Last week, the Supreme Court wrapped up a controversial and consequential session that addressed abortion, guns and presidential power, just to name a few. . The once favorable views of the Court have fallen to historic lows in recent years thanks in part to the conservative majority. And since the Dobbs decision in 2022, many Americans are concerned that the court’s decisions are not reflective of the American people. Senior opinion writer and columnist for Boston Globe Opinion and co-host of the legal news podcast #SistersInLaw, Kimberly Atkins Stohr breaks down some of the biggest decisions from the session and explains the ripple effect the Trump immunity will have on the presidency.
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Our host
Errin Haines is The 19th’s editor-at-large and writer of The Amendment newsletter. An award-winning journalist with nearly two decades of experience, Errin was previously a national writer on race for the Associated Press. She’s also worked at the Los Angeles Times and the Washington Post.
Follow Errin on Instagram @emarvelous and X @errinhaines.
Today’s guest
Kimberly Atkins Stohr is a senior opinion writer and columnist at the Boston Globe with more than 20 years of experience covering politics, policy and law. She is an on-air political analyst for MSNBC, a frequent panelist on NBC’s “Meet the Press,” and co-host of the popular Politicon legal news podcast #SistersInLaw.
Follow Kimberly Atkins Stohr on X @KimberlyEAtkins.
Episode transcript
The Amendment podcast transcripts are automatically generated by a third-party website and may contain typos or other errors. Please consider the official record for The Amendment podcast to be the audio publicly available wherever you listen to podcasts.
Kimberly Atkins Stohr:
Just, uh, wrote a column about Amy Coney Barrett and how people are saying, “Oh, she breaks with the conservatives sometimes. She’s showing independence. She’s a bit of a maverick.” That’s not being a maverick. I wanna see her be the deciding vote that keeps the conservatives from doing something terrible. Then I’ll call her a maverick.
Errin Haines:
Amy Coney Barrett: Maverick status, TBD. Hey y’all, welcome to The Amendment, a weekly conversation about gender, politics, and power from The 19th News and Wonder Media Network. I’m your host, Errin Haines. So, all eyes were on the Supreme Court’s most recent session. The once favorable views of the court have fallen to historic lows in recent years, thanks in part to the conservative majority. And since the Dobbs decision in 2022, many Americans are concerned about what other blows to civil liberties are on the horizon. Let’s look at the numbers: They’re making guns more difficult to regulate. They’re blurring the lines separating church and state. Currently, abortion is almost completely illegal in 14 states and banned after six weeks of pregnancy in four more. And, of course, we have Donald Trump’s immunity case. A six-three ruling said that former presidents have absolute immunity from prosecution for their official acts and no immunity for unofficial acts.
Errin:
The court ordered the lower courts to figure out how to apply that decision to the charges against Trump related to January 6, 2021. Some cases this session seemed to run counter to what some expected the conservative majority to decide. In a five-four decision, the court struck down Alabama’s congressional map that discriminated against Black voters. And the eight-one decision in the United States versus Rahimi effectively upheld a federal law that allows the government to confiscate firearms from people under domestic violence restraining orders. Making sense of all of these rulings and trying to figure out where the court might head from here is not simple. So, to help me break all of this down today, I’m talking with senior opinion writer and columnist for the Boston Globe opinion with more than 20 years of experience covering politics, policy and law. She’s also co-host of the legal news podcast “Sisters in Law,” Kimberly Atkin Stohr. Welcome, Kimberly.
Kimberly:
Hi, Errin. Thanks for having me.
Errin:
I’m so happy to have you. Uh, we get to share a screen sometimes at MSNBC, and now we get to talk together on this podcast. So thank you. Thank you for joining The Amendment. Uh, I guess we should probably start with Trump’s immunity case. So the Supreme Court rejected Donald Trump’s claim of absolute immunity from criminal prosecution for unofficial acts, but granted some protection for former presidents for official acts while taken in the White House. Explain this ruling and what it means for the 2024 election.
