This week, we sit down for the second of a two-part series with our brilliant staff reporter and assistant editor, A.R. Hoffman, to discuss the overturning of Roe v. Wade and the January 6 Committee hearing that has sent shockwaves through American politics.

From the Supreme Court to Capitol Hill, it was a week to remember, and one that won’t soon be forgotten. We reflect on and look forward to what it means for abortion, the midterm elections, and President Trump’s political future.

We also look across the pond and break down a pivotal couple of days in the United Kingdom, and what they mean for Prime Minister Johnson, Ireland, and Scotland.

Mr. Hoffman holds an A.B. and PhD from Harvard, as well as a law degree from Stanford.

Caroline Vik:  Let’s get started.

A.R. Hoffman:  It’s great to have everybody and thank you. I know we’ve done a bunch of these focusing on the court and January 6th, but I really think these have been an extraordinary few weeks. It’s been great to be able to write about these, to cover them, to think about them, and then to talk about these developments with all of you, so I definitely would love it if we have time for conversations and questions. You know, simply put, it’s hard to think of a Supreme Court term that has been, I’m trying to think of the right words, transformative, sort of paradigm-shifting, really. 

The term, of course, just ended minutes ago. The last two opinions were released at 10 a.m. As we speak, Justice Breyer is retiring from the court. Now Ketanji Brown Jackson will be sworn in. So when arguments begin in October for the next term, there will be that kind of personnel difference. 

I think the one core point is that swapping out Justice Breyer for Justice Jackson won’t fundamentally affect the composition of the court. We’ve seen that the now 6–3 conservative–liberal opinion has already and will continue to make enormous changes to America’s constitutional landscape. We spoke last time, I think, just before the final Dobbs [v. Jackson Women’s Health Organization] decision came down last Friday. 

I think we’ve all been reading and thinking about it, but I would just say from a constitutional law perspective, I think the most interesting thing is there is a sort of reconsideration of this notion of sort of substantive due process. Substantive due process is the idea that the 14th Amendment, which was passed in the wake of the Civil War, that prohibits deprivation of life and liberty without the due process of law includes not only a narrow set of due process rights, but a much broader panoply of rights. That expansion happened in the ’60s, in the ’50s into the ’60s, and in the early ’70s.

Vik: Can you explain a little more what that means?

Hoffman: Sure. Increasingly under Chief Justice Earl Warren, the court was interested in sort of safeguarding elements of life or new kinds of social issues that had not previously been seen as constitutional issues per se. The Constitution became less of a strict box where you went to find what was already there, and more of a kind of platform to sort of imagine how these new things could be folded into the existing constitutional framework. Cases like Griswold [v. Connecticut], the right to contraception, abortion, and other cases as well, Miranda [v. Arizona] to a certain extent, covering the Fifth Amendment right to protection against self-incrimination. 

In a more modern era cases like Obergefell [v. Hodges], which delineated the constitutional right to gay marriage, and Lawrence v. Texas, which delivered a right to, let’s say, right to a kind of intimacy and consensual relations between adults that couldn’t be criminalized. All of these were kind of rights that were discovered in the Constitution or were seen as being alluded to in the Constitution.  This core intellectual tool — almost like the shovel with which those rights were discovered, buried in the Constitution — was this idea of substantive due process. 

Substantive due process, as Justice Thomas noted and as we noted in our editorial, is an oxymoron, right? Process suggests your rights are not around specific things, but a kind of, you know, process. And substance seems to suggest delineated specific rights.

Seth Lipsky: A fair process, cross-examination of witnesses, that kind of thing. 

Hoffman: Absolutely, and right to confront your accuser, and certain jury rights, and right to representation as well. So just to say that there was this discovery, that the notion of due process included not only those kinds of more procedural rights, but actual, tangible, positive rights as well. And that liberty, the word “liberty“ in the 14th Amendment was used to encompass a whole set of new kinds of frontiers of constitutional interpretation. 

Now to be clear even the conservative justices would understand that liberty does encompass beyond, you know, liberty needs interpretation.  But the core question was, and to come back to Dobbs, was abortion the sort of right, the sort of liberty that would have been understood as deeply rooted in American history? The majority found that it was not. So that’s a narrower reading of this notion of liberty.

Vik: Why does that deeply rooted thing come into effect?

