Loading summary
Transcript54 lines
- [00:01]
A
FOX News is now streaming live on Fox 1. When it matters most, turn to the voices you trust. We go beyond the headlines, bringing you the stories you won't hear anywhere else. Live coverage, sharp analysis, real perspective at
- [00:19]
B
home or on the go.
- [00:20]
A
Stay connected when it counts. Stream fox news on Fox 1 download today. Some follow the noise. Bloomberg follows the money because behind every
- [00:37]
B
headline is a bottom line, whether it's
- [00:40]
A
the funds fueling AI or crypto's trillion dollar swings.
- [00:44]
B
There's a money side to every story.
- [00:47]
A
And when you see the money side,
- [00:49]
B
you understand what others miss.
- [00:51]
A
Get the money side of the story. Subscribe now@bloomberg.com. Welcome to Talking feds One on one deep dive discussions with national figures about the most fascinating and consequential issues defining our culture and shaping our lives. I'm your host, Harry Littman. Today we're going to be discussing an important new book hot off the presses from one of the nation's most eminent and interesting Supreme Court scholars and a good friend. Melissa Murray is the Frederick I and Grace Stokes professor of Law at New York University. She's probably better known to Talking Feds listeners as co host of the Great Strict Scrutiny, the nation's leading podcast on the Supreme Court, which she co hosts with Kate Shaw and Leah Littman. And now she has just produced really a prodigious work. Thank you for displaying it, Melissa. The U.S. constitution, a comprehensive and annotated guide for the modern reader. That's us.
- [02:08]
B
I think, Melissa, you are the most modern readers. Yes, Talking Feds there you have
- [02:16]
A
sounds a little bit like Gilbert and Sullivan and that is us. Melissa, thanks so much for being here and congratulations on a really prodigious achievement.
- [02:26]
B
Thank you. Thanks for doing this. I know that you're feeling a little bit under the weather. I am prepared to do all of the heavy lifting and most of the talking here for you, Harry. Don't worry.
- [02:35]
A
That's very kind and I'm thinking the Fed heads will probably prefer that. But there are things that I really wanted to talk to you about as I went through the book. So I'll do my best, but sorry about my hoarseness. All right. I want to first obviously talk about the book, but then move into how you see the Supreme Court's latest interpretations, internal dramas and the like. But the book, as advertised, can we see that again, please? Is really is a thorough explanation of the entire Constitution and how it shapes our government. We've had from previous generations annotated Constitutions. Why this book at this moment?
- [03:23]
B
So, Harry, for the last Couple of years I've been doing work with Ms. Now, formerly msnbc, obviously a lot of work with the Strict Scrutiny podcast and talking to people about our government, about the Constitution. Obviously, people have questions right now. There's so many questions like why do we have National Guardsmen in the streets? Is that something that is constitutional? There are all of these questions. And it occurred to me as I was talking to some of these individuals that we've had a real shift in civic education in our country. So when I was growing up in the 1980s, there was schoolhouse Rock, and that is how I learned how a bill becomes a law. And also we had a class called American Government that was required in order to graduate from high school. I think post no Child Left behind, there has been a reappraisal, a renegotiation of curricular content in most American schools. Many schools are focusing on back to basics courses that are needed to pass certain standardized tests. And civics education, I think, has really taken a toll, has fallen by the wayside in many curricula. And we have a whole generation of Americans who, for no fault, are of their own, may not have the kind of knowledge of how our government works that they need to in order to be engaged and productive citizens in what was meant to be a government for and by the people.
- [04:53]
A
Yeah. And which it seems to me they really want to be at this moment. These issues come up and they're looking for the kind of constitutional grounding that you give them. And in the preface, Melissa, you write the safeguards that the Constitution put in place to ensure democratic government may not be adequate in our volatile, politically polarized environment. Kind of a remarkable thing to put in the opening pages of a book whose ultimate purpose is to inspire faith in the Constitution.
- [05:26]
B
So I don't know if it's necessarily to inspire faith in the Constitution, but rather to inspire faith in our ability as a people to be makers of constitutional meaning. I think that's what I would like people to take away from this. Like the Constitution is what it is. Like, you know, we have the original Constitution, articles one through seven. Then we have an immediate change in the Constitution with the introduction of the Bill of Rights. At almost the same time, the Constitution is being ratified. So from the start, it's recognized as being imperfect in some way, inadequate protections for individual rights and as a condition for ratifying the original Constitution, that they are forced to adopt this Bill of Rights. And then we have, nearly a century later, another reappraisal with the Reconstruction Amendment. So again, we are constantly in this project of rethinking what this founding charter means, how it works. Some of this is through the amendment process, which I talk about extensively in this book. Some of it is through interpretation, through the courts and the Supreme Court in particular. Some of it is through just the way we live and how our culture impacts the way we understand what is required of the Constitution and how we then put those impulses into meaning. So I think the broader project here is not that we should blindly follow the Constitution, but rather recognize this was always intended to be a document with which the people engaged and that they were constantly in this project of making the country and this founding charter better.
