Republicans v. Google, Musk’s Twitter Plans, and Guest Dahlia Lithwick

[Podcast Intro: "Pivot from New York Magazine and the Vox Media Podcast Network"]

Kara Swisher: Hi, everyone. This is Pivot from New York Magazine and the Vox Media Podcast Network. I'm Kara Swisher.

Scott Galloway: And I'm Scott Galloway. Where are you, Scott?

Kara Swisher: We're both in hotels. Yeah, I'm at the Encore Hotel and Casino, and that's not the unusual part. It's in Boston.

Scott Galloway: What? I'm in Boston. Boston has a casino, an Encore casino, which I did not know. It feels very strange to be here. I'm overlooking what appears to be an old coal plant that has a windmill in front of it that's not working. So I'm sure the coal plant is working, but the windmill is not. Where are you, Kara?

Kara Swisher: I'm in Los Angeles area. A friend of mine runs a thing for women called Makers, and she really wanted me to come. She does amazing work around women's events, so I said I would attend.

Scott Galloway: Jeez, hold on. Were you just... wait, you were in San Francisco, and then you came back to New York, and now you're back in L.A.?

Kara Swisher: No, yes, yes, yes. And we're coming to New York this weekend. The family is, yeah, that's right.

Scott Galloway: That's right. Staying at the Galloway's, wrecking the place.

Kara Swisher: The whole family's going to stay there. That's right. I show up, the garage is on fire, and the dog is pregnant.

Scott Galloway: Yes, that is true. There's no garage or dog.

Kara Swisher: Anyway, I'm just here, and then I'll be back in D.C. to go to New York with my family. And then, of course, Halloween. What are you dressing up as?

Scott Galloway: I'm going to do Ted Lasso this year. Or Deadpool. What are you doing?

Kara Swisher: Oh, Deadpool would be good. Deadpool would be good for you. Why don't you do that?

Scott Galloway: Yeah. You'd look good. Yeah, I'm trying to do Deadpool.

Kara Swisher: I don't dress up for Halloween. I just don't go as Kara Swisher. But my lovely daughter, I got her an Anna costume and I made Amanda put on an Elsa costume for Frozen. She also has a giraffe costume. Not Amanda. Clara. Yeah. So we're doing it up. I put up all the Halloween decorations. I'm very excited for Halloween. I like handing out candy. I don't like costumes, Scott.

Scott Galloway: So as we tape this, it's Monday, which means there's a new prime minister in Britain. Rishi Sunak will be the first prime minister of Asian descent. And if he makes the rest of the year, he'd be the second longest serving prime minister of 2022 behind Boris Johnson and ahead of Liz Truss. Boris Johnson made an attempt to get back in. It didn't bojo. Did not work. They realized the disaster walking toward them in the form of an unmade bed and did not do it. Man, it's crazy what's going on there. How's everybody feeling in England? I mean, you're not there right now.

Kara Swisher: I think, I don't know. I think they're fine. I'm really excited about that. He strikes me as, at least a little I've read about them, as this species that is almost extinct called a moderate.

Scott Galloway: And the thing that's really exciting, in addition to being the first person of color to serve as prime minister, the most exciting thing, he's 42.

Kara Swisher: Yeah, he's young.

Scott Galloway: And I'm a big believer that we need churn and we need fresh ideas. In the United States, our Senate majority leader is 80. Our Senate minority leader is 71. If Joe Biden is reelected, Kara, when he leaves the West Lawn for the last time in his second term in Marine One, he will be 86, which I think is ridiculous. And by the way, an obese 82-year-old, if Trump is elected, would not be much better. So I think in the U.S., we have the oldest batch of leaders in the world.

Kara Swisher: We do. And as a representative democracy, when 50 percent of your population is under the age of 38, occasionally you need someone that doesn't look like the Walking Dead or Golden Girls.

Scott Galloway: Well, they've been trying. They just didn't win.

Kara Swisher: Listen, this is the voters. This is up to vote. Young voters have to vote. Like they go on and on and they bang on and on.

Scott Galloway: No, it's not. Come on. We had Pete Buttigieg. They could have picked on. Ninety five percent reelection for the incumbent. When your average age of your elected representatives is 62, our electoral system vastly favors the incumbent. And every year, Americans' leadership becomes older and less representative of our democracy because of the favor to incumbents.

Kara Swisher: This is true. But there were candidates for both parties that were younger, just didn't win. Didn't win for the president, at least. Nobody knew can win. That's my point.

Scott Galloway: Oh, OK. All right. You don't think even for the presidential candidate. We've had lots of young presidents. We don't have Kennedy. Barack Obama was young. And in my view, I just I got some shit I put out of post called Churn. You know, I'm now being called an ist. I'm an ageist. I'm like, well, OK, biology is ageist. And it is nuts that this many people that are this old. And what do you know? Young people's percentage of wealth is registered as a percentage of their GDP has been cut in half in the last 40 years. What do you know? The greatest transfer in the history of mankind economically is from young people in the United States to the wealthiest cohort in history, old people in the form of Social Security. And we act like it's a crime against humanity to even begin talking about means testing for Social Security. Young people do not have robust representation because our entire system totally favors the incumbent. We need more churn. Anyways, there's my TED talk.

Kara Swisher: This is true. Rage, rage, Scott, against the dying of the light.

Scott Galloway: That's what I said. Here at the encore in Boston. I had a lovely, I saw Nancy Pelosi this weekend on, I was on Face the Nation on CBS, and she was as lively as ever, I'll tell you that.

Kara Swisher: She was looking good, lively. What was she wearing?

Scott Galloway: She just looked fabulous. A purple suit. It was so fantastic. She really looked fantastic. I'm not going to even use the word spry because she seemed fantastic looking. That's a bad word to use for older people. Anyway, she was very lively. She says they're going to win. I didn't agree with her. But we'll see what happens in the upcoming elections.

Kara Swisher: Anyway, today, hard times are ahead for Snap and Twitter. Also, the GOP tries to score some political wins against Google and will speak with author Dahlia Lithwick about the women who fought the Trump agenda in court and won. But first, Amazon is getting into home insurance in the UK, which is something we talked about. The Amazon insurance store will show users quotes from local providers. Amazon will get a commission from sales by what their partners receive. We've talked about them getting into finance. This is sort of a lead generation business, really, which a lot of those insurance providers are when you have an insurance salesperson. What do you think about that? You think more of that? They're going to do it themselves, correct, at some point?

