The Supreme Court’s Smash and Grab- with Kate Shaw

Summary

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Podcast Summary: "The Supreme Court’s Smash and Grab"

Hasan Minhaj Doesn't Know
Host: Hasan Minhaj (186k Films)
Guest: Professor Kate Shaw (UPenn Law, ex-Supreme Court clerk, co-host of Strict Scrutiny)
Date: June 24, 2026

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Overview

This episode dives deep into the recent, radical shifts within the U.S. Supreme Court and the profound impact of its decisions on American democracy and civil rights. Comedian and host Hasan Minhaj brings on constitutional law expert Professor Kate Shaw for a lively, candid, and accessible exploration of:

• How the Court’s power works and has recently expanded,
• The rise of partisan decision-making,
• The consequences for voting rights, birthright citizenship, and presidential authority,
• The pivotal role played by the Federalist Society,
• And what (if anything) can be done about it.

With Minhaj’s trademark satire and Shaw’s legal expertise, the episode both informs and entertains, providing essential context as the Supreme Court plays an increasingly controversial and determinative role in American life.

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Key Discussion Points & Insights

1. Supreme Court Power: A New Era of Radicalism

• Minhaj opens with humor, describing childhood misconceptions about American power (“nine old people in Hogwarts robes”), before explaining how pivotal the Court’s interpretations are to actual governance.
  • “The real power in America isn’t making new laws. It’s interpreting what old laws mean.” (Hasan, 01:35)
• The Court’s 6–3 conservative majority has moved far beyond tradition, overturning decades of precedent in a “civil rights slasher” series of decisions: Roe v. Wade, affirmative action, presidential immunity, and Voting Rights Act rollbacks. (03:00–03:30)
• The “shadow docket” (emergency docket)—once rarely used—has become a routine tool for controversial, unexplained decisions that favor Republican priorities.

2. How the Supreme Court Expands Its Power

• The Court is now taking on new authorities, especially after repealing “Chevron deference” (the principle that courts defer to agency expertise on interpreting ambiguous laws).
  • “[Now] judges should decide what words mean because judges are experts on words and we need to trust the experts, which normal people would call circular reasoning.” (Hasan, 07:35)
• Professor Shaw explains the historical origins and dangers of this trend:
  • “The court has sort of abandoned any pretense of deference or humility and is deciding for itself some of the most contentious and divisive questions.” (Kate, 19:28)

3. Partisanship on the Court: When the Mask Came Off

• The current Court votes reliably along partisan lines, a new development according to Shaw:
  • “Each [Justice] votes pretty predictably with the policy preferences of the presidents who appointed them. And that was not always the case.” (Kate, 08:59)
• The Kavanaugh confirmation was a turning point that tipped the balance to a lasting conservative supermajority.
• The refusal to hold hearings for Obama’s Garland nominee fundamentally altered public perception and the Court’s legitimacy.

4. Case Studies: From Birthright Citizenship to Voting Rights

a) Birthright Citizenship (14th Amendment, 23:47–29:50)

• Trump administration’s executive order attempted to end birthright citizenship for children of non-citizens—even though the law is “about as settled as something gets.”
  • Shaw: “Just trying to unsettle it…has the very disconcerting effect of throwing everything into question.” (Kate, 30:33)
• Even if the Court rules against Trump, as expected, the existence of a substantial minority of justices open to his arguments signals a dangerous shift in the legal Overton window.

b) Voting Rights Act (35:22–41:46)

• Once considered the “crown jewel” of the Civil Rights movement, the VRA has been gutted through a series of Supreme Court decisions.
  • “The Court now says, as long as there’s not evidence of intentional discrimination... if you say what we’re doing is seeking partisan advantage, essentially the rules are out the window.” (Kate, 39:03)
• The parallel dismantling of affirmative action and voting protections rests on the Court’s assertion that “racism is over” — a claim ridiculed as out of touch with reality.
  • “If anything gives the lie to the [Justice] Alito claim… it’s literally the last month of the President’s social media feed.” (Kate, 45:00)

5. Discriminatory Intent vs. Outcome

• Courts now require explicit evidence of intent to discriminate, rather than judging by outcomes—making it much harder to challenge voter suppression or racial gerrymandering.
  • “An intent requirement is going to mean that very, very few cases challenging what are actually discriminatory moves in practice… will succeed.” (Kate, 51:12)

6. The Federalist Society—America’s “Argument Industrial Complex” (52:00–56:33)

• Six of nine current Justices are Federalist Society members. Shaw describes its evolution from debating society to a strategic pipeline for conservative legal arguments and judicial appointments.
  • “It’s a very instrumental approach to the law... very dangerous and destructive goals much of the time.” (Kate, 54:15)
• Minhaj analogizes it to “the minor leagues for Supreme Court justices... It’s a tiny island, but suddenly all the Yankees play for the Dominican Republic.”

7. Originalism and Judicial Philosophy (58:53–64:33)

• Sharp comedic metaphor: “Is originalism the whole ‘Little Mermaid can’t be Black’ thing?”
• Shaw explains that originalism ties constitutional interpretation to the (often narrow, exclusionary) understandings of centuries past, ignoring modern realities.
  • “To decide whether you have the liberty to terminate a pregnancy today turns on what they understood in 1868…” (Kate, 62:49)

8. Advanced Doctrines: The Unitary Executive & Major Questions (66:31–69:32)

• Unitary Executive Theory: Concentrates unchecked power in the presidency (“Let him cook”), often at the expense of Congressional oversight or agency expertise.
  • Major Questions Doctrine: Courts prevent agencies from acting on significant issues unless Congress has been unusually specific, effectively paralyzing expertise.

9. Shadow Docket—“Amazon Prime One-Day Delivery of Injustice” (70:50–73:13)

• Court now uses the shadow docket to rubber-stamp drastic executive actions, often without explanation—on life-altering matters like deportations and military service bans.
  • “It’s hard to defend if you had to write an opinion explaining yourself. So they don’t.” (Kate, 72:56)

10. Reform and Optimism: Can Anything Be Done? (73:45–78:43)

• Possible reforms: Changing the number of justices, imposing term limits, requiring reasoned opinions, and increasing transparency.
  • “There don’t have to be nine justices—that’s not in the Constitution. We could add a bunch of additional justices.” (Kate, 74:15)
• Minhaj jokingly proposes publicizing the Justices’ browser histories as the ultimate transparency. Shaw is (partly) on board.

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Notable Quotes & Memorable Moments

• On Judicial Overreach:
  “Words now just mean what powerful people say they mean. It’s why Starbucks can call its employees partners instead of what they really are. Bathroom attendants.”
  — Hasan Minhaj (05:24)

• On Chevron Deference:
  “We can’t trust the experts to decide what words mean. Judges should decide what words mean because judges are experts on words.”
  — Hasan Minhaj (07:42)

• On Settled Law:
  “Birthright citizenship is about as settled as something gets. And so trying to unsettle it…has the very disconcerting effect of essentially throwing everything into question.”
  — Kate Shaw (30:33)

• On the Federalist Society:
  “It’s a minor league, pro-am system for Supreme Court justices... You’re already being identified as somebody who could be a future, potentially federal judge.”
  — Hasan Minhaj (56:15)

• On Originalism:
  “Make Ariel white again.”
  — Hasan Minhaj (59:42)

• On Judicial Reform:
  “There don’t have to be nine justices—that’s not in the Constitution. We could add a bunch of additional justices.”
  — Kate Shaw (74:15)

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Timestamps

(select highlights)

• 01:35 – Hasan explains Supreme Court interpretive power
• 03:00–03:30 – Recent “civil rights slasher” decisions
• 08:59 – Shaw: Court now votes entirely along appointment lines
• 23:47–29:50 – The birthright citizenship controversy explained
• 35:22–41:46 – Voting Rights Act: history and its dismantling
• 52:00–56:33 – Federalist Society’s influence broken down
• 58:53–64:33 – Originalism, Little Mermaid, and living constitutionalism
• 66:31–69:32 – Deep dive: Unitary executive vs. major questions
• 70:50–73:13 – The “shadow docket” and its dangers
• 73:45–78:43 – Possibilities for reform and the importance of transparency

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Tone & Takeaways

• The episode uses humor and sharp analogies to make complex legal concepts accessible and engaging.
• Shaw’s deep expertise and Minhaj’s irreverence balance urgency with hope.
• Despite the dire diagnosis for the Supreme Court’s partisanship, audience attention, public pressure, and creative legal/political strategies remain meaningful tools for change.

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For listeners seeking to understand why the Supreme Court’s actions matter for democracy, this is a must-listen episode—a masterclass in both law and political satire.

Transcript

[A]

Lemonade. All right. The feedback from my audience is in. Making fun of Deepak Chopra. No thanks. Riffing with my boy Ramy Youssef. Gtfo. This audience wants to learn, so get out your textbooks and then close those textbooks because you're on YouTube where people come to watch 12 minute animated recaps of books, but not actually read them.

[B]

Tips.