- [07:01]
A
You know, that's a really fair and important point. And I correct my sort of misstatement because it's true that the ultimate statement of faith really has to do with the broader dialogue and dynamic among the people, the political institutions, the Court, for the evolving meaning of the Constitution. You mentioned a little bit in the book Jill Lepore, and her view now is it's no longer a charter that can actually be amended, and that stymies the popular will in a variety of ways. Do you take her thesis? Do you accept it?
- [07:40]
B
Well, so I take Jill's thesis to be that it is incredibly difficult to amend the Constitution. That was always by design. I mean, I think one of the things the Framers really wanted to do was that, you know, was like Ulysses being tied to the mask. Like, you couldn't just change because the winds blew a particular way. It was purposely difficult. Now it seems it's almost Herculean to change the Constitution. And that's not just because the Article 5amendment process is so difficult and challenging. It's also because we live in an incredibly polarized political environment that the framers probably didn't contemplate. I think they talked about factions, but I don't think they understood the way that we would be riven in our political culture as we are today. And so that's one very important question. Like, you know, can we even do this? But then there are these other moments and glimmers of hope, like, we were also riven, I think, during the Gilded Age. I'm riven by broad inequality in terms of income and wealth. And yet the people came together and said, this isn't right. The way we do these things isn't right. We need an income tax rather than tariffs as a means of revenue generation. I mean, all of this sounds so familiar today, but this was the conversation that they were having at the turn of the century, how to make the rich pay their fair share. They couldn't have a progressive income tax because of Article 1, which had very specific requirements for how Congress levied taxes. They have a constitutional amendment, the 16th amendment, that makes a progressive income tax possible. I mean, the people, again, at a moment of real political division, real wealth division, find a way to come together and make their voices heard. So, yes, I think it's difficult. It's more challenging than it's ever been. But is it impossible? I'm not willing to concede that yet.
- [09:33]
A
Yeah, man. Another. Another great point. And today, what strikes us as fundamental was really hotly contested. I mean, how long ago was the fight the 19th Amendment over the right to vote for women? Something. But. But it. It really was a battle at the time that now seems just constitutional in the most basic sense.
- [09:55]
B
Although apparently some people want to. Some people want to overrule and overturn the 19th amendment. Okay.
- [10:02]
A
A whole new originalist project. Okay. And again, I'm apologizing them for my froggy voice. I want to go all the way
- [10:09]
B
back because it's very. To me more. And I think it's just very appealing here. I refuse your apology. You sound great.
- [10:18]
A
Okay. The husky constitutional style.
- [10:20]
B
I do. Husky Constitution.
- [10:24]
A
You open with the preamble, and you make a point that we, the people, the canonical three words that we all learn in third grade or not, was not in the original draft. And the Committee of Style, which I loved thinking of committees, even back then, they had committees in Philadelphia swapped out what had been the names of the 13 states listed in prose. What does that small editorial choice signify to you? And what does it tell us about how to read the whole document?
- [11:00]
B
Yeah, first of all, the Committee of Style. As someone who has been on a number of faculty committees over the years, I really wish I had been a member of the Committee of Style. Iu. That was the committee I was born for, to be sure. And, uh, the Committee of Style was kind of an editorial committee. So, you know, they had this document that they'd written, and the Committee of Style was really meant to sort of go through it, knit it all together, smooth out the inconsistencies, and make it sort of read as one coherent document. And that was important. This is not a lengthy document. My. My husband was joking. Like, you know, why is this book 300 pages when the Constitution is probably 20 pages altogether? Which is true. They wrote the original Constitution with the idea that it would be read. It would be read by the people. So part of what the committee stile was charged with doing was making this coherent, making sure that it all hung together in a way that would be understood by the people. And the preamble, which was, you know, something that lots of different charters or whether they were constitutions at the state level or charters of various organizations or businesses, they had some kind of prefatory text. And so they decided they would have this prefatory text. But they listed all of the 13 states and the committee of Style made this decision, probably anticipating that, you know, maybe there just wouldn't be 13 states forever, there might be more. And this had to be a document that could sustain the demands of posterity. And they crafted a broader statement. But we don't know exactly how they came up with we the people. But what a soaring decision, right? I mean, to swap out like, you know, then there's Delaware and New Hampshire, you know, Delaware and Georgia and whatever. And they come up with we the people and make this really profound statement about who the Constitution is for. Who benefits from having a written constitution and a divided government in which power is explicitly enumerated and then divided between these branches and between the federal government and the states. And they're just very clear. This is for the people to ensure that a government for the people can be productive, can be generative, and ultimately can be insulated from the whims of charismatic leaders who might inevitably tip into tyranny.
