Strict Scrutiny Podcast Episode Summary
Episode: Fifth Circuit Election Madness, a Post-Mortem on Roe, & the War on Drugs
Release Date: October 28, 2024
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Produced by Crooked Media

1. Fifth Circuit's RNC vs. Wetzel Decision: Election Integrity Under Fire

Overview:
The episode opens with the hosts discussing a pivotal ruling by the Fifth Circuit in the case RNC vs. Wetzel. This case challenges the legality of counting ballots that arrive after election day but were postmarked by election day, affecting 18 states and the District of Columbia. The court's decision suggests that federal law prohibits such ballot counting, potentially destabilizing election processes.

Key Points:

• Court's Interpretation: The Fifth Circuit discovered that federal law, dating back to the 1800s, preempts state laws allowing the counting of postmarked ballots. This interpretation aligns with a long-standing but overlooked federal prohibition.

  Elizabeth Diaz [01:54]: "Those on the Fifth Circuit like discovered that, well actually federal law has preempted these state laws for over a hundred years."

• Potential Impact on Ongoing Elections: Despite the dramatic ruling, the hosts express optimism that it won't affect the current 2024 election due to the district court's previous upholding of similar state laws.

  Leah Litman [03:43]: "It does seem to us all but certain that this opinion is not going to affect what ballots are counted in this election."

• Judicial Restraint and Future Implications: The decision sends the case back to the district court to determine remedies, including possible injunctions. While there's cautious hope that immediate chaos will be avoided, the ruling may lead to significant changes in how elections are conducted in the future.

  Melissa Murray [09:19]: "They could have just decided like, no, we are going to put this into effect right away."

• Political Dynamics: The discussion touches on how political strategies, especially within the Republican Party, influence judicial decisions. The anticipation of Supreme Court review adds another layer of uncertainty.

2. Interview with Elizabeth Diaz & Lisa Lear: The Fall of Roe and the Rise of a New America

Overview:
Leah Litman and Kate Shaw interview Elizabeth Diaz and Lisa Lear, New York Times journalists and authors of The Fall of Roe and the Rise of a New America. The book provides an in-depth analysis of the coordinated effort over the past decade to overturn Roe v. Wade, exploring the intersection of reproductive rights, political strategy, and cultural shifts.

Key Points:

• Initiation of the Project (16:57): Diaz and Lear collaborated to investigate how a significant legal and cultural shift occurred to overturn Roe v. Wade. Their focus begins in 2012, identifying it as a critical inflection point when the anti-abortion movement faced perceived decline within the Republican Party.

  Melissa Murray [17:20]: "We started 10 years ago because it was the moment when the anti-abortion movement told us it was their lowest point in their 50-year arc of trying to take down Roe."

• Strategic Planning and Political Maneuvering: The authors highlight the sophisticated network of grassroots organizers, lobbyists, and legal strategists that effectively positioned themselves to exploit opportunities following Donald Trump's 2016 election victory.

  Elizabeth Diaz [19:14]: "They really led, lucked out or were surprised despite their work, when former President Trump was elected, because it opened up this entire new way."

• Cultural and Legal Intertwining: Unlike typical narratives where cultural changes precede legal reforms, the book illustrates how legal and political landscapes were manipulated to shape cultural perceptions around abortion.

  Melissa Murray [21:19]: "The right was able to use the legal and political landscapes to shape the culture around abortion."

• Emergence of the MAGA Movement: The interview delves into how the Tea Party evolved into the MAGA movement, intertwining economic conservatism with social issues like abortion, thereby broadening their influence.

  Melissa Murray [23:12]: "These movements were really intertwined, and I think that's a really important grounding for the decade that followed."

• Intersection with January 6th Events: The authors draw connections between the anti-abortion movement and the broader fight over democracy, suggesting that activism around abortion served as a precursor to political violence seen on January 6, 2021.

  Melissa Murray [26:39]: "These groups were just dress rehearsals for the broader fight over democracy that we saw on January 6, 2021."

• Complacency and Left's Response: Diaz and Lear critique the Democratic Party's delayed response to the anti-abortion movement's growing threats, emphasizing the need for strategic mobilization to counteract future challenges.

  Melissa Murray [29:52]: "There's a lot of promises to restore Roe. It's unclear what that means. So there's going to be a really different conversation after the election."

3. Interview with David Posen: The Constitution of the War on Drugs

Overview:
In the second part of the episode, the hosts engage with David Posen, a constitutional law professor at Columbia University, discussing his book The Constitution of the War on Drugs. Posen explores the intricate relationship between constitutional law and the longstanding War on Drugs, analyzing how legal frameworks have both constrained and legitimized punitive drug policies.