Scott Galloway: Well, if I had to do it all over again, I'd either be a Navy SEAL or a Broadway dancer. And I definitely, I wouldn't have two families. I'd have three just to make things more interesting. But I would also go into what is the best business in the world because it plays on fears and it has regulatory capture, and that is the insurance industry. And I've said for a long time, if you meet someone at a conference and they're modestly, you know, kind of 105 IQ and they make $600,000 a year, chances are they're in insurance. Insurance plays on kind of plays to our worst instincts. It's the best business in the world. Berkshire Hathaway isn't a hedge fund. It's an insurance company. And if you think about it, this is a great idea. I apologize for the preamble. And the reason why is insurance is largely a business that only offers two things. Some sort of security around the price you're paying. Because if I were to ask you what would a car go for or what should this hotel go for, you could give me a fairly tight confidence interval around what it should cost. If I said to you, Kara, you need life or home or fire insurance, you just literally most people just have no idea.

Kara Swisher: Yeah, I have a number, but go ahead. You would know. I spend a lot of time thinking about insurance. Most people don't need a brand like Amazon to say, all right, you don't have time to price compare. They have so much trust around pricing. And then the only other value add you need is that when you need insurance, they're going to be there. And Amazon is the most trusted brand in the world. And they have interface. They're great at scale. So they're going into the U.K. market. But I think the financialization or Amazon going into financial services, I think this is a big one. I think it's a great idea for them. What do you think, Kara?

Kara Swisher: Yeah, I think they're testing it out. I think they're testing it out. And then they'll do insurance themselves at some point. There's a whole kinds of regulatory scrutiny they're going to get for that. But it makes sense. They have a lot of information about you. I'm still surprised they haven't gotten very, very deeply into finance yet. But they've got a lot, they've got a broad landscape of choices. They don't need to do lots of things badly. They need to do just a few things really well. But it would seem that financial services, I think they're just sort of waiting it out and looking around and experimenting here and there. And that's what this is. And speaking of big tech breaking into the home market, U.S. Apple stores are selling external door locks. I was just in a story. So the Level Lock Plus, which was first announced in 2021, can be open with an Apple Watch or iPhone. We'll have options to automate when the door is locked and to share digital keys with friends. The system will cost more than $300. This is an area, I have had all the locks. There were a lot of startups in this area, and I installed various things. It's a little down Amazon's alley with Amazon Ring, which is the company they bought. everything you can do with your iPhone or your watch is what this is about. And that makes sense. I have an automatic lock on, I have a regular lock and then an automated lock on my thing, but it's one of those push button ones. And I certainly would use it if it opened with my Apple Watch or iPhone.

Scott Galloway: I think the first sign that you've achieved some level of success is you don't have keys. I don't own keys. Do you have keys?

Kara Swisher: I have no keys.

Scott Galloway: I think they're ridiculous. As I told you, I don't carry my wallet very much anymore because I lose it all the time. And way before I was old, like you age-ist people talk about, I use my iPhone for almost everything I can or my watch. So sure. I think this is a great idea because I'll give you an example. I'm at this hotel and I get my anxiety level goes up every time I go back to the hotel room for a second time because I assume that that little plastic thing will have been demagnetized. And I'll have to go, you know, several miles on a death march to get to get another key. So the idea of just taking keys, keys to your phone, I've never understood. So they did away with hotel checkout about 10 years ago. I don't understand why you check in. You should just get a key on your phone with the room number.

Kara Swisher: Well, some hotels do that. It's all on your phone. Everything that can be on your phone probably should be on your phone or on a device that's linked to you of some sort.

Scott Galloway: Yeah, I just even bought a new wallet over the weekend, and it was much smaller because I'm like, all I really need is my one credit card and my driver's license. I'm not even sure I need that anymore.

Kara Swisher: Yeah, you can put driver's license in some states. I was noticing with the new iPhone software, it's not every state, but you can add to that wallet your driver's license. I was trying to see if my state was in it, and I thought, oh, this would be good, instead of, like, taking a picture that most people do, which is very dangerous to do. It's a great idea.

Scott Galloway: Utility. I've always said that things that I hate most in my life, because I have a pretty charmed life, are shoelaces, passwords, and keys. And I've managed to eliminate all keys from my life. The next thing is passwords. And, you know, I'm going to be one of those old people that just has loafers. but with no shoelaces. But yeah, this makes just a ton of sense. And like you're coming to my place this weekend. I should just be able to send you a key, right? Or not, or not.

Kara Swisher: Yes. They know me and they love the Swisscatses. They do. They're so friendly of people. But can I just say something? You don't like to have anything on, right? That kind of thing. You just like to walk into things constantly. It has a toddler aspect to it. And by the way, all of Scott's passwords, for anyone who wants to know, is ILoveCaro1, just so you know all of his passwords. I agree with you. I think this is smart. I mean, both of these companies are moving into areas just sort of like seeping out where it makes sense. And they're both very smart and strategic about it. And so you're going to see, I think Amazon and Apple are going to dominate a lot of things going forward and possibly Google. But I think Google's missed a step, and we'll talk more about that another day. But I do think they've really, Google started this idea of helping you everywhere, but I think Apple and Amazon have become the de facto pair that I use most among large companies. I use a lot of small companies. And also, by the way, speaking of money, the IRS is raising 401k and IRA contribution limits because of inflation. Limits will be raised by 9.8% for 2023, the biggest jump in history. The contribution limit amounts to up to $2,000 of 401ks and $500 in IRAs. The IRS also announced higher income tax brackets for 2023. Okay, that's a good idea. It's good for savings, et cetera, et cetera.

Scott Galloway: Yeah, I'm all for people being able to save money in a tax-advantaged way. I think it's great.