- [13:19]
A
And I'll just say it's a theme that continues to play out today even in certain originalist debates where if you conceptualize the power that the federal government has is coming from the people as opposed to from the states. It really leads in very different directions. Um, so Melissa notwithstanding, it's a, it's a prodigious, comprehensive achievement. God, God bless you for trudging through every single amendment. But, but there's really some very distinctive points that I think this book will stand for going forward and will be part of the Murray stamp on constitutional interpretation. I wish we could spend hours talking about them and fed heads, trust me, it's all there in straightforward lucid language and really worth just having like a huge cookbook on the one hand, but a real scholarly treatise on the other. But I want to talk about a few of them that I think are really distinctive contributions on your part. Starting with the 14th amendment, for my money, the most important of the post constitutional provisions and in particular the word Liberty in the 14th Amendment due process clause and its modern day application. So you have a take on it that really focuses on the evisceration of slavery can you spell that out?
- [14:52]
B
Sure. So the 14th amendment is one of the three reconstruction amendments that are passed in the immediate wake of the American Civil War. The 13th Amendment abolishes slavery. And in the United States, as a formal matter, the 15th Amendment enfranchises formerly enslaved black men. And then the 14th Amendment is really meant to catch everything else, to lay the conditions for a new society in which the formerly enslaved will also be part of the polity as citizens. And they recognize at this time, like, you know, there are lots of people in this political community, certainly some of them are formerly enslaved, but that's not all of the people. So, you know, there is a whole discussion in the debates about what to do about immigrants with regard to birthright citizenship, which is enshrined in Section 1 of the 14th Amendment. So, you know, this whole discussion that we are having right now about the meaning of birthright citizenship and whether it was simply a repudiation of Dred Scott and was not meant to address the children of immigrants, that's not true, right? Like, yes, it was a repudiation of dred Scott in 1857 Supreme Court decision that said African Americans could never be citizens because they were descended from the enslaved. Yes, that is a repudiation of that decision in Section one. But it was also, again, a restoration of an ideal that had been in place since the colonial period, this idea of jus soli citizenship. If you are born somewhere, you are a citizen of that nation. Dred Scott was a departure from that in its refusal to acknowledge the citizenship of those born in the United States but descended from the enslaved. The other thing that I think is really important to recognize here is that the whole question of slavery and its juxtaposition with liberty and citizenship really informs the debates over the 14th Amendment. You know, what does liberty mean in the Due Process clause? Well, liberty is the antithesis of enslavement. And so they have these really detailed discussions in which the framers of the 14th Amendment, people like Thaddeus Stevens, Bingham, John Bingham, Lyman Trump, all of these men are discussing, you know, what does it mean to have liberty? And they understand it in contradistinction to enslavement. So if as a slave, you have no control over your body and your labor, obviously being free, having liberty, being a citizen, means that you can control your own labor. And this later gets cashed out in Lochner versus New York. And the whole idea of freedom of contract, the idea of, like, the. The legislature is dictating the terms of your labor or dictating how your employer employs you, you're not really free, you should be free to do that yourself. And you know, there's a whole take on that and like questions about the power of the employee versus the power of the employer. But it is understood through the lens of this question of what liberty means and what enslavement is that. Similarly, if being enslaved meant you could not get married and have your marriage legally recognized, you didn't have control over your children, you could be bred by your owner with any other person in order to expand the owner's faction of slaves. Liberty is the antithesis of that. And so if you think about it in those terms, it is understandable why we have the 14th amendment's grant of liberty. Underwriting a right to marriage, underwriting a right to raise your children in the manner of your choosing, underwriting a right to do with your body and to control your reproductive capacity in the manner of your choosing. And so it is interesting to me that in a post Dobbs world, you know, we talk about questions of reproductive freedom and we don't talk about it in the context of this post emancipation, post enslavement world where everyone understood that one of the things that made slavery so pernicious was that enslaved women were constantly under the threat of sexual predation, were constantly having their reproductive capacities manipulated by their owners in order to expand the ranks of the enslaved and to essentially bolster the political economy of slavery. And so I think you can't understand these amendments without understanding that context. But also recognizing this was a fundamental renegotiation of our understanding of the rights of the people and their relationship to the states and the relationship between the people, the states and the federal government.
