Last Week Tonight With John Oliver (2014) s13e11 Episode Script

Welcome to "Last Week Tonight".
I'm John Oliver, thank you so much for
joining us. It has been a busy week.
The pope met with Marco Rubio
amid ongoing tension between
the Trump administration and God,
a judge released this alleged
Jeffrey Epstein suicide note,
showing penmanship is still
worth teaching in schools,
and around the country,
Republicans scrambled to redistrict
in the wake of the Supreme Court's
Voting Rights Act ruling.
In Tennessee,
they convened a special session
to carve up the state's
only majority-Black district.
Now, under the law, they still
can't intentionally redraw districts
to disempower
people based on race.
Which led to this incredible exchange
between one Democratic state senator
and the bill's sponsor, who was
desperately trying to play dumb.
To the sponsor:
are you aware that Memphis is
predominately African American?
Senator Stevens, respond.
Thank you, Mr. Speaker.
I am not.
Senator Lamar.
Thank you, Mr. Speaker.
So, to my sponsor,
who went to law school
at the University of Memphis
and lived there for three years,
you're telling me you're not aware
that Memphis is predominantly
African American, am I correct?
Senator Lamar, he's answered
that. Next question, please.
No, no! Don't let him move on
to the next question,
unless that is, the next question is,
"To the sponsor: and who do you think
Elvis stole his music from, exactly?"
While there will obviously be much more
to say about redistricting going forward
we're gonna turn
to our ongoing war with Iran.
Trump is still claiming
his actions prevented Iran
from getting a nuclear weapon,
even when the audience
for that message is not ideal.
So, we would have had
an Iran with a nuclear weapon,
and maybe we wouldn't all be
here right now.
I can tell you, the Middle East
would have been gone.
Israel would have been gone,
and they would have trained
their sights on Europe first,
and then us,
because they're sick people.
What the fuck are you doing?!
You're surrounded by kids!
That event was part
of Trump's push to restore
the Presidential Fitness Test
in schools.
You are supposed to be giving them
nightmares about gym class,
not nuclear war!
Last week marked 60 days
since Operation Epic Fury began
and that is meaningful,
given, by law,
within 60 days of informing Congress
of the start of a military conflict,
the president must terminate
any use of the U.S. armed forces
unless Congress has formally
declared war
or enacted a specific authorization
for the use of the military.
Now, the administration's argued
they simply don't need
to comply with that.
And on Tuesday, Marco Rubio
made this big claim.
The Operation Epic Fury
is concluded.
We achieved the objectives
of that operation.
I'm not going to, you know,
we're not cheering for an additional
situation to occur.
We would prefer the path of peace.
But look, the message to Iran:
They are facing real catastrophic
destruction to their economy.
Generational destruction
to their economy.
Generational destruction
to the wealth of their country
imposed on themselves
by the actions that they're taking.
They should check themselves
before they wreck themselves
in the direction that they're going.
Yeah, Marco Rubio declared
Epic Fury was over,
before sending a message
to Iran's leadership
in the weirdest possible way.
Because if there is one group
of people
who'll identify with lyrics
from a '90s Ice Cube song,
it is definitely
fundamentalist Islamic clerics.
They love decades-old
hip-hop references.
Before his assassination,
Ayatollah Khamenei would famously
walk the streets of Tehran
wearing his favorite Run-DMC shirt.
So, the administration seemed to be
announcing the end of this conflict.
But the very next day,
Trump posted,
"Assuming Iran agrees to give
what has been agreed to,
which is, perhaps,
a big assumption,
the already legendary Epic Fury
will be at an end,
and the highly effective blockade
will allow the Hormuz Strait
to be open to all,
including Iran.
If they don't agree,
the bombing starts."
Which isn't great. And while it is not
the most important part there,
"assuming Iran agrees to give
what has been agreed to"
is just an insane phrase.
I usually can't stand AI,
but in Trump's case,
it might not hurt if he occasionally
asked ChatGPT,
"Can you rephrase this
so it doesn't sound like an earlier
version of you wrote it?"
And, in the midst of trying
to figure out
whether we can refer to Operation
Epic Fury in the past or present tense,
we were suddenly dealing with
a whole new operation this week.
President Trump has directed U.S.
Central Command
to restart the free flow of commerce
through the Strait of Hormuz
under the umbrella
of Project Freedom.
To be clear, this operation is separate
and distinct from Operation Epic Fury.