Kimberly:
Yeah, so the long and short of what it means for this upcoming election is that there will not be a trial before voters go to vote, which means we will not see an airing of the case against Donald Trump for his role in trying to overturn the 2020 election before voters have the opportunity to go and vote again, which, uh, is problematic for a lot of reasons. Now, of course, it is not the Supreme Court’s job to aid an election. They’re not political actors. Well, they’re not chosen to be political actors, I should say. Um, but it’s a problem for justice. It’s a problem for democracy.
Errin:
What you’re saying is so interesting because, I mean, I’m wondering if you think…is it important, or was there a thought that it was important, for voters to kind of have clarity around this issue before they went to the polls in November? Or was that something that voters were saying that they wanted clarity on from a Supreme Court?
Kimberly:
You know, I think it’s always important for voters to have all of the information that they can. And of course, I believe that one of the interests the government has in bringing this charge is to hold him accountable so that he doesn’t do something like he’s accused of doing again. And the possibility that he can return to the very office that he abused in service to that ambition just really goes against any measure of justice you can absolutely imagine. I mean, that’s in the current form. And also in the broader spectrum, the fact that the Supreme Court has essentially corned off big aspects of the presidency to say, “You know what? No matter what a president does in this sphere, it can never be the basis of accountability in our courts.” That’s really gobsmacking too. Of course, there are some things that presidents should be able to do without fear of prosecutions. You know, the presidency is tough stuff. They declare war.
Errin:
Sure.
Kimberly:
They engage in all kinds of things, and you don’t want them, you know, being brought up on murder charges the minute that they leave office if there was a war on their watch. But on the other hand, I think the Supreme Court went far beyond that in a way that’s really dangerous.
Errin:
In the absence of, kind of, that clarity headed into November, is the thought now that it’s the court of public opinion that’s really gonna decide, you know, how much of an issue this is for them and how that affects how they weigh in at the ballot box, right?
Kimberly:
That’s absolutely right. I mean, I think, um, it’s going to have to be a mission to sort of bring back that clarity we got after the January 6 House special committee that really laid bare Donald Trump’s role in January 6 and leading up to it to sort of remind voters of what’s at stake. It’s going to be some of the state prosecutions that are moving forward, not of Donald Trump himself, but of the people he worked with and the fake electors that were created in order to upend democracy and disenfranchise the votes of Americans. It’s gonna be a much harder job. I think we saw with the New York trial that wasn’t related to this election — it was related to the 2016 election.
Errin:
Yeah.
Kimberly:
That it reminded a lot of people, “Wow, yes, this really happened and resulted in a conviction.” It’s a clarifying moment even without cameras in the courtroom.
Errin:
Yeah.
Kimberly:
It can be very clarifying. We won’t get that clarifying moment. So what makes it very, very much harder in this, you know, scattered political news cycle to really make that clear.
Errin:
Yeah. I mean, having that kind of question, to your point about the New York case, which was a bad case about election interference, having that case settled, having, you know, a jury say that there was election interference in that case, and unequivocally saying that 34 counts — all 34 counts — you know, the former president being found guilty of election interference in that trial. I think that that really did provide kind of clarity and a last word for people, even though obviously that case is being appealed. But that was a type of last word for voters headed into November. So, I mean, it seems though that this immunity case ruling really does set a high bar for determining, kind of, what actions from a president can be prosecuted. And, to your point, I mean, Justice Sonia Sotomayor, I mean, obviously at The 19th we were looking very closely at her dissent. She says in that dissent, “Today’s decision to grant former presidents criminal immunity reshapes the institution of the presidency. It makes a mockery of the principle foundational to our constitution and system of government that no man is above the law.” So what ripple effects do you think this ruling is gonna have on the presidency?
Kimberly:
Yeah. I think Justice Sotomayor is absolutely right. I mean, it does not only hold this decision that things within the core of the presidency cannot be touched — there can be no criminal accountability for that, even if it is misused — it also makes it so much harder to bring and prove a case for actions taken outside of that presidential sphere, right? So, for example, one of the things Jack Smith won’t be able to do under this ruling is introduce any evidence of conduct that is deemed to be official into the trial. So that’s crazy, right? If there is a finding, for example, to make this clear, that no conversations between Donald Trump and then-Vice President Mike Pence can be brought into trial because conversations between members of the executive are within the core purview of presidential duties and therefore cannot be prosecuted…
Kimberly:
…Can you imagine trying to prove the case about Donald Trump’s role in trying to stop the counting of the electoral votes on January 6, 2021, without being able to introduce anything that he said to Mike Pence when that is a core part of what happened? And that tells future presidents, “Hey, as long as I’m keeping it within the administration, we can do crimes.” Because that’s absolutely immune. Signaling that, not just to Donald Trump, but any future despots who get into that office, I think is incredibly, incredibly dangerous. And it’s also gonna make it so much harder for Jack Smith, assuming that, you know, Donald Trump doesn’t win and put a complete end to this prosecution entirely.
