American democracy faces a defining challenge as the judiciary—our system's intended steady hand—confronts unprecedented attacks from a presidency openly questioning its legitimacy. Trump's declaration that he can ignore Supreme Court rulings represents more than partisan rancor; it threatens constitutional governance itself.
Professor Tara Grove joins the pod and offers critical perspective by examining historical confrontations between courts and presidents. While Lincoln tested judicial authority during the Civil War and FDR privately threatened to defy the Supreme Court during WWII, today's explicit challenges to judicial legitimacy feel distinctly dangerous. When Roosevelt informed his attorney general that Nazi saboteurs would not be released regardless of court rulings, this knowledge influenced justices to approve military tribunals rather than risk institutional humiliation. Similarly, when implementing Brown v. Board of Education, the Supreme Court adopted the notoriously weak "all deliberate speed" standard specifically because justices feared southern states would openly defy stronger mandates.
These historical examples reveal the judiciary's fundamental vulnerability—courts possess neither budget authority nor enforcement powers, only judgment. Their effectiveness depends entirely on other branches' willingness to comply with rulings. The post-Civil Rights era established a crucial norm of compliance that Trump now threatens to unravel. His administration has already demonstrated selective compliance, ignoring the TikTok ban and twisting itself into knots to justify not returning Bimbo Abrebo Garcia from El Salvador despite court orders.
As the Court prepares to rule on birthright citizenship, religious education funding, trans rights, and redistricting, justices must weigh not just legal principles but whether their decisions will maintain institutional credibility if openly defied. This precarious position raises profound questions: Are we witnessing democracy's unraveling or just another challenging chapter in America's constitutional experiment? And what responsibility do citizens bear in reinforcing judicial authority through our own respect for constitutional norms?
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Speaker 1 (00:00):
So I think it's crucially important that since
the mid-20th century, and reallysince the civil rights movement
, there has been anextraordinarily strong norm of
compliance at both the federallevel and the state and local
level, and I think that's whatthe Supreme Court is going to
have to be banking on today.
But it does concern me a lotthat there have been attacks in
the federal judiciary for thepast five or 10 years, coming
(00:22):
from different political sidesat different times, and that
people have pushed against thisnorm, and I think that's going
to be a real challenge for thecourt today.
Speaker 2 (00:40):
Welcome to Deep Dive with me, sean C Feddick.
The judiciary has long beenseen as the steady hand in our
American system of checks andbalances, the institution that
stands apart from politics andpartisanship, but under this
second Trump presidency, thatperception, and perhaps that
reality, is under direct threat.
(01:02):
Trump has made the courts acenterpiece of his political
grievances, attacking judges,ignoring rulings and flooding
the judiciary with loyalists whomay be more committed to an
ideology than to theConstitution.
At the same time, the courtsthemselves are struggling to
respond, torn between precedent,independence and the
(01:22):
unprecedented nature of whatthey're being asked to decide.
As a result, we may bewitnessing the unraveling of
judicial authority in ourconstitutional system.
It's unclear if the courts canpush back in ways that actually
matter, or if we might beinching toward a constitutional
crisis where the final arbiterof the law the courts are simply
(01:43):
ignored, with the Supreme Courtpreparing to rule in the next
couple of months on issuesrelated to birthright
citizenship, public funding ofreligious education, workplace
discrimination, trans rights,funding for Planned Parenthood,
due process for immigrants,residents and citizens alike,
redistricting and the deathpenalty, in an environment in
(02:05):
which the President, donaldTrump, has stated that he has
the authority to ignore SupremeCourt rulings with which he
disagrees and has suggested thathe will, if he hasn't already.
These questions have never beenmore in need of an answer To
help us understand this momentand the stakes for American
democracy.
I'm joined today by friend ofthe pod, dr Tara Grove, vincent
(02:27):
and Elkins.
Chair in Law at the Universityof Texas at Austin, legal
scholar and expert on thejudiciary, she's written
numerous pieces about the courtsand how the judiciary can
respond to threats against itslegitimacy, and also what
meaningful reform to ensure itsimpartiality and endurance might
look like.
All right, if you like thisepisode or any episode, please
(02:50):
give it a like, share and followon your favorite podcast
platform and or subscribe to thepodcast on YouTube.
And, as always, if you have anythoughts, questions or comments
, please feel free to email meat deepdivewithshawn at gmailcom
.
Let's do a deep dive, professorGrove.
(03:16):
Thanks for being here.
How are you?
Speaker 1 (03:18):
I'm doing okay.
Thank you for inviting me.
Speaker 2 (03:20):
Yeah, absolutely so.
We're living through what Iwould characterize as
extraordinary times.
To some, we're witnessing theend of American democracy, to
others we're experiencing aconstitutional crisis, but to
others, this is a dream realizedthe expansion of executive
power, the diminishment ofCongress and the judiciary, and
it's this latter that I'minterested in talking about with
(03:40):
you today.
So the Supreme Court is windingdown its term and that means
that a lot of very consequentialissues are going to be decided
on, things like birthrightcitizenship, gun control,
redistricting immigration that'sjust to name a few.
And Trump has suggested in pastthat he considers himself to be
the final arbiter of law andthat he may ignore rulings with
which he disagrees, and frankly,he already is.
(04:01):
He's ignored the TikTok ban,which we don't really talk about
anymore.
He's kind of twisted himself inknots to justify ignoring the
Supreme Court order tofacilitate the return of Kilmar
Braygo Garcia, who hasdisappeared to a Salvadoran
prison without any due process.
But in the grand scheme, Iguess in the arc of American
history, I'm not quite sure howunprecedented this is.
I know there's been otherconfrontations between the
(04:22):
executive and the judiciary inpast.
During the Civil War, lincolntested the court's authority,
fdr did battle with the courts,so did Nixon, but regardless,
this moment right now feels likea real threat to democracy, but
you'd know better than I would.
So how would you characterizethe moment?
We're in the pressure that thissecond Trump presidency is
placing on the judicial system?
Speaker 1 (04:50):
Right.
So I think the first thing tokeep in mind is that, in my view
, it's hard to evaluate apolitical moment when you're
living through that politicalmoment.
I think we'll actually have amuch better understanding of our
current political moment in 20or 30 years, which is, of course
, not what everyone wants tohear.
Right, we want to understandthings immediately, but I think
that's actually quite hard and Ithink we understand the past
probably far better than thepeople living through those
moments may have understood it.
(05:12):
Whether this is unprecedented,I think, is hard to say, in part
because we are living throughthis moment but also because I
think it's easy in hindsight toforget how difficult the moments
were in the past.
So you mentioned the Civil War,and I think it's easy in
hindsight to forget howdifficult the moments were in
the past.
So you mentioned the Civil Warand I think that's an important
thing to think about.
So after Lincoln passed away,was assassinated, I should say
(05:36):
there was a huge amount offighting between President
Andrew Johnson and the Congressat the time.