Yeah, we're now involved
with Project Freedom, too!
Which is legally distinct
from Operation Epic Fury.
You know, much like
this Halloween costume
called "Kids Chocolate Factory
Worker Costume"
is legally distinct from any association
with Oompa Loompas,
while looking very much
like the same thing.
The aim of Project Freedom was
to reopen the Strait of Hormuz
by having the U.S. military essentially
guide commercial ships through
by, among other things,
locating mines and passing along
that information to the ships.
But after just a day and a half
and only two ships making it through
out of the roughly 1,600
which were waiting,
Trump suddenly reversed course,
leading to the excellent headline:
"Trump Announces Pause
on Project Freedom."
Which is, if nothing else,
on the fucking nose.
But I actually want to focus
on a small moment from
Hegseth's press conference.
Because he and the chairman
of the Joint Chiefs
were asked about some of the weapons
potentially at Iran's disposal,
and one of them
was pretty striking.
Are there still concerns about mines
in the strait,
and can you kind of clarify
these reports of kamikaze dolphins
that we've heard about?
Yeah, you heard right. She just
said "kamikaze dolphins".
That sounds less like a real thing
and more like something
Alex Jones would mutter in his sleep,
or maybe the name of a bar trivia team
full of aquarium adults.
But incredibly, the Wall Street Journal
did report last week
that Iranian leaders
were considering deploying
"previously unused weapons
to attack U.S. warships",
including
"mine-carrying dolphins."
And at this point,
I'm just gonna pause.
Because that claim prompted us
to do a bit of a deep dive,
pun very much intended,
and apparently,
military dolphins
are an actual thing.
In fact, "since 1959, the U.S. Navy
has trained dolphins and sea lions
to help guard against
threats underwater."
Early experiments reportedly tested
more than a dozen species,
including sharks, rays
and sea turtles,
before the program
settled on dolphins.
But I could have told you
from the jump
that dolphins would be
the standout there.
Turtles too slow, sharks too stupid,
rays too difficult to take seriously
once you see their mouths.
Look at this idiot.
That is not a warrior.
That is nature's most slippery dweeb.
Dolphins are apparently
used by the military
because they "naturally possess
the most sophisticated sonar
known to science," with technology
being no match for them.
And it turns out,
they're good at a lot of things.
We train animals to do simple things
under extraordinary circumstances.
For them, detecting enemy
divers and swimmers
or UUVs or enemy mines,
finding the target is easy.
The animals are natural hunters,
we just change
what they're hunting for.
Yeah, dolphins are natural hunters,
but don't naturally hunt for explosives.
Typically, they hunt
for mackerel or squid,
or a scientist who'll jerk them off.
I don't have time to get into it
now, just Google that yourselves.
But according to one expert,
actually, you know what?
I will just tell you quickly.
In the 1960s,
this woman, Margaret Lovatt, tried
to teach a dolphin to speak English
and thought the best way was
to live with a dolphin 24 hours a day,
but her lessons kept getting derailed
by the dolphin's sexual urges,
and her solution to that problem was
to relieve those urges for him.
Long story short, the dolphin
never learned to speak English,
and was sent to live in an abandoned
bank in Miami.
And I'll be honest with you,
if that dolphin
didn't learn to speak English,
I'm not sure it can be done.
But again, we don't have time.
The point is,
there are military dolphins.
And over the years,
we've put them to work.
We brought a team
of five dolphins to Vietnam
"to guard an ammunition pier",
because that war didn't have
enough going on.
In the run-up to the first Gulf War,
a team of six dolphins
"patrolled the harbor in Bahrain
and escorted Kuwaiti oil tankers
through dangerous waters."
And during the Iraq war,
a team of dolphins
"helped disarm more than 100 anti-ship
mines and underwater booby traps"
planted by Saddam's forces.
Meaning, dolphins have objectively
done more front-line military service
than anyone
with the last name Trump.
Now, the U.S. Navy
has consistently maintained
it only uses dolphins
for defensive purposes,
and not to attack the enemy,
pointing out that,
"since dolphins cannot discern
the difference between
enemy and friendly vessels,
it would not be wise to give that kind
of decision authority to an animal."
It's also claimed that rumors to the
contrary arise from "media speculation",
thanks in part to a popular movie
in 1973 which reinforced those ideas.
And specifically,
they are talking about this movie.
Unwittingly,
he had trained a dolphin
to kill the president
of the United States.
