The race for Virginia governor remains close before Election Day. The Supreme Court considers challenges to the Texas abortion law from abortion providers and Biden DOJ.
RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Am I going to see you in person tomorrow we`re going to election coverage?
CHRIS HAYES, MSNBC HOST: We`re going to be hanging in person. It`s very, very exciting.
MADDOW: This is -- I am both super excited and also, I feel like I have never been around other humans I have worked with before. I have forgotten how to do it.
HAYES: I know. We have the posse and he`s pointing at the teleprompter and doing his thing. So, we`ve got everyone -- I have gotten used to working in an environment with everyone.
MADDOW: Wow, you were always better than me, but tomorrow is going to be to the test. I`m going to be like up against the corner, velcroed to the corner of the wall being like. You guys do it. I`ll hang out here with my mask.
HAYES: All right. I`ll see you tomorrow. It should be fun.
MADDOW: I`ll see you then. Yeah.
All right. Thanks to you at home for joining us this hour, and it`s good to have you here.
Tomorrow night, we are going to be doing a full blown election coverage for the elections that are happening tomorrow, in New Jersey and Virginia and across the country, interesting races. So, make -- if you have plans to have your usual Tuesday night bop in around doing other stuff, you should change your plans because it`s going to be an important an interesting night of election coverage, tomorrow.
In March of this year, there were two men who were left on death row in the state of Virginia. Just two. In Virginia, the last time a person was sentenced to death was a decade ago, it was 2011. The last time the state actually carried out an execution, the last time they had you know prison staff deliberately, legally kill one of their prisoners, that was four years ago in 2017.
But this year, in March of this year, there were just two men left on a death row in that state. And both of them, this year, have their sentences commuted to life without parole. Both of these men will still spend eternity of their natural lives behind bars in the custody of the state of Virginia. They got life without parole. But their sentences were commuted from death to life. That`s because Virginia this year became the 23rd state in the country to formally abolish the death penalty, 23rd state in the country, the first state in the South to do so.
And Virginia has a singular history when it comes to killing prisoners. Virginia`s history on this goes way, way, back the first execution in the colonies was in Jamestown, Virginia, in 1608, Virginia as a colony and then as a state, as a commonwealth. Virginia has killed more of its prisoners than any other state in the country over its long history.
But just this year, earlier this year, they decided they`re never going to do that again. They abolished the death penalty.
In the past couple of years, Virginia also passed new legal protections for voting rights. Leading the nations in some ways. In terms of protection of voting rights. The past couple of years, Virginia also raise teacher salaries. In the past couple years, Virginia also expanded for any punitive, for little kids in the state.
Believe it or not, in the past couple of years, Virginia also passed a package of small ball but very popular, very enforceable, gun reforms. Stuff like requiring a background check for gun sales everywhere, not just for the sales that happened at gun stores.
Virginia also, within the last couple years, provided new protections in law for abortion rights, in the state, and for women to be able to access contraception.
But in the cast couple of years, Virginia also, believe it or not -- criminal justice reforms, including legalizing pot. Virginia also expanded Medicaid, which means that more than 500,000 people in Virginia, who didn`t have health insurance before, now they have it, half a million people. There`s only eight and a half million people in the whole state, you just got more than half a million of them health insurance. All people who didn`t have health insurance before.
Wow, Virginia nice to meet you, you`ve been busy.
The reason that has all happened over the last couple years is because in 2019, Democrats won control of the Virginia legislator, the House and the Senate, for more for the first time in more than 25 years. They also have a Democratic governor. And so, yeah, they worked on getting people health insurance and protecting voting rights and stopping sending people to jail for pots. And all the other things Democrats have made a priority, all the stuff they can do stuff about when they actually hold power.
Democrats have been in power for the in Virginia for the past couple years. There are hundred seats in the House of Delegates, in Virginia, 100 seats of the 100 states Democrats hold 55 of those seats right now, that`s a majority in the House of Delegates. But every single one of those 100 seats in the House of Delegates is up tomorrow. So if you do the math on that it means that Republicans are able to flip sixties in the legislator, from blue to red, Republicans will take back control of the legislature after Democrats having the majority for just two years.
I mean, it has been a consequential two years in Virginia, while Democrats have been in the league. Republicans are hoping to stop all of that and presumably a roll it all back and then some. The vast majority of the Republican candidates who are running for legislative seats tomorrow in Virginia, the vast majority of them are way over on the Trump side of the line. Many of them are running on how -- I`ve the 2020 election was stolen and they won an audit of the election, like the Cyber Ninjas won in Arizona and the rest of that.