The Congress at the time wantedto reconstruct the South.
The president was not asamenable to that, at least not
the way that the ReconstructionRepublicans were doing it, and
so there were confrontationsbetween Congress and the
(05:56):
executive at that time, andCongress passed legislation over
presidential veto and caseswent to the Supreme Court.
Southern states werechallenging the validity of
Reconstruction.
The Supreme Court used variousprocedural mechanisms to get rid
of a couple of those cases, andthen a case came before the
Supreme Court that involvedsomeone who had been thrown in
(06:17):
jail for protesting acts of theReconstruction Congress.
Now this was a guy named WilliamMcArdle who was not, I would
say, a great person.
He was deeply opposed toReconstruction, deeply opposed
to giving people of color theright to vote.
He was deeply opposed to manythings that many of us today
(06:40):
would find quite good.
Yet in our constitutionalsystem.
I think it would surprisepeople to know that the editor
of the Vicksburg Times, which isthe role that William McArdle
held at the time, was thrown inprison for writing what he
believed in the newspaper, whichis what he did.
So it was the editorials hewrote, and they were pretty ugly
(07:03):
editorials, but I think thatwould surprise people.
So he filed a petition for writof habeas corpus, that is, a
petition to get out of detention, and the case went up to the US
Supreme Court.
When it got there this was inthe middle of the impeachment
trial of President AndrewJohnson.
A pretty difficult time for thecourt, president Andrew Johnson
(07:27):
, a pretty difficult time forthe court, and the court held
the case and while it was beingheld, congress passed
legislation to take away theSupreme Court's jurisdiction to
decide the case.
So this was a constitutionalchallenge to reconstruction,
involved somebody who had beenput in jail although I think at
the time he was on bail and theSupreme Court was confronted
with a federal statute that saidyou can't decide the case and
the Supreme Court said we can'tdecide the case.
(07:49):
So I think that's a prettyextraordinary moment of
confrontation and I think what'snotable about it is one can
look at this history in variousways.
Right, william McArdle was nota great person by modern
standards, and yet I think itprobably would concern many
people today the idea that thefederal government can throw
(08:12):
somebody in jail for whatthey're writing in a newspaper
and that when the case goesbefore the Supreme Court, the
response of Congress is not tosay, okay, we're going to let
the courts decide this, butrather the response of Congress
is we're not going to let thecourts decide this.
So I think that's one examplejust to underscore that times
can be difficult and have beendifficult in American history.
(08:33):
Another pretty extraordinaryexample comes from the World War
II era.
So this is the FranklinRoosevelt administration that
you referred to in your lead up.
So during World War II, a groupof saboteurs from Germany, so
Nazi saboteurs came on US soiland they were going to do some
(08:55):
really bad stuff.
The plan was to actuallyundermine various American
facilities, various Americanfacilities, and, fortunately,
one of the saboteurs.
These guys weren't terriblyorganized.
They were caught and one of thesaboteurs gave them up, and the
question was what to do withthem.
The Roosevelt administrationdid not put them through a
(09:16):
normal criminal trial.
They rather put them through amilitary proceeding.
Even though one of those peopleclaimed to be an American
citizen, the case went up to theSupreme Court.
It's a case called Ex ParteQuirin.
The Supreme Court okayed theexecution of these individuals
without writing an opinion, andthey were executed before the
(09:37):
Supreme Court actually wrote theopinion explaining why that was
okay.
One thing to note about thatcase while it was pending in the
Supreme Court, franklinRoosevelt told his attorney
general, francis Biddle, that nomatter what the Supreme Court
did, roosevelt would not releasethe saboteurs.
(09:57):
And history tells us thatFranklin Roosevelt's declaration
to his attorney general madeits way somehow to the Supreme
Court justices.
So when they decided that itwas okay to execute the
saboteurs, most of them wereexecuted.
One got a life sentence.
The justices knew that anyalternative ruling would not be
(10:18):
obeyed by the president.
Now again, this is a complicatedtime right.
This was a tremendous threat tothe United States at the time,
right that Nazi saboteurs hadcome onto US soil and were
planning really, really badthings, and the then FBI
director, j Edgar Hoover, saidthat the capture of these folks
was a great American achievement, and actually the public
(10:42):
opinion was very much in favorof Roosevelt and against the
saboteurs.
Public opinion very much wantedthe execution of these
individuals.
But I think this once againunderscores that the Supreme
Court in the past has beenconfronted with some really
difficult situations, and soit's very, very difficult to say
(11:02):
if the current moment isunprecedented or just a
continuation of some difficulttimes in American history.
Speaker 2 (11:11):
So I want to pull up one of the threads here, which
is this idea that the courtmight have known how FDR was
going to respond to an adverseopinion coming from the court
and that they may have tailoredtheir response in such a way as
to address that.
Because I do think that theSupreme Court today is well
aware of what Trump is sayingand the challenges that he's
(11:32):
posing for the court, and so Ihave to imagine that the
justices at minimum, or at leastChief Justice Roberts, is
thinking about how the court canrespond in such a way not just
to speak to the merits of a casebut also to the potential
response coming out of thepresidency.
And I guess I wonder if you canimagine what effective judicial
(11:52):
responses could be that gobeyond the merits of a case but
really do speak to a challengecoming from the executive on the
authority of the Supreme Court.
Speaker 1 (12:24):
This has been a challenge for the US Supreme
Court throughout its history.
What an executive official incontempt of court that is for
failing to obey a decision.
But at bottom, courts have torely on the willingness of
others to obey their decrees.
The judiciary, the leastdangerous branch, and I think
(12:49):
some people today say well, howcan that be?
They're deciding major issueson the regulation of guns, the
regulation of abortion, foreignaffairs, huge issues.
How can they be the leastdangerous branch?
Well, as Alexander Hamiltontold us in the Federalist Papers
, because they have neither theperson or the sword.
They have only judgment.
And the importance of thosejudgments matter only to the
(13:10):
extent that others will obeythem.
And throughout our history theSupreme Court has faced this
dilemma.
You know both.
Will other actors comply withtheir decisions and what do they
do in response?
So the earliest example of this, or one of the earliest
examples of this, is actually acase that's very, very famous
(13:33):
for something else, and that'sMarbury versus Madison in 1803.
So many people today are awarethat at this time there was a
lot of disagreement between theDemocratic Republicans and the
Federalists.
I teach this to my students andthanks to the musical Hamilton,
people are much more familiarwith this era of history, which
(13:53):
is kind of handy.
And you know, one of the thingsI underscore for my students
and they do get this, in partbecause of the musical Hamilton
in the election of 1800, whenThomas Jefferson faced off
against John Adams so it was theThomas Jefferson's Democratic
Republicans versus John Adams'Federalists previously George
Washington's Federalists andthese two political parties
(14:14):
hated each other and they firmlybelieved that if the other
political party gained power,that would be the end of
American democracy.
And this has great resonancewith my students today.
Right, think about this.