Can you find Bea?
Stop Bea! The thing on Bea's back
will hurt man.
Fa, stop Bea now.
George C. Scott
in a Mike Nichols film,
"The Day of the Dolphin."
Yes! Yes, yes, yes!
Now, okay, for the record,
"Unwittingly, he had trained a dolphin
to kill the president of the US" is,
from the bottom of my heart,
the funniest sentence in history.
It is such a perfectly
direct summary of the plot,
they even put it
on the actual poster
for this actual movie that was,
again, directed by Mike Nichols.
You know, of "The Graduate",
"Who's Afraid of Virginia Woolf"
and "The Day of the Dolphin".
A few fun facts: Mike Nichols
apparently referred to this film
as "the fish movie," and had a hard
time during its production,
as "innumerable delays were
caused by the dolphins,
who tended to make a game out
of rearranging the underwater lights
once they had been set up."
Because of course they did.
Well done, dolphins.
According to the screenwriter,
on the last day of the shoot,
they apparently did three takes
of the dolphins swimming off,
and "after take three,
they never came back."
Again, well done, dolphins!
And finally, Nichols repeatedly claimed
he made the movie
"as a favor to Roman Polanski."
Just in case you thought that movie
couldn't get any fucking weirder!
Now, at this point, you might
understandably be wondering,
"Wait, if dolphins don't
carry mines to enemy ships,
then why's the U.S. government asked
about Iranian kamikaze dlphins?"
Good question.
Well, the U.S. Navy insists
that we don't use dolphins
to do that.
But other countries apparently
have trained them to attack.
Soviet Union's navy reportedly
developed its marine mammal program,
as part of which, "dolphins and other
aquatic mammals were trained
by Russian experts to attack
warships and enemy frogmen."
Now,
after the dissolution of the USSR,
the program "fell
into neglect in the 1990s"
and "when funding
for the project ceased,
many were moved
to a private dolphinarium
to perform for tourists"
in Ukraine.
Eventually, the tourist
trade dried up, and sadly,
their trainer was then forced to sell
those military-trained killer dolphins,
leading to the immortal headline,
"Iran Buys Kamikaze Dolphins."
Now, admittedly,
that was 26 years ago,
and some reports have speculated
that those particular dolphins
would now be "too old" for Iran
to use in the Strait of Hormuz.
Which is a bit rude.
But even if that is true,
Iran may have gotten new
dolphins from Russia since then,
given it's reportedly revived
its killer dolphin program.
And one more thing here:
a few years ago,
Hamas apparently claimed Israel
had a dolphin weapons program too,
leading to the headline
in the Jerusalem Post:
"Killer Zionist Dolphins?
Hamas Claims They Exist."
And that headline is a minefield
even the best-trained military
dolphin could not navigate safely.
Anyway, I think we've all heard a lot
more about bomb dolphins this week
than we thought we were going
to on Monday.
Which brings us back
to the Iran war.
Because who knows
what is coming next?
We're taping this on Saturday,
as the U.S. awaits Iran's response
to its proposal to end the war,
but it's definitely not a great sign
that both sides have now
resumed attacking each other.
And Trump's even floated the idea
of resuming Project Freedom
if no deal is reached, though in his
"screaming next to a helicopter" time
on Friday,
he added a little twist.
We may go back to Project Freedom
if things don't happen,
but it'll be Project Freedom Plus,
meaning Project Freedom
plus other things.
I think it's pretty clear, this guy
has got absolutely nothing.
Because "Project Freedom Plus"
is the most ridiculous series of words
I have seen this week,
which is really saying something,
'cause I'll remind you that tonight,
you've repeatedly heard the phrase,
"Unwittingly, he had trained a dolphin
to kill the president of the US."
And now, this.
And Now: People on TV Are Not
Excited About Star Wars Day.
- May the fourth be with you.
- Yes, today is May the fourth.
- You a "Star Wars" person?
- No.
- I've never seen "Star Wars",
- It's a classic.
- I like Baby Yoda, and he's classic.
- Yeah, exactly.
Okay, all right, well that's
enough about "Star Wars".
But this annual day
is very important, I know,
to my older brothers and
some of the other "Star Wars" fans.
Some people call them nerds,
but they call themselves fans.
I'm gonna be honest
with you guys, okay?
My stepdad used to make us
watch "Star Wars" as punishment.
As punishment?
If we got in trouble.
