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Arjun Singh 0:03
I from the levers. Reader supported newsroom, this is lever time. I'm Arjun Singh 2024 might just turn out to be the revenge of the memos. Nearly 50 years ago, two conservative thinkers wrote a pair of memos that mapped out a right wing takeover of the government. In the Powell memo, former Supreme Court Justice Lewis Powell rallied the business community and called on them to be more aggressive in using their wealth to muscle into places like the Supreme Court and then pack it with corporate friendly judges. Nine years later, another lawyer, Michael Horowitz, urged conservatives to take things a step further. He called on corporations and right wing activists to go into law schools and indoctrinate generations of lawyers to twist the law to their advantage. The result a political system awash in millions of dollars in dark money, and a right wing Supreme Court that seems hell bent on dismantling the guardrails of democracy. Though these memos have been around for decades, they're now receiving renewed scrutiny thanks to two powerful pieces of journalism. One is the levers own podcast series, Master Plan, and the other a new book from journalist David Daley. Today on lever time, I'm gonna sit down first with David Sirota and Jared Marr and hear how the Powell memo set the stage for the corruption of our political system by money. Then David Daly and I will discuss how the Horowitz memo created a legal society that would go on to play a major role in helping Donald Trump try and steal the 2020 election. You

Arjun Singh 1:51
Hey, David, welcome back to lever time. I'm excited. We're joined with our colleague, Jared Mart. So you know, for listeners who I know have probably been missing, you here on lever time you have been working on a phenomenal, like absolutely phenomenal piece of journalism. It's called Master Plan, David, if you could just sort of explain what's the master plan and what is kind of the conceptual through line that is happening here in the series and that you guys have been reporting on, the Master

david sirota 2:20
Plan was a plan to try to make the government less responsive to what the population wants. It was hatched at a time when the government was doing all sorts of things that the population was demanding and that the people in power didn't really want so this is the late 60s, early 70s, the time of the creation of Medicare, Medicaid, civil rights laws, voting rights laws, the EPA, the Clean Air Act, the Clean Water Act, the government declaring a war on poverty. At the time, those who had a lot of power. Were worried that they were losing their power. We're talking about the corporate community. We're talking about oligarchs of the era. They were worried about this. And a guy named Lewis Powell, who was at the pinnacle of the elite establishment, head of the American Bar Association, a tobacco industry lawyer, corporate lawyer. He wrote a memo, really a manifesto to the Chamber of Commerce, saying that business needed to essentially reassert itself and gain a lot more power over the government, because the government had become too problematically responsive to what the population wanted. And what we focus in on in our series is how one of the pillars of what they realized they needed to do was to take over the judiciary and deregulate the campaign finance and anti corruption laws that essentially they understood that, you know, functioning one person, one vote democracy, the government was going to be, continue to be too responsive, from their perspective, to the what the public wanted. And so they needed to use the thing that they had the a disproportionate amount of in society, which is, which is money, and that they needed to be able to use that money to buy elections, legislation, court rulings and the like. And so what we trace is from this Lewis Powell manifesto, how a conservative legal movement was built, which secured various rulings that deregulated the campaign finance system, which made it essentially legal for money to now buy political outcomes, outcomes that typically don't serve the general population, but do serve to enrich the people who are spending the money. And Jared,

Arjun Singh 4:55
I know that you've been working really closely with David. If listeners you know, go ahead and listen to the same. Are going to hear you on the series. So in the first few episodes, you go back to Nixon, as David was mentioning. Lewis Powell is a very prominent figure in this why? Why does the story start with Watergate and then Lewis Powell? What is it about this memo in particular that is either so revelatory, or is it that this memo had a lot of influence that we can track later. Well,

