A prominent judge’s braided - and surprising - life of blindness and the law / Part 2

Now that Judge David S. Tatel has retired from the U.S. Court of Appeals for the D.C. Circuit, he feels freer to warn us all: the Supreme Court is threatening America's democracy by inventing spurious legal doctrines and grabbing more power for itself. There are also lighter moments in this revealing interview, as David pulls the curtain aside and tells us how the judges on this powerful court really do their work. Spoiler alert #1: It used to involve a red children's sand pail. Spoiler alert #2: Because David is blind, he used to hire "readers" who rattled off every word of laws, books and briefs out loud to him, at such mind-boggling speeds that most people couldn't understand them. 

Transcript

DANIEL ZWERDLING: Hi. I'm Daniel ZWERDLING. 

 DAVID SHIPLER: And I'm David Shipler. TWO REPORTERS start now. 

 [Theme Music]

 DANIEL ZWERDLING: Hi Dave.

 DAVID SHIPLER: Hi Danny, how are you doing?

 DANIEL ZWERDLING: Great, thanks. And here's our mission today: One of the most influential judges in America is joining us again to tell us why he's so worried about the Supreme Court. He says the Supreme Court is threatening democracy. 

 DAVID SHIPLER: David S. Tatel retired recently from the U.S. Court of Appeals for the District of Columbia, often considered the second-most powerful court in the country after the Supreme Court. He's a former influential judge. He was very influential, an outstanding legal mind, and a good friend of both Danny and me. So, well, we're biased, but that's okay. We're also correct in assessing you that way, David. So, David, you joined us again for our second episode. So welcome, welcome back. 

 DAVID TATEL: Thank you, I'm happy to be back. I enjoyed our first conversation and look forward to this one. 

 DANIEL ZWERDLING: So, David Tatel, let’s pick up where we left off in our last episode. You have just published a moving memoir with huge help from your wife, Edie, as she described last time: It's called Vision: A Memoir of Blindness and Justice. And in our last episode, we chatted about the first part of your life: You grew up in a white suburb, where one of your favorite swimming pools said  Whites Only. I grew up there, too. 

 DAVID SHIPLER: And you and Edie talked candidly - and you do this beautifully in your book - about how you gradually went blind by the time you were 30, a little more than 30. And how you, David, tried to hide your disability from friends and colleagues, because you worried they'd think less of you if they knew you couldn't see. And we talked about how, despite all that, you became one of the most influential civil rights lawyers in the country. 

 DANIEL ZWERDLING: So David, let's go back roughly 30 years, almost exactly 30 years, I think. It's the mid-1990s and you get a call from a top official under President Clinton - and it changes your life. Tell us about that call. 

 DAVID TATEL: Edie and I were just finishing having dinner and the phone rang, and it was the lawyer, the deputy White House counsel. And she asked whether or not I would accept a nomination to the U.S. Court of Appeals for the D.C. Circuit, to fill the vacancy that had been created by the appointment of Ruth Bader Ginsburg to the Supreme Court. 

 DAVID SHIPLER: Did you have any hesitation, David? I mean, after all, as a lawyer, civil rights lawyer, you were an advocate. You were definitely campaigning or doing legal work for one side of a case. As a judge, you need to be neutral and balanced. And that would be a change of a kind of mental status, wouldn't it? Did you have any doubts about this at all? 

 DAVID TATEL: No, none. Now, I, you know, I grew up in the law - from law school up through everything - with enormous respect for the federal courts and for federal judges. I mean, they were the heroes of the judicial system, as far as we young lawyers, first law students and young lawyers, were concerned. So even though I loved my law practice - I really did, I had a great law practice -  the opportunity to be a federal judge, particularly on this court, was exhilarating to me. I was just the right age, I thought, I was 52. It seemed right. Now, I knew it was going to be an enormous challenge, I had no doubt about that. And did I have worries? Yeah, sure, I had lots of worries about whether I could do the job, whether I could do it well. But I had no doubt that I wanted to do it. I did not hesitate for a second. 

DANIEL ZWERDLING: The story of how you were confirmed, which is a very brief story, sheds light on how dramatically and terribly the country has changed in many ways. 

DAVID TATEL: Yeah, it is just dramatic. So, yes, I was approved by the Senate unanimously. Think about that. When you think about judicial confirmation hearings today, they go on for days - even for appeals court judges, they go on for hours. And the votes are always 51 to 49, or 50 to 50 with the Vice President breaking the tie, all the Democrats on one side, all the Republicans on the other side. I was approved not only unanimously, but on the consensus calendar. In other words, they didn't even take a specific vote on me. 

 Now, why did that happen? It happened because, number one, it was a different time. And yes, some judicial confirmations were controversial, but not all. Number two, yes, I had been a civil rights lawyer, I was working on civil rights cases, but I was a partner in a major law firm and I had lots of support from both Republicans and Democrats. One of my partners was the chairman of the Republican National Committee, Frank Fahrenkopf. Frank Fahrenkopf made lots of calls for me and introduced me to people, and I was confirmed by the Senate in the middle of the night on the consensus calendar. 

