but there is a difference between having a particular point of view and the way the state attempts to govern peoples behavior. it very much matters that what desantis is doing is using the state power to limit peoples choices. instead of making arguments and saying i'm against this and here's why, here's why i think it's unproductive or whatever, he is trying to use the heavy hand of the state to silence people he disagrees with. and that not to be anathema. >> he is a small government conservative until he needs to be a big government to believe. people mona charen and brandon wolf, thank you both for >> good evening. much appreciated. thanks to you at home for being with us. a bit of a sigh of relief in the

last hour as we got positive news about the two congressional staffers who were attacked in virginia today. members of congress of course have their main offices in the capitol in washington, d.c., but of course they also have offices in their districts back home. this attack today happened at the district office for democratic congressman from virginia gerry connolly who you see here. this is his district office in fairfax, virginia, northern virginia just outside d.c. the congressman, himself, was not in the office. he was out apparently at a ribbon cutting for a local food bank. a man showed up at the office wielding a metal bat. he asked to see the congressman who wasn't there. then he reportedly just started swinging. congressman connolly's chief of staff tells nbc news tonight that the man smashed computers in the office and smashed glass with the bat. he then attacked two staffers.

one senior staffer to the congressman, the man reportedly hit in the head with this metal baseball bat, and then one young staffer, an intern who was apparently on her first day on the job. he hit her with the metal bat in her side. both of those staffers were hospitalized. obviously this is terrible news in every possible way. the only possible late breaking news on this is we've now been told again that both of these staffers, the senior staffer hit in the head with the bat, the intern who was hit as well, although each of them was hospitalized after the attack today tonight they have both been released from the hospital. neither of them has injuries that are believed to be life threatening. thank god. police have the alleged assailant in custody. he is a 49-year-old man reportedly from the congressman's district in northern virginia. police say he is being charged with felony aggravated malicious wounding. they're not saying anything about his potential motives at

this time or anything about even the extent to which they think he had them. the man is i should tell you on record as having last year filed a lawsuit against the cia alleging that the cia was somehow torturing him from the fourth dimension. the "new york times" reports it is a handwritten lawsuit and the man was representing himself as his own lawyer in this case, so read into that what you will. there's that. republican house speaker kevin mccarthy says he reached out to congressman connolly after hearing about this attack which is of course a good thing for him to have done. the democratic leader of the house hakeem jeffries is calling for more protection for members and their staff. from u.s. capitol police and the house sergeant at arms. but again, late breaking news here is that both staffers attacked with a baseball bat in congressman gerry connolly's district office, both of the staffers now released from the hospital. we are continuing to follow that and will let you know more as we

learn more. the second thing we are keeping an eye on tonight is the reaction particularly the reaction on the political right to the long awaited durham report. what? the long awaited what? well, the reason we're watching for the right and their reaction to this is because the durham report is only really long awaited by them and they really, really have been awaiting this report. >> a source close to special counsel john durham's probe tells fox news things have, quote, accelerated >> i look forward to bull durham's report. that's the one i look forward to. >> did you think by now that there would have been more to come out of the durham investigation? >> what happened to durham? where's durham? >> by the way, where's durham? what happened? where is he? he disappeared. >> we do not yet know what the remainder of john durham's findings are.

>> actually now we finally do know. boy, they have been excited about this for a long time. literally for years. former president trump and his allies have been invoking the name john durham or sometimes bull durham as the man who would save them and smite all of trump's enemies. for years they have been heralding the great revelations john durham would soon reveal about trump's political opponents and the deep state and all their evil ways. when that didn't seem to be happening, trump and his allies started pounding their chests and yelling at the clouds about why durham hadn't acted yet. why he hadn't yet smote all of trump's enemies. there were democrats who weren't yet at guantanamo. durham will do it all. john durham was appointed by trump attorney general bill barr. his assignment from bill barr was to prove that when russia launched its operation to intervene in the u.s. presidential election in 2016 to

try to help trump win durham was supposed to prove in this investigation that the fbi was wrong to have investigated whether the trump campaign, itself, was connected to what russia was doing. for four long years john durham supposedly bombshell findings were always tantalizingly close. the damning evidence was going to come any day. it has never really worked out the way they hoped. in sum total what john durham got out of his investigation was one guilty plea out of an fbi lawyer, fbi employee, who admitted he made a misrepresentation in a single e-mail. it should also be noted that lawyer's screw up was discovered not by john durham but an entirely different investigation that had nothing to do with john durham. nevertheless, that fbi employee did plead guilty to making a misrepresentation in a single e-mail and his punishment was he

