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SCOTUS Ruling On Texas Abortion Law Could Foreshadow The End Of Roe V. Wade

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. The Supreme Court's recent ruling allowing a Texas anti-abortion law to go into effect has implications for the future of abortion, law enforcement and the future of the Supreme Court. My guest Ian Millhiser has been writing about that decision, the court's voting rights decisions, the increasing use of the shadow docket and the court's larger move to the right. In his new book "The Agenda: How A Republican Supreme Court Is Reshaping America," he writes that while Congress has become increasingly polarized and dysfunctional, the Supreme Court has become the locus of policymaking in the U.S., and the policies are largely very conservative. Three of the six conservative justices were appointed by President Trump. Millhiser says some of the court's least understood and most arcane decisions are fundamentally reshaping our nation. He's a senior correspondent for Vox where he focuses on the Supreme Court, the Constitution and threats to liberal democracy in the U.S. Millhiser is a lawyer and clerked for Judge Eric L. Clay of the U.S. Court of Appeals for the 6th Circuit.

Ian Millhiser, welcome to FRESH AIR.

IAN MILLHISER: It's good to be here. Thank you so much.

GROSS: Let's start with the basics about the new Supreme Court ruling on the Texas restrictive abortion law. Can you just, like, summarize the basics of this law to refresh everybody's memory before we delve into it deeper?

MILLHISER: So this is a law that's effectively a ban on abortions after the sixth week of pregnancy, which is very, very early. You know, most people aren't even aware that they are pregnant until long after that. And this is also the most aggressive anti-abortion law that has taken effect in the United States since Roe v. Wade in 1973. So we're talking about a generational shift, potentially, in how the Supreme Court is looking at abortion. I think that this order probably foreshadows a decision in a case that the court is expected to hear probably this winter that could overrule Roe v. Wade altogether or certainly is going to take a very deep cut into abortion rights. And it's the product of years of work. I mean, you have to give anti-abortion advocates credit here. You know, they've spent many decades working for this moment. You know, they elected President Trump, who promised to appoint justices who would overrule Roe v. Wade. And it looks like we are now on the cusp of a Supreme Court decision doing just that because the makeup of the Supreme Court has changed so much.

GROSS: So this law outlaws abortion after six weeks, and it says that no state official can enforce the law; it's only citizens who can do that. So it basically has vigilantes who can collect a $10,000 bounty for turning in somebody who has aided or abetted an abortion. Is this, like, totally new to American law? Is this unprecedented?

MILLHISER: I mean, I have a tough time thinking of a similar law. I mean, some historians I've talked to have pointed to the Fugitive Slave Act, but it's hard to find many historical precedents for a law that has this kind of a bounty-hunter system. There is a reason for it, which is that the normal rule when you sue a state in order to block an unconstitutional law is that you have to sue the state official who enforces the law. There's a principle called sovereign immunity which says that you can't sue the state directly. So if I want to sue Texas, the lawsuit wouldn't be called Millhiser v. Texas; it would be called Millhiser v. whatever the name of the state official is that enforces the law that I'm challenging.

Texas wrote this law in order - so that there would be no state officials who enforce it, so that the only enforcement would be private individuals bringing private lawsuits against individual abortion providers or also people who aid and abet abortions. We don't actually know what that phrase means - but would allow people to bring private lawsuits to try to collect a bounty of at least $10,000 from the people they sue. And the theory behind it is that, well, if there's no state official who enforces the law, therefore no one is allowed to sue to challenge the law, at least before it takes effect, because who is the defendant? Who is the state official?

What I think the Supreme Court got wrong when it allowed this law to take effect is that there are state officials who enforce this law. There are state court judges who preside over the trials when someone sues and who would actually issue the order ordering an abortion provider to pay the bounty.

GROSS: So could the Supreme Court have said, very clever, you guys in Texas? You figured out a way to get around the court. However, the way you've chosen to get around the court is kind of unconstitutional, so we're going to not allow this law to stand.