Kara Swisher: But here's something inside. I was just reading a story that a lot of the bond markets are so down. Apple and other companies like Amazon have lots of cash, keep about half their money in bonds, And they've lost enormous amounts of money, like $11 billion in Apple's case, by savings, you know, because they hold all this money all the time. An enormous amount of it. It's kind of crazy. Everyone's always like, when are they going to buy something? But they've really gotten their head handed, like just like the rest of us gotten their head handed to them in the markets because there's nowhere to put the money that is safe during an inflationary period.

Scott Galloway: It's sort of a different talk show, but I'm a big fan of this legislation that imposes taxes on stock buybacks because what you've had is slowly but surely our R&D and forward-leaning growth investments have declined because companies just buy back stock. That's right. Because there's always pressure to keep your stock up. So you want to maintain all of this, you know, dry powder so you can buy back stock if your stock starts to go down. And again, it's we're studying the wrong test. And America just benefits a lot more when companies are motivated and incentivized to build a plant to hire more people to try and invest in IP and R&D. So I think that anything I mean this is a kind of a backdoor way of saying I think stock buybacks are out of control and bad.

Kara Swisher: We should become accountants or investment advisors, don't you think?

Scott Galloway: We should buy Twitter.

Kara Swisher: We should buy Twitter. Yes. And speaking of which, let's get to our big story. Elon Musk wants fewer characters at Twitter. Musk has reportedly told investors that he plans to lay off 75% of Twitter's staff. And that's not funny. It's layoffs. I shouldn't make jokes. And he still plans to double revenue within three years, probably by firing people and saving that money and allow Donald Trump back on the platform. As we have talked about, Twitter executives sent a memo last week telling staff there are no plans for layoffs, but they're going to be gone. They're going to take the golden parachute out of the place. A lot of people feel this is not a very good thing to announce right now, but maybe he's scaring people or who knows. You know, maybe that's what Twitter is like. We won't fire you. Elon will fire you. This is the week people expect him to close the deal because the deadline is 5 p.m. on Friday. He'll probably do it at 4.45, knowing him.

Scott Galloway: Or 4.20.

Kara Swisher: 4.20. Oh, you're right. He'll do it at 4.20 on Friday.

Scott Galloway: Well, there's two things here. There's one is from business strategy, and then there's communication strategy. I think it's a strategy. I think that likely, and you're not supposed to talk about layoffs in the context. And let me first say, you know, thoughts and prayers. And obviously this is people's lives, but I think it's probably the right strategy because I have a difficult time understanding, given the lack of innovation at Twitter, what 7,000 people are doing.

Kara Swisher: 7,500, but go ahead.

Scott Galloway: 7,500. Also, I've been spending a lot of time with someone who's contemplating starting kind of a news-based social network. And the amount of innovation that is available from the cloud now versus what used to require a lot of programmers is just staggering. So I think it's actually quite possible that you could have a reasonable facsimile of Twitter with 2,000 people versus 7,500. Now, having said that, stupidest PR move, stupid business communication move of the last, I don't know, the last 48 hours of Milan. When you signal that you're going to lay off 75% of your workforce, what effectively happens is you lose the 25% you wanted to keep because they're the first ones to leave because they have the most options and they don't want to stick around for his version of Russian roulette. So you don't, you absolutely don't signal that. You might do it and you do it in one fell swoop and you try to be as generous with people as possible. This is what's going on on a lot of boards in private companies. It's like, it's just amazing. And it happens over and over. It's these different stages of denial. And the first is denial. Oh, no, the market's going to rip back. We're fine. Well, OK, let's do a hiring freeze. OK, we grew in SG&A and our business is down 30%. Let's do a layoff. OK, we didn't go deep enough. Let's do a second layoff. And it sounds rapacious, and it is a little bit. But when you go, when you do a layoff, you should go deeper than you want. Because typically, there's a certain level of denial about how bad the business is actually corrected. And two, when you grow a business as fast as many of these businesses have grown them, they've been stuffing so many calories down their throat, and this isn't as true as much for Twitter as its growth companies, that it builds up huge pockets of fat. I believe it is impossible to scale a company remotely 100% a year without creating a lack of accountability. So we don't talk about it because it's not aspirational. But I think a well-managed layoff, what I call a strategic firing, can actually be very good for a company and shareholders. But signaling we're going to lay off three out of four, that means anyone who doesn't think, oh, he's going to love me or whatever, is trying to find another job. And who's going to find other jobs before he even shows up and figures out where the bathroom is? The most talented.

Kara Swisher: So he did say last May that he wanted to increase Twitter's headcount, which was interesting, maybe a different 3,000 people or different. It's a lot of people to put on the market, though. So let's play a clip. You talked about this from May of this year. This recession is going to be really bad, not only for white-collar workers, but white Patagonia-vested workers. And that is information age workers. So you are correct. This is happening all over the place, not just at Twitter. I think he's very determined to get rid of people, clean it out. It does make sense on some level, is just clean it out. The thing is, he's running a service at the same time. And whether he can achieve his goals by just cutting staff, he's got a lot of goals. add payments, add more video, encrypt DMs, maybe make Twitter into a protocol, verify all human users, and make a super app. That is a lot for Elon to do. That is a lot. So we'll see if he can do that with the staff. He certainly doesn't have to have the staff. I think it's an over, most people, the take on Twitter is it's way too overhired, and they should have been much more efficient with the amount of people they had, better people. So he's going to, who knows what he's going to do? Who's going to do, what's he going to do this weekend after he buys it? What's the first thing you would do?

Scott Galloway: I don't know. What would be the first thing? Oh, now that he's announced this, let me ask you this. When you announce three out of four of you are not going to have a job, how motivating is that?

Kara Swisher: Well, he didn't announce it. It leaked. He didn't announce it.

Scott Galloway: Well, it was set somewhere. Anyways, let me put it this way. How much work do you think is getting done at Twitter right now?

Kara Swisher: None. Zero. Literally zero. Everybody's like zero. So he needs to-

Scott Galloway: But it wasn't getting done before.

