. >> this sunday, crisis in the court.trust in the supret has been declining for years and is now at a record low after the overturning of roe v wade, a stunning reversal ending 50 years of precedent. how much confidence do you have in the supreme court?

>> i think this is an activist court. >> getting rid of roe v wade was an incredible thing for pro-life. >> simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court. >> is the u.s. senate confirmation process to blame for polarizing the entire judicial branch? >> what you want to do is destroy this guy's life, hold this seat open and hope you win in 2020. >> donald trump, mitch mcconnell and their republican buddies are shoving aside the wishes of the american people in order to steal the supreme court seat. >> is the court now out of sync with the american public? >> a court that's already pretty illegitimate is going to be in full crisis mode. >> and now new questions of ethical standards. have the justices damaged the court's reputation further by failing to disclose financial relationships and gifts from wealthy donors? >> the perception of the american people is important to me. >> the highest court in the land should not have the lowest ethical standards.

>> my guests this morning, former republican senator roy blunt of missouri, democratic senator sheldon whitehouse of rhode island. i'll also speak with two former supreme court clerks, andrew crespo and jennifer mascott, and a special panel of reporters who cover the court -- nbc news senior legal correspondent laura jarrett, npr legal affairs correspondent nina totenberg, cnn senior supreme court analyst joan biskupic, and dahlia lithwick, senior legal correspondent for slate. welcome to sunday and a special edition of "meet the press." >> from nbc news in washington, the longest running show in television history, this is a special edition of "meet the press" with chuck todd. >> good sunday morning. and while official washington is still consumed by the debt ceiling talks, we're going to take a step back this sunday and look at a larger issue, the supreme court. it's never been more powerful in our lives or more broken when it comes to public trust. just a quarter of americans have a great deal or quite a lot

of confidence in this court, a 50-year low. in the eyes of the american public, the justices' robes, they're no longer black. they're red and blue. and the political destruction of the court lies at the feet of another institution, the united states senate. it has broken the judiciary and the supreme court. the role of the senate in confirming federal judges, including supreme court justices, is technically, of course, advice and consent. and between 1789 and 1965, more than half of the nominees that went to senate confirmation votes, 65 of 110, were confirmed on voice votes, i.e. "the ayes have it." just three justices in that period were confirmed with a margin of fewer than 10 votes. but since 1965, of the 22 successful nominees of the court, six were confirmed with less than 60 votes. all six of them are currently sitting on this current court. a nod to polarization. of the six republican-appointed justices on the court, just one, john roberts, a bush appointee, was confirmed with more than 60 votes. all six, by the way,

were members of the federalist society, which is now the gatekeeper for republican-appointed nominees. you cannot be nominated for any judgeship if you're not a member of this institution. the goal -- to get justices on the court and judges on the bench who are as conservative as possible. they're not looking for umpires. the legitimacy of the supreme court depends on a public belief that justices, though, are impartial referees in the political battles that break out between the branches of government or ideologies left and right. just listen to what chief justice john roberts promised during his confirmation hearing and what clarence thomas said the day after bush v gore was decided. >> it's my job to call balls and strikes and not to pitch or bat. >> whatever you do, don't try to apply the rules of the political world to this institution. they do not apply. >> but those are sound bites from another era, aren't they? now, neither party wants a referee calling balls and strikes or even to pretend that's the goal.

both parties want an activist judiciary in what has become a race to the bottom. since the bork nomination in the '80s, every move has been a tit for tat, and each party has rationalized its escalation in the judicial wars by claiming the other side did it first. here's a stunning fact. the last time a republican-controlled united states senate confirmed a democratic president's supreme court nominee -- grover cleveland administration nearly 130 years ago. in 2013, pushed by the obstruction of obama's nominees to the federal courts in that moment, as well as the executive branch, democratic senate majority leader harry reid decided to go nuclear, in his words, ending the filibuster, the 60-vote requirement for judicial nominees below the supreme court. >> let them do it. why in the world would we care? we were trying to protect everybody. i mean, they want simple majority. fine. i mean, all these threats about we're going to change the rules more.

what is the choice? continue like we are or have democracy. >> well, democrats did learn to care. president donald trump worked with senate republican leader mitch mcconnell to reshape the federal judiciary, appointing 54 federal appellate judges in four years, just one short of the 55 appointed in eight years. in february of 2016, less than two hours after the death of justice antonin scalia, nine months before the election, 11 months before the end of obama's term, mcconnell made it clear that he would not even confirm a replacement before a new president had taken office. the republican-controlled senate went further and even refused to have a hearing on merrick garland, obama's nominee, for that seat. >> one of my proudest moments is when i looked at barack obama in the eye and i said, "mr. president, you will not fill this supreme court vacancy." [ cheers and applause ] >> and in 2017, when democrats filibustered trump nominee neil gorsuch for that scalia seat, mcconnell went further and he ended the filibuster for supreme court nominees as well.

so changing the rules and allowing now one party to muscle through its nominees on all levels of the judiciary and able to reshape all the justices into partisan actors. and, of course, paving the way for trump to put three justices on the supreme court, the most by any one-term president since herbert hoover. now, unhappy with the ideological makeup of this court, some democrats are arguing to change the rules again by expanding the number of justices on the court cou packi. the political destruction of the court has created opportunities for ethical failures as well. the justices have little accountability because their own partisans protect them, as in the case of clarence thomas. and as long as 50 votes is the threshold, more presidential candidates are comfortable dropping the pretense that justices should be impartial referees calling balls and strikes. >> if you replace a clarence thomas with somebody like a roberts or somebody like that, then you're going to actually see the court move to the left and you can't do that.

