← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
By the People | Now It’s Your Turn
00:54:37
We’ve shown that history rejects the Supreme Court’s monopoly on constitutional interpretation. It’s time to reclaim your fair share.
Loading summary
Transcript94 lines
- [00:00]
Jamelle Bouie
Best thing that's ever happened to you financially. Go easy. Sold my car on Carvana. Amazing offer, really. I hit 200 on the scratcher. Did the scratcher come to your house and hand you a check? No. How many scratchers did you hit to get that? I hit a button on Carvana.com once. Okay, that's fair. It's like the lottery, except you always win. Not like the lottery at all, actually. Exactly. Inexplicably good offers worth bragging about. Sell your car today on Carvana. Pickup fees may apply.
- [00:33]
Dahlia Lithwick
This episode is brought to you by Gab. The youth mental health crisis is all over the news and we know social media is driving it. 45% of girls and 32% of boys feel overwhelming stress from being on social media. And together, 25% of both feel worse about their own lives. Listen, I've watched firsthand what social media does to my boys and I am pretty comfortable saying it makes them feel smaller and sadder and less than. So here's the good news. A company called Gab is tackling the problem by doing something no one else is doing. Their approach is tech in Steps. Tech in Steps works by providing safer phones and watches for kids with no social media. Tailored to every age, from GPS tracking enabled watches for younger kids to phones with parent enabled apps for tweens and teens. I can't recommend Gab enough and right now use our code to get the best deal on a kid's phone. That will make parenting easier and give you more peace of mind. Visit gab.comamicus and use code amicus for an exclusive offer. That's GabGabb. This is Amicus Slate's podcast about the courts, the law and the Supreme Court.
- [01:52]
Mark Joseph Stern
This is the final episode for now of by the People.
- [01:56]
Dahlia Lithwick
I'm Dahlia Lithwig.
- [01:57]
Mark Joseph Stern
And I'm Mark Joseph Stern.
- [01:58]
Jamelle Bouie
I'm Courts emerged as a branch that could participate, but the idea that they would be final and binding over the people themselves, it was just rejected.
- [02:07]
Dahlia Lithwick
Listening to freed people describe from their own voices what the experience of slavery was and how they understood freedom can help us understand not only the contemporary understanding of slavery was, but also shed
- [02:23]
Mark Joseph Stern
light into how this doctrine can develop.
- [02:26]
Jamelle Bouie
The public saying, for example, with the no Kings rallies, we do not think that unaccountable executive power is part of our political system.
- [02:38]
Mark Joseph Stern
Through organizing, through telling our stories, we
- [02:40]
Jamelle Bouie
made our case that we were part
- [02:42]
Mark Joseph Stern
of the fabric of America. We were not outcasts who should be arrested for our existence or kicked out of federal employment. We were actually part of the fabric of our communities.
- [02:52]
Jamelle Bouie
It's a fundamentally constitutional claim, a claim about like the struct of political society.
- [02:59]
Mark Joseph Stern
You know, it's possible that a future
- [03:00]
Dahlia Lithwick
historian will look back on this time and write about this moment as a time of popular constitutionalism.
- [03:06]
Jamelle Bouie
On the main if you look at American history, ordinary people have done a much better job of defending their rights than judges have.
- [03:17]
Dahlia Lithwick
Through these podcast episodes and in print articles@slate.com, this series has tried to show in the most visceral and concrete ways what it looks like to affirmatively behave as though the Constitution is democracy's owner's manual, and that it belongs to the people and not just to the courts.
- [03:37]
Mark Joseph Stern
We've been trying to shake off a decades long pattern of passive spectating and learned helplessness where the Supreme Court grants itself more and more power to decide every aspect of American life.
- [03:49]
Dahlia Lithwick
And a lot of us just got used to going along with it, with occasional breaks to talk about court reform
- [03:55]
Mark Joseph Stern
on this week's show. Now it's your turn.
- [03:58]
Dahlia Lithwick
We are about to slide into a summer break, but while the Court is on summer vacation, you can be a fully employed constitutional worker bee. We want you to take that time to think about the ways in which you can make constitutional meaning in your life, in your community, in your profession, and to think that through. We are joined by someone who has been doing just that.
- [04:21]
Mark Joseph Stern
Jamelle Bouie is a columnist for the New York Times where he offers historical context for present day events. He's also our former colleague here at Slate.
- [04:29]
Dahlia Lithwick
In 2021, Jamel received the Hillman Prize for Opinion and Analysis journalism, and in 2024 he was elected to the American Academy of Arts and Sciences.
- [04:41]
Mark Joseph Stern
In 2025 he received the Carrie McWilliams Award for a major journalistic contribution to the public's understanding of politics from the American Political Science association, and he also
- [04:52]
Dahlia Lithwick
received the Tikkun Olam Prize for promoting Public Historical Literacy from the American Historical Association. J Booie welcome back to Amicus.
- [05:02]
Jamelle Bouie
Yes, thank you so much for having me. I always get very embarrassed when people read my bio because I don't know, I just do. I get bashful.
- [05:12]
Mark Joseph Stern
You've earned it, buddy. It's all you. You deserve these.
- [05:16]
Dahlia Lithwick
I think you just need to just sit there and bask in it. All right, so Jamil, let's maybe start where this series started and that is to agree that the U.S. supreme Court's current status as the sole owner of the Constit is nowhere to be found within the Constitution.
- [05:36]
Jamelle Bouie
Yes, that's right. In fact, I think if you were to time travel to 1789 and tell the Americans who ratified the Constitution, not even the people at the convention, but the people who ratified it, that they would be handing over the Constitution in its full meaning to nine unelected judges, half of them Catholics thinking about 1789, but nine unelected judges, they would lose their minds. They would be like, what are you talking about?
- [06:08]
Mark Joseph Stern
Your point being that anti Catholic bias was extremely prevalent at the time. And if they could see our world today, they would be appalled.
- [06:16]
Jamelle Bouie
But I think they'd be more appalled about the nine unelected judges part. The anti Catholicism is just kind of funny. It's just sort of funny to think that the standard bearers for this so called originalism are like Catholics.
- [06:31]
Mark Joseph Stern
People who would have been excluded from the kind of ideal view of the citizenry in 1789.