[A]

Today's lesson, how the Supreme Court is fucking up the country. Let's begin. Now, when I first learned civics in social studies, I thought the Supreme Court was just nine old people in Hogwarts robes and that the real power was being a member of Congress. Because people in Congress, they made the laws. And as a kid, nobody was more powerful than my parents, who were basically lawmakers. Bedtime was 9pm Dumb was a swear word, and the Simpsons were a banned substance because they were disrespectful to their parents who Those were the laws. More recently, I've realized that the real power in America isn't making new laws. It's interpreting what old laws mean. I'll give you an example. In the United States, all new laws have to follow the Constitution. And the Supreme Court decides what the Constitution means. So let's say Congress passes a law to cap how much money corporations can spend on a political campaign. There's nothing in the Constitution that says you can't do that, right? Well, it depends on how you interpret the Constitution. Because if you interpret the word corporations as people and interpret the word money as speech, suddenly that's an unconstitutional limit to free speech. The Supreme Court doesn't see the Constitution as a living document, but it does see the dictionary as one. Yeah, Merriam Webster is going to have to start releasing patch notes like, update 14.2. Gun is now a pronoun. For my entire adult life, it seems like the Supreme Court has been using its power to favor one particular political party, Republicans. In 2000, they stopped the Florida recount and essentially handed the presidency to George W. Bush. They were like, look, dude, enough with the hanging chads and all this Florida stuff. George W. Is your president. Let's move on. In the 2010 Citizens United case, they legalized unlimited campaign spending. And. And in 2013, they repealed a huge part of the Voting Rights act by basically saying, we don't need that anymore because racism is over. Okay, to be fair, Clarence Thomas didn't literally get up and go, racism is over. Bye, Felicia. But during oral arguments, Chief Justice Roberts asked the defense attorney, is it the government's submission that the citizens of the south are more racist than the citizens of the North. I mean, yeah, obviously, except for Boston. Now, as extreme as those decisions were back in the pre Trump era, the current court, the 6, 3 conservative majority court that we now have, that's been in place since Brett Kavanaugh joined in 2018. That court, oh, it's been more radical than anything that's come before. It's now a tradition. Every summer, we get two things on the big screen. A Nolan IMAX movie and a Supreme Court civil rights slasher. The supreme court overturning Roe vs Wade, ending abortion as a constitutional right after

[B]

nearly a half century. The Supreme Court striking down affirmative action and reshaping college admissions. The court ruled that the official acts of sitting presidents are immune to criminal prosecution even after they leave office. The U.S. supreme Court today struck down one of Louisiana's majority black congressional districts, a decision that weakens key protections under the Voting Rights Act.

[A]

But those high profile cases are only a part of the story because this court has also been using an extreme power that was only meant for emergencies. It's literally called the emergency docket. But you may have heard it called the shadow docket. In the past, it was used in dire situations where, say, lawyers needed to delay an execution so an appeal could be heard. The point is to allow the Supreme Court to quickly pause lower court decisions if they would cause irreparable harm. The court would basically be like, look, you're about to execute, execute a man. Can we just give this a breather? Let the defense team file an appeal. Everyone take a little Dunkin Donuts break. We chill out. Then when we come back, we can figure out if we gotta go Green Mile on this guy. This used to be rare. During the 16 years of the Bush and Obama presidencies, they appealed for emergency relief just eight times. But during Donald Trump's first term, the White House requested it 41 times. And in the first year of his second term, Trump 2.0, they requested it over 30 times. At this point, Trump doesn't even bother to pass laws. He just does something crazy out of pocket, gets sued, and then immediately runs to the Supreme Court for help. And for some reason, the Supreme Court goes along with it. But by using the emergency docket, the court is implying two things pretty much. Number one, any lower court decision that DJT doesn't like, they count that as a emergency. And number two, if number 47 doesn't get what he wants, the court basically says this will cause the country irreparable harm. So they're completely twisting the meaning of the words Emergency and harm. But I guess words now just mean what powerful people say they mean. It's why Starbucks can call its employees partners instead of what they really are. Bathroom attendants. The Supreme Court's use of the shadow docket has allowed Trump to continue with a ton of policies that lower courts tried to stop, like those deportations to Sudan and Venezuela countries those people aren't even from. Expulsion of transgender service members from the military and allowing ICE to stop people based on their ethnicity or even their accent, which is fucking crazy. ICE is just posting up outside of Chipotle's and snatching up anyone who pronounces pico de gallo correctly. They've also allowed the Trump administration to eliminate $4 billion in foreign aid in over a third of the Department of Education. And. And they did all of that without even explaining their reasoning, because that's not required on the shadow docket. Who do they owe an explanation to? Their constituents? Me and you? Of course not. We don't vote on these guys. Clarence Thomas has never held elected office. Unless, of course, you count the presidential suite at the Sandals Barbados. As harsh as the Supreme Court's conservatives are on immigrants, trans people, and pregnant women, they reserve their harshest decisions for their true nemesis, black Americans, and any 63 shadow docket decision. Earlier this month, the mask came off completely.

[B]

The Supreme Court granted an emergency request from Alabama to move forward with its redrawn congressional map. Lower courts had ruled this map intentionally discriminated against black voters after a lower court said, whatever the Voting Rights act

[A]

says, this is unconstitutional.

[B]

It is constitutionally impermissible to discriminate against

[A]

black people in this country, these United States, with our Constitution. And the court said, no, actually, you can. So somewhere between 2013 and now, the court changed its opinion from racism is over to, okay, fine, racism isn't over, but we're cool with it. Now, incredibly, everything I just described was done using powers that the Supreme Court already had. But the current court is so radical that they are actually seizing whole new powers for themselves that they didn't even have before. Take the recent repeal of the Chevron deference. Now, I know that sounds like the pen name of someone who writes legal erotica, but it's a little more complicated than that, so I'll explain. For decades, if Congress passed a law that said something vague, for example, we should have clean air. The court had to interpret what clean meant. They would defer to federal agencies for their interpretation. Those people were the experts. These agencies employ thousands of scientists and experts who could make a precise interpretation of what qualified as clean air. It was a standard set in a Supreme court decision in 1984, Chevron v. Natural Resources Defense Council. But this Supreme Court overturned that decision in 2024 and said judges should be the ones that decide what any vague language means. So this was basically their logic. We can't trust the experts to decide what words mean. Judges should decide what words mean because judges are experts on words and we need to trust the experts, which normal people would call circular reasoning. But this Supreme Court would probably give it some highbrow bullshit label like the circumference doctrine. Now, unlike the Supreme Court, I know I'm a dumbass, so I always choose to rely on experts, which is why I called in Kate Shaw. She's a constitutional expert who teaches law at the University of Pennsylvania. A I didn't go do what my sister did for grad school. She previously worked in the Obama White House and she even clerked at the Supreme Court. So she's seen this place from the inside and out. She also co hosts the legal podcast Strict Scrutiny. So I sat down with the professor to talk about the gutting of the Voting Rights Act.

[B]

If anything gives the lie to the Alito claim in Calais that racism is basically done. It's literally the last month of the president's social media feed how the whole

[A]

idea of the Supreme Court as a nonpartisan institution is essentially gone.

[B]

The court today, really, for the first time in the modern era, has on it nine justices, each of whom votes pretty predictably with the policy preferences of the presidents who appointed them. And that was not always the case.

[A]

And we talked about the upcoming birthright citizenship decision and why it's so important

[B]

today, even though I think he's going to lose, it has created some uncertainty, some doubt, some pathway by which some future president or future Congress could try again, where I think that was unthinkable previously.

[A]

So guess what? Y' all want nerdy shit? You wanna study? Well, this is it, folks. I'm bringing on a guest who has a podcast just about the Supreme Court. Don't ever say I didn't give you baby birds what you want. Now, let's save education in this country right after this ad read. Last week, Chinese President Xi Jinping allegedly told Donald Trump that Putin might regret invading Ukraine. Now, other outlets are reporting that President Xi Jinping denies this conversation completely. With over 1 million casualties for Russia and counting, I would be regretting it. Now, I read about this meeting on Ground News, which is today's sponsor of hmdk. Ground News is a platform that has has helped our team be responsible consumers of the news. It shows a breakdown of all the publications reporting on a certain story, including the typical factuality of each publication in which way they tend to lean politically. We can't eliminate bias. We all have them, right? But we can factor it in as we analyze an event or an issue. Take it from me, if we talk about my personal bias, I am always gonna be questioning the veracity of a Donald Trump claim. But I have to withhold judgment for now based off the publication's reporting. No one is sure what actually was discussed between these two men, but if I had to guess, it was probably the sheen influencer trip. Never forget. Let's cut through the noise together. Go to groundnews.comhussin to subscribe and get 40% off the unlimited access Vantage plan, the same one that we use right here at HMDK. Go to groundnews.com husn today. Picture this. You're finally taking time to clean out your gutters. Not fun, but hey, good for you. Your elbows deep in soggy leaves and suddenly the smoke alarm starts blaring from inside. Smoke pours out the window. What do you do? ADTs do it yourself systems are built for those moments in your life when everything turns on a dime. They're affordable, easy to set up, and the ADT app keeps you in control 24. 7 from virtually anywhere. Tackle your to do list knowing that your home is protected. When every second Counts, count on ADT. Visit ADT.com or call 1-800-ADT ASAP. Here's why I wanted to sit down with you, Professor. So I understand the power of Congress. They make laws. I understand the power of the president. He can start a nuclear war. Not great.

[B]

Regrettably. Yes.

[A]

Yeah, not too fun. But I didn't realize how powerful the Supreme Court was kind of until recently. Yeah, shit's getting pretty gnarly right now because I used to think of them as just kind of nine people in Hogwarts robes that are just in the shadows.

[B]

Yeah.

[A]

At a basic Schoolhouse Rock level. What does the Supreme Court do?