>> and joining me now is democratic senator sheldon whitehouse, who chairs the judiciary committee subcommittee on the federal courts. senator whitehouse, welcome back to "meet the press." >> thank you. >> i want to start with -- i want to go back to 2013. you voted for, you praised harry reid's decision at the time to end the filibuster for the lower courts. it was -- i say this, i get it in the time. but looking back, considering where we are with the 50-vote threshold, is that... is that good governance? >> i think it would be better for the country if the supreme court and the nominations process had not been so heavily politicized and we were operating under what more looks like a regular order. but we saw back then that there was no amount of persuasion that could convince republicans to vote for d.c. circuit democratic nominees. and that's why harry had to do what he had to do with the clear understanding, the clear bipartisan understanding at the time

that this would not move the supreme court. we carved out the supreme court on purpose. it was one of the reassurances that the republicans wanted. so when mitch mcconnell then broke through that, that was a second problem. >> you know how this goes, is that each side blames the other for the escalation. and i can sit here and rationalize like, yeah, okay. no, it starts here. it starts here. how do we de-escalate this? because it does feel like this, what we have now is judicial activists. most people think the courts are red and blue robes. there are no more black robes. so we've created this. how do we de-escalate from this? because somebody has to be willing to say, "hey, this shouldn't -- this doesn't work." >> it is not going to be easy. the work that we're doing on ethics in the court ought to be easy. and yet it's not. it's partisan also. so i think that the first step is going to be for the judicial conference,

the other judges to put some constraints around the supreme court's behavior and treat the supreme court the way all other federal judges are treated. and that happens inside the judiciary. so it doesn't get into the... >> the chief justice has to make this decision, though, right? separation of powers, whether i mean, it's pretty established congress can't make a law that does that, right? >> oh, it absolutely can. >> well, it doesn't mean it's constitutional. >> yes, it does. it means it's constitutional because the laws that we're talking about right now are actually laws passed by congress. the ethics reporting law that is at the heart of the clarence thomas ethics reporting scandal is a law passed by congress. >> i understand that. but in the executive branch, what cabinet secretaries have to do, the president and the vice president don't have to do due to separation of powers. so on the executive branch side -- >> that's an argument that has been made on behalf of the president. i'm not sure that that actually stands. >> well, but -- >> and certainly we can do the administrative side of judicial.

you can't get into cases. i'll be the first one to concede if there's a case in the judicial branch of government, we in the congress have nothing to say about it. but in terms of administering how the internal ethics of the judicial branch are done, heck, the judicial conference which does that is a creation of congress. >> is there something you can do on -- it seems like the separation of powers issue would be taken off the table if you had a -- if you had some ethics demands and disclosure demands during the confirmation process that were over and above this. is there a way to do that? is there a way to do this on the front end that sort of erases any constitutional question? >> no, because if you try to do it on the front end and get a pledge of some sort in the confirmation process, well, we saw how the pledges on roe v wade went in the confirmation process. >> right. >> and then second, you get onto the court and there you are. and there's no process for determining what the facts are. that's part of the problem here. when justice thomas failed to recuse himself

from the january 6th investigation that turned up his wife's communications, he made the case that that was okay because he had no idea that she was involved in insurrection activities. that is a question of fact. that's something that could have and should have been determined by a neutral examination, and then we'd all know. and so the problem with the supreme court is that they're in a fact-free zone as well as an ethics-free zone. >> you have spent a lot of time focused on the federalist society and sort of you -- you don't call this a conservative court. you call it a captured court. it's a strong charge. i mean, you essentially said that this court is bought and paid for by the federalist society. that's a strong charge. how do you defend it? >> well, first of all, i don't think the federalist society was exactly the institution that did this. if you go down the hall from the federalist society, you see the judicial crisis network, which is the group that put up the ads for these judges.

leonard leo, who is a common operative between the two, runs another dozen or so front groups. and the whole thing together has been estimated to be about a $580 million spend by a bunch of right-wing billionaires. so in the same sense that in the old days, railroad barons used to capture the railroad commission so it would do the decision, i think there's a very strong case to be made that that is exactly what has happened to the court right now. >> you have said there -- you've gone down this issue of dark money. >> yeah. >> and there's no doubt that this is a big part of this. but now the left is using dark money. and you yourself said... >> here's the difference. >> the problem with this, you see where this goes. we're just -- i take your point. except you know where this heads. it just escalates, escalates and escalates. >> unless we change the law so that dark money is no longer accepted. >> should be fully transparent.

