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Amanpour
Interview with Held Hostage in Gaza for 505 Days Omer Shem Tov; Interview with Knights First Amendment Institution at Columbia University Executive Director Jameel Jaffer; Interview with Interview with "Lawless" Author And "Strict Scrutiny" Host Leah Litman. Aired 1-2p ET
Aired May 28, 2025 - 13:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[13:00:00]
BIANNA GOLODRYGA, CNN ANCHOR: Hello, everyone, and welcome to "Amanpour." Here's what's coming up.
(BEGIN VIDEO CLIP)
OMER SHEM TOV, HELD HOSTAGE IN GAZA FOR 505 DAYS: Everything I do, everywhere I walk, I can feel it here sometimes, you know, I feel like I'm
being choked. It's hard.
(END VIDEO CLIP)
GOLODRYGA: 600 days since October 7th, 600 days defined by death and suffering for so many. Omer Shem Tov, a former hostage released in February
tells me about the guilt he feels for the others still held in Gaza and why time is critical to get them out.
Then the State Department orders U.S. embassies around the world to pause new student visa appointments. We discuss what it means for higher
education and free speech.
Also, ahead --
(BEGIN VIDEO CLIP)
LEAH LITMAN, AUTHOR "LAWLESS" AND HOST, "STRICT SCRUTINY": I do think that that model of a justice who doesn't always vote with their ideological or
political counterparts is something of a bygone era.
(END VIDEO CLIP)
GOLODRYGA: -- constitutional law professor Leah Litman makes the case in her new book, and she speaks to Michel Martin.
Welcome to the program, everyone. I'm Bianna Golodryga in New York, sitting in for Christiane Amanpour.
Protestors are blocking highways and raising their voices in Israel today, calling for the release of hostages as they mark 600 days since the horrors
of the Hamas attack on October 7th that killed 1,200 people in Israel and took 251 hostages. In Gaza it has been 600 days of Israel's devastating
war. More than 54,000 people killed, entire families wiped out. And increasing scenes of hunger and desperation. 58 hostages remain in Gaza,
though less than half of them are thought to be alive.
But despite international pressure piling on the Israeli government to end its renewed offensive, the nominee to be the new head of Israel security
agency has reportedly said that he opposes hostage deals.
Those deals are something my first guest tonight knows the value of more than almost anyone else. Omer Shem Tov was kidnapped by Hamas on October
7th before being taken into Gaza where he was held for more than 500 days.
In February, he was released during the temporary ceasefire. I spoke to him here in New York about what he went through and what he is focused on now.
(BEGIN VIDEOTAPE)
GOLODRYGA: Omer Shem Tov, thank you so much for taking the time. It's so great to finally meet you in person. It's been three months since your
release. It has been a whirlwind. I can only imagine. You've traveled the world, you've been meeting with world leaders, you've been speaking
throughout the opening pitch at Fenway Park. What have these three months, now that you've had freedom again, been like for you?
OMER SHEM TOV, HELD HOSTAGE IN GAZA FOR 505 DAYS: First of all, thank you for having me. It's been crazy three months, you know. I just -- I was just
released. I got back home and I got right into like, this -- you know, I'm going all around the place and speaking and it's nonstop. It's nonstop.
There is this feeling of guilt, you know, for me that I'm here today, I'm home, and the 58 remaining hostages are back there. And I know what they're
going through right now. They're going through hell. And time is critical.
So, for me, I do feel it's my responsibility. I do feel I must do it. This feeling of guilt doesn't let you go. You know, every time I eat something I
think about -- let's say Alon Ohel. Yes. That is there, maybe he's not eating something. Maybe he doesn't have something to eat. Every time I take
a shower, maybe I think of (INAUDIBLE). If they're there, they cannot take a shower.
[13:05:00]
Everything I do, everywhere I walk, I can feel it here sometimes, you know, I feel like I'm being choked. It's hard. It's hard. I -- we, as a society,
we as the released hostages we feel like we have to do it.
GOLODRYGA: You say you know what the hostages are experiencing and going through right now. Can you take us back to October 7th for you of 2023? You
were kidnapped along with your friends, Maya and Itay Regev, brother and sister. You were beaten, thrown into the backseat of a car and thrown into
a hostile environment in Gaza, to say the least. Can you talk about those first few days when you were separated from Maya? At some point she was
injured and you were alone in a room with Itay for about 50 days until he was released.
SHEM TOV: At that time, we -- it was very difficult for us. Yes. But we had each other. Me and Itay, we had each other. So, it was really like
comforting that you have someone with you. Yes. And also, it's Itay. I felt like he's my brother, you know. We have a really good bond. We have a
really good connection.