Jared Jacang Maher 5:23
when we first outlined the trajectory of this historic story, it was mostly focused on campaign finance reform and Supreme Court cases starting in the 70s, going up to the 80s and 90s. And as we started digging more into those cases, we thought, Oh, well, you know the, you know, this first legislation was passed in reaction or around Watergate. Okay, well, let's look into Watergate. Oh, there was also something to do with this Supreme Court Justice that Nixon, Nixon appointed, named Lewis F Powell. And hey, this memo is pretty interesting. I think I've heard about this before, and that kind of kicked us off on looking more into the origins of the memo, why it was written, and the actual impacts that it had. And if listeners aren't familiar with the Powell memo, the best way I can describe the memo is that it's a kind of a mix between a manifesto and a business plan. The manifesto portion being that the business community, the free enterprise system, as Lewis Powell described it, was under attack by the forces of the left and other advocates who wanted to push greater regulation on private enterprise, and and and the economy. And that was, you know, his call to arms for the business community, the business plan portion of it was how he laid out in very detailed, very clear eyed manner about the different areas in which the business community could focus on to invest their money and time to turn the tides on the direction that they feared the country was going. Our big question was, did the memo actually have the impact that a lot of people looking back say that it had? And then that pushed us to really examine that, going to archives, going to the US Chamber of Commerce and finding they didn't really have much about this memo or its impact, but not stopping there, looking at other people who were involved in kind of hitting the goldmine with certain documents that showed Yes. In fact, the US Chamber of Commerce started an entire task force over the course of several years that then outlined how they were going to execute the memo, bringing in some of the most powerful business leaders in America, and really involving a who's who of folks that would later become pretty prominent in the conservative movement in politics, and also had the impact of what we sort of see today with some of the big organizations involved in in things like Project 2025 with the Heritage Foundation.

Arjun Singh 8:16
Is this, this the meeting that happens at like Disney World. And they all get together, and they make this, this task force, as you said. So what does that mean? Exactly? They make a task force. And then what like, is there an actual master plan that's developed there? Or is it more like they kind of get together and they're like, you know, we should start working together more in tandem? Well, it

Speaker 1 8:37
would be one thing if it was just a few get togethers, because, you know, people have meetings all the time, and you know, people might talk about things where it actually turned into action was that we had this one meeting that we found the agenda for which took place at Disney World.

Arjun Singh 8:53
I love that fact. And I

Speaker 1 8:56
don't know if you remember this, David, but when I sort of came across that document and I and I forward it to you, and I was like, What is going on here? They literally met at Disney World in Florida, yeah, and they but that was just the beginning, right? So they brought some of these major business leaders involved with the US Chamber of Commerce, together, formed this really elaborate Task Force, and then released something called the Business response to the Powell memorandum about a year later, which outlined all the specific ways that these different subcommittees had decided they were going to focus on education, the judiciary, electoral politics, and that's not even where it stops, because the Powell memos reach even extended past the Chamber of Commerce types and prompted other meetings from different coalitions of people. One other meeting that took place in Dallas, organized by the young presidents or. Organization, other meetings in New York with the freedoms Foundation, involving a lot of different people that would go on to fund their own ventures focused on the different areas that Powell outlined.

Arjun Singh 10:17
So these guys get together, they are fighting what they see as the excess of the government, the ability of corporations and basically rich people to do what they want. You know, I don't want to give too much of the podcast away, but as the series goes on, you move throughout history into the 80s, and eventually you're going to get to the present. David, do you see the PAL memo as being something that, you know, it's followed through in the way that Jared was saying that they have this task force, and it's like, you know, an agenda task list. Or was it more of like the PAL memo opens up a Pandora's box, and from there we see politics become what it is today, a world of dark money and super PACs and corporate lunacy and absurd fundraising requirements. Is it kind of a chicken and the egg thing that I'm describing right here, I