Hoffman: It’s a kind of limiting principle. The fear is that if you don’t have some sense of it being embedded in history and in America’s legal regime, then it’s possible to encompass anything under it. So in order to give the term salience and delineation, the majority suggest that that has to have a historical backstory. The notion that abortion was mostly illegal for most of American history suggests that it can’t now be found in the Constitution’s promise of liberty.

Lipsky: I sometimes call it an “anti-fad provision.”

Hoffman: Right. And that’s the part of these decisions that involve going back to statutes from the 19th century or early treatises. The point there is to try to draw out a longer story. If there isn’t that entrenched-ness in American history then the fear is that, as Seth mentioned, that anything could be subsumed under that.

Vik: How long does the history typically need to be?

Hoffman: I think there’s privilege given to the early years of the Constitution. Oftentimes it will even go back to common law to sort of English ancestry of our legal system. Those are exactly the kinds of questions that the justices debate. When does that history begin?  What if the historical record is mixed? 

So in dissent, the liberal justices write in Dobbs that there actually was a tradition before, what used to be called “quickening.” Abortions were understood to be allowed or at least accepted to some extent. Debates about history are always going to be vulnerable to the idea that a partial story is being told. 

To step back for a second, you have this idea of substantive due process. A more radical position was articulated by Justice Thomas.  We at the paper spent a lot of time thinking about Justice Thomas, writing about this opinion both on the news side and on the editorial side, but the entire idea of substantive due process should be abolished, right? That it’s extra-constitutional in that way. The majority didn’t go that far, but that is kind of a next step.

Lipsky:  The majority seemed to suggest that it didn’t want its decision to apply to birth control and other things, anything other than abortion. Whereas Justice Thomas wrote a separate concurrence saying we ought to go back and look at these things. Is that right?

Hoffman: Exactly. Many see, and Justice Kavanaugh reinforced that, the question is how much is Justice Thomas on his own here? Justice Thomas has never been afraid to stand on his own and to sort of be where others aren’t. But I think the thinking is as the court has shifted, it is shifted closer to Justice Thomas. Whereas before maybe he would have been two standard deviations away from the court’s mean, now it feels almost asymptotic to where the court is. 

The Court differentiated Roe [v. Wade] from these other cases really just on the basis that Roe involves a human life and, you know, at least on the theoretical level that doesn’t seem like a kind of sound distinction or sound differentiation. So that’s something to watch.  What really differentiates the right to gay marriage from the right to abortion?

Lipsky: Which do you think of the recent decisions will be the most impactful over the long haul? Would you think it would be Roe v. Wade or the [West Virginia v.] EPA decision?

Hoffman: I think certainly on the level of government policies the EPA decision will be very important. Just to catch everyone up, two cases were released just this morning. We’ll have coverage of those going up any minute. The first held that the EPA’s ability to make its own rules or sort of dictate its own jurisdiction is limited. 

The EPA can’t be an independent actor apart from Congress, deploying something called the “Major Questions Doctrine,” which suggests that on big questions Congress has to say what it means. Congress has to give specific instructions. And so this is a kind of clawing back of the administrative state’s ability to sort of improvise, or to write its own script based on a vague or general grant from Congress. 

This is an element of law that’s very technical and often isn’t as sexy as some other parts of law, but actually it’s very important as, of course, the administrative state has grown so exponentially. It affects a huge spot. But I think, to be fair, the impact of Dobbs, yes it’s on a narrower issue, but it cuts to core constitutional and cultural questions in a way that will still have to be worked out. 

We saw this morning President Biden seemed to endorse a more extreme set of responses to the decision in Dobbs including potentially supporting and making an exception to, or flat out getting rid of the filibuster to pass legislation protecting the right to an abortion. This is in response to lots of pressure from his left in the wake of Dobbs.

Lipsky: Do you think he read Ira Stoll’s column?  

Hoffman: I think he read Ira and he listened to AOC and here we are all the way in Madrid. So I think that has the potential. You know, I don’t know if that’s going to be cashed out in a sort of immediate electoral impact. It’s not clear to me that this is an issue that cuts cleanly that way.  There is some evidence showing a jump in poll numbers and enthusiasm from Democrats in the wake of the ruling. I’d expect that, but November is still a long time away. We’ll have to see.