So, although it was scary and, you know, every moment could be our last, we were together, you know. So, I really did feel like in those 53 days that I
have something to lay on, I have something to -- someone to put my head on, you know. Although, we were -- like we had to help each other. Yes. So, it
was difficult. Of course, it was very difficult. If it's the hunger, the dark, the loneliness.
GOLODRYGA: I spent some time with Itay and Maya and he said he wouldn't have survived without you. That you saved his life literally as an older
brother there with him through those 53 days, even maintaining your faith, trying to celebrate Shabbat any way you could. And he felt immense guilt
leaving you behind. I know you know that. And that's the same guilt I would imagine you feel about the 58 hostages that remain in Gaza.
After those 53 days when you were separated from Itay, things only got worse for you. The remainder of your time in Gaza was in an underground
tunnel all alone by yourself. Can you talk about that experience?
SHEM TOV: Yes. So, when Itay left, he was brought back home. I was very happy for him. Yes. I was. But at the same time, I felt like, you know, I
was left behind. Yes. And that feeling of, you know, you feel like when you feel like they're forgetting you that was the hardest thing for me there.
So, I spent three more days in the (INAUDIBLE).
And after those three days they took me down to the tunnel. I was in -- I was 40 meters under the ground. I was in a cell. That the way I could
spread my arms was this, and I had to crouch if I wanted to stand up.
GOLODRYGA: And you had asthma. So, you had an asthma attack when you went down there?
SHEM TOV: Yes. Yes. So, the first time I went down, I had a serious asthma attack. It was like -- it was very hard. So, after maybe a couple of hours
the terrorist they figured I have to have an inhaler and they gave me one. But really, throughout those 50 days, I was sitting in small cell in the
dark. And you know, when I say dark, it's hard to imagine dark, you know, for anyone that goes in a room, closes the light, and he will look at his
arm, move his arm in front of his head, in front of his face, you will see shadows moving. For me, I didn't have those shadows, you know.
[13:10:00]
So, there were times I thought I'm blind. At some point, I took one of the terrorists' flashlight. I hid it. And every now and then, I used to turn it
on. It was like a very small one.
I did not shower for 80 days now. I was starving and I used to see the bones on my shoulder and my rib cage, and I was very weak. They used to
come in for -- to give me food for two minutes, three minutes, maybe. They used to give me -- first it started with two pieces of pita bread a day,
yes, with a bit of cheese maybe. And slowly, it got worse and worse. And by the last week, I had a biscuit a day with a couple of sips of salty water.
And I remember me waking up in the morning, in what I thought is a morning, waking up, and I had to calculate throughout the day the biscuit, how am I
going to eat it? And yes, it was a very difficult time for me there. But at the same time, my faith in God became very strong.
GOLODRYGA: You dropped an enormous amount of weight. I think going from 176 pounds to 121 pounds. You talk about the starvation. In your
interactions with the terrorists and your captors, did you ask them why they were starving you?
SHEM TOV: One time I did ask one terrorist about it, and he told me, because of the army, there is no food. But I used to see them eat. I knew
that they weren't getting -- they weren't skinny as me, you know? One time I remember I asked to go to the restroom, to the bathroom, and they took me
out. I used to go every three days, yes, to the bathroom. And I remember me walking by another room in the tunnel, yes, and seeing like a big amount of
food, of, you know, cheese and bread and like huge amounts, you know? So, I was being starved, you know, there is no question about it. They gave me
small amount of food. That's it.
GOLODRYGA: You managed to develop some sort of relationship with your captors. You obviously are very personable and we're quick to realize that
to stay alive, the best thing for you was to develop a relationship with them and communicate. You also offered to do all of the chores, including
the cleaning and the cooking. I mean, can you talk about that? How long was that going on?
SHEM TOV: Yes. So, after those 50 days in the first tunnel, they moved me to another tunnel. And the first one, I used to only see maybe two or three
people, but they were a lot more. In the second one, when I got there, there were a bit around nine terrorists, yes. They used to stay with me in
the same room. They used to look at me 24/7.
At the first 27 days for me there, so it's about 100 days, after 100 days into captivity. The first 27 days for me in the second tunnel, the army was
in my area.
GOLODRYGA: The IDF?
SHEM TOV: Yes, the IDF. Yes. I was 12 meters deep now. I could feel the tanks going above my head. I could feel the vibration of the bombing. Yes.
I could hear -- I heard one time soldiers speaking in the night when I was -- when I -- like everyone was sleeping and I stayed awake and I heard from
the ventilation soldiers speaking.
