Guest: Slate's legal and justice reporter Dahlia Lithwick; Also: Pence Press Sec., Stephen Miller's wife, tests positive for coronavirus...
By Brad Friedman on 5/8/2020, 6:54pm PT  

Today on The BradCast: This week the Republican's stolen U.S Supreme Court took a huge step forward toward public transparency by live-streaming their oral arguments for the first time in history. No, it wasn't on video. It was via telephonic conference call. But one step at a time, I guess. There's something, anyway, to thank the coronavirus for. [Audio link to full show is posted below.]

We're joined today by Slate's Supreme Court legal expert and justice reporter DAHLIA LITHWICK to discuss the first-ever oral arguments by phone for the Court and the first to be broadcast live to the nation. It was also the week when the nation's heart skipped a beat or two for a short time upon learning that Justice Ruth Bader Ginsburg had been "hospitalized with an infection". Turns out the infection was thankfully not COVID-19, but a gallbladder matter which left the 87-year old Justice able to participate in the week's historic telephonic arguments from her hospital bed in Maryland.

"It reminds us," Lithwick says, "pinning all of our hopes on an octogenarian...is a pretty scary way to be doing justice. But in a really profound way, it kind of reminds us that the people who are getting shredded by this virus are that generation" and "It does make you realize how unbelievably susceptible the bulk of the Supreme Court is right now."

Beyond that, Lithwick, who hosts her own Slate podcast, AMICUS, sees this week's live broadcasted SCOTUS hearings as an encouraging step toward transparency for a Court that has been frustratingly camera shy. She also cautions, however, that the live broadcasts allowing Americans to hear how our laws are adjudicated at the nation's highest court in real time may not last after the pandemic subsides.

However, the week's historic hearings went well enough, she reports, even if the structure required to carry out oral argument by conference call necessarily changed the way in which cases have traditionally been argued in person, as Justices were not able to interrupt each other to press various arguments as they have always done --- and even as someone on the call forgot to mute their phone during a toilet flush heard during one of the first day's hearings.

Yes, we get to the straight poop on who may have been behind "the flush heard round the world" today, before turning to the substance of the actual cases heard before the Court. One was a fairly straightforward case on trademarks. Another was a much less simple one on whether religious groups and even private businesses have their religious rights infringed by being allowed to opt out of the contraception mandate of the Affordable Care Act (ObamaCare). Yes, plaintiffs in this case --- including the Little Sisters of the Poor, a small group of nuns in Pennsylvania --- argue that being allowed to opt out of having their insurance provider offer contraceptive care to their employees somehow violates their religious and "moral" freedoms (whatever "moral" freedoms may be.)

We also discuss how the Court has selectively decided which of the many previously postponed cases from March and April (cancelled until the Justices figured out how to dial a telephone) would be rescheduled for this session versus the next one, where opinions will not come out until well after the critical 2020 Presidential election.

We then move on to an important (if too brief) conversation about how rightwingers seem to misunderstand the actual meaning of their favorite words "freedom" and "liberty", as invoked by the slave-holding founders of our Constitution. That, as anti-lockdown protesters haul semi-automatic rifles into state legislatures to demand the lifting of stay-at-home restrictions, shoot people who ask them to follow the law by wearing face masks inside stores, cite "tyranny" and invoke Japanese internment camps (as a Wisconsin Supreme Court Justice recently did) and call for the "LIBERATION" of states with Democratic Governors (as the President of the United States recently did.)

In her most recent column on this point, Lithwick flagged an essay by Ibram X. Kendi at the Atlantic which speaks to the "long-standing difference between core notions of what he calls freedom to and freedom from". The latter is seemingly being pushed out of the public square in favor of the former.

We discuss what Lithwick describes as "the movement out there that says, 'I don't have to wear a mask,' 'I have a Constitutional right to carry a gun into the capitol,' those are 'freedom to' values, but they subordinate huge masses of people who actually want to be free from those very things. These are a lot of the same arguments that people make about the Second Amendment. That they want to be free to parade around a restaurant, open carrying, and they don't realize that freedom for a lot of Americans is freedom from the terror of that act."

"I think that is a really emblematic new trend, where we're seeing these religious claims that say my freedom to X somehow subordinates and dominates your freedom to, in the Little Sisters context, have access to a statutory entitlement to contraception. My freedom to X, discriminate against people that I don't want to bake a wedding cake for, somehow is more important than your freedom from discrimination based on any identifiable class," Lithwick tells me. "I think this is a tension that is permeating how the courts are looking at a lot of values."

"It probably goes without saying, but let's go ahead and say it --- that it does seem as though if you are a straight, white Christian male, you have a lot of 'freedom to'. Even now, if you are protesting in the capitol in Michigan, if you're a white guy with a gun, your freedom to XYZ is predominant. And if you are an African-American out for a jog, your freedom from being executed summarily doesn't seem to matter. So I think part of the problem with this thumb on the scale for "freedom to" claimants is that it's not distributed equally across race, class, gender, or economic well-being."

Please tune in for that conversation --- and/or read Lithwick and Xendi at the links above --- for more than I have space or time to break down here for the moment on that important discussion.

Finally today, some quick news, an update, and some listener mail. The news is about the coronavirus working its way into the White House via Donald Trump's personal valet who tested positive this week and via Mike Pence's press secretary, Katie Miller, who tested positive today. After being in close contact with Pence and members of the press, it should also be noticed that Miller is married to Trump's Senior Advisor Stephen Miller, who is in close regular contact with the President of the United States. Will we see a change in the Administration's rush to reopen the country long before health experts say it is safe to do so if COVID begins to find its way into the White House --- and, perhaps, even the Oval Office?

The update is on the decision by Arizona's Health Department to reverse its cancellation earlier this week of the work by state university scientists on COVID-19 modelling.

And the listener mail regards a local postmaster who says he's decided to retire earlier than planned after "hatred" directed at his staff "by the segment of our town who watch Fox News" who are now "yelling" at Postal Workers for wearing masks on the job. Yes, it's an insane way to end another insane week in these "United" States of America...

Download MP3 or listen to complete show online below...

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