had to do some hours of community service. that was kind of it. last year john durham finally did bring two criminal cases to court stemming from his investigation. he lost both of those cases in very quick acquittals. in one of those two cases the forewoman of the jury actually came out of the courtroom after the case and told reporters outside that the trial had not been worth the effort. she said, quote, i think we could have spent our time more wisely. after the second not guilty verdict, this was the ap's headline, quote, trump's claim of crime of the century fizzles in three-year probe. but that was okay because that was only year three. and the smoking gun was going to be in durham's report, which we now know would come out in year four. the report was still coming. right? john durham's failed cases in court were all just part of the deep state conspiracy. when he finally put the report out, all would be revealed.

today at long last we have the report. here's the ap's headline today. quote, prosecutor ends probe of fbi's trump russia investigation with harsh criticism but no new charges. quote, the report monday from special counsel john durham represents the long awaited culmination of an investigation that trump and his allies had claimed would expose massive wrongdoing by law enforcement and intelligence officials. instead, durham's investigation delivered underwhelming results. nearly four years, more than $6 million in taxpayer funds, and today's report now that we've got it, 300 plus pages, it is just a remash of stuff we already knew with durham criticizing the fbi for launching that investigation but presenting no new evidence that they actually did anything wrong and so it is worth keeping an eye on the reaction on this report today on the right,

because who knows how they're going to act? they seem trapped in this hype letdown cycle. a few days ago the republican chairman of the oversight committee, you may remember he held this big press conference to announce the bombshell corruption evidence he had turned up about president biden. how did that go? well, this was the headline in the "new york times" about that press conference, quote, house republican report finds no evidence of wrongdoing by president biden. after months of investigation and many public accusations of corruption against mr. biden and his family the first report of the premier house republican inquiry into such matters showed no proof of such misconduct. but that's okay. that's okay. there's still more to come. this weekend the same chairman, the house oversight committee chairman, said his investigation still has more evidence. okay. there might not have been anything in that report last week but there's more. he said he has an informant on all of biden's corruption only he admitted to fox news this weekend he has temporarily misplaced the informant.

he cannot find him anymore. seems possible he might have left him on the top of the car when he pulled out of the driveway and just disappeared. it's got to be here somewhere. can't find the man somewhere. for the durham report, though, this really is it today after all those years and all those millions of dollars no charges against anybody else, no new evidence turned up or revealed. that's just it. and so that has to be a big disappointment, because they really thought this was going to be the end of all of their enemies and the triumph of their eternal reign and sow we are keeping an eye on how republican reaction to that is going to go. here is where we really want to begin tonight. as you know, last week a jury in new york found former president donald trump liable for both battery, sexual abuse of e. jean carroll, as well as defamation. now, in doing so, this jury agreed with ms. carroll and her

allegation that donald trump did sexually assault her. then they agreed he defamed her when he denied her telling about that allegation when he called her a liar. the jury said in effect e. jean carroll is not a liar and trump must pay her for falsely saying that she was. the jury ruled that trump must in fact pay $5 million in damages. $2 million for the battery charge, for the assault, and then an additional $3 million for the defamation for lying about her. and all of that is a clear through line, right? you do a bad thing, you get sued for doing the bad thing. you know, found liable for doing the bad thing. you pay a fine for having done the bad thing in effect. but are those damages, those millions of dollars donald trump has to pay now, is that just supposed to be punishment for what the jury says he did or is it also supposed to be deterrence? is it also supposed to dissuade him from ever doing those things

again? i asked for a friend. i asked because that is now a very live question. because if the multimillion dollar damages payment that he has just been ordered to pay to e. jean carroll if that was supposed to dissuade him from ever lying again about e. jean carroll, it doesn't seem to be working. the verdict in the e. jean carroll case came down tuesday afternoon. barely 24 hours later, literally the very next calendar day donald trump went on the cnn news network and he repeated the exact same lies about miss carroll, the same lies for which he had just been held liable by a jury the day before. i'm not rounding up here. i'm not being flippant or exaggerating. he repeated the exact same things almost verbatim. look at this. on the left side of your screen here. that's exactly what donald trump said last year, quote, i don't know this woman. i have no idea who she is. this is part of the statement