After those 27 days the terrorists, they started to go to other places and I stayed with three terrorists. And I came up to who we thought was the
leader. And I told him, listen, I'll do everything here. I'll cook and I'll clean and I'll do every chore you want me to do, just, you know, let's stay
in this good --
[13:15:00]
GOLODRYGA: Rapport.
SHEM TOV: Yes. And this is exactly what happened. You know, I cooked and I cleaned, and I used to dig in the tunnel.
GOLODRYGA: Dig?
SHEM TOV: Yes. Dig. I used to dig in the tunnels. And I used to do electrical job. I used to do water job. I used to do everything there.
Everything, everything, everything. It just -- it got to a point that by the end, when I had to get out from the tunnel when I wanted to leave the
terrorists, they come up -- they came up to me and they told me, Omer, how do we operate this place? Because I used to do everything. They used to sit
down and I did everything.
GOLODRYGA: You're with the operational manager?
SHEM TOV: Yes.
GOLODRYGA: In the tunnel.
SHEM TOV: Exactly, exactly. Yes.
GOLODRYGA: As a captive.
SHEM TOV: Yes.
GOLODRYGA: One of the constants I hear from a number of released hostages, Naama Levy being the latest, is that those were some of the scariest
moments throughout the captivity of hearing the bombing, of being fearful that they would be killed inadvertently because of the bombing, that their
captors would become more aggressive and hostile to them. Is that what you experienced as well?
SHEM TOV: Yes. I must say that I think that -- I believe that every soldier is a hero. Yes. I really do believe it. And I think the army,
they're doing an amazing job. Yes. But for us as hostages, when I was there throughout the -- those -- the first 27 days in the tunnel and the days
that we -- me and Itay were above the ground, you know, for us, it's the scariest moments.
You know, if it's the bombing that you feel like your life can -- could be taken in every moment. Yes. And I was -- the thing is I -- at some point,
you know, you accept that you can die. Yes. But I was scared of dying from the Air Force. I wasn't scared from dying from Hamas. I was scared from
dying for the -- from my own people, you know, from my own brothers.
When I was in the tunnel, I remember the -- those 27 days, the terrorists, they came up to me and they told me, Omer, as soon as we hear them coming
close to us, like if they're above us, if they're exactly above us, we're going to shoot you, you know. So, as long as the army is around the
hostages, they're in danger. They are in constant fear.
GOLODRYGA: And you say that, and the Israeli government says that it is because of military operations that has led to hostage deals and releases,
and that is that military pressure on Hamas that will ultimately lead to a ceasefire hostage deal. Is that not how you interpret it or experienced it?
SHEM TOV: I do think that all of us wants to end this terrorist organization by the name of Hamas. We want to eliminate them. Yes. But I
think there must be a priority, you know. And the priority is -- it's supposed to be the life of the hostages. Yes. There is human lives on the
line.
I don't want to get to any politics. What I do think is that the hostages' lives are now more critical than eliminating the Hamas.
GOLODRYGA: You said in captivity that you were disappointed when you were able to watch Al Jazeera or listen to some news headlines that when you did
hear from Prime Minister Netanyahu, you didn't hear him prioritizing the release of the hostages, and then that was like the gutting feeling for
you. But can you talk about that feeling of not feeling as if you are prioritized?
SHEM TOV: At that time, it was me and Itay together. And I overheard Netanyahu speaking, it was maybe two weeks after the war began. And he
spoke about eliminating the Hamas, but it didn't speak about us, the hostages. He did say his comforts, he did say -- but he didn't say that
we're going to bring them home. For me, it was very hard to hear it. Very, very hard.
[13:20:00]
And yes, the time I was alone, I did not see my parents in any way because it was in Al Jazeera and they only show the side that protest against the
government. And I remember, I used to have dreams of me going home and shouting at my parents, where were you? Why didn't you fight for me? I was
mad. I was angry.
GOLODRYGA: And you know now that your parents were at the center of the fight to bring all of the hostages home day in and day out. I don't know
how many. I think your mother must have -- it surprised me she didn't run out of tears at a certain point.
And you and your parents have both said that you believe it was Donald Trump and a message from God that he led to your release. You met with the
president in the Oval Office, you told him as much. Do you remember what he said to you?
SHEM TOV: He said that that I have a good future ahead of me.
(BEGIN VIDEO CLIP)
DONALD TRUMP, U.S. PRESIDENT: You got a good future.
(END VIDEO CLIP)
SHEM TOV: But I really think that that, yes, it's him. He got me out. He got the hostages out. Before, we felt like nothing is happening, you know.
And I remember there -- for me, there -- ever since he came into the road, they were very scared of him. Yes. They --
GOLODRYGA: Who?