[B]

So I think there are different answers across time. And I think when you say I didn't quite realize how powerful they are, that's because until recently, they were not as powerful as they are today. So when the Supreme Court, it's created by the Constitution, when it's first, you know, formed and stood up, it's not a particularly powerful institution. It's not totally clear what it does. It has the Power to resolve cases and controversies. But it's hard for presidents even to get people to take the job of Supreme Court Justice. Like somebody leaves to go be a judge on the South Carolina Supreme Court because that's a way higher status job. Like it's not a big deal. So in 1803, the Supreme Court decides this really important opinion, Marbury versus Madison. And John Marshall, who's this really critical chief justice, announces to the world it is emphatically the province and the duty of the judicial department, that is the federal courts, to say what the law is. Like we get to say what the law is, and everybody else is bound by that. So that's 1803, and that's the kind of Supreme Court first staking out this position of power in our system of government. And it doesn't happen immediately, but over the course of the years, the court does sort of quietly amass both this power and status. We all sort of accept that the Court has this really important role as the final decider, right? It's the arbiter of the meaning of the Constitution and the laws passed by Congress. And when the Court is acting modestly and in a restrained fashion, this function of being the ultimate decider of legal questions is actually a totally healthy one in a democracy. But I think we have seen, and this is why you are noticing them more, the Court really, really sort of spread its wings and assert all sorts of outsized authority that we really haven't seen the Supreme Court assert for most of our history.

[A]

The Supreme Court essentially interprets laws, Right. Is that correct?

[B]

Yeah, that's correct. You got it.

[A]

Okay.

[B]

A so far.

[A]

But Congress makes laws also, Right. So isn't Congress more important than the people that interpret it?

[B]

The Constitution agrees with you and so did the people who drafted it. So Article one, the first article, is the one that creates and empowers Congress. Okay. Congress is supposed to be in the driver's seat, right. We elect them in the House every two years, in the Senate every six years. They're supposed to channel the will of the people into the laws that govern all of us.

[A]

Correct.

[B]

But of course, someone's going to have to decide what those laws mean. Sometimes Congress writes broad and open ended statutes, Right. Like, you know, provides for a healthful environment, clean air, clean water. Right. So these are big statutes that are deliberately drafted in broad and open ended ways and someone has to decide what they mean. And most of the time the Supreme Court takes a look at, you know, statutes, when there's a disagreement about what they mean, tries to figure out what Congress intended, used to look at what agencies who implemented those statutes, understood about the statutes and sort of gave their best guess about what sometimes ambiguous terms mean. This Supreme Court has really changed the way they interpret statutes, has invalidated many statutes passed by Congress, has read them narrowly using these invented doctrines like something called the major questions doctrine. So the Court has done a lot more than just provide kind of guidance when there are ambiguous statutory terms. It is in many ways taken unto itself the power to make laws. And in some ways, we're living under a system that is as much the product of the Supreme Court as Congress, and that's not really the way it was supposed to work.

[A]

It's really interesting that you're saying that, you know, words clearly have a meaning. But I can I take that example that you gave two examples. Clean air, clean water, and I'm sure states, local municipalities, the public at large, they may disagree on how clean.

[B]

Right.

[A]

How much toxic waste should be in the Hudson river or in the air.

[B]

Yeah.

[A]

And you're saying the Supreme Court, hypothetically, if they were to take that case, they would define what the word clean means, like how clean is clean.

[B]

I mean, I know that sounds crazy, but more or less, yes. So until recently, actually, in a case like that, what the Supreme Court would typically do is say, well, Congress passes these laws, and then agencies like the Environmental Protection Agency have to basically fill in the meaning of those laws.

[A]

Yeah.

[B]

So if a court is asked, what does, you know, healthful environment mean? What does clean air mean? It's not going to write on a blank slate. It's not going to decide, what do the nine of us think those words mean? It's going to say, what are these experts in agencies that have spent years, you know, a lot of the time, these laws, there's like state federal partnerships. So states and municipalities will come up with a proposal about how to achieve cleaner water or cleaner air, because perfectly clean air and water are, you know, a little bit difficult to actually achieve. So agencies spend a lot of time and have a lot of expertise devoted to kind of filling in the meaning of those kinds of, you know, capacious statutory terms. So until recently, the Supreme Court said, well, we're going to defer to agencies when they've offered a reasonable interpretation of what a statute means. And this is an example of the Supreme Court asserting this kind of, you know, extraordinary role in our current moment. A couple of years ago, the Supreme Court said, you know, that thing about where we used to defer to administrative agencies? No, we are the decider about what basically every statutory term means. So if we have a statute that says something like clean air, we're going to open some dictionaries, we're going to decide what clean means, we're going to decide what air means, and we're going to shove them together, and then we're going to decide, you know, whether whatever proposed plan, say that, you know, whether it's a polluting company or a state or municipality that is trying to decide how to actually implement that broad congressional directive, it's to us, the federal courts, to decide in the Supreme Court ultimately. And again, like, that's them doing lawmaking in a way that was never really intended.

[A]

Well, so here's the philosophical question, I think, for our conversation. Do words have meaning or are they just things that very powerful people get to define?

[B]

Yeah, I mean, that's a profound question. I think that there will always be some discretion that the kind of interpretive endeavor entails. So, I mean, words in context have usually a range of meanings. And so I think the question is, if you're the courts, your job is to ultimately decide what statutes mean, what are the rules of the road for figuring, for figuring that meeting out, what kinds of sources do you consult? And also, what kind of humility to the task of interpretation do you bring? And again, historically, courts would bring, I think, a pretty heavy dose of humility to some of these interpretive questions, because do, yes, words have meaning, but also words have different meanings in different contexts and at different moments in time, and there are different consequences to adopting different kinds of meanings. And so. So I think a responsible court will sort of acknowledge the complexity of that task and say, we're going to look to all of these places for guidance. And I think what we're seeing on the Roberts court, right, the current Supreme Court, is let's just, like, make it up and be legends, right? Like, if we think that an interpretation of a statute is going to be too burdensome on industry, on coal companies, because it's going to require them to really clean up the emissions that they produce. Meh. We're gonna. We're gonna strike that interpretation that an agency is adopted down, and we're gonna sort of decide for ourselves that it means something much more, you know, congenial to the kind of interests of industry. So that's just one example. But I. I think that that's the kind of moment we're in where the court has sort of abandoned any pretense of deference or humility and is deciding for itself some of the most contentious and divisive questions. We're talking about statutory questions, but of course, constitutional questions are in some ways even harder and sometimes more consequential. And in all of those cases, the court is basically saying, let's sort of rip up a lot of the sort of way things have been done and the precedents that we and other entities have issued and just kind of decide what we think the best policy looks like.

[A]

When did that shift happen?

[B]

It's a great question, and I think it's hard to say. Exactly. So I think that some people would say, you know, the kind of contemporary Supreme Court in some ways is traceable to Bush versus Gore in the year 2000, when the Supreme Court arguably really puts its thumb on the scale in favor of George W. Bush in the 2000 presidential election. It intervenes, it directs the halting of ballot counting, and basically hands George W. Bush the presidential victory.

[A]

Right.

[B]

This is the big.

[A]

This is the big hanging chad.

[B]

Exactly.

[A]

Florida situation in 2000.

[B]

So that's, you know, quarter century ago. I think that's one possibility. Another possibility is you right now have both a pretty ideological court, but also in some ways a quite partisan court. So the court today, really, for the first time in the modern era, has on it nine justices, each of whom votes pretty predictably with the policy preferences of the presidents who appointed them. And that was not always the case. So Justice Anthony Kennedy, for example, was appointed by Ronald Reagan. He was Republican appointee, but he wrote them, most important gay rights decisions. He wrote the gay marriage decision. So he wrote decisions, you know, reaching liberal or progressive outcomes, even though he was a Republican appointee. John Paul Stevens, for whom I clerked, was a forward appointee, so appointed by a Republican president, but was sort of the leader of the liberal wing of the court by the time he retired. So that kind of era where justices sort of had minds of their own and didn't always vote the way the presidents who put them on the court would have wanted, really, I think, ends when Brett Kavanaugh gets on the court and replaces Amy Anthony Kennedy. So we are less than a decade, I would say, into this sort of hyper partisan era of the Supreme Court. And I think in that sort of new hyper partisan era, we've had the court sort of doing much more to kind of implement its policy preferences in ways that don't always look terribly kind of judicial or judicious.

[A]

Why was that Kavanaugh confirmation such a lightning rod moment in terms of the. The partisanship.

[B]

Yeah.

[A]

Of the Supreme Court.

[B]

Yeah.

[A]

You know, outside of everything else in his personal life that was being analyzed. But it really was this, this huge, certainly in my lifetime where I felt like this conversation was now at the forefront, that hey, there, there is now a political party and partisan bent Supreme Court appointees.

[B]

So I think that in some ways the sort of the Runway to that is. So Barack Obama is in the last year of his presidency and he nominates Merrick Garland to fill the vacancy left right by Justice Scalia's death. And Mitch McConnell and the Republican Senate refused to even give Garland a hearing. And so that seat sits open for almost a year. And then when Trump gets into office, he quickly puts Neil Gorsuch on the court. So that's the seat before the Kavanaugh seat. And then, but you know, Scalia was a die hard conservative and so was Justice Gorsuch. And so, you know, that seat, to many people's mind was a stolen seat. But once Garland wasn't going to fill, once Obama was not going to be able to fill the seat. Scalia's replacement with Gorsuch didn't change the balance of, of the court. Kennedy being replaced by Kavanaugh fundamentally changed the balance of the court. And I think that's part of the reason that sort of you remember this as this kind of, you know, inflection point with people's understanding of the Supreme Court. And there was also the fact that, you know, there were these very serious sexual misconduct allegations against Kavanaugh that were surfaced during the course of his confirmation hearing. But it was also really fundamentally about the future and direction of the court. And so I think people rightly understood it to be a very high stakes confirmation. He ultimately squeaks by. Right. One of the narrowest confirmation votes in history. And then the balance of the court is fundamentally shifted in ways that, you know, lead to the overturning of Roe vs Wade. And I think the court is in some ways just getting started in the precedents it's going to overturn.