>> absolutely. and democrats to a person vote for that every time we bring it up. republicans to a person oppose it every time because i think they're very dependent on dark money. and more to the point, i think this operation that has surrounded the court -- judicial crisis network, funded by dark money, federalist society, funded by dark money, the groups that come in on little flotillas of amicus curiae to file briefs, funded by dark money -- there is a shadow of dark money influence around the court that is very unhealthy for the institution. >> let me close this to where we began, which is how do we restore some faith in the institution? because there are some court reformers on the left. let me play what ed markey and others would like to see happen to the court. >> so let's start with undoing the republicans' thievery and adding four seats to the court. congress can do it by passing the judiciary act. expanding the court is constitutional. congress has done it before,

and congress must do it again now. >> so there's various ideas. there's expanding the court, there's age limits. >> term limits also. >> where are you? what's reasonable and what's doable? putting four seats on the court feels like a pie in the sky. >> i have a term-limits bill, so i'm obviously for that. there's an enormous amount of transparency and ethics work that can be done. i have a bill that will do that. >> what would the term limit be? 25 years? >> 18 years. >> oh, okay. >> and ultimately, i think in real life and in real time, what's going to make a difference here is going to be the other federal judges on the judicial conference, as they did recently with respect to the scalia personal invitation hospitality scheme he was running, shutting it down and telling the chief justice who presides over the judicial conference, "look, you've had your fun. we know what you're doing isn't right. let's clean this up for once and for all. let's do this ourselves." >> bottom line, do you trust our federal court system right now to be fair and impartial?

>> usually, i think the trial courts are very strong. i think over and over again we've seen honest courtrooms make amazing differences with dominion versus fox, with the folks -- the parents at sandy hook against the creep who was pretending that their children's murder wasn't real. and now recently with the judgment against donald trump. so honest courtrooms are really important to cut through to the truth. when you get to the supreme court, if it's an interest in which the big right-wing billionaires are concerned, very hard to count on getting a fair shot. >> so you think sometimes you can get a fair shot in the court, but not if it's on something that donors want? >> that would be what the evidence suggests. i think the statistics are pretty stunning at how often the judges who came out of the federalist society do what they're told by the amicus groups that come in on behalf of the right wing. >> senator sheldon whitehouse, democrat from rhode island.

thanks for coming in, sharing your perspective. >> good to be with you. >> thank you, sir. and joining me now is a longtime veteran of washington, d.c., former republican senator roy blunt of missouri. he was a member of leadership during his time in the house and senate, by the way. in the senate, he led the republican policy committee. senator blunt, welcome back to "meet the press." >> chuck, great to be with you. >> let me start with a conversation you and i had 10 years ago after harry reid changed the rules on judicial confirmations the first time. take a listen. >> they decided to change the rules. i suspect that changes the senate in fundamental ways forever. the senate in our system was the example to the world that there was a way in a democracy to protect minority rights. to a great extent that's now lost on these nominations. >> why, when republicans got control of the senate next, did they not restore minority rights? why did republicans go a step further and get rid of the filibuster

for supreme court justices as well? >> yeah, well, i think my prediction was exactly right. once these things happen, i can't think of an example where they're rolled back. and i think that week senator mcconnell said to senator reid on the floor, "you're going to be sorry you did this and you may be sorry you did this sooner than you think." and that's exactly what happened. i just -- there are almost no instances where you could change the rules in one way and hope that the next senate will say, "oh, now it's up to us." >> well, let's speak of a momentary advantage, the garland decision, the decision not to give garland a committee hearing. you were in the senate then. it was not necessarily your decision. mitch mcconnell's in leadership to do that. in hindsight, was that the right call? >> you know, i think so. again, and you've already made this point today, it's all, "well, they started it," but in -- >> as you said to me earlier, it's always them, right? it's always them. >> it's always them. it's always them. senator schumer and senator biden, both at different times

in the bush administrations, had said the year before the election, "if there's a vacancy, we won't fill it." and there wasn't even a vacancy. this is just kind of a preemptive shot to let that happen. and even if we weren't going to approve garland and you could argue maybe we should have had a hearing, i think the way these hearings go, that would in many ways have been unfair to him to put him through a hearing to know that to not be approved. i actually supported the majority leader's decision at the time and still think in the politics of the country and the way these confirmations have happened. when you have the majority and the president's from the other party, there's just a long history of not filling an election-year vacancy. >> yeah, but don't you look at the amy coney barrett thing? i mean, looked like it was rammed through at the last minute, right? it was exactly -- let's take joe biden at his word of what he was worried about back then. that was exactly the picture that i don't think anybody was comfortable with. we're in the midst