 DAVID SHIPLER: Boy, the good old days. 

 DAVID TATEL: You know, if I was nominated today, I’d probably again be confirmed, but it would be 51 to 49. 

 DAVID SHIPLER: So, David, give us a short course on what appeals courts do. How do they work, especially the D.C. Circuit, the court you were on?

 DAVID TATEL: So, there are there are 11 different circuit courts, regional circuit courts, around the country. These are the courts that review the decisions of the trial courts. So, you start in the trial court where you have a single judge, and then the decisions of those courts are appealable to a court of appeals. And you appeal to the court of appeals where you live. And the judges on the courts of appeals, just like Supreme Court justices, are appointed for life - they're appointed by the president and confirmed by the Senate. And they serve for “good behavior,” that's what the Constitution says, “good behavior” - which means life.

 DAVID SHIPLER: And you sit usually as a three-judge panel, not individually, right? 

 DANIEL ZWERDLING: Even though there are, what, nine judges total? 

DAVID TATEL: It depends. Each circuit's a different size, depending on how big their regions are. The First Circuit's the smallest, it's got seven or eight judges. The Ninth Circuit’s the largest, it has 30 or 40. But we sit in panels of three that are randomly selected. 

 DANIEL ZWERDLING: And why is the D.C. Circuit Court of Appeals, which you just retired from recently, why is that often said to be the second-most powerful court in America after the Supreme Court, as Dave mentioned at the beginning?

 DAVID TATEL: Because it's in Washington. So, almost all of the decisions of federal agencies come to the D.C. Circuit - cases involving, you know, national parks all over the country, or the electric system in the country, or environmental cases on the West Coast. Our cases are from all over the country. Plus the fact that the D.C. Circuit also hears, over history, most of the big political cases. All Watergate cases were in the D.C. Circuit, the Whitewater cases, the Monica Lewinsky, the Trump cases. They're all in the D.C. Circuit. 

DANIEL ZWERDLING: And let me just interject to say that, as usual, we're going to play some news clips during our chat to help illustrate what we're talking about. 

NEWSCLIP: Arguments over immunity for former President Trump and the federal election case have now wrapped up in the D.C. Circuit Court of Appeals ... 

NEWSCLIP: We did just get some breaking news about the gag order in former President Trump's election subversion case. Yeah, an appeals court here in D.C. upheld significant portions of that gag order… 

 NEWSCLIP: A major ruling in a case involving President Trump's financial records: This is a 2-to-1 ruling by a three-judge panel of the Washington, D.C. Court of Appeals in favor of the House Committee …

DAVID SHIPLER: Now, important as the court is, you don't have license to just do anything you want, do you? I mean, you're constrained. And this is a big principle in your marvelous memoir, Vision, the notion of judicial restraint. What is that all about? 

DAVID TATEL: Can we have a little history lesson here? To understand judicial restraint, you have to go back to 1789 and the formation of our Constitution - that the framers of our Constitution were primarily concerned with creating a government of limited authority. Just read the Declaration of Independence and you'll see why. We had just had a revolution, to get out from under [King] George III. They wanted a government, but they wanted a government of limited powers. That was the way they thought we could best protect human freedom. 

 And so under the Constitution, the government has only the authority that the Constitution gives it, nothing else. And also, to be absolutely sure, they created three separate independent branches of government: a legislature, that's Congress; the executive branch, that's the President; and the judicial branch, that's the Supreme Court and the lower federal courts. And the idea behind that was, for the government to act, at least two and sometimes three of these branches had to agree. This is called checks and balances. 

 Now, there's a potential problem here. The problem is that the courts have the authority to override the decisions of the other two branches of government. The courts can declare congressional laws unconstitutional. They can interpret congressional laws in a way that's inconsistent with what Congress intended. And the courts can restrain and prohibit the president from acting. So one of the branches actually has enormous power over the other two. And it's the only branch that's politically unaccountable: unlike Congress, unlike the President, the judges are not elected. They're appointed for life and they don't have to stand for election. 

So, the potential problem here is that the least democratic branch of government has the power to invade the authority and responsibility of the other two branches of government. 

So, why have we lasted for over two centuries without the courts taking over the country? The reason is that the courts themselves have restrained themselves. They've been very careful about how they exercise this enormous power, sensitive to the fact that they're unaccountable politically. So, courts have worked hard to be faithful to legislative and constitutional text, that is, to follow the text of the Constitution and the legislation carefully. The courts have been careful to follow their own precedent. The courts have worked hard to confine their decisions to the areas in which they have jurisdiction, only to cases and controversies, not to general legislative issues. I could go on and on, but the courts over the centuries have developed a series of principles that restrain  judicial power, to protect the democratic process. It's called “judicial restraint.” 

DANIEL ZWERDLING: One of the things that struck us reading your book is that when you became a member of the appeals court, there was no training for you. It's like you don't have a school to become a judge. 