I do think in certain races in certain states this could play out politically. Specifically in a state like Pennsylvania, where in the governor’s race you have a Democrat on the left running against a Trump Republican who has promised to implement a significant aboriton ban. Another interesting political way this might play out is in Florida where Governor DeSantis has promised strict bans on abortion. I think everyone knows that he’s running implicitly for president. The question is how does he navigate that?  

Lipsky: Isn’t he caught between the U.S. Constitution and Florida’s constitution? 

Hoffman: Yeah. We had an editorial about this. In the past, the Florida supreme court has found a right to privacy and abortion in the Florida state constitution. The composition of that court has changed so we’ll see what goes on there, but there’s a lot of unanswered questions.

One is the issue of travel between states that outlaw abortion and those that don’t. We had an interesting piece about college students.  Let’s say UT-Austin. Texas has strict abortion laws. How will that play out? The idea here wasn’t to settle the abortion question. In some ways, the court was wanting to open the abortion question and send it back to the states, and was willing to live with a fair amount of chaos, I think, in the sense that ultimately this is the kind of question that democracy should be able to address. 

This is one of those core questions that have to do with how a society wants to live, and how it wants to govern itself, and what its values are. Those questions are better answered in the voting booth than they are in the Supreme Court.

Lipsky: It seems to me there’s a certain similarity between the EPA case and the abortion ruling in that both the environmental stuff and the abortion stuff are being removed from other branches. The abortion decision is being removed from the courts and sent back to Congress and the environmental decisions are being removed from the executive branch and being sent back to Congress. The irony is that the Democrats who control Congress are objecting. I don’t know.  You can’t make it up.

Hoffman: Right, right. I think that’s a great point. We’re seeing a kind of offloading or transfer of issues back into the political process. A case that the court just announced that it will hear next term, about the ability of state legislatures to set the rule of their own elections, which we’ve covered as well, is another one of those cases. Should state election procedures be subject to court review? 

The whole conversation on democracy is really interesting. There’s this notion that, at least on the left, the court is anti-democratic, but actually if anything we’re seeing a democratic moving of things back into the democratic process with all the chaos and messiness that will necessarily ensue. And the court is saying, listen, if you want to write environmental policy or climate change policy, you have to actually do it as opposed to just doing it via administrative fiat.  

Lipsky: What the Democrats are afraid of is even though they control the Congress, they can’t get their legislation through because the Congress is not where the party is on some of these issues.

Hoffman: We’ve seen this before with Build Back Better and a certain inability to cover. I think a lot of the kind of Democratic panic, you know, for a long time I think there was the sense that Democrats on the court would kind of safeguard their interests and that’s no longer the case. That means that Democrats are going to have to learn how to pursue those interests legislatively in a way that they haven’t really mastered yet. 

I think on the abortion question you’re just going to see two regimes emerge in the country, whether a stalemate ensues or whether you have some interesting new political configurations down the line. For example, if I want to run for Congress as a Democrat in Oklahoma, will we have red state pro-life Democrats and vice versa? We’ll have to see how that shakes out.

Vik: In all this talk about returning some of these issues to the political process, it makes me think a bit about maybe at least my grade school understanding of the Bill of Rights, and the Constitution, and minority rights, and protecting certain rights whether they were popular or not. I know that doesn’t solve whether the right to an abortion… 

Lipsky: That’s a fantastic question.

Vik: It’s one thing to say these things are too controversial so they shouldn’t be constitutional rights, but in fact, the only rights that we need to be constitutional rights are the controversial ones, or else they aren’t covered.

Lipsky: Exactly, exactly.  

Hoffman: That’s a great point and I think the core dispute in Dobbs was, is abortion one of those rights? It’s why the issue is so contentious and why we saw a dissent that really pushed the limits of collegiality. There are clearly rights that aren’t up for the democratic process. A legislature can’t vote to enforce segregation in a state. A state constitution can’t say that Jews can’t hold high office. There clearly is a limit to democratic self-determination. This is why the question of what does the overturning of Roe involve for these other rights is so salient. Will it eventually result in a wholesale retraction of a certain whole class of constitutionally backstopped rights? 

Vik: I guess we’ll stay tuned. Should we open up to a couple of questions before we move on to our next topic?

Lipsky: Hello, Edward Blum.

Hoffman: It’s an honor.