SHEM TOV: Terrorist.
GOLODRYGA: Were afraid of Trump?
SHEM TOV: Yes. They wanted Kamala to be chosen. To be elected.
GOLODRYGA: You talked politics with them.
SHEM TOV: Yes, yes, yes. They wanted Kamala to be elected. But as soon as Donald Trump was elected, hey understood that he wants to bring the
hostages back home. Yes. So, immediately, the way they treated me changed. So, it's -- if it's the amount of food. I can say -- I could say this, that
when Trump came into -- became president, yes, the way they treated us changed, for me personally, this is what I thought.
GOLODRYGA: Do you think because they anticipated that a deal would come soon?
SHEM TOV: Yes.
GOLODRYGA: And that's when they started giving you more food?
SHEM TOV: Exactly. More food. Treated me better. You know, stop cursing me. Stop spiting me -- spitting on me.
GOLODRYGA: They were spitting and cursing?
SHEM TOV: Yes.
GOLODRYGA: Were they beating you?
SHEM TOV: No, never. I was never -- except the 7th of October, I was never abused physically. But I think it's because the way I managed around the --
GOLODRYGA: The relationship?
SHEM TOV: Yes.
GOLODRYGA: Do you think it will ultimately take more pressure from President Trump to bring the remaining hostages home?
SHEM TOV: I think so. Yes.
GOLODRYGA: I do have to say, when I met your parents, one of the things that shook me, that stayed with me for over a year and a half after meeting
them was a notebook that they showed me that the IDF had found I think early on into your captivity when you were moved from one location to
another. And you kept the days of your captivity and you also started noting food, writing hamburger, you were writing mom, dad, and then there
were just pages after pages of one word, and that is hungry.
When you know now that your parents had seen that and had been so concerned about you for months on in, how does that feel?
SHEM TOV: I couldn't imagine myself putting me in the role of my parents. You know, this is something I used to think a lot about when I was there. I
didn't know how they manage what they're doing, how they can do it. Because for me, yes, physically I'm going through something that it's very hard,
it's a nightmare. But for them, it's this feeling of, you know, that their child was lost. And this feeling I just -- I can't imagine myself. I don't
know what I would've done. And they did it in the -- in what I think the best way possible. They did an amazing job.
GOLODRYGA: The day that you were released, the end of February, I can only imagine how emotional that was for you, finally, freedom.
[13:25:00]
Hamas paraded you on display as they had done with other release hostages, but they also did something else that was even more cruel as they recorded
two other hostages who were not part of the release watching your release and your freedom. And I wonder how often you think about them. They are
among those who are still in captivity. What do you say to your government? What do you say to the world, to their families about what they're going
through?
SHEM TOV: You know, every time I go to any place to speak, I mentioned a guy, (INAUDIBLE) guy. Yes. I mentioned them. I remember them. Me on the
stage, a van coming, the door of the van opens and I see two people there. You know, I -- at first, I didn't understand who they are. But then I see
how thin they are and I realized that there are hostages. And I just immediately took me back, you know, to watching Itay leave. Yes. And they
watched us leave and they remained there.
And the door closed and they drove off. And even throughout this day that it was a very happy day for me, yes, at night when I went to sleep to bed,
I remembered them. And, you know, it's a nightmare for them. It's a nightmare. It's continuance hell they're going through, and we just have to
get them out. Time is critical. We have to get them out.
GOLODRYGA: Omen, I'm so glad you're back home. I'm so glad I'm finally sitting down with you.
SHEM TOV: Thank you.
GOLODRYGA: It's taken way too long, but I'm wishing you all the best. Thank you.
SHEM TOV: Thank you.
(END VIDEOTAPE)
GOLODRYGA: Some heartbreaking testimony there from Omer Shem Tov. Up next after the break for us, the State Department orders U.S. embassies around
the world to pause new student visas. We discuss what it means up next.
(COMMERCIAL BREAK)
GOLODRYGA: Well, now, the State Department has ordered American embassies around the world to pause new student visa appointments. As it says, it
plans to expand social media vetting for all applicants. International students make up a significant portion of many American universities. At
Harvard, for example, they represent 27 percent of the student body.
So, what's behind this decision? Jameel Jaffer is executive director of the Knight First Amendment Institute at Columbia University, and himself
studied in the U.S. on a student visa. Welcome to the program.
Jameel, first of all, just the timing of this, because lawyers who are opposing this move by the administration are saying the timing is of no
accident, that it's this time of year when students do go apply and the interview process begins as they apply for schools and visas to the United
States for the following semester. Can you just talk about the timing of this right now?