- [06:37]
Jamelle Bouie
People who would have been excluded. Right. In a time where they basically tolerated the existence of Catholics, but weren't too happy about the fact that they were there.
- [06:45]
Mark Joseph Stern
Jamel, as a serious student of American history, do you have a theory for why Americans in the course of our lifetimes came to believe that these nine unelected judges have the final and irrevocable say on what the Constitution means? Have a theory for why this public passivity is so ingrained?
- [07:06]
Jamelle Bouie
I think it's entirely historically contingent. Like, it's very recent. And I would tie it to a handful of things. The first is that you had the Warren Court emerge in the middle of the 20th century as a court that was trying to use judicial power to expand rights, protect the rights of minorities, expand procedural rights, all sorts of things. You had at the same time a liberal elite, both in the academy and in politics, that was super nervous about the ability to politically defend these things, and so looked to the Warren Court to do this and then became extremely solicitous of judicial power when it seemed like the political tide was turning. Right. So as conservatives and Republicans began winning elections in a major way in the 70s and 80s, again, you had liberal legal and political elites who were like, well, you know, of course the courts are the primary defender of the people's rights. Of course we have to defer to the Court's understandings because they're in their minds deferring to the jurisprudence of the Warren Court. I think you also have, as this is all happening, a kind of professionalization of the Supreme Court. It's interesting to look back prior to like 1960, 1950, and just see the professions and the things that Justices did prior to being on the Court. And a lot of times they had very little actual experience on a federal bench. A lot of times they were practicing lawyers. But like mainly politicians, the Court was understood especially in the 19th century. The UPenn historian Rachel Sheldon has a great book coming out about this quite soon. In the 19th century, it was understood that this was a political body, these were political actors and they had political experience. And that continued into the 20th century. Warren Earl Warren to start was governor of California. And that kind of political experience wasn't uncommon. In the last 50 or 60 years, the court has become much more professional. Like the Justices either were long serving members of the federal bench or put on the federal bench prior to being elevated to the Court to give them that experience. They all come from a handful of elite law schools. Their careers are in the law, their professional lives, their personal lives are all tied up in elite law. And I think what that does, what that professionalization does, is create the impression that what the Court is is this non political body of people whose job is to point their big brains at constitutional questions. And that I think bolsters the sense that, yeah, this is the Constitution, this is what they do. They interpret the Constitution for us and then we follow the rules they set down. It's these two things happening at once that I think have created this impression. And I mean the other part of this is the political right has made a concerted effort in its imagery, it's imaginary of what the Court is. Sell the image of the Court as this apolitical body of people who are engaged in big brain constitutional thinking. And I think the public, there's not been any countervailing force. And so the public is just like, oh, okay, I guess that's what it is. In a very short amount of time, that's what people think the Court is. I know in my experience, when I've written something like maybe we should have a non judge on the Supreme Court, people are like, that's insane. But it's like, no, there were a lot of non judges on the Court for most of the Court's history.
- [10:46]
Dahlia Lithwick
It's interesting because you are echoing this theme that Professor Larry Kramer, who coined the term popular constitutionalism a long time ago, one of the themes he really raised was this doesn't actually become a problem until the political right and the political left agree that the Court is divine. And that can only happen after the Warren Court revolution. And the other thing that you're saying, that's actually incredible. Helpful to frame this conversation is there just didn't used to be 300 page opinions. You know, like decisions were seven pages and brown v. Board could be printed on the front page of a newspaper. Right. Like the idea that this has to be weighted down with law review articles and footnotes and arcana about the history of a three part test is a way of obfuscating. Right. Making it seem as though there is no way that the former governor of California could do this because not even the smartest professor at Yale Law School can do this. And so in that sense, the court works hand in glove with the American people to create this mythology of the oracular balls and strikes Court. We've now asked you sort of two gimme questions. I'm gonna ask you one more, which is if we're on the same page about the role of the high court, can we agree that the answer to the question of who actually owns the Constitution, the one we started, has to be the people themselves? And of course this is a trick question because you've said that a thousand times, as have we.
- [12:24]
Jamelle Bouie
Yeah, I mean that's what I would say. The Constitution belongs to the people themselves. I want to add a little more to your point about the length of opinions, the shrinking number of opinions. Right. They decide fewer and fewer cases every year. People may look at that and see it as sort of like a technocratic or procedural thing. I think once you see it as a political thing as well, that in the 19th century and the early 20th century, when the court first has much less control over its docket, but is deciding hundreds of cases with these short opinions, they're doing it in part because those earlier courts did feel the need to be more responsive to what was happening in the world at large. They couldn't just sit on stuff because they were part of an active political process. And so I very much agree that dropping hundred page opinions four or five months after the case is heard on cases that are of immense public importance is both a way to create the impression, again, they're these legal gurus, but also another way of separating it from the public. What it looks like when the court agrees the Constitution belongs insignificant parts of the public, is a court that feels an obligation to be more responsive, to let people know this is what we think. And you know, part of the thing about a lot of short opinions, it is not the final word. 300 page opinion feels like the final word. Oh, that's it. But a short opinion is something that can be bounced about by the public and its Representatives.
- [14:01]
Mark Joseph Stern
I also think, like one really recent and great example of the truth that a longer opinion is not necessarily a better opinion comes in the birthright citizenship case. And the set of decisions from Clarence Thomas dissent is more than three times as long as the majority opinion, I think. And it's also way more than three times worse. Like Clarence Thomas is just sort of randomly cherry picking these sort of arcane figures who wrote in their diaries or said in speeches like offhandedly that they thought that birthright citizenship didn't apply to temporary visitors and then just sort of stitching it all together and declaring it to be this grand constitutional theory. And it's not. But if you aren't trained in the law, frankly, if you don't have like the BS sort of radar, you might read that and kind of find it persuasive and be like, well, all these thinkers that Clarence Thomas sort of plucked out from like a control F search in Westlaw had this mistaken view of the citizenship clause, so maybe it's right after all. And I really think that like length and density is coming to be a substitute for genuine like, accuracy and persuasiveness in Supreme Court opinions. And Thomas is often the worst offender with these bloated, pseudo originalist opinions that are just a kind of random, like little sort of dance through history where he only picks the dance partners that happen to agree with him. So let's move on from these easy questions where I think we all agree and we feel like we know the answers to maybe sort of find our, our way to what all this means in concrete terms for ordinary people today. So we've been tracking historical examples. We spoke to David Gans back in June about the black conventions that were so fundamental to the ultimate framing of the Reconstruction Amendments. We talked about in pushing back against racialized apprenticeship laws to expand the 13th Amendment and inform the 14th Amendment, more recently the fight for marriage equality in Obergefell and even gun rights in Heller. These are all examples of the active participation of the American people in deciding constitutional meaning. What do you hope people who are today feeling trapped and powerless in this political moment take from those and other historical examples?