That Trumpiness among the Republican candidates does seem to be giving Democrats a little bit of comfort in terms of their chances tomorrow. I mean, who knows? Virginia is notorious for swinging back in the opposite direction against whichever party won the presidency the previous year. So, that means theoretically, Democrats have an uphill battle tomorrow in Virginia and Republicans should have an easier time.
But, Trump did lose to Biden last year in Virginia by more than ten points. And it would be one thing if the Republicans were running a bunch of normal Republican candidates, but they`re running really Trumpy candidates. And the Trumpier the Republican candidates are, who are running to try to flip the legislature, that`s probably encouraging for the Democrats` chances.
Tomorrow, New York City is going to elect a new mayor, Mayor Bill de Blasio is out. Democrat Eric Adams, you see on the left side of your screen, he is heavily favored to win the mayoral race tomorrow.
The Republican candidate in the race, the gentleman in the little red cap from the right side of you, his name is Curtis Sliwa, he has made his biggest headlines in his campaign when A, he confessed to having a lot of cats. And I mean a lot of cats. And B, he got hit by a cab. He got hit by a taxicab. He`s fine.
But, you know, lots of cats and getting run over, while impressive headlines, it is hard to piece that together into a win, in a pretty deep blue Democratic city. So Democrat Eric Adams heavily favored in that mayor race tomorrow. But we shall see.
The great American city of Boston will get a new mayor tomorrow as well, that will be a really interesting race to watch unfold. The great American city of Atlanta will get a new mayor as of tomorrow, well, as of this month, at in Atlanta`s 14 candidates who are going to be on the ballot all running to succeed Mayor Keisha Lance Bottoms. Mayor Bottoms decided not to run for reelection, but the practical consequence of 14 candidates running to replace her is that it`s going to be hard for any of them to get 50 percent of the votes.
When you`ve got 14 people on the ballot, nobody is going to get that big a slice. If nobody gets 50 percent of the votes, the top two candidates from tomorrow`s voting will have a runoff in Atlanta, on November 30th.
The great American city of buffalo is getting a new mayor tomorrow, maybe. Buffalo has a four term incumbent Democratic mayor, a guy named by Bryon Brown, that fascinatingly he was beaten back in June in the Democratic primary, beaten by a candidate named India Walton. Now, Miss Walton beating the incumbent mayor in the primary gives her the incredible advantage of her being on the ballot instead of him. But he decided that he wanted to run for reelection anyway, so now that incumbent mayor is running a write in candidacy to try to hold on to his seat.
If you are looking for a parallel here, for this odd situation, it`s a Lisa Murkowski. The last to U.S. senator back in 2010, remember, she was the incumbent Republican U.S. senator. She lost the Republican primary in Alaska. But then she came back in the general election and ran to hold on to her Senate seat as a right in.
Murkowski actually did it, back in 2010. That was the first time in more than half a century that a U.S. senator was elected in a write in candidacy. But, that`s what the Buffalo mayor is trying to pull off tomorrow in that great city. He`s trying to pull a Murkowski, we shall see.
New Jersey has this governor`s race tomorrow. New Jersey generally does not like to reelect its Democratic governors. Almost all of its Democratic governors, if not all of I, modern times Democratic governors have been single term, I think. But in the case of the incumbent Democratic governor who`s there right now, Governor Phil Murphy, the poll suggests that New Jersey may make an exception in his case. They may want him to stick around. We shall see.
I will just note, that this election in New Jersey, between Democratic Phil Murray and Republican challenger named Jack Ciattarelli, because this is a general election in New Jersey, the whole -- the best ad of the whole election so far is an ad that makes fun of Jack Ciattarelli just as hard for nobody knowing who he is, as it does for him being against wearing.
They are giving him a hard time here, for nobody knowing who he is, for nobody recognizing him, for nobody knowing how to pronounce his last name, but they`re equally giving him a hard time for being against cursing. So, I`m going to play this ad, but this is your fair warning. There are not any actual swear words in the ad, there`s a lot of bleeping. But, it is unmistakably full of swear words, even the bad ones.
So I`m just telling you this in case you`re like watching with your six- year-old and that wouldn`t be awesome. This is your chance to be distracting for 30 seconds. Okay? Here goes.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Do you know with this guy is?
UNIDENTIFIED MALE: No clue.
UNIDENTIFIED FEMALE: No.
UNIDENTIFIED MALE: Uh-oh
UNIDENTIFIED MALE: That`s Jack Ciattarelli, the GOP candidate for governor. He once led an effort to ban swearing
UNIDENTIFIED MALE: He did what?