- [19:36]
A
Yeah, that last point really encapsulates it. It seems to me this is a whole other book. I think you'll want to take a rest before writing it. When we talk about the aspects of liberty that you've just enumerated, you have them having a kind of second rank status in the current Supreme Court as unenumerated rights that you need some special notion about. Whereas a full bodied but fair interpretation of just liberty, the actual textual term would be, if nothing else, much less grudging. Okay, man, I want, I could stay here for weeks, but let's go now to the second Amendment where you also have an interesting kind of take. I just want to take a step back, by the way, and say this is another point that Jill Lepore makes. Some of the provisions, including the Bill of Rights that we take, as you know, God given in like the tablets on Sinai, were ugly compromises that some of the most well known framers didn't like and felt they had to do, particularly as it concerned slavery. They had to put together a practical document that would command the ascent of the various colonies. But anyway, talking about the second amendment, you note the fear of southern slaveholders and it was really a big motivation for them that an anti slavery congress would refuse to call forth the militia to suppress slave rebellions. Explain why that kind of gloss on things, how it reflects on the court's jurisprudence, the, the Heller opinion and our current notion of that individual right in the second Amendment.
- [21:23]
B
So again, I really am glad that you understood and got from the book the way in which debates over slavery shape so much of the original Constitution and many terms of the Bill of Rights, including the second amendment. Slavery was just indelibly baked in like lots of compromises over slavery. Even as, you know, one of the things I say about the Constitution is that this is very much a trauma informed document. Like these people, they are working through stuff, you know, they hated their experience under Parliament and the king during the colonial period and so they're working through that. But they also live in this state of constant terror, especially in the south, that these people that they have enchained will come together because they have the numbers and will rise up and literally kill them in their beds. And these are not idle fears. Like, you know, this has happened, it has happened before. The Stono rebellion was only a few earlier the Haitian revolution, you know, an entire society completely disrupted because of a slave rebellion and uprising. So you know, in the Constitution there are these limits on the ability of the federal government to call forth a standing army, to call forth the militia. They fear the prospect of a standing army because of course this is what king George III and Parliament had deployed in their streets. It had run roughshod over their rights. So they recognize they have to have a standing army, but they divide the power over the standing army between the president and between Congress. And because they have divided it, there are real questions about whether or not in situations where there are domestic uprisings or domestic upheaval that require attention, if a Congress that is perhaps stacked with abolitionists, stacked with anti slavery influences, will be willing to call forth the militia, which is, you know, today's modern national Guard, in order to quell those kinds of domestic uprisings related to slavery. And so they're really, really worried about it. And the response is the second amendment, which is about equipping a militia, state level militias with the ability to keep and bear arms. So it's very much understood like, you know, this is about giving the individuals the right to keep and bear arms so that they can be in a militia in the event that a militia is needed to quell a slave uprising. Because we fear that an anti slavery Congress will not come to our assistance or will not do so quickly enough in order to address the threat that constantly lives with them. They're always worried about this. And Carol Anderson has just done amazing work. She is an historian at Emory University. She wrote a great book a few years ago called the Second, which really sort of traced the racial underpinnings of the Second Amendment. And then sort of how gun safety laws are also similarly underlaid with certain kinds of racial tensions and real concerns about the prospect of arming people of color. And I mean, she really traces it. It's wonderful. But most people who talk about the Second Amendment, professed originalists, don't talk about what was clearly going on in the ether at the time the Second Amendment was written and ratified. I mean, they really did live with this fear it had to have some influence over. I mean, like, maybe it was not the predominant view, maybe this was not the main thing, but it was definitely in the ether and they lived with this. And it should be a part of how we talk about the Second Amendment. Justice Thomas, who is perhaps the most ardent originalist in terms of his views of the Second Amendment on the Court, has been very maximalist in his understanding of a very broad individual right to keep and bear arms almost everywhere. Right. And that's a departure from the Heller case, which in 2008 recognized an individual right to keep and bear arms with regard to home defense, self defense within the home. Justice Thomas thinks of a more expansive Second Amendment, and he's largely gotten his wish with this Supreme Court to expand the scope of the Second Amendment through cases like Bruin vs. New York State Rifle and Pistol association, which gives pretty broad license to carry a gun with very limited circumstances in which states and localities can limit that. One thing that's always interesting to me is that Justice Thomas loves to use history to support his maximalist view of the Second Amendment. But the history he always adverts to is the Reconstruction history in which states in the south disarmed African Americans, leaving them uniquely vulnerable to racial violence. He loves to talk about that. And I think he's right to talk about it. It is definitely part of the DNA of the Second Amendment. But if he's going to talk about that history, I think we Also need to talk about the history in which the Second Amendment was forged. This crucible of real fear that they were living in a constant ticking time bomb that was the enslaved people who at any moment could come together and overthrow their enslavers.