It was not my thing.
- He probably liked it.
- He was obsessed.
He was looking for friends.
I'm just gonna just stay right here.
Hello, Darth. Nice to meet you.
I never got into it.
You never
watched a single "Star Wars"?
Nope, never did.
We're happy to be doing
some trending again today.
- May the fourth be with you.
- Yes, there you go, Devin.
- And also with you.
- There you go.
Moving on. Our main story tonight
concerns the Supreme Court.
It's been in the news a lot lately,
especially thanks to last week's
Voting Rights Act decision.
If you haven't heard,
it was a six-three decision
in the case of
"White People versus Everybody"
and you'll never guess
who they ruled in favor of.
But I actually want to talk about
a pattern you may've noticed recently.
Basically, Trump comes out
with a new executive order or action,
a bunch of legal experts say,
"I'm not sure he can do that",
some courts weigh in and say,
"Yeah, he definitely can't do that
and he needs to stop",
and then this happens.
It looks like the Supreme Court
is allowing President Trump
to implement his ban on transgender
people serving in the military.
The U.S. Supreme Court is letting
the Trump administration move forward
with freezing 4 billion in foreign aid.
The justices ruling that the president
can indeed proceed with his plan
to try to dismantle the Education
Department with mass layoffs.
Right, the court has been repeatedly
jumping into ongoing cases to say,
"You know what? While this works
its way through the courts,
Trump should get to do the thing
he wants to do anyway."
It's basically a football referee saying,
"Pending a final ruling on the legality
of the quarterback having a gun,
I'm just gonna stand back and see
where he's going with this."
That is possible, thanks to the rise
of what's known as the shadow docket.
And to explain what it is,
it's probably useful to remember
how regular Supreme Court cases
are decided.
When you think
of a Supreme Court case,
you're thinking of a case
on the merits docket.
A case starts in a district court,
is appealed to a circuit court,
often called an appeals court,
and then it's petitioned to be
heard by the Supreme Court.
From there, briefs are written,
arguing each side,
then oral arguments where
the justices can ask questions,
and then they meet privately in person
to discuss the case and vote on it.
They spend months writing
long opinions and dissents,
and then we know who won
and who lost and why.
And that detailed explanation
helps these lower courts understand
how to apply it
to similar cases going forward.
Yeah, that is very basically it.
Although, one small thing there:
saying, "When you think of
a Supreme Court case,
you're thinking of the merits docket."
Excuse me, you don't know
what I'm thinking of
when I think of the Supreme Court.
Especially as what I'm actually
thinking about is how the sequel
to "Legally Blonde", "Legally Blonde 2:
Red, White and Blonde,"
dropped the ball by not having
Elle Woods argue a case in front of it.
Come on, guys, the best part
of the first movie is the murder trial,
and the sequel has no trial scenes?
You set the movie in D.C.
and don't let Elle show what she can do
in front of the highest court
in the land? That is madness!
Anyway, that is what
I'm always thinking of
when I think of a Supreme Court case,
the one I'm eventually gonna bring
against the producers
of "Legally Blonde 2"
for not putting Reese
in a position to succeed.
But admittedly,
the second thing I'm thinking of
is that process, the regular,
established path to the Supreme Court.
District courts, circuit courts,
Supreme Court.
But if a litigant is in a hurry,
and they think
the Supreme Court's gonna be extra
friendly to them for some reason,
then the shadow docket offers a much
speedier way to get your case there.
Basically, any litigant in a federal case
can ask the Supreme Court to step in
and provide a temporary ruling
on what should happen
while their case works
its way through the system,
which can take years, by the way.
Five votes among the nine justices
are needed to grant a request
for the court to intervene,
and that request
must meet certain criteria,
including that the applicants
would suffer, quote,
"irreparable harm"
if it's not granted.
And that term, "irreparable harm",
is really important,
because it sets a very high bar.
Which is why, for years,
the docket's main use
was in one particular type of case,
as this law professor explains.
If someone's going to be executed
the next day,
and the person's lawyers are saying,
"Listen, my client was convicted
or put on death row
for the wrong reasons.
He's innocent, or there's some
problems in the process."
The Supreme Court might say,
"We're going to stay the execution
order under this 'emergency process,
because once this person's executed,
we can't fix the problem," right?
Right. Once someone is executed,
it is generally too late
to do anything about it,
besides maybe sending them a card
from Hallmark's
"belated exoneration" section.