And this was the world in whichthe Supreme Court decided the
case of Marbury versus Madison.
Now, prior to that case, rightbefore John Adams left office,
(14:36):
the Federalists had tried todramatically expand the federal
judiciary so that Adams couldappoint a bunch of judges.
And when the Jeffersonians cameinto office Thomas Jefferson
did indeed win the election theyrepealed that law, which meant
they fired Article III judges,so judges that were supposed to
have tenure and salaryprotections.
(14:57):
They were fired, and some ofthese judges had served for
about a year before the repealwas finally passed.
In that same period, congressdelayed the Supreme Court's term
such that the Supreme Court didnot hear any cases as the
Supreme Court in 1802.
And that's actually why Marburywas decided in 1803.
Marbury versus Madison was theeffort of a guy named William
(15:18):
Marbury to actually get a job asa non-Article 3 judge in
Washington DC and the Jeffersonadministration had refused to
deliver the commission.
So the idea was hey, jamesMadison, deliver the commission.
James Madison didn't show upfor any of the court proceedings
and Chief Justice John Marshallknew that if the Supreme Court
(15:41):
said, secretary of State, jamesMadison, you must deliver this
commission to William Marbury.
It was extremely unlikely thatthe Jefferson administration
would do anything at all.
What the Supreme Courtultimately held was that it
lacked jurisdiction over thecase and this is why Marbury
versus Madison is known as acase about judicial review,
because they held that thestatute granting that, they said
(16:04):
, granted them jurisdiction inthe case was unconstitutional.
So it's known as this case.
That was just a declaration ofgreat Supreme Court power.
But if you look at the history,what it also reflected was a
moment of great Supreme Courtweakness and it's really hard to
look at that history and thinkthat the background knowledge
that Thomas Jefferson would notlisten to anything the Supreme
(16:25):
Court said had no impact on whatthey did.
Fast forward in history.
You can look at the Civil War,you can look at World War II,
but I actually want to fastforward to the Civil Rights
Movement and Brown versus theBoard of Education.
In Brown, as I suspect mostpeople know, if not everyone,
the Supreme Court declaredsegregation in public education
(16:46):
to be unconstitutional.
But then the question waswhat's the remedy?
There were segregated publicschools throughout the country.
So in 1955, the Supreme Courttook up that question Like what
do we do?
What do we have them do?
And in 1955, then NAACPattorney Thurgood Marshall said
to the court you have to imposea firm deadline.
(17:10):
You have to tell all of thesestates with segregated schools
that they must stop by a certaindate.
Thurgood Marshall said thatdate should be either September
1955, which, by the way, wouldhave been a couple of months
from the oral argument, orSeptember of 1956, if you want
to give them another year.
Well, the justices and we haverecords of judicial statements
(17:32):
from within the chambers thathave come out since the justices
were terrified that thesouthern states would not obey
any such decree.
So instead they said, in a casethat has come to be known as
Brown 2 in 1955, they said thatdesegregation should take place
with, quote-unquote, alldeliberate speed.
Now, for anyone who's studiedthe civil rights movement,
(17:54):
they've probably heard this term.
And, as I say to my studentswhen I'm talking about this, I
say just imagine your professortells you your paper is due by
May the 4th but then later saysactually no, no, no, just turn
it in with all deliberate speed.
When do you turn in that paper?
And my students typically say,well, not for a long time, maybe
never.
(18:14):
And I say that's exactly whathappened after Brown too.
By 1964, 10 years after Brown,versus the Board of Education,
less than 2% of the schoolsacross the South that had been
segregated were desegregatedLess than 2% by 1964.
All deliberate speed meantbasically nothing.
(18:36):
So these are situations wherethe Supreme Court was faced with
government officials whom theyfeared would not comply with
their orders and the SupremeCourt backtracked.
So I think it's cruciallyimportant that since the
mid-20th century, and reallysince the civil rights movement,
there has been anextraordinarily strong norm of
(18:57):
compliance at both the federallevel and the state and local
level, and I think that's whatthe Supreme Court's going to
have to be banking on today.
But it does concern me a lotthat there have been attacks in
the federal judiciary for thepast five or 10 years coming
from different political sidesat different times, and that
people have pushed against thisnorm.
And I think that's going to bea real challenge for the court
(19:20):
today as it looks back at thishistory and thinks how it will
be evaluated in the future,because I don't think many
people look back on alldeliberate speed with great
fondness.
Speaker 2 (19:32):
So I'm glad you bring up Brown 2 and all deliberate,
speed that language, becausewhen I read the Abrego-Garcia
decision I had a little bit of awhiff of Brown 2 in the
language of facilitate thereturn.
We perhaps will never know, butit felt to me as if the Supreme
Court was being maybe a bit toocute by half in using the
(19:53):
language facilitate, givingthemselves a little bit of
wiggle room, or maybe giving theadministration a little bit of
wiggle room, such that if thereturn was not successful, or if
Trump determined that theadministration was not going to
return Abrego Garcia, that thatfacilitate administration was
not going to return a BorregoGarcia, that that facilitate
language was the out for them,did you get the same sense?
Speaker 1 (20:15):
So I think it is always very difficult, when
courts are dealing with mattersthat impact the United States
relationship with foreigncountries, to figure out what
courts.
We can't tell you what that is,because undoubtedly diplomatic
relations are going to have todepend a bit on the executive's
(20:45):
power and executive discretion.
But I think you're right too.
It allowed some wiggle room interms of the interpretation of
whether the executive wasactually going to comply with
that order.
Now, what facilitate clearlydoes not mean is nothing at all,
which some people took to bethe immediate response of the
(21:06):
administration in that case, andin some ways that makes it easy
right.
Well, you're not facilitatingif you're refusing to do
anything at all.
My understanding is that may bechanging now, and then I think
we will be very much faced witha question that you raised.
Facilitate may actually mean anattempt, an attempt that is
unsuccessful.
(21:26):
That may be compliance with theSupreme Court's order, but
certainly not satisfactory atall to people who are concerned
about this case.
Speaker 2 (21:35):
So I mentioned earlier this idea that some
people think that we are alreadyin a constitutional crisis.
Others think that we're staringdown the barrel of one.
To your mind, when are weactually in a constitutional
crisis, and what does that looklike?
Speaker 1 (21:51):
So I think this is a truly, truly difficult question.
As I said earlier, I don'tthink one can easily evaluate or
label a political moment whenone is living through that
political moment.
I think it's very, very hardfor us to understand whether we
are in or not in aconstitutional crisis, and I
(22:12):
think it's also important topause and consider what we think
that means and consider what wethink that means.
So I hear a lot of people andI've been asked this question.
I can't tell you how many timesover the past couple of months.
Are we in a constitutionalcrisis?
And what people don't thenpause to wonder is well, if we
are, how does that change thedaily lives of individuals
(22:35):
living in this country?
If the answer is it doesn't,then the label doesn't really
matter one way or the other,right.