Errin:
Yeah.
Kimberly:
Assuming that he does get to trial, it’s gonna make it a lot harder for him to prove it.
Errin:
Right? I mean, yeah. They’re not crimes, right? They’re official acts.
Kimberly:
Right.
Errin:
That’s basically where we are. So, okay. So moving on from the immunity case, because there were a lot of other big decisions that were made. Were there other cases that you were watching closely, and any surprises in those cases for you?
Kimberly:
Um, I dunno if they were surprises, but I certainly was watching, second to the immunity case, the cases that dealt with abortion — both the FDA approval and availability of Mifepristone, as well as the EMTALA law, a federal law that requires federally funded medical institutions to provide life and health-saving care to patients in the event of emergency, regardless of anything — their ability to pay, their legal status, anything. They have to give this care. And in that latter case, that law was rubbing up against some of these state bans on abortion. This one came out of Idaho. And, in that one, the court did. it seemed like it was possible after the oral argument, which is basically say, “You know what? There’s too many factual issues at play. We jumped into this early, you know, in the injunction phase, to prevent this law from going into effect.
Kimberly:
Maybe what we should have done is wait and see how it plays out, because it’s unclear how these laws conflict.” What they really did was kick the can down the road.
Errin:
Yeah.
Kimberly:
They were not ready to really address this. And so that remains a looming issue of uncertainty in any state where there’s an abortion ban — whether federal law will be followed to give women emergency care, including reproductive care, including abortion care, where it is banned. And then in the Mifepristone case, similarly the court found that the states and plaintiffs didn’t have standing, which means they didn’t have a right to assert a claim in court because they had shown no concrete injury, and so therefore that case was dismissed. But all it takes is somebody else who can assert standing—
Errin:
Yes.
Kimberly:
—to challenge that again. So nothing has been resolved in either of these cases. I guess the good news is abortion access hasn’t been rolled back further. But the bad news is we are in no better place in understanding where Dobbs has left us, where medical professionals are in no better space to give care. And the industry is still reeling, as are women and men who want to do anything from have IVF to, you know, be certain that their methods of contraception will be readily available, in limbo.
Errin:
Yeah. I mean, I think you, what, what you’re speaking to is just kind of this post-Dobbs landscape of uncertainty and around, you know, the continued unknown consequences of this Dobbs decision and the reality that, you know, in the absence of federal access to reproductive care, abortion care, and, you know, decisions being made at the state level, you have the legal arena just really kind of continuing to be this battleground around this issue that is affecting the lives of millions of Americans across the country. So, yeah, I mean, there were also decisions a lot of women were watching. I’m thinking also about the Rahimi case, which upheld that federal statute prohibiting individuals subject to domestic violence protective orders from possessing firearms. Was that one that really stuck out to you as meaningful?
Kimberly:
It really did. I mean, that one upheld a principle that I think to most Americans would be common sensical.
Errin:
Yeah.
Kimberly:
That somebody who is under an active restraining order because of violence against a partner shouldn’t be able to have a gun while under that order. You know, it’s not saying they’ll never have one again; It’s just saying that “While you are under this order by a judge that you were very dangerous and you pose a threat to this person, let’s take away your ability to have a gun during that time.” That seems like it made sense. Well, the problem is, in previous precedent at the U.S. Supreme Court, the bar for any sort of infringement on the Second Amendment was so high to reach in order to have a gun restriction pass constitutional muster, that going in it wasn’t at all clear that we’d get to that result. That’s because the court has sort of attached itself to this “history and tradition test,” which basically there has to be a history and tradition going back to the founding of the kind of gun restriction that a state or the federal government seeks to put into place. Of course, at the time of the founding, not only were there no gun restrictions for domestic violence protective orders, there were no domestic violence protective orders.