[A]

I'd love to go through some examples to get very specific about how it's changed over the past few years. Let's take one concrete example, birthright citizenship. So here's the exact quote about birthright citizenship from the 14th Amendment. So this is what it is. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. So here's my interpretation. And again, this is my very basic poli Sci degree interpretation. I'm reading this. Hey, if you pop out of your mom. In the 48 states here in the continental United States or Alaska or Hawaii, guess what? You're American. I thought, this is pretty much settled. But then Trump was basically like, send the brown babies back. Unless, of course, you're white Africaners, then welcome home, kings and queens. So what's up with that?

[B]

I mean, your understanding is the understanding that we have held essentially since the 14th Amendment was added to the Constitution in 1868. So this is constitutional bedrock.

[A]

Yes.

[B]

You are born here. It doesn't matter we where your parents came from. It doesn't matter what their legal status was. You're a citizen, full stop. It's both been reaffirmed in multiple Supreme Court opinions, statutes passed by Congress, executive orders and regulations issued by the president and administrative agencies, states, cities. Our constitutional culture, like it, has always been understood as one of the things that fundamentally actually makes America great. You are born here, you are American. Like, that is what our pluralism looks largely is grounded in. And until recently, nobody seriously disputed it.

[A]

So can I tell you what the shocking part for me was? I wasn't shocked that Donald Trump feels this way. In fact, the lawsuit challenging the executive order also didn't surprise me. What I'm surprised by is the Supreme Court took the case.

[B]

Yeah.

[A]

Why?

[B]

Well, okay, so a couple things. One, so Trump, you know, in his first term, he had made noises about this, but obviously on just to sort of lay the groundwork a little bit, day one of Trump 2.0, he issues his executive order. It says birthright citizenship. Contra. All of this broad agreement and sort of settled history that we have just discussed is no longer the law of the land. And anybody born 30 days after the issuance of this order, you know, if your parents aren't. If you don't have a citizen or lawful permanent resident parent, even if your parents are here on a student visa or other temporary status, you're out of luck. And obviously immediately challenged. And lower court after lower court says this is a blatantly unconstitutional executive order, and the administration takes the case up to the Supreme Court. So it actually came up to the court once last year on this kind of procedural question of whether lower courts can issue something called nationwide injunctions. The court said, no, they can't. This has to be a class action. So it's back before the court is a class action. But the kind of fundamental question is, is this executive order constitutional? And in some ways, the question is, right, the court had an opportunity last year to basically say, we're going to just put an end to this. This is an obviously unconstitutional statute and so or unconstitutional executive order. So we're done with this. When the lower courts issued their opinions striking down the executive order, I actually think it was right for the Supreme Court to agree to hear the case of the. They could provide a nationwide answer and hopefully. And I think the answer is that the order is obviously unconstitutional. But the reason it's actually important for the court to be the one to answer that is if you have, you know, so far all the lower courts that have considered this question have unanimously concluded that it's unconstitutional. But you could imagine a very conservative lower federal court reaching a different conclusion. I don't think they could do it plausibly or reasonably, but I wouldn't rule it out. And if that happened, you could imagine a patchwork in which courts in some parts of the country have said the executive order is unconstitutional, and in other parts of the country the order goes into effect. And that would be intolerable. Like, you're an American, if your parents are in, you know, you're born in California but not in Texas. Like, I think that that doesn't work. You need a uniform national answer. So I do think the court wasn't wrong to take the case, But I think it'll be immensely disturbing if even a single justice votes to, you know, uphold this executive order. And based on the tenor of the argument, I think that, you know, maybe two, maybe as many as three justices will vote with Trump. But I didn't hear a majority. So that at least is an enormous relief.

[A]

You've called birthright citizenship settled law, is that correct?

[B]

Yes, absolutely.

[A]

Okay, so my interpretation of settled law when I read that in kind of like my pre interview document was kind of like, I imagine my dad being like, this is settled. Like, we used to have this all the time with my dad and Chuck E. Cheese. I'm like, can we please go to Chuck E. Cheese or Dave and Buster's? He's like, we're not going. This is settled.

[B]

Okay.

[A]

And as soon as it was settled, I was like, we're not going. I would tell my little sister, I'm like, this is never happening. This is an executive order coming from Najmi down. We are never going to Chuck E. Cheese or Dave and Buster's. This is settled.

[B]

Yeah.

[A]

Now, I always thought birthright citizenship was settled law, but wasn't Roe v. Wade also settled law? Like, hey, this is done. This is the law of the land. We all need to accept this and get on board.

[B]

You are right. I think to point to just kind of how destabilizing it is for a president to even try to implement an executive order like this one in the face of such clearly settled law, even though I think he's going to lose, it has created some uncertainty, some doubt, some pathway by which some future president or future Congress could try again. Where I think that was unthinkable previously. Roe versus Wade, I would say is a. Was a little bit different. It was settled law in that the supreme court had in 1973 said the constitution and its liberty guarantees protects the right to decide whether to continue with a pregnancy that's part of liberty and autonomy. But for decades, not immediately, but within a few years of Roe, there was enormous effort to unsettle Roe. And the court came close to overturning Roe in, you know, the early 1990s in a case called Planned Parenthood versus Casey, ultimately reaffirmed it, but on a very narrow vote. And so and state legislatures and even Congress have, or some members of Congress have been for a long time, you know, had Roe in the crosshair. So Dobbs, which overturned Roe, was the culmination of this half century really of effort, you know, through lawmaking, through popular mobilization, through judicial appointments. Right. Putting judges on the bench that you thought would be sympathetic to overturning Roe. It was the culmination of this long multi front sort of campaign. Birthright citizenship is just, is different. It is something that, you know, Trump again played with, talked about a little bit in 2015, and then, you know, generated a little bit of support with a handful of law professors who wrote some articles that sort of seemed to provide some support for this outlandish theory that the phrase in the middle of the first sentence of the 14th Amendment, this sort of sl, subject to the jurisdiction thereof, somehow swallowed the rest of the amendment that confers birthright citizenship. So they developed an argument very recently, but I do think that just it's about as settled. Birthright citizenship is about as settled as something gets. And so trying to unsettle it, I think has the very disconcerting effect of essentially throwing everything into question.

[A]

And it, it feels like the long term goal, if I'm understanding this correctly, is even if it loses, the goal is to start to tally up those votes and shift the legal overton window.

[B]

Absolutely.

[A]

Is that correct?

[B]

I think that's right.

[A]

Of like, hey, it lost six to three, but we got three.

[B]

Yeah. No one thought you would get three a decade ago. Right. He could spin that as a victory. Three people now think that I have the constitutional authority to override this settled principle that, you know, is Both in the 14th Amendment but in, in many ways like way predates even the 14th Amendment. And so yeah, I think that maybe this is part of a, you know, decades long strategy as well.

[A]

Do you think opposition to birthright citizenship will now be kind of like a go to quality the President is looking for when looking for a Republican leaning Supreme Court justice nominee?

[B]

It's a great question. Does that become like a new litmus test the way trying to figure out if a justice or total that's got

[A]

to be on the dating profile?

[B]

That's totally possible. I mean, you know, the kind of the long standing norms about presidents considering prospective Supreme Court nominees is they're not supposed to ask and nominees are not supposed to make any kinds of assurances about specific cases. But absolutely, the people sort of, you know, producing lists of recommended judges to President Trump were very focused on whether, you know, a prospective nominee would vote to overturn Roe, as Gorsuch and Kavanaugh and Barrett, Trump's three appointees all did. I mean, I hope that's wrong. I hope this is this thing that he takes this run at and loses big and decides like there's another shiny object to focus on. But I think that because it goes so deeply to the kind of pluralist character of the nation, I think you're not wrong that it could become something that like remains an object of real fixation for the conservative legal movement and sort of Trump and whoever the kind of heirs are.

[A]

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[A]

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[B]

$19.99 a month with three days free.

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Build your own multi view, choose up to three streams and follow player spotlights. Stay on top of every moment with live stats, highlights and instant replays. The FIFA World cup, streaming live on Fox One, offers a subject to change. See fox.com for complete terms and conditions. Now. For the longest time I thought the Voting Rights act of 1965 was settled law.

[B]

Yeah.

[A]

Let's break this down to the audience. What is the Voting Rights act of 1965 and how is it now under attack?

[B]

Sure. So Voting Rights act of 1965 is in some ways the sort of crown jewel achievement of the Civil Rights movement. Again, to sort of back up just for a minute. You know, after the Civil war, we have 14th amendment, which we were just talking about, and also the 15th amendment added to the constitution two years later in 1870, which prohibits denying the right to vote on the basis of race. And for about a decade, right during the Reconstruction period, that means something, right? You have genuine black enfranchisement and, and actual representatives and state legislatures and Congress. And then reconstruction ends at the end of the 1870s. And for almost a century, the promise of the 15th Amendment is, you know, a dead letter. There is no meaningful black enfranchisement in the Southern states Register. Voter registration for the black population in, like, Mississippi is something like 5%. I mean, Jim Crow means that, like, there is no black voting and, like, appreciable numbers in much of the United States Civil rights movement, you know, has as one of its key objectives achieving meaningful voting rights and the implementation of the 15th Amendment. And that's what the 1965 Voting Rights act does. It actually, it prohibits denying the right to vote on the basis of race, and it actually creates these mechanisms for making that it means something. So it requires states that are covered, like mostly the former Confederate states, to get permission before they change anything to do with voting in their states. It also has a, you know, categorical prohibition on denying or diluting the right to vote on the basis of race. And it makes an enormous difference. Like, you actually have meaningful black participation and representation. You have actual multiracial democracy, you know, beginning in the midnight or to late 1960s in this country. Um, and within the last decade and a half, the Roberts court begins chipping away at that. So in 2013, the Supreme Court, in a decision called Shelby county, strikes down one key provision of the Voting Rights act, the pre clearance part, the part that requires permission before changing your voting rules, basically on the logic that the south has changed and is less racist. And so this singling out for special coverage of certain states is, you know, injures the dignity of those states. And thus that part of the Voting Rights act has to be invalidated. And then there are a couple of other intervening decisions that sort of further chip away at the Voting Rights Act. And then just a couple of weeks ago, in Louisiana versus Calais, the Supreme Court largely deals a death blow to what remains of the Voting Rights Act. A landmark Supreme Court decision 11 days ago found a congressional map in Louisiana was unconstitutional. The court said legislators relied too heavily on race to draw the lines in

[A]

the name of disentangling race from voting. The Supreme Court has made it virtually impossible for black voters to challenge gerrymandered congressional Maps. Tell me if this is right. Did the Supreme Court essentially rule that parties are now allowed to just draw congressional maps that are low key, racist, as long as they don't say it out loud?