The other reason I'm concernedabout people using a label like
that too quickly is, I think,that it makes it easier for
government officials who wereotherwise inclined to act
(22:55):
without tremendous deference forthe judiciary or judicial
opinions to say well, we'realready in a constitutional
crisis, so there's no turningback now, and I think it's
really important to recognizethat we're not there yet as a
country.
There are still many statementsfrom the executive branch saying
we must comply with federalcourt orders.
(23:16):
There are examples, reallyimportant examples of compliance
, including when the SupremeCourt issued its midnight order
a couple of weeks ago saying youmay not remove any of the
individuals from Venezuela thatare currently challenging their
detentions.
You may not remove them and, atleast according to the parties
(23:37):
in the case, remove them.
And at least according to theparties in the case, that order
led the government to turntrucks around that were on their
way to the border in Texas.
So I think that there are stillmany, many examples where the
executive branch is adhering tothe norm of compliance, and I
think it's important that weemphasize there is that norm and
(23:58):
that's a crucially importantpart of American democracy.
Speaker 2 (24:02):
If we were to look into the future and we were in a
position where we needed torebuild American democracy, or
we could even take this from adifferent position, if we were
just to imagine what a fortifiedAmerican democracy would look
like.
I think that both people on theleft and on the right would
agree that they have a vision ofhow the judiciary could be
designed better in our Americandemocratic system, how it could
(24:24):
be, rightly or wrongly, lessbiased, depending on how you
view the court less partisan,more independent and you've
worked in judicial reform orworked on judicial reform a bit,
so could you maybe help meunderstand what a stronger, more
independent judiciary wouldlook like if we could design it
today to withstand some of theshocks that it's experiencing?
Speaker 1 (24:47):
So I think there is a tendency and this is a tendency
that has existed throughout ourhistory to say that when a
court, or several courts, issuea decision that we don't like,
we being whoever disagrees withthe decision at the time that
there's something wrong withjudicial independence.
(25:08):
The judiciary must be biased ifthey're not ruling in the way
that I like, and we've seen thisthroughout our history.
So in the late 19th, early 20thcentury, populists and
progressives viewed the courtsas pro-business, and so they
attacked the courts and tried totake away jurisdiction over
cases involving big business.
Franklin Roosevelt, of course,proposed expanding the court to
(25:31):
15 members after the SupremeCourt was perceived as
invalidating many of his NewDeal measures.
It's actually important to notethat the Supreme Court upheld
New Deal measures even then, andin the 1950s, 1960s, 1970s and
1980s, a lot of conservativeswere very unhappy with the
United States Supreme Court.
So there were proposals toimpeach Earl Warren, there were
(25:53):
proposals to take away federaljurisdiction over cases
involving school prayer andabortion, and even desegregation
to the extent that it involvedbusing, and in all of these
situations, people have said thecourts are biased.
When I look back at that history, I see judges who obviously
(26:15):
have perspectives and everyone,whether the person is a lay
person on the street, a memberof the executive branch, a
member of a state legislature ora judge at the state or federal
level, has a perspective.
That person has a background.
That background involves wherethey came from, their ideology
and lots of things.
But what I have seen in lookingat our history and in talking
(26:40):
to federal judges today andreally over the past five or 10
years, is that that's not howthey look at their jobs.
If you talk to a federal judge,no matter who appointed that
judge, in almost all cases allcases that judge is going to say
(27:04):
look, I try my best to decidethe cases on the law, and not
because the particular presidentwho appointed me wanted me to
decide it that way, not becausethe particular Senate that
confirmed me wanted me to decidethat way, but because that's
what I view as the best decisionon the law.
Now are there times when Idisagree with court decisions.
Of course.
Are there times when I think inour history have politics
(27:27):
influenced the way the SupremeCourt has decided a case?
Probably, but in the largermeasure of hey, these people
view things from a differentperspective than I might view
them view things from adifferent perspective than I
might view them.
All this is to say I thinkpeople on all sides greatly
overstate the lack of judicialindependence of our federal
(27:49):
judiciary today.
Lots of people have asked mewell you know, doesn't a
particular administration justkind of control the court at a
particular period of time?
This has been true for the pastfive or 10 years and my answer
is always no, no, they don't.
So I think many presidents havedone a pretty good job of
appointing and many senatorshave done a pretty good job of
confirming federal judges.
(28:09):
My only concern today iswhether that will continue and
we will continue to have ajudiciary that, by and large,
does act independently.
Speaker 2 (28:20):
All right, final question you ready for it?
Of course, what's somethinginteresting?
Speaker 1 (28:23):
you've been reading, watching, listening to or doing
lately, and it doesn't have tobe related to this topic, but it
can be.
So I do spend a lot of timereading about law, including
history and current events.
But in terms of interestingthings, my kids are really
involved in music and dance andtheater, and this is the time of
performances and recitals.
(28:45):
So yesterday I was at my son'stheater performance at school,
last night I was at his bandperformance.
This weekend I'm going to hisother theater performances.
My daughter just had a dancerecital and has some piano
recitals coming up, and I thinkyou know, when we're feeling
concerned about the world aroundus as I think many of us are
(29:10):
and have been for some time it'sreally important to remember
that there's still thoseeveryday things that can give us
great joy.
Speaker 2 (29:19):
What productions is your son in?
Speaker 1 (29:21):
So it's both.
The school play was this weekand he's in a community theater
production.
I don't think these areproductions that most people
would be familiar with.
The one that his school didthat people might have heard of.
Last year he starred in Rock ofAges, which is a musical.
It was a sanitized version ofthe musical from middle school,
(29:42):
um, but most of the productionsum, I actually give credit to
his, his drama teacher, both atschool and also the um zach
theater here in austin.
Um, they do a really good jobof finding productions that are
not widely known, right, rightthat that um people from the
Austin area, um people involvedin education, have have put
(30:03):
together and and they performthese, and they're usually
pretty funny and pretty cute andvery much designed for middle
schoolers.
Speaker 2 (30:11):
That's cute.
I, uh, I did theater.
No, that's not true.
I did one theater productionwhen I was in high school.
I was able to graduate early,so I could have graduated in
December from high school, but Iwas in the production of Diary
of Anne Frank and that didn't.
We weren't actually performingit until February, and in order
(30:33):
to stay in the production, I hadto do, I had to finish the
school year, go through June,and I did choose to do that, but
that was it.
That was it for me.
That was the one thing, sowe'll see how it pans out.
I suppose for your son it's afun.
It's a fun experience, right?
Speaker 1 (30:46):
Yeah, yeah, I mean music is is a huge part of his
life.
He's about to start high schooland he's going to be in the
marching band and choir andprobably continue theater and
study too, I hope.
Speaker 2 (30:57):
Yeah, very cool, professor Grove, thanks for
taking the time and for theconversation.
Speaker 1 (31:07):
Thank you.
Speaker 2 (31:13):
The courts are not immune to the political
environment currently shakingthe foundations of American
democracy.
