When the Train to Hell Runs on Time

Summary

The Gist: When the Train to Hell Runs on Time Released: August 14, 2025

Host: Mike Pesca
Guest: Aziz Huq, Professor of Law at the University of Chicago

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1. Introduction and Segment on the Kennedy Center Honors (00:27 - 01:29)

Mike Pesca opens the episode with a humorous take on the upcoming Kennedy Center Honors. Highlighting a surprise honor presented by Donald Trump, Pesca jokes about the selection of honorees like Kiss, Gloria Gaynor, George Strait, Michael Crawford, and Sylvester Stallone. He playfully suggests potential obituaries and riffs on Kiss's business acumen, drawing parallels between their extensive licensing deals and Trump’s diverse product lines.

Notable Quote:

"Kiss has more than 3,000 licensing deals, from action figures to motorcycle helmets, coffee mugs, toilet paper, and coffins." — Mike Pesca [01:10]

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2. Policing Reforms and Qualified Immunity (07:30 - 17:53)

The conversation shifts to Aziz Huq’s expertise on policing reforms and his book, Collapse of Constitutional Remedies. Huq discusses the limited impact of reforms like undoing qualified immunity post-George Floyd protests. He explains that while some states have passed laws to remove qualified immunity, many police departments simply compensate victims without holding individual officers accountable.

Key Points:

• Qualified Immunity: Limits personal liability for police officers, often resulting in settlements that exclude individual accountability.
• Insurance Models in Policing: Smaller cities rely on insurance pools to manage liabilities, encouraging reforms through financial incentives similar to car insurance feedback mechanisms.
• Impact on Justice: Bigger cities without such insurance models face weaker incentives for police reform, leading to systemic issues.

Notable Quotes:

"Smaller cities are more likely to settle because insurers don’t want the law on the books." — Aziz Huq [11:23]

"Technology is allowing much more fine-grained feedback. Maybe that could happen in the policing context too." — Aziz Huq [08:36]

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3. Rights vs. Rights Conflicts in Legal Cases (17:53 - 24:22)

Pesca and Huq delve into the complexity of rights conflicts in the legal system. Using cases like Sackett vs EPA and Masterpiece Cakeshop, Huq illustrates how legal battles often involve competing rights, such as property rights versus environmental protections or religious freedoms versus anti-discrimination laws.

Key Points:

• Status vs. Conduct: Huq explains the difficulty in distinguishing between inherent status (e.g., being homeless) and conduct (e.g., actions taken because of that status) in legal contexts.
• Moral Judgments in Law: The Supreme Court often grapples with moral intuitions when interpreting constitutional protections, impacting decisions on public safety and individual rights.

Notable Quotes:

"The distinction is between status and conduct... Profoundly moral intuition is key to what I would call the small l liberal tradition." — Aziz Huq [17:53]

"Extending a right made us all better off." — Aziz Huq [19:26]

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4. Supreme Court Case: Grants Pass and Homelessness (24:22 - 35:15)

A significant portion of the episode focuses on the Grants Pass Supreme Court case, which overturned previous protections against criminalizing homelessness. Pesca expresses sympathy for the homeless and explains his nuanced view on allowing the state to clear encampments while recognizing the ethical dilemmas involved.

Key Points:

• Grants Pass Decision: The Court distinguished between punishing status (being homeless) and conduct (specific actions related to homelessness), a decision criticized for its moral underpinnings.
• Moral Implications: Huq argues that such legal distinctions often mask deeper moral judgments about choice and responsibility, making it challenging to apply purely legal reasoning.
• Comparative Constitutional Systems: Huq compares the U.S. approach to other countries like Canada and the UK, where legislative bodies have more say in moral decisions rather than the judiciary alone.