[B]

Yeah.

[A]

Is that correct?

[B]

Yes, basically. So as long as there's not evidence of intentional discrimination. So. Right. So they have said we are drawing the map in this shape to hurt black voters. So if they don't say that, and instead if they say we are drawing the map in this way with this shape to hurt Democratic voters, that's fine. The Supreme Court had, in a decision between the two Voting Rights act cases I just mentioned, issued another decision that basically said partisan gerrymandering. Know, drawing maps that are going to advantage you and your political party and disadvantage your opponents, which of course has significant overlap with race because race and partisanship are highly correlated. But the court said, well, if we're just talking about partisan gerrymandering, that's fine. Fast forward to Kalei. The court said, well, we already said partisan gerrymandering was fine. And also this whole problem with, like, needing to protect black voters against sort of racist legislators and map drawers, things are much better in the south anyway. So for essentially those two reasons, let's toss them in a blender. And this sort of outcome will be as long as you don't, you know, say do the racism verbally. And as long as you say what we're doing is seeking partisan advantage, essentially the rules are out the window and you can draw maps sort of however you choose, which is sort of has us in a brave new world in terms of the sort of redistricting that's ongoing right now.

[A]

Well, I'm seeing a lot of parallels between the conversation around the Voting Rights act and then the way affirmative action was attacked.

[B]

Absolutely.

[A]

Out of curiosity, are you familiar with Edward Blum?

[B]

Regrettably, yes.

[A]

Okay, so I used to have a show called Patriot Act. It was on Netflix. It got canceled, and that's unfortunate. But we did an episode on affirmative action, and Edward Blum was a key character in that episode. Now, for those of you that don't know, Edward Blum is basically the Martin Luther King Jr. For Asian parents who wanted their kid to get into Harvard. Let's take a look at his clip.

[B]

The paradigm of race that we lived with in the 60s, that led to the march on Washington, that led to

[A]

the passage of the Civil Rights act

[B]

and the Voting Rights Act.

[A]

Those times are fading.

[B]

That we now have an America that is multiracial, multi ethnic. You see African Americans with Anglos you see little Cafe au lait looking children to say that we're going to continue doing what we're doing that we did 50 years ago. So I'm ready to move on.

[A]

Cafe au lait babies. I've never heard that used in a sentence. No, ever. So I was weirded out by all of that. But at its essence, is this the argument that won with the Supreme Court when it came to affirmative action? And is this what's going to win with the Voting Rights Act? This kind of Edward Blum energy of racism's over.

[B]

Maybe not the Cafe Only Babies podcast part, but yes, the kind of like, I'm ready to move on is such a perfect distillation of. I think that is sort of the tldr of both the Roberts opinion in Shelby county and Justice Lita wrote the opinion in Calais. They both are basically saying, ah, let's move on, which is just like, not how judges are supposed to operate. Like, they, I think, buy this argument that we have improved, we have moved on. Racism, if not a totally thing of the past and is, you know, such a kind of less serious problem today that the interventions that might have been required in the mid-1960s are no longer required. I think that's wildly wrong. But even if it's right, Congress and not the courts are the ones who should be considering that argument. Right? If we no longer need the Civil Rights act or the Voting Rights Act, Congress can repeal those things. It hasn't done that. In fact, it is reauthorized again and again by virtual unanimity. The most recent voting. Most recent voting rights reauthorization, the continued need for those statutes. But I do think that's. That is essentially the logic that was at play in both of the Voting Rights act cases that we're talking about, and then also in the two affirmative action cases. Well, more than two, but there are two big ones that Bloom was like, really. He bankrolled parts of. He found the plaintiffs he was really critical in as sort of an architect of those cases which, you know, succeeded in the Harvard and UNC cases in 2023, essentially announcing the end of affirmative action in colleges and universities.

[A]

I have a very silly but obvious question. If they're going to entertain the idea that racism is, quote, unquote, over. Have they seen the president's tweets?

[B]

They pretend they haven't, but.

[A]

But how. How do they do that in good faith?

[B]

Yeah.

[A]

Like, how does Brett Kavanaugh, in good faith, see every fourth tweet that Donald Trump tweets? That's pretty racist. I mean, the one on Easter was wild.

[B]

Do you remember that one? Of course.

[A]

Yeah. I think it was, happy Easter, we're going to bomb Iran. Islam alaikum. I think it was some hodgepodge of that.

[B]

Yeah. I mean, it was offensive to everyone.

[A]

Yeah. I don't. I think Christians, Muslims and Iranians alike, sort of. Yeah. It was kind of this Venn diagram where everyone should be equally terrified.

[B]

Correct.

[A]

On planet Earth.

[B]

Yeah. Yeah.

[A]

Because he was threatening nuclear war. And then it was oddly. Oddly kind of like racist.

[B]

Yes.

[A]

But then also like a celebration of Christ rising. Anyways, I say that to say, yeah, these nine justices are clearly aware what's happening in the country. How do they kind of hold this Edward Blum argument and be like, no, it is, it is over.

[B]

I, I wish I could get inside their heads and answer that question. I mean, there's actually a case pending. Not, not to sort of go too far afield, but there's a case pending with Trump's effort to. Or his administration's effort to cancel this temporary protected status, this protection from deportation that the executive branch can extend. That it's extended to a lot of places, and then tried to cancel with respect to Haiti and Syria, among other places. And so the court actually heard arguments a month or two ago in a case about, you know, the decision to cancel this status for Haitian individuals in the country. And the justices were presented with many of the President's wildly racist tweets about Haitians. Not just tweets statements. Both Trump and Vance and cats and dogs and countries. I mean, the stuff was like vile, vile, racist garbage.

[A]

Yeah, but in the blockchain, the Haitian dog stuff him in speeches.

[B]

Yeah.

[A]

It was insane.

[B]

Yeah. And so I think we're going to get an answer to the question that you're posing, which is can they actually put on their blinders and refus. Refuse to consider the statements when they're so germane to a particular case? So that's about this TPS case regarding this particular immigration status. But the broader question, like if, if anything gives the lie to the Alito claim in Calais that racism is basically done. It's literally the last, you know, month of the President's social media feed. Plus what Southern Republican controlled state legislatures have done in the three weeks since Calais was issued. Tennessee Governor Bill Bill Lee just signed a new congressional map into law, splitting up the state's only majority black district.

[A]

Tonight, the Court's conservatives cleared the way for Alabama to move forward with a set of maps that would eliminate one of the two majority black districts in the state ahead of the midterms.

[B]

Governor Ron DeSantis signing the state's new congressional map into law yesterday, tweeting, signed, sealed, and delivered like, no, racism is not over. And just like, again, sort of to return to what we sort of were starting talking about, the kind of hubris that these justices would decide that five or six of them are the seers and the knowers of, like, how big a problem racism is, how much racism is tolerable, whether Congress's careful judgment about what federal statutes we should all live under should be upheld, or whether the court should just strike them down because it disagrees. Like, that is the world we are living in, and it's not really supposed to work there. This way.

[A]

I want to talk about this idea, and I see this common thread coming up a lot when it comes to legal arguments, where on one side you have people saying, if you show that the outcome of something is racist, it should be overturned.

[B]

Yeah.

[A]

And then on the other side is you have to only prove intent.

[B]

Right.

[A]

That something was racist, then it should be overturned.

[B]

Yeah.

[A]

But it's very hard to prove intent, Correct?

[B]

Yes. And I do think that, you know, Alito and Roberts and maybe Ed Blum have a point, which is that racism has gotten a little bit more underground and sublimated. Right. I think there's less explicit and overt racism. I don't know that there is less racism. But I do think it's the case that, say, legislators who want to draw a map to hurt black voters are less likely to say that with their mouths today, maybe than half a century ago. And I think that, you know, that means it's much more difficult in a world where you have to show actual hard evidence of intentional discrimination, racial bias, or animus. It's harder to invalidate something, even if it's super racist, if there isn't the right kind of evidence. And that was, in some ways, the beauty of the Voting Rights Act. Like, you didn't have to have that kind of evidence. You could show, hey, if you're going to take all of the voting, the polling places out of a black neighborhood or leave one in a black neighborhood and a, you know, comparably populated white neighborhood gets 10 polling places, we don't need someone to have said a racist thing. We see that that is a racist act because it disproportionately hurts, disadvantages, inconveniences, black voters who have way longer lines to wait in. Like, that was how the Voting Rights act worked. And that is no longer operational.

[A]

Professor, what's the legal term for I know what you're trying to do? I know what you're trying to do.gov. because my sister's an attorney and arguing with her is just a nightmare. And sometimes I just go, I know what you're doing. I know what you're trying to do.