[13:30:00]
JAMEEL JAFFER: Yes. I mean, that seems right to me. If you're a foreign student now you're, you know, giving some thought to -- or if you're a
student abroad right now and you're giving some thought to, you know, should you come to the United States to study here? Should you go somewhere
else, you know, let's say to Canada or Australia or to Europe? You know, now's the time when students are thinking through all of that.
This also is, you know, as you know, part of a larger assault on higher education in the United States and foreign students at universities in the
United States. And that assault has been going on now for several months.
You know, I think that all of this is incredibly damaging to not just higher education but to the United States too. It's really -- you know, it
should be considered an amazing and wonderful thing that people come from all over the world to study at American universities. You know, the most
talented and brilliant people from around the world come to study here and to teach here. And that is a great thing for those people, but it is also a
great thing for the United States.
You know, those foreign students and foreign faculty contribute to knowledge production in the United States. They enrich the experiences of
American students at universities here. Of course, they pay tuition as well. So, all of this is going to be incredibly damaging for higher
education in the United States and for the United States as well, for the economy here, for national security and for American leadership in the
world.
GOLODRYGA: Yes, because this policy goes well beyond just the president's personal battle with Harvard University, which just last week, a judge put
on pause them denying foreign students to attend the school. This is now impacting all universities. And we should note, 1.1 million international
students studied at U.S. higher education institutions just in the last year alone.
As it relates to the social media identifiers, the State Department has required visa applicants to provide their information to social media sites
under their name since 2019. Now, they're saying that they're going to expand those guidelines. What does that signal to you?
JAFFER: Yes. Well, I guess, first, it's important to know that there is no evidence at all that this social media surveillance, which, as you say, has
been going on since 2019, is effective at all. The idea is we're going to identify threats to national security by looking at people's social media,
the government has not been able to do that since 2019. So, there's no reason to believe that expanding this program now is going to be effective
in that respect.
I think that this -- the right way to look at this is as yet another effort to deter foreign nationals from coming to the United States, an effort to
intimidate the foreign nationals who are already here. That -- you know, that's how I see it.
I think you're also right that, you know, it's a mistake to think of this as an attack on Harvard specifically. It is, at the very least, an attack
on higher education and many of the implications will be felt far beyond the universities.
You know, a lot of what takes place at American universities has effects for ordinary Americans. You know, the research that takes place at American
universities includes research into cancer or into Alzheimer's. You know, a lot of science at American universities is what launches billion-dollar
companies. And all of that is threatened when the government deters foreign students from -- you know, from coming here.
GOLODRYGA: Yes. It's one thing to push and to encourage and maybe even at times threaten universities that they need to do more as it relates to
antisemitism or some of their policies for minorities, making sure they feel safe on campus, but going to this length, if you can just talk to us
about the larger implications in terms of U.S. competitiveness, the fact that we're already starting to see a decline in the number of students from
abroad who are applying to U.S. universities? Other countries are chomping of the bit to take these students and offer them spots at their schools,
whether it's in the United Kingdom. I even saw Hong Kong also weighing in now. Just what disadvantage does that put the United States at.
[13:35:00]
JAFFER: Yes. I mean, I think it's really important for people to understand how foreign students contribute to the United States, not just
to the universities that they're a part of for their four years as undergraduates or their four or five years as postgraduates, but many of
the students who come here, many of the foreign nationals who come here to study they either go back to their home countries, and they serve as kind
of informal ambassadors for the United States in their countries, or they stay here and they found companies, they participate in research
collaborations, they engage in all sorts of socially valuable activities that have benefits for ordinary Americans.
There was a brief that was filed. So, my organization is involved in a challenge to the constitutionality of the detention of students who
participated in political protests on campus last year. And in the context of that case an organization called the President's Alliance, it's an
alliance of university presidents across the country, filed a brief that explains how significant the contributions of foreign students have been to
the American economy.
And at the end of that brief, there is a four-page chart of foreign students who went on to found billion-dollar companies in the United
States. And you know, if we are deterring foreign students from coming to study here, then we are depriving ourselves of the benefits that those
foreign nationals would bring to the United States after they graduate.
GOLODRYGA: And this has been a uniquely American phenomenon success story too. Countless students coming here bringing their skills, their
intelligence, and giving back after they graduated to start business here and really thrive in their communities. I know you've been addressing this
in a subjective manner here -- I'm sorry, in an objective manner here, but I would like to talk in these last few seconds about how this personally
impacts you.
You studied on a student visa first at Williams, then at Harvard Law. Obviously, you're giving back immensely as a professor at Columbia. This
must be a bit sad for you as well.