of a presidential election. you throw that in there where, you know, depending on when somebody might pass away, depends on how that works. given what happened with garland, do you see how so many people look at that and think, "come on, the rules for thee, but not for me"? >> well, i will say in that year, i had more people at the airport and other places mention that single thing to me than i've ever had of any other thing. "why didn't you give garland a hearing?" and i think i probably gave them the same answer i just gave you. he won't be confirmed. having a hearing would be a mistake for him and for the country. but i get it. now, the difference, of course, the next year before a presidential change is that the president's party has the majority and that's a different circumstance in a substantial way. if you don't do that, let's say you don't do that two months before the election, you've always got the sense that your side will just

collapse on election day because they wonder why they sent you there if you could have done this and didn't. and so that's a big difference. >> you're a student of history. we had to go back. so george h.w. bush had two supreme court justices confirmed by democratic senates. do you know that the last time a democratic president had a republican senate confirm a supreme court nominee? >> no, i don't. >> it's grover cleveland. >> i do know the numbers have not worked good. >> yeah, it's grover cleveland, senator. grover cleveland. this is why i think you have so much distrust between the two parties on this inside the senate, right? >> well, yes, chuck. but you do have to remember that you've got this long period of time from like 1932 until the '60s where there is no -- into the '80s where there's no republican senate. >> there were sort of two democratic parties that controlled the senate. i hear you. >> but democrat presidents got

a lot of nominees confirmed. but there was no republican senate to really... i hear your example, but i think it has that one big flaw to it. >> i hear you. but it is an astonishing situation when you think about it. let me play one more quote from the late senator john mccain after the 2017 decision on supreme court filibusters. take a listen. >> now that we're entering into an era where a simple majority decides all judicial nominations, we will see more and more nominees from the extremes of both left and right. i do not see how that that will ensure a fair and impartial judiciary. >> and it's that last line. look, i should point out senator mccain said what he said and also supported mitch mcconnell's decision. but is this any way to get an umpire, right? if that is the goal? and look, you didn't vote for judge jackson because of judicial philosophy,

but should that be the requirement? are we just looking for qualified umpires or are you looking for partisans? >> well, i do think in the last 40 years, the country changed a view on this. and even maybe less than that. you know, the thomas confirmation was was 50-48, 52. nobody even considered the 60-vote structure as a structure that was reasonable. >> democratic senate, by the way. >> democratic senate, 48-52. the whole idea it would take 60 to confirm is a reasonably new thing. and again, it happened when chuck schumer went to the senate and suddenly, well, you have to have 60 now instead of 50. there was great deference given generally to presidents until that became a standard. and then i also think if democrats at the time

of the gorsuch nomination, which replacing scalia didn't change the balance of the court, if they would have produced enough votes to get to 60 for gorsuch, who knows if the rule would have -- the atmosphere would've still been there? >> you think it would've helped for kavanaugh? >> i don't know. i think it would have been harder later in that congress than it was at that moment. and i even said to a couple of democrats at the time, "the smartest thing you could do right now is let your members who will actually be helped by this, not hurt by this. vote for this guy that's perfectly acceptable." >> let me go back to the last question that i asked senator whitehouse, and i'm going to ask it to you. >> okay. >> in a different way. look, we know the supreme court's approval ratings essentially have fallen and fallen badly. how -- what would be your recommendation to help the perception of the court? >> well, i certainly think that the court is still such a critically important part to our structure.

the court does bring finality to things that sometimes i don't agree with, sometimes others don't agree with. but what we don't want to do is bring the court down with the rest of us. >> senator roy blunt, it's good to see you. thanks for coming on, sharing your perspective, and i look forward to seeing you again soon. >> you bet. >> when we come back, has the supreme court damaged its reputation by having no official ethical standards? i'll talk to two former supreme court clerks, andrew crespo and jennifer mascott. from big cities, to small towns, and on main streets across the us, you'll find pnc bank. helping g businesseses bothth large andnd small, commmmunities anand the peope whwho live andnd work theree grow andnd thrive. we're proud t to call these placaces home totoo. ththey're w where we put dodown roots,, and d where togegether, we work k to help momove everyoyone's fifinancial goals foforward.

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inincluding alallergic reaeact, lacticic acid builildup, and liver r problems..... if you h have a rashsh or othr allelergic reactction symptot, ststop dovato o and get medicacal help rigight away. tell your r doctor if f you he kidneyey or liver r problems, or if f you are, m may be, or plan n to be pregegnant. dovavato may hararm yoyour unborn n baby. use efeffective bibirth contrl whwhile on dovovato. do not b breastfeedd whilile taking d dovato. momost common n side effeces are e headache, , nausea, diarrhrhea, troublble sleepi, titiredness, a and anxietyty. detect thihis: i stay u undetectablble withth fewer mededicines. ask yourur doctor ababot swititching to d dovato. . >> welcome back. it is a tradition for supreme court justices with sharply different legal views to be dinner party friends, opera companions, in other words, to get along. but after the leak of the dobbs decision last year, tensions on the court have broken out into the open. according to reporters, including nina totenberg, who will join us later this hour, the atmosphere behind the scenes is so ugly that, as one source put it, the place sounds like it's imploding. justice samuel alito recently