MILLHISER: Yeah, absolutely. They could have done that. You know, they could have - you know, like I just suggested, they could have said, well, you did sue a state official who enforces the law. You sued a state judge. But yes, I mean, the ultimate point here is exactly what you said. This law was drafted in order to frustrate judicial review. It was drafted in order to prevent anyone from being able to sue to block it. And that's a really frightening prospect. I mean, imagine if the Texas governor had passed a law saying that anyone who criticizes me can be - me, the Texas governor can be sued - you know, obvious violation of the First Amendment. I can't imagine a court would tolerate a law like that. So I think at least part of the story here is that the reason why the Supreme Court was willing to tolerate this weird Rube Goldberg method of getting around the way that courts normally function is because there's now a majority on the Supreme Court that opposes abortion rights. And they wanted to see this anti-abortion law go into effect.

GROSS: So what would a challenge to this restrictive Texas law look like? Who could challenge it, under what circumstances?

MILLHISER: So the way that things work now after the Supreme Court's order is that someone has to wait until after they are sued, and then once they are sued under the law, they can then go to court as the defendant and say, Your Honor, my defense to this law is that it's unconstitutional. It's not lawful to ban abortion under Roe v. Wade. Therefore, this lawsuit should be thrown out. There are several problems to that approach. I mean, one is - like I said, I think there's a very high likelihood that the Supreme Court is about to overrule Roe v. Wade. And if that happens, that defense doesn't work anymore.

The other problem with it is that this law authorizes any person except for a Texas employee - it's literally any person. You don't have to be a Texan. You don't have to be in any - you don't have to know the person you're suing. Any person can sue an abortion provider. And so if someone violates the law in order to set up a test case where they can then go to court and say, Your Honor, this law is unconstitutional, you should throw this lawsuit out, they're probably not going to be sued one time; they might be sued by thousands or tens of thousands of people because, again, anyone can file a lawsuit. And to defend against those lawsuits, you need to hire lawyers. Lawyers are expensive. You know, you need to go to every single court in which you are sued, and that could be courts all throughout Texas. And that's extraordinarily expensive. You know, the mere prospect of having to defend against this law could wind up bankrupting an abortion clinic.

GROSS: So the person being sued has to pay a lot in court fees. Meanwhile, the person suing them might get $10,000 for their effort. So it's - yeah.

MILLHISER: Yeah, exactly. Like, the - I mean, the person who is bringing the lawsuit will have some fees. I mean, they presumably will hire their own lawyer. You know, they have to file a filing fee. It's not like you can bring a lawsuit for free. But the person being sued might be sued thousands of times, you know? There might be 7,000 lawsuits against them because, again, any person at all can file a lawsuit against an abortion provider. And having to hire a lawyer to defend - or you'd have to have a whole team of lawyers to defend against that many lawsuits - is just going to cost an outrageous amount of money.

GROSS: So that could actually be a tactic - to get hundreds or thousands or at least dozens of people to sue one person as a tactic to discourage anybody else from filing a challenge.

MILLHISER: That's exactly right. I mean, there are even - there are anti-abortion groups in Texas who have set up websites where you can, like, report people and claim that, you know, you have evidence that this person performed an abortion so that they can start bringing lawsuits. So, you know, the law is written in a way to maximize the power of anti-abortion advocates and to make abortion clinics, abortion providers, people who aid and abet abortions as vulnerable as possible.

You know, I'll give one more example. If you file a lawsuit, if you're the plaintiff - so if you are an anti-abortion plaintiff and you file a lawsuit, you are entitled to attorney's fees if you win. So the abortion clinic or whoever you sue has to pay for your lawyer if you win. If you are the defendant, you are not allowed to collect attorney's fees. So no matter what, even if you have, you know, thousands of lawsuits filed against you, even if you win all of them, you still have to pay for your lawyers.

GROSS: Well, let's take a break here, and then we'll talk some more. If you're just joining us, my guest is Ian Millhiser. He covers the Supreme Court for Vox, and he's the author of the new book "The Agenda: How A Republican Supreme Court Is Reshaping America." We'll be right back. This is FRESH AIR.

(SOUNDBITE OF WILLIE NILE'S "I'M ON FIRE")

GROSS: This is FRESH AIR. Let's get back to my interview with Ian Millhiser. He covers the Supreme Court for Vox, and he's the author of the new book "The Agenda: How A Republican Supreme Court Is Reshaping America."