DAVID TATEL: That's right. The Senate votes, the President signs your certificate - and you're a judge. You move into your office, and the first thing that happens is stacks and stacks of cases start flowing into the office, and you go to work with your law clerks. There's no training program, nothing. It's completely different,  district courts - those are the judges who preside over trials - they have a one-week long training program, which is very helpful to them. Frankly, their jobs are far more complicated than an appeals court judge. They have to manage a courtroom and supervise witnesses, and they have to do sentencing, whereas all appeals courts have to do is read briefs, decide cases, and write opinions. 

DANIEL ZWERDLING: You're being a little modest, but what did you do to prepare? You sort of had your own course. 

DAVID TATEL: Well, I had practiced law for 30 years in the federal courts. So I had seen, close up, some of the best judges in the country do their work. So I had very good models. 

DANIEL ZWERDLING: But didn't you also read? 

DAVID TATEL: So, during the summer I was nominated - President Clinton nominated me around Memorial Day, and my Senate hearing wasn't until the Fall - in addition to preparing for that hearing, I read judicial biographies, lots of them. I couldn't think of a better way to begin my life as a judge than to read biographies of the great judges. And two of them really struck home with me. One was a biography of Learned Hand, generally thought to be one of the greatest judges in the history of the United States. And the other book was about Lewis Powell, who was appointed to the Supreme Court by Richard Nixon. Both books resonated with me, because these were two judges who believed in and practiced judicial restraint. 

When you read their opinions and their writings, you see the deep respect they have for the other branches of government and for the importance of keeping courts properly within their lanes. I particularly liked the Powell biography because he, like me, went straight from a law firm to the court. He went to the Supreme Court and I went to the D.C. Circuit, but nonetheless I was intrigued to learn how he managed that. And his experience was very reassuring to me, because he talked about how hard his first couple of years were, how the paper just kept flowing and coming. He couldn't keep up with it. And that was the experience I turned out having. So you know, Justice Powell - I didn't agree with all of his opinions, but I'm a huge admirer of most of his work. And it gave me confidence with his success as a judge that I could do the same thing. 

DANIEL ZWERDLING: David, you've stressed a few times now that one of your guiding philosophies as a judge was judicial restraint. And so Dave and I were struck - Dave Shipler and I were struck - that you would sometimes decide important cases in ways that were basically the opposite of what you would have chosen to do personally. 

 DAVID SHIPLER: The case, I mean, there are probably many, but the case I am thinking of is the one involving Judith Miller - Judith Miller, a New York Times reporter who was ordered to reveal the source of identifying an undercover CIA agent. And the court ordered her to reveal that source, and she refused because reporters generally like to protect the confidentiality of their sources when they promise the source's confidentiality. As it happens, the Supreme Court had ruled years earlier that the press had no First Amendment right to conceal its sources and there was no federal shield law, although there are some state shield laws protecting reporters’ sources. And you got the case. Tell us about it. 

 DAVID TATEL: So yes, when I got the case - here I was assigned to the case. You know, a huge number of my friends in Washington, like the two of you, are reporters. I'm a big believer in the independence of the press. And the idea that a reporter would be forced by the courts to reveal her sources was an anathema to me. But I immediately realized when I started preparing for it that the Supreme Court had very clearly ruled that there was no First Amendment right for reporters to conceal their sources. 

DANIEL ZWERDLING: The Supreme Court ruled that back in the 1970s. 

DAVID TATEL: Yeah. The New York Times argued to my court that Judith Miller had a First Amendment right to keep her source confidential from the grand jury. It was very clear to me as a judge, having read the Supreme Court opinion, that I was not free to accept that argument. The New York Times was just wrong. I was bound by the Supreme Court decision, and I concluded that under these circumstances, she would have to testify. 

DAVID SHIPLER: So you really had to rule against Judy Miller. And she went to jail, actually. 

DANIEL ZWERDLING: For almost three months. And David, that makes me wonder and I'm serious about this: Would some cases make you lose sleep? You know, I mean here you're going against what you personally feel.  

DAVID TATEL: Yes. Throughout my years on the court, there were many nights when I lay at night awake, unable to sleep, worrying about a case. It goes with the job, you know. And I’d wake up in the middle of the night and suddenly the dilemma I was facing would flood into my mind, and there was no way to go back to sleep. And usually what I did under those circumstances is, I would get up and try to write down my thoughts about the case at that moment, to see whether I could make any progress and hopefully go back to sleep. 

DANIEL ZWERDLING: So let's take a step back. Take us behind the curtain, so to speak, and tell us how you appeals court judges really do your work. One of the first things that struck us in your book is how you guys get assigned cases. As you know, the public always wonders, “Gee, I wonder if Tatel got that case because he's into civil rights, or…”

DAVID TATEL: Well, at the court of appeals level, it's all random. The idea behind the Courts of Appeals is that it shouldn't make any difference who your judge is. 

DANIEL ZWERDLING: Okay, so you'd be organized into panels to decide each case, with three judges on every panel. You’re all selected at random. 

