Welcome to the Al Franken podcast.

This week I got something of a topical show.

Most of our podcasts are evergreen.

They have a long shelf life.

They're not tied to the events of the day.

For example, last week we had Maria Teresa Kumar from Voto Latino on and she talked about immigration and voter suppression. And

those things will be kind of topical for a long time, unfortunately, I think. But today,

the subject is so urgent, and the subject is

the House of Representatives, how it's dealing with what is or isn't a constitutional crisis,

and to me it is. I have two guests today, Daniel Lithwick, a brilliant lawyer who writes about the courts for

slate. I was on the Judiciary Committee in the Senate. And my first week in the body, I was asking

questions of now Justice Sonia Sotomayor in her confirmation hearing, and I made the argument that the Roberts

Court, far from being an umpire, calling balls and strikes, it was an activist court. Now you hear

that all the time. But I was kind of the first to make that argument, at least in a Supreme Court confirmation hearing,

and here is what Dahlia Lithwick wrote for Slate about my questioning.

Some of the only questioning along those lines came from Senator Al Franken,

who made Sotomayor very uncomfortable as he grilled her on the Roberts

court's tendency to overreach. In this term's Voting Rights Act case, the court came close to

striking down an act of Congress, and in an age discrimination case, it decided an issue

that was never briefed.

Franken politely asked Sotomayor, how often have you decided a case on an argument or a question

that the parties have not briefed? He was wondering whether that constituted judicial activism.

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