Errin:
Exactly. There was no language for domestic violence. Correct.
Kimberly:
Domestic violence was not illegal. In fact, the only laws governing it was basically the extent that to which you could do it, to which it was allowed, right? And sort of saying that, “Well, if it’s excessive, then somebody can vouch for you a surety.” So if you pay basically a bail, and then, you know, you can go back, we’ll give you back your gun — and well, they wouldn’t have taken the gun away in the first place. — we’ll go back and we’ll allow you to use a gun, to abuse your spouse, because that’s the right of a husband, and women don’t have rights. So, in this case, the conservative majority realizing that would be a terrible outcome, I suspect, sort of tortured their own constitutional analysis…
Errin:
Mm-Hmm.
Kimberly:
…to say, “Well, it doesn’t have to be an exact analogy,” Chief Justice John Roberts said. It just has to be something in the ballpark that shows we wanted to take guns away from dangerous people back then, you know — people who were convicted of treason and such. So this is okay. They really tortured it, and it still leaves unclear about what future gun laws can be left in place. Of course, we had the other bump stock case where they found that, no, that’s not a machine gun, even though it turns a gun into a machine gun. That’s not a machine gun under federal law, and you can’t ban them under that federal law. So we have a Supreme Court that loves to protect gun rights, but in this case, I think they kind of contorted themselves because it was pretty clear that this would be a step too far.
Errin:
Yeah. I mean, it was, to your point, an 8-1 decision. I’m curious as to what you think about the one.
Kimberly:
Ah, Justice Clarence Thomas. Justice Clarence Thomas did the constitutional analysis that everybody feared, which was look back and say, no, there was no historical analogy for taking guns away from domestic abusers. The only thing that existed was this surety law, where, you know, if you got in trouble and somebody could vouch for you because of your mistreatment of a spouse, you could essentially pay a fine and it would be okay. And that is the limit of the kind of restriction that can come from that. He actually followed the court’s precedent, right?
Kimberly:
Because that’s what the solution was, and everybody else was just like, “Uh, yeah, no, that’s not what we want.” But he was true to it. So if you can give Justice Thomas anything, on the bench he’s keeping it consistent.
Errin:
Consistent. Yes. Consistency. Indeed. Uh, yeah. But I think to your point, you know, the world that existed at the time of the framers versus the world that we exist in now that is certainly the world in which these justices are operating in and trying to make meaning and sense and law from. So, uh, are there any cases that you were surprised did not get heard this session?
Kimberly:
That did not get heard? You know, I was expecting a transgender rights case this term.
Errin:
Why is that?
Kimberly:
And we did not get that. Just because that’s an issue that in any number of ways has been bubbling up through the court and reaching a boiling point.
Errin:
Yeah.
Kimberly:
Right? Whether it is access to gender affirming care, whether it’s what educators have to do and protections in schools, all sorts of things. You know, discrimination. They are there, and I expected one of them to reach the court this term. We now have a couple already on tap for next term. So maybe it was the case of the Supreme Court saying, “Look, we got guns, we got abortion, we got democracy itself on the docket. Let’s not do everything. Let’s not do all the things…
Errin:
Yeah.
Kimberly:
…in October term 2023. Let’s leave a little for later.”
Errin:
Yeah.
Kimberly:
And they granted those late to ensure that they would not come on the docket this term. So, uh, but yes, I was expecting to see a little more there on that, but stay tuned.
Errin:
Yeah, absolutely. I mean, you know, you think, obviously the court itself is not supposed to be political or…
Kimberly:
Mm-Hmm.
Errin:
….prone to kind of the whims of our politics, but certainly people bringing — trying to bring — cases before the Supreme Court, particularly in an election year, trying to get those things kind of on the radar for people. It is surprising that was not an issue that was able to make it onto the docket this session.