In fact, they may be its lastline of defense or its next
casualty.
The judiciary's strength liesnot just in legal doctrine, but
in the public's willingness torespect its authority.
As Trump tests the limits ofthat respect, the stakes could
(31:35):
not be higher, and the next fewmonths will be critical as the
courts struggle with ways tohold the administration
accountable, to ensureacquiescence to its rulings and
act as an effective checkagainst the rise of
authoritarianism.
All right, deep Dive will be onvacation for a while, because
in the next couple of weekswe'll be launching our new
(31:55):
limited series, leaving America.
If you've ever thought or arethinking about moving to another
country for whatever reason, toescape the political
environment, to escape the gunculture, for lower taxes, for
better health care, this seriesis for you.
So keep checking back on theDeep Dive with Sean feed for the
Leaving America limited series.
(32:16):
Chat soon, folks, thank you,thank you.
So I think it's crucially important that since
the mid-20th century, and reallysince the civil rights movement
, there has been anextraordinarily strong norm of
compliance at both the federallevel and the state and local
level, and I think that's whatthe Supreme Court is going to
have to be banking on today.
But it does concern me a lotthat there have been attacks in
the federal judiciary for thepast five or 10 years, coming
(00:22):
from different political sidesat different times, and that
people have pushed against thisnorm, and I think that's going
to be a real challenge for thecourt today.
Speaker 2 (00:40):
Welcome to Deep Dive with me, sean C Feddick.
The judiciary has long beenseen as the steady hand in our
American system of checks andbalances, the institution that
stands apart from politics andpartisanship, but under this
second Trump presidency, thatperception, and perhaps that
reality, is under direct threat.
(01:02):
Trump has made the courts acenterpiece of his political
grievances, attacking judges,ignoring rulings and flooding
the judiciary with loyalists whomay be more committed to an
ideology than to theConstitution.
At the same time, the courtsthemselves are struggling to
respond, torn between precedent,independence and the
(01:22):
unprecedented nature of whatthey're being asked to decide.
As a result, we may bewitnessing the unraveling of
judicial authority in ourconstitutional system.
It's unclear if the courts canpush back in ways that actually
matter, or if we might beinching toward a constitutional
crisis where the final arbiterof the law the courts are simply
(01:43):
ignored, with the Supreme Courtpreparing to rule in the next
couple of months on issuesrelated to birthright
citizenship, public funding ofreligious education, workplace
discrimination, trans rights,funding for Planned Parenthood,
due process for immigrants,residents and citizens alike,
redistricting and the deathpenalty, in an environment in
(02:05):
which the President, donaldTrump, has stated that he has
the authority to ignore SupremeCourt rulings with which he
disagrees and has suggested thathe will, if he hasn't already.
These questions have never beenmore in need of an answer To
help us understand this momentand the stakes for American
democracy.
I'm joined today by friend ofthe pod, dr Tara Grove, vincent
(02:27):
and Elkins.
Chair in Law at the Universityof Texas at Austin, legal
scholar and expert on thejudiciary, she's written
numerous pieces about the courtsand how the judiciary can
respond to threats against itslegitimacy, and also what
meaningful reform to ensure itsimpartiality and endurance might
look like.
All right, if you like thisepisode or any episode, please
(02:50):
give it a like, share and followon your favorite podcast
platform and or subscribe to thepodcast on YouTube.
And, as always, if you have anythoughts, questions or comments
, please feel free to email meat deepdivewithshawn at gmailcom
.
Let's do a deep dive, professorGrove.
(03:16):
Thanks for being here.
How are you?
Speaker 1 (03:18):
I'm doing okay.
Thank you for inviting me.
Speaker 2 (03:20):
Yeah, absolutely so.
We're living through what Iwould characterize as
extraordinary times.
To some, we're witnessing theend of American democracy, to
others we're experiencing aconstitutional crisis, but to
others, this is a dream realizedthe expansion of executive
power, the diminishment ofCongress and the judiciary, and
it's this latter that I'minterested in talking about with
(03:40):
you today.
So the Supreme Court is windingdown its term and that means
that a lot of very consequentialissues are going to be decided
on, things like birthrightcitizenship, gun control,
redistricting immigration that'sjust to name a few.
And Trump has suggested in pastthat he considers himself to be
the final arbiter of law andthat he may ignore rulings with
which he disagrees, and frankly,he already is.
(04:01):
He's ignored the TikTok ban,which we don't really talk about
anymore.
He's kind of twisted himself inknots to justify ignoring the
Supreme Court order tofacilitate the return of Kilmar
Braygo Garcia, who hasdisappeared to a Salvadoran
prison without any due process.
But in the grand scheme, Iguess in the arc of American
history, I'm not quite sure howunprecedented this is.
I know there's been otherconfrontations between the
(04:22):
executive and the judiciary inpast.
During the Civil War, lincolntested the court's authority,
fdr did battle with the courts,so did Nixon, but regardless,
this moment right now feels likea real threat to democracy, but
you'd know better than I would.
So how would you characterizethe moment?
We're in the pressure that thissecond Trump presidency is
placing on the judicial system?
Speaker 1 (04:50):
Right.
So I think the first thing tokeep in mind is that, in my view
, it's hard to evaluate apolitical moment when you're
living through that politicalmoment.
I think we'll actually have amuch better understanding of our
current political moment in 20or 30 years, which is, of course
, not what everyone wants tohear.
Right, we want to understandthings immediately, but I think
that's actually quite hard and Ithink we understand the past
probably far better than thepeople living through those
moments may have understood it.
(05:12):
Whether this is unprecedented,I think, is hard to say, in part
because we are living throughthis moment but also because I
think it's easy in hindsight toforget how difficult the moments
were in the past.
So you mentioned the Civil War,and I think it's easy in
hindsight to forget howdifficult the moments were in
the past.
So you mentioned the Civil Warand I think that's an important
thing to think about.
So after Lincoln passed away,was assassinated, I should say
(05:36):
there was a huge amount offighting between President
Andrew Johnson and the Congressat the time.
The Congress at the time wantedto reconstruct the South.
The president was not asamenable to that, at least not
the way that the ReconstructionRepublicans were doing it, and
so there were confrontationsbetween Congress and the
(05:56):
executive at that time, andCongress passed legislation over
presidential veto and caseswent to the Supreme Court.
Southern states werechallenging the validity of
Reconstruction.
The Supreme Court used variousprocedural mechanisms to get rid
of a couple of those cases, andthen a case came before the
Supreme Court that involvedsomeone who had been thrown in
(06:17):
jail for protesting acts of theReconstruction Congress.
Now this was a guy named WilliamMcArdle who was not, I would
say, a great person.
He was deeply opposed toReconstruction, deeply opposed
to giving people of color theright to vote.
He was deeply opposed to manythings that many of us today
(06:40):
would find quite good.
Yet in our constitutionalsystem.