- [16:17]
Jamelle Bouie
Yeah, a couple things. I mean, I would bring up some other examples too. The political response to Dred Scott, which was both the early Republican Party, Lincoln in particular, saying, listen, we will respect this as a decision between the parties involved, but we reject the idea that this can have any binding say on the meaning of the Constitution. And then also there's a press from Republicans at the time to pass legislation Repudiating Judge Scott and just to do things that might limit the ability of the court to act. So later in the 1860s, you have efforts to say, oh, the court could only overturn laws of Congress. With the supermajority, this is a thing that kind of begins making its way through Congress and eventually fails. But sort of looking at the Congress's control over the structure of the court to do something about all of this, the first step, the Judge Scott example, is instructive because I think the first step for ordinary Americans is just to recognize that yes, Congress exercises political control over the court. Congress can structure the court, Congress can do all kinds of things to discipline the court if it wants to. And in fact, much of what we recognize as the modern court is a construction of Congress. It's control over its docket, the building it sits in, all these things. During primary season, you should be asking the people running in the Democratic primary, what are your thoughts on all of this? These are questions at town halls, at events, as you call representatives, all these things you should be asking, what do you think should be done about the court? Would you support these sorts of things? And kind of making it a concern in the same way that the reason why you're seeing larger numbers of elected officials talk about regulating data centers is because they are reading the public temperature, they are seeing people get angry about them face to face. Getting angry about the court in a face to face environment with lawmakers and getting angry about the court's lack of a accountability and its anti democratic orientation is the kind of thing that'll get lawmakers to at least start thinking about the fact that yes, we can regulate this court. I think that's really the first step on the public side of things to sort of make this a live issue the same way you'd make anything else a live issue. I'd say for lawmakers, in addition to the structural stuff, I mean, part of what taking ownership of the Constitutions looked like in the past is Congress itself exercising its ability to interpret the Constitution, whether by saying we're passing this law and we're passing it because this is what we understand our powers to be. Responding to the decisions of the court with legislation saying the court thinks this, we think this, and this is what we find in the Constitution and in constitutional law that supports our view as a parenthetical. A lot of the Voting Rights Act. Robert's court decisions kind of rely on this sense that Congress isn't going to act and so they can kind of be the final word. But of Congress acts, they're no longer the final word. So Congress actually just legislating and passing legislation and doing it with a sense of the Constitution allows us to do this. Roberts might think that independent agencies are silly, but with the necessary and proper clause means that we could do it, and we're asserting the authority we believe we have. And then people have talked about this before, Measures like jurisdiction stripping, where you say, we're doing this and it's out of the court's jurisdiction. Disputes can be handled at the low court level, but the Supreme Court cannot tackle constitutional issues around it. Those are tools that can be used as well. But I do think our first question was about how we've gotten to this point. I do think one of the ways we've gotten to this point is the inactivity of Congress. And part of the story here is Congress's deference to both the judiciary and the executive. And I do think a more active Congress is something that, even without restructuring, the Supreme Court can push back on the court's claim on the Constitution.
- [20:27]
Dahlia Lithwick
But here's where all the gaslightiness comes in, right, Jamal? Because this is where, you know, justice Alito goes and testifies before Congress and says, like, you can't, in fact, enforce, you know, ethics restrictions. You're not allowed to do anything to regulate our conduct. I mean, I think part of what's so hard. And, you know, you read Calais, it's so clear that the court has now arrogated to itself the power to say, we don't care what you think your prerogatives are in Congress. You know, we get the last word. And I think the point you're making is that part of the learned helplessness is because, like the emperor's new clothes kind of thing going on, where the court keeps asserting that it has powers, and the American public is like, yeah, they must have these powers.
- [21:14]
Jamelle Bouie
I'm just thinking about Kalay. So much of the coverage of Kalay has been about its practical effects. And you guys know this. I mean, the striking thing about that ruling to me is the court saying we get to say what constitutes appropriate legal legislation, which is crazy, right? Neither. The 14th or 15th amendments say court decides what is appropriate legislation. It's clearly meant to be a congressional determination. What do the people think constitutes appropriate legislation for dealing with racial discrimination in voting and passing legislation, passing a revitalized voting rights act that explicitly says we view this to be appropriate legislation. This is in keeping with our powers as traditionally understood and kind of daring the court to go at it. That's the appropriate response. To use the word appropriate again, that's the appropriate response to that. So much of the court's irrigation power to itself has been this kind of, you know, what are you gonna do stab me response. And I do think that like at a certain point the response is to be yes, we're going to stab you now.
- [22:19]
Dahlia Lithwick
Now you're speaking figuratively, of course, but I fully take your point, Jamel, that at some junctures, SCOTUS taking the position of what are you gonna do? Requires a response from some other branch or representative of the people that involves actually doing something about it. We're going to take a short break. When we come back, how an abolitionist's conception of liberty might be the key to an empowering, popular 21st century understanding of the Constitution. After these messages
- [22:56]
Mark Joseph Stern
Lately I've realized that when my energy dips or I feel off, it's often because I'm not hydrated. And that's a problem. Especially since I have two kids under 3 years old whose energy never dips. Drip Drop is my go to fix for quick hydration because it helps me bounce back fast, stay clear headed and get back to my day without feeling like I'm playing catch up for the rest of it, which is truly essential for two little kids and a full time job. Drip Drop is proven fast hydration that helps your body and mind work better because hydration isn't just something you do when you're born behind, it's how you stay ahead. Drip Drop uses science based formulas for rapid hydration so you feel results fast while getting three times the electrolytes of leading sports drinks. Drip Drop is trusted by firefighters, medical professionals and over 90% of top college and pro sports teams. It's built to hydrate you faster and more effectively than water alone. Drip Drop Zero Sugar plus is a breakthrough fast absorbing formula with an advanced blend of six key electrolytes, 15 essential vitamins and nutrients. Nutrients and no sugar or artificial sweeteners. There are 16 original flavors and eight zero sugar plus options that fit seamlessly into my whole routine. It's good for so much more than just workouts. I especially love the cherry limeade zero sugar flavor. Right now, Drip Drop is offering podcast listeners 20% off your first order. Go to dripdrop.com and use promo code amicus. That's dripdrop.com promo code amicus for 20% off. Stock up now@driftdrop.com and use promo code Amicus. Am I C U S?
