Loading summary
Transcript115 lines
- [00:00]
VRBO Narrator
Whether it's a birthday trip, a family reunion, or just a fun getaway, booking a VRBO vacation rental means no worrying about surprises. VRBoCare and 247 Life Support have your back if something's off. The Loved by Guest filter helps you find top rated homes and verified reviews mean real feedback from real VRBO guests so you know exactly what you're booking.
- [00:19]
Melissa Murray
Honestly, I just booked my VRBO because there was a sweet wine fridge.
- [00:23]
VRBO Narrator
Hey, we all have our reasons. Don't walk into a surprise if you know you. VRBO terms apply. See vrbo.com trust for details.
- [00:30]
Talkspace Narrator
This podcast is sponsored by Talkspace. November is Men's Health Awareness Month. So Talkspace wants guys to know that being prepared for life's biggest challenges and opportunities means prioritizing mental health too. Talkspace can help you go beyond fine tuned workouts, supplements and productivity hacks. Talkspace can help you fine tune your inner life so you can succeed in being the best version of yourself in any situation. And with Talkspace you can get therapy from anywhere and on your time. You can. You can even text your therapist between sessions. If you're depressed, stressed, struggling with a relationship, or just need a little extra one on one support. Talkspace is here for you. Plus, Talkspace takes most insurance and most insured members have a zero dollar copay. Men's Health Awareness Month is the perfect time to reach out to TalkSpace. Now get $80 off your first month with promo code SPACE80 when you go to Talkspace.com match with a licensed therapist today at Talkspace.com and save $80 with code SPACE80@Talkspace.com that's Talkspace.com, promo code SPACE80.
- [01:43]
Tim Miller
Hello and welcome to the Bulwark Podcast. I'm your host, Tim Miller. Delighted to welcome back to the show. Professor at NYU Law School, co host of the Strict Scrutiny Podcast and author of a new explainer on The Constitution. The U.S. constitution. A comprehensive and annotated guide for the modern reader. It is out today. She is holding it. It has a salt rimmed edge.
- [02:05]
Melissa Murray
It's the best margarita you'll ever read.
- [02:08]
Tim Miller
Happy Cinco de Mayo. Do some light constitution reading. I also just found out in the green room you somehow have a child going to college which feels impossible. You look amazing. How is that possible?
- [02:19]
Melissa Murray
Tim, thank you. Yes, Melissa Murray has a college age child. Melissa Murray is in her fifth decade.
- [02:26]
Tim Miller
Wow.
- [02:27]
Melissa Murray
But you know what keeps me looking so young? Keeps me looking younger than some members of this administration.
- [02:32]
Tim Miller
What's that?
- [02:33]
Melissa Murray
I can read the Constitution and I do. And that's. That's.
- [02:37]
Tim Miller
Yeah, you want to turn back moisturizing and the truth.
- [02:40]
Melissa Murray
It's a real originalism. Read the Constitution, look like a younger person.
- [02:45]
Tim Miller
How do you think things are going with the Constitution right now?
- [02:47]
Melissa Murray
Just overall, it's not great, Tim. I'm not going to lie.
- [02:51]
Tim Miller
Okay.
- [02:52]
Melissa Murray
We've got Congress that seems to be asleep, somnambulant. We have a president who is asserting what I think is the most muscular vision of executive authority that we've seen in decades, maybe even ever. And we have a Supreme Court that basically does what it wants, precedent be damned, prior rulings, everything, just, you know, does whatever it wants and facilitates this administration in some of its worst excesses. So it's not great. But I think that's exactly the kind of moment where we the people need to intervene, read the Constitution, read what the Constitution was about and reclaim it for ourselves.
- [03:38]
Tim Miller
Yeah. I was so excited when I saw that this is what you're writing on. When I heard Melissa Murray has a book and once. You're always welcome on, no matter the topic. But I was like, this is great for a number of reasons, but for one, as a former Republican, maybe this is not true in the world, but I don't know. But for me, it was like there was a period of time when the Constitution was kind of Republican coded. They at least wanted to talk about it more. You know, there was like this. Like we were the ones. It was the young Republicans that had our pocket constitutions. I've got a pocket constitution. Like six drawers in the house. Like an old Catholic granny has the pictures of the saints in every room. I've got the pocket constitution. And I was a little cringe, I think, for the Young Democrats. And I do think that in this moment, I think an effort to flip it is important and needed. Or you can object to the fact that that was ever even a thing.
- [04:29]
Melissa Murray
Well, I mean, I think I probably would have hung out with you, young Republican or not. I was never a young Republican, but I also did have a pocket constitution. I think that was the point. I think just being a young American means you ought to have a pocket constitution. Because the whole point of this was that people would read it, they would debate it, they would grapple with it. And, you know, maybe this is more of a tenet of an older brand of Republican partisan affiliation, but the Constitution at bottom is a document that's about limited government. Right. It is genuinely about putting restraints on the state. And, you know, I think that's something right now. We could all get down with, hell yeah.
- [05:12]
Tim Miller
Okay. There's a lot of legal news items I want to run through with you and then, you know, maybe, yes, some other news items as well. And then I want you to regale me with some book anecdot. I want some fun Constitution facts. So start thinking about that. There are a couple I've already spotted from steaming the book. The first one was obviously the big news on the Voting Rights act, the gutting of it. I had Mark Elias on over the weekend. We kind of did a deep dive on this. And I think even since we taped on Saturday, we're seeing even more of the Southern states coming out and basically saying they're going to try to jam through a redistricting here. Even though in some of the states ballots are printed. In my state of Louisiana, people have already voted, but they're still going to do do it anyway. What is your sense on the state of the play, both on the politics and the legal side?