JAFFER: It is. It's very sad for me. I mean, when I was a student, you know, I was excited about the possibility -- first, I was excited about
studying here, having that opportunity. And then I was excited about the possibilities I had for work in the United States after I graduated. And I,
you know, stayed in the United States because I had all sorts of opportunities here. And also, because I love many things about American
society and I see all these other students here now who are really eager to contribute to American society but are being turned into -- for reasons I
don't understand, turned into enemies by our own government.
GOLODRYGA: Well, we and your students have indeed benefited from your knowledge, your insights, and your expertise here in the United States.
Jameel Jaffer, thank you for joining us.
JAFFER: Thank you.
GOLODRYGA: And stay with CNN. We'll be right back after the break.
(COMMERCIAL BREAK)
GOLODRYGA: The U.S. Supreme Court holds the most power in the nation's federal judiciary. But over the last few years, a series of decisions has
led University of Michigan Law School Professor Leah Litman to believe that the court is no longer practicing law, but running on personal biases
instead. She details this in her new book, "Lawless," and joins Michel Martin to discuss.
[13:40:00]
(BEGIN VIDEOTAPE)
MICHEL MARTIN, CONTRIBUTOR: Thanks, Bianna. Leah Litman, thank you so much for joining us.
LEAH LITMAN, AUTHOR "LAWLESS" AND HOST, "STRICT SCRUTINY": Thanks for having me.
MARTIN: OK. So, your new book, the title lays it out there, it's titled "Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe
Theories, and Bad Vibes." And what you're saying here is that these things are more relevant than constitutional reasoning. So, the first thing I
wanted to ask you is, how do you know this?
LITMAN: How do I know this? A combination of factors. One is I clerked on the Supreme Court in 2011 to 2012 when the court heard the constitutional
challenge to the Affordable Care Act and came within one vote of striking down that major law that would have provided and did provide so many people
with access to health insurance. So, that definitely informed my thinking.
But second and third, I follow the Supreme Court closely, both as a litigator and a professor and I also co-host a podcast about the Supreme
Court, and we follow what the court is up to day in, day out every week. So, I have been reading their opinions every day for over six years now.
And then, I also listen to their oral arguments. And sometimes during the oral arguments is when they really give their unvarnished take on what is
moving them to decide these cases in this way.
MARTIN: So, would it be fair to say, look, Anthony Kennedy, for people who may remember, was a conservative, but he was also understood to be a swing
vote. Could we surmise from that that is in part your -- what informs your thinking about the way cases should be decided? That you felt that because
he was a swing vote, that he was fairly weighing the evidence on both sides?
LITMAN: I think Justice Kennedy was fairly depicted as a swing vote because he didn't always vote with the Republican justices and he didn't
always vote with the Democratic justices. That being said, he had very firm views on a range of topics, from campaign finance and the First amendment
to LGBT equality. I do think that that model of a justice who doesn't always vote with their ideological or political counterparts is something
of a bygone era. Because in an era of partisan polarization, it's just so much easier for the parties to find people whose views will reliably track
those of the parties that appointed them.
MARTIN: And why do you say conservative grievance, fringe theories, and bad vibes? So, why don't we start with bad vibes. So, in a chapter focused
on LGBTQ equality, you argue that the court's reasoning is more often granted in intuition and partisanship than the law. So, could you just say
more about why you say that?
LITMAN: Sure. So, vibes, I just mean to draw a pointed contrast with law to suggest they are basing the law on their feelings or political talking
points, or the zeitgeist of the party. Just to give one example of that, in the Obergefell versus Hodges decision, recognizing marriage equality,
Justice Alito wrote a dissent joined by other Republican appointees in which he described the court's decision, recognizing marriage equality as
facilitating the marginalization of religious and social conservatives who have traditional views about marriage and equated that marginalization
saying it recalled the harsh treatment of gays and lesbians in the past.
So, he is treating marriage equality as basically the same as the harsh treatment of gays, lesbians, and bisexuals throughout the 1900 and early
2000. That is a fairly warped worldview that definitely reflects some feelings rather than reality.
MARTIN: What's an example of fringe theories that you say have informed too many of the court's decisions?
LITMAN: I would give as one example of the unitary executive theory, this idea that was pushed by the Reagan administration and it maintains that the
president and the president alone possesses all of the executive power and so much power, he has to have the ability to control and supervise everyone
in the executive branch. Based on that idea, the Republican justices recently allowed Donald Trump to fire people in violation of federal law,
commissioners on the National Labor Relations Board and the Merit Service Protections Board. So, it's that idea I think that has expanded
presidential power so much that the president is now able to act in violation of federal laws.