Clark Judge: I see Roe somewhat differently in the sense that it isn’t so much about a right or not a right but a conflict of rights, obviously life one, a woman’s control over her body the other. What we’ve seen is that the court tried to short circuit, in the past, some of these debates to the advantage of one side to another rather than allowing the legislative process, which inevitably would have different outcomes and different states. But also a level of shading and seeking of common ground in almost every case. The court is extremely unsuited for that kind of seeking out of how you reconcile conflicting rights.  Would you like to comment on that?

Hoffman: Sure. I think that’s a very sensitive read. If you drop someone off from another planet and gave them the Dobbs decision, I think one thing that would be surprising to them is that there’s no discussion of when life begins. In some instances the court has totally punted on that question. It sort of focused on who makes the decision and not so much the metaphysics of when does life begin.

Judge: If I could interrupt, it’s not so much who makes the decisions.  It’s how the decision is made. If it’s by a legislature, there’s going to be a certain amount of compromise after the histrionics. The outcome will be something which attempts to give some credence to each side. If it’s done by a court, it’s more likely to be absolutist.

Hoffman: Yeah, that’s really interesting. I wonder whether that really plays out. We’ve seen bans already go into effect that display very little nuance.  

Judge: We’re early in the process.

Hoffman: We’re very early. Roe itself was a sort of messy compromise and so it does make sense that after Roe fell there would be this kind of spasm of maybe more extreme kind of black and white legislation on both sides. And then maybe there’s a kind of sedimentary process where things gain nuance and gain texture. I think that question begs the one of sort of, like, be careful what you wish for. For 50 years, overturning Roe was the holy grail of the pro-life movement and a fair share of the generally conservative camp. Now that that’s gone, I think the task of persuasion begins. And trying to figure out what victory looks like once you have it.  

Judge: That’s also true in the EPA decision, which is more an overturning, I haven’t read it yet, of Chevron [U.S.A., Inc. v. Natural Resources Defense Council, Inc.], which was the way to punt to the bureaucracies and now it’s back in the hands of legislatures, but as you said, not just Congress, but of states.

Lipsky: One of the things that strikes me about this court is that the Roberts court and all the loneliness of Chief Justice Roberts himself has emerged as an extraordinary religious freedom court. We saw that in the Maine school choice case. It was brought by two very religious Christian families from a town that had no public school system in the wilderness of Maine. They wanted to use state vouchers to send their children to religious schools and that was okayed by the court, saying to exclude religious schools from the voucher program was a discrimination against religion. And on certain terms, it backed a football coach who wanted to pray on the 50th yard line and these are just two of the strings of religious freedom cases that I think is breathtaking.

Hoffman: Both were landmarks, especially the Maine case. It really suggests a new day and progeny of precedence over the last few years. The notion that a state can use public funds to fund religious schools with no qualms about well, is the money being used not for bibles but for science textbooks, but just that a certain comfort in directing funds that way is very significant. We’ve seen in Maine, one of our reporters has done a really good job tracking the backlash within Maine and the sort of anger and all that. That’s an interesting part too. What is the response going to be? Whether it’s at the national level or on the state level.

Lipsky: I mean, the behavior of the government officials in Maine reminds me of George Wallace standing in the schoolhouse door and refusing to accept the long arm of the Supreme Court in trying to affect integration of the schools. Now you have the government officials running around trying to figure out how to stymie a Supreme Court decision. It’s just breathtaking again.  

Hoffman: We’ve also seen rumblings of prosecutors in states that have or will ban abortion indicating that they won’t prosecute.  I think there could be an explicit or implicit nullification process at large.  Whether it’s executive action that tries to block the Supreme Court decision or just sort of on the ground what this actually looks like.  Here again, I think there’s a danger for the pro-life camp.  The majority of Americans did not want Roe overturned.  The majority of Americans believe in the right to abortion with restrictions.  But I just don’t know what the appetite is for people starting to see doctors led away in handcuffs or young women jailed.  I think it’s worth keeping an eye on.  

Judge: If I could intrude a second. I think you’ll find that the majority of Americans did approve of overturning Roe but also did not want abortion restricted or at least eliminated. It was again a kind of nuance and also a determination that it should be in other hands, more flexible hands, than the courts. 

Lipsky: Rebecca, you have your hand up?

Rebecca: Ari, I was just wondering if the Democrats might be able to use what we’ve been talking about, these decisions which sort of push back to the legislature and back to the people, as a way to tamp down on the far left? They haven’t been able to get their agendas passed through. Is there any other way other than executive order or legislative ways? Could this be a moment for modern Democrats? If there’s enough of them left to use this new outlook to push back on their far left flank or is that too naive?