Kara Swisher: I wouldn't say it was getting done before. There weren't a lot of innovations there. But why would you even show up to work right now? And so I think he needs to close on Friday and over the weekend, he needs to make the announcement and get to the next thing, whatever that looks like. But again, it's the knock-on effect that's more interesting that people aren't thinking about. You know what just happened here? 50% of Pinterest and Snap employees just got laid off. Musk has come in and said the second tier, the non-sub-scale social media companies are hugely overstaffed. People think Elon Musk is a genius. Shareholders think he's right with everything he does. He's going to fire three quarters of the staff. Snap's off 87% this year. Half the people at Snap and Pinterest have lost their jobs. They just don't know it yet.

Kara Swisher: Yeah, I would agree. I would agree. It's going to be a tough time for that and also for all the various places they've moved. Interestingly, there's also one more snafu. The Twitter deal could be the subject of a national security review. Officials in the Biden administration may take a closer look at several Musk's ventures after he posted tweets with Russian talking points, and he continues to do so. There's also concern over his threat to end Starlink support to Ukraine. You know, he has very intimate relationship with the government in terms of SpaceX, and it launches spy satellites for the Pentagon. I assume they were vetted then. I think they probably feel a little worried about his links to China. That's what I've heard from national security people. The Biden administration recently banned sales of semiconductor parts to Chinese businesses on national security grounds. He has a very tight relationship with the Chinese because he has factories there. You know, I don't know if this will slow it down, but it'll certainly, it should be looked at. You know, my mom called me. They're like, she's like, they're trying to stop Elon. Now she's an Elon fan. It's so funny because she thought he was an idiot before. He's an Elon fan?

Scott Galloway: Yeah, whatever. It's because Fox News is. So just whatever. Like literally, it's like a 180 degree things.

Kara Swisher: Nonetheless, I was like, no, they're just doing a regular national security thing. I said, would you like, say, the Russians to own Fox News?

Scott Galloway: Oh, they already kind of do.

Kara Swisher: No, I'm joking, joking, allegedly. Joking. I think that's the, and she was like, well, no. And I was like, yeah, that's the same thing. They're just looking into ownership of big communications things. I think this is overdue. And, I mean, the thing I think that inspired it, for a hot moment, Twitter stock went down because I thought, oh, they might get in the way of the Twitter deal. I don't think that's what inspired this. I think what inspired this is when we woke up and realized that battlefield communications can be turned off or on based on someone's blood sugar level who's not elected.

Scott Galloway: In addition to point you brought up, Elon is like a straight talker, a straight shooter, not afraid of anyone in America. It says profane, profane things, shitposts, because he's a straight talker. Doesn't say anything about China.

Kara Swisher: Well, no, he does. They should annex Taiwan. He did say that, I think, I believe. They should annex Taiwan. Okay. So, well, we should get out of their way. Okay, that's not saying something about China. That's parroting CCP talking points. That's correct. He has been doing that, yeah.

Scott Galloway: Okay, so here we have a guy, that's a new data point, that parrots Chinese and Russian talking points, which is his right, but also has tremendous power and authority over technology that could determine the outcome of a war. I think this is overdue. I think the Department of Defense, he's not even the culpable party here. It's the Department of Defense that managed to put an individual in this position. So I think this is overdue.

Kara Swisher: Just so you know, in October, Musk said he believed Taiwan should strike a, quote, reasonably paddling agreement with Beijing to become a special administrative zone of China, a la Hong Kong. That's gone so well.

Scott Galloway: Yeah.

Kara Swisher: He's essentially saying unification. Thank you, Xi, for opening my factory. That is just such extraordinary propaganda. No wonder they're looking at him.

Scott Galloway: No wonder they're looking at him. Of bullshit. You know what is, the thing that made the invasion, what felt like was going to be a pending invasion of Taiwan, less and less likely, is the courage of the Ukrainian army backed by the EU and NATO.

Kara Swisher: Yep. It's definitely, it's a pause. They're still going to try it. They're still going to try it. despite Nancy Pelosi going there in fantastic shoes. In a pink pantsuit. She looked fabulous.

Scott Galloway: Yes. He is carrying water for two very autocratic regimes. They are in his business interest to do so. He may think it to. I don't know. But they're in his business interest. This is no surprise. And it's no surprise the government is looking at him. It seems basic. It seems very basic.

Kara Swisher: Anyway, Scott, let's go on a quick break. When we come back, Republicans search for an enemy in Google. And we'll speak with friend of Pivot, Dahlia Lithwick, about women, the law and the Supreme Court.

[Break]

Kara Swisher: Scott, we're back. Republicans think they found an enemy in Google. Google's finally getting attention that Mark Zuckerberg used to have. As midterm selection approached, the GOP is launching fresh attacks at the tech giant in Texas. Attorney General Ken Paxton, who's been very active, is suing Google for allegedly capturing facial and voice data of users via Google Photos and Google Nest. Google says some of these features are opt-in. Meanwhile, the Republican National Committee is also suing Google. It claims that Gmail is filtering out campaign emails from the RNC. Google launched a program last month to address the very problem the RNC has chosen not to enroll in it. They're just using Google as a, believe me, some of the stuff, all these companies have needed to be looked at, but this is a political attempt to rile up the base. The GOP claims that Gmail is more likely to label Republican fundraising emails as spam, and they cite a study from North Carolina. But the study also suggests that users are marking them as spam. Another study found that Google filtered email across the political spectrum with no clear bias. You know, the study that Republicans are citing also found that Outlook and Yahoo are more likely to filter out emails from Democrats. This is not what we need to go for them on because it's not true. You need to go on privacy, et cetera, et cetera. Anyway, what do you think about all this?

Kara Swisher: You summarize it nicely. There needs to be systemic change around these issues. And when you have AGs going after them and saying, "Oh, you're suppressing our voice," that's the gift of Google. Because what they can do is they can create a lot of noise around this. They want to publicize it and say, "See, the people trying to regulate us just make no sense." And what I'll call the common sense legitimate attempts to regulate them lose momentum and public support because these efforts are seen as just so politically motivated.

Scott Galloway: This is sort of a light, or the Coke Light version, of the governor of South Dakota—is it Kristi Noem?—putting in place legislation to protect girls' sports against the wave of parents and transgender athletes. And then someone actually found out they couldn't find a case of a transgender athlete demanding to play. They couldn't find a single instance.

Kara Swisher: Yes. Because Virginia, all over the place. Yes.

