ISL takes the L | Crooked Media
SEE POD SAVE AMERICA, LOVETT OR LEAVE IT & STRICT SCRUTINY LIVE SEE POD SAVE AMERICA, LOVETT OR LEAVE IT & STRICT SCRUTINY LIVE
June 27, 2023
What A Day
ISL takes the L

In This Episode

  • The Supreme Court issued a 6-3 ruling in Moore v. Harper Tuesday, dismissing the “independent state legislature” theory in a case about a GOP-drawn North Carolina congressional map. Mark Joseph Stern, senior writer at Slate Magazine, joins us to talk about the Supreme Court’s ruling, and the theory central to the case.
  • And in headlines: an audio recording recently made public suggests former President Donald Trump had “highly confidential” documents he did not declassify, the first UN investigator to visit Guantanamo Bay has urged the US to apologize for the treatment of prisoners at the facility, and workers at Starbucks stores are striking this week over the banning of Pride decorations
Show Notes:

 

Crooked Coffee is officially here. Our first blend, What A Morning, is available in medium and dark roasts. Wake up with your own bag at crooked.com/coffee

 

TRANSCRIPT

 

Priyanka Aribindi: It’s Wednesday, June 28th. I’m Priyanka Aribindi.

 

Juanita Tolliver: And I’m Juanita Tolliver and this is What A Day the only show in America not hosted by Ryan Seacrest. 

 

Priyanka Aribindi: Seriously, this man will not stop coming for everyone’s jobs. No one is safe. 

 

Juanita Tolliver: And also what happened to Vanna’s audition? Like we were all rooting for you. 

 

Priyanka Aribindi: We have questions. We’ll get to the bottom of it. [laughter] [music break] On today’s show an audio recording recently made public suggests that former President Donald Trump had highly confidential documents that he did not declassify. Plus, workers at Starbucks stores are striking this week over the banning of Pride decorations. 

 

Juanita Tolliver: But first, yesterday was a great day for our democracy as the Supreme Court handed out yet another ruling against Republicans who love to disenfranchize voters and gerrymander their way to election wins. The Supreme Court issued a six-three ruling in Moore v. Harper the case where Republicans in the North Carolina state legislature argued that an asinine theory called the independent state legislature theory empowered them to ignore a ruling from the North Carolina Supreme Court and implement a congressional map where the redrawn districts blatantly violated the state constitution. Of course, naturally they thought that was their right, but apparently nullifying the power of state courts was just a step too far for at least six of the Supreme Court justices. 

 

Priyanka Aribindi: Yeah, so, I mean, this court’s hesitance to be like, you’re doing amazing, sweetie.  

 

Juanita Tolliver: Right. Don’t give no gold stars. 

 

Priyanka Aribindi: No gold stars, but like, we do love to see a decision that is good for our democracy, that is hard to come by these days. 

 

Juanita Tolliver: I mean, we’re talking about scraps around the edges here. But I do want to recognize if the justices had ruled differently, the next election cycle would have been a hellscape of sorts where– 

 

Priyanka Aribindi: Right 

 

Juanita Tolliver: –GOP led statehouses would have done some serious damage. But thankfully, we’re not there yet. And I say yet on purpose, considering the backdoors written into some of the opinions issued by the justices. To break down the Supreme Court ruling and the impact it will have. We talked with Mark Joseph Stern, a senior writer at Slate magazine who covers courts and the law. We started by asking Mark to walk us through the Supreme Court’s ruling and how the case played out. Take a listen. 

 

Mark Joseph Stern: The Supreme Court on Tuesday issued a decision in Moore v Harper, which is a long running case about North Carolina’s partisan gerrymandering. So some years ago, the North Carolina Supreme Court held that partisan gerrymandering is illegal under the state constitution. And Republicans who drew those gerrymanders in the state legislature were like, no, that can’t be right, because we’re the state legislature. And the Constitution says that the state legislature makes the rules for federal elections and that state courts and state constitutions don’t get any say. So they appealed this case to the United States Supreme Court, and they asked the United States Supreme Court to hold that state legislatures, which we should remember, are in many cases grievously gerrymandered. Right? Like so carved up that one party can win a supermajority of seats while winning a minority of votes. 