- [05:58]
Melissa Murray
So, I mean, this is basically a Bravo, Real Housewives of Atlanta who gon check me boo moment, right? I mean, these states are like, who going to check me? Nobody. Not the Supreme Court, probably nobody. This is a break glass emergency moment, I think, for democracy. The Supreme Court, in that opinion written by Justice Alito, a 6 to 3 opinion written by Justice Alito, basically eviscerated the Voting Rights act and its promise of a multiracial democracy for this entire country. I mean, the idea that when states seek to remedy racial gerrymandering by thinking about race and constructing a map that gives minority voters an opportunity to elect candidates of their own choice, they're the ones engaging in race discrimination. I mean, that's just bonkers. I mean, this is the Court taking its vision of colorblind Constitution, its imagined understanding of the 14th Amendment as entirely colorblind, which does not code with the history of the 14th Amendment at all. And now extending it beyond the usual context like college admissions and affirmative action, and now extending it to the most important right that we have, the right to vote, the right to make our voices heard. It was a dark day for democracy last week. I don't know what else to say about it. And it was even darker because the Court was so craven about what it did. And Justice Alito wrote that he was preserving Section 2 of the Voting Rights Act. That's like my teenager tossing his room and then telling me he cleaned it. Like, really?
- [07:37]
Tim Miller
Okay, we rearranged it, right?
- [07:39]
Melissa Murray
Well, that's basically what he said. We realigned Section 2 and its jurisprudence to accommodate this new understanding that's eviscerating the Voting Rights Act. I mean, the whole idea of Section two was that you could bring these claims against individuals who were trying to limit the power of minorities to get to the ballot box. That was what the 15th Amendment was about, enfranchising African Americans First, African American men. And then the Voting Rights act in 1965 made the promise of the 15th Amendment good for everybody. And the courts pretty much put the kibosh on that.
- [08:15]
Tim Miller
The impact on representation is going to be so dramatic. And, I mean, some of this is kind of obvious, but when I was looking at a chart that was put out of, we can just have, like, black representatives in Congress over time in history. And you look at it and there's like a small period where there were some in the south, even before the rules were in place of the Voting Rights act, remedied to prevent them from having representation. And then there's a gap of a period where there's basically none. There's a couple in the Northeast, and then the Voting Rights act passes, and then you see a big jump to where black representatives, like, match or get around the percentage of their representation in the population, which is a community actually being represented. And you're already seeing that kind of trying to tick back down. And I just think that the chart will be so shocking if you look at it in 2029 if this isn't fixed, because you'll see almost a total reversal.
- [09:09]
Melissa Murray
Well, I'll put it in even more stark terms. The House is obviously one aspect of this. I think it's even more pronounced in the Senate, which is already a ch that is somewhat distorted by the whole idea of minority rule and the fact that the least populous states get to be represented in the same way as the most populous states. But prior to the Civil War, there obviously hadn't been any black representatives or senators in the Senate. After the Civil War, Mississippi appoints Hiram Revels to the remainder of a term, and he serves from 1878 to 1871. He's the first African American to be appointed to a seat in the Senate Senate. He's only there for a year. The whole time, he is plagued by claims that he is an illegitimate senator, that he's not a citizen. And they advert to 1857's Dred Scott decision for that argument. There's another senator also elected from Mississippi, Blanche Bruce. He serves until around 1881, after reconstruction ends in 1875, I think. 1875 in the Hayes Tilton Compromise. We don't get another black senator in the Senate until 1967. And that's two years after the Voting Rights Act. And we've only had, I think now it's 13 black senators in the Senate. So I mean, it has been really stark. I don't think we're going to have a Congressional Black Caucus going forward if this is allowed to stand in large part because it's not just that it's going to decimate black representation throughout the south, like that's already happening and it will happen. But the fact that Justice Alito left the shards of sections 2 in place means that it is available going forward. So non African American litigants can challenge California. For example, when California draws an opportunity district to counteract what is going on now and counteract the losses that are being made now, white voters can simply say section two, this is racial discrimination and they will sue. And under this court's ruling, they will likely be successful. So that's the even more craven part about what the court is done. They haven't been honest about actually eviscerating it and they've left the shards of it in place so that it can be co opted and used against minority representation going forward.
- [11:32]
Tim Miller
You talk about in the book about the Reconstruction Amendments put together, the 13th, 14th, 15th and the way that they're written, they contain clauses that have Congress enforce the amendments through different types of legislation. This is essentially what the VRA was. I'm just wanting to talk about that and how for these originalists, how this reflects what the original intent was of those Reconstruction Amendments.
- [11:56]
Melissa Murray
So the Reconstruction Amendments are passed in the wake of the American Civil War, the bloodiest conflict that's ever been fought on American soil. And a true moment of rupture for this country with a country sort of like, how do we put ourselves back together? And they recognize that they're going to have to do something drastic. They're going to have to actually remake how they are organized as a country. And this means a series of new amendments. So the 13th Amendment abolishes slavery. It basically says that slavery or the badges and incidents of slavery cannot be used going forward. They do make a provision for forced labor as a punishment for a crime, but otherwise you're not going to be able to just like re entrench this under some other name. And they enforce it not just against the state, but also against private actors. The 14th Amendment deals with the entire question of citizenship. It is to counteract Dred Scott, that 1857 decision that said African Americans and anyone descended from African slaves could never be citizens. They counteract that with the 14th amendment. They also lay out a whole series of provisions of individual rights that the states are not to infringe upon. And then they realize that that's not going to be enough to guarantee a multiracial democracy. It's not going to be enough to integrate the formerly enslaved into the body politic. They actually need to do something explicit about enfranchisement. And so what they do is they pass the 15th amendment that says that you cannot deny the right to vote on the basis of race, and that effectively enfranchises African American men from the start. There is an immediate campaign to cabin the impact and effect of the 15th Amendment. The south does all sorts of things, much of it race neutral, like the imposition of poll taxes and literacy tests. And you know, they'll say, like, if you want to vote, you have to pay this poll tax, or if you want to vote, you have to pass this exam. And you might get a buy though, if your grandfather voted in this election or voted in, you know, two elections beforehand. So they do these race neutral, very sneaky ways of making sure that the black electorate is absolutely disenfranchised. The 15th Amendment has a Section 2, and that Section 2 authorizes Congress to pass legislation to enforce the terms of the 15th amendment. The 14th amendment has an analogous enforcement clause. It's section five of the 14th amendment which gives Congress the power to pass legislation to enforce its terms. It is under those enforcement provisions that the Voting Rights act of 1965 is passed in 1965, the wake of a bloody battle that results in people being killed, people literally fighting for the right to vote and paying for it in their blood. And Congress passes this law that is meant to address the fact that the states of the former Confederacy have for years, a generation and more, been suppressing the right to vote on the basis of race. And the terms of the Voting Rights act and section two basically mimic the 15th amendment. So for this court to come back and say the 15th amendment is race blind, the 15th amendment is colorblind. You're not supposed to take race into account, just belies the whole purpose of what they were doing. They knew that, what they were dealing with, and they knew that to remedy the impact of race discrimination, they might actually have to think about race and race discrimination. And so the idea that you shouldn't or you can't, it's impermissible to do so is just literally mind boggling. But that's what this court is doing.