Scott Galloway: So it was clear she said, "I know I'm going to waste time and resources to demonize a group that is vulnerable, to rile up people," when there's absolutely no reason or cause for it. And that's what in many of these instances, the legislation doesn't make any sense. They're not angry at tech. They're trying to go to their go-to of, "Oh, we're being silenced and these firms are against us."

Kara Swisher: Yeah, same thing. It does nothing but undercut the legitimate efforts for systemic change. So I find this stuff just...

Scott Galloway: That is correct. If they were younger, this wouldn't happen, Kara.

Kara Swisher: That's true. We need a national privacy bill, sirs. We need to do all kinds of things that we push for. I have talked about this a lot: the Republicans are not committed to real change of the things they talk about. Neither are Democrats. Nobody's voted for them because they just don't want to do the actual difficult work of bipartisan legislation around privacy, around antitrust, around smart antitrust law—not kooky antitrust law. Ken Paxton has a case also. But they want to do this kind of stuff. This is just like, it's so stupid. It's so easily provably wrong. It's a waste of time. And it's just to rattle the cages of tech and they don't have to do the actual changes they need to make. Thank you. That is my rant. You're wasting our time, Republicans. They don't want to do the actual work.

Scott Galloway: And also, our system of checks and balances, this type of hard work, takes years to pass. And you know why they don't want to do this—the stuff that will take effect in years? Because they're going to be dead, Kara, because they're so old. They're going to be dead. These people don't even buy green bananas anymore. They're so old and their ideas are so stale.

Kara Swisher: I just bought green bananas the other day. I'm feeling young.

Scott Galloway: Leaning into my ageism.

Kara Swisher: I know you really are. It's fine. The bipartisan legislation to strengthen antitrust laws by Senator Klobuchar is supposedly going to pass in the lame duck after the election, allegedly. We'll see. They've got objections to that one, too, and there's some issues in it. But we'll see if this passes. This is by Chuck Grassley—speaking of older and still fetching. Not really—and Amy Klobuchar. I don't know how old she is.

Scott Galloway: How old is Amy Klobuchar? She seems also spry.

Kara Swisher: Oh, my God. She's literally a baby. She's only like 91 compared to the rest of her colleagues.

Scott Galloway: No, she's 62.

Kara Swisher: She's 62?

Scott Galloway: She's 62. She looks really good for 62.

Kara Swisher: I know. I know. What age would you put it at? We're going to get to women in a second. But let me just, what age would you put it at? What would be the top age? 70? For term limits?

Scott Galloway: Yeah. I think you should have both. No one needs to be in Senate longer than 18 years or in Congress 20 years. And if you're going to be in office, I mean, start at 75. Christ, even start at 80. But I mean, we just don't want to talk about this because it's the midst of an election. Do you think it's a good idea to have an 86-year-old Joe Biden in the office? I know it might be the least bad choice, or a 72-year-old obese Trump?

Kara Swisher: No, 82. I'm sorry, 82.

Scott Galloway: I mean, really? That's the guy we're going to put on a plane to get to Singapore to try and rally allies to defend Taiwan overnight? And I mean, I think either party hates these choices behind the scenes. They have to sort of do fealty to both of them in a lot of ways, much more so Trump, because he could make a lot of trouble. He certainly is loud enough for an old guy.

Kara Swisher: In any case, let's bring in a friend of Pivot. Dahlia Lithwick is a senior editor at Slate, where she hosts the Amicus podcast. She's also the author of *Lady Justice: Women, the Law, and the Battle to Save America*, about female-led efforts to fight the Trump agenda, largely by old white men, speaking of which. Welcome, Dahlia Lithwick. Thank you for coming on. Let's talk about your book. It's meant to be a retrospective of women in the legal system during the Trump era. Talk about how the Dobbs decision obviously changed the scope of the book.

Dahlia Lithwick: Yeah, I mean, I think the conceit was to remind folks how Donald Trump was actually the losingest president in the history of presidents. He lost so many huge lawsuits. And often those were lawsuits that were kind of wrangled and conceived by women and women lawyers. And so it started as a way of saying, actually, we win in the courts a lot. And when we organize, we win at the ballot box a lot. And it was meant to be a way of talking about the very recent past. But you're quite right, it turned on a dime after Dobbs, where it a little bit became manifest that sometimes we lose in the courts a lot. And at that point, it became something of a roadmap to think about how to harness the power of law, the power of legislation, the power of organizing, the power of something beyond just putting our bodies in the streets the way you're seeing in Iran, because we actually have access to a lane in this country of meaningful power. And so I think it became a way to think about, okay, that was a catastrophic loss for women, but here's how we dig out. And so it became, I want to say a blueprint, but the book is very much a pink book.

Kara Swisher: So when you're talking about that, the idea of leading up to Dobbs, I mean, Trump basically weaponized misogyny during his campaign against Hillary Clinton, who herself is a lawyer. Was that the lead up to it? Or do you think it's a much longer term thing? And how did it affect women in the legal world?

Dahlia Lithwick: It's funny. I mean, the book starts with chants of "Lock Her Up" directed at Hillary Clinton in the campaign. And I think we thought it was just rhetoric, right? And then we realized, oh, this is not, in fact, just rhetoric. He actually wants to put her in jail. And then those "Lock Her Up" chants started to be directed at AOC and Christine Blasey Ford and any woman in a public space, E. Jean Carroll, who he wanted to lock up. And so I think you're exactly right that there's a way in which what seemed like it was rhetorical on par with "Iron My Shirts" became, especially post-Dobbs, where you're seeing women actually physically locked up in Alabama, in Texas, in Oklahoma for fetal endangerment. And so I think you're right. I think it started as a mechanism of just rhetorically expressing that women in public places should be investigated and incarcerated. And then weirdly, post-Dobbs, it became true. And we now live in a world in which, if you have frozen eggs or if you have what looks to the state to be a suspicious miscarriage, then "lock her up" is this creed that is very real. And so I think what I wanted to say in the book is that women remember that in their bones—that it wasn't so very long ago, and for centuries if not millennia, the power of law was used to do horrific violence to women. We take it for granted that it's an engine of equality and dignity and fairness, but not so long ago it was what kept us from voting or having our own credit cards. And so I think one of the things that I wanted to argue is that the women in the book that I profiled, somewhere in their muscle memory, they knew that. They knew that the law can be both an instrument of freedom and dignity and equality, and also it can be weaponized to incarcerate and worse. And so they pivoted really quickly because I think somewhere in their minds they knew that "lock her up" isn't an idle threat.