trump made about miss carroll that a jury said was defamation. that statement is part of the reason trump was ordered to pay e. jean carroll millions of dollars. on tuesday. the day after the jury's verdict look at what he said on tv. this woman, i don't know her. i never met her. i have no idea who she is. that wasn't the only incident. look at this one. in 2022 trump says about e. jean carroll's allegations, quote, it is a hoax and a lie. he says e. jean carroll is not telling the truth. again, it was that statement saying miss carroll made up her story, her story is fake, that is what was deemed by a jury to be defamation on tuesday and cost trump millions of dollars on tuesday. and yet here he is the day after that verdict, quote, this is a fake story, made up story. in other words, this is a hoax. a jury deemed those statements on the left side of your screen were actionable defamation. they ruled that trump would be required to pay millions of

dollars for making those statements. and then he turned around and repeated those very same statements in public on national television the day after the jury's verdict. now, ms. carroll has responded to those new statements from trump. she called them stupid, disgusting, vile, foul. she says that kind of language from him, quote, wounds people. but could it also be actionable defamation? a jury has already ruled that those kinds of lies about e. jean carroll were lies for which he must pay millions of dollars. would a jury say the same thing about the latest round of him saying those same things again? ms. carroll's lawyer roberta caplan says she and her client are currently weighing whether or not to bring yet another defamation suit against donald trump, this time for the new iterations he made of these lies on television in the immediate wake of the verdict. for the first time since he was elected president e. jean

carroll and her lawyer have proven in a court of law that trump cannot tell lies with impunity. they have done that for the country. they were not the first to try but they were the first to succeed. to hold trump accountable by the american judicial system. first time anybody has been able to do that since he was elected president. they've already done that. now they have to decide what to do next. joining us now for the interview is e. jean carroll and her lawyer roberta caplan. it is very nice to have you both here. thank you. >> great to be here. >> i'm sorry i made you sit through that whole thing about that attack in virginia and the durham report >> i just want to stand up and give you a standing ovation. i hadn't realized nobody had done this, that we're the first? >> yeah. >> i just now realized it when you said it. robby. >> you did it. we as a country are innured to

the idea not just that politicians tell lies, right, we are innured to the specific thing with mr. trump in which he lies about even checkable things and he lies in ways that are very hurtful and designed to ruin people's lives and there's no consequences for it at all. cruelty makes him seem stronger, cruelty makes him seem more macho. cruelty makes his adoring public adore him all the more. you are the first people to have punctured that by using the legal system to say you have to be held accountable for what you say. i was going to ask you how that felt but you're only realizing it for the first time now. >> well, when the verdict came, i think we ascended to the ceiling. >> we did. >> and it was the happiest day of my life. and on top of having the happiest day of our lives, was added -- we were so proud to be in america and see democracy

actually work. so to put that on top of our happiness. and robby was -- you see this hand? it is three times smaller than it used to be. she squeezed it so hard. it was thrilling. i could feel it in my very bones right down to my corpusles and i still have that feeling. when you went through it again i was again thrilled. >> let me ask about that question i posited there. you did force accountability. and then he did it again, the defamation, the calling you a liar, the exact same things the jury held him liable for the day before he did again the next day on national television. is that just the way it has to be? do you think that potentially could be actionable if you were to file another suit would it work the same way? >> so it is definitely actionable and here the cruelty will make him less wealthy.

he is not going to get away with it another time. it's unprecedented for a person to have held, been held liable in defamation to keep doing the defamation. so there aren't a lot of cases we can look to for a playbook about how to do it but suffice to say i have a lot of lawyers very busy looking into this and we are weighing all of our options. >> you also have another live case from the time when he was president and he was stating these same untrue things about you, defaming you in the same way. that case is still working its way through the courts. what is your expectation in terms of what you'll see happen there? >> you'll see news from us very soon on that, rachel. >> what counts as very soon? >> i don't know how late the people work tonight. two to three days max. >> wow. >> we are fully pursuing that case. we got a nice, very good decision from the d.c. court of appeals essentially affirming judge caplan that when trump