- [26:44]
A
Yeah, really excellent. And you know, it's not just in the DNA and the ethereum, it is in the text. These are very careful drafters and people of justice on the position, you know, just don't account for the otherwise bizarre preface to the whole. This is where they start. This is our statement of purpose. A well regulated militia being. What does that. That mean? I don't think there's a persuasive. You can.
- [27:10]
B
Justice Scalia and Heller is just like it's just text. It's like it doesn't mean anything. Like these were not people who are just writing things down, like for no good reason.
- [27:26]
A
I'm Michael Waldman, host of the Briefing Podcast. I'm a former White House speechwriter, a lawyer and a constitutional scholar. And I'm president of the Brennan center for Justice. We work to repair and strengthen American democracy, from gerrymandering to abuse of presidential power, from Supreme Court reform to congressional corruption and more. What fun. You're going to hear new ideas in this podcast and you're going to hear about the strategies and the legal and political fights that will shape the next phase of American politics. If you care about our democracy, the Briefing is a podcast for you. I hope besides that everyone here buys and reads it, that you'll have the chance to talk about it. But I really, really want to take advantage. We're really fortunate, Melissa, that a couple times a year you're with us to talk about the big kind of developments from the court. But this is a chance, I think, to ask you some general questions about the Court that kind of follow on from the project of the book. Let's start with the recent Bombshell, some have called it from the Times, about the origins of the shadow docket and Roberts role. And there's a lot to be said. But I want to frame a Roberts question, which is how cynical should we be about the Chief Justice? So I and others have been forced to kind of posit two John Roberts that come out in different sorts of cases. Do you see his whole corpus, including the more statesmen, like you could say, votes and opinions, as strategically constructed overall, or does he just have inconsistent instincts in different kinds of cases?
- [29:13]
B
Well, that's a very nuanced take on it. So Harry is obviously talking about the bombshell, reporting from the New York Times, Jodi Kantor and Adam Liptak about the origins of the modern shadow docket, which they trace to the court's decision almost 10 years ago, I think, exactly 10 years ago, to kill the Obama administration's clean power plan in what is essentially an emergency ruling before the case even percolates through the lower federal courts and makes its way. This is an unprecedented development, an unprecedented action on the part of the Court. And the memos which the New York Times has published documenting how this all went down makes really clear that the architect of the whole project is really John G. Roberts. And it doesn't surprise me. You know, I've never been one to worship at the altar of John Roberts, SCOTUS institutionalist. I've never believed that he was as institutionally minded as he's given credit for. You know, first of all, I think his statement at his confirmation that he is merely an umpire calling balls and strikes is reductively facile to the point of being absolutely nonsensical. Judging requires judgment. And it's not like shift F1, it's a strike. Shift F2, it's a ball. Judging is not macros. So I think it was a great sound bite. And it obviously had its intended purpose to sway those who worried about the prospect of John Roberts as Chief Justice. But it was a very reductive account of what the job actually is. And I think he's had a couple of moments where he's acted in ways that some say sort of focus on the real world implications of the Court's decision. So his very critical vote in NFIB vs. Sebelius, this is the Obamacare case that saved the Affordable Care Act. I think a lot of people point to that. I teach that case in my constitutional law class. And one of the things I notice, okay, he saved the Affordable Care Act. He continued killing the Commerce Clause, which has been the core way that Congress has addressed some of these issues with regard to economic programs or programs that have an impact on the economy. And one could arguably say that healthcare provision is one of those things. And the conservatives on the court for a long time had been on a campaign to limit Congress's authority under the Commerce Clause. John Roberts continued that project even as he saved Obamacare. So we can't forget that. And we should also note that John Roberts, noted institutionalist, has written a number of decisions that are absolutely corrosive to the institutions of democracy. He is the author of Shelby county vs. Holder, which demolished Section 4 and 5 of the Voting Rights Act. And the pre clearance regime that made it difficult for states with a history of voter suppression to pass oppressive voter laws. After Shelby county, it was open season. And we've seen how the states have basically ginned up all of these laws that are meant to keep certain populations out of the ballot box. He is the author of 2019's Russo vs Common Cause, which held that federal courts have nothing to say about partisan gerrymandering, that if this is going to be fixed, it's going to be fixed by the states. That's insane. Like, asking the states, which are actively involved in partisan gerrymandering, to fix the partisan gerrymandering is like asking a burglar to fix the burglary.
- [32:52]
A
Like, it just doesn't work because we're now seeing. Right, yeah, right.