[B]

There's probably a Latin phrase for it,

[A]

but okay, because here's what I mean. I'm married. I have two kids. They're getting older. Just my Google calendar is destroying me. Professor, I want to hang out with Du Bois. And I've told my wife this, and she's like, well, that's kind of sexist that you only want to hang out with dub boys. Here's how I would do it. If I was a conservative judge, I would say I want to pass a law for short hair gatherings. If you have short hair, preferably, you know, like a number two buzz cut.

[B]

Right.

[A]

I'll take number two to number four. But it's a short hair gathering. If 10 people showed up, most likely it's going to be nine dudes, and then maybe Doja Cat or Ellen DeGeneres. But the outcome is pretty. Yeah, it's segregating women from coming.

[B]

Right? Yeah. And I think in a world where you can basically say, huh, that at least that's not going to necessarily tell us that that is sex discrimination. But at least there is, you know, that evidence maybe compared with the conversations you have had with your wife. If we're going to bring her in and ask her, you know, like, what does Hassan do? You know, why is what's up with the short hair gathering? And she says, well, he does want to hang out with Du Bois. Like, maybe we can get to actually, this is what.

[A]

That would be the smoking gun, essentially.

[B]

Well, but we don't. I'm saying we don't even necessarily need that. If in a world where a bunch of kind of, you know, evidence together that doesn't. You don't need, like, the sentence that says, like, I just want to hang out with men and not women. Like dudes only. But you've said, like, I missed a boys. You haven't actually said, I don't want to hang out with women. I only want to hang out with men. I missed a boys. And then there's the short hair thing. Like, together, we might say that is beginning to look a little bit like sex discrimination. And I'm not saying you can't hang out with Du Bois, but sometimes the law needs to be able to Take into account sort of this kind of constellation of evidence that actually tells us we can smoke out what is happening here. And it's not illegal for you to have friends and to hang out with your friends, but it actually is illegal if, you know, substitute in. I want to hire a producer for my show and I'm going to just, you know, limit the application pool to the short haired folks because I like to hang out with like, you know, Du Bois on set. Like that actually is a problem. And it should be a problem whether or not there is smoking gun evidence that you only want male producers.

[A]

Well, what, what ends up happening? So, for example, let's say I only want male producers. Here's what I could put on LinkedIn. Prove to me that you've played GTA 5 at least 40 hours this week. Trust me.

[B]

I don't even.

[A]

Trust me. You're gonna get a group of heterosexual men that love monster energy drinks and just play video games all day. Okay, but it's gonna be dudes.

[B]

Yeah.

[A]

And I'm saying dudes with a Z. There's a particular type of dude that's gonna apply for this job. But what I'm saying, Professor, is there's very tricky ways to do this and I don't think they're never going to find. Maybe they will. I don't know. You tell me. Are they ever going to find an email saying, yeah, hey, we need to eliminate black voters in southern districts? They're probably not going to find that. Right?

[B]

I mean, you'd be surprised. It actually does happen sometimes.

[A]

But on a dot gov.

[B]

I mean, a few years ago there was a, there was a case in North Carolina where literally one of the members of the legislature asked for data on what forms of voting black voters disproportionately engaged in Sunday voting or early voting. And when they got the information back about, you know, sort of black and white participation rates in different forms of early voting, they then eliminated the kinds of early voting that black voters, you know, were overrepresented in. So that was pretty smoking gun. So. And that's just a few years ago. So it does sometimes happen. But you're right, it's pretty rare. An intent requirement is going to mean that very, very few cases challenging what are actually discriminatory moves in practice in their effect, those are going to just be able to, you know, go unchallenged because there isn't a smoking gun.

[A]

So I really think this conversation centers around this larger idea of the argument industrial complex. And I'm not talking about MALE PODCASTERS that's its own argument industrial complex. But six of the nine Supreme Court justices were a part of this thing called the Federalist Society. Yeah, what is the Federalist Society?

[B]

So I love the argument industrial complex, and I think that's a good description. So the Federal Society is a conservative legal organization. It's founded in the early 1980s on law school campuses and also sort of has a counterpart in the Reagan administration, the Justice Department and the White House. These are the early days of the Reagan years, and it's a bunch of conservative law students and lawyers who are sort of unhappy with the direction of the law. This is sort of after the Warren Court, which issued a lot of very liberal decisions. Brown vs Board of Education most famously, but other ones involving, you know, race participation, voting representation, into the Burger Court, which is a little bit later. There's Roe versus Wade. There's cases about, you know, contraception, intimate privacy, things like that. So these lawyers and law students are big mad about all of this. Right. They think that all of this rests on an individual incorrect understanding of the Constitution. And they're simultaneously. I think this is more the kind of administration side of it interested in kind of increasing presidential control over the executive branch and independent agencies and rolling back regulations that are kind of burdensome and costly for industry. It sort of initially styles itself as this kind of, you know, insurgent effort to sort of change the sort of legal system, the courts, law schools, executive branch, etc, and sort of, you know, is a big part of the push that we were talking about to sort of slowly, you know, and eventually successfully overturn Roe versus Wade and change a lot of legal doctrines that the Federal Society was really hostile to. And, you know, this sort of very long, kind of half century long, almost effort has kind of fully borne fruit. And we now have.

[A]

It's been very effective, right?

[B]

Majority, absolutely, of Supreme Court justices who are former members, who I think, you know, still attend Federal Society gatherings, who view themselves as, you know, sort of still kind of proud participants in the Federal Society. And it has had sort of transformational effect on.

[A]

Do you see it as inherently bad or good? How do you see it?

[B]

Yes, I mean, I think that it has done enormous damage to our legal system. I think that, you know, it. I think that the sort of argument industrial complex is interesting, is an interesting description because in some ways I think that gets at something profound. It calls itself just a dispute debating society. Right. It says we are about the exchange of ideas. You know, we think that there has been sort of a legal, A liberal stranglehold on the legal profession and on the courts. And so we want to create sort of intellectual diversity and debate hard questions and come up with interesting ideas. So that, I think is their conception of self. And I think many people, like, truly feel that way about what the federal society is for and about. But I also think it has been very strategic in developing a lot of legal theories that it has slowly kind of amassed support for by having a lot of, like, legal scholars write articles that sort of support these ideas, you know, carefully vetting judges to see that they're going to be receptive to these kind of arguments when they get before them. And so it's a very instrumental approach the law. Like, we are going to change the legal system and the interpretation of the Constitution for a set of specific goals. And I think, like, very dangerous and destructive goals much of the time. And so I do think that, on balance, it's been a very, very bad thing for us, a debating society. If that's all it was, I think is something that we could all get on board with. But I actually don't think that's what FedSoc is about, because when I.

[A]

When I read about it, I was like, oh, it's like a Kiwanis Club, or just like the Friars Club. We're going to come in here and roast each other.

[B]

Not innocuous like that, but my reading

[A]

of it and my interpretation. Just tell me if I'm interpreting this correct. It's basically an argument factory. What are the key arguments that we want to push into American society through the legal system meets this kind of minor league, pro am system for Supreme Court justices. Yeah, like the same way they have all these baseball players in the Dominican Republic. They're like, we'll find you when you're four and in 20 years you'll play for the New York Yankees. And it's like, how did you. It's a tiny island. How are so many New York Yankees playing? From the doctor. Yeah, you know, it's that sort of. That was my interpretation of it.

[B]

Yeah, I think that's right. I mean, I think that people get clerkships with fancy conservative judges after their first year of law school sometimes. So they're not kindergartners. But those are first year of law school. Like, that's not a lot of, you know, kind of experience and training under your belt, and you're already being identified as somebody who could be a future, potentially federal judge.

[A]

But what are they looking at? Are they looking for the Tucker Carlson bow? You know, just kind of like, as a 1L student, we're like, I like, I like your moxie. I think, come on.

[B]

I think that, well, partly it's. Have you, you become an active member of the chapter of the Federalist Society at your law school and have you said you, you know, you support originalism, textualism, these kind of Federalist Society endorsed modes of interpretation that, you know, we can then sort of train you in and sort of send you out at a very young age to maybe be a judge and, you know, maybe a justice.

[A]

Let me play devil's advocate here. Can't anyone with money kind of do this? George Soros could do this. The Qataris could do this, even though they haven't called me. My DMs are open. I think I check out DM me. Essentially, time plus money plus brainpower. Those three things can lead to huge political and legal outcomes. If you only have two of those three, you're the daily wire. But just to be fair, can't other movements do this?

[B]

Why isn't there.

[A]

Yeah, why is this one particular? Or why is this particularly nefarious? If that's the game? Yeah, okay, like, nicely done. You were really patient, right? You held your, your bonds for 35 years and now they're yielding huge legal dividends.

[B]

I think it is, I, I share that a degree of admiration at just how effective the Federal Society has been. I don't think there's anything stopping the kind of legal left, and some say big funders on the legal left from doing something comparable. I mean, I think fundamentally, for better or worse, a lot of the time liberals don't think about the law in quite so instrumental a fashion. Like we, we think the Constitution, you know, should be interpreted in a way that is sort of faithful to its core principles and that sort of accords with history and tradition to a degree. Sometimes we break with history and tradition. So I think we have these sort of broad views use. But to sort of say we're going to, you know, decide on an outcome we want and then retrofit a set of legal arguments to get there feels like fundamentally hackish and inconsistent with a principled approach to, to what the law should be, how courts should operate, what they are for. And so I think there is a principled reason that we don't have a liberal answer to the Federalist Society. But as a strategic matter, I think it is an enormous problem. So I think maybe we just need to like, get over it.