said what he said about e. jean in 2019 he was not acting as president. we are quite confident that will be affirmed and then we'll be able to move forward with damages in that case. we don't even need a finding of liability because we already have it. we'll be able to find damages and there the definition of damages are much higher. that was the first statement he made and that's what really destroyed her reputation as an advice columnist to all of her readers who trusted her and looked up to her. >> in terms of the timing after those statements still at issue in the live case as you mentioned you were let go from "elle" in terms of your john. >> that's right. >> you think that was related to his defamation >> i know it was related. >> let me ask you, e. jean, in terms of what you went through, there weren't cameras in the courtroom but the whole country was following this word by word. we have the transcript and we know how your cross examination in particularly went. i think anybody with a drop of empathy knows that must have been very painful but you must have known it was going to be painful in the first instance

when you set out to try to get your day in court here. did things go the way that you thought they would? were they harder than you thought they would be or were you more prepared for how they were going to go than you expected? how did it match up with your expectations and how you had prepared? >> i was ignorant. i had never sued anybody. i had never even been in a courtroom. it was totally -- but robby caplan, who i heard someone you might know say when the history of this era is written, there will be multiple chapters about robby caplan. she and this brilliant team of lawyers had me so prepared, had me unbelievably prepared. i went in because i was so ignorant, confident. it was like getting hit by a board when mr. tacopina did my cross examination but i really wasn't doing it for myself.

i was doing it for the women in the country i was doing it in the country and i got very little sleep. got -- it was every day was exciting. it's an incredible feeling to feel the waves across the country behind us. and the end when i told what happened, i was heard, i was heard in federal court. i was heard in federal court in front of a jury of my peers. they weighed the evidence and the truth was established. and the system works. it's amazing how this process worked after two weeks. i was astounded that it actually worked. and the reason it worked is

robby kaplan. >> it helps to have a good lawyer to make the system work for you. >> right. >> you had a jury of nine. six men and three women on the jury. >> correct. >> once things are in the hands of the jury you never know what each individual juror is bringing to those deliberations, what their hang ups or own experiences or prejudice might be despite the fact the process is designed to make sure you have a fair jury. clearly, this is a ruling that shook the former president. the prospect of more accountability to come appears to be very unsettling to him. i think it is creating a sort of wave across the country of people feeling like you are speaking for a lot of people and not just yourself. but, robby, you have sued this former president a lot. and you have been the point of the spear for some of the legal accountability that he seems least able to handle. i wonder how that's changed your life. >> well, he doesn't like me very much. that's for sure. and he's kind of obsessed with the fact that my firm and some of the lawyers i work with have

other cases against him. but i think in terms of my life, it's the same job whether i'm suing trump on behalf of e. jean or we're suing the charlottesville nazis or suing someone else. the job is the same. it is to litigate the facts, to marshal the evidence, to convince a jury as we did in both cases, and here we had the best possible plaintiff and possible client to tell her story, to speak her truth, and as we said on our team, just let e. jean be e. jean and she was and the jury loved her. as they should have. >> let me ask you as a matter of law and advocacy here, this case has got me thinking about other people who have or may have defamation claims against the same former president, people like the georgia election workers, ruby freeman and shay moss. they have sued a few conservative media outlets and rudy guiliani for defamation. they haven't sued the president himself. but arguably they have the same kind of case to be able to make

against him. do you think the success of this case doesn't just buoy people who feel like finally accountability, finally truth being nailed to the wall and not let to slide down, but does it have the potential to change the legal landscape for other civil cases against trump? >> i think it does because he is actually a very good defamation defendant if you are planning to sue for defamation because he lies all the time. he lies as a matter of habit. he lies about big things. he lies about small things. and in this case we were able to show those lies not only about it being fake news and a hoax and made up story but even when i showed him that famous photo where he mistook e. jean for marla maples, when he realized he had made the mistake he then said the photo is blurry. the photo was not blurry but it was classic donald trump. and i think the jury really heard that. they really absorbed it. that's why we got a verdict in two and a half hours. >> this is the reason that this

is a bigger, i'm sorry to put it in these terms because i feel i'm like casting a movie about it or something but you saying it is a disadvantage that he lies so much i feel like it is the first time i have heard that in seven years. the ability to lie without shame and without any sort of tell, without any sort of remorse about it whatsoever, and about even the most important things has always seemed like a political super power to him. you've turned it into the opposite by virtue of the court system. >> he has revived defamation law. donald trump single handedly. >> e. jean, let me ask you one last question here. i was struck by what you said about trump's latest comments on cnn and i know you didn't watch them live which somehow gives me great comfort. but you said his words wound people. you used the plural there. not that they wound me or this is a way to wound women. you're talking about -- i'm just struck by your use of the word "people" there plural. what did you mean by that?