UNIDENTIFIED FEMALE: That`s kind of nice
UNIDENTIFIED MALE: Really?
UNIDENTIFIED FEMALE: (EXPLETIVE DELETED) No.
UNIDENTIFIED FEMALE: This is New Jersey.
(END VIDEO CLIP)
MADDOW: We even extended the bleeps to make it more bleepy. But still, only in New Jersey. Love you, New Jersey.
New Jersey and Virginia are the only two states that schedule their governor races every year for the year after a presidential election. Just a quirk of how they schedule things, that means that there`s allowed side national attention to those two governor races every year because of the only two ones in the country.
The New Jersey one is not expected to be a cliff-hanger this year, nobody`s expecting the guy to want it to ban swearing to win in fricking New Jersey, right? But that means that the marquee race for tomorrow really is the Virginia governor`s race and that one deserves all the attention that it`s getting.
The control of the state legislature there, like I said, is actually a huge deal. Having Democrats lead both the houses of the legislature while they`ve been holding the governor friendship has been a huge deal for the past couple years. It is the House of Delegates, it`s a House in the state legislature where every seat is up tomorrow. The Senate actually is in up tomorrow, that`s up in 2023.
But, if Democrats want to try to hold on to unified control and governments they need to keep doing the kind of very consequential policymaking that they`ve been doing over the past couple years, they will need to hold on to the house of delegates, again which they hold by five seats right now. And they`ll also need to hold on to the governorship.
And that governorship tomorrow, that governor`s racist turning out to be a good old-fashioned nail-biter. Some of the dynamics from the legislative races are still apply here. As I`ve mentioned, Trump lost to Biden in Virginia in November by more than ten points. And then the Republicans picked a candidate to run for governor, who is endorsed by Trump. And who for months wouldn`t say whether or not he believes Biden had actually won the election against Trump.
Trump is doing a tele-rally for Republican Glenn Youngkin tonight in Virginia. Trump has sent out a multiple statements just in the couple of day all about how much he loves Glenn Youngkin, how much he wants all Trumpy people to vote for Glenn Youngkin, how much he and Glenn Youngkin see eye to eye, how much they want the same things for the country.
Trump and other Glenn Youngkin surrogates are already warning that they expect the race in Virginia`s going to be stolen, that the Democrats are definitely stealing it, that of course could lays the groundwork for Republicans to consider the result illegitimate, if in fact Glenn Youngkin loses, which is the Trumpiest thing of all.
One Youngkin rally a few weeks ago, you may recall, featuring Steve Bannon. That really led with the assembled Glenn Youngkin supporters being asked to pledge allegiance to a flag that they said had been flown at the January 6th attack on the Capitol. That was like the selling point for that flag. That was at the insurrection, so that`s the flag they pledged allegiance to.
There`s all sorts of ways in which the Untrumpiness of Virginia, Trump losing Virginia to Biden by more than ten points, cuts against a strategy here of Republicans having gone with really Trumpy candidates for the legislative seats and a really Trumpy candidate for governor.
That said, history favorites the Republican candidate for governor in Virginia in the year after Democrat won the White House. That is generally how it goes, and the polls, which intellectually showed Democrat Terry McAuliffe ahead, those polls have tightened dramatically in the past couple of weeks to essentially a tie, as of a week ago. But since then, some polls even showing Terry McAuliffe narrowly running behind the Republican Trump- endorsed candidate Glenn Youngkin.
So, election night tomorrow, Virginia`s voters still have a day to make up their minds, we`re going to be here until the wee hours, covering it tomorrow night. I`m nervous about that, but will be all together, it will be fine. Even though I`m supposed to be letting him cram, slash sleep tonight, ahead of what`s going to be 24 straight hours of election mania tomorrow, I found myself today -- I found myself today sort of unable to resist calling Steve Kornacki. Asking him to give us one last election eve assessment of how that race is what -- we should watch for over the course of the day.
Joining us now, blessedly, from his apartment because he`s going to be in front of that dark green all day long tomorrow, is NBC News national political correspondent, Steve Kornacki.
Steve, I don`t know if this is beauty sleep time, or cram time, but thank you for letting me interrupt either way.
STEVE KORNACKI, NBC NEWS NATIONAL POLITICAL CORRESPONDENT: Appreciate you accommodating me, I know this is not the most professional of backdrops here.
MADDOW: This is why cable news looks like now Steve, you`d be surprised.
All right, tell me about -- first of all, tell me about -- as an election watcher appreciating the importance of what`s going to happen tomorrow, both in terms of the Virginia`s governor`s race and in terms of the control of the legislature, what do you expect the dynamics to be in terms of how this is going to roll out? Is this one of those things where we`re expecting Democrats to have done a lot of the early voting, and the early vote is going to be counted first and so it`s going to look blue at the beginning part of the day and read at the later part of the night.