david sirota 11:05
see it as akin to the other well known manifestos of the of the 20th century, whether it was 19th and 20th centuries. I mean, whether it was the Communist Manifesto, whether it's Mao's Little Red Book, whether it's any of the other famous manifestos of the time, which is to say that it counsels a specific set of areas to focus on, and it gets relatively granular about where it prescribes a political focus on, but it also is something short, short of a a pure blueprint. So it's, it's a mix of, here are the areas to focus on, and also an ideological call to arms. And I think it's important to understand that, to understand what actually came out of it, and and so I think it's fair to say, No, it's not like they read the PAL memo. And there was, it was a the PAL memo is not like, for instance, Project 2025 which is a detailed blueprint for exactly what a president should do, to the point where it's designed to be a plug and play agenda. The PAL memo is more of a manifesto, in that it is laying out broad goals, broad areas to focus on with the ideological arguments for doing this. But what we do know is that manifestos tend to, frankly be the most successful ones, tend to be far more far reaching and inspire all of the subsequent blueprints. So I think project 2025, is like an implementation document of a specific part of of the PAL memo. The PAL memo, I think, catalyzed, crystallized and harnessed a lot of different strands of discontent back then, corporate discontent, and let 1000 or really, a million flowers bloom from it. And I also think it's important to understand just what the Powell memo was counseling. The Powell memo has a line in there in which Lewis Powell is effectively, in my mind, is trying to urge an entire repudiation of the New Deal. The New Deal politics, at the time, was the dominant political paradigm. And there's a line in there, which I would guess that he was deliberately invoking as a refutation of the New Deal this line, it's so fascinating how he put this in here. It's kind of like an Easter egg. He wrote quote in terms of political influence with respect to the course of legislation and government action, the American business executive is truly the forgotten man. Now, if you remember FDR invoked the forgotten man, that was a very well known statement from Franklin Roosevelt to effectively justify and promote the new deal that was in 1932 so about almost exactly 40 years later, you have Lewis Powell writing this memo saying, actually, the forgotten man is the bit. Businessman, not the person at the bottom of the economic period, but we the business people. I think he was invoking that at a time when the conservative movement was coming together in a more powerful way, to make a rejection of the New Deal very explicit. I mean, even if you look at Eisenhower and even Nixon, these were Republican presidents, but they were not explicitly rejecting the New Deal paradigm. Yeah, what the Powell memo is doing is calling for a a counter revolution to the New Deal in and I think again, that line about the forgot who is the forgotten man is a very explicit reminder of that. Yeah, and

Speaker 1 15:50
David, what you said makes me also think that this was also a period when this group of people, this burgeoning movement, was looking for its voice. And what it the Powell memo did was stylistically, give them a voice. Not only we are the forgotten men, we are the victims, but also you need to not be afraid to fight back rhetorically, and that those statements more than anything else, I think, from the letters I reviewed, from all the agenda meetings, from the correspondence back and forth between people, that was the message that really invigorated them. We need like a rallying cry for them. We need to be aggressive with our rhetoric. Yeah, not shy away from getting involved in politics, not shining away from going on the attack and tonally, the shift that took place with the Chamber of Commerce alone in groups like the National Association of Manufacturers. You see groups like the Business Roundtable. You see, you know, wealthy industrialists like Joseph Coors, head of Coors Brewery take that more than anything to heart, that we need to tonally shift how we are going to present our side to the public. And like Powell said, not be afraid to vigorously defend and attack our

Arjun Singh 17:19
opponents. So it sort of gives them like a sense of class consciousness, almost like we are banded together, and we have the these shared goals and ideals. You know, Jared, I know that David has been looking into these issues. He's been focused on these issues for a long time, but, you know, I'm curious to hear from you now that you are wrapping up master plan you've spent all this time reporting, did it change the way that you think about our democracy, our elections? Like for you personally, what has been the most revelatory takeaways, if you had any about, you know, America, our government, our institutions. I

Speaker 1 17:56
think when I jumped aboard this project and sort of looked at David's outline and the thesis that he wanted to to create for the story. You know, a lot of the things were somewhat familiar to me, right? The particular court cases, things like Citizens United, and then broadly, like some of the the groups that were pushing for these changes to campaign finance law, these outside groups, and where the funding came from, like all that is pretty well known. I think what this story has done for me is two things. It's made me both very despondent in some ways, but then also optimistic in other ways.

Arjun Singh 18:39
That I kind of toggle between those. I'm glad there's the options.