told two partisan defenders at the wall street journal that the leak "made us targets of assassination," saying, "i personally have a pretty good idea who is responsible." justice clarence thomas complained, "you begin to look over your shoulder." and justice sonia sotomayor said she felt shell-shocked after the overturning of roe and has a "sense of despair" about the direction of the court. on tuesday, chief justice john roberts addressed public questions about the acrimony and concerns about the court's ethics while accepting an award. >> i want to assure people that i am committed to making certain that we as a court adhere to the highest standards of conduct. we are continuing to look at things we can do to give practical effect to that commitment, and i am confident there are ways to do that that are consistent with our status as an independent branch of government under the constitution's separation of powers. >> and joining me now are two former supreme court clerks, jennifer mascott, an assistant law professor at george mason university. she clerked

for justice kavanaugh while he was on the d.c. circuit and for justice thomas on the supreme court. and andrew crespo is a professor at harvard law school. he has clerked for justices kagan and breyer. jennifer and andrew, welcome to "meet the press." let me start with the leak and how bush v gore, andrew, didn't seem to create personal divisions on the court the way the leak of dobbs did. what's your sense of what's going on behind the scenes? >> chuck, we have to remember there was an investigation into this leak. and i think that investigation produced a 20-page report, told us three pretty important things. first, the report seems to make clear that this leak did not come from a law clerk or a court employee. this was an investigation done by experienced criminal investigators. it was reviewed by the secretary, former secretary of homeland security, looked at forensic cellphone records, and it asked every employee and law clerk who had access to that opinion to swear under oath exposing themselves to a potential prison term for penalty of perjury that they didn't do -- that they were not the leaker

and they didn't know who was. and it basically ruled out court employees and law clerks. but crucially, and this is, i think, the second really important thing that this investigation highlights for us, the report was not able to rule out whether or not the leak came from the justices themselves, because the only people who had access to the opinion and who were not investigated within the leak investigation were the justices, because the court didn't look at the justices themselves in that investigation. and i think that shows us really the third most important thing that we learned from this. the leak investigation is one example now in a string of many where we're seeing the supreme court justices basically view themselves as above the law, not subject to the same rules as everyone else, whether that's the leak investigation, whether it's accepting potentially millions of dollars in gifts without having to disclose it, whether it's refusing to adopt an ethics code, refusing to even engage with congress on that question. this is a court that tells everyone else what they can and cannot do, tells congress you can't regulate guns, tells the president you can't do anything about climate change, tells women what they have to do with their own bodies, but says to everyone else, "don't you dare try and suggest

that we have to follow rules for ourselves." >> jennifer, what's your sense of what the leak has done to trust between the nine? >> well, i have to tell you, last year at this time, we were talking right after the leak, and from my standpoint over the last year, it's actually reconfirmed my faith in the supreme court as an institution because i think here we have nine justices who have taken an incredible amount of attack and vitriol from the outside. we've had assassination attempts. and quite frankly, the dobbs opinion, when it was handed down was almost precisely the same as it was when the leak was made. >> why does that matter? >> well, i think because it shows that the justices have fidelity to principle, that they didn't let the attacks, the threats, the attempt to change the outcome have any impact at all. >> so had it changed, had the ruling been different from the leak, do you think this would be a far more explosive thing inside the institution? >> well, i think clearly that would have depended what the change was. obviously, if there had been a vote change of some kind, that would have certainly communicated that those kinds of tactics work. but i think it's really astounding that it's the justices who are facing the attacks from the outside

and here we are questioning the institution. the institution is strong. they're continuing to do their jobs. just this week, as the clip you played shows, chief justice roberts and justice kagan were together with justice roberts receiving an award, talking about the collegiality of the institution despite all of the buffeting on the outside that's continuing to go on. >> let me talk about ethics. when you guys are brought in as clerks, do you sign anything? is there an -- is there a -- what do you pledge? is there anything you put into writing, pledging some sort of fidelity to the court? >> well, nobody's asking anybody to pledge fidelity i don't think to any institution. i think all law clerks, just like government employees across the board, are trying to be hired. we want people of integrity who are there to serve the institution and the principle of the law and the constitution. and so, like all federal officials, clerks obviously are supposed to take an oath to uphold the constitution and try to do that and serve the justices as they apply principles of law. >> but is there any look,

is there anything about your personal financial situation? >> a background check? >> yeah. is there a basic background check? >> no. when i was there, this was, you know, 10 years ago or so now, i don't remember having to sign anything, but i do remember very early in the year, the chief justice -- i didn't clerk for the chief justice -- but the chief justice would get all of the law clerks, 30 plus of us, into a room. and it was the ethics talk. and it was almost entirely "don't talk outside of this building about what happens in this building." this was well before dobbs and it was really impressed on law clerks -- >> are you violating this right now? >> no, i don't think so. i think the chief has made clear that he wants that, you know, that that was something impressed upon law clerks. you're not supposed to talk outside of the court about the opinions and work of the court. so there wasn't like, as i recall, a signing, but it was very much impressed on law clerks that you're not supposed to disclose what happens inside the building then or ever. >> jennifer, do you remember political debates? >> political debates within the institution? >> yeah, within the institution. not legal debates, not constitutional debates, but just good old-fashioned political debates? >> to be honest, not really that much.