Is it going to be that kind of a dynamic?
KORNACKI: It`s -- I think it`s going to be a mix. Virginia, the typical pattern in Virginia`s been that the Republican areas, the rural areas are the quickest account, you often see the Republican candidates in Virginia getting a sizable lead in the running tally. In fact if you look back in 2020 last year with Joe Biden won the state, Joe Biden won by this ten points it wasn`t even that close.
Biden didn`t actually believe the tally until about 11:45 Eastern Time, on election night 2020. And that`s because so much of that Democratic vote is concentrated, you see it right there at the blue of northern Virginia outside of Washington, D.C., the biggest of the big counties, Fairfax County, where Biden got sent 70 percent of the vote didn`t vote really it`s early or it`s mail vote until 11:43 Eastern. So that was the reason for the lag there in 2020.
That said, when you talk to the county election administrators here in Virginia, the reason they believe it`s going to play out differently this year, most notably in the county I was just talking about, Fairfax County, there are some very technical reasons in terms of how the state assess the county to compile the vote this year. But, the county basically when you talk to them believe that at least a good chunk of that early vote, that mail vote, that absentee vote, it`s something that they can get out within minutes potentially of polls closing, at 7:00 p.m. Some of them think they can get the mail out relatively quickly in the first couple hours, others talk of more than late at night.
But Fairfax County is one of those where in 2020 was extremely late, relative to other counties. This year, they are sending them some signals that it could be extremely early we
MADDOW: Steve, obviously turnout has got a lot of variables that play into it, both because this is an off year election but it is a statewide election in Virginia. And we`ve had so much change in terms of the way people vote, both what ways are available preferred bill to vote, but also what people prefer in their method of voting, and we saw so much of that change around 2020. A lot of those voting methods were carried forward into 2021 in Virginia.
Is there any coherent way to look at the number of votes return thus far, the patterns that election administrators seeing at the county level to know whether this is likely to be a high turnout event?
KORNACKI: Yeah, I mean the number and the volume of mail ballots of absentee -- excuse me, I should say in person early votes that have been count, it`s less than 2020. That doesn`t surprise anybody. I mean, the turnout was so historic in 2020. It`s also say substantially more and then the last governor`s race in Virginia in 2017. Then again, blast back then the rules weren`t quite extensive as they are now in terms of the availability of early voting.
So, it`s a little tricky in Virginia to know exactly what`s to compare it to, but the kind of benchmark I`ve been using in my mind, when I look to this, is are they going to run at about two thirds the total turnout of the 2020 election? That would be about 3 million votes.
Is this going to be north of 3 million votes, is this going to start to get significantly more than 3 million votes? Or is it going to fall short of that, that would be on a lower turnout election. So 3 million or so is kind of the benchmark I`ve said in my head.
MADDOW: Okay, and in terms of key locations and key demographics, you talked a little bit about places to watch. Not necessarily bellwethers, but we places where -- in terms of the contest between these two. But both in terms of the governor race and the legislative races, I`ve been thinking a lot about black turnout, and black largely Democratic turnout has been the answer to everything in terms of understanding Democratic competitiveness, in states like Virginia and others.
Obviously, white voters in the suburbs turning out to be swing voters, has been a very heavily studied dynamic, but it seems like black voter turnout and enthusiasm is as much as the story as anything. Do we have anything that we should be watching for in that regard, in terms of that is a key metric, and you agree that that`s a key metric?
KORNACKI: Yeah, I mean Virginia is about 20 percent, 18 to 20 percent black, -- the closer that is to 20 the better that is news that is for Democrats. The more it drops off from there I think that you`re not if you`re a Democrat, getting quite the turnout you`re hoping for. Potentially, we will tomorrow night look at that county by county.
I would say though in Virginia, it is when you look at the big shift that`s taken place in Virginia over the last two decades, it really, really over the last five years to get Biden up there, it`s that double digit lead, it really is -- there`s just a large number of white voters with college degrees, particularly outside Washington, D.C., particularly outside of Richmond.
And you see some massive shift here over the last couple elections out in these counties. I mean, Loudon County, which, obviously, been in the news a lot, it`s there, sort of Washington, D.C. metro area, 400,000 people there. This is a county that just in 2012, we`re talking less than ten years ago, Mitt Romney only lost it to Barack Obama by about four points. Fast forward to 2020, Donald Trump versus Joe Biden, Biden carries it by 25 points.
