my vote. Ruth Bater Ginsburg was 82 years old, and she was gonna be replaced by the next president. And whatever Hillary Clinton is for four or eight years, the person who replaces Ruth Bader Ginsburg, which turns out to be Amy Coney Barrett, is gonna hold power for 30. 

Shilpi Chhotray [00:39:47] Wow. 

Elie Mystal [00:39:48] And so I'm able to vote for somebody that I wasn't particularly excited about for the next four years, because I understood what was gonna happen over the next 30 years, which now doesn't just affect me, it affects my children. 

Shilpi Chhotray [00:40:00] You've given us meaningful ways to plug in, so I really, really appreciate that. Because you can feel quite powerless in the face of this all. So thank you so much for your clarity and your candor in joining me here today. 

Elie Mystal [00:40:14] Thank you so much for having me. 

Shilpi Chhotray [00:40:22] If Elie makes one thing clear, the future of climate action is synonymous with the Supreme Court judges who hold ultimate authority. From environmental protections to gun control and voting rights, their decisions reach far beyond the courtroom. If you'd like to explore these issues further, be sure to check out Elie'e books and podcast, Contempt of Court, where he brings the same sharp analysis and unmistakable clarity to the biggest legal questions of our time. We'll add links to all of his work in the show notes. Thank you to Wildseeds Fund for making this podcast possible. This episode of A People's Climate is executive produced by Mindy Ramaker, with engineering and sound design by Dennis Maxwell, theme music by Kaffrey Jay, additional research by Asia Simms. Recorded at Studio 132 in Oakland, California. From Counterstream Media and The Nation, I'm your host, Shilpi Chhotray. Until next time.