Hoffman: I think that’s what I was thinking about in terms of, you know, what I think Clark was mentioning. As things over time marinate in democratic process, you have to convince people and persuade people. Maybe there are certain ways to create new bridges. I think we’ve seen that already. Before the Dobbs decision there was an effort in the Senate to have a kind of bipartisan moderate legislation codifying Roe to some extent. That was actually scuttled by liberal Democrats who wanted the legislation to go much farther than Roe did and basically allow abortion in virtually any circumstance. We’ve also seen obviously a moderate and a bipartisan effort on gun control so there are these possibilities. I think in the short run though it’s hard for me, just looking around, to not see this in the short term as a kind spurt to even further polarization. This sort of rhetoric and anti-institutional rhetoric you’re now seeing towards the court, towards the presidency, and as much as it appears impotent, you know, there’s a sort of anger, I think, in large precincts of the left. Partially because of what Caroline mentioned earlier. There’s a sense of being betrayed on the fundamental level on a kind of core right. I think that’s going to get worse before it gets better. Maybe Clark is a bit more of an optimist on this than I am.  

Judge: Well, I think it might be a kind of curve where it goes radical early and then settles into something. I think all these decisions that the court has worked against were ways of not confronting within the political process, these issues, and we paid a price for that.

Lipsky: One of the points the court made in returning the matter to the legislatures is that in 1973 when Roe came down, the country was in the process of sorting it out in the legislatures and was generally moving to accommodate abortion on a net basis. Then the Supreme Court stepped in and stopped that process and tried to force it immediately and we might have ended up in a better place if it had not handed down Roe at all.

Hoffman: The irony is that we almost end up exactly where it was.  I think in 1973, there were 30 states that banned abortion and 20 that allowed it. We might be heading toward a 25 to 25 situation or 26 to 24 in the wake of Roe. I think you’ll also see in response a real outbreak of, I don’t know, state constitutionalism. So for example, a referendum has already been introduced in California to guarantee the right to abortion as part of the state constitution. You’re going to see other such efforts and I think a real turn back to state constitutions and state courts. I think overall one of the big takeaways is that we’re really entering an era where states matter. 

We started to see it with Covid policy and the, you know, the kind of Florida versus New York. Not only that, but that’s a nice distillation and I think we’ll see it more and more where there’ll be a sorting with states offering truly different visions of the good life or government and culture. As much as states were intended to be the laboratories of democracy, I think you’re going to see a real illustration of that.

Lipsky: Remember how gay marriage worked its way up to the Supreme Court? A California court ruled that gay marriage was permissible under the California constitution, the state constitution. The state constitution was then amended to allow same-sex marriage and then that act was thrown out by the federal courts eventually as unconstitutional under the U.S., which is how it all came into being. So the state courts do matter, but at the end of the day, they are under the US Constitution.

Vik: Before we run out of time, do you want to talk a little bit about the latest bombshells from the January 6th hearings?

Hoffman: Sure, I imagine everyone has been watching or at least reading.  I think our stance throughout has been openness to listening to what the committee is doing and finding, while also sort of trying to go back to this idea of due process and remembering that we’re seeing one side of things without the benefit of cross-examination or hostile witnesses or counterargument, but you know that always being said, it’s hard to overlook what we heard the other day. I’ve said from the beginning and it’s become clear to me, I just don’t see how this ends in some kind of legal proceeding against President Trump. In ways large and small, this committee has served as kind of an informal criminal referral to the Justice Department. There’s a lot we still don’t know. 

Just this morning, Pat Cipollone, who was the White House counsel, was subpoenaed. He was a key player in many of these rooms. Of course Cassidy Hutchinson’s testimony was so effective I think, for two reasons. One was that aside from the limo antics, which we covered this week and can come back to, I think the most legally salient dimension was when she testified that Trump knew that people were armed and sort of encouraged them to come anyway. That was in reference not to the ultimate riot, but to the rally. It established a kind of foreknowledge and state of mind. And the  vividness of the details in which she depicted a real sort of White House in crisis, I think, will stay with people, whether it’s the ketchup dripping down the wall or the broken plates, to look into what was a very chaotic situation certainly on January 6th and in the days before. I think it’s clear that Trump is watching and paying attention. He responded to Hutchinson on his own platform, Truth Social. I think Cipollone would be another bombshell witness. There will be negotiations on which form his testimony should take and whether it’ll be written, oral, televised or whatever, but he was certainly in the room.