Key Points:

• Historical Context and Legal Arguments (43:49): Posen traces the evolution of constitutional challenges to drug policies, noting that from the late 1800s to the mid-20th century, arguments centered on the limits of governmental power to regulate private conduct.

  Leah Litman [44:20]: "There are many different parts of the Constitution that are enlisted... against these draconian drug laws."

• Substantive Due Process and Rights Claims: During the 1960s and 70s, drug reform advocates leveraged Griswold v. Connecticut to argue for personal liberty and privacy, similar to reproductive rights cases. However, these efforts waned by the late 1970s as the courts became more conservative.

  Kate Shaw [49:09]: "Roe vs. Wade compels the conclusion that adults have a right to personal possession, use of marijuana."

• First Amendment Challenges: Posen discusses how free speech and free exercise claims have been both tools and obstacles in drug law reform. While some religious groups successfully challenged drug prohibitions, commercial speech protections now hinder efforts to regulate drug advertising effectively.

  Lisa Lear [53:48]: "The First Amendment is both failing to protect people... and attacking what seemed to me relatively modest sensible reforms."

• Originalism and Future Legal Strategies (64:13): Posen argues that originalist interpretations of the Constitution could offer new avenues to challenge punitive drug laws. Despite the Supreme Court's current stance on originalism, there remains potential for leveraging historical understandings of the Eighth Amendment and other clauses to advocate for drug policy reform.

  Lisa Lear [67:33]: "There was a surprisingly broad understanding... which made punitive policies grow."

• Comparative Analysis with Abortion Rights: The discussion draws parallels between the constitutional failures in protecting reproductive rights post-Dobbs v. Jackson and the War on Drugs, highlighting how both areas suffer from rigid constitutional interpretations that hinder progressive reforms.

  Leah Litman [57:40]: "There are a lot of parallels between the failures of the Constitution in these two... domains."

• Administrative and Extrajudicial Influences: The War on Drugs extends beyond the judiciary, affecting areas like security clearances and administrative policies. Posen emphasizes the need for constitutional arguments to influence not just court rulings but also regulatory and legislative processes.

  Leah Litman [80:27]: "The security clearance process... has these, you know, real archaic seeming questions about drug use."

• Potential for Constitutional Role in Reform (85:39): Despite recent federal initiatives to reschedule marijuana and pardon past convictions, Posen maintains that constitutional law remains crucial. It can help entrench policy gains, protect against rollback during political panics, and provide legal frameworks for more humane drug policies.

  Lisa Lear [86:03]: "Constitutional arguments... could lead us to much more sensible outcomes."

Conclusion: Navigating the Complex Interplay of Law and Policy

The episode underscores the intricate balance between legal interpretations and political strategies in shaping key American policies on elections, reproductive rights, and drug control. Through detailed discussions and expert interviews, the hosts illuminate how constitutional law both constrains and enables systemic changes, emphasizing the importance of informed activism and strategic legal challenges in driving progressive reforms.

Notable Quotes with Timestamps:

• Elizabeth Diaz [01:54]: "Those on the Fifth Circuit like discovered that, well actually federal law has preempted these state laws for over a hundred years."

• Melissa Murray [17:20]: "We started 10 years ago because it was the moment when the anti-abortion movement told us it was their lowest point in their 50-year arc of trying to take down Roe."

• Lisa Lear [53:48]: "The First Amendment is both failing to protect people... and attacking what seemed to me relatively modest sensible reforms."

• Leah Litman [57:40]: "There are a lot of parallels between the failures of the Constitution in these two... domains."

Key Topics Covered:

• Fifth Circuit's Impact on Election Laws: Legal challenges surrounding ballot counting and federal versus state authority.

• Overturning Roe v. Wade: Strategic, cultural, and legal maneuvers leading to the erosion of reproductive rights.

• War on Drugs and Constitutional Law: Historical analysis of legal arguments against punitive drug policies and potential avenues for reform.

• Intersection of Politics and Judiciary: How political movements like the Tea Party and MAGA influence judicial decisions and policy outcomes.

• Future of Legal Reforms: The role of originalism, administrative policies, and state-level court decisions in shaping humane and equitable laws.

This comprehensive summary encapsulates the critical discussions, insights, and conclusions presented in the episode, providing listeners with a clear understanding of the complex legal landscapes affecting contemporary American society.