i mean, i feel like there was a striking amount of collegiality. and actually, if you look at the most recent terms, the last 10 terms of the court, i think, there are at least 40% or more of the merits-based decisions that are issued unanimously. so a lot of times on the outside, we talk about the handful of decisions that seem to be "political" or controversial. but the court has got really challenging issues coming to it. a lot of times there are issues that are not necessarily the topic of dinnertime conversation. and i really love the opportunity to be able to meet clerks from across the spectrum and still keep up with many of them today in my practice as a law professor. >> let me move to the issue of what's deemed the shadow docket, and maybe you guys can explain this. let me put up a statistic up here, and this is about sort of administration, when the department of justice, on behalf of an executive branch, is looking for emergency relief. during the the four terms of bush and obama, eight times the supreme court was asked for emergency relief. in the one term of donald trump, 41 times. it appears that this is

no longer emergency relief. this is a political dispute. and we never know what the rationale is. has this gotten overused, andrew? >> i think we're seeing a greater sort of frequency of folks turning to the judiciary. and one of the biggest challenges now is that parties can pick their judges in the lower courts. right? you can file a lawsuit in texas, pick the location where you're going to file the lawsuit, and there will be one judge who's going to hear that case. and you know the political party who appointed that judge and you know the political valence of that judge. when you see parties rushing to the judiciary and getting to pick the lower court judges, it's an accelerant that forces everything up faster to the supreme court and is making the supreme court, which is now a very conservative court, basically sitting in the driver's seat on all of these issues as they get shot up to the court and is using that shadow docket to act faster on these issues. >> and, jennifer, one of the complaints is that we don't know the rationale behind it. look, we can have a debate whether these should be ruled on, but then we don't even get a rationale. how do we change that? >> well, i think to andrew's point, it is true that the court is responding to these cases

as they find them. and so it's often the lower courts or outside parties that are bringing these cases to the court's emergency docket. one, i mean, obviously, unique circumstance of the trump administration was the pandemic. and so that caused a lot of state orders that were not necessarily happening as rapidly in years previous to that. and so that increased the use of the orders docket. but i think the court has been attentive to people wanting to understand its reasoning. and so some of these cases actually have resulted in written decisions, perhaps not as lengthy as the merits ones. in fact, there have even been oral arguments issued more rapidly, sometimes in cases when the court's wanted to rule on issues of big importance. so i think the court is trying to issue its reasoning for the american public and quite frankly, in some ways is one of the most transparent institutions in the sense that at least with the merits cases, we're getting dozens and dozens of pages, lengthy reasoning from the justices. >> as a reporter looking for transparency, that is no transparent institution. but i understand within the legal community

your argument there. jennifer mascott, andrew crespo, thank you both for being out here. i appreciate it. >> thank you for having us. >> thanks for having me. >> up next, the public now sees the court as more partisan. is the court actually behaving that way? "data download" is next. my a1c wasas up here;; now, i it's down w with rybels. his a1c? itit's down wiwith rybelsusu. my d doctor toldld me rybelsl® lowered d a1c betterer than a a leading b branded pil and d that peopople taking g rybelsus® lost morore weight.. i got t to my a1c c goal anand lost somome weight t t. ryrybelsus® i isn't for p pee with type e 1 diabeteses. dodon't take r rybelsus® if y you or yourur family evevd medullary y thyroid cacancer, or have mumultiple endndocrie neoplasia a syndrome t type , or if f allergic t to it. ststop rybelsusus® and d get medicacal help rigighy if youou get a lumump or s swelling inin your neck, sesevere stomamach pain, or an allelergic reactction. seririous side e effects may includude pancreatatitis. gallbladdeder problemsms may oc. tetell your prprovider abobot visision problemems or changn.