- [32:55]
B
I mean, it doesn't work. And, you know, whatever. He's also the author of Trump vs. United States. And, you know, I just don't understand why we're giving this man credit for occasionally throwing, thwarting the king, like, president he made. I mean, he's basically the Victor Frankenstein of American government. You made this monster. You were the one that empowered this president. And okay, occasionally you tell him, you can't do this with tariffs. You may tell him you can't do this with birthright citizenship. But you've basically enabled him in every other way with this decision. Trump versus United States. And the court on the shadow docket has essentially allowed this administration to run roughshod over constitutional authorities, the powers of Congress, the power that the people have. And they keep saying, like, these are interim decisions, but, like, everyone knows you can't put this genie back in the bottle. If the court later comes back and says, you know what, the President really didn't have the authority to dismantle the Department of Education, that doesn't matter, because in the interim, you let them dismantle the Department of Education. Like, and I think Jodi Cantor and Adam Liptak's reporting is just so vital because it makes clear not only that this Chief justice has been the architect of so much of this and prosecuted this, but that the way that they are doing it is so partisan that, you know, they're willing to cut the knees off of this Obama administration plan while they are constantly facilitating the Trump administration. Their whole understanding of irreparable harm changes depending on who is in the White House. If there's a Republican in the White House, the government always has irreparable harm that must be addressed. If there's a Democrat in the White House like, then, I don't know, regulated industries, the people, they're subject to irreparable harm. That must be addressed. Like, it's just so inconsistent, it is so craven and it is so obviously, obviously partisan.
- [34:53]
A
Man, you're good. And I hope all the Fed heads notice the precise and often mistaken by others use of reference to Frankenstein and Mary Shelley. And you know, you, you speak almost better than almost anybody writes. I can't add a word to that. Melissa. Let, let's stick with the sort of more almost the personal issues on the court. But I think it matters operatively so it feels like pockets of this court have like, strong strains of contempt for one another. There's this.
- [35:29]
B
The girls are fighting. The girls are fighting.
- [35:32]
A
There's certainly this sourness on the part of Alito and Thomas, sometimes Sotomayor Gorsuch, you get the notion that his maverick streak is often off putting and devolves into like civic lessons to his colleagues. What do you see as the, as the personal dynamics of this court and does it shape decisions? We famously knew about the acrimony and the court around the New Deal era. This is not a happy court, it seems to me.
- [36:04]
B
No, that seems clear. Yeah, I, I will say, you know, Noah Feldman's book Scorpions is one of my favorites about the Roosevelt New Deal court. And those guys were at each other's throats, yet they managed to be really productive. And one thing that you can say about this court, their productivity has waned over the last couple of years. They're taking fewer and fewer cases. That may be in part because so much more is bubbling up on the shadow docket, but that's also something that they have enabled. So they are the architects of their own misery in that respect. But it does seem like the kind of easy collegiality that once was the hallmark of relations at 1 First street is no longer the case. And maybe that was to be expected, you know, in the years that I was growing up. So this is, you know, the 1980s forward, you had to have a supermajority to be appointed to the Supreme Court. And the fact of that supermajority requirement meant that you really couldn't have huge among the senators. You mean among the senators. Yes, you had to have a super majority in order to get confirmed. And that meant you really couldn't have an actual ideologue. Right. You had to be able to pick up votes from the other side. And again, it wasn't as though the Senate was so evenly split the way that it is today. I mean, you really may have had to work in order to get some of those votes in order to be appointed. And I just think that meant you got more people who were a little unpredictable, a little hard to pin down. You know, your Anthony Kennedy, Sandra Day o', Connor, John Paul Stevens, people who could just, you know, shift and drift might be persuadable. Now, I think on both sides of the aisle, you've got real entrenched political views, like among the justices. Like, these are people with real ideologies, and in large part because they don't have to get the votes on the other side to get confirmed. All they need is a simple majority. And, you know, if you've got your party in the White House and your party in the Senate, you're good to go. And I think we're seeing that now. I think the idea that they could be friends even as they disagreed, I think that's going by the wayside. I thought a couple of weeks ago when Justice Sotomayor appeared at the University of Kansas Law School and she made that statement, which she later recanted and for which she apologized about her colleague who had written a concurrence that effectively licensed racial profiling and ICE detention stops. And, you know, one of the things that people talked about was just sort of like how kind of pointed the criticism was. Like, she mentioned that her colleague was the son of professionals and probably didn't know someone who worked a day job or was a day