Notable Quotes:

"It's profoundly hard to draw the line between what you are and what you do because the things you do emerge almost directly out of the things you are." — Aziz Huq [25:48]

"The Supreme Court is not charged with deciding the morality. It is charged with deciding the law." — Mike Pesca [30:01]

"Holmes's view is... if the people acting in a majority want to take the train to hell, then it is my job just to help them do that, as long as they're doing it by the ordinary rules that the law provides." — Aziz Huq [40:31]

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5. The Role of Morality in Judicial Decisions (35:15 - 42:38)

Huq discusses the intrinsic role of morality in constitutional law, emphasizing that legal interpretations often require moral judgments. He highlights the challenges judges face in separating legal reasoning from personal ethics and the implications this has on landmark rulings.

Key Points:

• Moral Judgments in Law: Legal concepts like "free speech" and "equal protection" inherently involve moral considerations that cannot be entirely separated from legal analysis.
• Judicial Restraint vs. Activism: Huq references Justice Oliver Wendell Holmes to illustrate the debate between judges who interpret the law strictly versus those who consider broader societal impacts.

Notable Quotes:

"Free speech... requires a moral judgment. The Constitution uses the words 'equal protection,' but it doesn't tell us what kind of equality that entails." — Aziz Huq [31:00]

"Judges aren't supposed to make public policy judgments... that's the role of legislatures." — Mike Pesca [35:15]

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6. Conclusion and Final Thoughts (42:38 - End)

The episode wraps up with Pesca thanking Huq for the insightful discussion on the intersection of law, morality, and public policy. The conversation underscores the complexities of judicial decision-making and the ongoing debate about the appropriate roles of courts versus legislatures in addressing deeply moral and societal issues.

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Overall Insights and Takeaways

• Complexity of Legal Reforms: Policing reforms like undoing qualified immunity face significant challenges, especially in smaller cities where insurance models influence the extent of reform.
• Interplay of Morality and Law: Legal decisions often hinge on moral judgments, making purely objective legal reasoning elusive.
• Rights Conflicts: Balancing competing rights requires nuanced understanding and often involves deep ethical considerations that transcend straightforward legal categorization.
• Judicial Role: There is an ongoing tension between judges making decisions based on legal precedent versus allowing legislative bodies to handle moral and public policy issues.

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By engaging with Professor Aziz Huq, The Gist provides a thought-provoking exploration of how legal principles intersect with societal values, highlighting the intricacies and moral dimensions inherent in the American judicial system.

Transcript

[Mike Pesca]

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[Aziz Huq]

And balance due if you pay off.

[Mike Pesca]

Early or cancel contact T Mob. It's Thursday, August 14, 2025 from Peach Fish Productions, it's the Gist. I'm Mike Pesca. We have the honorees for the Kennedy Center. It will be presented by Donald Trump MC Donald Trump. And they are to be Kiss. Gloria Gaynor, George Strait, Michael Crawford and Sly Stallone. Just the other day I was thinking about a great line for Gloria Gaynor's obit. Hopefully in many, many years.

[Aziz Huq]

But.

[Mike Pesca]

But it would go something like this. Gloria Gaynor, best known for her chart topping 1979 hit I Will Survive Today, gives lie to her song's title. Maybe that's a good last line. You reminisce over it as I Will survive. Slow music plays Sly, that's great. Straight, straight Fire. The Phantom himself.

[Aziz Huq]

All cool.

[Mike Pesca]

Of course, Gloria Gaynor. Usually there was someone from the world of classical music or ballet. I get it. Not Trump style. But then there's Kiss.

[Aziz Huq]

Kiss.