Vik: Questions?

Carrie: So Ari, why don’t you think there will be any criminal charges against Trump?

Hoffman: I think there will be.  

Lipsky:  I heard it the same way Carrie did. I know that Ari does think there will be charges. As do I.

Carrie: What do you think the charges will be?

Lipsky: Conspiracy to Insurrection.  

Hoffman: Yeah, there’s more easily chargeable, more limited things like Obstructing Official Proceeding, Seditious Conspiracy, which is the charge that has been brought against a number of Proud Boys, Oath Keepers, and other militants, but that family of incitement and insurrection, that family of charges.

Lipsky: You know I think Trump is in peril because of a principle that goes all the way back to the early cases in this republic and one of the first grade treason cases. Trump’s not going to be charged with Treason, but he might be charged with Conspiracy to Insurrection.  There was a case called Ex Parte Bollman in which the Confederates of Aaron Burr were charged with Treason and acquitted by Chief Justice Marshall who said that there can’t be treason if the conspiracy hadn’t been brought into action, meaning physical combat. He then went on to write this famous paragraph that says something like, “if however it does end up in physical violence, then anyone who is involved in the conspiracy at any level no matter how far removed from the scene of the accident is also guilty of treason.” It doesn’t really matter under the law whether Trump went up to the Capitol or not, or yanked the blasted steering wheel or not. If he had any part meaning knowledge, agreement, sanction, involvement in that conspiracy, he’s in serious trouble.  

Unknown: Was there conclusive proof that this wasn’t an actual, like, insurrection? Has that been defined and legally proven such that you could conspire towards it? I understood it to be a riot, a mob. They say it’s an insurrection, they use that word all the time.

Lipsky: Whether it’s an insurrection is disputed. The Wall Street Journal has had three of four articles saying that it’s not an insurrection.  

Unknown: How could he be charged with Conspiracy to Insurrection?

Lipsky: He’ll be charged and then the courts will have to decide whether the charge holds up.

Judge: This all seems to me, well, it’s in the context of repeated text by the Democrats, whether it’s Russia collusion, or dealing with how he dealt with Ukrainians, or any number of theories of horribles that they’ve tried to put out against him. All of which have come to nothing and worse than nothing.  It seems like conspiracies to defame him in many respects. This falls very much in that category. I think that’s part of what we’re seeing now in the public’s disinterest in these hearings.

Lipsky: One of the things that Congress is absolutely prohibited from doing in the Constitution is passing bills of attainder, meaning trying an individual for a crime, and my biggest concern about this committee is that it’s doing exactly that. It’s hired a bunch of federal prosecutors to work for it and it’s going after Trump personally. And that’s how you make these mistakes like hauling in this woman to say that Trump tried to grab the steering wheel away from the driver of his limousine only to have the Secret Service start leaking that that never happened. I mean, you know how can the Congress call some woman up there to testify about that without checking it out with the Secret Service in advance? That’s what happens when Congress tries to, you know, try an individual. It’s just not set up for a due process procedure.

Hoffman: Right, and bypassing an adversarial process, you open yourself up to that kind of self-inflicted wound. We’ve said that in spirit, if not the letter of the law, there’s also an argument that Trump already stood trial for these events and that was in the second impeachment trial and he was acquitted. The lawyers will say neither an impeachment trial or a hearing is a real trial, but at a certain point, the spirit of double jeopardy is that he can’t be tried again, and again, and again for the same thing.  If you think about an eventual criminal trial, it will be the third sort of inquiry into basically the same nucleus, the same cluster of events. I take your point, Clark. I think the danger of saying well, you know, they’ve failed before, I think this is a different level of ambition. There’s a kind of, I wouldn’t undersell the legal danger he’s in.

Clark: Well I don’t undersell his legal danger, but I do think that there’s a different level.  It’s also on the side of those who are running the Commission, which is not really Congress. It’s representatives of the majority and kind of never Trump group within the Republican side.  It’s not a balanced committee in that respect. At least in the moral authority of a congressional hearing.