laborer or worked a job where you had to show up. Like, you couldn't just take a personal day because you got hemmed up by ICE and you just didn't understand. What I actually thought was the most revealing comment that she made with regard to that statement was that. And you try to tell them this and they don't listen. That was the point I thought was really interesting. She's obviously told Brett Kavanaugh what it is like to be someone who works a job where you just can't take off. Like, you don't have control over your schedule. And that being hemmed up by ICE when you're not supposed to be is a real inconvenience, if not an assault on your dignity. And he's not listening. Right. And I think for her, that's a real shift, because even before, they might not have agreed, but they would have listened. And I think that's what's shifted. That's what's changed. Again, I don't think she had much to apologize for. I mean, I thought it was a pretty Fair criticism. I think she probably could have gone even further. I will note that on the same day her apology was released, Justice Thomas gave a speech at the University of Texas's law school. And in that speech, he began by first noting the presence of Harlan Crow, his vacation host, I guess, which I thought was interesting because it means that Justice Thomas is in full D. GAF Mode. He's not apologizing for that, and he doesn't care if, you know, that Harlan Crowe is there. And then he went further to basically deliver a diatribe in which he said that liberals and progressives were on par with Hitler, Mao, Mussolini, who knows who else, and that we were responsible for the corrosion of American values. I mean, he basically lambasted half the country. And there has been no apology forthcoming, no chiding of him, like, you know, no attempt to sort of talk about civility and changing our political culture. That, to me, is absolutely wild. Leaving aside the other aspects of his speech, which were very heavily laden with theological references, which I think are odd given the separation of church and state, which I have documented here in this book. But that happened on the same day Justice Sotomayor apologized for calling out a colleague, for allowing racial profiling to happen.
- [41:29]
A
Yeah, man, oh, man. You really don't get the sense that these guys persuade one another at all. Your point about the ingenuousness, I guess you could say, of Justice Kavanaugh, when I court for Justice Marshall, he made the point quite a bit. And was it Paine's, to explain to his colleagues what the experience of so many of the people before the court that were alien to them, but you really get the sense that they now are able, because of the political polarization in the land, to exist and flourish in their own sorts of silos. And that really affects things. So, you know, you mentioned Justice Kavanaugh had the Syrian experience in confirmation, but now on the other side, I think he lives and goes to dinner parties and is lionized at meetings among fellow people who share and reinforce his views. That may account for a somewhat different orientation of Justice Barrett, whom I wanted to talk to you about. But I think it's a really important kind of sociological point. All right, let me go to a really concrete point. We have the real prospect of an Alito or Thomas retirement at the traditional time, at the end of the term. We had in Trump 1.0, a total kind of dedication to the caprices or will of the Federalist Society crowd. They are now out of favor, and Trump seems to be focused on priority one Two and three being personal loyalty to him. I know this like a seventh grade kind of game, which is grosser. But from the standpoint of the country, if you were thinking about either on the one hand and Emile Beauvais or Eileen Cannon or on the other, Judge Rao or Judge James Ho in the Fifth Circuit, you see the different ways it could lead the court. Do you have thoughts about the next prospective appointment?
- [43:40]
B
So it's interesting to see the departure of the Federalist Society and Leonard Leo from the vetting process. Obviously, those guys are not my bag. I'm not ideologically aligned with them. I will say they're smart, really smart. And I think for the most part, the people that were on their lists were picked because they are credentialed and they are smart. I wonder if there will be the same kind of attention to those details now that they've left the building. Right. I mean, there may be vestiges of their influence, but, you know, who knows? There are a number of lower federal court judges who are actively campaigning to be America's next top justice. And they are doing all the things. So, you know, there is Van Dyke on the Ninth Circuit who has filmed a Second Amendment video dissent. That was something we covered on strict scrutiny because it was absolutely wild. You know, there are the judges on the Fifth Circuit. Andy Oldham, Jim Ho, Naomi Rao, I think her. The last decision over opinion about Boseberg. Boseberg, obviously.
- [44:49]
A
An audition off the reservation.
- [44:51]
B
Yeah, an audition. And so, I mean, again, I just, you know, people talk about the whole idea of, like, cameras in the courtrooms would prompt these judges to act out. Like this is from. I mean, like, they are doing the most right now because they're auditioning for an audience of one. And I don't know, I mean, maybe people recalibrate once they're on the bench and, you know, they have a degree of independence from the President who nominated them. But honestly, for me, if I were in the Senate Judiciary Committee, it would be disqualifying to see the lengths to which some of these people have gone to get attention and to be viewed as shortlisted or shortlisters for that project.