Speaker 1 18:43
As we go through it, it's despondent, because when you track the full broad history over the course of 50 years, and specifically when it comes to the law and the Supreme Court, how, how narrowly and deeply they've been able to lock up this particular topic of free speech versus election donations, right, and how the avenues for changing and Getting back to a place where we are able to better regulate or keep money, big money out of politics, just seems kind of hard to see where that goes from here without some pretty dramatic changes. So that's really where, you know, I'm, I'm curious about, I think that there's ways that this can happen, but you know, from from seeing how this is all played out, you're kind of like, where do we go from here? Now, optimistically, part of what we did when we looked at this was, you know, we started in the 1970s but even further back, we could really see how the reforms that. What America has undertaken against corruption, how this has been a reoccurring theme, and it happens almost in cycles, right? You had the early 20th century with the progressive reforms. You had the reforms after Watergate, which we track. And then you have things like the McCain Feingold reforms in the 1990s and you can see how all of those efforts didn't just happen by accident, right? And you see how hard it was for the reformers and how unique the particular politics and incentives had to be at those moments in order for a system to change itself, because that's really what we're looking at here. You're requiring on the people who rely, who are used to the system of money, being the ones to actually make the changes to themselves, right? And it happened several times, usually prompted by major corruption scandals that then gave the incentives and the public pressure to make changes. And, um, you know, you can see how they did it, right? They did it before, and it can definitely be done again. Because at those, some of those other moments, it seemed as dire, I think, to those reformers as it does now to the reformers of today, but still, inevitably, it seems to happen in order to keep the democracy on track once all is said and done,

Arjun Singh 21:31
yeah. Well, I appreciate the optimism. I share it with you, and I think master plan can be one step in going further to try and help these reforms get there. The reception has been awesome. Podcast is fantastic. Everybody go check it out. You can get it on levernews.com, you can get it wherever you find your podcast. Jared, David, thank you both for joining me today. It was great to get to chat with you. Thank you. You

Arjun Singh 22:03
after the break, I'll sit down with journalist David Daley to hear about another influential legal memo, one that he argues paved the way for Donald Trump's efforts to overturn The 2020, Presidential Election. You

Giuliani 25:38
Music, wow. What a beautiful day. Thank you.

Arjun Singh 25:40
Remember thank you for coming 20 when Rudy, I'm here on behalf of the Four Seasons in Philadelphia, on behalf

Giuliani 25:46
of the Trump campaign as an attorney for for the President, to describe to you the first part of a situation that is extremely, extremely troubling. It was

Arjun Singh 26:01
November 7, first of all, four days after election, and Giuliani was sweating, literally sweating. Oh, and it's worth noting that even though he said the conference was happening at the Four Seasons, which is the name of a popular hotel brand, this ended up happening in the parking lot of a place called Four Seasons total landscaping, and instead of a lush hotel lobby, they were just standing in the middle of a parking

Giuliani 26:25
let me emphasize this is only two or three of about 50 people so far that have given us statements, affidavits, recordings. We're going to have many, many witnesses. Not a small case. You can get big case.

Arjun Singh 26:41
It's kind of hard not to laugh at this scene. It looked like Donald Trump had lost the election, and Giuliani is in the middle of a random parking lot sweat mixing with his hair dye, causing a stray line of hair dye to sit on the side of his face. But what he was saying was anything but funny. That day, Giuliani told reporters the Trump team was planning on overturning the results of the election and challenging it in court. This would eventually be known as the stop the steal movement. For months, Trump had refused to say whether he'd accept the results of the election if he lost. There's

Donald Trump 27:16
fraud. They found him in creeks. They found some with the name Trump. Just happened to have the name Trump Just the other day in a wastepaper basket. They're being sent all over the place. They sent two in a Democrat area. They sent out 1000 ballots. Everybody got two ballots. This is going to be a fraud like you've never seen. The other thing,

Arjun Singh 27:35
and armed with a team of lawyers, he aggressively tried to overturn the results. In some cases, Trump directly pressured election officials like Georgia's Secretary of State Brad Raffensperger, to conjure up more votes to give him a victory in the state.

Donald Trump 27:49
So look, all I want to do is this. I just want to find 11,780 votes, which is one more that we have because we won the state. Those

Arjun Singh 28:05
efforts targeted election workers, several of whom reported facing death threats and suffering from PTSD because of the rage Trump and his allies stoked against them, and ultimately that led to January 6, 2021 and the storming of the Capitol.

Giuliani 28:20
But if we're right, a lot of them will go to jail. So let's have trial by combat.