MARTIN: And what about conservative grievances? Conservative small C conservative has generally been understood to mean, you know, a preference
for limited government over expansive government, a preference for, say, minimal intrusion into personal liberties as opposed to sort of a more
maximalist view. You use the word grievances. So, tell me what you see as the difference between, say, a conservative grievance and conservative
ideology, and how do you think that's playing out?
LITMAN: Yes. So, I agree that small C conservative generally refers to limited government not intruding on people's rights. I don't think that
describes the modern court. They have been willing to make rather rapid and significant changes in the law in ways that I don't think can be described
as small C conservative.
[13:45:00]
So, by conservative grievance, I mean, this fixation on the idea that the core constituency of the modern Republican Party, social and religious
conservatives, as well as Republican political elites, that they are the victims, they are the ones that are put upon. So, it's not the teenager in
Texas who is victimized by the abortion restriction that prevents her from obtaining healthcare, it is instead the religious conservative man who is
now forced to obey and abide by civil rights laws that prevent him from discriminating on the basis of sexual orientation or gender identity, that
he is the one victimized. That's the idea of conservative grievance that I think animates so much of the law today.
MARTIN: You know, one of the most closely watched cases this term ended in this surprise deadlock. This just happened just last week. The Supreme
Court declined to allow Oklahoma to open a publicly funded Catholic charter school that had planned to, I guess, infuse religious teachings or used
religious teachings in all aspects of its curriculum. There was a 4-4 split in this case because -- well, we don't know how Justice Amy Coney Barrett
would've voted. We can speculate, but she recused herself. How do you look at that decision?
LITMAN: So, I think this decision is absolutely stunning in what it suggests for at least four Republican justices are willing to do. Had they
said the state has to create this religious, public charter school, what they would be saying is the Constitution requires states to create some
religious public schools.
Think about that for a second. We used to think the constitution prohibited states from operating religious public schools. This is such a shift and
major transformation in the law. You know, there used to be this principle of separation of church and state. There is an establishment clause in the
Constitution that is supposed to prohibit governments from establishing religions, from teaching religious doctrine as truth.
And yet, four Republican justices were willing to say they thought that the establishment clause, the separation of church and state, was a kind of
ranked discrimination against religious conservatives who wanted to operate a religious public school. It's a perfect example of how this conservative
grievance mindset is cannibalizing the law.
Now, justice Barrett, there are many other cases that are percolating in other courts that raise this same question. So, she didn't have to
participate in this case in order to eventually decide this question, which I imagine will return to the Supreme Court in the next few years.
MARTIN: One of the things that you write in your book is that you write about the danger of treating the Supreme Court as a neutral guardian of the
Constitution. You write that the Supreme Court is extremely powerful, it's also poorly understood, and the combination makes the court dangerous. Why
dangerous?
LITMAN: People are not paying enough attention to what the Supreme Court is doing. And so, that leads them to misunderstand who they should hold
responsible for various decisions that our government makes. If you look at recent polling, for example, some voters actually held Joe Biden
responsible for the overruling of Roe versus Wade because that happened during his administration. Other voters didn't vote for the Democratic
candidate in the 2024 election because Joe Biden had not done one of the things he said he would do, namely offer student debt relief. He tried to,
but the Supreme Court, six Republican justices, prevented him from doing so.
So, I think the more people understand about our government, the better informed they will be about who to hold responsible and how they should
vote in different elections.
MARTIN: I think that some people may be listening to our conversation and might think, was it ever different? Was it ever different? That these --
maybe these folks they come from -- everybody comes from a certain context. They have beliefs that they grow up with, that they adopt. Was it really
ever different?
LITMAN: So, I think the court has always been political in the sense that people's lived experiences and worldview probably informed their judging.
Also, the court has always affected the nature of our government and how it operated. But I think the court has become partisan in a way that it hasn't
always been. That is the courts justices probably always reflected some ideology or worldview in their decisions. But what is different is the
extent to which the justices now divide along partisan lines with the Republican justices doing one thing and Democratic justices doing another.
You add to that the extent to which the justices are now reaching decisions that cater to and are supported by an increasingly narrow segment of
society, and I think that also differentiates what the court is doing today from what they have done in the past.
MARTIN: Is there an argument to be made here? Well, this is in fact an argument that Mitch McConnell made, right, who was the longtime Senate
Republican leader. His argument, and I think the argument that other people have, is that elections have consequences. And that if the Republicans
successfully made the court a voting issue, that's how democracy works. And that liberals could have done that and they chose not to, for whatever
reason, or at least weren't as successful at it. What would you say to that?
[13:50:00]
LITMAN: Two things. One is I actually do think Democrats and progressives need to do a better job of injecting the court into their political life
and getting voters to care more about the court on the left as voters on the right do.