- [45:40]
A
Yeah. I mean, all the time you have nominees up there saying, well, I can't tell you how I'd rule because then you would think we're making a bargain where I'm trying to get your vote. And of course, that's exactly what we're seeing. Okay, Melissa, I've enjoyed this so much and I hope we can talk more. I just want to end with, you know, it may be a melancholy question. You do, at the end, have a kind of pianta faith in an overall democratic process and the people's role in the ultimate meaning of the Constitution, but just to focus on the Court and the sort of strict scrutiny question with the distinction prospect of a much younger Alito or two joining the Court. At what point, I'm sure you face this question, should advocates of democracy and the rule of law simply give up not on the broader project that you extol in the book, but on the Supreme Court and focus instead on the other political and legal institutions in the country?
- [46:44]
B
So working on this project actually untethered me from the Court in a lot of ways, which is not to say the Court is not present in this book. I talk a lot about the Court's decisions, but this project and another project that I worked on with my co host, Kate Shaw this year really got me to focus on other actors who are deeply, deeply invested in the project of making constitutional meaning. The President, on the one hand, who, through these executive orders that have been released in a flurry during this administration, is articulating his vision of the Constitution. It is one in which DEI is verboten, even though no court of law has ever declared DEI statutorily problematic or constitutionally problematic. It is one where trans equality is absolutely anathema to the prospect of women's equality, which is interesting given that the same decisions that undergird trans rights are the same decisions that undergird women's rights. So when you unsettle trans equality, you're actually unsettling women's equality. And, you know, that is something this administration has made very clear in its executive orders, that the two are absolutely incompatible, even though they share the same jurisprudential roots. That was important for me, I think, in this book and as a scholar of constitutional law, to recognize that there are other people here doing the Constitution, other actors. It's not just the Court. We have a president who's doing this. Sometimes Congress gets in to check the Court by passing legislation that overrides things that the Court has done. And sometimes the people themselves get involved and have a lot to say about what the Constitution means and what it should mean. And it can be the people coming together during the populist movement to promulgate the 16th, 17th, 18th and 19th amendments. Or it could be a college student at the University of Texas at Austin who's writing a term paper and realizes that there is an amendment that's left over, didn't get enacted with the Bill of Rights. But it's just left over. It's just been sitting out there. And if we can just get a couple more states to sign onto it, it will actually, actually become part of the Constitution. And so he writes this paper, he gets a C on this paper, he is undeterred, and he decides he's gonna call up state legislatures and get them to vote for this amendment that's been dormant for so long. And he actually is successful. He gets the 27th amendment, the compensation amendment, passed in 1992, almost 200 years after, like, bonkers, right? But he did that. A college student did that. And not only did he get this amendment passed more than 200 years after the fact, he got his grade changed from a C to an A. And if that's not a lesson for all of us, I don't know what is. Where's always room for the people?
- [49:44]
A
What a great coda. Let's have another look at the book, please. The US Constitution. It will be on my bookshelf and I really recommend it be on yours. All you fatheads. Melissa, so great to be with you. Sorry for going a little over. Sorry for my croaky voice. Talk to you later. Thank you for tuning in to One on One, a weekly conversation series from Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review the show. You can also subscribe to us on YouTube, where we are posting full episodes and daily updates on Top Legal Stories. Check us out on substack harrylitman.substack.com where we're posting two or three bulletins a week breaking down the various threats to constitutional norms and the rule of law. And Talking Feds has joined US Forces with the contrarian. I'm a founding contributor to this new media venture committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Rest assured, we're still the same scrappy independent podcast you've come to know and trust, just now linked up with an ambitious and vital project designed for this pivotal moment in our nation's legal and political discourse. Find out more@contrarian.substack.com thanks for tuning in. And don't worry. As long as you need answers, the Feds will keep talking. Talking Feds is produced by Lou Cregan and Katie Upshaw, associate Producer Becca Haveian Sound Engineering by Matt McArdle, Rosie Dawn Griffin, David Lieberman, Hamsum Hadranathan, Emma Maynard and Hallie Necker are our contributing writers and production assistants by Akshaj Turbailu. Our music, as ever, is by the Amazing Philip Glass. Talking Feds is a production of Dolido llc.
- [52:05]
B
See?
- [52:05]
A
I'm Harry Littman. Talk to you later. Ryan Reynolds here from Mint Mobile with
- [52:24]
B
a message for everyone paying big wireless way too much.
- [52:28]
A
Please, for the love of everything good in this world, stop with Mint.
- [52:31]
B
You can get premium wireless for just $15 a month.
- [52:34]
A
Of course, if you enjoy overpaying. No judgments. But that's weird. Okay, one judgment anyway. Give it a try@mintmobile.com Switch upfront payment
- [52:45]
B
of $45 for 3 month plan equivalent to $15 per month required intro rate first 3 months only, then full price plan options available, taxes and fees extra. See full terms@mintmobile.com.