 

Juanita Tolliver: Exactly 

 

Mark Joseph Stern: They asked the Supreme Court to say that state legislatures have total control over federal elections, that when it comes to voting rights, when it comes to gerrymandering, redistricting, any democracy related issues that state legislatures have absolute plenary power, as we call it in the law, and that courts and constitutions in a state are just powerless to step in and impose any kind of restraints. And on Tuesday, the Supreme Court of the United States firmly, firmly, firmly rejected that argument. They said, no, it is not true that state legislatures have total power over federal elections. State supreme courts have a real role to play here. State constitutions have a role to play. There’s nothing that exempts state legislatures from the usual rules of judicial review, and that is going to be a very important decision going into the 2024 election. 

 

Juanita Tolliver: Right. And they made it plain as day. You can’t just skip over the stuff you don’t like or the rulings you don’t like. And with this specific ruling, it feels like democracy might have lived to see another day, considering, you know, the ongoing urge to disenfranchize voters coming from Republican led statehouses. So would you break down how this ruling reinforces our democracy and the really dark alternative we could have been facing if the court ruled in a different direction? 

 

Mark Joseph Stern: Yeah, absolutely. So one thing this decision definitely does is preserve independent and nonpartisan redistricting commissions, which have sprung up in many states like Michigan and California. 

 

Juanita Tolliver: Right 

 

Mark Joseph Stern: That do a great job bringing regular citizens into the process of drawing district lines and cutting politicians out of the process so that they aren’t just protecting themselves and their party. And that was a very controversial thing at the court for a while. But in his opinion, on Tuesday, Chief Justice Roberts basically said, I’ve made peace with it. We can keep these nonpartisan redistricting commissions, which is really good for democracy, because it means less gerrymandering in a lot of purple states. Another really important thing here is that Roberts said courts in a state. So, you know, it’s important to differentiate state courts, federal courts. He says state courts still have a lot of power to protect voting rights. 

 

Juanita Tolliver: Right. 

 

Mark Joseph Stern: So if a legislature passes some law that grievously suppresses the right to vote, that prevents some large number of people from voting, that makes it incredibly difficult to vote. State courts still have the power to step in and strike down those laws under state constitutions. And that is also really important because as we saw in the 2020 election, Republicans are increasingly challenging ballots and voting methods– 

 

Juanita Tolliver: Yup. 

 

Mark Joseph Stern: –to try to disqualify them to rig elections. 

 

Juanita Tolliver: I was only going to add that we know that with the gutting of the Voting Rights Act, the DOJ has been trying to play Whac-A-Mole and figure that out, but that’s clearly insufficient. So this ruling reiterates some of these points in terms of protecting voters’ rights. 

 

Mark Joseph Stern: Exactly right. When Roberts, a few years ago, issued a terrible voting rights decision that basically said federal courts can’t police partisan gerrymandering. He had this section at the end where he was like, but don’t worry, guys, we’re still going to let state courts play this role. We’re not going to stop state courts from protecting voting rights and democracy at a state level. And this decision felt like him saying, okay, I meant it when I said that back then. And I think the last really important takeaway here is that schemes like the one Trump launched after the 2020 election to try to overturn the results by having the state legislature just send electors for Trump instead of electors for Biden. That is very clearly off the table now. This court has said loud and clear, we’re not going to let state legislatures just ignore the results of a popular vote and ignore their state constitutions and just pick whoever they want as the winner. That’s not how democracy works. And I think that is a very good thing, given the likelihood that Trump will be the candidate again. It seems like the Supreme Court is not going to uh play ball if he once again tries to rig or overturn the results in a state. 

 

Priyanka Aribindi: I want to ask you a little bit about something else. Central to this case was this idea of independent state legislature theory. Can you tell us a little bit about this idea and how it’s relevant to this case? 

 

Mark Joseph Stern: So this is the idea that I was sort of pointing toward earlier that state legislatures are independent from the rest of state governments, that they’re independent from their state constitutions, from even perhaps the governor or the secretary of state, from the state judiciary, and that the United States Constitution gives them this free wheeling power to do whatever they want when it comes to federal elections. You want to suppress the votes, you want to draw gerrymanders, you want to change the location of polling places so that people of color have a harder time to vote, whatever. According to the independent state legislature theory, all that’s fine as long as the legislature wants to do it. And that is a really big departure from how we usually do law in this country– 

 

Priyanka Aribindi: Right, imagine?