DAVID TATEL: Yeah. When I first got on the court, it was all done manually by the clerk's office. They had a sand pail, you know, the kind of thing a kid uses at the beach. And they had ping pong balls with names on them, Tatel, with all the other names. 

DANIEL ZWERDLING: And you say it was a red sand pail. Very, very sophisticated technique. 

DAVID TATEL: But in the last I'd say ten years, computers were able to produce the panels. They had developed a pretty sophisticated algorithm that did this. 

DAVID SHIPLER: So, you had a ton of research to do on every case. And because of your blindness, that was requiring a certain amount of technology and also help. You had clerks, of course, as all judges do, who are law school graduates, who do a lot of the work in preparation. How does that all come together? I mean, do the clerks have a lot of influence over your ultimate decisions? 

DAVID TATEL: Well, in terms of how any judge sighted or otherwise works, every federal judge, including every Supreme Court justice, gets four law clerks. And most of us hire our law clerks right out of law school, and for just one year. And they’re assistants - they don't decide cases, they help us prepare for  and to decide the cases. 

Now, I can only speak about how I functioned, but I would divide the cases up among my law clerks and they would prepare what's called a “bench memo.” And this was a memo - could be five pages or 20 pages - which described the case. And they did all the research, everything I needed to decide the case. They would summarize the key cases, they would summarize the facts in the case, and they would make their own recommendation. But they had to make it through the same lens that I use: they had to employ the same principles of judicial restraint that I do, the way a court is supposed to. And then I would read that memo, which I always found, most of the time, very helpful, and then I'd spend quite a bit of time talking to the clerk about the case. 

DANIEL ZWERDLING: Can I interject? One of the things that blew my mind reading your memoir is that after the clerks have read the original laws and the briefs that all the lawyers in the case have filed, you would go back and read those briefs yourself and read the original laws. 

DAVID TATEL: Well, because I'm the judge. And while these law clerks are extremely helpful in organizing the case for me and helping me get into it quicker, I'm the one who has to make the decision. So I need to go read these statutes myself in the cases to make sure I agree with what the clerks say.

DANIEL ZWERDLING: Well, as you said, all your fellow judges had clerks who helped them prepare. But in any case, you also had an unusual kind of helper for much of your career, especially the first part of it: Because you are blind, you had readers. You hired people who could read out loud, so fast and so clearly that it's mind boggling. 

DAVID TATEL: Yes. They sat in front of my desk. They read the briefs out loud,  they read the cases I had to read, they read the facts out loud, they read everything  out loud. And I took notes on my Braille computer. 

DANIEL ZWERDLING: And one of your readers gave a demonstration last year of their amazing skills. This was at a wonderful ceremony the court gave for you where they unveiled your official portrait. 

WEB RECORDING: I'm often asked, what was it like to be Judge Tatel’s reader? Here's what nearly every day together sounded like. [Note from Danny and Dave: The speaker reads a legal document so fast that we, and our computers, can’t transcribe it!] 

DANIEL ZWERDLING: So how do you find readers like that? Did you look for actors or …

DAVID TATEL: No. My readers were all, in the past 20 years, my readers were college graduates who had been debate champions.

DANIEL  ZWERDLING: Debate champions?

DAVID TATEL: Debate champions in college. I think debate is a wonderful way to hone intellectual skills. I mean, the fact is that years ago, I hired a national debate champion, and he was such a great reader, I said when we were done, “Ok Travis, you pick the next reader.” And so that’s what happened for the next 15 or 20 years. And they each picked readers out of the collegiate debate community.

DANIEL ZWERDLING: But I still don’t get why great debaters would make great readers. 

DAVID TATEL: The debating was important to me because it meant that these kids were really, really smart. I gave each of them a little test: I gave them an opinion and said, “Read to me.” And you know, it’s always surprising. The people you hand it to, and say “Read out loud,” they – a lot of people just can't do it. 

DANIEL ZWERDLING: And readers would read literally entire opinions, entire laws? 

DAVID TATEL: Yes, everything. Everything. Books, opinions, briefs, correspondence, everything. But yes, they have to read clearly and quickly, and most important, they have to pay attention to what they’re reading. There’s two kinds of readers. The not-so-good readers become automatons. They read mechanically. And if I say to them, By the way, what was that last sentence you read? Blank face. You know, they’re thinking about something else. I want a reader who, when I say, “Danny, go back two pages where we were talking about Section 502,” I want the reader to think, “Oh, I remember 502 back there, here it is.”

 And so I work really hard to get the second category of readers. I’ll say just one more thing: I want the reader’s job to be valuable to the reader.  I want them to learn something during the year. And if they’re just reading like a machine, they’re not learning anything – whereas if they’re reading for understanding, they’re learning a whole lot about the law.

DANIEL ZWERDLING: In recent years, did you still have readers? Or did you use new-fangled technology that, you know, computers read it all to you?