- [15:36]
Tim Miller
Hey, everybody, Mother's Day is this weekend. No, really? That's what the script says. Apparently. Mother's Day is this weekend. I haven't bought anything. Fuck. Well, if you're like me and you're still looking for the perfect gift, you're in luck because I've already got my mother an aura frame. So I need to come up with another idea. But for you, we've got the perfect idea. The best thing about aura frames is they last longer than flowers or a card that gets open and thrown away. I gave my mother, I gave a grandmother. I've given all kinds of different mothers aura frames and they all love it. You know, it's nice. You can update the pictures if it's. If it's a mother, a grandmother, an aunt, you know, you can send them pictures of the grandchild, of the grand niece. Keep the flow going. You know, maybe they're not on Instagram. Maybe they're not following your stories religiously. Maybe there's some funny things you want to put in there that you wouldn't put on your Instagram feed. It's great. It's easy. You send new photos right from your phone and you can send as many as you want. Aura frames is an easy gift to send with just a few days less. I mentioned, I think last week, there's a dude at jazz Fest came up to me. He's like, bro, I got the aura frame. I used your code. Mother's happy. So do what that guy did. Make Mother's Day special with aura frames named number one by wirecutter. You can save on the gifts moms love by visiting auraframes.com for a limited time. Listeners can get $25 off their bestselling carver mat frame with code the Bulwark. That's a U R A frames.com promo code. TheBullwerk. Support the show by mentioning us at checkout. Terms and conditions apply. We're going to move on to some of the other court news. We have the Miff Prestone case. So on Friday, the fifth Circuit issued a nationwide injunction banning the mailing of the drug. Drug maters appealed to the Supreme Court and Alito, interestingly, on Monday, temporarily lifted the ban on mailing. I'm not really sure what to read into that.
- [17:34]
Melissa Murray
I wouldn't read anything into that. I mean, essentially it's a one week stay of the lower court's order. First of all, the 5th Circuit is on one and has been on one for some time. I mean, it is so far off the wall that Even the court has to rein it in. I mean, the fifth Circuit is basically the Supreme Court's PR machine. It does stuff that's so outlandish that when the court in to correct them, they. The court basically looks normal and the court is not normal. So the fifth Circuit serves an important role.
- [18:04]
Tim Miller
You should go hang out down there. Just going to see what's happening. That's right down the. Right down the street.
- [18:08]
Melissa Murray
Louisiana, Texas, Arkin. Those are your people, Tim. Those are your people. But they basically implemented this nationwide ban on mifepristone on the view that these doctors who have challenged the distribution of mifepristone via telehealth and through the mails are effectively thwarting Louisiana's law that prohibits abortion. And it is denying Louisianans and the state of Louisiana the opportunity to protect unborn life, that it is dangerous to use mifepristone. This is a little spotty here because they say that two women have had ill effects from the use of miferistone. Yet they note that thousands of women have been ordering and receiving mifepristone through the mail via telehealth. So two women have ill effects, but thousands are actually receiving it. I'm not sure what that says about the safety record of mifepristone. I do know that the FDA for years has determined that mifepristone is safe and that not only is it safe for terminating a pregnancy, it's needed to terminate a pregnancy in circumstances where the pregnancy has already been lost and the woman has had a miscarriage. Medication abortion is the standard protocol of care in those circumstances. And this obviously throws that into disarray and endangers the lives of many women who will need it. One in three women suffers pregnancy loss and needs to have this kind of treatment to maintain fertility and to have children going forward. So the court steps in. There is a request for a stay of the fifth Circuit's decision. It comes from the manufacturers of the drug, Danko and another manufacturer. And Justice Alito, who's the circuit justice for the fifth Circuit, is the one to whom the petition for the stay is directed and he grants a one week stay. So that has lifted this ban for a week. Mifepristone is broadly available through telehealth and through the mails for a week. And we'll basically get a timeline for how this is going to go before the court. Steve Vladek, a friend of my podcast Strict Scrutiny, noted on his substack that Justice Alito, frequently, as the fifth Circuit Circuit justice will have to implement stays. And he often implements stay stays with no deadline and no time limit in issues that he likely agrees with, but puts a time limited stamp on the ones with which he disagrees. So the only thing I might read into this is that we already know what Justice Alito's vote will be on this case. I think the real question is what will be the vote of Brett Kavanaugh, who in the Dobbs opinion talked about the importance of states being able to do as they liked in the context of abortion. That might weigh in favor of Louisiana. It might also weigh in favor of the states with physicians who are prescribing this medication because it's lawful for them to do so in their states. So, I mean, there are a lot of really important questions here. And I will just say in conclusion, this court told us they were settling the issue of abortion when they overruled Roe versus Wade and Dobbs. And here we are again. It's just so weird that it's not settled.
- [21:16]
Tim Miller
So Kavanaugh is seen as a swing vote, I would say, I would assume on this or Gorsuch.