[Mike Pesca]

The artists behind both look it up and lay it down. They will be honored. How about Kiss? You know, I think whoever is putting the Wikipedia entries together for Kiss songs is in the bag because they claim that the song Strutter. I'll read you the Wikipedia entry. The lyrics to the Kiss song Strutter, based on the well dressed vixens the band saw in the streets of New York, show a Bob Dylan influence. Let's check out this Dylan influence here. Now, the lyrics to Strutter. She wears her satins like a lady. She gets her way just like a child. You take her home and she says maybe baby, she takes you down and drives you wild. Everybody says she's looking good and the lady knows she's understood. Strutter. Well, you know, Bob Dylan did have songs with the lyrics lady in them. Here's another one of Kisses songs. I like to do dramatic readings of Kiss songs. Maybe they'll do this at the Kennedy Center Honors. Maybe I'll get a Kennedy center award. They call me Dr. Love. They call me Dr. Love. Calling Dr. Love I've got the cure you're thinking of calling Dr. Love. Ooh, they call me Dr. Love. I am the doctor of love. Calling Dr. Love. I've got the cure you're Thinking of calling Dr. Love. Oh, they call me Dr. Love. Here's slight variation. I am your doctor of love. Calling Dr. Love. And then this repeats, I think 16 more times. I know I Kiss is being inducted, it's because Trump has a personal relationship with Gene Simmons. But Gene Simmons once wrote a book called Me, Inc. Building an army of one. Unleash your inner rock God. Win in life and business. And the business part of it is that Kiss has more than 3,000 licensing deals, from action figures to motorcycle helmets, coffee mugs, toilet paper and and coffins. Now, Trump can respect that. He's a guy who doesn't look it up, nor has he laid it down. But he does have a line of vodka, steak, a college bible, sneakers, fragrance, some crypto. But he doesn't have toilet paper, nor does he have a coffin. Which gives me an idea. I think that would have been a great point of leverage in the Ukraine war negotiations. Had Trump had a line of coffins, he could have been the exclusive coffin provider for the Russian slain. And at this point, he could be offering Putin a 50% cut of the coffin business to stop the carnage. Now, I know you're saying, wait a minute, that would actually cut against Putin's interests if he owns the coffin biz. But hear me out. You're thinking short term. If Putin had a share in the coffin business, it would all but guarantee that this conflict would stay non nuclear. Because if you launch the nukes, vaporized bodies need no coffins. Now you're thinking like a negotiator, like a rock God. Like many members of the Russian elite forces, the members of KISS and all the rest will be given their medals in a ceremony on December 7, a day that already lives in infamy and now will live in the hearts of the Kiss army. On the show today, we're back with Chicago law Professor Aziz Huck. He has written how to save a constitutional democracy. That was around 2021. He was hopeful then, few years later, the collapse of constitutional remedies. But I checked in with him, as we did yesterday, and he's not given up all hope. He does have analysis. He's here to share it with us. Aziz Huq. Up next, my favorite shirt. This shirt I love. It's actually three shirts. It's A black one, it's a putty one, and it's a white one. And it's from true Classic. True classic, like the name implies, is simple. It's crisp, and it takes something as basic or classic as a white T shirt and makes it feel and look fantastic. Because a true classic, it's never just about the fit or the fabric. The clothes fit the way they should fit, which is weird to understand. After wearing white T shirts that fit the way white T shirts aren't supposed to fit. Hundreds of examples, thousands of data points of white T shirts fitting incorrectly. Then I throw on the true classic and I'm like, oh, this is it. And that's when I found my truth, my true. I've been wearing true classics for a while now. If you watch any of the video, you will see me often in a true Classic. Hey, what's that? Not bunching. That's a true classic Clean, effortless fit that actually works for real life. And videoing the gist. You can find all of them at Target, Costco, or head to trueclassic.com/gist to try them for yourself. You're listening to leaffilter radio and the guru of gutter protection himself, Chris Counahan is here to take your most pressing leaf related questions. Hey everybody, Chris here. I understand we have Ron on the line. Ron, where are you calling from? Uh, oh, Ron, are you calling from a ladder?

[Aziz Huq]

Well, I was.

[Mike Pesca]

I wanted to ask Chris what I.

[Aziz Huq]

Need to do to get my gutters ready to have leaffilter installed.