What is the Biden administration trying to do to uphold abortion rights?

MILLHISER: That's a good question. So the Justice Department put out a statement saying that it would try to get involved here. I mean, part of the problem is that there isn't a good federal statute for them to hang their hat on. There's a law - it's often referred to as FACE, the Freedom of Access to Clinic Entrances Act, I believe - which prevents protesters and the like from physically blocking clinic entrances. And so DOJ said that they might look at whether that law provides an opportunity to sue Texas. I think that's a tough fit because Texas isn't physically blocking clinics. They're allowing lawsuits against clinics.

There is a bill in Congress that Speaker Pelosi has said that she's going to bring for a - bring up for a vote very soon called the Women's Health Protection Act, and the Women's Health Protection Act would codify a lot of decisions like Roe v. Wade and Planned Parenthood v. Casey that protected abortion rights. It would prevent states from enacting many of the kinds of laws that we've seen them enact in order to restrict abortion rights. But, you know, that bill has to pass through Congress, and it specifically has to pass through the Senate, where there's a filibuster.

So, you know, part of the big story here - and this is a problem that goes well beyond the abortion context - is that courts can be very dynamic. You know, the only thing that the Supreme Court needs to do something is they need someone to bring the right case to them and they need five votes, and they can do whatever they want. And, you know, the executive branch - the president can only use his existing statutory authority. There has to be an existing federal law before the president can act. And our Congress is so paralyzed that often, the Supreme Court is making very significant changes to the law. And because of the filibuster and because of other factors, Congress can't respond to that even when it disagrees with what the Supreme Court has done.

GROSS: So next term, it's likely the Supreme Court will hear a case about a Mississippi law. And the law - the case is called Dobbs v. Jackson Women's Health Organization. This is a law that bars abortion after 15 weeks, which is before viability. Now, 15 weeks is more than the Texas law, which is six weeks. But you say that this case can actually be used to explicitly overrule Roe. How could this case do that?

MILLHISER: Yes. So Dobbs, like you said, deals with the question of whether states can ban abortions prior to viability. Viability is the moment where the fetus, potentially with medical assistance, could live outside of the womb. And the answer to that, under the Supreme Court's current precedence, under a case called Planned Parenthood v. Casey, is an emphatic no. Like, the Supreme Court drew an absolute line in Casey and said, before viability, if you are pregnant, you have an absolute right to get an abortion.

And if the Supreme Court tosses that rule out - and the Dobbs case explicitly asks them to toss that rule out - I don't know how much of the abortion right will be left. I mean, they might overrule Roe and Casey explicitly. They might, you know, write a more weaselly opinion saying that, oh, yeah, we still think there's some abortion right out there, but states are allowed to, you know, decide at which week it kicks in. But, you know, if that's the rule, you don't really have a right to an abortion.

I mean, if you can - you know, the Mississippi law is a 15-week ban. The Texas law functions as a six-week ban. You know, what if you had a two-week ban? You know, what if you had a three-day ban? You know, you'd pick a time when it is literally impossible for someone to even know that they are pregnant. And so once you get rid of this viability rule, you know, this firm line where you pick a moment in time where, you know, before that moment of time, people have a right to an abortion - once you get rid of that, you know, it's unclear that there will be any of the abortion right left.

GROSS: You wrote about how what we're seeing now is basically a shift in strategy to try to limit or overrule abortion rights and that the strategy has shifted from looking at restrictions to looking at actually overturning Roe - and if not literally overturning Roe, functionally overturning Roe. Can you talk about that change in strategy?

MILLHISER: Sure. So a lot of this goes back to Justice Kennedy, who retired under President Trump. Anthony Kennedy was a very - he's still alive. He's still very conservative. But he wasn't willing to overrule Roe v. Wade altogether. He was willing to uphold a lot of restrictions on the abortion right. And so anti-abortion advocates realized, well, if - so long as Kennedy is the key vote, we can't ask the court to overrule Roe. We will lose that. Kennedy has always said - already said we'd lose that case. But we can enact more and more rigid restrictions on the right with the goal of making it so difficult to get an abortion or to operate an abortion clinic that the right essentially ceases to exist.