Kara Swisher: No, not at all. Scott?

Scott Galloway: I think your work's important because the normalization of misogyny and now anti-Semitism is just something we never thought we'd encounter. We took for granted that those days were behind us, and they're not. The point of pushback where I'd want to hear more from you is that women remember in their bones this kind of thing is going on. I would argue the progressives and people that love a free America remember this, and that there are a lot of women who are far right who are being elected to positions of power in their supreme courts and states that are just as dangerous—and maybe even more than some of the men—because they come with a veneer that they understand women's rights just because they have ovaries. So isn't the battle really for people who value women's rights and don't want to go back? And we're seeing people from both genders as a threat. And I would argue the Republicans have done a much better job than us of playing the long game. Like, what do you see what's going on in Wisconsin and stacking their courts with people who promote policies that, amongst other things, are just anti-women? I mean, isn't the call coming from inside the house? Don't we have a problem with both genders right now?

Dahlia Lithwick: I think that's right, and I'm glad you asked it. And I will say, the book in some ways doesn't account for the Amy Coney Barretts and the Sidney Powells and the Eileen Cannons of the world. But I think that's where you turn to Margaret Atwood in some sense. And you think that the world sorts itself out into women who fight the patriarchy because they understand that it does violence to them, and women who align themselves with the patriarchy because they think that that's the way out. And I think what you're describing, you're absolutely descriptively correct that there are an enormous number of women who have aligned themselves—whether it's through QAnon, whether it's through some other kind of "do your own research" way of thinking about the world—aligned themselves with authoritarianism and fascism and misogyny. I think that that's been a tactical decision that women have made from the outset, right? I mean, at every witch burning, there was a witch and there was also...

Scott Galloway: Yeah, KKK, all of it.

Dahlia Lithwick: Yeah. So I think the other thing that I want to say in response to that is that one of the things that happened post-Dobbs, in my view, having covered the court for 22 years, is that a lot of white women looked around and said, "How can this happen in America? How could we lose reproductive rights after 50 years?" And a lot of black women said, "I don't know what country you've been living in, but if you were a black or brown woman or an immigrant or a person of color, you never really had a meaningful right to abortion post-Roe and certainly after the Hyde Amendment." And so there has been, I think, a moment that's akin to what came after George Floyd's death, murder, which is a leveling, an understanding that, oh, life as I experienced it as a white woman who could just jump on a flight and go to California and get an abortion is not, in fact, how life was lived on the ground if you were in Texas or Tennessee. And I don't think that's a terrible thing to happen. I think it's terrible that that sense of "oh, wait, this isn't in my bones because my bones could always go to New York and get an abortion," but it is in the bones of the republic.

Kara Swisher: So when you're looking at Roe v. Wade and Dobbs, they're both decided on grounds of privacy. If we're going to protect women's rights, do we need a legal approach beyond privacy? Should we simply codify the right to bodily autonomy? What is the strategy now, especially going into this election where abortion seems to have dropped down on the list of importance to voters?

Dahlia Lithwick: Well, what I would have said to you after Dobbs came down is that you could take Sam Alito at his word and do this state by state. Except almost instantly we have Lindsey Graham promising to do a federal ban. And now we're seeing federal personhood bans, right? Life beginning in conception and ensoulment, which is, we should note, a theological, not a legal notion. So I think it's not going to be enough to do it state by state. And I think that it's absolutely true that we have weapons that we haven't deployed, whether it's the ERA, whether it's using, as you're suggesting, the Equal Protection Clause and the idea that women's economic and dignitary equality requires this. But I'm always a little bit mindful that when we go back and say the way Justice Ginsburg used to say, "Oh, if we'd done this under equality and not under privacy, maybe we'd be winning," we really misrepresent the force of the other side, which I'm pretty convinced would have batted away an equality argument just as quickly as it batted away a privacy argument. And maybe the last thing I would say, and I think this is important, is if you can remember a few weeks ago when Ketanji Brown Jackson, in her second day at the U.S. Supreme Court, started reading into the record the drafting and the reports around the drafting of the 14th Amendment, there's actually a really robust bodily autonomy, privacy, dignitary, substantive due process argument for abortion rights that we have given away on our side. We have ceded the argument.

Scott Galloway: That's my favorite amendment as a gay person. I love it. I carried around—I actually carried around—because everything is in there.

Dahlia Lithwick: And the fact that we've forgotten why it's there and the fact that, again, African-American women scholars for decades have been saying, "Oh, you know why the 14th Amendment gives you a right to abortion? Because if you were a freed slave, before that, the state could rape you. It could take your children from you. It could inviolate your marriage and say your marriage wasn't real." The 14th Amendment, the rights of privacy that you're talking about, bodily autonomy, family autonomy—those were meant to give formerly enslaved people the basic right to control their families and their bodies. That's, by the way, the right that people who don't want critical race theory taught in schools are citing. So I think it's really important to reclaim the 14th Amendment and to say if you do what Justice Jackson did and you read what the drafters wanted, this is precisely what they wanted.

Kara Swisher: What do you think then the legacy of Ruth Bader Ginsburg is? Because she did think the privacy argument was weak sauce. What is her legacy now?

Dahlia Lithwick: I think her legacy is that she took this as far as she could go as one person, right? And no human being, I think, did more to shore up ideas of gender equality as protected in the 14th Amendment. But yes, she would have said, "Let's do it as equality." And I think that the way that Justice Alito just made short shrift of the arguments about maternal health and economic opportunity and equality—didn't even address it—would go to her scorecard, which is this stuff matters and you made it go away. But I also think that Justice Ginsburg would say that this is not any one case. This is not any one Supreme Court justice. I think her entire life was dedicated to the proposition that these battles take decades, if not centuries. And we all were very complacent. I guess it goes back to Scott's point. We all thought that this was forever because Whole Women's Health and Casey and Roe were decided. And I think Justice Ginsburg would say if you think it comes down to one election, one court case, if you think it comes down to, in fact, blaming RBG for not retiring when Obama controlled the Senate, you're missing the point, which is that this is a war that takes generations. It's an uphill war because the Constitution was built to do violence to these ideas. And it's something that we're going to have to organize around and think about and vote on in like state races probably for the rest of our lives. So I think she'd be the first to say this isn't a trick. It's a sort of vocation and it's a lifetime labor.