- [24:26]
Dahlia Lithwick
This episode is brought to you by Ground News Here at Amicus, we read a lot about the Supreme Court, but it's not the only news we consume. And like you, we seek out different sources on the same subject to get the full story. Ground News is a great way to get down to the facts. It's an app and website that makes it easy to compare news sources, break free from algorithms, and think critically about where you're getting your news. Recently I went to Ground News to learn more about the resignation of British Prime Minister Keir Starmer. Ground News had rounded up coverage from 40 different sources. According to the platform, 46% of the coverage is center or nonpartisan. But if you click right, you can see right leaning coverage that claims quote Keir Starmer offered Britain nothing. And if you click left, you'll see headlines lamenting that Keir Starmer is the latest casualty of the Downing street meat grinder. The Nobel Peace center called Ground News quote an excellent way to stay informed, avoid echo chambers and expand your worldview. Here's how to get started. Go to groundnews.comac to get 40% off their Unlimited Access Vantage subscription. That's groundnews.comac and you'll get 40% off the Vantage subscription Description Whether you subscribe yourself or send it as a gift, make sure to use our link so that they know that we sent you. That's groundnews.com AC
- [25:59]
Mark Joseph Stern
every June, as the Supreme Court term reaches its chaotic conclusion, life gets pretty overwhelming here at Amicus. At times like that, affordable, accessible mental health care can make a real difference. Finding a therapist is hard to enough Finding one who takes your insurance can feel nearly impossible. Many online therapy platforms don't accept insurance at all, leaving you to pay the full cost out of pocket or sign up for an expensive monthly subscription. Rula works with more than 100 insurance plans, bringing the average copay down to just $15 per session. That means real therapy from a licensed professional at a price that actually makes sense. Rula also helps you find someone who's genuinely right for you. Instead of simply matching you with the first available provider, it considers your goals, preferences and background, then gives you a curated list of licensed in network therapists who fit your needs. There are no wait lists or endless back and forths, and appointments may be available as soon as tomorrow. Thousands of people are already using Rula to get affordable, high quality therapy that's actually covered by Insurance. Visit rula.comamicus to get started today. That's R U L A.comamicus you deserve mental healthcare that works with you not against your budget. And we're back with Jamelle Bouie. This is by the people on Amicus episode four. Now it's your turn.
- [27:21]
Dahlia Lithwick
I was really taken by something I heard you say about Charles Sumner, who represented Massachusetts in the Senate from 1851 to 1874. Sumner was a radical Republican on the vanguard of the anti slavery movement. And as an abolitionist, he was fighting to rewrite the Constitution using Frederick Douglass language here. The Constitution is a liberty document. And he was responding to a view of the Constitution that saw it as written by powerful men to embody a theory of power and mastery. And I found myself listening to and wondering whether in this era in which law is so often deployed in this key of mastery, in this key of power, whether the language of liberty borrowed from Sumner and Douglass might actually be a useful circuit breaker.
- [28:15]
Jamelle Bouie
Yeah, I mean, I think part of getting there is breaking oneself of the idea of the notion that the Constitution is primarily a legal document, that the Constitution is primarily something for which if you make a claim about it, the proper response is to search through the case law and answer. And I think people have to get more comfortable with asserting things that they believe to be true about the Constitution. So to use the unitary executive as an example, it's all legal theory, it's all kind of dreamed up by executive branch lawyers. And they have tried to look for places where they can say that this is the case. And it's important to do research and to kind of tackle stuff on its own terms. But in terms of politics, I think it's important to just be able to say, yeah, that sounds stupid, that the Constitution that we have is clearly a document meant to instantiate self government. And if the Constitution allows for a situation where the President can act as a de facto dictator, then whatever understanding that is is just wrong on its face. Right. I mean, this is actually like a modality of constitutional interpretation. It's like a interpretation of constitutional ethos, like it's a thing that people do. But I think in the political realm, no one's comfortable with it anymore. No one's comfortable with just saying, at least on the political, which is saying this is what we believe the ethos of the Constitution to be. We believe it to be a document that is trying to instantiate a more egalitarian society, that's trying to instantiate a freer society, one in which people can govern themselves with a full suite of rights. And I think that's important. I think it's important to be able to talk in that way. And bring the debate actually away from arcane interpretation and back towards, okay, so what are we even doing in the first place here?
- [30:07]
Mark Joseph Stern
I have a take on that that's slightly different, but still, like, harmonious, which is that when the Supreme Court embraces the unitary executive, it is also sort of saying, like, this is our theory of the Constitution, which is that the President is a dictator. And we talked about this with Jed Sugarman and Sam Bagenstoss, and like the Roberts opinion in the Slaughter case, sort of embracing the unitary executive, crushing every independent agency except the Federal Reserve. He's like, here's my theory. The President gets authoritarian control over the entire executive branch and large swaths of the government that we did not previously believe to be in the complete control of the executive branch, because we think that's what's good for America. Like, that is our theory. And so it's interesting how, like, the right does this already. The right is saying, here's our vision of what the Constitution is supposed to guarantee. And we're going to interpret these sort of vague and very broad and imprecise constitutional provisions in line with that. The theory is not one that a majority of Americans agree with or embrace. Most Americans do not think that the President doesn't have enough power, that the real problem today is that we aren't giving the President enough power over the government, but six justices do, and so that becomes the law. And I think that sort of leads me into my next question, which is maybe sort of the heart of it, which is in your column at the end of this most recent term, you distinguished between. Between the Supreme Court's power to say what the law is after Marbury versus Madison. And you say that's limited to cases or controversies as. As. As Article 3 of the Constitution explains. And then constitutional meaning, which you write, is as much the purview of the public as it is the job of a jurist. We've been talking about this. We've been sort of leading up to it. Can you walk me through the ways, though, that the people and not the courts do the latter work of making constitutional meaning up? Including today?