I think it would surprisepeople to know that the editor
of the Vicksburg Times, which isthe role that William McArdle
held at the time, was thrown inprison for writing what he
believed in the newspaper, whichis what he did.
So it was the editorials hewrote, and they were pretty ugly
(07:03):
editorials, but I think thatwould surprise people.
So he filed a petition for writof habeas corpus, that is, a
petition to get out of detention, and the case went up to the US
Supreme Court.
When it got there this was inthe middle of the impeachment
trial of President AndrewJohnson.
A pretty difficult time for thecourt, president Andrew Johnson
(07:27):
, a pretty difficult time forthe court, and the court held
the case and while it was beingheld, congress passed
legislation to take away theSupreme Court's jurisdiction to
decide the case.
So this was a constitutionalchallenge to reconstruction,
involved somebody who had beenput in jail although I think at
the time he was on bail and theSupreme Court was confronted
with a federal statute that saidyou can't decide the case and
the Supreme Court said we can'tdecide the case.
(07:49):
So I think that's a prettyextraordinary moment of
confrontation and I think what'snotable about it is one can
look at this history in variousways.
Right, william McArdle was nota great person by modern
standards, and yet I think itprobably would concern many
people today the idea that thefederal government can throw
(08:12):
somebody in jail for whatthey're writing in a newspaper
and that when the case goesbefore the Supreme Court, the
response of Congress is not tosay, okay, we're going to let
the courts decide this, butrather the response of Congress
is we're not going to let thecourts decide this.
So I think that's one examplejust to underscore that times
can be difficult and have beendifficult in American history.
(08:33):
Another pretty extraordinaryexample comes from the World War
II era.
So this is the FranklinRoosevelt administration that
you referred to in your lead up.
So during World War II, a groupof saboteurs from Germany, so
Nazi saboteurs came on US soiland they were going to do some
(08:55):
really bad stuff.
The plan was to actuallyundermine various American
facilities, various Americanfacilities, and, fortunately,
one of the saboteurs.
These guys weren't terriblyorganized.
They were caught and one of thesaboteurs gave them up, and the
question was what to do withthem.
The Roosevelt administrationdid not put them through a
(09:16):
normal criminal trial.
They rather put them through amilitary proceeding.
Even though one of those peopleclaimed to be an American
citizen, the case went up to theSupreme Court.
It's a case called Ex ParteQuirin.
The Supreme Court okayed theexecution of these individuals
without writing an opinion, andthey were executed before the
(09:37):
Supreme Court actually wrote theopinion explaining why that was
okay.
One thing to note about thatcase while it was pending in the
Supreme Court, franklinRoosevelt told his attorney
general, francis Biddle, that nomatter what the Supreme Court
did, roosevelt would not releasethe saboteurs.
(09:57):
And history tells us thatFranklin Roosevelt's declaration
to his attorney general madeits way somehow to the Supreme
Court justices.
So when they decided that itwas okay to execute the
saboteurs, most of them wereexecuted.
One got a life sentence.
The justices knew that anyalternative ruling would not be
(10:18):
obeyed by the president.
Now again, this is a complicatedtime right.
This was a tremendous threat tothe United States at the time,
right that Nazi saboteurs hadcome onto US soil and were
planning really, really badthings, and the then FBI
director, j Edgar Hoover, saidthat the capture of these folks
was a great American achievement, and actually the public
(10:42):
opinion was very much in favorof Roosevelt and against the
saboteurs.
Public opinion very much wantedthe execution of these
individuals.
But I think this once againunderscores that the Supreme
Court in the past has beenconfronted with some really
difficult situations, and soit's very, very difficult to say
(11:02):
if the current moment isunprecedented or just a
continuation of some difficulttimes in American history.
Speaker 2 (11:11):
So I want to pull up one of the threads here, which
is this idea that the courtmight have known how FDR was
going to respond to an adverseopinion coming from the court
and that they may have tailoredtheir response in such a way as
to address that.
Because I do think that theSupreme Court today is well
aware of what Trump is sayingand the challenges that he's
(11:32):
posing for the court, and so Ihave to imagine that the
justices at minimum, or at leastChief Justice Roberts, is
thinking about how the court canrespond in such a way not just
to speak to the merits of a casebut also to the potential
response coming out of thepresidency.
And I guess I wonder if you canimagine what effective judicial
(11:52):
responses could be that gobeyond the merits of a case but
really do speak to a challengecoming from the executive on the
authority of the Supreme Court.
Speaker 1 (12:24):
This has been a challenge for the US Supreme
Court throughout its history.
What an executive official incontempt of court that is for
failing to obey a decision.
But at bottom, courts have torely on the willingness of
others to obey their decrees.
The judiciary, the leastdangerous branch, and I think
(12:49):
some people today say well, howcan that be?
They're deciding major issueson the regulation of guns, the
regulation of abortion, foreignaffairs, huge issues.
How can they be the leastdangerous branch?
Well, as Alexander Hamiltontold us in the Federalist Papers
, because they have neither theperson or the sword.
They have only judgment.
And the importance of thosejudgments matter only to the
(13:10):
extent that others will obeythem.
And throughout our history theSupreme Court has faced this
dilemma.
You know both.
Will other actors comply withtheir decisions and what do they
do in response?
So the earliest example of this, or one of the earliest
examples of this, is actually acase that's very, very famous
(13:33):
for something else, and that'sMarbury versus Madison in 1803.
So many people today are awarethat at this time there was a
lot of disagreement between theDemocratic Republicans and the
Federalists.
I teach this to my students andthanks to the musical Hamilton,
people are much more familiarwith this era of history, which
(13:53):
is kind of handy.
And you know, one of the thingsI underscore for my students
and they do get this, in partbecause of the musical Hamilton
in the election of 1800, whenThomas Jefferson faced off
against John Adams so it was theThomas Jefferson's Democratic
Republicans versus John Adams'Federalists previously George
Washington's Federalists andthese two political parties
(14:14):
hated each other and they firmlybelieved that if the other
political party gained power,that would be the end of
American democracy.
And this has great resonancewith my students today.
Right, think about this.
And this was the world in whichthe Supreme Court decided the
case of Marbury versus Madison.
Now, prior to that case, rightbefore John Adams left office,
(14:36):
the Federalists had tried todramatically expand the federal
judiciary so that Adams couldappoint a bunch of judges.
And when the Jeffersonians cameinto office Thomas Jefferson
did indeed win the election theyrepealed that law, which meant
they fired Article III judges,so judges that were supposed to
have tenure and salaryprotections.
(14:57):
They were fired, and some ofthese judges had served for
about a year before the repealwas finally passed.
In that same period, congressdelayed the Supreme Court's term
such that the Supreme Court didnot hear any cases as the
Supreme Court in 1802.
And that's actually why Marburywas decided in 1803.
Marbury versus Madison was theeffort of a guy named William
(15:18):
Marbury to actually get a job asa non-Article 3 judge in
Washington DC and the Jeffersonadministration had refused to
deliver the commission.