- [21:20]
Melissa Murray
I mean, it's a six to three court. I know how I think most of them are going to vote. Justice Thomas is definitely not going to be allowing mifepra stone to flow freely throughout the United States. I think the real sort of wild card might be the chief Justice. I'm not sure about Justice Barrett. She's a little wonky on that. Justice Kavanaugh, I think, has said a lot of different things about federalism and the right to travel. I'd just be interested to see what he says at oral argument.
- [21:47]
Tim Miller
So is that going to be then in this session resolved?
- [21:52]
Melissa Murray
Possibly. I think maybe not. I mean, this session is pretty much winding down. It might be something that they hold over for formal argument in the next term. I think right now there are sort of interim emergency rulings that will be issued on the shadow docket. The interim docket. And then we're going to find out how this gets slated and resolved.
- [22:09]
Tim Miller
There was this New York Times story in the shadow docket a couple weeks ago that was so interesting that I haven't had a chance to get to. But I'm just wondering if you kind of want to weigh in.
- [22:17]
Melissa Murray
I love this article.
- [22:19]
Tim Miller
Okay, great. Well, it's not a court watcher, I guess. I didn't realize. It's sort of akin to like the filibuster story a little bit. Right. Which is like the filibuster was something that was used Like a little bit for a while in certain cases that were, you know, where there are extreme cases, and then all of a sudden it gets institutionalized. And now, like, every bill requires a filibuster. And like, if you look at the charts like a hockey stick on how often the filibuster is invoked. And I guess that's basically what happened with the shadow docket starting in the Roberts court, which is something that I didn't really realize. But talk to me a about that and what the implications are.
- [22:52]
Melissa Murray
Sure. So, you know, there's always been a shadow docket. It's usually for issues that have to be resolved very quickly while litigation is pending. So it often was used in the context of the death penalty or election related cases. That came up a lot. It wasn't really used for issues like the issues we see it being used for now, like actual substantive issues about the exercise of presidential authority or whether the executive has intruded upon the prerogatives of Congress. Those questions typically weren't resolved on the shadow docket. Those questions were, and I think properly resolved on the court's merits document where it would be set for oral argument. There would be full briefing from the parties, there would be an oral argument, and then the court would write a decision explaining how it resolved the case. And maybe there were concurrences or dissents or whatnot. What is happening now is that more and more cases are being decided in the interim on the shadow docket, which means that the litigants will run to the court while the litigation is still pending at the lower courts and ask the court to resolve a particular issue. So, for example, when the Trump administration tried to dismantle the Department of Education, it was sued and a lower federal court implemented an injunction saying that they couldn't do what they wanted to do by stripping the Department of Education of its funding. And then the Trump administration left that trial court that had issued that ruling and went immediately to the Supreme Court to ask the court for a stay of the lower court's ruling. And the stay would effectively lift the lower court's injunction and allow the administration to continue doing what it was doing while the litigation then made its way through the lower federal courts. You know, my colleague Leah Lippman, at strict scrutiny, refers to the shadow docket as the just the tip docket. And at first I didn't know what she meant.
- [24:52]
Tim Miller
I'm intrigued.
- [24:53]
Melissa Murray
Well, so was I. And I got an education. I'll tell you what. So she explained to him, like, why do you call it the just the tip docket. She's like, well, it's like when people who advocate for abstinence say that if it's just the tip, it's not really sex and you're not getting. Yeah, jtt, right. She's like, but you are getting f'd. And so the court says it's just the shadow docket. It's not doing anything. They're just interim decisions. They're not changing anything. But in fact, we're all getting.
- [25:23]
Tim Miller
It was super interesting. Just like the types of things that it was used for, like the Department of Education thing, it just has begun to be used for a lot of different things where it's like, it's not an emergency, actually.
- [25:33]
Melissa Murray
No, I mean, that should percolate up. But like the administration, recognizing that the court is amenable to these shadow docket requests, is just channeled more and more to the shadow docket. And the thing that this reporting from Jodi Kanter and Adam Liptak really made clear was that there's a moment where it all kind of comes together. And it's in 2016 with the Clean Power Plan where the litigants, the energy industry, the states immediately run to the court to challenge. This Clean Power Plan hasn't gone into effect. It has the longest timeline for its implementation. I think it wasn't even supposed to go fully into effect until 2030. But in 2016, they get a ruling on the shadow docket from the Supreme Court. And the memos that are reported in this article in the New York Times makes clear that the court and John Roberts, the Chief justice in particular, is really on one to decide this and to like to show the Obama administration who is boss. Like, they really are worried that the Obama administration is thumbing its nose at the courts, that the EPA is thumbing its nose at the court. So they're taking into account all of these out of court statements that EPA administrators and officials have made in like newspapers or magazines or on tv, but none of it is part of the record because there is no record, because this case has not formally, formally been adjudicated in any lower court. And you know, the court is just basically of the view that the Obama administration can't do this. And they don't wait for formal briefing. They don't wait for oral argument. They just stop it in its track and they don't give a lot of explanation for why they're doing it. It's a decision that they make and they decide to take this unprecedented procedural step with very little Discussion among the justices, and there's no discussion of the impact on the environment of not allowing the Clean Power Plan to go into effect. All the Chief justice and the other Justices are really concerned about are the effects on the states and regulated industries, on the domestic power industry, and the harm to those litigants if the Clean Power Plan is allowed to go into effect. And it's contrasted with the way the Court talks about irreparable harm now when it's making decisions on the shadow docket. Because now when the Trump administration comes seeking a stay on the shadow docket, the Court is very solicitous of the administration's claims of irreparable harm. Like basically thwarting the administration and doing anything causes the administration irreparable harm, which means the Trump administration almost always wins. And so there's a real contrast between when the President is a Democrat and when the president is a Republican.
- [28:17]
Tim Miller
Anything else particular on the Court you're watching over the next few months?