- [32:05]
Jamelle Bouie
Yeah. I mean, some of that is through just ordinary politics. Right? People who assemble and gather and demand their right to vote, who demand their right to marry whom they please, who demand their right to express their gender however they please. Right. Like that is making a constitutional claim. Like putting those demands in terms of rights and then assembling and protesting for them is making a constitutional claim, is saying that our Constitution protects these rights. The Constitution may Not mention those rights, but those rights are there and we understand ourselves to have them. You mentioned the black conventions earlier and a discussion with David Gant. I mean, that is all over the language of those convention notes. If you just read through them, and I've read quite a few at this point, and the column you're citing, I'm sort of building off of that. What you see in all of those are, are claims about rights that black Americans have that maybe you cannot find in the text, but they are asserting by virtue of being born in the United States, by virtue of their connection to the country itself, that they live there, they work there. That's where their identity is. By virtue of. We don't really use the language of natural rights anymore, but by virtue of their natural rights, all these things are saying, these are the rights we have. We have the right to move freely. We have the right to own property. We have the right to engage in economic life as we see fit. We have the right to vote. We have the right to have our civil rights protected. And although this isn't written in the text of an amendment, it's clear that these rights are inherent to being an American and we have them. And so I think part of creating constitutional meaning is just this act of assertion, political assertion. These are things we have. You mentioned at the beginning of our conversation the way that you can see this dynamic in the gun rights movement, and sort of irrespective of how you feel about the proliferation of firearms, I'm not too happy about it. It is a really good example of how one asserts and essentially creates constitutional rights that organized gun owners began asserting that, yes, the Constitution defends my individual right to own a firearm and to use that firearm in however peaceable manner as I see fit. And that doesn't just persuade powerful people, but it persuades lots of ordinary people. It feels commonsensical. It feels conn to longstanding traditions of American life. And the Supreme Court recognizes it. I don't think Heller is a particularly good opinion, but I also feel for me, hard pressed to say that at the end of the day, is it wrong? It does actually seem like Americans have an individual right to bear arms irrespective of what the Second Amendment says. And I don't know, that to me seems like a product of or it doesn't seem to be. It is a product of Americans. Kind of like asserting that this is a thing that we have and persuading people that this is the thing that they have. In terms of what does it look like to create constitutional meaning. It is just like asserting and saying, this is the case. And of course, then it's sort of like people, academics and jurists and journalists and all sorts of people begin sort of taking those claims and trying to understand them if they agree with them, trying to develop arguments for supporting them, if they oppose them, and so on, so forth. All these things emanate from this. But I do think the foundation is kind of an act of ordinary politics. And I think my, and this has been my refrain in our conversation, but I do think that the big thing I'd like people to take away is that the question of what the Constitution is and what the Constitution means is fundamentally a political one. That's fought out in the political arena. It's fought out in the partisan arena. It's actually not disconnected from ordinary on the ground politics. It's very much a part of it. And the extent to which you disconnect it from ordinary on the ground politics is the extent to which you give that away to people like the nine justices on the Supreme Court.
- [36:21]
Dahlia Lithwick
It's so interesting, Jamel, because again, you're echoing something I heard from Professor Larry Kramer in our first episode, which is that the big shift that needs to happen is actually an imaginative one. Like, it's a, it's, it is weirdly, this is not a huge, huge structural lift. All the power is there. All the tools in the toolbox are there and have been deployed before. Right. We just, all we need to do is look at the historical examples you've given and we've cited, and you can see that this is just muscle memory that's gone. And so what's very, very weird is that you are urging people. I'm thinking of like the, you know, Disney movie Dumbo that I grew up with. Like, you have these huge flappy ears just fly. And like, they already have the big flappy ears. And it's so weird that, you know, I want to make one distinction that I've seen you make in writing, and Mark and I have been at pains to make it in this series, which is nobody here is arguing that the way you make constitutional meaning is you say the Constitution says what I think it says. Right. If we could all do that, then Donald Trump could do it, too, which is what his theory of executive power is. So nobody's saying that. But I think what we are saying and what you are reflecting back and I think it's so important is that this is about boring systems and processes. It's about legislative processes and judicial processes and Amending constitutions and state constitutional protection. All of that is available to us. And yet I still think that when you ask people to flap their big floppy ears and fly, that seems really abstract. And so one of the things that we've kind of honed in on on the show and just this year is something you just flicked at and I'd love for you to amplify, which is like, no, those people at no King's rallies are making, like, muscle memory constitutional arguments. Like those people filing habeas petitions on the streets in Minnesota. Like, they're making like, we know how to do this. And I'd love one more beat from you, Jamel, on the degree to which we already know how to do this.