But Trump's now using
the shadow docket
for a lot more
than just death penalty cases.
Because, if a lower court issues
a ruling that he doesn't like,
say, pausing an executive action
until it's been fully litigated,
he'll now run to the Supreme Court
and ask them to rule in his favor
on the shadow docket.
And recently,
he's been doing that a lot.
This is every time the federal
government had a case there,
back to the first Trump administration.
And here's just eight months
into his second term.
It's being used in record numbers.
Yeah, Trump keeps claiming
he needs an emergency ruling
and the court
keeps agreeing with him.
That chart is pretty striking,
though to be fair,
you could probably use it
for any number of things in the second
Trump administration,
from measles cases, to gold shit nailed
to the walls of the White House,
to use of the phrase
"when it happens".
And this strategy is paying off,
as in the last year alone,
the court's issued decisions via
the shadow docket
that allowed this administration
to cut hundreds of millions of dollars'
worth of grants to universities,
dismiss every transgender service
member from the military,
cut a third
of the Department of Education,
fire hundreds of thousands
of federal employees,
and refuse to spend 4 billion in
congressionally-appointed foreign aid.
There are clearly a lot of problems
with the current Supreme Court,
six of them, to be precise.
The five boys and this preschool
teacher who still hits.
But their work on the shadow docket
has empowered
some of Trump's worst policies,
to the point it's now become
his go-to method to get his way.
One former solicitor general
has even said of the docket
that it's "swallowed the court,
both in terms of workload
and even practical importance."
So given all that, tonight,
let's look at the shadow docket,
what it is, why it exists
and how it's being abused.
And let's start by acknowledging
the term itself is a bit bitchy.
It was first coined by a law
professor criticizing the practice,
and some justices
do not care for it.
Amy Coney Barrett's said she
prefers "emergency docket"
and Brett Kavanaugh reportedly pushed
for calling it the "interim docket".
Samuel Alito actually gave a whole
lecture to Notre Dame law students
about how misunderstood
the docket is.
And fun fact, his lecture wasn't
supposed to be recorded,
but we got the audio of it,
and here's a taste.
The term is memorable and suggestive.
Journalists and some political figures
have found it useful.
It brings to mind
something sneaky and dangerous.
And I'm sure when ordinary people
who don't follow the work
of the Supreme Court closely hear it,
they're disturbed.
They say, "What are these people
trying to do?
What are they trying to hide
in the middle of the night?
Let the sunshine in."
And that's exactly what I'm
going to try to do this afternoon.
Okay, set aside the bad-faith claim
of saying "let the sunshine in"
during a lecture
at an exclusive law school
that you've explicitly asked
not to be recorded.
Alito argued that day
that there's absolutely nothing wrong
with deciding cases
on the shadow docket,
and anyone who says different
is just a sore loser.
The real complaint of these critics
is that we should have granted relief
when they think
it should have been denied
and we have denied relief when they
think it should have been granted.
If they want to criticize us
on those grounds, fine,
let them make their case.
But attempting to disguise
their real complaint
with a lot of talk about a secretive
sinister shadow docket is unworthy.
Okay, Samuel.
But you can not like a decision
and also not like how it came about.
Things can suck
for more than one reason.
You know, like when "Jeopardy!"
was looking for a new host
and the producer in charge
of the decision said,
"Guess what! We found him:
it's me.
Congratulations to me
on winning my contest,
I look forward to working with the guy
who I am."
People had a lot of concerns
about that,
and "this guy sucks at hosting
'Jeopardy!'" was only one of them.
And it is not unreasonable
to have complaints about
the shadow docket's process,
given the damage
some of these rulings have done.
Because in many cases, it has sure
seemed like the court's intervention
caused a lot more "irreparable harm"
to people
than Trump would've suffered
simply by waiting for a regular ruling.
Take their decision
to allow Trump
to dismiss
every trans member of the military.
That had immediate consequences,
as this service member explains.
It's going to be devastating,
should that occur.
I will lose this core component
of my identity
that's been with me my entire life.
I will lose the single source of
income right now for my family,
the healthcare,
the benefits associated with that,
the on-post housing that we have.
We'll lose everything at that point.
Yeah. And when one party in a case
stands to lose everything
while the other will just have the same
military he did yesterday,
it seems clear which party
would need emergency relief
before the case was decided
on its merits.
But to be fair, I am not
a Supreme Court justice, am I?