>> remember when he came, i've seen now clips of the cnn town hall. when he came on stage right after our enormous victory, and he made jokes about sexual assault. i couldn't believe the pain he was causing to thousands of people by joking about sexual assault. and that's how he hurts people. that's how he hurts people. and i'd love to have robby kaplan just shut him up. >> e. jean carroll, robby kaplan, thank you. >> thank you, rachel. >> thank you. >> good to see you. >> nice to see you. >> oh, much more ahead tonight. stay with us. o we always say, s? liberty mutual customizes your car insurance... so you only pay for what you need. that's my boy. ♪ stay off the freeways! only pay for what you need. ♪ liberty. liberty. liberty. liberty. ♪

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this weekend the governor of north carolina did something that governors have to do from time to time. he vetoed a bill. but he did not do it in the normal way. he did it like this. >> are you guys ready for a veto? [ cheering ] all right, then. you heard them. you heard them. governor cooper, let's do this thing. [cheers and applause]

♪♪ >> hello, north carolina. you know these rallies are happening all over the state. are we ready to stop this ban? when women's health is on the line, i will never back down. >> standing before a huge, cheering crowd on saturday, that's north carolina's democratic governor roy cooper, vetoing a new abortion ban. this is a ban passed by the republican legislature in north carolina. he held a veto rally, literally, are you ready for a veto? let's do this thing! and then he goes up there, high fives everybody, and vetoed the

bill right there in front of a rally as lots of simultaneous rallies will have celebrating the veto all over the state. that was saturday. today a bunch of north carolina businesses held their own rally against the abortion ban and against the republican legislature in north carolina targeting lgbtq people as well. so far more than 200 north carolina businesses have signed on to this don't ban equality in north carolina letter to the state legislature. quote, restricting access to comprehensive reproductive care including abortion threatens the health, independence, and economic stability of our workers and our customers. the governor of north carolina is a democrat. the legislature is controlled by republicans. republicans in fact have a super majority in the north carolina house and the north carolina senate. because they've got that super majority, what that term in fact means is that technically if all republicans vote together, they

have enough votes to override the veto, which they say they're going to try to do as soon as tomorrow. overriding governor cooper's veto would put the abortion ban in place in north carolina. but if they're going to do that, override his veto, they cannot lose a single vote. they cannot lose one republican in the senate nor can they lose one republican in the house. so we'll see tomorrow. and on the one hand, you know, this is political math. political math right down to the margin. on the other hand, this is a fundamental case involving freedom and healthcare for the people of north carolina. we'll see what happens there in north carolina tomorrow. but bigger picture this of course was all set in motion, this whole scenario was set in motion by the monumental ruling last year from the supreme court overturning roe vs. wade. that is a ruling that has profoundly changed american lives and profoundly changed american politics.

but in type, in terms of the way that ruling came down, it's the kind of ruling that has actually become much more rare in recent years. along with everything else that's changing in the way our country runs. since 2017, the supreme court has started issuing its rulings differently. has started issuing fewer what we think of as sort of traditional rulings even on controversial issues like that one. they've instead shifted to something you might have heard of but probably didn't understand called the shadow docket. well, now it's time for those of us who aren't lawyers to understand what lawyers are talking about when they tell us we should be worried about the shadow docket. here with us tonight we've got the attorney and legal scholar who has literally written the book about how the supreme court is getting its work done these days through the shadow docket, what that change in practice means for us as a country. it's really, really important, and that story is here next. stay with us.