DAVID TATEL: Yeah, big change. When I first started on the court 30 years ago, I had a backup reader too - I had two people, because I needed someone in the evenings and someone on weekends. They read 90 percent of everything to me - books, opinions, briefs, correspondence, everything. In my last year on the court, I was down to one reader, and she read 10 percent of everything to me. And that may be overstating it, because during that 30 years, the world went digital and everything in the court now is digital. And computer programs that convert the written word into the spoken word have developed very nicely, and are easy to use. And so I can read virtually anything in our court by myself.

DANIEL ZWERDLING: Because you just click on the text and the computer starts reading out loud and you say, “I want triple speed”?

DAVID TATEL: Yeah, you can change its speed. I read on my computer and I have other devices, I read on my iphone – it depends on the kind of reading I’m doing.

DAVID SHIPLER: Now, after you've read the briefs, the laws and so forth, you have an oral argument. You have a hearing. 

DANIEL ZWERDLING: And I found it interesting that as you and the other judges are already getting ready to go into the courtroom for oral arguments, you go into the robing room, right. 

DAVID TATEL: When we start, when we go to the courtroom, we go first to the robing room and that's right behind the courtroom. And we each have our robes,  we each have a separate little closet where we hang our robes. And what's wonderful about these closets is, the names of the judges who had the closet before you are left up. My closet, the name of mine was Ruth Ginsburg, because she had that same closet. So my name is still there, even though I'm no longer there. 

DANIEL ZWERDLING: Okay, so you put on your black robes, you enter the courtroom. 

DAVID TATEL: We walk in, in line. The three judges are lined up, as we walk in. The court crier yells, “All stand.” We then stand behind our chairs and she begins the court cry, which begins, “Oyez, oyez, oyez,” and ends, “God save the United States and this honorable court. Please sit down.” And then we and everybody else sits down. And then the court crier - she sits in a little desk to the side of the bench - calls the first case. Like, she'll say, “Brown versus Board of Education, Mr. Zwerdling for the plaintiffs, Mr. Shipler for the defendant. Mr. Zwerdling, you may begin.” And then Mr. Zwerdling walks up to the to the lectern that faces the three judges, and Mr. Zwerdling makes his argument during which the judges question. 

DANIEL ZWERDLING: And this is called oral arguments. 

DAVID TATEL: Yeah. 

DAVID SHIPLER: When you ask questions, David, what are your various purposes? You're trying to elicit information or you're trying to get the lawyer to make the best argument, or you're trying to send a message to your fellow judges on the panel, what happens? 

DAVID TATEL: They're all of those. When I come into oral argument, I have a list of areas that I have to ask about. If there's something that's confusing in the record, I need to get an answer. I may say, “Is there any evidence in the record about X?” So I'll ask factual questions. I also ask questions about the law. You know, if they're arguing a particular case, they say something and I don't agree with it, I'll say to them, “You know, counsel, you say blankety-blank holds this, but that's not the way I read it.” And then I'll quote them a sentence, “What do you think about that? “

DAVID SHIPLER: And I've been in some of your hearings and I've been really amazed by how you can recall quotes from briefs and from the law, and regulations and so forth - and, you know, putting them out to the lawyers and questioning them sharply about these. How do you do that? You have technology, right? You've got an earphone in your ear. I remember that, seeing that. So how does that work technically? 

DAVID TATEL: So ever since I've been on the court, I've had a Braille computer. Originally, it was a very rudimentary one. By the time I left the court, it was much more sophisticated, but it allowed me to type all the information I needed into the computer. So my preparations were taking notes, but also putting into my computer whatever I thought I needed to decide the case. So, if there was a statute at issue, I would type in the words of the statute so I could go back and look at it whenever I wanted. If there were key cases with key quotes, I would put those in my notes. 

So I had extensive notes when I went into oral arguments. And my computer had a find function, just like yours does. So, you know, if a lawyer said, “Well, take a look at Section 230, I could type into my computer 230, and it would go right to it. And I also, you know, had a list of areas in which I wanted to question the lawyers. I put that in there, too, so I wouldn't forget. So that's how I did it. And now, in the last few years, I had a Bluetooth headset. So I had no wire. 

DANIEL ZWERDLING: It seems - as a lay member of the public, it seems to me like, from what I hear about the Supreme Court, that the judges have pretty much already made up their minds and that the oral arguments are sort of just an exercise - you're saying no.

DAVID TATEL: Yes, when I go into oral argument, I had pretty good idea of where I was going to end up. But the oral argument was still very helpful in terms of helping me understand the rationale for the decision - because, you know, you're not just voting yes or no. You're voting for a reason for the decision. What, why is this the right decision? And there's many ways that a decision can be right or many ways it could be wrong. And the idea is to write, end up writing an opinion that's good and explains it. And oral argument is very helpful for that. So oral argument almost always helped me refine how I would decide the case. But there were cases when, you know, I actually changed my mind in oral argument. A lawyer would say something that I had not thought of. 

DANIEL ZWERDLING: Can you remember one example? 