 

Mark Joseph Stern: –which is, you know, the legislature does something and the courts decide whether or not it was lawful in light of various laws and constitutions. Right. And really, I think this is important to note, it would have given federal judges a huge amount of power to interfere with elections. There was a case where Texas election officials had set up drive thru voting in a blue county. 

 

Juanita Tolliver: Mm hmm. Harris County. Yeah 

 

Mark Joseph Stern: Yes, that’s right. And a federal judge got really, really close to disqualifying more than 100,000 ballots that had been cast through that method and actually got the state to shut down all but one of the drive thru voting centers on the grounds that the state legislature wouldn’t have wanted this particular voting method. And I think one big impact of this decision is that it should restrain judges like that and tell them, actually, you are a federal judge. It is not your role to be deciding or rewriting a state’s election procedures. Like in that case, the Texas Supreme Court had already said that drive thru voting could go on. And this decision basically says, yeah, leave it there. 

 

Juanita Tolliver: And I think all of us here agree this was good news, right? This ruling is good news. But I have to ask, how concerned should we be about the fact that the Supreme Court even considered this so-called theory? And could this case be a gateway for similar challenges in the future? 

 

Mark Joseph Stern: So one thing to note is that there is this section at the end of Chief Justice Roberts opinion where he says, okay, so now that we’ve established this basic principle that there’s no independent state legislature theory, that state courts can play this role, whatever. I just want to add that there may be scenarios in which a state court goes so far beyond the bounds of reasonable interpretation of state law and breaches the outer limits of reasonable judicial interpretation that federal courts may have a responsibility to step in and correct them. And so what he’s saying basically is if a state court goes so freakin hog wild with a decision that it does not even bear the slightest resemblance to what the law says, that in those circumstances, a federal court can step in and correct them. The question is, what do you count as hog wild, Right? Like, is it um a sort of debatable interpretation of the law? Is it like very questionable, but you can sort of see it if you squint? Or is it total like Joker style nihilism? 

 

Juanita Tolliver: Yikes. 

 

Mark Joseph Stern: Roberts doesn’t answer that. He does not answer that question. And so I think this will continue to be litigated to some degree because we’re going to see different judges reading that differently and trying to interfere again with state law. And then to your original question, I mean, yeah, like it sucks that the Supreme Court even took this case. I mean, this is an example of how the court can just reach out and decide whatever question it wants, this is going to be an issue in the student loan cases. 

 

Juanita Tolliver: Yup. 

 

Priyanka Aribindi: Is there anything else, just before we let you go that we haven’t covered in the interview that you think might be important for people trying to understand what happened today? 

 

Mark Joseph Stern: This came to the court with a lot of frenzy and terror around it because– 

 

Priyanka Aribindi: Right.

 

Mark Joseph Stern: –North Carolina Republicans were pushing for the most extreme version of this theory pretty much. You know, they wanted to let state legislatures suppress voting rights, gerrymander to their heart’s content without any real oversight. And that made it so that anything the Supreme Court did shy of that outcome was going to look moderate. So the court could have simply not taken up this case and let the lower court decision stand and just stayed out of it. But instead, the court reached down, grabbed this case, held on to it after the lower court decision was withdrawn and issued a decision that’s going to get very good headlines. That is a good example of how the court manipulates its docket to look more moderate than it is. 

 

Juanita Tolliver: That was our conversation with Mark Joseph Stern, senior writer at Slate magazine. And here’s to bracing ourselves for the ten remaining decisions to come down from the highest court in the land on affirmative action, student loan, debt forgiveness, LGBTQ rights, and more. 

 

Priyanka Aribindi: Phew. 

 

Juanita Tolliver: I know we got a laundry list to go. And– 

 

Priyanka Aribindi: [laugh] No! 

 

Juanita Tolliver: –yikes. Of course, we will keep you updated on all of the mess and constantly remind you that even though they have issued an appropriate decision every once in a while, this court is stacked with extreme conservatives and they don’t deserve any positive PR. I mean, you’re not getting anything from us. So– 

 

Priyanka Aribindi: Mm mm. 