[Mike Pesca]

Oh, Ron, you don't have to do anything. A leaffilter trusted pro will come out and clean out your gutters, gutters, realign and seal your gutters and install leaffilter, America's number one gutter protection system.

[Aziz Huq]

So I didn't need to get on this ladder.

[Mike Pesca]

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[Aziz Huq]

Thank goodness. What was that site? That's leaffilter.com gold for your free gutter inspection today.

[Mike Pesca]

See representative for warranty details. Promotion is 20% off plus a 10% senior or military discount, one discount per household. When we last left, Aziz Huck, professor of law at the University of Chicago, we were talking about one of the reforms, policing reforms that came out of the George Floyd protests, the undoing of qualified immunity for police officers who commit misconduct. It actually didn't do much to bring about actual reform. Few states passed qualified Immunity laws. And the police departments in those states that did simply just pay out victims. Victims, leaving the individual officers out of the equation. So it doesn't really matter in most cases if the officer is on the hook for personal payments. They don't have to pay, however. And Huck acknowledged all this, but promised us a detour in case we were the kinds of people who want to hear all sides of an argument. Wait, that describes just listeners precisely. So here, now let's get well rounded with Aziz hook.

[Aziz Huq]

So if you go outside the big cities and you look at policing at the county level in small cities across the United States, right? Those places do not have their own judgment fund. So what are they doing? They're buying insurance. They're often working together. So you'll have a bunch of counties working together or a bunch of small cities working together, and they'll get an insurance pool. And the insurance is being provided to that pool of counties or cities by a commercial insurer, by an Aetna or by, you know, some other body that does insurance, right? You and I have car insurance, right? We have home insurance, what have you. Okay, so if you've got car insurance, let's use car insurance as an example, right? So I, you know, I have State Farm and State Farm, like, it has me put in a device into my car in order to, so they can alert me, hey, you know, Huck, you're braking too fast too often. Stuff like this, right? They want to find a way to give me feedback in order to minimize my risk of getting into an accident. Right? And we're familiar with, you know, insurers wanting you to buy a lock for your car or other things that do the same thing. So it turns out that happens with insurers of police departments, too. Insurers of police departments will respond to the fact of having settlements or having judgments against the police departments by studying what the law is studying who is winning and saying, hey, police departments, you ought to do these kinds of trainings or you ought to install these kinds of policies in order to minimize the kinds of claims that are going to get to judgment, right? And so while it's true, I think that for the big cities, right, you're Chicago, New York, Louisiana, because they're self insured, because they have their own judgment funds, there's not this feedback mechanism. But for smaller cities, just like you and I, when we're, you know, when we're in our, when we have our driver's caps on, right, we're, we're actually getting a little bit of feedback from our insurers. Right. And that one of the really interesting things about technology is that technology is making that feedback super fine grained. The thing that's in my car now will tell me, hey, exactly. This is how many times you've hit the brakes too fast. This is how many times you were going 45 in a 40 mile an hour zone or what have you. And here's where you need to slow down, here's what you need to do and you need to change. Technology is allowing much more fine grained feedback. And maybe that could happen in the policing context too. But of course, it only happens in the shadow of tort judgments.

[Mike Pesca]

Right. On the other hand, the big cities will give these judgments without too much of a fight. And if your municipal life and funding not just the police department, but the schools depends on you not losing a lawsuit, smaller cities will much more aggressively litigate lawsuits against them. So that might not be good for the victim.

[Aziz Huq]

No, not quite. Not quite. Because what happens when you get insurance? This, I mean, again, this happens in car insurance too, auto insurance. Right. One of the things you give up when you, when the small city buys insurance, the small city gives up its right to litigate the case. It hands over that right to the insurer. And absolutely there are instances in which the insurer will say we want to litigate, but in most instances the insurer will say we want to settle because the insurer just doesn't want the law on the books. That may be bad law for it in a later case. So it's controlling the cases that are going to trial or not going to trial. For small cities, that's not true. Again, really clear. Not true for Chicago, not true for New York, Louisiana, other big cities.