- [38:37]
Jamelle Bouie
Yeah. No, I think the no Kings protest is such a great example of this right. It is. Is the name of the protest. It's like making a constitutional claim. We are not a system that has unaccountable power. And this is expressed in partisan terms, but it's fundamentally a recognizable constitutional claim. It's the 250th. It would have been recognizable to Americans in 1776. The exact kind of nature of the claim being made in 1776. They would have been using the language of, this violates our constitution. This violates the British Constitution, our rights as Englishmen, that kind of thing. This arbitrary authority violates rights that we think we have. And we either want redress for that, or we need to have some sort of fundamental change to the political world in which we live. But I think that's exactly right. It's not so much that people are filing amicus briefs at the no Kings rallies, but they are in this collective gathering of millions of people. They are making a claim about the nature of the society in which they live, the nature of the political world in which they reside, and they're discontent with it. And it is tied up in sort of. It's a fundamentally constitutional claim, a claim about the struct of political society. And you're right to sort of clarify that this isn't about making up whatever right. It's much more about, like, there is a role here for text, for connecting things to the text, for connecting things to the history, for saying this is in line with our political traditions. This feels like a stretch of a reading of the text. We can see these ideas here in the construction of this particular text. You can't see those ideas there, that kind of thing. But all of that is in relationship with political action and political activity, because ultimately, it's just words on paper. And the words are given meaning by how people relate to them and how people try to deploy them in their everyday life. This is a bit of a more arcane example, but in the early 19th century, the Constitution gives Congress broad authority over commerce. No one knows what that, well, what is commerce? No one knows what that means. And there's a bunch of case law just trying to figure out what is it that commerce means. And a lot of this is figured out in the breach. It's figured out by states attempting to regulate canals. It's figured out in tolls, taking tolls, coming out of New York, coming in here in New Jersey. And we're going to take a toll. Can we legally do this? All these things are happening. And as political actors do things they think they have the right to do, as the federal government responds, as the courts respond, you get the construction of constitutional meaning. You get something there that is stable and sustainable. And in the same way the public saying, for example, with the no kings rallies, we do not think that unaccountable executive power is part of our political system. This is going to be picked up by legislators who may try to turn this into some kind of legislation which then gets litigated in our political system, in the courts and such, and we come to some sort of settlement as a result of that. It's this bottom up process. And I think it's important for ordinary people to recognize that this bottom up process works for all of kinds, kinds of issues, all kinds of stuff, all kinds of things. You mentioned state constitutions, Dalia. It can happen at all kinds of levels. The emergence of direct election of senators, which ultimately involves the constitutional amendment, is happening at a state by state level. It's a thing that people are doing that eventually becomes part of the overall constitutional settlement. Organizing and try to change your state constitution to create more robust rights to bodily autonomy, creates expectations of what the federal, federal Constitution ought to protect, creates political momentum and does begin to shape overall meaning. One thing I feel like I've been dancing around here, and I should just say explicitly, is that the famous distinction between the American Constitution and the British Constitution is that ours is on paper and theirs is not. But a lot of ours isn't on paper either. A lot of what we think of as the Constitution is really just sort of like a set of, I hate this word, norms and a set of, of larger conceptions that we say are in the document but are really just sort of like accumulated through process and action and activity over the course of 250 years. And I think part of what I'm trying to say is that making constitutional meaning in a lot of ways is identifying those things that are kind of in our constitutional miasma and then saying no, really, they are in the text and connecting them to the text in a way that becomes legible and accepted among the broad public.
- [43:39]
Mark Joseph Stern
So I just, I do have to add one footnote, which is that the the constitutional definition of commerce that we developed through the 19th century is stable unless Clarence Thomas gets his way and five votes to overturn it and return us to the most sort of impoverished, parsimonious understanding of the commerce clause imaginable, which is part of the danger of being giving nine judges, or really five judges, a total veto power over, like the broader American conception of constitutional terms. Right.
- [44:10]
Jamelle Bouie
Yeah. Yeah.
- [44:11]
Dahlia Lithwick
We're pausing to hear from some of our sponsors, and when we come back, Guns, the Popular Will and Jamel's Court Reform Wish List. This episode is brought to you by BetterHelp. You've heard me talking about the benefits of therapy and about better help for a while now, and you might be considering online therapy, but maybe you're also wondering, what do people think of the service? Well, you can find out for yourself by going to betterhelp.com reviews to read customer reviews in real time. These reviews are updated every single day with hundreds of people dropping by to say how much they love BetterHelp and how helpful it's been to them. More than 6 million people have used BetterHelp globally, and the consistent feedback from real users makes it easy to see why so many people continue to choose BetterHelp as their online therapy therapy service. And finally, it's really easy to get started. Answer a few questions, get matched with a therapist based on your needs and switch therapists at any time. If it's not the right fit, see the reviews, see what stands out, and see if BetterHelp is right for you. Visit betterhelp.comamicus that's betterhelp.comamicus
- [45:27]
Mark Joseph Stern
when we were kids, summer meant freedom. No homework, no teachers, no school. And as adults, summer still means freedom, thanks to Mint Mobile's summer sale. Right now, all of Mint's plans are $15 per month, even unlimited. So free yourself from Big Wireless and their gimmicks and gotchas and switch to Mint for high speed data and coverage on the T Mobile 5G network. It's super easy to make this switch. Mint Mobile took what's wrong with wireless and made it right with Premium Wireless for $15 a month. All Plans come with high speed data and unlimited talk and text delivered on the Network, nation's largest 5G network. You can even bring your current phone and your number. Choose from 3, 6 or 12 month plans and say goodbye to a monthly bill. Ditch overpriced Wireless With Mint Mobile it's so easy to get your new wireless plan for just 15 bucks a month. Go to mintmobile.comamicus that's mintmobile.comamicus Cut your wireless bill to 15 bucks a month at mintmobile.comamicus that'S that'S it. There's no catch. Upfront payment of $45 for three months, $90 for six months or $180 for 12 months. $15 per month equivalent taxes and fees Extra initial plan term only greater than 50 gigabytes may slow when the network is busy. Includes up to 20 gigabyte hotspot capable device required availability, speed and coverage varies. See mintmobile.com. Welcome back to by the people on Amicus. Our guest is Jamel Melboui. This is episode four now it's yous Turn or Use those Big Flappy Ears people. You mentioned Heller too, and I want to go back to that. We've talked about it on this show. We've already talked about it today. This is the 2008 decision establishing an individual right to bear arms. I think that one of the tricky parts in thinking through popular constitutionalism is what to do with Heller, because it is, as you said and as you've written before, the kind of formalism of the popular idea that the second Amendment confers personal gun rights. What is your answer to the fact that popular constitutionalism doesn't always get you progressive results? That this doesn't fall along a neat sort of left right axis? Is that a problem or does it really sort of legitimate the theory by showing this is not a partisan theory, this is something deeper?