I just occasionally try
to bribe one on TV.
And while a shadow docket
decision is technically temporary
while the case makes its way
through the system,
once an administration has a ruling
that lets them do what they want,
they have every incentive to drag
their feet and delay a case's appeals.
All of which makes it
incredibly frustrating
when you hear Amy Coney Barrett
blithely defend the docket like this.
We're not resolving a case finally.
We're just saying
it's a kind of a "for now."
This is our best judgment
about the merits,
about the likelihood
of success on the merits,
and then you're
considering other factors too.
Yeah, it's just a "for now" decision,
so that soldier losing her job
really shouldn't complain.
She's only losing it "for now".
All she has to do is not need
money or housing
until the court eventually
gets around to deciding
whether or not it should've been taken
away from her in the first place.
But that is just the beginning
of the problems here.
Because justices are also frequently
making sweeping decisions
without
fully understanding a whole case.
Cases are decided on the shadow
docket without oral argument,
and sometimes without the full
picture of the evidence
that lower court proceedings
might provide.
Take the case of Noem
versus Vasquez Perdomo.
It involved immigration raids in L.A.,
where federal officials conceded
they were using race and ethnicity
as a factor in deciding who to stop.
Which is, and this is true,
racial profiling.
A lower court told the government,
correctly, to cut that shit out,
but the government then appealed
via the shadow docket,
and the Supreme Court ruled
that they could proceed.
And in a rare move, Brett Kavanaugh
actually wrote a brief explanation
of why he'd reached
that conclusion,
saying immigration stops
were "typically brief"
and that "individuals may promptly
go free after making clear
to the immigration officers
that they are U.S. citizens
or otherwise legally
in the United States."
But that is bullshit
for a bunch of reasons.
The notion that any interaction with
law enforcement is "typically brief"
is something only a white guy named
Brett would confidently assert.
Also, that's not even what the details
of the case he was ruling on showed.
As Justice Sotomayor
pointed out in her dissent,
two plaintiffs in the case had tried
to explain they were U.S. citizens",
one was then pushed against a fence
with his arms twisted behind his back
and the other was taken away from his
job to a warehouse for questioning."
So, Kavanaugh's opinion wasn't even
based on the facts on the ground.
And whether that's because he was
moving too fast to read up on the case,
which is kind, or simply didn't care,
which feels way more true,
it doesn't really matter.
Because the court had already ruled.
And that ruling is actually
one of the key reasons
why, earlier this year,
federal agents in Minneapolis
felt empowered to do shit like this.
American citizens are getting stopped
and questioned,
including a woman walking down
the street.
Ma'am, where were you born?
It doesn't matter where I was born.
I belong here. I am U.S. citizen.
And this Uber driver.
I can hear you don't have
the same accent as me.
So you're going by accents now?
People have been stopped for
simply appearing to be Somali
or appearing to be Latino
or appearing to be foreign.
And it's concerning,
because we also know
we're not getting these stories from
Irish folks and Norwegian folks here.
Yeah, I bet you're not.
And look, I'm not saying
they should've done it,
but it would have at least
been a change of pace
if the feds in Minneapolis had done
some throwback anti-European racism.
You know, signs in diner windows
saying things like,
"No spaghetti eaters" and water
fountains reading, "Swedes only."
Just to balance things out a bit.
But the fact you can now be targeted
for just speaking with an accent
has given rise to some truly
striking exchanges.
You're not allowed!
I don't care!
- What country are you from?
- I'm from this country!
You know what, sir, now talking to you,
hearing that you have an accent,
I have reason to believe that
you are not born of this country.
- Do you have documentation?
- I do have my documentation.
- Can you present it to me, please?
- Why you asking for my paperwork?
- Because of your accent.
- You have an accent too!
- Where were you born, sir?
- Where were you born at?
Put your hands behind your back!
That's madness. No one should ever
be arrested for speaking in an accent,
unless of course,
that person is Chet Hanks.
But even then, I think we can just
let him talk it down to a large fine.
Now, it's worth noting
that thanks to Kavanaugh's opinion,
what you just saw is now commonly
referred to as a "Kavanaugh stop",
arguably the worst thing to bear
Brett Kavanaugh's name
other than Brett Kavanaugh himself.
But the thing is, we only know
about Kavanaugh's faulty reasoning
because he actually
bothered to explain his logic,
something again on the shadow docket,
court doesn't technically have to do.