 

Juanita Tolliver: That’s the latest for now. We’ll be back after a few ads. [music break] 

 

[AD BREAK]

 

Priyanka Aribindi: Let’s get to some headlines. 

 

[sung] Headlines. 

 

Priyanka Aribindi: An audio recording recently made public reveals that former President Donald Trump appeared to have, quote, “secret documents” that he did not declassify. In a two minute recording, Trump is heard discussing a sensitive document about Iran compiled by Joint Chiefs of Staff General Mark Milley, which he describes as, quote, “highly confidential.” Let’s take a listen to the clip of audio obtained by CNN. 

 

[clip of Donald Trump] Pages long look. Wait a minute let’s see here. [indistinct] [laughter] 

 

[clip of unknown person talking to Donald Trump] Yeah. 

 

[clip of Donald Trump] I just found, isn’t that amazing? This totally wins my case, you know, except it is like highly confidential, [laughter] secret this is secret [?]– 

 

Priyanka Aribindi: Hmm. The recording reportedly comes from a 2021 conversation at Bedminster, New Jersey, where Trump was speaking to people working on a memoir about his former chief of staff, Mark Meadows. It also contradicts a recent claim made by Trump on Fox News in which he said that he didn’t have any documents with him and was instead discussing, quote, “newspaper stories, magazine stories and articles.” Huh. The tape is an important piece of evidence that has been cited in the indictment of Trump over his mishandling of classified documents. As a reminder, Trump pleaded not guilty to 37 felony counts related to that documents case earlier this month. That is going to be tough to prove with all of these recordings of him saying, hey, here I am doing classified document crimes. 

 

Juanita Tolliver: Right. Because this is the second case where he does have a recording of him doing the crime-ing. But also, I can’t get over the shuffling papers and the sinister laughing in the background like, really people. Yikes. 

 

Priyanka Aribindi: We don’t like it. They are straight out of central casting I guess to be villains 

 

Juanita Tolliver: Bet. 

 

Priyanka Aribindi: Instead of whatever else [laughing] [?] to use that phrase for. 

 

Juanita Tolliver: Just a heads up. This next headline includes mention of suicide. So if you need to skip ahead, feel free to fast forward. Nearly four years after the death of disgraced financier and convicted sexual predator Jeffrey Epstein, a report by the Justice Department’s inspector general has revealed further details into the conditions at the jail in which he was housed and died by suicide. In a report released yesterday, Inspector General Michael Horowitz said that a, quote, combination of negligence, misconduct and outright job performance failures created an environment in which Epstein had the opportunity to take his own life. The report found that staff allowed Epstein to keep extra blankets, linens and clothing, despite the fact that he had attempted to hang himself weeks earlier. The investigation also revealed that no action was taken to assign Epstein a new cellmate, even though staff were warned that he needed to be housed with another inmate, ultimately leaving him alone in his cell on the night of his death. The report also found no foul play or evidence to suggest that his death was anything other than suicide. Epstein was found dead on the morning of August 10th, 2019. He was awaiting trial on sex trafficking and conspiracy charges. 

 

Priyanka Aribindi: The first U.N. investigator to visit Guantanamo Bay, has urged the U.S. to apologize for the torture that has occurred at the facility. On Monday, Fionnuala Ní Aólain released a statement following the four days she spent at Guantanamo Bay in February, in which she reported, quote, “ongoing, cruel, inhuman and degrading treatment,” including solitary confinement, forced cell extractions, and referring to prisoners by serial numbers instead of their names. She also criticized the fact that 19 of the 30 detainees have yet to be charged with a crime, some of whom have been held at the prison for two decades. In response, the U.S. government said that it disagrees with many legal and factual assertions in her report. The report has reignited conversations about shutting down Guantanamo Bay for good, with organizations like Amnesty International renewing their calls to permanently close the detention facility. Closing Guantanamo Bay has been a goal of Democrats for the last decade, and Biden has transferred ten prisoners out of the facility throughout his term. However, the remaining 30 prisoners still face an uncertain future. Best of luck getting the U.S. government to apologize for anything, though. 

 

Juanita Tolliver: Truly 

 

Priyanka Aribindi: Seriously. 