DAVID TATEL: Well, let me step back. When the judges on my court sit down on that bench, they are fully prepared. We've read the briefs, we've written memos, we've read the cases, we've talked to our law clerks. We really, really know the case. And so, we're there to ask unanswered questions that we don't have answers to. We want to know about the law. We want to know about the record. We want to know if we decide your case this way, what will it do to the next case? That's what we're doing. We're trying to fill in the information we may not know. 

Now, during that process, two things happen. One is, you learn a lot about the case, which might affect how you think about the case. Once in a while, you actually change your mind. But mostly what it does is it fills in the gaps. It helps you think through the reason for the result. That's number one. The second thing that happens that's really interesting is that through the questions your colleagues are asking, you begin to hear what they think of the case - because we, the three judges, generally prepare independently. 

So when I sit down on the bench and I start hearing those questions from my other two colleagues, that's my first exposure to their thinking. And that's really helpful because, you know, they ask their questions to get their answers. And I can -  if I detect areas in which I'm a little worried about their position, I can ask questions that I think will help persuade them of my position. In other words, that's the first point at which the three judges are beginning to talk about the case. Now, they're talking about the case through their questions. 

DAVID SHIPLER:  So then, after oral argument, I believe you go into conference with the other judges and discuss the case. What can you tell us about that process,  and maybe even with some examples: you disagree, you argue, you persuade each other. How does it work? 

DAVID TATEL: We go to the conference room, which is behind the courtroom. It's a beautiful room with a very long table in it, and a scale of justice in the middle, and big windows looking out over the atrium. 

DAVID SHIPLER: And you know this because somebody has described it to you. 

DAVID TATEL: Yeah. And then we have assigned seats. Everything in the court is done by seniority. So, the youngest judge sits in one spot, then the next judge sits across the table from the youngest judge. And the senior judge, the one with the most experience who's presiding, sits in the middle. And then we start discussing each case. And the tradition on the D.C. Circuit was the youngest judge goes first. 

DANIEL ZWERDLING: Why? 

DAVID TATEL: Most courts, it’s the other way round. But our tradition, the D.C. Circuit tradition, goes all the way back to the rabbinical courts, where in death penalty cases, the youngest judges spoke first - because they didn't want the young judge to be influenced by what the older judges said. So in our court, the young judge first judge says, “Okay, here's the way I'd decide the case. I think BLANK should win and he should win because of X.” Got to give a reason. And then the next judge speaks and then the third judge speaks. And if all are agreed, then that's the end of that process. 

DANIEL ZWERDLING: Can you give us an example of a specific case where you and the other judges, you know, sort of disagreed, argued and came out with a negotiated solution? 

DAVID TATEL: All the time. Judge X says, the first judge says ... 

DANIEL ZWERDLING: Wait, but can you give us a real example? 

DAVID TATEL: Well, I can't because what goes on in conference is totally confidential. So I can't reveal what happens in specific cases. But I can tell you that the way consensus has developed in the courts - this is why judicial collegiality is so important - is that you really want the panel to be unanimous, because it sends a signal to the public about the stability and certainty of the law. And one of the ways you're able to reach consensus and unanimity is that if the judges come in with different views, they're often because they have different broad views about the case. And to the extent you can narrow the issue, you can reach consensus on a narrower part of the case that you might not be if you were deciding - here, I’ll give you a good example. 

The Supreme Court's case in Trump, whether Trump could be on the ballot - the Supreme Court, everybody on the court, agreed that one single state in this case, Colorado, couldn't exclude a presidential candidate from a ballot. They all agreed with that. But the case was not unanimous because a number of justices felt the need to go on and say, “Well, if states can't do it, then how can it be done?” And they went on and concluded that only Congress can establish procedures for doing this. Well, that ended up with a split decision because several of the justices didn't agree with that. Now, if all of them had agreed on just the first point, they could have issued a unanimous opinion. But instead, because some of them felt the need to speak more broadly, the opinion was not unanimous. That happens all the time. 

DANIEL ZWERDLING: And is there a problem with that? 

DAVID TATEL: The problem is that it's not unanimous and therefore it looks like the court's divided about an issue of public importance. 

DAVID SHIPLER: It's a good place to bring up judicial restraint again, because part of that, as I understand it, is to make the decision as narrow as possible, not to reach far, and far beyond the contours of the case.

DAVID TATEL: Don't decide questions you don't have to decide. That's a fundamental principle of judicial restraint. It keeps the courts confined to their role, by saying, “We only decide the issue we need to decide the case and nothing else.” 

DAVID SHIPLER: And your book, you mention a couple of cases where that was violated. One, Shelby County involves the Voting Rights Act, and that was really quite egregious in your view. Give us a summary of that. 

DANIEL ZWERDLING: And Dave, first, let me add that this case brings us back to your deep, deep concerns the Supreme Court. 

DAVID TATEL: One minute of background. So, the Voting Rights Act of 1965 -  the most controversial part of the Voting Rights Act is that Congress singled out several Southern states that had been particularly guilty of denying the right to vote based on race. And the Voting Rights Act required those states and the voting districts within them to submit any proposed change in their election procedures to the Attorney General of the United States, or a three-judge district court in Washington, and to prove that it wasn't discriminatory. 