The point in this - and, like, this is something I really struggle with as a journalist because there will be a moment where the Supreme Court hands down a decision that effectively cuts off the right to an abortion. That opinion may not use the words, Roe v. Wade is overruled. And so one thing I struggle with as a journalist is at what point do I tell my readers and, you know, the people who listen to me on the radio and elsewhere that the abortion right is dead even though the court may not have used the words Roe v. Wade is overruled?

I'll give you a quick example. There was a case a few years ago. Justice Kennedy actually ruled to - voted to strike down this law. But there was a Texas law that imposed a very difficult credentialing process on doctors who want to perform abortions and then imposed very expensive architectural requirements on abortion clinics. The halls had to be a certain width. They had to have a full operating suite even though many abortion clinics don't do surgeries at all - they only provide medication abortions that are induced by pills - and so these very expensive architectural requirements.

And the concern that abortion advocates had was that if these laws were upheld, if the Supreme - if states are allowed to, say, just impose really expensive architectural requirements on abortion clinics, why can't a state say, oh, yeah, you can perform abortions. Abortions are legal, but the clinic has to be made of solid gold. You know, you can imagine the sort of restrictions that would be so expensive that they would be impossible to comply with. It would mean that the right to abortion has ceased to exist.

GROSS: So you said there will be a time when the Supreme Court out and out overrules Roe or Casey or give states such broad powers to add restrictions so that it becomes functionally impossible in many states to get an abortion. You sounded so certain when you said there will be a time. Are you that certain that the Supreme Court will rule against Roe or Casey or rule in favor of such restrictions?

MILLHISER: Yeah. I mean, I guess I shouldn't speak with absolute confidence. I'm very highly confident that this court is going to end the constitutional right to an abortion. Now, you know, a lot could happen. You know, maybe Justice Thomas decides to go pursue his dreams on Broadway. You know, maybe Justice Gorsuch and Justice Alito are lost at sea. I mean, the membership of the court could change. You know, there are things that could happen.

But I think that so long as this 6-to-3 panel sits, with six conservative justices appointed by Republican presidents - I mean, Republican candidates have been telling me for as long as I can remember that they want to overrule Roe v. Wade, that they want to appoint justices who will overrule Roe v. Wade. There are six justices on the Supreme Court right now who have said in their own writings in one form or another that they disagree with current abortion precedent. Some of them have said explicitly they want to overrule Roe v. Wade. But there are six justices who have said in their precedents that, you know, they think that cases like Roe and Casey were wrongly decided.

And I believe that. You know, I believe Donald Trump when he told me that his justices would vote to overrule Roe v. Wade. I believe the justices who have been saying in dissenting opinions for many years that they would overrule Roe v. Wade. I believe that when Justice Barrett signed a letter while she was still a law professor attacking abortion rights and, you know, and saying that, you know, she should work to get rid of abortions that she was telling the truth. You know, the only thing that I'm doing here - and again, like, I could be surprised. You know, I shouldn't speak with absolute certainty, but I am taking them at their word.

GROSS: So I think we need to take another break here. So let me reintroduce you. If you're just joining us, my guest is Ian Millhiser. He covers the Supreme Court for Vox. And he's the author of the book "The Agenda: How A Republican Supreme Court Is Reshaping America." We'll be back after a short break. I'm Terry Gross. And this is FRESH AIR.

(SOUNDBITE OF FRED HERSCH'S "A RIDDLE SONG")

GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to my interview with Ian Millhiser, who has been writing about the recent Supreme Court order allowing a restrictive Texas abortion law to go into effect. He's also been writing about the court's voting rights decisions, the increasing use of the shadow docket and the court's larger move to the right. In his new book "The Agenda: How A Republican Supreme Court Is Reshaping America," he writes that while Congress has become increasingly polarized and dysfunctional, the Supreme Court has become the locus of policymaking in the U.S., and the policies are largely conservative. Three of the six conservative justices were appointed by President Trump. Millhiser says some of the court's least understood and most arcane decisions are fundamentally reshaping our nation. He's a senior correspondent for Vox, where he focuses on the Supreme Court, the Constitution and threats to liberal democracy in the U.S. Millhiser is a lawyer and clerked for a judge of the U.S. Court of Appeals for the 6th Circuit.