"Decisions can come down
with no public discussion
and no guidance to lower-court judges
on how to analyze similar cases."
That's a practice Samuel Alito
has strongly defended, saying,
"When we issue an opinion,
we are aware that every word
that we write can have consequences,
sometimes enormous consequences,
so we have to be careful about
every single thing that we say."
On her book tour last year, Amy
Coney Barrett made a similar case.
Well, the emergency orders
present a challenge
because they do require
the work of the court
to proceed far more quickly
than it normally does.
I pointed out in the book that
there are turtles all over the court
because normally
the court moves slowly,
it changes slowly,
justice moves slowly at the court
because we are very deliberate.
The emergency docket
moves much more quickly,
and it is a much more
recent phenomenon.
The emergency docket is newer,
and so I would say those processes
are still being shaped and sorted out.
Okay, first and least importantly,
I am frankly furious
that I'm only just learning
that the Supreme Court
apparently has a turtle theme.
That is now my second favorite
fact about turtles,
just below "some turtles
breathe through their butt."
Yet more proof that God
occasionally drank on the job.
But if your argument is,
"We're not really built
for emergency docket decisions",
then maybe you shouldn't be choosing
to do them all the fucking time.
And unexplained decisions
can also be frustrating
to lower court judges, who argue
it can diminish their credibility
when their rulings against
the administration
get overturned on the shadow docket
with little or no explanation,
because it "makes it seem
like they did shoddy work
and are biased against Trump."
And that's not the only problem,
because there's also the question
of whether shadow docket rulings
set precedent.
Basically, are they "for now",
temporary decisions about one case,
or are they meant to be guideposts
in how judges are to interpret
the law going forward?
Interestingly, just five years ago,
Alito argued the former,
saying that shadow docket decisions
"do not make precedent
on the underlying issue."
But lately, other justices
have argued the opposite.
Both Gorsuch and Kavanaugh
at one point issued a ruling
reprimanding a lower court
for not treating a shadow docket
decision as precedent, saying,
"Lower court judges may sometimes
disagree with this court's decisions,
but they are never free to defy them."
And it is pretty shitty to admonish
someone for not understanding rules
that are not only unclear,
but seem to be constantly changing.
It's the judicial equivalent
of getting yelled at in the TSA line.
Hey, shoes off!
No, just the left shoe!
It's right shoe on and left shoes off!
Like it has always been!
Keep your belt on! No, not like that!
Tie it around your head like Quailman!
From Nickelodeon's 'Doug!'
It's not that complicated!
You are not free to defy me!
All this confusion is understandably
frustrating to lower court judges
who would be more than happy
to defer to the Supreme Court
if it'd just tell them
what the fuck they're deferring to.
Here is one judge venting
about that exact problem.
That's why we need an opinion
from the Supreme Court,
Supreme Court comes and says,
"We didn't really say that, 'cause we
didn't give any reasoning behind it."
People need to understand it.
And to give confidence to an opinion,
we need to understand
why you did it.
We judges would just love
to hear your reasoning
as to why you rule that way.
It makes our job easier.
We will follow the law,
we will follow the Supreme Court,
but we'd like to know
what it is we are following.
Exactly! Judges would be happy
to follow directions
if the court just gave them some.
If you bought a Urfenslorp bookcase
from IKEA
and the instructions were just
the little guy shrugging
and pointing at a bookcase,
you'd be justifiably pissed.
Get off your abstract Swedish ass
and give me some directions!
That's the only reason
that you are here!
But maybe what'll hurt the Supreme
Court the most in the long run
is that these decisions
seem nakedly political.
It turns out, the best predictor
of how this court will rule
in shadow docket cases seems
to be who is president at the time.
The Biden administration brought far
fewer cases to the shadow docket,
and won just over half the time,
but the Trump administration,
which uses it far, far more,
prevails 84% of the time.
And look, maybe the justices
have nuanced reasoning
for voting how they did,
but if they do, they're not saying so.
And that is a big problem.
And I know that for
some Trump supporters,
all of this may be gratifying,
in the short term.
But as this law professor explains,
over the long term,
this approach poses real risks
to the court's very legitimacy.
20 years ago when all the court was
doing through emergency applications
was last-minute
stays of execution,
I don't think there was a big clamor
for the justices
to provide lengthy explanations.