Errin:
You kind of alluded to a couple of the folks that we are gonna talk about. We cannot talk about the court, though, without talking about this conversation around the institution itself, right? Like, particularly as it pertains to, like, the conduct of some justices and how we think about the rule of ethics in the Supreme Court. So the American public’s views of the court have taken a dive, as we know, in recent years. Clarence Thomas has the highest unfavorability among all the justices. And that’s in large part because of substantial reporting by ProPublica and other outlets about his relationships with wealthy GOP donors. Samuel Alito’s ethics have also been questioned in the days following January 6, 2021. It’s been reported that he hung an upside down American flag, and in the summer of 2023 an “Appeal to Heaven” flag outside of his home. So the upside-down American flag, for context, has historically been used as a sign of distress by the U.S. military, but then became a symbol of support for Donald Trump’s” Stop the Steal” movement following the 2020 election. That “Appeal to Heaven” flag has been used by Christian nationalists, and both were flown by January 6 rioters. So how have these ethical controversies involving both Justices Thomas and Alito really affected public perception of the Supreme Court’s impartiality and integrity?
Kimberly:
Oh, a lot. I mean, and it’s not in abstraction, right? It’s these revelations paired with what the court is actually doing…
Errin:
Mm-Hmm.
Kimberly:
…in its opinions. It doesn’t take much to put two and two together and say, “Hey, we are getting these opinions, such as Dobbs, that is so far outside of what Americans expected.” Granted, the court does not — well, the court should not — take public opinion into consideration when deciding whether something is legal or constitutional. They should be looking at the text of our laws and the text of our Constitution. But at the same time, when you have opinion after opinion after opinion that seem so far out of context with where society is, that already has people questioning what’s going on. I think that’s why in Obergefell — the same-sex marriage opinion — Justice Kennedy went so far in his own opinion to talk about how much society has changed in how much we value children.
Kimberly:
Uh, and we want them to be safe in their homes, no matter what their families look like. And it is important to have that foundation of marriage. He talked about society, even though that’s not an area that is traditionally for that. So we’re seeing these cases go so far in a different direction, then you learn, “Okay, well, a bunch of these justices have very, very close ties with people who are deep-pocketed and have a big interest in seeing these decisions go in that direction.” Whether it’s Clarence Thomas and hobnobbing with Harlan Crow — a very wealthy conservative donor. Whether it’s Samuel Alito and his wife having very close connections with the folks who run the Supreme Court Historical Society, which sounds very, you know, fine and on the up-and-up, but it has been shown through reporting that it is basically a funnel for money for wealthy people to get access to members of the court. And he’s had these folks in his home. He’s been wined and dined by them. So when you see this, you say, “Wait a minute, how is this allowed?” And the answer is it’s not. But there’s no enforcement mechanism. The judges are their own judges when it comes to ethics rules, and that that’s really wrong.
Errin:
Yeah I mean, well, like you said, this is a largely, kind of, self-policing body here.
Kimberly:
Mm-Hmm.
Errin:
What are the steps that could be taken to restore confidence in the judiciary, if this is where we are?
Kimberly:
I think the only way to do it is for Congress to act to make these ethic guidelines — which is what they essentially are right now — rules. You know, the court put out a statement that basically, you know, laid out their ethical rules and said that, “no, we do follow them. Look at them. They’re right here.” Well, if you read them, first of all, they’re the same as the rules that are binding, by the way, to other federal judges, you know. Whether they’re in the appeals court or trial court, they have binding rules that they have to recuse in certain cases. They have to disclose these sort of conflicts of interest. It says “shall.” The Supreme Court put out all their rules — it’s identical to the lower court rules — but instead of “shall,” they replaced every “shall” with “should.”
Errin:
Huh.
Kimberly:
Like literally go find it, read it, and read it side-by-side. It’s like, “Are you kidding me?” So even when they say, “No, we’re policing ourselves, we really are,” they admit that they’re not. So Congress can put in place rules that are enforceable. They can, for example, create an independent body that will say, “No, no, if you didn’t, you know, disclose this gift, there is a repercussion for that.” Or “You indicated that you have stock in this company, so you must recuse from that case that is before the court,” or “you have close ties with this individual, with business before the court. So you must recuse in this case.” There’s a way to do it, but it has to come from Congress because the idea that the court’s gonna police itself has been shown to be a fantasy.
Errin:
Yeah, I mean, “should” is not a rule so much as it is a suggestion, right?