So if the Supreme Court either out and out overrules Casey or Roe or uphold restrictions that are so severe that it leaves no time to get an abortion, that would be a federal ruling, but states would still be able to make their own laws, right?

MILLHISER: That's right. So for the moment, the fight that we are having is over whether or not states can pass abortion bans or very severe abortion restrictions. I suspect that the next chapter in this litigation fight, you know - anti-abortion groups, there are some that believe in a theory called fetal personhood, which - you know, basically what fetal personhood means is it's a way of reading the Constitution to say that the Constitution bans abortions. And so if fetal personhood were to become the law of the land, that would mean that abortions would be banned in all 50 states.

But I think the thing to understand here is that we are primarily talking about rulings that impact poor women and, you know, women who do not have means - I shouldn't just say women, you know, women, trans people, nonbinary people, people who can become pregnant - who do not have the means to cross state lines. So you know, a wealthy person who becomes pregnant, if they live in Texas, they can fly to New York and get an abortion in New York. If it becomes illegal in New York, they can fly to Canada. You know, the Mexican Supreme Court just decriminalized abortion in Mexico. Maybe they cross the border to Mexico. Like, if you are a person of means, you will be able to get an abortion most likely in the world that is coming.

But if you are working, you know - you know, if you're working a job where you need every paycheck in order to pay your rent and feed your family, if you're not sure that your boss will let you take the time off to travel - and then even if you do, how are you going to afford a plane ticket? Those are the people who are going to be hurt by a decision that takes away the right to an abortion in the United States.

GROSS: Let's talk about the shadow docket. The Supreme Court's order about the restrictive Texas abortion law was a shadow docket case as opposed to a full Supreme Court ruling. Explain what the shadow docket is. Some people have already heard about this. It was a new term for many of us, but it's become a little more familiar in the past week. So would you explain the shadow docket? And we'll proceed from there.

MILLHISER: Sure. So the term shadow docket, I believe it was coined by Will Baude, who's a law professor at the University of Chicago. And the term refers to - so most cases, like the big historical cases that, you know, we all read about in high school, those came up through a very particular process where, first, they are heard by a federal trial court. Then they are heard by a court of appeals. Then they get up to the justices. The justices handpick the cases they want to hear. There is full briefing. There are amicus briefs. You know, anyone who cares about the case can submit an amicus brief. Sometimes in the biggest of cases, the justices will get thousands of pages of briefing. There is an oral argument where the justices can ask whatever questions they want from the lawyers. And then the justices spend months and months and months debating this case amongst themselves before they release a published opinion and often a published dissent along with it.

And the reason why that long, long process - I mean, the moment from when a case is filed in a federal trial court to when the Supreme Court rules on a case typically takes years. The reason for that long process is because the Supreme Court has the final word. And so if they're going to pronounce, henceforth, this is what the Constitution of the United States means, you want them to get it right. You want them to spend as much time thinking about it as possible. You want them to consider all of the potential things that can go wrong. You know, you don't want a situation where the court hands down a new rule not realizing what all the implications of it are, and then we have to live with those implications for the next, you know, 40 or 50 years until that decision is overruled. You know, you want the Supreme Court to understand what it's doing before it does it.

The shadow docket refers to cases that come up sometimes through emergency motions, emergency requests for stays. They often have very cursory briefing. There is almost never oral arguments in shadow docket cases. There are rarely amicus briefs filed because outside parties who are interested in the case don't even know that the case is there until it's too late. And the justices don't spend a lot of time thinking about these cases. You know, this big abortion order that we just had, I think they spent a total of three days thinking about it. So the danger in shadow docket cases is that they will get things wrong because they don't fully understand the implications of what they are doing.

GROSS: So you write that the Trump administration really took advantage of shadow docket cases. How did it do that?