But now that these orders are having
these profound effects on the ground,
the fact that
we see the court intervening,
oftentimes undoing
hundreds of pages of analysis
from lower court judges and providing
no explanation of its own,
it's a real part of the problem,
and it deprives all of us,
the lower courts, the relevant
government decision-makers,
the public of any ability to assess why
the justices ruled the way they did.
Exactly. My son is right.
Quick side note on that:
come home, Nathaniel.
Your mother is ill, and for her
sake, our feud must cease.
But he is right. As the legal
director of the ACLU put it,
"If the justices can make significant
decisions without giving any reasons,
then there's really no limit
to what they can do."
Which is not good.
So, what can we do?
There are a bunch of fixes Congress
could impose,
especially given it controls
the Supreme Court's budget,
including simply requiring
the court issues written explanations
whenever ruling
on the shadow docket.
Which really doesn't seem
too much to ask.
And if that burden means
that they won't be able to do
as many shadow docket cases as they
currently are, all the better.
But that is just the beginning.
Significant Supreme Court reforms
have to be on the table now.
And I know that many balk at that,
including members of Congress.
But think of it like this:
when the Supreme Court
allows the president to act in ways
contrary to statutes,
like, say, not spending congressionally
appropriated funding,
that is seizing power from Congress.
And maybe it is time for Congress
to start taking a little power back.
I know the court itself will object
to the idea that it's a political body.
Just this week, Chief Justice
John Roberts whined
that "people think we're
making policy decisions.
I think they view us as truly
political actors,
which I don't think is an accurate
understanding of what we do."
But to be clear, this is a mess
of the court's own making.
Because there's something
both frustrating and deeply patronizing
about justices choosing to issue
unexplained rulings,
only popping their heads out
for fawning interviews
when they've got a shitty book to sell,
and then scolding us
for not understanding
what's going on inside
their gorgeous, pristine minds.
As we've discussed before, when they
do write their reasoning down,
it often exposes the degree
to which they can seem to reach
for predetermined conclusions
before working backwards
to fill in a legal rationale.
But at least they have
to put the work in.
And I know that some will say
no substantive court reform
is likely to happen during this
administration, which is obviously true.
But it is still worth
starting the conversation now.
Because there are lots of ideas
for court reform,
from adding justices to no longer
allowing the court to set its own docket
and they always seem to get kicked
down the road for a later discussion.
You may remember Joe Biden
came into office
and handed the idea of court reform
off to a blue-ribbon commission.
And if you're thinking, "Oh, yeah,
what the fuck became of that?"
he actually released a set
of proposals in July of 2024.
You might have missed it,
not only because it was around a month
after he imploded on the debate stage,
but also because it was the week
after he withdrew from the race.
And nobody was going
to be reading that report then.
The only thing people
were reading that week
were 500 different tweets
about how Kamala was brat.
It was a weird time, but you know,
it all worked out.
We have two and a half years between
now and the next election
to lay the groundwork for change.
I'd argue that it's worth doing.
Because this court has eroded
people's confidence to the point
it's now considered a political arm
instead of a necessary check
on political power.
And if you ask me, that qualifies
as, if I may borrow a phrase,
actual irreparable fucking harm.
And now, this.
And Now: For Mother's Day, Just
Leave Mom the Fuck Alone.
And as we've mentioned this morning,
it is Mother's Day weekend,
a time where we try and give
credit where credit is certainly due
and celebrate our mothers.
Most people get their moms cards,
maybe flowers, always a good one
and some goodies.
Maybe you can even take her
to brunch, another good one.
Another good one is to be left alone!
The answer to the question,
what will moms get on Sunday?
Rest, relaxation.
Be left alone.
And being a mom, what we appreciate
the most is alone time.
- I'm just saying.
- Some peace and quiet.
Maybe he'll give me
some peace and quiet finally.
We'll see.
You probably don't have a clue what's
going on, and that's a good thing.
I have a clue. I told him, leave me
alone, let me sleep in bed and relax.
I want sleep and peace and quiet.
For me, I say it every year,
my husband knows,
just leave me alone.
That's all I want.
I'm down to do, like, a breakfast
or a lunch, and then leave me alone.
She wants a hotel room
and to be left alone.
Yeah, just let Mom stay in the bed,
and that might do it.
Yeah, slip the note under the door.
I like handmade cards
or anything sentimental,
'cause it puts thought into it,
and it's sweet.
- And you can keep them, save them.
- And leave me alone.
That's our show, thanks for watching.
We'll see you next week, good night!