Kimberly:
Exactly.
Errin:
listen, I’m hearing you even talk about what Congress should do, but I mean, this is not right. This does not seem to be a Congress that is very inclined to do any of the things that you just described. So, I mean, I’m wondering, this is kind of, again, to the 2024 of it all: Is this an issue that voters care about? I mean, this issue in particular — not just, you know, the decisions that may alarm some voters or the decisions that some voters may absolutely be on board with \.” Could this be the issue of ethics in the Supreme Court? Could this be an issue for voters headed into the ballot box this fall, you think?
Kimberly:
It is an issue whether voters realize it or not, whether candidates realize it or not. The Supreme Court is on the ballot. It’s on not just the presidential ballot, because presidents select justices, but it’s on the every house and Senate ballot too because they are the people who would be empowered to make rules, to hold them to account. And so voters need to know and message to the lawmakers that are in place, and certainly to the candidates who are running for those offices, saying, “Look, I want to vote for someone who not only is on the right side of justice when it comes to the issues before the Supreme Court, but who is willing to put their money where their mouth is when it comes to holding them accountable. And that’s my issue. Will you pass a bill to hold the Supreme Court accountable and make them follow ethics rules and make that an issue?” And make that clear that that’s why they’re voting. Candidates shouldn’t be waiting for voters to say, “This candidates care about the integrity of the court.” Should be campaigning on this. And I think the more people find out about this, the more people learn, as you talked about, the polls, the more they care. I think a lot of people just didn’t know. They thought that the Supreme Court justices acted honorably. They didn’t realize that this was an issue. I think it has to come to the forefront any way that you can, whatever that flashpoint is. You know, there’s been a lot of talk in recent weeks about Taraji P. Henson talking about Project 2025 at the BET Awards.
Errin:
Yeah.
Taraji P. Henson:
“Time for us to play chess, not checkers. It’s about making decisions that will affect us as human beings, our careers, our next generations to come. Did you know that it is now a crime to be homeless? Pay attention. It’s not a secret. Look it up. They are attacking our most vulnerable citizens. The Project 2025 plan is not a game. Look it up.”
Kimberly:
Some people were saying, “Oh, that’s the first time that, um, you know, it’s really been brought to the public light.” Well, you and I know that’s not true. We have been talking about…
Errin:
Yes.
Kimberly:
…Project 2025.
Errin:
We are not Taraji P. Henson, though, to be fair.
Kimberly:
That’s right.
Errin:
To be clear.
Kimberly:
That’s where we are.
Errin:
We’re not Lizzo, it’s true.
Kimberly:
That’s my point. It can’t just be coming from the Kimberly Atkins Stohrs and the Errin Haines’ of the media world. It has to come from everywhere. It has to come from the movie star that you love and appreciate, and so when she says, “Look it up,” you do. It has to come from, you know, I’m not one of these people that’s like, “Oh, no, athletes and entertainers need to stay in their lanes.” Like, no, not when democracy depends on it. So I would love to see more people in the public sphere — wherever you are, corporate folks, everybody — talking about this issue, because it matters a lot. Anything that gets to the public. You can’t just expect politicians to do it on their own. Lawmakers, even though they should be doing more. I think that is what has to be done. Everybody has to know the Supreme Court is on the ballot. Every ballot that you’re voting on, the Supreme Court’s on it.
Errin:
Well, I mean, just for the record, I listen to you. And, listen, for those of you listening out, you can listen to Taraji P. Henson and Kimberly Atkins Stohr. It’s okay.
Kimberly:
Yes, you can.
Errin:
It’s okay, people. It’s okay. We can do this. So, speaking of which, I wanna talk about representation. Representation in the court, right? Because you do have this record number of women on the bench, yet most of them are in the liberal minority. So like, how are you seeing that translate on the court in terms of, like, influence? Power?
Kimberly:
Yeah. Um, so we have greater gender representation, as you’ve pointed out. We have greater geographic representation. For a long time, the court was very coastal. We don’t have much educational diversity. I mean, we have one justice who did not go to an Ivy League law school, and that’s Justice Amy Coney Barrett, who went to Notre Dame. But the problem is you have so little ideological diversity that that overshadows any other diversity that you may have in any other way. And that’s problematic.