- [47:43]
Jamelle Bouie
I think it legitimates the theory and I think that the answer to it is has to be politics, right? It has to be political cont. Devastation, right. Popular constitutionalism can lead you to a second Amendment like a formal individual right to bear arms, but doesn't apply a ton about the extent of that right about the ability of people to regulate it. Let me put this more precisely. A large part of the problem with a constitutional order entirely structured by the Supreme Court is the Court has this tendency. I think we briefly mentioned this to one want to just sort of have the final, final word to say this is what it is, period. And I think that we have to become Much more comfortable with our constitutional order being one in which there are broad settlements. But often the details of those settlements are still up for political contestation. The extent to which something is worth one way or the other. And so could you confiscate guns? Probably not under this vision, but you would still have a lot of leeway to do the kind of regulation that people would find politically acceptable. Our conception of liberty today is liberty is when you are free from government influence, free from government coercion and force. But the founding era conception of liberty was a little different and it was tied up in their obsession with representation. People take no taxation without representation as just sort of like a fun slogan, but they were obsessed with representation. That was a critical question. If you just think of that phrase no taxation without representation and take it literally, it's not an anti tax phrasing. It's very much no taxation unless I have representation. Next. If I have representation, therefore I can be taxed. And then you can kind of, we can like debate about that. The extent that for the founding generation, liberty was very much tied in to your ability to kind of say no. If you can say no, if you're represented, if you're properly represented and that representation bears on the outcome, then even if the outcome is coercive, it's fair. Your liberties haven't been violated because you got a chance to say no, you lost the vote, what have you. And you move on. I bring that up because I do think that when thinking, thinking about how we should relate to the Constitution today, a politics first way of thinking about it would put a heavy focus on this vision of liberty as being primarily about representation. Fair representation and a fair political system, I think legitimates all kinds of political decisions people might make. The chance that you lost this vote, you could win the next vote legitimates all kinds of political decisions people can make make. And that ends up being the safeguard, the fact that we have full and robust representation. Because I do think that when you start talking about a more politics forward way of thinking about the Constitution, people want to safeguard. I think the attractiveness of judicial supremacy is that it feels like a safeguard. You have this final stop and it feels much more. It feels scarier to say that actually the final stop is just going to be us going to be what we decide. And I think I would say on the main, if you look at American history, ordinary people have done a much better job of defending their rights than judges have. That ordinary people and that political majorities have actually been a much more reliable defender of a broad set of rights than courts have been. But that's a kind of a separate claim.
- [51:35]
Dahlia Lithwick
Now, I actually love that you're landing on this kind of hype hydraulic dynamic. You know, like it needs to be a two step because that is where freedom lies and that there is a certain amount of certainty that says, well, Supreme Court said we had to send all these folks back to Haiti, so what are we going to do? Like, it means we can, you know, go shopping. But I think that what you're saying is that to continuously end the conversation there is to, again, put away the one massive tool that you have at your disposal. We can't let you go without talking briefly about court reform, Jamel, because we've been snarking about it, as you know, this seems to be when we get all our angry listener emails and they say, clearly the only thing to do is court reform. And I think Mark and I both feel as though there is so much more to do. But court reform is certainly part of the suite of things we can do. And as you suggested earlier, a robust Congress could and should be thinking about that. And I just want to quote you back to you for one little Second, because in 2021, you wrote, I do not write about structural reform because I believe it will happen in my lifetime, although, of course, no one knows what the future will bring. I write about structural reform because I want to think expansively about, and I want readers to think expansively about American democracy, to understand that it is and has always been bigger than the Constitution. So I would love, given that we've assiduously avoided talking about court reform, other than as kind of a punchline in this show, to hear what your dream structural court reform program looks like because it has to be a part of the political conversation you are urging us to get involved in.
- [53:26]
Jamelle Bouie
Yeah, I mean, my dream court reform, the thing that I really do not think would ever happen, but I think is a good idea would be to make the Supreme Court literally just a court that deals with its remit as spelled out in the Constitution, which is like a handful of things, right? Sort of like disputes between states, disputes involving diplomats, impeachment trials, et cetera, et cetera, shrink its jurisdiction to remove everything but what is specified in the Constitution, and then create a new national court of Appeal, which is filled by judges on the various courts of appeal on a rotating basis, and that every year you get picked. You know, there's maybe, let's say there's one judge per circuit, maybe two judges per circuit. Let's say we have 15 circuits now, two judges per circuit, 30 judges on this court plus one. So it's an odd number. And this Court of Appeals doesn't have very much control over its docket. It just gets what it gets and it does the appellate work that the Supreme Court now does. I like this because I think part of the structural problem with the current Supreme Court is It's static. It's nine people, same number for 10, 20, 30 years. And because it's static, because it's unchanging and because it's so powerful, it's an irresistible incentive to try to game, to try to figure out a way to secure kind of permanent or as permanent as is feasible control of it. I'm like a Madisonian heart. And one of Madison's great insights is that size helps diminish the effects of faction and that if you just have more people vying for something, you have essentially more randomness. And the randomness kind of prevents what we would describe as tyranny of the majority or what we describe as sort of a tyranny of faction or something like that, essentially enlarging the court and then making it more random so that you just cannot prevent predict who you're going to get to eliminate the incentive of trying to game, the system of trying to control it. That would be my dream reform stipulating that's probably never going to happen. Path dependency is a thing probably not going to happen. What I think should be done is I do think this is maybe a little more partisan, ideological on my part, but I do think that how the court has been shaped over the past decade, right? Beginning with the McConnell Senate's unprecedented decision to refuse a hearing all the way to the about base after Ginsburg's death and then quickly confirming a justice to fill that seat. You know what? All is fair and love and war and politics. So you do what you got to do. But on the flip side, I think that does mean that it's entirely legitimate to say we just want to nullify the effects of that. And so we're going to nullify the effects of that by expanding the size of the court and adding a couple of neutrality justices. In addition to that, though, I do think there's a perfectly legitimate technocratic reason for wanting to expand the entire federal judiciary, which hadn't seen a major expansion since 1979, despite the country having a third more people. And in a nod to the importance of just having more people to randomize things a bit, I think my more feasible set of court Reforms or judiciary reforms would just be a huge expansion of the federal judiciary. More. More districts, more circuits, more judges, along with the expansion of the Supreme Court. On the Supreme Court level, I think it should receive a little less, maybe not a little less control over its docket, but you have to. No more shadow docket, the emergency docket. Congress should define what the emergency docket consists of and what it requires. I think that the court should lose its control over picking its own clerks. I think that should go to some sort of body not attached to the Supreme Court. The extent to which clerkships are kind of this patronage game, I think adds to both the mystique of the court and it's just bad for accountability, meaningful ethics reform, all these sorts of things that sort of like, you know, if the court's gonna have this veneer of professionalism, well, let's make it professional kind of deal. Let's take away all of the vestiges of a more patronage based era. So that's what I would do, but I think my big thing is just more people and really pulling off the band aid of this kind of expansion. I think a lot of people see this as a point against court expansion, but to me, knowing that it can be done actually maybe makes it a little less likely that it happens again. Okay, what if Republicans do it? Okay, then we'll do it again. You'll come to an equilibrium at a certain point. And if that equipment equilibrium is like 40 justices, okay, well, then my national appeals court idea becomes way more viable and I'm a happy camper.