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. >> welcome back. "data download" time as we discuss the supreme court's evolution, particularly how its standing among the public has deteriorated as they perceive it to be more and more partisan. we're here to provide a reality check on exactly what is driving this shift. there's one simple way to describe this, and that's just simply the number of appointments. since lbj, republican presidents have been in office for 32 years and have gotten 16 supreme court justices. democratic presidents have been in office 22 years and have only gotten five justices. some of that is actuary tables. you have jimmy carter, who served four years, got zero appointments. george h.w. bush served four years, got two. donald trump four years, got three. so you see how that happens. now let's look at the views, the polling views of whether this court is too liberal or too conservative. going back to the start of the century, as you can see here, it has fluctuated between too liberal and too conservative narrowly.

you know, during the bush years and the war on terror. it was seen as too conservative. during the obama years, obamacare ruling, same-sex marriage, it was seen as too liberal. but look at this. it has skyrocketed. now, 42% currently think it is too conservative. and in fact, what makes that number unique? it's above the -- there's a third punch we ask here. is the court too liberal, too conservative or about right? about right led throughout the entire century until these last couple of years. now let's move to the issue of whether they're right about this. is the public right? has the court shifted its views to the right? well, the national academy of sciences sort of compared key supreme court rulings with public opinion for different decades. in 2010 versus where democrats wanted rulings and republicans want rulings, the court basically came down in the middle. in 2020, essentially the same thing. the court shifted dramatically in 2021 between ruth bader ginsburg dying, amy coney barrett making brett kavanaugh the center. and what has happened, not only

is the perception of the court is too conservative, the rulings are actually not just to the right of where the average would be between the two parties, but to the right of where even republicans thought the court would rule. so the perception in this case that it's too conservative may play out in reality. when we come back, it was the only supreme court case to decide who would win the white house. we're going to look back at the moment a divided court ended a disputed election. >> demonstrators outside... (v(vo) whilile you may y not be runug anan architectural f firm, tendining hives ofof honeybe, and d mentorining a teenaga— your l life is jusust as uniq. your rayaymond jameses financl advivisor gets t to know youo, your passisions, anand the way y you help o ot. so you canan live yoyour lif. that's's life wellll plann.

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. >> welcome back. the public crisis of confidence in the supreme court didn't start with its overturning of roe v wade. in 2000, the court ended the florida vote recount in the election between george w. bush and al gore, clearing the way to certify bush's win. the controversial 5-4 ruling hurt the court's legitimacy among democrats and further divided an already fiercely polarized nation. just five days after that decision, the house democratic leader, dick gephardt, appeared on this program and refused to call george w. bush the legitimate next president. >> the supreme court decision, was that based on law or politics? >> well, we have to accept that decision. i criticized the decision. i didn't think it was the right decision. i wish we could have counted all the votes,

but the court made its decision. >> so george w. bush is the legitimate 43rd president of the united states? >> george w. bush is the next president of the united states. >> but is he legitimate? >> we have to respect the presidency. we have to respect the law, and we have to work with him to try to solve the people's problems. that's the task in front of us now. >> but why can't a leading democrat say he is a legitimate president of the united states? >> he is the president of the united states. >> when we come back, can the court fix itself? our special panel of court reporters is next. what if f you couldd make a analyzing a a big bank's's data... nono big deal?l? go o on... well, what if you partner with ibm andnd red hat,, ususe a hybridid cloud sololun to connenect data across mulultiple syststems globally,, ththen analyzeze all that t a with watsoson. okayay, but thisis needs to meet ouour... security s standards?? yup.p.

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. >> welcome back. panelists here. nbc news senior legal correspondent laura jarrett. nina totenberg, npr legal affairs correspondent and author of "dinners with ruth." joan biskupic, cnn senior supreme court analyst and author of "nine black robes." and dahlia lithwick, slate senior legal correspondent and author of "lady justice." nina totenberg, let me start with you. is the court in crisis? >> well, it's in a very bad and dysfunctional situation, i think. and i've covered the court for a long, long time. and i don't think i've ever seen a court so at odds. and the best example is they had a fairly minor, in the greater scheme of things, decision a couple of weeks ago,

and there were five opinions. there was no opinion for the court. there were three opinions on one side and two opinions in dissent. >> what does that tell you? >> it tells me that they don't like and trust each other, that the chain is broken and they're not getting along. and when you can't get along, you can't reach some sort of consensus on most things. >> laura, what does it look like to you? >> well, it's interesting because that's what's going on internally and what's going on externally is another sort of crisis of its own sort of devising on public legitimacy and the idea of whether it's an institution that the public can trust and feel that the decisions are being made evenhandedly, most recently because of all of the ethics issues that have emerged that in many ways are not new. but there is a different level of heightened attention to them now, i think, which is a good thing,

but there's no meaningful check on them because they are not treated like all other federal judges. >> joan, i want to pull something from your book. >> sure. >> i'm sure you're happy about that. >> yes. thank you. >> it's about john roberts. "some of chief justice john roberts's colleagues... and i highlight this quote because to go with what nina said and to go with what laura said, we have to look to the chief justice. does he have -- if he leads, does he have any followers? >> well, and that was written capturing a time when he was more in control when he had -- >> this was pre-barrett. >> yes. this was pre-barrett when he was the key vote. so he could do a lot of maneuvering behind the scenes. >> he was the fulcrum. right? >> that's exactly right. and some of that behavior, frankly, has come back to haunt him because the other justices to his right, now they have