Errin:
Hmm.
Kimberly:
You have people who, by and large, you have five justices who have a conservative view, and they see this stuff in lockstep the vast majority of the time, right? You will always have five. Yes, I know it’s a six justice majority, but what often happens is, when it was a five-four court, you had a conservative majority too.
Kimberly:
But they all, within that conservatism, saw things or approached them from a different way. So sometimes you could only get the four to get to your ultimate decision. And so there had to be some compromise there.
Errin:
Yeah.
Kimberly:
You know, if they wanted to have a more narrow ruling that can get not just the fifth person on board, but maybe a sixth and seventh, and then they don’t go so far. They move more deliberately. You don’t have that. You have six conservatives. You’re always gonna have five who’s gonna go there. I know there’s a lot. I just wrote a column about Amy Coney Barrett and how people are saying, “Oh, she breaks with the conservatives sometimes. She’s showing independence. She’s a bit of a maverick.” No, she’s not. ‘Cause every time she did that, there were already a majority of votes without her.
Kimberly:
So she had the freedom to say, “Okay, well, I’m gonna say a little bit, you know. I’m gonna pull back a little bit on this unitary executive theory that says presidents are, you know, kings,” or “I’m gonna, you know, say, ‘oh,I don’t think that you should block that EPA ruling. I am gonna go over here with my girls and, you know, it’s gonna be girls against boys on this one.’” No, no. That’s not being a maverick. No. I wanna see her be the deciding vote that keeps the conservatives from doing something terrible. Then I’ll call her a maverick. s
Errin:
So we’ve spoken a lot about the conservative wing of the Supreme Court, but I do wanna bring up Justice Katanji Brown Jackson, first Black woman Supreme Court Justice. So she’s not only in the minority on the court ideologically, but she’s also the newest justice. But that has not stopped her from using her voice. People are very interested in hearing what she has to say. She said in her dissent to the Idaho abortion ruling that reinstated the ability to perform emergency abortions under ban, that it was, quote, Not a victory for pregnant patients. And to bring clarity and certainty to this tragic situation, we have squandered it.” So, I mean, how has Justice Katanji Brown Jackson’s presence and vocal dissent, particularly in the Idaho abortion ruling, really kind of influenced the dynamics of the Supreme Court? I’m wondering what impact her perspectives might have on future rulings and public discourse and just, uh, you know, people paying more attention even, uh, to what is happening on the court, just as a result of her presence on the court.
Kimberly:
She has done, um, exactly what I predicted she’d do when she joined this court. What I said is she could use her voice and she can advocate, and she can, within both to her fellow justices, as they conference after every single case, she has a voice that they have to listen to. And she can also make plain in her opinions, even if they’re dissents, exactly the view of the constitution and originalism as she sees it. And that’s exactly what you have seen her do, not just in this term. As you pointed out in that Idaho case, which made it clear just in plain language what the impact of that decision was, which is important, that there is still no clarity — that people are still in the dark, doctors don’t know what to do, patients don’t know what to do.
Kimberly:
So why are we even here? This was last term, but the Voting Rights Act case that we thought that was gonna mean, “Oh, no, the Voting Rights Act is gonna be rolled back even more.”
Errin:
Yeah.
Kimberly:
And the court not only upheld it, but actually applied the Voting Rights Act.
Errin:
Yeah.
Kimberly:
And in oral arguments — and this wasn’t laid out in the Chief Justice’s opinion — but in oral arguments, Kantaji Brown Jackson gave a masterclass in the 14th Amendment, and that originalism and what the reconstruction statutes were meant to be. What the 14th Amendment was meant to bring about. And it was exactly the kind of protection against the gerrymandering that was the subject of that case — of the voter suppression that was the subject of that case. So to say that there was no constitutional analogy there ignores an entire section of the Constitution, an entire era of our history.
Errin:
Yeah.