Scott Galloway: I think where we get it wrong is we think that people are going to vote based on what offends them as opposed to what affects them. And I've just been shocked how low down the list choice or the threats to choice is playing in this election. I mean, we all just sort of thought—and to a certain extent hoped—that this is a bridge too far. We're going to win. Just, you know, everyone's going to freak out on this. Of the top issues currently driving voter choice for the midterm elections, abortion ranks fourth. So what I would ask you is, given that we want to be effective in addition to being right, what do you think the ask is for people who want an America that values people and their rights and is just really freaked out by this misogyny, realizing that the call of choice doesn't appear to be even in the top three issues right now? What do you think strategically we can do to get more like-minded people in office? I understand it's voting, but what's the issue? What's the framing? How do we be effective here?

Dahlia Lithwick: I think the framing goes back to that 14th Amendment bucket of interests, right? It's not just abortion. And we talk about it as just abortion at our peril. It is now birth control that's on the table. It's LGBTQ rights that's back on the table. It is, I truly believe, interracial marriage. In other words, the entire bucket of things that Clarence Thomas very helpfully in his concurrence in Dobbs said, "Oh, all these things are gone, too, if you do away with substantive due process and privacy." So I think we should be talking deeply about privacy and why privacy matters and what it means to have a country that is going to use both surveillance powers and the power of vigilantes, right, who can overhear a conversation at a diner and collect a bounty. So it is so much bigger than abortion. And I think it sweeps in. And we're seeing this: women in jail for miscarriages, women in jail for putting pills in the mail or accepting pills in the mail, people in jail for transporting someone across state lines. All that is coming. And so I think we've been myopic in thinking that this is about abortion. I think that the way to broaden the conversation is to say if you value the right to determine who you marry and how you raise your children and how their values are inculcated, that stuff is all on the table because that's what Justice Alito says was an imaginary right made out of cotton candy and whipped cream. And so we have to really put meat on the bones of that. And if we failed to do that—and I think we briefly did, right? We had Kansas, we had Michigan, we had Alaska. I think we briefly put meat on the bones of that. And then we agreed to get dragged into a conversation about gas prices. That's on us because this is huge.

Kara Swisher: Yeah, but we didn't agree. We just do. I mean, I think that's what it is. They don't think it's a bigger deal when it is. And that's the whole point is, one, they count on that. And two, they don't really like gay people. When all that stuff about gays came up, I'm like, they've never liked that. They wanted to wait to get rid of it. They're not dumb. They just wait quietly in the shadows until they have an opportunity, which is what they have now. Let me ask you, of all the feminist legal heroes you write about—Ruth Bader Ginsburg, Gloria Allred, Judge Jackson—who's the most important, not in history, but right now, among the many, if you're looking forward? These are, you know, I would assume Judge Jackson would be one of the key people, but who else is critical right now?

Dahlia Lithwick: The folks I'm looking at, it will not surprise you in the wake of the conversation we just had, are the Black women legal scholars like Dorothy Roberts, like Dorothy Brown, like Peggy Cooper Davis, like Michele Goodwin, Anita Hill, who I talk about. There are a whole host of women, and I start the book with Pauli Murray because she's one of them, who saw all this coming decades ago. And by the way, who wrote it and who meticulously chronicled where we were going. If you could criminalize women's bodies, if you could turn a woman's body into a crime scene, you could start to criminalize parenting, right? Dorothy Roberts has written about this so many times. I didn't learn about this stuff at law school. I didn't learn about the founding ideas around the 14th Amendment at law school. And so if I'm correct that we have ceded all those arguments to the other side and given up the idea that these are legal values we should be fighting for, then the people that I'm lifting up right now are the women who were like decades ago saying, "Oh, honey, it's coming and it's going to be at the hands of revanchist, theological white men, largely, who really do want to see us go back to the sort of witch burners of yore that Justice Alito cites in his opinion." So I look at them because I think they drew a map and we failed to see it. And I think it gets us out now.

Kara Swisher: For people who don't know, Pauli Murray was the first African-American to earn a JSD from Yale Law School. She founded the National Organization for Women during her life. She certainly was well known, but it's someone you write about in the book for people who don't know who she is. Amazing, amazing person. Dahlia, what role can the private sector play if you had an ask of CEOs whose employee base is understandably concerned? Is there a role for the private sector? What's the ask of CEOs?

Dahlia Lithwick: I mean, just remember a few years ago when Georgia passed what at the time was the most draconian abortion bill we'd ever seen. And what we saw initially was a whole bunch of private actors, including Hollywood, saying we won't film there, you may recall. A whole lot of people at least making noises about pulling out. There was some question, I should say tactically. I remember at the time Stacey Abrams said, "Oh my God, don't boycott Georgia because you hurt the most vulnerable workers there." But I do think that the absolute radio silence around Dobbs and the kind of corporate willingness to say, "Oh, we tried that once in Georgia. Now we've got a much more draconian regime that is going to affect half the states and we're doing nothing," is another way of kind of ceding ground. And so I think that it is effective at minimum to say we're going to make sure all of our employees can get birth control pills, all of our employees can get access to abortion medication. And I've heard so very little, including from universities, by the way, in affected states who have not made public statements in support of student health. So I think that maybe this is a perfectly circular answer to your first question. But I think we gave up this fight before it started. I think there was a way in which there was nowhere to locate it, not just in the Constitution, but in sort of the language of democracy. And so we decided that abortion was kind of a niche issue. It's not a niche issue. It affects every single person who can bear a child and every single person who loves a person who can bear a child. And so, again, I would say widen the aperture and say if you have employees who are going to be jailed for traveling interstate or jailed for a miscarriage that the state determines is hinky or forced to bleed out or go septic before an ER can intervene, and you're silent right now, then it is not at all clear to me when you're going to speak up.