Arjun Singh 28:33
And the thing is, is it was based on nothing. There was no legitimate evidence of fraud in any of the states, yet a fleet of lawyers were happy to help Trump overturn a democratic election. A lot of those lawyers came from a group known as the Federalist Society, a conservative legal group that is led in part by a wealthy activist named Leonard Leo. Leo, along with the Federalist Society, have been the legal backbone of the conservative push to take over the courts, and it was the Federalist Society that provided trump the list of names for which judges to appoint to the Supreme Court, Neil Gorsuch, Brett, Kavanaugh and Amy Coney Barrett all came from their recommendations, and they were who ultimately led to the court overturning Roe v Wade. The Federalist society's origins came in the form of a memo, not the Powell memo. This one was called the Horowitz memo, and it was written nine years later in his new book, anti democratic inside the far right's 50 year old plot to control American elections. Journalist David Daley chronicles the rise of the Federalist Society. I sat down with him the other day to discuss his new book and how his research relates to what David and Jared just told us about master plan.

David Daley 29:43
Master Plan is absolutely brilliant, by the way. So let me start there. Congratulations on it. It's a fantastic piece of work. We completely agree on the importance of the Powell memo Lewis Powell wrote what was effectively a roadmap for. Or big business to get involved in politics, to counter what the future chief to counter what a future Justice, Lewis Powell, believed to be the insidious nature of left wing control of American society and campus in the mass media. Sounds a lot like Leonard Leo today, doesn't he? And he was deeply influential on the Koch brothers, on Richard Mel schaafe, on all of the conservative founders who built so much of the scaffolding of the conservative right. One of the things that they didn't do particularly effectively, though, was build legal institutions. What the right did? They built the American Enterprise Institute and the Heritage Foundation and the Koch brothers got underway, but they also built this entire series of conservative Public Interest Law foundations around the country that didn't have the influence that Powell suggested that they would, and donors got a little frustrated with it. So there was a man named Michael Horowitz, who was a real student of what the left had done with regards to public interest law, in really building power in Washington and working with the government and the regulatory agencies in order to bring about environmental gains, and, you know, safer cars. And Horowitz took a look at what the left was doing and said, guys, we're doing this all wrong. On the right, we are invested in this big, sprawling regional network, and the power is in Washington, DC, and you're trying to do this big, top down thing, when really what you've got to do is go ground up our legal power. He said, our brain power is appallingly mediocre, and what we have to do is go into law schools. We have to win hearts and minds and convince people that they are doing something important they're not defending DDT. They're not defending General Motors. They are part of a conservative movement that can actually affect hearts and minds. And so when the donors are asked around the same time to give money to this new entity called the Federalist Society. All of these big organizations had read and digested the conclusions of the Horowitz report, and when he brought around these young conservatives, they were primed and ready because of what Michael Horowitz had done. He set out a different direction for the conservative legal movement, a course correction.

Arjun Singh 33:05
And so out of this movement comes a guy who is currently the Chief Justice of the Supreme Court, John Roberts. Now, when you read like institutionalist, like, I don't want to say press, but like people who really believe in, like, the institutionalism of things, they kind of describe him as this moderate, as someone who's trying to salvage his court from these renegade right wingers. But you tell a very different story of our Chief Justice. Tell me about John Roberts and where he fits into this story. And you know, I should say that this story is going to lead to the court system, or at least people from the Federalist Society, that ilk trying to eventually overturn democratic law, and this is kind of who our Chief Justice appears to have come out of. So tell me about John Roberts and the role he plays in this story.