 

Juanita Tolliver: Workers at more than 150 Starbucks stores started striking last Friday following the controversy over management banning pride decorations. The coffee chain said on Monday that its current policies on visual store decorations still stands, but that it would issue, quote, “clearer guidelines for in-store decorations and displays.” About 12 stores have had to close each day since the strike began, a Starbucks spokesperson told The New York Times. To get you up to speed. The Starbucks Union, which represents thousands of workers and management, said earlier this pride month that managers at some stores had been restricting employees from displaying pride decorations. Still, Starbucks is putting up a fight, filing two charges with the National Labor Relations Board and claiming that the union is starting a smear campaign. Like truly, get the fuck out of here. 

 

Priyanka Aribindi: Jeez. 

 

Juanita Tolliver: Starbucks Workers United, which represents roughly 8000 workers in more than 300 stores, said in a statement, quote, “While we are glad Starbucks is finally reconsidering its position on pride declarations, Starbucks continues to ignore that they are legally required to bargain with union workers.” That’s the power of a union. Period.

 

Priyanka Aribindi: Yeah. Starbucks. I’m sorry. How could you keep getting it this wrong? It really doesn’t seem that hard. More than 55 million people are being affected by the stifling heat dome stretching across the southern U.S. from Arizona to Florida. Excessive heat warnings with temperatures in the triple digits have been issued over the last week and are expected to extend into this week as well. More than 90 record high temperatures may be broken this week in places like Texas, Missouri and Florida. I am terrified to think about what those records already were. 

 

Juanita Tolliver: Yikes. 

 

Priyanka Aribindi: Um. And the fact that they’re being broken, just not good. Extreme heat in Texas has been relentless for the past two weeks and has already resulted in two recorded deaths at the Big Bend National Park, where temperatures reached 119 degrees. The city of New Orleans issued warnings that high temperatures could be life threatening, especially because high humidity levels in the southeastern parts of the country can make it feel even hotter than it already is. So to everybody in these areas, please stay cool out there, except for you Greg Abbott and Ron DeSantis. I am not wishing um serious harm on these elected officials, but if they are a little too hot to be comfortable, if they are a little sweaty on the back of their necks, if they are just a little overheating, that feels like what they deserve to me at least. 

 

Juanita Tolliver: She said if your shirt has armpit stains. [laughing] Right? But let’s be real.

 

Priyanka Aribindi: You deserved it. 

 

Juanita Tolliver: I mean, these are two loud mouth climate deniers. So here’s your climate change dosage for the week. But also, I’m looking at Texas like your electrical grid fails in any extreme weather. So– 

 

Priyanka Aribindi: Yeah. 

 

Juanita Tolliver: Hold on y’all down in Texas and really push for Abbott to do better because– 

 

Priyanka Aribindi: Seriously. 

 

Juanita Tolliver: Yikes. 

 

Priyanka Aribindi: Yeah, you deserve so much better than what you’ve got. And those are the headlines. 

 

[AD BREAK] 

 

Priyanka Aribindi: That is all for today. If you like the show, make sure you subscribe. Leave a review. Give Angela Bassett her Oscar already 

 

Juanita Tolliver: Yes! 

 

Priyanka Aribindi: And tell your friends to listen. 

 

Juanita Tolliver: And if you’re into reading and not just about Tom Hanks’ estranged niece having an on camera meltdown after getting eliminated from a reality show competition like me– 

 

Priyanka Aribindi: What? 

 

Juanita Tolliver: What A Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe. I’m Juanita Tolliver.

 

Priyanka Aribindi: I’m Priyanka Aribindi.

 

[spoken together] And justice for Vanna. 

 

Juanita Tolliver: She deserves so much better. 

 

Priyanka Aribindi: Seriously. 

 

Juanita Tolliver: Come on. 

 

Priyanka Aribindi: Ryan could never. 

 

Juanita Tolliver: At all. 

 

Priyanka Aribindi: Mm mm.

 

Juanita Tolliver: She’s already a legend. Like they just should’ve just gave it to her. 

 

Priyanka Aribindi: Yeah. [music break] What A Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Our show’s producer is Itxy Quintanilla. Raven Yamamoto and Natalie Bettendorf are our associate producers. Our intern is Ryan Cochran, and our senior producer is Lita Martinez. Our theme music is by Colin Gilliard and Kashaka. [music break] 

 

[AD BREAK]