[Mike Pesca]

Have you looked at how it's affected actual policing? I've tried to. I have to rely on just the popular press reporting it in places like Colorado and New Mexico that pass versions.

[Aziz Huq]

Of it, the past versions of the qualified units. I'm not aware of anyone who has looked at that and my reading of the literature, I think maybe it's somebody you've had on your show. But the person who I think has done a really great job of this is Joanna Schwartz, who is a professor at UCLA who has a terrific book that came out, I think a year or so ago. And her academic work suggests that the way that people, or what matters in terms of whether people get a remedy in a particular place with respect to policing turns not just upon the law, turns not just upon whether there's qualified immunity but turns upon things like, well, are there lawyers who you can find in a city who are willing to take these cases? Right. And so she looks at a bunch of different cities and points out, hey, there are some cities in which that there's a bunch of lawyers who will bring those cases. I vaguely recall that Philadelphia is one of those places. Right. And there are a bunch of cities where they're just not lawyers. I think she talks about Dallas, Fort Worth right there. You know, for whatever reason, that group of lawyers has never emerged. And so again, I hate to get to give the. It's complex answer, but you know, it's like the, it's like anything that's, that's embedded in a complex web of our, of our society where you got. There's like a whole bunch of moving parts that are, that are at work. And Joanna's work suggests you got to look at all the moving parts to figure out how much difference a qualified immunity change will make.

[Mike Pesca]

Would you say that every time a right is given and a right that comes with remedies somewhere, perhaps abstractly, perhaps not, a right is taken away? What I'm thinking of Sackett vs EPA. The Sackets wanted the right to build on that, to build their house, redirecting a river. And the court decided that they had that right because the EPA was overreaching. So you know, the other way to, the other way to look at that is the court is taking rights away from the rest of us that the EPA was meant to protect, like clean water.

[Aziz Huq]

I think that an even more direct and powerful example of rights, rights conflict are the cases about anti discrimination law and religious establishments that serve the public. So for example, there was a case about a baker who declined to make a cake for a same sex wedding. There's a website designer who's also who made a claim about a hypothetical plaintiff. There wasn't actually a person who was asking her to provide the services in this case.

[Mike Pesca]

Masterpiece and what's the 7303 creative 303. I always get the number wrong.

[Aziz Huq]

So those are cases in which there's a very clear conflict between two rights. I think you're absolutely correct to say that the super clear rights versus rights cases like Alanis and Masterpiece are not the only instances in which there are interests that we can talk about as rights meaningfully on both sides of the leisure. There are the, absolutely. The environmental cases. There was, I think a really interesting case a few years ago about the scope of Congress's authority to regulate violence against women. It's a case Called Morrison. And you can think about. And the court held that, that Congress did not have the power to grant women who were subject to sexualized violence, rape, assault, etc. A damages remedy. And that was a case that put on the one hand the interests of women in particular who are subject to these forms of predation on one side of the ledger and on the other side of the ledger was the power of the states to decide on their own rules and surely the power of in particular men to engage in sexual predation. Right. That's another interesting and just a flag. Maybe we think we're okay with the idea that states ought to have some authority to set their own rules, but we find the idea that men have the right to engage in sexual predation against women loathsome. That certainly would be. Be my intuition. But both of those two things are on one side of the ledger and then there's something else on the other side of the ledger. So there's all sorts of cases in which there are rights versus rights conflicts. And absolutely there are some times in which you can usefully characterize the problem or what's at stake as a rights versus rights conflict. I think that there are some instances in which the conflict is described as a rights versus rights problem, but it really isn't.

[Mike Pesca]

Yeah, can all policing, in a way, all policing can be described as, well, my right to safety and which is not. That's perhaps you would think abusing that idea as a quote unquote right.