MILLHISER: So what happened in the Trump administration is there were a lot of lower court orders blocking various Trump administration policies, you know, very controversial immigration policies, you know, various iterations of Trump's Muslim ban, you know, all sorts of policies that the Trump administration implemented which stood on fairly dubious legal footing. And the - you had - lower courts, often because existing precedent said that this policy was not allowed, would block these Trump administration policies. And rather than waiting for - to let the process play out, the Supreme Court very frequently ruled in favor of the Trump administration, you know, even in cases where existing precedent seemed to lean against the Trump administration. So you had the court issuing, you know, rules that often reshaped our law on the shadow docket.

The climax of this process of the shadow docket taking on more and more importance was a series of religion cases dealing with whether or not public health orders requiring social distancing, requiring capacity limits on various institutions, you know, in some places, closing various institutions and places of business so they wouldn't become vectors for spreading COVID-19 - there were a bunch of lawsuits asking whether or not those public health restrictions applied to churches. And the Supreme Court didn't just eventually get around to ruling that, you know, many of these public health orders did not apply to churches and other houses of worship, they rewrote much of America's religion jurisprudence - you know, much of the constitutional law involving the free exercise of religion - in shadow docket orders.

So we had hugely consequential cases dealing with very important questions of constitutional law where human lives were literally at stake. The purpose of the regulations in question was to prevent the spread of a deadly disease. And the court, on shadow docket cases with very little briefing and very little time to think about it, handed down sweeping new pronouncements about what the law means. And that is not how the Supreme Court has behaved in the past.

GROSS: Well, let's take another break here, and then we'll talk some more. If you're just joining us, my guest is Ian Millhiser. He covers the Supreme Court for Vox, and he's the author of "The Agenda: How A Republican Supreme Court Is Reshaping America." We'll be right back after a break. This is FRESH AIR.

(SOUNDBITE OF SOLANGE'S "WEARY")

GROSS: This is FRESH AIR. Let's get back to my interview with Ian Millhiser. He covers the Supreme Court for Vox, and he's the author of the new book "The Agenda: How A Republican Supreme Court Is Reshaping America."

You write in your book that voting rights is perhaps, like, the most important issue we face now, and we've just seen two restrictive voting laws in Texas and in Georgia. Why do you think voting rights is, like, the most important challenge we're facing right now?

MILLHISER: I mean, everything flows from the right to vote. You know, if you don't have the ability to pick your leaders, you have nothing because any right you have can be taken away from you if you don't have the ability to pick your lawmakers. The thing that keeps me up at night is the Supreme Court's approach to voting rights. So first of all, they've been very hostile to the Voting Rights Act. And the Voting Rights Act is the most sacred document that can exist in a secular society. It is a covenant between our nation and the people that we enslaved. This is the law that prevents us from doing the things that happened in America's past. It prevents Jim Crow. It prevents the end of Reconstruction. What the Supreme Court has done is it hasn't just dismantled much of the Voting Rights Act, it has completely divorced America's voting rights jurisprudence from the text of the law itself.

So there was just a case recently called Brnovich, where the Supreme Court invented a bunch of new restrictions on voting rights plaintiffs, said that if you sue under the Voting Rights Act and the law you're challenging is ostensibly intended to prevent fraud, there's a presumption that that law is valid. They said that if the law is similar to laws that existed in 1982, there's a presumption that that law is - that state law is valid. Nothing in the text of the Voting Rights Act says anything about voter fraud or 1982. These are things that the Supreme Court made up. And when you have judges who don't feel bound by the text of the law, I don't trust that this court is going to protect the right to vote. I don't trust it because the only thing that limits judicial discretion, that limits the power of judges is that they have to follow the text of a law. There's a written text that they are bound by. When they divorce themselves from that written text - I mean, I don't know what they are going to do with the future of voting rights. They've already chipped away a great deal out - at it. And they just aren't constrained because they don't seem to feel like the text of the law matters anymore.

GROSS: Congress has been very polarized and dysfunctional, and you say basically that the courts have taken over, you know, lawmaking. They've basically taken over the function that used to be the function of Congress. Can you elaborate on that?