Kara Swisher: They're not. Dahlia, I think they're exhausted. Trump has exhausted them on many issues, not just this one. And they, you know, look what happened to Florida with Disney. They're exhausted in terms of where they can draw the line. So they'd rather not, I think. That's my impression from talking to them.

Scott Galloway: I was just going to say, Dahlia, I think that's a really great insight, broadening the aperture and saying this isn't just about rights of choice. It's about interracial marriage. It's about pushing back on anything involving anti-Semitism. How on earth is Adidas still paying Kanye? But broadening it—at some point, this is all the same thing. And that is, at some point, they're coming for you. And I think that's a really strategic and intelligent way to frame the issue.

Dahlia Lithwick: In response to exhaustion, my answer is anytime either Adidas or the citizens of voting age give into exhaustion, Steve Bannon gets another pair of wings.

Scott Galloway: That's great.

Dahlia Lithwick: I agree. I just think that the point here is to exhaust and confuse. And I just think it is our choice to say we're going to let the forces of nihilism take over because we're too tired. That's on us.

Kara Swisher: Well, I agree. But they count on it. They absolutely. He says it. He says it. Flood the zone. Flood the zone. Keep flooding it until you're too exhausted to swim anymore. I think ultimately. Anyway, it's a very important book, *Lady Justice: Women, the Law, and the Battle to Save America*. And you can also find Dahlia Lithwick on Slate's Amicus podcast. Thank you so much, Dahlia.

Scott Galloway: Thank you for fighting the good fight, Dahlia.

Dahlia Lithwick: Oh, thanks for having me.

[Break]

Kara Swisher: All right, Scott, that was bracing. As a gay person, a gay marriage, my wife's Jewish. I like, worry. This is the first time in my life when I felt worried. I'm not being like a kooky liberal to do so, but oh man, gay parenting. It's all in there when you read them. And it's very, they're very clear about what they want, which is the end to it.

Scott Galloway: I don't think it's alarmist to draw parallels with 1930s Germany in the United States right now. The propaganda, the politicization of vulnerable groups.

Kara Swisher: Yeah.

Scott Galloway: Early 1930s Germany had a thriving gay community.

Kara Swisher: It did. Oh, I'm aware.

Scott Galloway: It was a global center of progressive thought.

Kara Swisher: Yeah.

Scott Galloway: And then the industrialization of the government and then an ability to rally the base by demonizing groups, whether it was gay people or gypsies or obviously Jews. And we're seeing it everywhere here. It's being normalized. I don't think it's unfair to say no. It could happen here. And if you look at the progression, if you look at how much things have changed in the last 24 months, and Dahlia's point that resignation and being bereft is not a strategy. It's not. You know, we have to push back on all of this in the harshest, crispest terms.

Kara Swisher: Well, that's why that's how they're doing the flooding of the zone. It's so confusing. It's so constantly, you're constantly treading water. And they count on that. See, Bannon's, I hate to say it, the great thinker on this kind of horrible, inhuman strategy. You have to pay attention to him. I listen to War Room because I know what he's doing. I have a very keen sense of what he's doing. Anyway, we'll see. On that note, one more quick break. We'll be back for predictions besides Cara moving to Canada. You have to listen to my interview today with Nouriel Roubini. He says get to Canada with a gun and a lot of water. That's his thing.

Scott Galloway: You interviewed Nouriel?

Kara Swisher: Yes.

Scott Galloway: And how was it? Other than he thinks the world's coming to an end economically, how was it?

Kara Swisher: He's like, "I don't like the name Dr. Doom." And then literally it's the doomiest thing I've ever published.

Scott Galloway: So what's your prediction? Doom.

Kara Swisher: Doom. All right. We'll be back for predictions in a second.

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Kara Swisher: Okay, Scott, let's hear a prediction that isn't Doom.

Scott Galloway: Well, okay, Doom Lite.

Kara Swisher: Okay, no.

Scott Galloway: Between Snap and Pinterest, there's 10,000 employees there. With the underperformance of their stock prices down between 70 and 90 percent, and with the guy who, regardless of what they say about him, everybody thinks it's just much smarter than everybody else, laying off six of the 8,000 people at Twitter, of the 10,000 employees at Snap and Pinterest, within 12 months, I think 5,000 will be gone. And this is a Patagonia vest recession. If you are willing to work in a restaurant or you're a tradesperson or you're a mechanic, if you're in the main street economy, you're just fine. But the part of the economy that has been the gift that keeps on giving in terms of employment growth for the last 13 years is about to get whack. So specifically bringing it down to two companies, you're going to see Twitter-like layoffs in the next 12 months of these terms.

Kara Swisher: All right. Well, that's a doom-y thing. You and Nouriel. Anyway, let me think of a happy one.

Scott Galloway: Black Adam made $140 million at the box office.

Kara Swisher: Okay. That's about it.

Scott Galloway: That's all I got.

Kara Swisher: Anyway, we want to hear from you. Listen up. We'll be doing a parenting episode, too. Speaking of, I'm very motivated on this topic because of so many children. But we really have to be fighting for their future. Send us all your parenting questions. We are going to try to impart. We're going to have some experts. We're going to ask some questions about parenting, talk about our mistakes, everything. Go to nymag.com slash pivot to submit a question for the show or call 855-51-PIVOT. By the way, I did a great Twitter Spaces with Jonathan Friedland about trust and what happens next in the UK and with Jonathan Greenblatt of the Anti-Defamation League about the rising right. The episode will run on the On with Kara Swisher feed. Go follow that podcast so you don't miss it. Okay, Scott, that's the show.

Scott Galloway: Nice.

Kara Swisher: Today's show is produced by Lara Neyman, Evan Engel, and Taylor Griffin. Ernie Indertot engineered this episode. Thanks also to Drew Burrows and Miel Silverio. Make sure you subscribe to the show wherever you listen to podcasts. Thanks for listening to Pivot from New York Magazine and Vox Media. We'll be back later this week for another breakdown of all things tech and business.

Scott Galloway: Kara, have a wonderful week.

Kara Swisher: Thank you.