David Daley 33:52
We could talk about John Roberts for hours and hours, and Roberts really is the linchpin, in many ways of this. I mean, if originalism was designed to look like a neutral theory masquerading as as as as a means of of getting to conservative laws, Roberts is sort of the human version of that as Chief Justice. He was sent from Chief Justice central casting, from an Indiana boyhood with his tousled brown hair and his two kids, and he stands before the country in 2005 and he pledges to be an umpire the Civic religion of baseball, right? He's just known to call balls and strikes, yeah, and for some reason, perhaps because the media is designed in such a way at the Supreme Court to believe that these justices are intellectual gods and not Paul. And, yeah, deify them. In a way, that image has stayed with him, even though, if you look at the court and the nation that Roberts took over in 2005 and where that court is today in 2024 there's been a sea change. The constitution has moved decisively rightward The Con and in ways that the conservative legal movement could only have dreamed of, right? I mean, if you go back to 2005 abortion rights had effectively just been reaffirmed at this court. Campaign finance laws had just been reaffirmed in McConnell versus FEC the court was not particularly interested in guns at all, what Roberts has done on voting rights, on guns, on reproductive rights, on the regulatory state, on the unitary executive theory, with the major Questions doctrine, with the immunity decision, is to deliver conservatives a series of major policy victories that they never, ever could have won at the ballot box. And he's done so while maintaining his reputation as a moderate. It's, it's, you know, talk about a master plan. Yeah,

Arjun Singh 36:18
it's, I mean, it's astounding, actually. And when I think about John Roberts, I think about the 2000 election between George W Bush and Al Gore, and how that election came down to the vote in Florida. And Florida was down in the first count to, like this really tiny margin of, like a couple 100 votes, and a recount was supposed to happen, and George Bush's legal team came into the state, and part of that legal team were John Roberts, Brett Kavanaugh, Amy Coney Barrett, and they kind of tried to work the rest on the Supreme Court. And eventually the Supreme Court intervenes, and they freeze the recount. They say that the recount shouldn't go through, you know. And as time has gone on, there's been a lot of analysis of what happened in that election. There are a lot of irregularities in terms of ballots. There were people who had reported thinking that they had voted for Al Gore, but because the way that the ballot was structured, they may have voted for George Bush. You know, holes weren't completely punched, and the thrust of it is that a recount was supposed to happen, and the recount never happened. Looking back at that, I know a lot of people feel very stung by that, and it felt like you look at it now, it's almost like an earlier version of the Donald Trump efforts, which was to intervene in the democratic process and stop it for political gain. To you, David, is there something about the fact you know that someone like John Roberts was actively trying to help the Bush campaign work the referees in a way to get this victory, unlike the straight umpire he's portraying himself to be, who says, Hey, listen, let them work it out, and the system will do well. Like, what do you make of that

David Daley 38:11
bush versus Gore, in many ways, is proof of concept for the conservative legal movement's plan to capture the judiciary and controlled American elections through it. It was effectively a jump ball tiebreaker election, and because the right held the court five four, they were able to hold the presidency, five four. And it's not only John Roberts who worked on on that case. You had a young Brett Kavanaugh working on that case and a young Amy Coney Barrett, yeah, so you had three of the six future members of the conservative supermajority cutting their teeth on this crucial political case that was so poorly reasoned, Right that Scalia called it bullshit, and the court effectively put an asterisk by it, saying that it's it's a precedent that's not a precedent, and really not ever to be applied again. But this time, this is the way it's going to go. And there's five Republicans here and four Democrats, and so the recount is halted. George Bush is president, and that, in many ways, I think, told Leonard Leo and others all that they needed to know about the importance of the courts.

Arjun Singh 39:34
I feel like you know there has been so much attention rightfully put on what happened when Donald Trump tried to overturn the election. But in the years preceding that, there felt like there was quite a bit of anti democratic effort. You talked about it in one of your books, rat fucked, which is about gerrymandering. We were talking about that at the top, before we get to the kind of 2016 the 2020 the Trump era. I. Yeah, when you have after, say, the 2000s after Bush v Gore, what are some of the ways that anti democratic attempts take place via the court system? And I guess one that I'm thinking about a lot is a Supreme Court case, Shelby County versus holder John Roberts is by this point Supreme Court Chief Justice. He's been appointed by George W Bush, and that was a big one about voting rights. And it felt like in addition to gerrymandering, there was a big effort to really dismantle voting rights. But can you talk a little bit about that? And were there other kinds of efforts, not necessarily even on the Supreme Court level, but on lower court levels, to start to dismantle the voting rights system that we have. Yeah,