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we had e. jean carroll and her lawyer robby kaplan here tonight. even before we knew they might be able to be here tonight for the interview i've been thinking about that case and why it feels like it has kind of heft beyond its literal direct impact. we have the former president found liable for sexual abuse, for his defamation of the woman he abused. the court orders him to pay her $5 million. that's a big, direct impact,

particularly for e. jean carroll as a person, but it feels like there's something else important about it, too, which is that the court tested her allegation, tested his claims, and came to a rational and binding explicable conclusion about them based on the facts. and with this particular former president it feels like that never happens so it feels important related to him. but i thought, at slate she said, quote, carroll wanted to have her day in court to hold him accountable by setting in the record that he did what she said he did. carroll saw the way trump had skated around other allegations of sexual assault and degraded his accusers. she was not deterred but determined to wrest one set of truths from his mountain of lies. with an affirmation of a jury of her peers she did. now it is no longer a story.

it has been processed through the system our soes side developed and agreed to know to adjudicate claims of wrongdoing and it has been deemed credible. the system our society has agreed upon to adjudicate claims of wrongdoing. that's it. putting allegations through that system, having them formally adjudicated through a fair process we all understand, it does feel sort of unprecedented when it comes to trump but it's also a good reminder that the judicial system really matters almost spiritually to us as a country in a way that almost nothing else does. when it comes to us fighting on the basis of the facts. when it comes to us as a country having big arguments in a fair way. having the courts judge things, using a process we can all see, acting in ways they have to explain, the courts establishing clarity about what's okay under the law, what's not okay under the law in a way that is testable and binding and public

facing, it's important for a case like e. jean carroll's but it's also important for who we are as a country. and there is a good case to be made that the supreme court is screwing that up right now. in a way that lawyers have been about for a while but the rest of us are now having to learn about because it's bad and it is not going to get better on its own. when we think of the supreme court we all have sort of the same thing in mind, right, in terms of the way they work. they decide to hear a case. they hear oral arguments. they deliberate for months. then they hand down their written ruling. the ruling is a long, written explanation of why they're ruling the way they are. there is often written dissents from some justices, concurrences from others. it is a ruling yes. everybody has to abide by the ruling but it is a ruling that explains itself. there is lots of explanation for why that ruling is what it is and that is for every case. that is how we think of the court doing its work. except no. that process i just described is less and less of what the supreme court now does in real life. they are now taking up fewer

cases that way than they have since the civil war. instead they are doing things a different way, a way they don't like to talk about, a way they don't like to be criticized for. it is what used to be a rarely used system in which the supreme court would take up cases as emergencies. and because they were emergencies the court would have to move fast. they'd have no time for oral arguments, no time for full briefing from the two sides. the justices would take up this thing on an emergency basis, decide however they wanted to decide it and just announce their ruling in a bare bones way. often the ruling would be anonymous. you wouldn't know who wrote it. unsigned. often it offers no explanation at all for why the ruling is the way it is. it is just a thumbs up or thumbs down with no discussion. this is something that used to be kept in reserve for special cases, for time sensitive emergencies. when there was no time for the court's normal process. now they're using that for everything. for big cases, for cases that aren't emergencies at all. for some of the most

controversial, divisive political issues that come before them, things like abortion rights and voting rights. things like if the court acts in a controls way they are risking some of the country may not want to abide by their ruling because some significant portion of the country thinks the court is bs so why should they follow its rulings. as argued in the new book "the shadow docket" quote as courts become the battlefield for fights over voter suppression laws, election integrity disputes, perhaps even the legitimacy of future election results, democracy itself may depend upon a supreme court widely perceived to be legitimate. if the court's legitimacy turns upon the court's ability to explain itself then the rise of the shadow docket is anathema to that understanding. the people can hardly be expected to acquiesce in decisions they can't possibly be expected to understand. i might say the court itself is not even bothering to explain.

joining us now is the university of texas law professor, the author of the new book "shadow docket" how the supreme court uses stealth rurngs to amispower and undermine the republic. thanks for being here. >> thanks for having me. >> what did i say wrong? >> nothing. no. i think the reality is that over the last five or six years, we've seen the supreme court use what used to be rare orders that we actually saw in the 1980s and 1990s in the death penalty context where they were enormously important to the state and prisoner but didn't tend to have broader implications on state wide or federal policies. >> and you can understand why they would be so time sensitive. the execution is scheduled for x and you must move before x. >> versus 2015, 2016, 2017, now if it is a big policy issue, whether the student loan program or covid vaccine mandates, the supreme court is handling so many of these through these