- [28:20]
Melissa Murray
Well, I mean, I think the girls are fighting, and I love to see it. I just want to know everything that's going on. Justice Sotomayor at the University of Kansas had some sharp comments for Justice Kavanaugh about basically him being clueless about how these Kavanaugh stops, where you can basically racially profile people for purposes of ICE detention, how that works in real life. And I guess she kind of got some flack from her colleagues about that because she issued an apology through the Court's public information offices and then said that she'd apologized to her colleague. But on the same day that she issued that apology, Justice Thomas gave a speech at the University of Texas at Austin. And before he actually launched into his speech, he acknowledged that sitting in the audience was Harlan Crowe. And if you think that sounds familiar, who's that guy? It was that guy who was, like, taking Justice Thomas on fancy vacations and private jets and yachts and stuff. So Justice Thomas wants you to know that he's still palling around with Harlan Crow, and he basically doesn't give a fuck if you care about it. So there's that. And then he went on to talk about how progressives are basically a scourge that have cultivated the conditions under which Hitler, Mao, and other despots have been allowed to rise. And no apology was forthcoming from Justice Thomas for basically insulting more than half the country.
- [29:41]
Tim Miller
The only good part that I can think of, the only silver lining to Justice Thomas DGAF is that if he was purely motivated by ideology instead of self interest, he would retire this fall, you know what I mean? Because he's pretty old and getting up there. And if the Democrats take the Senate, might be the last chance for him to get replaced for six years, maybe, maybe not. Or 10 years. Or maybe that will not happen and Maga will stay in power forever. But it's a risk. He's putting that seat at risk and he's doing so because he wants to be the longest running Supreme Court justice of all time. And he only cares about himself. So knocking on wood that in this case, selfishness might backfire.
- [30:22]
Melissa Murray
I mean, let's all do a Ruth Bader Ginsburg.
- [30:25]
Tim Miller
Seriously, speaking of selfishness, this episode is sponsored by BetterHelp. May is mental Health Awareness Month month. It's a good opportunity to remember that whatever you're going through, you're not alone. We all have good days and bad days, stuff that keeps us up at night. Sometimes it feels like we have to figure it out by ourselves. But the truth is, nobody has all the answers. No journey should be alone. Having someone to listen to, to understand, and to support you can make all the difference. This Mental Health Awareness Month is an opportunity to check in with yourself if you've been feeling overwhelmed, stuck, anxious, unsure. Those feelings are more common than you think. We all got them. I'm getting them, trust me. And you don't have to navigate them alone. And you know, listening to a podcast helps, but it's not professional mental health advice. You know, that's just something to consider. I appreciate it when you guys told me that I'm keeping you sane, but I don't know if that's true in the clinical sense. So better help. Therapists, on the other hand, they work according to a strict code of conduct. They're fully licensed in the US and BetterHelp does the initial matching work for you so you can focus on your therapy goals. If you aren't happy with your match, switch to a different therapist at any time for the tailored Rex. You don't have to be on this journey alone. Find support and have someone with you in therapy. Sign up and get 10% off@betterhelp.com thebullwork that's betterhelp.com thebullwerk I want to talk briefly about Iran. The war seems to be escalating, which is relevant in the legal context because I was assured last week that that the President and the administration did not have to abide by the War Powers act because the war was basically over. I mean, it wasn't like over over, but it was over like we've won and there's a ceasefire. This is what Trump and Besant and Hegseth were saying on different words. And so they didn't have to go to Congress about this. And, you know, now we have kinetic fighting starting again. Iran shooting drones at uae. Iran and us shooting each other's boats in the strait. Trump made a threat on Monday afternoon saying Basically Iran has 24 hours to get their shit together. Else, whatever, I'm going to blow them to smithereens again or whatever kind of fake bombast threat he's using. So I'm just wondering, any broad thoughts you have on the state of play are welcome, but also how it intersects with the War Powers Act.
- [32:45]
Melissa Murray
So again, and most would say that this war that has been conducted in the absence of any congressional authority, much less just letting Congress know, hey, I plan to do this, raises some real constitutional questions, right? Congress has the authority to declare war. Obviously the President is commander in chief of the armed forces, but the whole idea is that they're working in concert together. And this does not seem to be the kind of coordination that was imagined by the framers in the conduct of war. The question of whether you could bring a claim under the War Powers act, whether there is some sort of action one could take, I think that's a harder question. The Supreme Court has often been wary to take up questions around war making powers on the view that they present non justiciable political questions. The idea that the whole power to wage war has been committed by the Constitution to the Congress and the President, the political branches and the courts don't have much jurisdiction to weigh in on that. So I'm not sure that this is something that's ever going to get to the Court. But I do think there are real questions for Congress and it would be nice to see Congress more jealously protect its own prerogative.
- [34:09]
Tim Miller
Maybe I'm wrong about this. Obviously nobody's won any money in the last decade betting on Republicans in Congress to show some backbone. But there is the Epstein example. Now there's only a couple of them, but we're kind of in the situation now. The majority is so small and the war is becoming such a boondoggle and it's impacting people so directly at home that you do wonder if some pressure starts to mount for them actually to act and to kind of use this as a way in.
- [34:39]
Melissa Murray
I mean, this is your Billy Wicket. And so I, you know, I'm interested to hear what you have to say about it. I, you know, you've Got to wonder when some of these Republicans are going to figure out that it's musical chairs, right? Like, one chair is coming out. Is it yours? I don't know. Like, but this guy isn't going to be president forever. Not clear who the heir of Slytherin will be, but it's not going to be him. Like, how invested are you in continuing to carry water for this guy at your own expense? I mean, it's a very unpopular war for all manner of reasons. Why continue? I just don't get it.
- [35:25]
Tim Miller
Yeah. This is why I wish Marjorie Taylor Greene had stayed in Congress. I know that's such a weird thing to say. If you take the 2024, Tim, like, why are you saying this? You know, taking it out of context and showed it to myself, I was like, I must have been like, man, shit's getting weird in 2026. Who knows why I would have said that, but. Because I think she could have survived it. And, you know, you can see it only takes, like a little bit of backbone for other people to start to jump on board. You see this in other areas and, and we'll see how Massey ends up in his primary. But I just think that a lot of, like, this is unpopular. I mean, unlike all the other Trump stuff, he's done other things that are unpopular before. The last time his approval rating was anywhere near this was right after January 6th. January 6th didn't actually affect anybody. I mean, like, in the esoteric, it did. It affected our democracy. It was like, nobody's personal life changed on January 7, except for like, obviously Officer Sicknick and like, the handful of people that got jailed. But, like, but the rest of the country who was not there that day, their life didn't change.