David Daley 40:43
dismantling voting rights has really been John Roberts's life's work. You can go back to his days in the Reagan administration as a young person in Washington in the early 1980s but certainly by the time he is Chief Justice in Shelby County versus holder, he eviscerates what had been known as preclearance, which was the crucial enforcement mechanism that prevented the states with the worst histories of racial prejudice and voting from enacting any changes to their laws without preapproval of them, and that had worked for 50 years to hold back the worst instincts of these states, to keep them in check. And John Roberts in 2013 insisted that things had changed in the South. Congress thought otherwise, right when Congress reauthorized the Voting Rights Act in 2006 a Republican Senate unanimously, 98 to nothing, a Republican House 390, to 33 a Republican president, George W Bush signing it into law, along with a 16,000 page report documenting exactly why preclearance was still necessary in all of these states. And Roberts, the humble caller of balls and strikes, ignores all of this, just thrusts it aside and says, Well, I think things have changed. He does this in the most dishonest way you can possibly imagine. First by misreading census data on race that actually says the opposite of what he proclaims it does in his decision. And second, by just making up the law, Roberts makes up the idea of equal sovereignty among states, which he takes from the equal footing doctrine, which has nothing to do with voting rights or any other rights, but has to do with the admission of new states. And he takes a couple of sentences from a previous court case on voting rights that mention the idea of equal sovereignty and how it doesn't apply here, and slices the crucial part out with an ellipsis, deletes it as if it was never there, and says, voila, look at my standard of equal sovereignty. And the trouble with the new day of Rachel kumbaya that Roberts tried to declare in June of 2013 is that if things had actually changed in the South that very day was the day that Texas enacts its draconian voter ID bill, that preclearance had stopped, and that 700,000 Latinos This isn't me saying this. This is the state of Texas admitting that it knew that 700,000 Latinos citizens lacked the act the specific papers that the law now required. One group that didn't lack those actual papers, gun owners because they were allowed to use their gun license, but if you had a student ID or a public housing ID, not so much. And so Shelby County is kick starts all it liberates all of these legislatures across the south to suddenly do their worst. The prison guard has been removed, and all of those evil, dark forces in American politics are free to burst forth again. And so they do, and he closes the federal courts to partisan gerrymandering claims and effectively greenlights not only the gerrymanders that had been in place, but the maximal ones that we saw in the 2021 cycle. And of course, those gerrymanders helped create more conservative Maga caucuses that then pass more insane election laws that the court then blesses as perfectly fine under its interpretation of the Voting Rights Act and how lawmakers ought to be perfectly free to do whatever they want if they think they're fighting voter fraud, voter fraud that they can't actually identify, but as long as they say it's voter fraud, then they're. Fine with this court. No man and all of it works together, all of these decisions at once that have created an anti democratic cocktail of minority rule,

Arjun Singh 45:14
I feel like the way that John Roberts calls himself an umpire, which is clearly not true, maybe to be fair, referees in the NBA and in baseball should just start calling themselves. John Roberts when it's very obvious they've made horribly bad calls. How does this kind of culminate in, you know, in 2020 we saw Donald Trump's effort to overturn the election, one of his leading supporters, one of his lawyers, John Eastman, was a Federalist Society member. Ran a federal society study or debate group. At one point in time, the Federalist Society is all over this effort. And I feel that if you tried to make an argument, which I'm sure John Roberts will, which is, you know, look, I have created a very fancy doctrine and document, and I've cited whatever. You know, I made some effort to make it look like this is this makes sense based on my role as the Chief Justice. This effort by Donald Trump totally blew open, you know, any of that, any semblance of that, and yet, you did have these lawyers all over the place supporting it, supporting different candidates for office who were in favor of it. What did what did you make of of the 2020 effort? And I guess I will just leave it at that. What did you make of that entire effort? Having been reporting on this stuff for such a long time,

David Daley 46:32
I thought it was really predictable, right? Yeah. I mean, there were a lot of us, I think you all as well, who started reporting in March of 2020, this is how they're going to do it. The plan is going to involve gerrymandered state legislatures and tweaking the rules and slowing down the process of certification and trying to send alternate slates of electors and creating a constitutional crisis, they were not able to get away with it in 2020 for a handful of reasons, the general election, popular vote was too big in too many places, but also the legal work was really shoddy. It's Rudy Giuliani, you know, half in the bag at the at the Four Seasons landscaping