DANIEL ZWERDLING: So in other words, if a state said, “We're going to change the rules, so now you have to have a certain kind of ID to vote,”  they'd have to ask the federal government to approve that. 

DAVID TATEL: They have to prove it's not discriminatory

DAVID SHIPLER: And in advance, so, “preclearance.”

DAVID TATEL: It's called “preclearance.” And it was, many people think, maybe one of the most, if not the most effective civil rights law ever passed. The Supreme Court sustained it in a case called South Carolina versus Katzenbach, back in the mid-sixties. 

DANIEL ZWERDLING: Meaning the Supreme Court approved it again. 

DAVID TATEL: Yeah, it was challenged by South Carolina and the Supreme Court, said, “No, it's constitutional.” The Congress extended the act, the court again sustained it. They extended it two more times, and the court two more times sustained it. The reason why the Supreme Court, time and again, found it constitutional was because the 15th Amendment to the Constitution prohibits discrimination based on race in voting. And Section 2 of the Fifteenth Amendment, which I believe is only 12 words, says Congress shall have authority to enforce this provision through, quote, “appropriate legislation.” That’s Section 2. That was one of the most dramatic changes in our Constitution since it was passed, because the states under the Constitution are responsible for running elections. And the 15th Amendment, particularly Section 2, for the very first time said, yes, the states do have that, but they can't discriminate based on race. And Congress can enforce it. 

So it gave the federal government power over the states. That was a dramatic change, which, of course, came about right after the Civil War, which makes sense because the Civil War was fought about state abuse of power. So the Supreme Court said over and over again, Congress has the authority to identify the states that are most guilty of discrimination, and forced them to submit. Yes, the court said, it is an intrusion into state autonomy, but it's justified by the 15th Amendment. The only way to eliminate discrimination. 

So then it comes up, Congress extends it again - this time the Supreme Court declares the formula underlying Section 5 unconstitutional. And the reason they give is, they say to just pick out the southern states violates the doctrine of equal sovereignty, equal state sovereignty. OK, what's the problem with that? Number one, the very first time the Supreme Court upheld the act after it was passed - in the case called South Carolina versus Katzenbach - South Carolina made just that argument, and the Supreme Court rejected it. It said in clear terms, the doctrine of the equality of the states - that's what it was called then - applies only to the admission of states to the Union; once they're admitted to the Union, this doctrine has no applicability. The Supreme Court acknowledged that in Shelby County, but said, Well, the principle nonetheless remains, quote, “pertinent.” Well, it didn't explain why - it just said it did. 

The second problem with the equal state sovereignty principle is you won't find it anywhere in the Constitution. It's not there. It's made up by the Supreme Court. The constitutional right is written into the Constitution: The states may not discriminate based on race. And then Section 2 says Congress shall have the authority to enforce this provision through appropriate legislation, no debate about that. Yet, the Supreme Court took this made-up principal that didn't apply in this circumstance, and used it to trump the clear terms of the Constitution. Its concern about state autonomy outweighed its concern about the victims of voter discrimination. 

And it did one more thing. We're talking about judicial restraint. Congress had held weeks of hearings and produced a huge record of 15,000 pages justifying the extension of the Voting Rights Act, to show that these states continue to discriminate. The Supreme Court, it said in one part of its opinion, Well, the South has changed. Discrimination is less. And in other parts of their opinion, they said, Well, we don't even care about the record because preclearance violates the principle of equal sovereignty. 

DAVID SHIPLER: You read all 15,000 pages, right? Because you wrote the opinion at the circuit? 

DAVID TATEL: Yes. So, what you have here, you have the court making its own factual judgment. 

DANIEL ZWERDLING: Let's be clear, when you say the court made these judgments, these are the Republican so-called conservative judges voting on this ruling. 

DAVID TATEL: It's the majority of the Supreme Court. And we were talking about judicial restraint: You have here the violation of three very fundamental principles of judicial restraint.

Number one, the court was ignoring the plain language of the Constitution. Number two, it was second-guessing Congress. It was departing from its own precedent without explaining why. And, up until this decision, the Supreme Court itself said because the 15th Amendment delegates authority to Congress, when a court reviews Congress' actions under the 15th Amendment, its only responsibility is to make sure the Congress has acted on the basis of substantial evidence. But yet here you have the Supreme Court making its own assessment of the facts. 

DANIEL ZWERDLING: As Dave just mentioned, you wrote the majority opinion on this case when it was at the D.C. Circuit Court of Appeals. And so it was basically your opinion that the Supreme Court later overturned. 