So there is been massive movement in the populations that particularly in northern Virginia, these are areas that there is a lot of racial diversity, large Asian-American population, Latino population as well. But it also is that demographic we talk so much about that`s trending Democratic nationally. There is an abundance of that white voters with college degrees especially in northern Virginia, and then those richer suburbs. I think that`s really what`s power that ship to Biden winning by 10.
MADDOW: NBC News national political correspondent, Steve Kornacki, letting me interrupt his cram slash leap time, I think you`re going to be on the air for at least 24 hours, Steve, I apologize for doing this and I thank you for making time.
KORNACKI: Always happy to talk to elections, I`ll see you tomorrow.
MADDOW: All right, see you tomorrow.
Again, we are going to be having full election tomorrow night, looking at those key races in the New Jersey governor race, the Virginia`s governor race, the Virginia legislative races are going to be fascinating. We got key mayor races and a bunch of important U.S. cities. We`ve got ballot measures that are going to be a super interesting answered -- in states all over the country. It`s a more interesting off year election year than usual, this year. I`m looking more forward to it than ever.
All right, still ahead tonight, the Supreme Court heard oral arguments today on a case that went way out of his way for. They have not move this fast to hear a case since Bush v. Gore. The arguments happen today on this incredibly accelerated timeframe.
The arguments were livestreamed when they happened. They were electric. They were at times pretty infuriating. We`ve got that story and some expert help to figure it out, next.
MADDOW: In September, two months ago, the United States Supreme Court allowed the state of Texas to enact a new state law that effectively banned abortion. Now, the Supreme Court precedent Roe v. Wade is supposed to block any state from being allowed to do that, but the conservative majority in the Supreme Court let Texas`s ban go into effect anyway.
Well, today, on an expedited schedule, the Supreme Court heard oral arguments over two challenges to that Texas abortion ban. And the focus for the argument was how Texas wrote its law specifically to evade the protection of Roe v. Wade.
The law is written in such a way that officials who work for the state of Texas aren`t actually in charge of enforcing it. Instead, bizarrely, the abortion ban is enforced by individual private citizens anywhere in the country who bring lawsuits, who are allowed to bring lawsuits against anyone who provides a woman and abortion in Texas or helps her get one.
Today, the state of Texas argued in the Supreme Court that these challenges against its law should be thrown out. The law should be allowed to stand. And Texas`s reasoning for that was because of this vigilante clause, that clause, that enforcement mechanism, makes it so that no federal court should be allowed to challenge something like this.
A federal court can block officials who work for a state from doing something, but they can`t stop private citizens who have been newly empowered to enforce something as vigilantes on behalf of the state. Federal court can`t get involved in stopping that at all. And the Texas solicitor general in court today admitted that as far as Texas is concerned, they believe that this type of approach need not be limited to laws banning abortions. Any law written with this kind of vigilante enforcement mechanism would also not be allowed to be challenged in federal court.
Justice Sonia Sotomayor questioned the Texas solicitor general on that point today. Justice Elana Kagan followed up on it. And I pulled this piece of the Elena Kagan back and forth with the Texas solicitor general because I think it is instructive. I think it is almost explanatory to hear Justice Kagan become exasperated by this line of argument.
She has to basically backup after she tries to move on and say, wait, wait, wait, wait, wait, wait, wait. Where -- did you just think what I think you said? Is that really what you are saying? Listen.
(BEGIN AUDIO CLIP)
ELENA KAGAN, U.S. SUPREME COURT JUSTICE: I guess I just would like to take you back to the other case and to ask you to answer the question that you said you wanted to avoid for Justice Sotomayor.
STONE: I am sorry your honor, I thought I agreed that it doesn`t depend on the nature of the right being asserted and that also that we should sort of raise the potential section as high as possible and that wouldn`t affect federal court availability. I`m sorry I thought I`d answer that to make my answer expressly clear.
KAGAN: Okay, thank you. Okay.
STONE: The other dimension in which the United States is asking for an extraordinary power is the nature of which the remedy they`re seeking.
KAGAN: I guess I do want to ask a question about that, though. I mean, if that`s right, you know, and we say that, we would live in a very different world from the world we live in today. Essentially we would be inviting states, all 50 of them, with respect to their un-preferred constitutional rights, to try to nullify the law of that this court has laid down as to the content of those rights. I mean, that was something that until this law came along no state dreamed of doing.
And essentially we would be like, you know, who are open for business, you`re open for business. There is nothing the Supreme Court can do about it. Guns, same sex marriage, religious rights, whatever you don`t like, go ahead.