So the idea was hey, jamesMadison, deliver the commission.
James Madison didn't show upfor any of the court proceedings
and Chief Justice John Marshallknew that if the Supreme Court
(15:41):
said, secretary of State, jamesMadison, you must deliver this
commission to William Marbury.
It was extremely unlikely thatthe Jefferson administration
would do anything at all.
What the Supreme Courtultimately held was that it
lacked jurisdiction over thecase and this is why Marbury
versus Madison is known as acase about judicial review,
because they held that thestatute granting that, they said
(16:04):
, granted them jurisdiction inthe case was unconstitutional.
So it's known as this case.
That was just a declaration ofgreat Supreme Court power.
But if you look at the history,what it also reflected was a
moment of great Supreme Courtweakness and it's really hard to
look at that history and thinkthat the background knowledge
that Thomas Jefferson would notlisten to anything the Supreme
(16:25):
Court said had no impact on whatthey did.
Fast forward in history.
You can look at the Civil War,you can look at World War II,
but I actually want to fastforward to the Civil Rights
Movement and Brown versus theBoard of Education.
In Brown, as I suspect mostpeople know, if not everyone,
the Supreme Court declaredsegregation in public education
(16:46):
to be unconstitutional.
But then the question waswhat's the remedy?
There were segregated publicschools throughout the country.
So in 1955, the Supreme Courttook up that question Like what
do we do?
What do we have them do?
And in 1955, then NAACPattorney Thurgood Marshall said
to the court you have to imposea firm deadline.
(17:10):
You have to tell all of thesestates with segregated schools
that they must stop by a certaindate.
Thurgood Marshall said thatdate should be either September
1955, which, by the way, wouldhave been a couple of months
from the oral argument, orSeptember of 1956, if you want
to give them another year.
Well, the justices and we haverecords of judicial statements
(17:32):
from within the chambers thathave come out since the justices
were terrified that thesouthern states would not obey
any such decree.
So instead they said, in a casethat has come to be known as
Brown 2 in 1955, they said thatdesegregation should take place
with, quote-unquote, alldeliberate speed.
Now, for anyone who's studiedthe civil rights movement,
(17:54):
they've probably heard this term.
And, as I say to my studentswhen I'm talking about this, I
say just imagine your professortells you your paper is due by
May the 4th but then later saysactually no, no, no, just turn
it in with all deliberate speed.
When do you turn in that paper?
And my students typically say,well, not for a long time, maybe
never.
(18:14):
And I say that's exactly whathappened after Brown too.
By 1964, 10 years after Brown,versus the Board of Education,
less than 2% of the schoolsacross the South that had been
segregated were desegregatedLess than 2% by 1964.
All deliberate speed meantbasically nothing.
(18:36):
So these are situations wherethe Supreme Court was faced with
government officials whom theyfeared would not comply with
their orders and the SupremeCourt backtracked.
So I think it's cruciallyimportant that since the
mid-20th century, and reallysince the civil rights movement,
there has been anextraordinarily strong norm of
(18:57):
compliance at both the federallevel and the state and local
level, and I think that's whatthe Supreme Court's going to
have to be banking on today.
But it does concern me a lotthat there have been attacks in
the federal judiciary for thepast five or 10 years coming
from different political sidesat different times, and that
people have pushed against thisnorm.
And I think that's going to bea real challenge for the court
(19:20):
today as it looks back at thishistory and thinks how it will
be evaluated in the future,because I don't think many
people look back on alldeliberate speed with great
fondness.
Speaker 2 (19:32):
So I'm glad you bring up Brown 2 and all deliberate,
speed that language, becausewhen I read the Abrego-Garcia
decision I had a little bit of awhiff of Brown 2 in the
language of facilitate thereturn.
We perhaps will never know, butit felt to me as if the Supreme
Court was being maybe a bit toocute by half in using the
(19:53):
language facilitate, givingthemselves a little bit of
wiggle room, or maybe giving theadministration a little bit of
wiggle room, such that if thereturn was not successful, or if
Trump determined that theadministration was not going to
return Abrego Garcia, that thatfacilitate administration was
not going to return a BorregoGarcia, that that facilitate
language was the out for them,did you get the same sense?
Speaker 1 (20:15):
So I think it is always very difficult, when
courts are dealing with mattersthat impact the United States
relationship with foreigncountries, to figure out what
courts.
We can't tell you what that is,because undoubtedly diplomatic
relations are going to have todepend a bit on the executive's
(20:45):
power and executive discretion.
But I think you're right too.
It allowed some wiggle room interms of the interpretation of
whether the executive wasactually going to comply with
that order.
Now, what facilitate clearlydoes not mean is nothing at all,
which some people took to bethe immediate response of the
(21:06):
administration in that case, andin some ways that makes it easy
right.
Well, you're not facilitatingif you're refusing to do
anything at all.
My understanding is that may bechanging now, and then I think
we will be very much faced witha question that you raised.
Facilitate may actually mean anattempt, an attempt that is
unsuccessful.
(21:26):
That may be compliance with theSupreme Court's order, but
certainly not satisfactory atall to people who are concerned
about this case.
Speaker 2 (21:35):
So I mentioned earlier this idea that some
people think that we are alreadyin a constitutional crisis.
Others think that we're staringdown the barrel of one.
To your mind, when are weactually in a constitutional
crisis, and what does that looklike?
Speaker 1 (21:51):
So I think this is a truly, truly difficult question.
As I said earlier, I don'tthink one can easily evaluate or
label a political moment whenone is living through that
political moment.
I think it's very, very hardfor us to understand whether we
are in or not in aconstitutional crisis, and I
(22:12):
think it's also important topause and consider what we think
that means and consider what wethink that means.
So I hear a lot of people andI've been asked this question.
I can't tell you how many timesover the past couple of months.
Are we in a constitutionalcrisis?
And what people don't thenpause to wonder is well, if we
are, how does that change thedaily lives of individuals
(22:35):
living in this country?
If the answer is it doesn't,then the label doesn't really
matter one way or the other,right.
The other reason I'm concernedabout people using a label like
that too quickly is, I think,that it makes it easier for
government officials who wereotherwise inclined to act
(22:55):
without tremendous deference forthe judiciary or judicial
opinions to say well, we'realready in a constitutional
crisis, so there's no turningback now, and I think it's
really important to recognizethat we're not there yet as a
country.
There are still many statementsfrom the executive branch saying
we must comply with federalcourt orders.
(23:16):
There are examples, reallyimportant examples of compliance
, including when the SupremeCourt issued its midnight order
a couple of weeks ago saying youmay not remove any of the
individuals from Venezuela thatare currently challenging their
detentions.
You may not remove them and, atleast according to the parties
(23:37):
in the case, remove them.
And at least according to theparties in the case, that order
led the government to turntrucks around that were on their
way to the border in Texas.