- [36:25]
Melissa Murray
Right.
- [36:25]
Tim Miller
People's lives are getting worse. And so I do think that this is a different situation for that reason. Tbd. I was intrigued by Marjorie saying today that she had some text messages from Trump that she would be arrested if she released. So she's welcome on the pod anytime. And we're happy to challenge that because he has a very bad track record of trying to arrest his political foes. So maybe you should give it a shot. The revenge campaign by the doj. I have a bunch of DOJ questions for you. Is pretty ham handed. And so how do you balance talking about that versus the obvious threats to the rule of law?
- [37:01]
Melissa Murray
So, I mean, the first thing we have to just be very honest about is that Todd Blanche is working overtime to be America's next top Attorney General. And that's what A big part of this is because, I mean, the Seashells indictment, when you've lost Jonathan Turley, I think you've lost the plot. So one, like some of this is obviously animated by personal ambition. And there is that, and it is what it is. The other thing I will say, though, is I don't think anyone in the Department of Justice or even in the Trump administration thinks that any of this is going to be availing, like, resulting in Jim Comey and, you know, an orange jumpsuit somewhere or anyone for that matter. Everyone knows that the purpose of all of these prosecutions is to cow dissenters into silence, to stop dissent, to stop critics of this president and this administration. You can basically trace those prosecutions, those ridiculous prosecutions, to what the President is doing with regard to the media. There is a very important Supreme Court case, New York Times versus Sullivan, that is basically the bedrock of a free press in the United States. And it basically says that, you know, reporters will make mistakes in the course of their reporting, and they cannot be held accountable as defaming an individual unless the individual can establish that they made the untrue statement with actual malice. It is a very hard standard to meet, and it is what insulates the press because there are mistakes and very
- [38:45]
Tim Miller
meaningful about our free press versus what you see in other countries.
- [38:48]
Melissa Murray
Right, right. I mean, this is not what they have in the UK for example, where it's much easier to bring a defamation suit or a libel suit. But it is what makes the press free here and what enables the press to be able to hold truth to power because they can speak freely so long as they're not doing it with actual malice. The President, though ensuing, these media institutions, whether it's CBS or abc, and negotiating these settlements with them. Right. So these are cases that don't go to adjudication. And, you know, most experts, most First Amendment experts say that a lot of these cases aren't meritorious. They're not going to result in the President winning. But when they're settled, it basically allows the President to sort of circumvent the high standards that New York Times versus Sullivan and other precedents that would have to be satisfied in order for him to prevail. It allows him to circumvent them entirely and basically establish the kind of system that they have in the uk a system that he has on many occasions said he would prefer. And that's the worst part.
- [39:53]
Tim Miller
But only for him.
- [39:54]
Melissa Murray
Only for him. But, you know, like, it means that, like, when other people see the settlements, like when the public sees the settlement one, they're like, well, something must have happened or ABC wouldn't have settled or CBS wouldn't have settled. And so that, you know, cultivates in the minds of the public that maybe the press are against him, maybe there is something biased here. So there's that aspect of it. And then it just cows other people from dissenting because nobody wants to get sued by the President.
- [40:20]
Tim Miller
No, it's a good insight. And I think that it was one of the things that frustrated me the most about the White House correspondents discourse and all this, where I was just so frustrated that the journalists that work at these outlets were going along with the charade while this assault on their rights to free speech was happening. And it'd be one thing if it was, and I still would have been against it probably, but maybe less passionately if it was just Trump calling them the enemy of the people and it's a big kayfabe dinner and like whatever, they call each other names and you know, we pretend like that's normal. I'd be one thing, but it's. He's not just calling them names. Right. He's doing it a direct assault on their ability to do their jobs. Only when it comes to reporting on him and him and his administration. So participating in that, to me felt like you were giving aid to his effort to undermine them.
- [41:09]
Melissa Murray
It's not just the press he's undermining with this. So, you know, when he's rewriting for himself and cowing other people into, you know, basically subscribing to this vision of what the legal landscape looks like for media, he's circumventing the court. The court said what the law was in New York Times versus Sullivan, and they haven't said anything different. In fact, the court turned down an opportunity to rethink and reappraise the whole landscape. And a challenge brought by Steve Wynn that would have or could have overruled New York Times versus Sullivan and they declined to do so. This is the President basically usurping the court's prerogative to say what the law is. And it's not just in the context of the press. He's also doing it with these executive orders against law firms where he's telling law firms that DEI is impermissible. And all of these law firms say, okay, DEI isn't permissible. We're not going to do DEI anymore. We're not going to have like, you know, a women's club or a woman's alliance or anything like that. The Supreme Court has never said that you could not address the lack of representation or the historic lack of representation of a particular group in your industry by having these groups. They never said that that was impermissible. He's saying it's impermissible and people are just going along with it. And so one, it is obeying in advance. It is obeying and creating a legal landscape that doesn't actually exist.
- [42:30]
Tim Miller
In fact, a couple Epstein items that have popped up and I think this is going to be more and more in the news as the Democrats take over the House of Representatives most likely next year. But even right now, you have House oversight trying to do oversight on Pam Bondi. I know that she's not in the administration anymore. She's a former Attorney general.
- [42:46]
Melissa Murray
The Dow. The Dow.