By the way, this seems pretty extremist hypothetical actual, you know. I mean, because the actual provisions in this law have prevented every woman in Texas from exercising a constitutional right as declared by this court.
STONE: That`s just--
KAGAN: That`s not a hypothetical, that`s an actual.
STONE: That`s just not true, Your Honor. There`s evidence in the records that estimates that the number of abortions occurring right now in Texas is between 50 and 63 percent.
KAGAN: I`m sorry. You`re exactly right. I should`ve said every woman in Texas who has not learned and has not made a decision before six weeks.
STONE: Respectfully, Your Honor, there`s a big difference between asserting that the state has structured its court to defy federal law, to completely extinguish a right, and saying that the state has codified specifically this courts holding in the applicable case and then also to that extent the deterred effect has caused some diminution of the exercise of that right.
(END AUDIO CLIP)
MADDOW: How dare you stay that we have extinguished completely right. We simply put it through some diminution, if only women who would know that pregnant, and can get to an abortion provider, and go through the rigmarole that you need to do to in Texas, in order to get an abortion before six weeks, if those are the only women would get abortions now in Texas -- it`s some diminution of the right.
Well, Justice Kagan there knots up the implications of allowing this law to go forward, right? Texas has basically set up a system by which they say, you know what, you may think this is a constitutional right but in Texas, in our state, any person can sue you so that you`re not able to access that and therefore your constitutional right is sort of subject to the whims of anybody who wants to sue you to stop you from exercising it.
And no, there`s no reason that that should be just a constitutional right to get an abortion, it should be a constitutional right to anything. Right, saying basically -- what Justice Kagan is pointing out, if any state gets the greenlight from the Supreme Court here, to pass their own Texas style laws, that would allow them to prevent people from exercising, not just a constitutional right to abortion, but any constitutional right, like she says. Guns, same sex marriage, whatever you don`t like, go ahead--
MADDOW: Under questioning from a different justice today, it was all spelled out. What about a different state wanted to pay somebody 1 million dollars bounty to bring a lawsuit against someone who sold someone an AR- 15. You couldn`t, under the constitution, arguably ban an AR-15 but you could make selling an AR-15 for something you have to be sued and pay 1 million dollars. Texas is like, yeah that`s cool. It`s astonishing.
Like I said, the court heard to challenges to the Texas law today the first was from a clinic that apprized abortion in Texas. The second four was from the U.S. Justice Department. The Justice Department case was argued by the brand-new solicited general of the United States, Elizabeth Prelogar. And because the Justice Department went second, she had the benefit of having the last word today, as the justices considered both of these challenges to Texas`s ban. Both the Texas clinic and the Justice Department are asking the court to allow the challenges of the Texas law to go forward, to ignore Texas`s claim that having vigilante random citizens enforce this thing means that this thing is insulated from federal court review.
But this is how she closed the arguments today, listen to her explain to the judges the implications if the side with Texas instead.
(BEGIN AUDIO CLIP)
ELIZABETH PRELOGAR, U.S. SOLICITOR GENERAL: The final point is to just step back for a moment and think about the startling implications of Texas`s argument here. Across the argument this morning, Texas` position is that no one can sue. Not the women whose rights are most directly affected, not the providers who have been chilled in being able to provide these women with her, not the United States in the suit.
They say that federal courts just have no authority under existing law to provide any mechanism to redress the harm. And if that is true, if the state can just take the simple mechanism of taking its enforcement authority and giving it to the general public backed up with a bounty of $10,000 or $1 million, if they can do that, then no constitutional right is safe. No constitutional decision from this court is safe. That would be an intolerable state of affairs any kind of being the law.
Our constitutional guarantees cannot be that fragile, and the supremacy of the federal law cannot be that easily subject to manipulation. So we would ask this court to hold that the United States can proceed with this action and up from the preliminary injunction entered by the district court and immediately vacate the stay that the fifth circuit occurred in this case so that Texas cannot continue to deny women and its borders right protected by this court`s precedence one day longer.
CHIEF JUSTICE JOHN ROBERTS, U.S. SUPREME COURT: Thank you, Counsel. The case is submitted
(END AUDIO CLIP)
MADDOW: The case is submitted. If they can do this, then no constitutional right is safe, no constitutional decision from this court is safe, that would be an intolerable state affair, it cannot be the law, our constitutional guarantee cannot be that fragile.
She was sworn in as solicitor general on Friday. This was her day at working the Supreme Court today.
Joining us now is our friend Dahlia Lithwick. She is senior editor and legal correspondent for Slate.com. She is the host of the Amicus podcast.
Dahlia, it`s great to see you. Thank you for being here.