So I think that there are stillmany, many examples where the
executive branch is adhering tothe norm of compliance, and I
think it's important that weemphasize there is that norm and
(23:58):
that's a crucially importantpart of American democracy.
Speaker 2 (24:02):
If we were to look into the future and we were in a
position where we needed torebuild American democracy, or
we could even take this from adifferent position, if we were
just to imagine what a fortifiedAmerican democracy would look
like.
I think that both people on theleft and on the right would
agree that they have a vision ofhow the judiciary could be
designed better in our Americandemocratic system, how it could
(24:24):
be, rightly or wrongly, lessbiased, depending on how you
view the court less partisan,more independent and you've
worked in judicial reform orworked on judicial reform a bit,
so could you maybe help meunderstand what a stronger, more
independent judiciary wouldlook like if we could design it
today to withstand some of theshocks that it's experiencing?
Speaker 1 (24:47):
So I think there is a tendency and this is a tendency
that has existed throughout ourhistory to say that when a
court, or several courts, issuea decision that we don't like,
we being whoever disagrees withthe decision at the time that
there's something wrong withjudicial independence.
(25:08):
The judiciary must be biased ifthey're not ruling in the way
that I like, and we've seen thisthroughout our history.
So in the late 19th, early 20thcentury, populists and
progressives viewed the courtsas pro-business, and so they
attacked the courts and tried totake away jurisdiction over
cases involving big business.
Franklin Roosevelt, of course,proposed expanding the court to
(25:31):
15 members after the SupremeCourt was perceived as
invalidating many of his NewDeal measures.
It's actually important to notethat the Supreme Court upheld
New Deal measures even then, andin the 1950s, 1960s, 1970s and
1980s, a lot of conservativeswere very unhappy with the
United States Supreme Court.
So there were proposals toimpeach Earl Warren, there were
(25:53):
proposals to take away federaljurisdiction over cases
involving school prayer andabortion, and even desegregation
to the extent that it involvedbusing, and in all of these
situations, people have said thecourts are biased.
When I look back at that history, I see judges who obviously
(26:15):
have perspectives and everyone,whether the person is a lay
person on the street, a memberof the executive branch, a
member of a state legislature ora judge at the state or federal
level, has a perspective.
That person has a background.
That background involves wherethey came from, their ideology
and lots of things.
But what I have seen in lookingat our history and in talking
(26:40):
to federal judges today andreally over the past five or 10
years, is that that's not howthey look at their jobs.
If you talk to a federal judge,no matter who appointed that
judge, in almost all cases allcases that judge is going to say
(27:04):
look, I try my best to decidethe cases on the law, and not
because the particular presidentwho appointed me wanted me to
decide it that way, not becausethe particular Senate that
confirmed me wanted me to decidethat way, but because that's
what I view as the best decisionon the law.
Now are there times when Idisagree with court decisions.
Of course.
Are there times when I think inour history have politics
(27:27):
influenced the way the SupremeCourt has decided a case?
Probably, but in the largermeasure of hey, these people
view things from a differentperspective than I might view
them view things from adifferent perspective than I
might view them.
All this is to say I thinkpeople on all sides greatly
overstate the lack of judicialindependence of our federal
(27:49):
judiciary today.
Lots of people have asked mewell you know, doesn't a
particular administration justkind of control the court at a
particular period of time?
This has been true for the pastfive or 10 years and my answer
is always no, no, they don't.
So I think many presidents havedone a pretty good job of
appointing and many senatorshave done a pretty good job of
confirming federal judges.
(28:09):
My only concern today iswhether that will continue and
we will continue to have ajudiciary that, by and large,
does act independently.
Speaker 2 (28:20):
All right, final question you ready for it?
Of course, what's somethinginteresting?
Speaker 1 (28:23):
you've been reading, watching, listening to or doing
lately, and it doesn't have tobe related to this topic, but it
can be.
So I do spend a lot of timereading about law, including
history and current events.
But in terms of interestingthings, my kids are really
involved in music and dance andtheater, and this is the time of
performances and recitals.
(28:45):
So yesterday I was at my son'stheater performance at school,
last night I was at his bandperformance.
This weekend I'm going to hisother theater performances.
My daughter just had a dancerecital and has some piano
recitals coming up, and I thinkyou know, when we're feeling
concerned about the world aroundus as I think many of us are
(29:10):
and have been for some time it'sreally important to remember
that there's still thoseeveryday things that can give us
great joy.
Speaker 2 (29:19):
What productions is your son in?
Speaker 1 (29:21):
So it's both.
The school play was this weekand he's in a community theater
production.
I don't think these areproductions that most people
would be familiar with.
The one that his school didthat people might have heard of.
Last year he starred in Rock ofAges, which is a musical.
It was a sanitized version ofthe musical from middle school,
(29:42):
um, but most of the productionsum, I actually give credit to
his, his drama teacher, both atschool and also the um zach
theater here in austin.
Um, they do a really good jobof finding productions that are
not widely known, right, rightthat that um people from the
Austin area, um people involvedin education, have have put
(30:03):
together and and they performthese, and they're usually
pretty funny and pretty cute andvery much designed for middle
schoolers.
Speaker 2 (30:11):
That's cute.
I, uh, I did theater.
No, that's not true.
I did one theater productionwhen I was in high school.
I was able to graduate early,so I could have graduated in
December from high school, but Iwas in the production of Diary
of Anne Frank and that didn't.
We weren't actually performingit until February, and in order
(30:33):
to stay in the production, I hadto do, I had to finish the
school year, go through June,and I did choose to do that, but
that was it.
That was it for me.
That was the one thing, sowe'll see how it pans out.
I suppose for your son it's afun.
It's a fun experience, right?
Speaker 1 (30:46):
Yeah, yeah, I mean music is is a huge part of his
life.
He's about to start high schooland he's going to be in the
marching band and choir andprobably continue theater and
study too, I hope.
Speaker 2 (30:57):
Yeah, very cool, professor Grove, thanks for
taking the time and for theconversation.
Speaker 1 (31:07):
Thank you.
Speaker 2 (31:13):
The courts are not immune to the political
environment currently shakingthe foundations of American
democracy.
In fact, they may be its lastline of defense or its next
casualty.
The judiciary's strength liesnot just in legal doctrine, but
in the public's willingness torespect its authority.
As Trump tests the limits ofthat respect, the stakes could
(31:35):
not be higher, and the next fewmonths will be critical as the
courts struggle with ways tohold the administration
accountable, to ensureacquiescence to its rulings and
act as an effective checkagainst the rise of
authoritarianism.
All right, deep Dive will be onvacation for a while, because
in the next couple of weekswe'll be launching our new
(31:55):
limited series, leaving America.
If you've ever thought or arethinking about moving to another
country for whatever reason, toescape the political
environment, to escape the gunculture, for lower taxes, for
better health care, this seriesis for you.
So keep checking back on theDeep Dive with Sean feed for the
Leaving America limited series.
(32:16):
Chat soon, folks, thank you,thank you.
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