- [58:24]
Mark Joseph Stern
Jamelle Bowie is a proud dog father and a columnist for the New York Times where he offers historical context for present day events. And he is our former colleague here at Slate. Jamel, thank you so much.
- [58:37]
Dahlia Lithwick
Thanks, Jamel.
- [58:38]
Mark Joseph Stern
I think you're muted.
- [58:40]
Jamelle Bouie
Oh, sorry. Thank you so much for having me. Boom.
- [58:46]
Dahlia Lithwick
I can't believe we left the dog barking in there.
- [58:50]
Mark Joseph Stern
Listen, this is by the people, but sometimes it's with the pups too.
- [58:54]
Dahlia Lithwick
So here we are. We've been on a journey through these four episodes. But as you and I hinted at the top of the show, Mark, this is not actually the end of the road.
- [59:04]
Mark Joseph Stern
No. Because we meant what we said in the title of this episode. Now it's. It really is your turn.
- [59:11]
Dahlia Lithwick
After years and really years of emails and letters from listeners and hours of podcasts and hundreds of thousands of words spilled saying, what can we do about it? We have tried to outline in this series that the answer to that question is a hell of a lot so
- [59:30]
Mark Joseph Stern
we want to hear from you. Tell us what you're doing in your life to assert ownership of the Constitution. Where and how are you making constitutional claims? What are you doing to expand fundamental freedoms to include you, your loved ones and your neighbors?
- [59:45]
Dahlia Lithwick
Write to us@amicuslate.com and we are going to gather your stories and maybe even be directly in touch with you for a very special event that's coming in September.
- [59:56]
Mark Joseph Stern
Maybe your story is something like attending a no Kings rally, painting a banner, taking your kids or grandkids or cousins to their first public expression of their First Amendment rights.
- [60:06]
Dahlia Lithwick
It could be pro bono work on the streets supporting habeas corpus, or telling
- [60:11]
Mark Joseph Stern
your elected representatives or primary candidates vying for your vote why court reform matters to you.
- [60:17]
Dahlia Lithwick
We want to hear your stories, big and small. It's a little bit of Buy the People homework for you to do over the summer. Let us know what you think. Do not sit this out or sit this out. But then no more emails asking us what can I do? Okay? That's the deal. The question is, what? What can't I do?
- [60:38]
Mark Joseph Stern
Write to us@amicuslate.com to be part of by the People's Next Chapter in September.
- [60:46]
Dahlia Lithwick
And that is all for this episode. But amicus members, let's head on over to the Amicus bonus episode for an announcement from Mark Joseph Stern and a Dear Jurisprudence, Rummage through the mailbag if
- [60:59]
Mark Joseph Stern
you're not a plus member. Did you know that plusketeers can just write to us and we answer their questions?
- [61:06]
Dahlia Lithwick
And to be sure, Mark is a truly spectacular legal advice columnist.
- [61:11]
Mark Joseph Stern
Okay, but disclaimer this is not actually legal advice. It is more like sharing our existential constitutional angst.
- [61:20]
Dahlia Lithwick
Today's mailbag includes Whatever happened to Emoluments? Where do the Supreme Court's originalists get their fake facts from? And who really writes supreme court opinions? Visit slate.comamicusplus to join Slate Plus.
- [61:35]
Mark Joseph Stern
By becoming a member, you unlock so many benefits ad free listening and paywall free reading. At slate.com you can binge our by the People package of essays and episodes.
- [61:45]
Dahlia Lithwick
You can also listen to exclusive bonus episodes of Political Gabfest or get early access to our Big Swing series.
- [61:53]
Mark Joseph Stern
You can also play Slate's games. Our supervising producer, Sara Burningham, is newly addicted to our new game Sound Bites.
- [62:01]
Dahlia Lithwick
But most important, your support enables us to do the work that we do. And this place runs on memberships and we are ever, ever so grateful to our supporters.
- [62:14]
Mark Joseph Stern
Join us slate.com amicusplus you can also
- [62:18]
Dahlia Lithwick
subscribe to Slate+ directly from the Amicus show show page on Apple Podcasts and Spotify. Our bonus episode is available for you to listen to right now.
- [62:27]
Mark Joseph Stern
We'll see you there.
- [62:29]
Dahlia Lithwick
Sarah Burningham is Amicus's supervising producer. Our producer is Sophie Summergrad, and we had production help again this week from Joel Meyer. Hillary Fry is Slate's editor in chief, Susan Matthews is Executive editor, Mia Lobel is executive producer of Slate Podcast and Ben Richmond is our Senior Director, Director of Operations. Next week, I'll be introducing Episode one of Becoming Justice Gorsuch. Until then, take good care.
- [63:04]
Jamelle Bouie
Traffic may be locked, but savings isn't
- [63:07]
Dahlia Lithwick
Unlock the savings at Boost Mobile with unlimited wireless for just 25amonth forever.
- [63:11]
Mark Joseph Stern
No contracts, no hikes, and you keep your phone.
- [63:13]
Jamelle Bouie
Unlock the savings@boostmobile.com Unlock $25 forever requires
- [63:17]
Dahlia Lithwick
customers to remain active active on Boost Unlimited Wireless plan.
- [63:19]
Jamelle Bouie
For full offer details, visit boostmobile.com hi,
- [63:20]
Dahlia Lithwick
this is Paige from Giggly Squad, and today's episode is brought to you by McDonald's. Honestly, Caesar sauce and a Diet Coke at McDonald's might be the perfect girl. Dinner and McCrispy strips dipped in Caesar sauce. No notes right now at participating McDonald's. The $2.99 Caesar Snack Wrap is making me rethink my entire Go to order. Caesar Sauce is at participating McDonald's for a limited time, so go try it before it's gone. Prices and participation may vary.