DAHLIA LITHWICK, SLATE.COM: Thanks for having me.
MADDOW: As somebody who knows these cases and the expectations for these arguments like the back of her hand, I just want to hear from you today I know that you are able to listen into the arguments as we all worried it`s amazing to hear them live and in real time as or arguments even though we can`t be there in person. What did you think?
LITHWICK: Well, first off, I just want to point out, that that summation that you just played by the brand new general new solicitor general really ticked off, boom, boom, boom the way she filled off three of the conservative justices today. She mentioned 1 million dollars, the, quote/unquote, bounty. That is it was chief justice John Roberts that brought up the hypothetical, what if it`s 1 million dollars, would that change things? Then she ticked off, what about gun owners, can you go after them? That was Brett Kavanaugh`s concern. And third, she went right to Amy Coney Barrett`s concern with this case which is people cannot effectuate their rights in the Texas state court, if this law is allowed to stand.
So she just absolutely masterfully, I think, I think it was magisterial kind of pulling in all of the doubts of the three justices she only really needed two of them, but I think that what you saw right there, what you heard right there, was her being so attuned to the weak spots in Texas`s argument. And then saying, come sit by me, Justice Kavanaugh, come sit by me, Justice Barrett, and the Chief of Justice. I think we can get to five to straight down this law. It was really a tour de force.
MADDOW: What do you make of the fact that this was heard so quickly by the justices, does that also tell us anything about how they are inclined, why do you think they made the decision that they would hear this so quickly? I mean attendee turn around and getting oral arguments, is just unheard of.
LITHIWICK: Rachel, I`ve been calling that shadow docket decision, that let the law go into effect in September, the biggest self own, a totally unnecessary self owned by the conservatives on the court. They know that Jackson -- the case is going to be argued one month from today, on December 4th, could`ve been the vehicle to erode Roe. Why do it in this sloppy slapdash way that allows Texas to sort of single-handedly overturn Roe?
And so, I think what you saw happen is a huge outcry across the country about the shadow docket, how the cabin at midnight with a paragraph unsigned order that women and pregnant people in Texas were suffering (AUDIO GAP) outcomes from being denied.
And then the polling around the court that just cratered after and what you saw I think was on a dime, the court saying, and, maybe we should`ve heard, this maybe we should`ve argued in three, and maybe we should`ve treated this as though was a constitutional problem. So, yes, it was a very short turnaround but we really calendar this with ten days in order to get it ridden argued, we haven`t seen that since Bush v. Gore. But nothing has changed on the ground. I think, except that the court looks really, really dumb for letting Texas in effect make the court look weak and frail.
So that is why I think with two months after, the court said, we better hear those as though it`s serious, because you know what, it is kind of serious.
O`DONNELL: Do you think that the quick turnaround of them hearing it means that will solve a quick ruling?
LITHWICK: I think so. I think will have a quick ruling, and let`s be really clear, because I think we have not said it, this is not a decision on the merits. This goes to nothing that has to do with whether Roe and Casey are good law. That`s coming in jobs, that is coming in a month. But I think for the court to save face, they can at least say that maybe Texas is in a lot to make this look stupid in the future, we`ll get to the merits of Roe very, very soon.
MADDOW: Dahlia Lithwick, senior editor and legal correspondent for Slate.com, host of their Amicus podcast -- Dahlia, it is fantastic to have you here. Thank you so much.
LITHWICK: Thanks, Rachel.
MADDOW: All right. We have much more ahead tonight. Stay with us.
MADDOW: We have known for a while now that former President Donald Trump has been trying to prevent the investigation into the attack on January six from getting access to his White House record. But until now, we did not know what exactly he is trying to keep from that investigation. Now, we know nearly, that it turns out it`s a lot that he`s trying to keep from that investigation. And it sounds like it`s crazy town stuff.
This is something that we learned this weekend in a late night court filing from the National Archives. National Archives is in charge of all the White House record from previous administrations, including the Trump administration. This week, in the national archives submitted a big long filing, late at night, like after midnight, on Friday night, about what Trump is trying to keep secret, and keep away from that investigation.
And there`s three different things that are taught us. First of all, just the amount of stuff that Trump is trying to keep away from the investigation. There`s like 1,600 pages of records of the archives have so far identified as being relevant in responsive to the committee`s investigation and to the requests for documents.
Trump is claiming that of those 1,600 pages, nearly half of them should be shielded by executive privilege. And that includes his daily schedules, his appointment logs, even the log showing who called the president on and around on January six. Speech drafts from him, correspondents, handwritten notes about the events of that day he says that`s all shielded by privilege.