[Aziz Huq]

I was going to give a different example. I was going to say the case involving same sex marriage has. So when that case was argued, it was framed as a rights versus rights problem. It's like, hey, if you give same sex couples the right to marry, you're devaluing the right of different sex couples to marry. And there was an argument about kind of stigma and the overflow or the diminishment of the value of marriage. And I think today, I think I can say this is my moral view and I want to be clear, I'm going to take a moral view for just this one second. I don't think it is plausible to say that the right that same sex couples exercise to get married today has in any way devalued the right of different sex married different sex couples to get married. I think on the contrary, the fact that we live in a, in at least a world right now in the country where people of same sex and people of different sex can get married enriches and broadens our sense of what marriage is. And, and creates a bigger space of joy which benefits everybody. So that's a case in which what looked like a rights versus rights conflict turned into something, I think, very different. And it turned out that extending a right made us all better off.

[Mike Pesca]

Yes, I do think. And credit because it was right there and it's something that we all think about. I think that's the easiest example to go for where our changing understanding or experiencing of the morality influences what you said. I think that there are other more recent cases like the Washington State football coach who wanted to give a quick prayer before game. And then you have a much more legitimate and a legitimate question with equal sides.

[Aziz Huq]

Yeah, absolutely. I wouldn't want to suggest that. Do you want to do policing on the same terms?

[Mike Pesca]

Go ahead, take it there.

[Aziz Huq]

So I think that whether there is a rights versus rights conflict in cases about police violence really depends upon whether or how you think we are made safe by the police. Right. If you think that we as a community are made safe by the police by the use of physical force, like the more force the police supply, the safer we are, then there's absolutely a trade off.

[Mike Pesca]

I think that's. Come on. That's a straw man. Who really believes the more force just in general, no one's advocating. No one I know is advocating that.

[Aziz Huq]

Well, I think there are judges who say. Who say a version of that. But I'm just, I'm offering you two positions to clarify the thought that you put on the table, which is this a rights. Right. Right. So I think if you think that, then there is a real rights versus rights thing. If, on the other hand, you think. And there are this, I think is. I'm now going to characterize the position that many criminologists who study this problem empirically would take. They would say, look, the way that you achieve public safety is not through just increasing the amount of police violence. It's through establishing relationships between the police and the communities that they are responsible for keeping safe, that ensure the flow of information, that create trust and. And that generate an environment in which public safety is kind of jointly produced by the people and by the police in ways that keep us all safe. Right. This is a theory that is associated with a scholar called Robert Sampson who was at the University of Chicago, who has a terrific book called Great American City, which is about Chicago. It's a really, really good book about Chicago. If you think that Samson is right, then the police violence cases, the Fourth Amendment cases involving plaintiffs who say, hey, hey, I've been brutalized by the police, and then they get turned away on qualified immunity grounds. Those are not rights, rights conflict cases. Those are cases in which the more that the police are pressed into non violent forms of social control, the, the better that social control is. And here's a statistic that always sticks with me. Again, it's going to be a Chicago statistic because this is the place I know the best. In Chicago, only 1 in 4 murders are cleared. Only 1 in 4 in only 1 in 4 cases of a murder is a suspect identified by the police and transferred over to the prosecutor's office. And if you look at the accounts and these journalistic accounts, people are talking to the police, reporters are talking to police, trying to figure out what's going on with this. The thing that turns out to be the sticking point is people's unwillingness to talk to the police. Right. People in Chicago, in the communities where gun violence in particular is concentrated, will not talk to the police. And absolutely, part of that is fear, part of that is gangs, but part of it is distrust, distrust of the police. And so if you think that that's the problem, if you think that that's the friction that's preventing us from having a safer city, gosh, it's really hard to say, well, if you increase the amount of force that police can use, you're going to make that problem better. And you might even think about the constitutional rule that's embedded in the Fourth Amendment against unreasonable forms of state violence. You might even think about that as a kind of guarantee if the police can credibly say, hey, we're going to stick to this Fourth Amendment rule that builds a kind of trust with the communities they're in. And maybe that's a rule that makes us safer. So a lot depends in thinking about rights, rights conflicts, in how you think things fit together, and the story you tell about how the goods that we value as a community, as a people, like public order, everyone values public order. Nobody's out there saying, hey, we ought to be like the purge day, whatever that day is, right? You got to tell a story about that. And depending on the story you tell, maybe there's a rights rights conflict and maybe there's not.