DAVID TATEL: The last sentence of my opinion said, “Under the 15th Amendment, we defer to the judgment of the people's elected officials, the Congress.” That's how I concluded my opinion. The Supreme Court ignored the conclusions of the people's elected officials and made its own decision. I think Shelby County is one of the most unprincipled Supreme Court opinions I've ever read. It is not a judicial act. It does not follow the principles of judicial restraint. It departs from the clear language of the Constitution, its own precedent, and it second-guesses Congressional fact-finding. That is not how courts are supposed to work, 

DAVID SHIPLER: And it's had a devastating effect on voting rights across the country, hasn't it? I mean, the impact has been quite severe. The judicial restraint concept was also violated, you write, in the case involving the Environmental Protection Administration, in which the court invented a concept called the “major questions” doctrine, 

DANIEL ZWERDLING: Which could gut the authority of the EPA, the Environmental Protection Agency, and other federal agencies to protect the public. 

DAVID TATEL: Yes. 

DANIEL ZWERDLING: Okay, so if I understand it, the Supreme Court has held for decades that, in effect, there are various ways Congress can regulate environmental pollution and worker health hazards and other problems. Right? 

DAVID TATEL: Yeah. Sometimes Congress can speak very clearly. Sometimes Congress can say, EPA shall set the emission standard at 2.5. OK. There's no ambiguity there: EPA has to set it at 2.5. But Congress can say, EPA should set the emission standard at a level to protect public health and safety. Well, what does that mean? What the courts have said in a case called Chevron is, where the language is general and ambiguous - as it is in that case - the agency can interpret the language. And if its interpretation is reasonable, then the courts have to accept it. That's called Chevron Deference. 

DANIEL ZWERDLING: And it's called Chevron Deference because the original case involved the Chevron Oil Company. 

DAVID TATEL: Yeah. 

DANIEL ZWERDLING: But now, as I understand it, the majority of the Supreme Court is saying, in effect, Well, if the federal agency’s actions might have a quote unquote, “major” impact in some way in the country, then we, the court, can decide what agencies can and cannot do in terms of controlling pollution. 

DAVID TATEL: Yes. I sat on this court for 30 years deciding cases involving administrative agencies. I never saw any evidence that administrative agencies were out of control. But this court - this court believes that agencies are too unaccountable. And so it decided on its own that if an agency's decision is “major,” then the agency's decision deserves no deference. The court will decide what the statute means. What that does is, it shifts an enormous amount of power away from both Congress and the agencies to the courts. And the reason why that's worrisome is that these agencies are dealing with big national problems that are changing, evolving, that require flexibility - and that require a great deal of expertise that the courts just don't have. 

DANIEL ZWERDLING: Yeah, the agencies have thousands of scientists figuring these issues out. 

DAVID TATEL: Yeah. Take the EPA, for example. Scientists are looking at data and interpreting what the public health means for a particular statute. You'll now have a bunch of unelected generalist judges, some of whom may know nothing about chemistry, making these decisions. A majority of the Supreme Court took the law into its own hands and developed this made-up principle called the Major Questions Doctrine, and used it to trump not just what Congress has been doing but what the Supreme Court itself has been doing - which is, you know, a very troubling feature of this court, of either overruling or completely disregarding its own precedents. And so the result of this is to greatly limit the ability of the government to protect public health and safety. 

The theme in Shelby County and the Major Questions Doctrine, and many of the other cases that this court has decided, is that even though the court is claiming when it decides these cases that it's doing so to protect democracy or to protect the power of Congress, what it's really doing is arrogating power to itself. In all of these cases, the result is more Supreme Court power over the other branches of government - that is, more power by unelected courts over the elected branches of government. 

DANIEL ZWERDLING: You told us in our last episode, and you write in your book, that you retired recently for several reasons. But one of them, you say, and  I'm quoting now, “It was one thing to follow rulings I believe were wrong when they resulted from a judicial process I respected. It was quite another to be bound by the decisions of an institution I barely recognized, particularly when applying those decisions would mean eviscerating voting rights.” This is your words, “eviscerating voting rights” and “eroding the capacity of the federal government to protect the health and safety of the American people.” You think the Supreme Court - and I know you don't like to identify the members, but we're talking about the extremist Republicans on the Supreme Court - you think they are eroding America's democracy? 

DAVID TATEL: Well, that characterization, Danny, was yours, not mine. What you read is what I wrote. And I believe that opinions like this are a threat to the integrity of our democracy because they end up strengthening the power of the unelected courts over the elected branches of government. It's a weakening of the separation of powers that the framers of the Constitution thought were so important to individual liberty. 

 [MUSIC] 

DAVID SHIPLER Well, David Tatel - our friend and recently retired judge, and the author of a marvelous memoir, Vision - thank you very much. This was just wonderful. 

DAVID TATEL: I very much enjoyed both of these conversations. Thank you. 

DANIEL ZWERDLING: And just to remind everybody, David's memoir - which he wrote with lots of coaching and editing by his wife, Edie Tatel – is called Vision: A Memoir of Blindness and Justice. And that's it, for this episode of TWO REPORTERS. 

DAVID SHIPLER: You'll find us on Apple, Spotify, or pretty much any leading podcast site. And we hope you'll check out more of our work at tworeporters.org. I'm David Shipler.

DANIEL ZWERDLING: And I'm Daniel Zwerdling. Please join us again soon for TWO REPORTERS. Bye bye .