- [42:48]
Tim Miller
A couple. Is the dow back to 50? We'll see whether or not she'll be able to testify, depending on where the Dow Jones is. Look at that. 48.9. It's creeping back up. We'll see how long that lasts. Two interesting story items related to this. One was that Jim Comer was asked whether they were looking into offering a pardon or clemency to Ghislaine Maxwell in exchange for her testimony. And he said, my committee split on that. So about half of the Republicans apparently are in favor of a Ghislaine Maxwell pardon in exchange for her testimony. That's pretty noteworthy. The other thing is Harmeet Dhillon has filed indicating she's representing Pam Bondi in the Epstein oversight hearing in her personal capacity.
- [43:36]
Melissa Murray
Hermet Dylan, I know is the assist for the government. Assistant Attorney General for Civil rights.
- [43:42]
Tim Miller
Any. Any thoughts on. On the Bondi and Epstein affair and the latest.
- [43:46]
Melissa Murray
I mean, I think the most delicious day of DOJ watching that I had was the day when Harmeet Dylan was on one. I think it was on Twitter and. Or maybe it was true social. Like, look, they're indistinguishable at this point. But she called her critics hoes. Did you see that part? Did you see this?
- [44:08]
Tim Miller
Yeah, I remember that. I don't recall what she was calling them.
- [44:10]
Melissa Murray
That's just where I end. Like, like, I, you can't take her. I, I don't take, like, yeah, like, you're not supposed to have another job when you're the Assistant Attorney General for civil rights. Like, that's your job.
- [44:22]
Tim Miller
You're not. Because we're paying you.
- [44:24]
Melissa Murray
That's your job.
- [44:24]
Tim Miller
I'm paying you. I'm not paying you to also, as a side hustle, represent the former Attorney General.
- [44:30]
Melissa Murray
It's like Pam Bondi got harmeet Dhillon on TaskRabbit to represent her in the Oversight Committee. It's a gig. It was a gig.
- [44:37]
Tim Miller
The Attorney General is covering up a pedophile. Information about sex criminals. Pedophiles. And so I don't really want somebody that I'm paying, who works at the Department of Justice to be representing her in the defense of that effort. But that's where we're at.
- [44:53]
Melissa Murray
Real questions, just about just Congress, the executive, like, adversity. The whole thing is. The whole thing is weird.
- [45:02]
Tim Miller
The running out of lawyers, though, is maybe part of the reason why's doing this. There's a story over the weekend show the DOJ has lost a quarter of its lawyers since January 2025. That is wild.
- [45:14]
Melissa Murray
Not surprising between purges. The way in which the administration kind of realigned the missions of certain offices, like within doj, I'm not surprised at all. And people voluntarily left. People were made to leave. And, yeah, it'll take a generation to remake the Department of Justice.
- [45:38]
Tim Miller
All right, back to the book stuff. How'd you have the time? When were you doing this? Your parenting? You have tv, you have podcasts. Where were you fitting in the books then?
- [45:45]
Melissa Murray
My actual real job at nmu.
- [45:47]
Tim Miller
Yeah, you're teaching. When were you doing the Constitution research in there?
- [45:52]
Melissa Murray
Well, you know, I was on sabbatical last year, and I was working on another project and then decided to do this in part because it seemed really urgent, especially after 2025, after January 2025, just like, wanting to know the Constitution, because every moment I was like, can they do that? I don't think they can do that under the Constitutions. I was, like, looking things up, and I was like, you know, I should be writing this down. But the real impetus for the book actually happened. And back in the day when I was on Twitter, do you remember how fun Twitter used to be?
- [46:24]
Tim Miller
I loved it. I know. I know. It was a guilty punch.
- [46:29]
Melissa Murray
It was. It was. And now it's just. It's gross. But back in the day, when I was in the Twitter streets, I came across a thread from Luther Campbell. Do you know who this is? Let me see how, like, how Southern you were.
- [46:44]
Tim Miller
Luther Campbell. No, I don't have Luke Campbell.
- [46:47]
Melissa Murray
Uncle Luke.
- [46:48]
Tim Miller
Oh, Uncle Luke, the rapper from 2 Live Crew.
- [46:51]
Melissa Murray
Right. So he's in the Twitter. Like, I'm from Florida, as you know, and, you know, Uncle Luke, like, two Live Crew was big when I was a teenager anyway, so he was on these. On these Twitter streets. Talking about what Joe Biden should be doing. And, you know, Joe Biden should be addressing the price of gas, and Joe Biden should be doing this and Joe Biden should be doing that, and vaccines and blah, blah. And. And about half the things he wanted Joe Biden to do. I was reading and I was like, joe Biden can't do any of that. Half these things he can't do because he's not authorized because the President doesn't have that authority. And it just sort of occurred to me that there are probably lots of people out here who are like Uncle Luke in this world in which we've divested public education of art and music and civics education, like, no Child Left Behind. No child is left behind with a copy of the Constitution. Like, they don't know. It's. They don't know how a bill becomes a law. And we're basically creating a whole generation of Americans who don't know how this government works. And so I decided I was gonna spend the sabbatical sitting down, trying to explain the Constitution and the whole purpose of limiting government so that it doesn't become despotic.
- [48:01]
Tim Miller
Just winning over the Never Trumper. Kind of like, I'm tingling. I got a tingle now. Limited government.
- [48:08]
Melissa Murray
I can't imagine that restraint. Anti tyrannical. Yes, Anti tyranny.
- [48:13]
Tim Miller
Oh, man. Young College Republican Tim is on fire right now. This leads me. I guess I'll leave it to you with this, because I think that the ramifications of this going forward are real. Which is. Let's just be positive, okay? Let's be positive.
- [48:28]
Melissa Murray
Let's say I'm always positive.
- [48:29]
Tim Miller
Let's say, no, I'm not. So I'm speaking. I'm really. I'm more, you know, giving myself a pep talk. Let's say that the Democrats take back the Senate, and let's say that Clarence Thomas, for some reason, is not able to be a Supreme Court justice anymore, and he can be replaced from the Supreme Court. And the Democrats used the Merrick Garland rule, and it's like, ooh, sorry. We'll REVISIT this in January 2029. And then in January 2029, a Democrat becomes the president, and it's a Democrat who cares about the rule of law and loves the Constitution. And the Supreme Court is at least it's 5, 4, but at least it's a little bit more manageable. Okay, in that world, within the confines of the Constitution that you just annotated, what are some reforms you think that the Democrats could do that they could actually do. Because I do think a lot of times in progressive podcast space, there's a lot of talk about, oh, we just need to do this or that or the other thing that are going to make them sound kind of like Uncle Luke. They want this immediacy. We're going to change everything immediately. And it's like, well, no, we still have a system here. So what are some things that come to mind that might be worth thinking about?