MILLHISER: Sure. So, like, when I started writing my book, this was right before we went into lockdown, and it was the end of kind of a lost decade in Congress. So from 2011, when Republicans took over the House and basically prevented President Obama from having a legislative agenda, until the pandemic hit and congressional action - inaction became untenable, Congress really passed no major legislation except for the tax bill that President Trump signed. You know, Congress was inactive for most of that decade. And in that same period, the Supreme Court dismantled campaign finance law. It hobbled the Voting Rights Act. It weakened the ban on sexual harassment. It held that religious liberty claims could be used to overcome employees' rights. It halted Obama's Clean Power Plan, which was his most ambitious effort to fight climate change. It weakened unions. And, you know, it wasn't all bad news for liberals. There was also the marriage equality decision.

But, like, my point is, the Supreme Court kept handing down consequential decision after consequential decision, extremely ambitious changes to American law and American policy while Congress was basically dysfunctional. And so that's why I say the Supreme Court has become the locus of policymaking in the United States - because the Supreme Court is now where walls are made. You know, there's a reason why Republicans fought so hard to control this body. There's a reason why Mitch McConnell wouldn't let Obama confirm Merrick Garland to the Supreme Court - because they knew if they controlled this body, they controlled what has become the most powerful lawmaking body in the United States. And I think it should disturb all of us, regardless of whether you're a liberal or conservative, that the most powerful lawmaking body in the United States is not an elected body.

GROSS: President Biden appointed a commission to study Supreme Court reforms. What is that commission doing?

MILLHISER: (Laughter) I mean, I'm tempted to give a cynical answer here and say not that much because, you know, there aren't a lot of people in that commission who have historically advocated for reforming the Supreme Court. So my somewhat cynical answer here is that after Justice Ginsburg died, there was an outbreak of concern amongst many Democrats about what this meant for the future of the Supreme Court. There were many - I was one of them - who was saying that the threat to democracy from a 6-3 conservative court is so great that Biden should consider things like court packing, adding seats to the Supreme Court in order to dilute the influence of the Trump appointees.

And, I mean, that's an unpopular proposal. It was an unpopular proposal at the time. I think that Joe Biden wanted to kick the can on those sorts of radical reforms down the road. And so he appointed this commission. And, you know, if you're a reporter and you ask the White House any question about Supreme Court reform now, they will say, well, we're waiting to see what the commission does. So my somewhat cynical take on the commission - you know, I'm happy to be surprised. I would love to see the commission come out with a really sophisticated report, you know, laying out ways that we could reform the Supreme Court in order to depoliticize it. But I fear that the real purpose of this commission is to keep President Biden from answering difficult questions.

GROSS: You cover the Supreme Court. Do you get to talk to any of the justices?

MILLHISER: Very rarely and never on the record. I mean, the interesting thing about the Supreme Court is, like, once every few years, some journalist will either get a sit-down interview with a justice that reveals some really interesting things. Or there will be some big scoop - you know, Jan Crawford getting the scoop that Justice Roberts - or Chief Justice Roberts flipped his vote in the big Obamacare case. Occasionally, that happens. You know, Joan Biskupic will occasionally get big scoops like this. But they happen, you know, once every two years, once every three years, not very often.

But the flipside of that is that while the justices don't typically talk to journalists, this judiciary can be very transparent. I mean, when Congress passes a law, it does not produce a 40-page essay explaining why it passed that law, nor do the members of Congress who disagree with the law produce their own essay explaining why they dissented. So, like, the judiciary is very transparent about why it's doing these things.

And, you know, often my approach as a journalist - you know, it goes back to what I said about why I'm fairly confident that Roe v. Wade is in trouble. I take them at their word. You know, they have done me the service of spending 20, 30, 40, sometimes a hundred pages explaining the way they think. And when they tell me that, I believe them.

GROSS: Well, Ian Millhiser, I want to thank you so much for talking with us.

MILLHISER: All right. Thank you so much for having me.

GROSS: Ian Millhiser covers the Supreme Court for Vox and is the author of "The Agenda: How A Republican Supreme Court Is Reshaping America." We recorded our interview yesterday. After we take a short break, book critic Maureen Corrigan will review "Beautiful World, Where Are You?," the new novel by Sally Rooney, who also wrote the novel "Normal People," which was adapted into a Hulu TV series. This is FRESH AIR.

(SOUNDBITE OF MARY LOU WILLIAMS' "IT AIN'T NECESSARILY SO") Transcript provided by NPR, Copyright NPR.