[A]

You mentioned this idea of originalism earlier. What is originalism? Is this the whole Like, Little Mermaid can't be black thing. Is that what originalism is? Do you remember there was this whole hullabaloo. Yeah. So, like when. When the Little Mermaid was. Was black people lost their minds. And I. I think they were totally wrong to do that because I went to go see the Little Mermaid. Hal, she's incredible in the movie, but the animation of the fish, they are terrifying.

[B]

Okay.

[A]

I haven't seen. Oh, my God, don't. If you have children, you give them. Flounder looks terrifying. The lobster looks like a real lobster. I mean, if you look at real lobsters in real life, they look like they come from the dungeons of hell. It's some Dante's Inferno underground crazy.

[B]

Yeah.

[A]

I think we should be more appalled by that. Not that the Little Mermaid is black. So is that what originalism is? Make. Make Ariel white again?

[B]

I. I confess I didn't. I'm not sure I tracked the discourse closely enough where they focused on, like, the Hans Christian Anderson, like, obviously had a white mermaid in mind, or was it about the D. Disney, Ariel or.

[A]

I'm not sure, but I actually think their frame of reference was I had a VHS in 1990 one of the little Mermaid and Ariel was perhaps my first sexual awakening. And she has to be Caucasian. But I'll be candid with you. I think Disney did a pretty great job with the casting. And again, I think the soundtrack was amazing. She's an incredible actress and singer. I'm totally clown. My beef is really with both Flounder and Scuttle. Yeah. And what's the lobster's name? He's the Jamaican dude. And I mean, that's in the original one. Sebastian.

[B]

Yeah.

[A]

Sebastian is terrifying.

[B]

Oh, that's too bad. Sebastian's amazing.

[A]

He's one of my favorite characters.

[B]

Yeah. So, okay. I think in some ways, yes, that's. That, that's a good parallel. I mean, the idea is just basically that the Constitution has to be understood. Its terms should be understood the way they were understood when the terms were drafted and added to the Constitution. And so that kind of yokes us, like, yokes us today to the meaning of a constitution that was forged at a very different moment when sort of, you know, the polity, like people who actually participated in the making of law and who even had access to, like, what terms meant, were basically just like, propertied white men. Like, that was kind of it. And so that's. It's an enormous problem with the method. To my mind, in some ways it makes it a non starter, but it's A very influential.

[A]

Why did the Federalist Society mainstream this relatively fringe idea? Because the constitution was written 200 years ago. Women couldn't vote, black people couldn't vote. Cursive was a thing. It's not a thing anymore. DocuSign eliminated that completely.

[B]

And their S's like looked kind of similar, sort of hard to.

[A]

People were drinking raw milk that's back now, apparently, which is nuts. But why shouldn't the Constitution be interpreted.

[B]

Yeah.

[A]

As this living, breathing thing that needs to be applied to the times we're living through now.

[B]

Amen. I would say so. I mean, I think that, you know, there are a lot of things that go into constitutional interpretation, but sort of our current values problems, needs like those should inform the meaning of constitutional terms. And that is the sort of idea of a living constitution. And originalism was sort of a reaction to it. It basically said, well, that idea of a. Of living constitutionalism lets judges inject their policy preferences into the Constitution and kind of rule us all. And you know, they're unelected. This is the idea of unelected judges. And so a way to constrain them is to sort of figure out a set of kind of interpretive rules. And this is the one that they sort of arrived at which is, you know, the meaning of the terms is the meaning that they have had since their inception, since they were added. So the original Constitution versus like the 14th amendment in 1868. So that sort of the, the time frame might depend on when a constitutional provision was added. But the basic idea is you look to that kind of contemporaneous evidence. But again, like, yeah, I mean the 14th amendment, like, you know, 1868, I think they were using leeches for medical care. Like, I mean to decide that whether you have the liberty to terminate a pregnancy today turns on what they understood.

[A]

Right.

[B]

In 1868. And Alo's opinion in Dobs by the way, cites, you know, 17th century English jurist, this guy, Sir Matthew Hale, who literally is the father of the notion that there can be so no such thing as marital rape and he personally sentenced multiple women to death as witches. He is an authority on abortion, in Alito's opinion in Dobbs overturning Roe. I mean that is the method.

[A]

Yeah, but how does this not pass the I know what you're trying to do test, which is. Let's just be real here for a second. You're gonna. And this happens all the time with both scientific arguments, culture war arguments. I see this all the time. Well, the founding fathers said, hey, you have no idea how smart these founding fathers were. Well, they said. So you want to use quotes from the founding fathers to then apply it to laws on artificial intelligence.

[B]

Right.

[A]

Like the leaps and bounds technologically that you have to.

[B]

Yeah.

[A]

Climb through to somehow take what George Washington thought about artificial. I mean, it's. I. I just don't understand how that's even possible.

[B]

Yeah, yeah. I mean, there's even. Alito, who now is kind of an originalist, asked a question in an oral argument years ago, sort of making fun of originalism. He asked the advocate. So you're. So you're saying that, you know, what you're saying is we don't really know what James Madison thought about violent video games. Right. Like, it's a ridiculous undertaking to ask the question. And originalists will say, to be fair, in their defense, will say, well, you're allowed to update to account for intervening technological developments. So you're not totally stuck with whether they would be okay with AI regulation, you know, if there was no AI. So. But. But it's like they're. They're workarounds. The method is, I think, to my mind, just fundamentally flawed. So the workarounds aren't going to fix the fundamental problem that we're living through.

[A]

Different times.

[B]

Yeah.

[A]

This happened with the COVID vaccine as well. Of. Just like the founding fathers wanted, autonomy of states of states rights and individuals rights. It's like, yeah. There also wasn't an airborne disease that was killing grandma.

[B]

Yeah.

[A]

You know, hey, maybe we need to pivot and make some adjustments. And we're live from the living room as Doug eyes up the match.

[B]

Say spread. He's reaching for the buffalo wing. Perfect.

[A]

Hang on.

[B]

What's this? Oh, he's gone for a can of Pepsi too.

[A]

Incredible.

[B]

What a finish. Sensational combination. Look at the delight on his face. There's no doubt about it. It just tastes better. Match days deserve Pepsi. Food deserves Pepsi.

[A]

Grab a pack of Pepsi. Zero sugar for today's match.

[B]

It's poetry in motion.

[A]

When you finally find your thing, you want the whole world to know about that thing. So you use a thing called Canva to make it an even bigger and better thing. Whether you want to create flyers for that thing, make presentations for that thing, or design merch for that thing, you can do anything so people can see your thing, feel your thing, love your thing. The next thing you know, it's a thing. Canva, the thing that makes anything a thing. This episode is brought to you by Google Chrome. You think you know a browser, but Gemini and Chrome, that's new. It can help you with practically anything on the web, like restoring a vintage motorcycle from a 50 page restoration block. Or finally break down that long article you've had open for weeks. Gemini and Chrome is here for it, ready to make anything online make sense. There's no place like Chrome. Check responses set up, required compatibility and availability various. 18. There are two other big judicial theories I want to understand. One is called the Unitary Executive theory versus the Major questions doctrine. What are those theories?

[B]

Okay, we're getting deep into it here. Yeah, the unitary Executive theory also goes back to these kind of early, heady days in the 1980s in the Reagan Justice Department where they wanted to basically empower the president. Initially to empower the president to control what used to be understood to be independent agencies. But that theory has sort of become turbocharged in especially the second Trump administration. And so, remember, we talked at the beginning. Article one is Congress. Article three is the courts. Article two is the President. There's actually not that much in the Constitution about the president. There is a president, he has the executive power, it's supposed to be to execute the laws. He has to take care that the laws be faithfully executed. Commander in Chief and some other random stuff, but it's not much. But the Unitary Executive theory sort of takes a couple of snippets of constitutional text and in some ways says he is the most important player. He has total control over the executive branch, but also maybe has control or at least he is impervious to regulation. Like he can't be regulated by Congress in certain respects. So a couple of examples. You know, Congress passes laws creating agencies and providing for funding for those agencies. Usaid, the Consumer Financial Protection Bureau, the Department of Education. Trump comes into office and says, like, no, I don't want those agencies. And the Unitary Executive theory seems to say he can decide to unilaterally cancel billions of dollars in appropriated funds, dismantle federal agencies. Here's another example. There's a statute called the Presidential Records act. Just says, like, the president cannot shred or burn official documents from his time in office. Neither can anybody in the White House. His administration thinks that law is unconstitutional, institutional, because the president should have the ability to choose for himself whether to shred, burn, you know, whatever else one might do with, you know, keep, keep for, you know, future potential stock trades, whatever. Yeah, all of the official records of your time in government. So. So that the unitary executive theory is a presidency empowering and a Congress disempowering theory.

[A]

It's basically a Let him cook. He's the president. Let him cook. Don't jam him up with bureaucracy or questions.

[B]

Let him cook.

[A]

Let him cook.

[B]

Okay. Yes, that's it. I took too many words to say that to me.

[A]

Major questions. Doctrine is, is, is don't let him cook.

[B]

Let's let him cook. But not the agencies. So it's a, it's a, it's, it's in some ways difficult to reconcile those two. But give the President all the power. But take the power from the agencies that have been given authority by Congress to do things like regulate water and air and public health and safety for, you know, kind of pandemic conditions and things like that. So take the power from these expert agencies. They're scientists, they're probably untrustworthy. They're probably Democrats. Let's take the power from the agencies and repose it all in the White House. And it's not really take the power from all the agencies. It's take it from, like, the expert agencies, but give a lot of power to Department of Defense or War, Department of Homeland Security. Like, there are some agencies that the major questions doctrines, but they have used it to invalidate environmental regulations, student loan forgiveness, and Covid mitigation measures, things like that.

