A Quarter of DOJ’s Lawyers Left. What Comes Next Is Worse. (w/ Melissa Murray) | Bulwark Podcast
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Quick Read
Summary
Takeaways
- ❖The Supreme Court's 6-3 decision, authored by Justice Alito, effectively gutted Section Two of the Voting Rights Act, enabling states to engage in racial gerrymandering.
- ❖States are now rapidly pushing through redistricting plans that will decimate Black representation, with the Supreme Court's ruling potentially allowing challenges against future efforts to create opportunity districts.
- ❖The Fifth Circuit's nationwide ban on mifepristone mailing was temporarily stayed by Justice Alito, highlighting the court's willingness to intervene in highly politicized cases via the 'shadow docket'.
- ❖The 'shadow docket' has evolved from emergency use to a tool for deciding substantive issues without full briefing or oral arguments, often favoring Republican administrations.
- ❖The Department of Justice has lost a quarter of its lawyers since January 2025 due to purges and realigned missions, raising concerns about its long-term integrity.
- ❖Presidential administrations are using lawsuits and executive orders to circumvent established legal precedents, such as New York Times v. Sullivan, to silence critics and control narratives.
- ❖Proposed constitutional reforms include addressing partisan gerrymandering, granting statehood to D.C. and Puerto Rico, and implementing Supreme Court term limits or expanding the court.
Insights
1Supreme Court 'Eviscerates' Voting Rights Act
The Supreme Court's 6-3 opinion, written by Justice Alito, effectively gutted Section Two of the Voting Rights Act. This decision allows states to remedy racial gerrymandering by considering race in map construction, but then frames such considerations as race discrimination, undermining the act's original intent to ensure multi-racial democracy and minority representation.
Justice Alito's opinion stated he was 'preserving' Section Two, which Melissa Murray likens to a teenager claiming to have cleaned a room by just 'rearranging' it. The impact is already seen with Southern states pushing redistricting. The court's 'colorblind' interpretation of the 14th Amendment is extended to voting rights, contrary to its historical context.
2Weaponization of the Shadow Docket
The Supreme Court's 'shadow docket' has shifted from handling urgent, interim issues like death penalty cases to resolving substantive political questions without full briefing, oral arguments, or detailed explanations. This allows the court to make significant policy decisions quickly, often favoring the executive branch when it is Republican, and circumventing traditional judicial processes.
The mifepristone case, where Justice Alito granted a one-week stay on a nationwide ban, exemplifies this. The New York Times reported on how the Roberts court, particularly in the 2016 Clean Power Plan case, used the shadow docket to halt Obama administration initiatives, showing a clear partisan pattern.
3Mass Exodus and Erosion of DOJ Integrity
The Department of Justice has lost a quarter of its lawyers since January 2025, a significant brain drain attributed to political purges and the realignment of office missions. This exodus, combined with politically motivated prosecutions, undermines the DOJ's institutional integrity and its ability to function impartially.
Melissa Murray states that the purpose of these prosecutions is to 'cow dissenters into silence' rather than achieve convictions, noting that 'Todd Blanch is working overtime to be America's next top attorney general.'
4Executive Circumvention of Free Press Protections
The Trump administration's strategy of suing media institutions and negotiating settlements, rather than pursuing adjudication, allows it to bypass the high legal standards of New York Times v. Sullivan. This tactic effectively creates a system where the press is intimidated and less free to report critically, undermining a cornerstone of American democracy.
Murray explains that settlements, even if not meritorious, cultivate public distrust in the press and 'cows other people from dissenting because nobody wants to get sued by the president.' The court declined an opportunity to overrule New York Times v. Sullivan, but the executive actions are achieving a similar effect.
Key Concepts
Colorblind Constitution
The Supreme Court's imagined understanding of the 14th Amendment as 'colorblind' is being extended to voting rights, ignoring the historical context and purpose of the amendment to remedy racial discrimination. This framework prevents consideration of race even when addressing racial gerrymandering.
Limited Government
The Constitution's fundamental purpose is to place restraints on the state and limit government power to prevent despotism. Understanding these limits is crucial for citizens to reclaim the Constitution and ensure government accountability.
Lessons
- Engage actively in voting and civic participation, recognizing that significant numbers are needed to counteract gerrymandering and voter suppression.
- Advocate for constitutional reforms such as addressing partisan gerrymandering, granting statehood to D.C. and Puerto Rico, and implementing Supreme Court term limits or expanding the court.
- Educate yourself on the Constitution and the powers of government branches to understand what is permissible and to hold elected officials accountable.
Notable Moments
The 'just the tip docket' analogy for the shadow docket.
This analogy, coined by Leah Litman, vividly explains how the Supreme Court uses interim decisions on the shadow docket to make substantive changes, claiming they are minor while effectively 'effing' the public by altering the legal landscape without full transparency or deliberation.
Justice Thomas's public acknowledgment of Harlan Crow and criticism of progressives.
This moment highlights ongoing concerns about judicial ethics and perceived political bias within the Supreme Court. Justice Thomas's unapologetic stance on his relationship with a major political donor and his strong partisan rhetoric raise questions about the court's impartiality.
The Committee on Style changed the Preamble to 'We the People'.
This historical anecdote illustrates the deliberate and thoughtful process of drafting the Constitution, emphasizing that foundational language was carefully chosen to reflect a broader, more inclusive vision for the nation, moving beyond a mere listing of states.
Quotes
"Justice Alito wrote that he was preserving section two of the Voting Rights Act. That's like, you know, my teenager tossing his room and then telling me he cleaned it. Like really? Okay."
"The fifth circuit is basically the Supreme Court's PR machine. It does stuff that's so outlandish that when the court comes in to correct them, they the court basically looks normal and the court is not normal."
"The court says it's just the shadow docket. It's not doing anything. They're just interim decisions. They're not changing anything. But in fact, we're all getting [expletive]."
"Everyone knows that the purpose of all of these prosecutions is to cow dissenters into silence, to stop dissent, to stop critics of this president and this administration."
"We're basically creating a whole generation of Americans who don't know how this government works."
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