But second is if elections have consequences, then I think all elections have consequences. And if I remember correctly, when Justice Scalia passed
away in 2016, President Barack Obama was still president. And so, as a president, he is entitled to have nominations and have those nominees
considered. And so, it was only some elections that Mitch McConnell seemed to think have consequences.
MARTIN: There are those who would argue that the reason you've written this damning indictment of the way the court operates is that you don't
agree with their decisions, and that if you did agree with their decisions, then perhaps you'd see it differently. What would you say to that?
LITMAN: I think in the book I am able to point to some pretty objective shenanigans that the justices have used in order to reach the decisions
that they did. Just to take one example, in Shelby County V Holder, the pretty catastrophic decision to end the pre-clearance process of the Voting
Rights Act, that was the part of the Voting Rights Act that required certain states with especially bad histories of racial discrimination to
obtain permission from the federal government before changing their voting laws or policies.
Justice Roberts' majority opinion relied on a previous case that had said the exact opposite of what he said it meant. He inserted a misleading
ellipsis. He said, the Voting Rights Act violates this doctrine of equal sovereignty, which doesn't prevent Congress from treating the states
differently on the basis of newly developed or later developed conditions. The problem is, is that the full quote said, that doctrine does not apply
beyond the terms on which a state is admitted to the union.
So, he twisted this doctrine, which previously had only governed what Congress could offer as conditions or a state's admission to the Union as
something that restricted Congress well after states have been admitted to the union.
MARTIN: What's interesting is that increasingly we find that conservative legal jurists have raised objections to some of these cases, and also
specifically when it comes to the question of presidential power. I mean, I think a lot of conservative jurists have been particularly vocal around
their concerns about the way the Supreme Court has abed a maximalist view of presidential power, and I wonder how you think that's playing out.
LITMAN: I just worry that those individuals are being written off as RINOs, Republicans in name only. The Supreme Court recently had an
opportunity to cut back on their immunity decision and reign in their expansive views on presidential power when Donald Trump asked the court for
permission to fire the NLRB, National Labor Relations Board, and another commissioner in violation of federal law. What did the Supreme Court do?
They doubled down on the unitary executive theory and said, yes, Donald Trump basically gets to preemptively overrule our prior case that had
upheld the existence of independent agencies.
So, it doesn't look like they have any buyer's remorse or that they are being influenced by what the administration is doing with the expansive
vision of presidential power or the criticism they have faced for enabling it.
MARTIN: Before I let you go, one of the things that's been really interesting to me over the course of Donald Trump's rise to political power
has been how he has upended, particularly on the conservative side, a number of sort of public facing individuals, thinkers, you know, members of
Congress who've resigned saying, look, I can't function in this party with this person as the head of it.
There are like substacks and newsletters being written by people who are lifelong conservatives who just say their goal now is to call attention to
what they see as the abuses of this ecosystem, as you put it. And I just was wondering about you, I mean, as a person who clerked for Justice
Kennedy, is there anything about this current era that has kind of changed you in some way or changed the way you think about things?
LITMAN: I think it has changed the extent to which I feel obligated to make myself heard and make my voice heard, and my willingness to be more
openly critical. I have no doubt that the things I have written probably render me unconformable for various offices, and yet, I still feel
compelled to share them.
I think it has also led me to rethink the way our institutions are structured and whether we should be revisiting bigger questions like the
Supreme Court's authority to choose their own cases. Seeing the extent to which the court has gone astray and accumulated so much power over time has
led me to think more deeply about the way things are and what we might have to change.
MARTIN: Leah Litman, thank you so much for speaking with us.
LITMAN: Thank you for having me.
(END VIDEOTAPE)
[13:55:00]
GOLODRYGA: And finally, 53 years ago today, a president challenged the Constitution and the Constitution won. On May 28, 1972, burglars working on
behalf of the Nixon White House broke into the Democratic National Committee Headquarters in the Watergate office building to install wire
taps on the telephones. The bugs they left behind were duds.
So, three weeks later, they broke in again to replace the faulty equipment. And this time, they got caught. Eventually, that so-called third-rate
burglary led to this speech by Richard Nixon.
(BEGIN VIDEO CLIP)
RICHARD NIXON, FORMER U.S. PRESIDENT: I have never been a quitter. To leave office before my term is completed is abhorrent to every instinct in
my body. But as president, I must put the interests of America first.
(END VIDEO CLIP)
GOLODRYGA: And that is how we end the show today. Thank you so much for watching, and goodbye from New York.
(COMMERCIAL BREAK)
[14:00:00]
END