Lipsky: Liz Cheney spoke last night at the Reagan  Foundation for the Time for Choosing series. On the one hand, I found her role in the hearing to be profoundly unjust. On the other hand, she was incredibly eloquent and affecting in her remarks. To me, the jury is still out as to how this whole thing is going to sort out.  I’m very, very, very skeptical of that committee, but she is making a very, very strong case. It’s really quite something and I have enormous regard for the Cheynes as a brand.

Hoffman: That was my sentiment. Just to give you a little bit of a behind the scenes, Seth and I were going back and forth about that speech and the tone. I found much of it both eloquent and admirable and in a lot of ways, we kind of have to see where it goes. One interesting thing, there were reports that Trump now believes that not having Republicans on the Committee was a mistake. Of course the way that went down was two Republicans were suggested,Jim Banks and Jim Jordan. Pelosi rejected them. They had refused to certify the election. Kevin McCarthy kind of boycotted after that. I think that might have been a strategic mistake. Maybe further engagement and putting a few people on the committee who were never Trumpers but perhaps could’ve inflected a little bit or maybe not. These are tough decisions to make. Do you participate or do you boycott? I think we’re seeing, just on the level of genre, a new mode of effectiveness just purely on the level of presentation. The decision to not have long-winded questions and presentations, but to use multimedia, and video, and powerpoints, and to be very focused, is kind of a new sort of trend or model of what hearings look like. Of course if Republicans take over you might see a Hunter Biden committee that looks a lot like what we’re seeing now.  

Vik: We have a couple of more minutes. We had a number of topics to go through, but obviously these two are too rich to power through.  Any other things you want to share with the group before we close?  

Hoffman: There were other cases this term as well. I can just run through them a little bit. I’m always happy to follow up or be in touch via email or phone. One case came down today. It held that state law applies to Native American reservations. It’s a fascinating body of law.

Vik: Wow, isn’t that a huge deal?

Hoffman: It is a big deal. It has to do with the exact nature of these tribes. Are they sovereign? Are they part of a state? Are they separate from a state? Justice Gorsuch who, this is his issue in a lot of ways, wrote a scathing dissent basically accusing the majority of repeating injustices towards Native Americans in the past.  

Lipsky: One way I like to look at this is that the Constitution uses the phrase “supreme law of the land” and it also defines it. The supreme law of the land is the Constitution, all laws made by Congress under it, and all treaties ratified by the Senate. Three parts. The Creek have a treaty, even though you might object to it, giving them half of Oklahoma. It’s the supreme law of the land, and/or part of the supreme law of the land so it’s a really serious question. McGirt [v. Oklahoma], which was won by the Indian side and written by Gorsuch, gave half of Oklahoma to the Creek. There were a lot of views among conservatives that the Court erred in doing that. The Wall Street Journal wrote a breathtaking series of editorials and they think what just happened today is the beginning of a clawing back of the McGirt decision.  

Hoffman: The decision today concerned a horrific crime of child abuse and child neglect perpetuated by a non-Indian person, both parents actually against a Cherokee girl, a sort of adopted girl. The question of what law should apply, should it be the tribes’ law, should it be the federal law? These cases are interesting because they’re deeply historical.  Caroline, you asked about history before and the 14th Amendment and ordered liberty. A lot of these cases are deeply tied to history and the historical story that the Court tells. I’ll finish with another case. As I briefly mentioned before, it’s a case that held that the failure to give a Miranda warning, we all know the right to remain silent and anything can be held against you in a court of law, is itself not a violation of federal law. That suggests perhaps in the future, the court might in fact overrule Miranda or suggest that Miranda is not required at all. The court held that if I don’t warn you with a Miranda warning, that evidence might not be allowed in trial, but you can’t then sue the police officer for not having warned you. It’s just another way in which we’re seeing the court kind of hew closer to the text of the Constitution and clearing away some of the accumulated forest of interpretation around the Constitution. 

Vik: Thank you, Ari, for your brilliance and analysis. We will talk to you next week.

“Sages of the Sun” is a weekly podcast produced by The New York Sun. The Sun is committed to upholding the finest journalistic traditions and staying true to our motto, “It Shines For All.”

Seth Lipsky is a seasoned veteran of the news business, and among the most revered American editors. He previously spent 20 years at the Wall Street Journal, launched the Jewish Daily Forward, and first revived the Sun back in 2002.

Caroline Vik has more than a decade of experience in policy-making, with years spent on the Senate Foreign Relations Committee, at the Department of Defense, and on the National Security Council.