To be clear, the current president has already said none of that is covered by executive privilege, that should all be handed over by the committee.
And that`s the second thing to know about this new court filing. The archives themselves, the National Archives and Records Administration, they just -- they just tear apart Trump`s claims that this stuff should be kept secret. The Archive says, first of all, it`s only the sitting president who gets to decide what`s covered by executive privilege. The sitting president is Joe Biden, not Donald Trump. President Biden has already said the stuff is not covered by privilege. Therefore, it`s not covered by privilege.
The Archives also says that even if Trump did have some kind of right to claim executive privilege, it would obviously be outweighed by, quote, Congress is compelling need for information about the extraordinary attack that occurred on the Capitol.
So, number one, Trump is asking for a ton of stuff to be kept secret. Number two, he is saying that it should be kept secret on the basis of privilege, and everybody is saying like, yeah, dude, no, you don`t even get to say that. Even if you did we would still say no.
But here`s the third most interesting thing that we`ve learned, this weekend in the filing, in this court filing, the National Archives, actually described some of the specifics records that Donald Trump is trying to keep it in. And it`s that list of you know, logged, and speech drafts, and correspondents like I said.
But also there`s this: Quote, a document containing presidential findings concerning the second security of the 2020 election after it occurred, and ordering various actions. Sorry? What were these presidential findings about the security of the election? And what`s actions was Trump prepared to order on the basis of those presidential findings? Did he tried that, what were his findings, did he try to order something in response to him finding something out about the election security in 2020? What?
Also there`s this, a quote, draft executive order concerning election integrity. Trump drafted an executive order about election integrity, in 2020? Again, it seems like something that would be important for the January six investigation to have. If we are going to understand the full scope of what former President Trump and his advisers were planning or attempting in attempts of overturning the election. We are going to need to know what kind of executive orders concerning election integrity the White House had drafted, let alone his presidential findings and actions in response to them that he had apparently written up and now wants to be kept secret.
As far as I know, we`ve never known about either of these things before. I`m very interested to find out what they are.
There is going to be a hearing, Thursday, before federal judge, on Trump`s lawsuit to try and block all this stuff from coming. The National Archives says, they`re going to release all these records to the January 6 investigation at the end of next week, unless the court orders them not to.
Watch this space.
MADDOW: Here`s what you might call a red flag for investors. Now I am not offering financial advice here. I am singularly unqualified to offer that kind of advice. If anybody ever tells you they`d received financial advice from me, run. And get back anything they owe you.
But still, even me, even unqualified me can spot a red flag this big and this red. As you might recall, within the last couple of weeks, the former president announced a new commercial venture, that was seeking public investors, the Trump media and technology group. This is nearly announced venture said it would include the social media platform called, Truth Social.
And with the announcement of the new venture, they invited everybody to download the app. Within a few hours, people had found a test version of this online that appeared to be operable. And the registered what appeared to be the official Truth Social Donald J. Trump account, and promptly hack that account, post a picture to that account of a pig going to the bathroom. And picks don`t use bathrooms.
A "Washington Post" reporter also found that it was possible to register what appeared to be an official account in the name of Mike Pence. "The Post" also revealed that the platform runs on completely free, open source software that literally anybody can download online to make their own social networking site.
So, things haven`t been off to a priority terry gangbusters sort of start. But as "Forbes" points out today, the new company is also making it unusual contingency plans when it comes to how it`s businesses going to go in the years to come. And what would usually be a fairly boiler plate, boring filing with the Securities and Exchange Commission, this public company which is going to acquire Trump`s new media company, they outline what would happen if there, quote, material destructive event were to occur in this new venture.
Quote: In order to maximize business continuity and to minimize, mitigate, or eliminate any negative impact on the company from the material disruptive event, the company`s principal ownership shall be structured in such a way to eliminate the need for reconstructing of ownership were a material disruptive event to occur.
Now the company principle here is Donald Trump. And the definition of a material disruptive event is this, quote, a material disruptive event means the occurrence of any of the following after the closing. Number one, the company principal, Trump, announces that he is running for a public office, or, number two, the company principal, Trump, is personally convicted of a felony criminal offense.
I`m just saying. You know, to the extent that there are red flags visible from a mile or so. The company is preparing for anything. Trump 2024, we factor that in. Trump getting personally convicted of a criminal felony from one of the several ongoing investigations he`s facing, we bake that into the cake.
Read the fine print very, very carefully on Trump`s new ventures.
We`ll be right back.
MADDOW: -- after we get going and we`ll be there until the cows tell us they don`t actually want to come home, anyway.
I`ll see you tomorrow night.
Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL".
Good evening, Lawrence.