Arjun Singh 47:21
with a little hair dye coming down. It's

David Daley 47:25
a clown car. And they filed all these cases too late, right? Yeah, they brought them all after the election. And if you look at what most of these courts said, they said, Why are you bringing us this now? And so what I think happened in 2020 is not so much that the courts stepped up and saved American democracy, but that conservatives learned, oh, if we want to do this, we have to do this a little bit differently. We have to bring the cases earlier, and we have to have control of these other boards that handle certification in advance. And so this time around, you've got the white shoe, DC cons of William McCarthy, firms and others handling these cases. The adults in the room have got it. They will dress them up with the appropriate Federalist Society hothouse theories. And the cases have been brought. There's already more than 75 cases in 16 states that the RNC is as either broader as an amicus party too, and those five weeks between Election Day and the Safe Harbor Day are crucial. And if you can slow those that process down, if you can kick it into the courts, you can create all kinds of constitutional mischief. Yeah. I

Arjun Singh 48:46
mean, that's exactly what I have been thinking about. And then you look at some of the previous things that have come come up, the elimination of the chevron doctrine, which you know required them to defer to federal agencies, and you especially, the overturning of Roe v Wade. I mean, just overturning precedent. And now you have the these six people who have a total lock on the Supreme Court. And so you know what? I mean, what is the safeguard against that then? Because you do have Democrats, some of them trying to fashion, but Joe Biden in particular was, you know, really saying, Well, if I get elected, it will be the safeguard of democracy. Will be this. But in a lot of ways, it feels like the master plan. The plot worked. They got the six, three on the court. They've given presidents full immunity. That was very clearly directed at Donald Trump. And I'm not, you know, a legal scholar. I didn't go to law school. So I guess I'm wondering, how does this story end? Does it just end with the essentially, six people for until they die, telling us how we're going to be able to do and, you know, invalidating our Congress and our political will? Or is there some mechanism that. That it doesn't rectify it, but it at least pushes back against that no

David Daley 50:04
matter where your politics lie, I would think that all Americans would be deeply uncomfortable with the idea that any nine Americans should hold this much power in a representative democracy. And indeed, I think the polls show that people are if you look at the polls, on, on term limits, on, on a real ethics clause for for these justices, it's upwards of 70 to 75% of Americans backing this, including upwards of 70% of Republicans. So this is popular, and we are going to have to reform this court or accept that it intends to rule over our lives. I mean, if, if vice president Harris is elected, she's going to have to decide between having an agenda that she can enact through Congress or having an agenda that is blocked by this court every step of the way. This is a moment for us to be thinking about dramatic Supreme Court reform. We have to be thinking about how we strip a jurisdiction on some cases from these judges, we have to be thinking about how we expand and right size this court. We need to be thinking about a real ethics responsibilities that stop these justices from being corrupted and paid by those who have interests before them. It is time to think big and immediately and urgently about all of this. I mean, Lincoln, in his first inaugural says the candid citizen must confess that if the policy of the government upon the vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the people will have ceased to be their own rulers and we're dangerously close to that moment right now. I mean, Justice Gorsuch is the man who Leonard Leo spent 10 million to keep his seat warm when Mitch McConnell blocked Merrick Garland's nomination, Leonard Leo spent an additional 10 million to hand and install Gorsuch in that seat for a lifetime, and Gorsuch has spent the last seven years delivering decisions that justify the investment in his career. I think perhaps the Justice has a different definition of judicial independence than I do.

Arjun Singh 52:44
Well, David, the book is anti democratic inside the far right's 50 year plot to control American elections. I think that should be on every civic syllable syllabus going forward. Thank you so much for the conversation. It was great to have you on the show.

David Daley 52:58
Really a pleasure. Thank you so much for all the work you and lever do. It's just very, very important.

Arjun Singh 53:18
Thanks for listening to another episode of lever time. This episode was produced by me Arjun Singh, with help from Chris Walker and editing support from Joel Warner and Lucy Dean Stockton. Our theme music was composed by Nick Campbell. We'll be back next week with Another episode of lever Time. You