emergency applications and what is really most hard to see until you put them all together is the neutral legal principles that people might try to say explain these rulings fall apart when you look at the whole data set, fall apart when you compare trump rulings to biden rulings. when you compare how they treat covid mitigation measures in blue states to red states. it's not that the court can't have an emergency power. we need it to whether in an execution context or otherwise. it is that we've normalized the emergency and the procedures for emergency which are very short trip procedures. and even worse than that the justices themselves are now actually insisting some of these unsigned, unexplained rulings are precedence, chastising lower courts for having the temerity to not follow an unsigned, unexplained decision. >> as you say, it is important for them to have an emergency process of some kind. but that was one of the things that made it not such a big deal. there was kind of less process, certainly less visibility into the machinations of the court

around these emergency actions. they weren't meant to be setting precedent or binding anybody other than the parties to the immediate case. that is no longer true. >> that's right. the best evidence of the old school approach is until 1980 the norm was these emergency applications were dealt with by individual justices by themselves in chambers where they could provide more process, that used to be common to have oral arguments in a single justice's chambers, they could write an opinion and no one would confuse that as the word of the full court. in the 1980s what happened in response to the reinstitution of the death penalty is the court moved toward the full court procedure with less process and principle where at least 1980 to 2000s it is cabined in the unique space of the death penalty. the shift since 2017 is bringing it into the main stream seeing the court use the same procedures to put back into place trump immigration policies or other policies lower courts blocked, to block state covid mitigation efforts, and then to

say to lower courts, hey. you have to follow our orders. read the tea leaves. if you don't we're going to slap you down. >> in terms of the way that this has developed, i think the really important thing that i learned from reading the book is how suddenly this all has come on. it is not that this is a totally new procedure. it is just that it used to be -- used for break glass in case of emergency. now it is being use for everything. this has been upsetting some federal judges who have been calling you out all but by name including justice alito who seems very bothered by you. i am sure he is watching right now. i won't tell you how i know but i think he is. actually i don't know that at all. i wonder if you sense that since they have started doing this and since people like you started criticizing them for it they feel embarrassed or they feel the need to explain themselves because they think this is a justified change? >> it is really important to say

to everybody the court is a they not an it. do i think justice alito is especially mortified by public criticism? not especially. i also don't think his is the vote that matters. if you look at justice amy coney barret, justice brett kavanaugh you can see in the last 18 months a bit of softening, fewer contact where they seem to be joining alito and thomas and gorsuch. when the majority of the court intervened to prevent the judge's order that would have blocked access, one of the justices alito went after in his dissent was justice barret. i think the public reaction especially after the texas abortion ruling in september of 2021 had a bit of a mollifying effect, sobering effect at least on the folks now in the middle of the court. i think there is a lesson there that maybe you're not going to persuade the court to adopt a different methodology of

constitutional interpretation or to look at high profile divisive social issues differently but if we actually talk about the court as an institution and look at the full range of what the court is doing i think there are opportunities to build consensus about how things have run off the rails that don't require us to say we need different justices and we need to rein in their power. >> right. in other words pressure that comes from a fair minded place and that is based in reality can actually shift them. shame exists. >> shame from an institutionalist perspective if nothing else. >> you had to complicate it >> i did. a law professor problem. >> the book is called "the shadow docket, how the supreme court uses stealth rulings to amass power and undermine the republic." this is something lawyers have been talking about for a long time and it is really important for all of us to understand and public pressure is making a difference already in part because of you. thank you. >> thanks so much. >> we'll be right back. ll be rik . but we don't always love their hair. which is why we made bounce pet hair and lint guard with three times the pet hair fighting ingredients.

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near the group. mr. flood told us when he found them today he felt suddenly it was his duty to say something so he did. >> hi. hi, fascists. no one likes you. your mom hates you. your friends hate you. you were the losers of your high school class. you are sloppy. you are not even matching. you all have different types of pants on. cargo pants are out. reclaim your virginity. >> mr. flood told us, quote, this guy was giving this speech. he kept having to stop and pull it out of his pocket and then start reading it so every time he stopped i would yell at him and say he was boring. and then i said why can't you memorize your speech? why can't you memorize your speech? and then i said, you look like general custer's illegitimate son. the guy side and looked at me and i thought, i got you.

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