- [49:39]
Melissa Murray
So, one, we have to address partisan gerrymandering because it not only affects the composition of Congress, it affects the composition of state legislatures, it affects the composition of local county representation, all of that. But really important, the state legislatures are necessary if you're going to amend the Constitution. So the fact that the state legislatures are so skewed in one direction, especially in states that are like, the political divide is much closer than the representation in the state legislature would suggest, that has to be addressed or you're never going to be able to amend the Constitution. Like, realistically, how do you address the whole question of partisan gerrymandering? Well, certainly Congress can pass some laws. States can also pass laws that make it a violation of either state statute or in some cases the state constitution to organize your state legislatures in ways that are anti democratic or unrepresentative in the way that partisan gerrymandering might be. So those are some steps as initial matter, you know, we the people can step up and actually take voting seriously. I, I know lots of people who listen to this podcast do, but a third of the electorate sat out the 2024 election and if, if those people had come out, maybe we have a, just an entirely different outcome here. Like, you know, we can't be apathetic anymore. But, and not only can we not be apathetic, it hurts us to be apathetic because right now we need the numbers in order to counteract the level of distortion that gerrymandering and suppressive voter laws are doing to the electoral landscape. So you actually have to rise up in quite significant numbers. And that's part of why they're doing this. If you're able to do all of that and you're able to do actual constitutional change through the amendment process, I
- [51:27]
Tim Miller
think we're not going to get amendments. Amendments is a pipe trace.
- [51:31]
Melissa Murray
I don't know that it is. If you can change the state legislatures, maybe. I think Democrats should really think about D.C. and Puerto Rico and statehood. I mean, truly, if you read the chapter in here about the amendment that allows D.C. to vote in presidential elections, it is so unbelievable how much race shapes the history of the Constitution and our entire relationship with the District of Columbia. So, you know, there's that.
- [52:01]
Tim Miller
I agree on that one. Supreme Court stuff.
- [52:04]
Melissa Murray
I think we have to think about court reform. We are the only constitutional democracy in the world where the Supreme Court has life tenure, like every other constitutional democracy, has implemented term limits for their Justices. Some say that this can't be done without a constitutional amendment. I think there are ways that you can structure it where Justices of the Supreme Court don't lose their life tenure. They simply move to a different role within the federal judiciary. And I think that might suffice for the whole question of not avoiding the Constitution's requirement of life tenure. But term limits is definitely on the table. Some people have talked about adding Justices to the Court and I don't think that's off the table. And it's not. Not something that would be impeded by the Constitution. Like we've had different numbers of Justices before. It doesn't have to be nine. It could be fewer, it could be more. That might be necessary in order to recalibrate the Court and make a Court that is perhaps more reflective of where the country is, as opposed to this 6 to 3 conservative supermajority, which feels not reflected at all of at least half the country. Other kinds of electoral reforms. I think we really have to talk about the Electoral College and. And we came so close to amending the Constitution to get rid of the Electoral College. Nobody talks about Birch Bayh, but Birch Bayh literally pushed through a whole bunch of amendments. And he got so close with some of these others, including an amendment that would have eliminated the Electoral College. The Electoral College is about minority rule. It is about the framers, distrust of the populace, of ordinary people. We don't live in that world anymore and we shouldn't be governed by that.
- [53:47]
Tim Miller
Pretty good. I liked one of the fun Constitution facts that I got reading it, which I may have known at one time, but I didn't know anymore, was that there was a Committee on Style. And so they all agreed to kind of certain language or whatever, the rules. Then it got sent to the Committee on Style, which in my mind are kind of some handsome looking men.
- [54:09]
Melissa Murray
It's like Miranda Priestley, Anna Wintour, Chloe Maul.
- [54:13]
Tim Miller
It's like the Sartori, you know, the ones who had the best taste. And I loved that. The Committee on Style was the one that changed the preamble. It had listed out the 13 states and they changed that to we the people.
- [54:27]
Melissa Murray
Could you imagine. I mean, just like, think about, like, law roach being like, I hate it. Let's change it. We the people.
- [54:35]
Tim Miller
We the people.
- [54:36]
Melissa Murray
It's not giving.
- [54:39]
Tim Miller
We the people is giving. I know, giving. So I love that serving. There are other good if Constitution facts in there. If you go get today, so many. The US Constitution, a comprehensive and annotated guide for the modern reader. Melissa Murray is the author. She's got it right there. For the YouTube viewers. It's looking good. It's looking cute. The little. What is that? The feather pen. The quill.
- [55:00]
Melissa Murray
It's a quill. It's a quill.
- [55:01]
Tim Miller
It came to me. I got it. The quill. Looking nice, looking chic. The committee on style approves.
- [55:07]
Melissa Murray
It's giving.
- [55:07]
Tim Miller
It's giving. Melissa Murray, thank you so much.
- [55:11]
Melissa Murray
Thank you for having me, friend. I appreciate it.
- [55:13]
Tim Miller
Of course. We'll be back tomorrow. I think we got a double header for you. Go check out the next level if you want the politics talk today and we'll see everybody soon. All right. Go get the book. Peace.
- [55:22]
Melissa Murray
Bye. The book.
- [55:26]
Tim Miller
You don't have to sit back and relax. I know.
- [55:34]
Melissa Murray
We've always been taught to remember.
- [55:46]
Tim Miller
The Bork podcast is brought to you thanks to the work of lead producer Katie Cooper, associate producer Ansley Skipper, and with video editing by Katie Lutz and audio engineering and editing by Jason Brown.