[A]

What's wild is also seeing just how it flips based on who is president. When Trump's president, it's all unitary executive theory. But then when Biden is president, they're like, no, no, no, no, the EPA can't regulate carbon emissions that way. No, no, OSHA can't be doing that. No, no, no. Yeah, there's no such thing as student loan forgiveness. Stop with the socialist bullshit.

[B]

The one tiny asterisk is that they, they partly relied on major questions to invalidate the Trump tariff. So they're, they're now going to be forever pointing to that example as like, see, we use major questions against Trump, too. But it was only part of the reasoning in that tariffs case. But, yes, for the most part, you're right.

[A]

What do you think the reason why they pointed to it, they were like, this is fudgeing up the stock market. Do you think that was like, a major incentive? Okay.

[B]

And the global economy? Kind of.

[A]

So why should anyone at this point believe that the Supreme Court isn't partisan? Aren't they basically partisan puppets and robes?

[B]

It brings me no joy to say this, but at this point, I think that's what they look like. I mean, I don't know if that's what they think they're doing, but. But I do think it's hard to reach any other conclusion when you see the sort of aggregate effect of decision after decision in favor of this administration and this president and, you know, striking down laws like the voting rights act. Like, they really do feel like partisans in robes and. What did you call them in Harry Potter robes?

[A]

They're in full Harry Potter at graduation robes.

[B]

Absolutely.

[A]

Hey, what is the shadow docket? It sounds pretty like mysterious and deadly and nefarious.

[B]

It can be deadly.

[A]

Honestly, it does sound like almost like a horror movie too. The shadow docket, it feels like something like a 24. It'd be like this, like a 24. Cool thriller. Legal thriller.

[B]

Yeah. I mean, you should get on pitching that. It's the, the court, in addition to sort of deciding the cases that they decide in their normal, like they hear arguments, they read briefs, they write opinions. That's the normal process for Supreme Court decision making. They also have this fast track process, the shadow docket, where they increasingly decide incredibly consequential matters and a ton increasingly involving the Trump administration. So, you know, two dozen plus times in the past 16 months, they have ruled, ruled big in favor of the Trump administration. In these cases where Trump loses below in some carefully reasoned lower court opinion, Trump's lawyers appeal up to the Supreme Court and the Supreme Court just says like, nope, Trump, you win, without explaining why. And so, and some of these are in like the highest possible stakes context. So cases involving individuals scheduled for what are called third country deportation. So deportations not to the country that they are from or have any tie to, but some random third country they may never have had any dealings with, but just as willing to take them, including places like South Sudan. Lower court invalidated that Supreme Court said no green light without saying why. So people are put on planes as a direct consequence of that shadow docket order on the shadow docket, you know, Trump got the approval to kick every trans member out of the military and the list goes on.

[A]

Yeah. So why is, is it uniquely used in these very nefarious cases? Why is it the Amazon prime one day delivery of injustice.

[B]

Yeah.

[A]

I mean, taking American citizens and then extraditing them or shipping them off to Sudan or even Venezuela.

[B]

Okay, so they haven't done it with citizens, to my knowledge, but individuals who are here.

[A]

Yes.

[B]

Yes.

[A]

But they're not from that place.

[B]

No, absolutely.

[A]

They don't even return to sender.

[B]

No.

[A]

They like.

[B]

Yes.

[A]

They punt it to a completely other part of the world.

[B]

Absolutely.

[A]

Which feels so uniquely cruel. Like.

[B]

Yes.

[A]

Where would the, the justices get off on saying, yeah, this Seems like a good idea. I don't understand what's in it for them.

[B]

I. I honestly think that they. So again, it's hard for me to get inside their head. I think that it may not be a coincidence that it's some of the most nefarious stuff that happens in the least transparent way, because I think they think this stuff would be hard to defend if you had to write an opinion explaining yourself. And so they don't.

[A]

So I thought the court system was supposed to be slow, but these decisions are happening fast. Yeah. How do they justify kicking trans people out of the military as an emergency?

[B]

They say this is sort of back to kind of unitary executive stuff. The commander in chief. I mean, again, they don't say anything. So I'm just like, I am imputing reasoning that I don't know if they actually like, share. But I imagine because these are the arguments that Trump was making, that it's intolerable for the commander in chief to be said, saddled with people in his military he doesn't want. That's the basic argument.

[A]

I want to end with a piece of optimism.

[B]

Okay.

[A]

The Supreme Court, you know, is as unpopular as it's ever been. Is there any way we can blow it all up and start over?

[B]

I mean, I think that you are having an hour conversation about the Supreme Court as actually a little. An optimistic note. I do think that public attention and pressure really does matter now. Blow it up and start over is hard because it's, you know, it's in the Constitution. So there is a Supreme Court court, but things like the size of it. There don't have to be nine justices. That's not in the Constitution. We could add a bunch of additional justices.

[A]

Wait, there's no limit on the number of Supreme Court justices.

[B]

There's no. There needs to be a chief. That's it.

[A]

They could.

[B]

There. There were six originally seven, 10. It's been nine for about 150 years. But there's no set number. So Congress could just pass a law. Changing the size of the Supreme Court could make it much bigger, could give a president a bunch of additional appointments. We could do term limits. They serve forever. Yeah, it's crazy. Have no fear. Chosen Foods is here to defend your favorite foods from the forces of seedy oils and sketchy ingredients with cooking oils, salad dressings, and mayo, all powered by the good fats from 100% pure avocado oil and simple, delicious ingredients. Chosen foods. So you could limit them to 18 years. You could require them to give reasons, and they do things like tell people, yeah, you can be sent to South Sudan or after a distinguished career in the military, you're out of luck because the president doesn't want you anymore. You have to explain yourself. Why.

[A]

Why are lifetime appointments, okay, what's up with that?

[B]

It's in the Constitution.

[A]

But what was the thinking? What was the originalist thinking?

[B]

You want to protect them from being too kind of beholden to the political will, political process. They need to be able to sort of fearlessly and independently exercise judgment. And if they're afraid, you know, for making a bad decision, they're not going to be able to be independent. But we've gone too far.

[A]

Yeah. I don't know. I mean, I feel the same way about PE teachers. Growing up, I had this PE teacher that was my PE teacher, my sister's PE teacher. He was there forever. His name was Mr. DeMarco. He knew this thing where he basically, you know, kids in PE wouldn't do push ups. And he's like, if you do your push ups, I'll give you a starburst. And he'd reach into his pocket and pull out these, like, warm starbursts that were essentially congealed to his die and give them out to children. Now, I don't know what the legality of what he did was, but it was certainly up and weird.

[B]

Doesn't sound great.

[A]

But Mr. DeMarco could move with impunity because he's like, no one's going to come in and be a new PE Teacher here at Holmes Junior High.

[B]

Yes. Well, look, I don't want to, you know, necessarily ascribe nefarious motives.

[A]

He might be dead now.

[B]

Okay.

[A]

He also admitted to doing steroids in the 80s. So I used to. For sure, for sure.

[B]

He said, this is not the worst thing.

[A]

No, no. I appreciate his transparency. He's like, you guys won't do your push ups. I also.

[B]

Did I.

[A]

Did he.

[B]

Did he offer those or just the starburst?

[A]

He didn't offer steroids. He didn't offer steroids. I would have taken the steroids over the starburst. The starburst was kind of weird. Yeah, I would have loved to get ripped.

[B]

So I think that sort of, you know, too long a tenure is not great in any position of power, whether that's a PE teacher or a seat on the highest court. On the land. In the land. But. But I do think that the stakes are, no disrespect to your PE teacher, a lot higher when it comes to Supreme Court justices. And if we're going to start somewhere. That seems like a really good place to start.

[A]

You know, they've done this on C Span with White House press briefings, and they've done it in kind of like Senate hearings, the confirmation hearings. What about adding cameras to the Supreme Court? Can we see their decisions in full 4K? Would that incentivize better behavior?

[B]

Well, I don't know how you feel pivoting to video, I'm not sure is necessarily great for anybody. Like, does anybody get better when the camera is on them? I am not sure, but I. The sentiment is right. More transparency, I think is important. And actually they now live stream the audio of the oral arguments, which is a relative. That's a coveted development. They started doing it during COVID because you couldn't go into the courtroom, and they kept doing it. So we can. I have to. Because I'm professionally obligated to sit and listen to every argument basically, that they hold cold. And, like, I wouldn't really wish that on anyone. But it's useful to be able to tune in that way. You used to have to travel to Washington and, like, stand in line overnight to get into the Supreme Court.

[A]

Well, you have to stand in line like, it's 30 rock and you're trying to get into SNL. Yeah.

[B]

Except, like, you're a law nerd and it's the Supreme Court or. Yeah, so that happened.

[A]

But you're. But you are saying transparency would be helpful.

[B]

There has been some. And more transparency, I think would be incredibly helpful. I'm just not sure about the cameras.

[A]

Okay, fine. Let's scratch the cameras. Professor, how about this full browser history? You want to talk about wisdom, what you're really about?

[B]

What are you looking at?

[A]

I want to see your incognito browser, not your regular browser where you just only happen to visit Gmail and google and yahoo.com. i'm talking about your incognito mode. Look, if you get to judge, we get to judge you first.

[B]

Okay. I think I could get on.

[A]

That's my solution. Okay. Nothing is a clearer read of what you're about than incognito mode.

[B]

Okay. All right.

[A]

I'm here to just pitch solutions. Professor. I'm trying to move the ball forward. Professor, thank you so much for joining us on the show. This was really, really lovely.

[B]

It was really fun. Thank you so much for having me.

[A]

Thank. You.