Kimberly:
Where that was absolutely what originalism was. And somehow Chief Justice ended up applying it. He didn’t give Justice Jackson credit, but I did because I could hear her voice in that, in dissent, if it went the other way. So, I think she is a powerful voice on the court. I believe that all three of the women who are usually in dissent have sort of found their lanes, right? Like about where they’re gonna speak about this. You know, it was Justice Sotomayor that gave that powerful dissent in the immunity case. It was Justice Jackson in the Idaho abortion case. It’s been Justice Kagan in other cases. I think that they are crucial, crucial voices that are important to educate the public about what the stakes are.
Errin:
Yeah. Yeah. Well, I’m wondering, I mean, listen, I know we just got out of this last Supreme Court session, but what can Americans expect for the next session coming this fall? What are your predictions?
Kimberly:
Yeah, I think we definitely have the cases involving transgender rights. There are already, I think, two on the docket, and I would expect more with everything from discrimination to gender-affirming healthcare that’s coming up. I think we’re gonna get a lot more immigration rulings in the future. And I think, most of all, what we’re gonna see are federal agencies losing all their power. You know, this term, the court threw out an essential doctrine that gave federal agencies the ability to interpret their own rules and to have courts respect that interpretation. That’s gone. We’ve already seen this court roll back even more the ability of the EPA to keep air clean. Last term it was their ability to keep water clean. Um, we are seeing them really attack the administrative state. Which, really, regulations do everything from keeping banks from fleecing us with, you know, usurious interest rates, to make sure that the toys your kids play with are safe and aren’t gonna hurt them or poison them, to make sure that that plane you get on isn’t gonna have a door that flies off.
Kimberly:
So that can be really dangerous to Americans. And that’s something that I fear is, uh, really gonna come into play next term.
Errin:
Yeah, absolutely. And I guess the last thing I would ask you then are really about the broader implications of the Supreme Court’s recent decisions this session, particularly on civil rights and social justice issues. What are the implications for 2024 and beyond?
Kimberly:
Yeah, I think particularly that we’ve already begun to start to see the vestiges of the loss of affirmative action. You’re seeing challenges to any DEI-related program in any school, workplace, anything. In fact, you’re seeing it go farther than that. You’re seeing people suing on behalf of, you know, that it’s discrimination against White folks. I mean, you’re seeing cases about…
Errin:
Yes
Kimberly:
…Black venture capitalists funders aren’t able to give their money to Black businesses because that’s discrimination against White. Are you kidding me? Like I wrote that it’s something like, um, VC funds…
Errin:
One percent.
Kimberly:
Yeah. One point three percent…
Errin:
One percent.
Kimberly:
…of all VC funds are from Black funders.
Errin:
And we’re not talking about millions and millions of dollars that are going to Black women
Kimberly:
No! So…
Kimberly:
It’s like, “What are you talking about?” So we’re gonna see more of that. I think we’re gonna definitely see if Clarence Thomas is a beacon of the future. You’re gonna see rolling back of access to contraception. You’re gonna see rolling back of…I’m worried about same sex marriage. I’m worried, you know, before Congress passed their bill protecting interracial marriage, I was worried about my own marriage. I feel like all bets are on the table at this point. Which brings us back to Congress again, right? Congress can act to shore up these rights, but if they don’t, it’ll really be something if more conservative judges and justices are appointed to our judiciary.
Errin:
Well, uh, we should pay attention. And you and I shall stay in touch. Kimberly Atkin-Stohr, thank you so much for joining The Amendment.
Kimberly:
Thank you so much for having me. It’s a real important conversation.
Errin:
Well, that’s this week’s episode of The Amendment, which is also a newsletter, by the way, that I write. You can subscribe to it for free by going to 19thnews.org. That’s where you can also find all of our great journalism around gender, politics and policy. For The 19th and Wonder Media Network, I’m Errin Haines. Talk to you again next week.
The Amendment is a co-production of the 19th News and Wonder Media Network. It is executive produced by Jenny Kaplan, Terri Rupar and Faith Smith. Wonder Media Network’s Head of Development is Emily Rudder. Julia B. Chan is the 19th’s editor-in-chief. The Amendment is edited by Jenny Kaplan, Grace Lync, and Emily Rudder, and it’s produced by Adesuwa Agbonile, Grace Lynch, Brittany Martinez and Taylor Williamson, with production assistance from Luci Jones and post-production support from Julie Bogen, Victoria Clark, Lance Dixon and Wynton Wong.