justice amy coney barrett. they don't need him. they don't need him on big, important cases like the dobbs and they might not respond to him. and i think we've seen they are not responding to him on issues of ethics. so his problem right now is twofold. one is having to do with consequential opinions, like the dobbs opinion that rolled back roe v wade, and also what kind of formal ethics policy they will even adopt. he does not have a team with him right now. >> dahlia, i was actually talking off camera with jennifer mascott, and she just sort of implied -- she thought that it is now clear justice alito doesn't necessarily follow justice roberts's lead anymore, and that in the first few years he did, that clarence thomas is almost the conservative leader these days. is that your read? >> i think there is a block on the court that is justice alito and thomas and sometimes justice gorsuch that are very much doing their own thing that is very separate

from what the more centrist bloc of roberts and kavanaugh and sometimes barrett are doing. i think that that to the extent you can call it a centrist bloc. >> i was just going to say, there will be some people listening going, "that's a centrist bloc?" >> and it's important to say. >> but for the three, three, and three, it kind of is. >> and it's important to say, you know, to joan's point, justice kavanaugh is now the median justice on the court. there's nothing that will tell you where this court is more than that statistic. but i think it's interesting that at least sometimes you have the sense that on that center, there are votes in play. i don't think there are votes in play in justice alito and justice thomas's world. >> so let's talk about this ethics situation. i mean, do we expect, nina, anything from justice? let me put up these headlines. these are -- the perception of the court is just -- being politicized here with a big donor. we've got these headline-- "clarence thomas failed to report his wife's income," "clarence thomas's wife ginni tells the january 6th committee she didn't discuss the election with her husband." i don't know what married couple

didn't discuss the election. apparently they're the only ones that didn't. [ laughter ] "judicial activist directed fees to clarence thomas, wife mentioned." what, in theory, could chief justice roberts do to create a better ethical picture of the court? >> part of the problem here is, as joan said, he doesn't have a team with him and you don't need to lose much. so let's just say he were to sit down and say, "look, we've got to do something. let's do what a lot of the ethics professors say they could do in a half of a day, write a code for ourselves." if two of his members say, "well, i'm not going to abide by it; i don't think we ought to have that," he doesn't have a court. >> there's no recourse. >> there's no recourse. it's not even a question of a majority. he has no recourse. and i would argue that the the kinds of potential conflicts of interest raised by justice thomas's friendship with harlan crow and his refusal to recuse

himself in january 6th matters are materially different from the kinds of potential conflicts that might be raised by, you know, justices, for example, who don't recuse themselves in cases involving publishing companies in which they -- where they have written a book. it's just different. it's materially different. and it's understandable by the public. >> it does look like this is going to get worse before it gets better and that we're going to have basically more like the 19th century supreme court where it's overtly political. i want to play something again that ron desantis said about his philosophy of supreme court justices. >> you replace a clarence thomas with somebody like a roberts or somebody like that, then you're going to actually see the court move to the left and you can't do that. >> i want to remind viewers, laura, justice roberts said, "i'm an umpire. i call balls and strikes." he wants -- he does not like

to be viewed as a partisan. potentially, the next president of the united states is saying, "oh, no, i'm nominating partisans." >> but part of what's interesting about that is he's playing to the crowd and you didn't hear it there. but after he says all of the things about how he's going to make the court even further to the right, everybody's applauding. everybody is enthusiastic about the court and packing the court in a way that i think would be interesting to people who think of it as sort of an apolitical branch. he's playing to an audience that cares deeply about this court. >> well, and look who did it in 2016, and i would argue that donald trump won the election in part because justice scalia had just died. >> if he'd been alive, i don't know if trump wins. >> i seriously believe that, chuck. i seriously believe that because remember, he did -- donald trump did something very unprecedented. in may of 2016, he released a list of his potential candidates and kept adding to it, adding to it, and then fulfilled that. >> dahlia, last word. >> well, just remember, in that same election, we have three octogenarians

on the court and an empty seat for months and months, and we have one side campaigning on the issue that "we will pack the court" and we have democrats who are saying like, "screensave, screensave, nothing to see here." >> yeah. i don't think they'll do that again. before we go, every memorial day weekend, we here at "meet the press" remember the american service members who have died in the line of duty in the past year. this year, we're going to remember 32-year-old marine staff sergeant samuel d. lecce, who died from a noncombat-related incident in iraq. he was from jefferson, tennessee. but we'd be remiss if we didn't draw attention to a growing problem both in our society, which is more acute, and our active-duty military. last year alone, at least 328 active-duty service members died by suicide. if you or a loved one are struggling with mental health, you can dial 988 and you can press 1 right now to be connected to the veterans crisis line. you can find a local va vet center to access free counseling, or you can visit the military onesource website to get connected to the best available resources to fit your needs.

and spend some time this memorial day weekend thinking about those who serve and defend us. that's all for today. thanks for watching. we'll be back next week because if it's sunday, it's "meet the press." ♪♪ ♪♪

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