[Mike Pesca]

And we'll be back in a minute to talk more about a threshold fascinating case about homelessness with Aziz Haqq. We're back with Aziz Huq, University of Chicago law professor. And last year the Supreme Court made a 6, 3 ruling called Grants Pass, and it decided to overturn the Ninth Circuits. That's the west rule against criminalizing homelessness. So literally in Washington, Oregon and California, you couldn't arrest people for being homeless. In other jurisdictions, you could. Now, I am very sympathetic to the homeless. I believe, for instance, they need homes. But I also believe the state needs tools to occasionally clear encampments. So in this case, I actually agree with the majority. The 6 and the vote was along pure ideological lines. But it does feel like a genuinely hard case to parse purely on legal grounds, with strong arguments for both the conduct framing, that you can arrest people engaging in a certain conduct. But something to be said for Justice Sotomayor's dissent, which is the status framing, arresting people just for the status of being homeless, as she and the other two in the minority sought. So, Professor Hawk, how do you see it?

[Aziz Huq]

I think that the decision rests upon a distinction that looks like it is obvious to apply, but turns out to be profoundly moralized. Here's the distinction. The distinction is between status and conduct, right? And you've already, like, you've already referred to it, but that distinction comes out of an old case, I believe it's called Robinson, although I might be getting that wrong, which says, look, the state can't come along and say, hey, you're a drug user, therefore we're going to lock you up, because drug users is a status, and you can't help being in that status. You know, what the state can punish you for is the things that you choose to do. And so the status conduct distinction is drawing upon a really powerful moral intuition that is key to what I would call the small l liberal tradition that, look, you can be punished for the things you choose to do, but you can't be punished for the things that you are. Right? Status versus conduct. Turns out, however, that that distinction is really, really hard to draw in in the real world because the things that you do are profoundly affected. They emerge sort of almost directly out of the things that you are. And so for a lot of human behavior, drawing this line between the things that you are and the things that you do between status and conduct is really hard and requires not a judgment about the facts, but a judgment about morally what we can be held responsible for. So, for example, if. Let me take the most sympathetic case to the dissent here, right? So if you have a family, right. If you. Or let's say you have a. Make it even easier, somebody who's underage, who's run away from home, who's on the streets of the city of Grants Pass, right? Let's say they've run away because they're subject to physical violence in the home, which is very, very common. And they're living under a bridge in Grants Pass. And the city comes along and says, well, look, you've decided to live under the bridge, and you're therefore responsible for your behavior. That's the position that the court accepts. The person can, I think, without sounding facetious or sounding dishonest, say, hey, no, this is not something I chose. If you mean choose in any meaningful sense of that word. Right. I. Yeah, absolutely. I ran away from home. I am under this bridge by, in some sense, an act of my own volition. But it violates the English language. It violates our moral intuitions about the way we use words to say, this is a situation of my choosing. And so I think what's going on in a case like Grants Pass is that you actually have this profoundly. I don't even think it's a question that the law answers. I think it's a question that is deeply. You can't answer it without reaching within yourself and asking, what are my moral intuitions about when and how people make choices? And that's what's playing out between the majority and the dissent in that case. And I think if you're reading that case, you know, part of what is hard for my. For law students, for example, and it's a case that I teach in property, because I think it's a really interesting case that tells us something about how we relate as human beings to property. I think it's a case that's. That where the real issue, which is this moral question of how do we think about choice just isn't there on the surface of the case. You have to really push hard into the case before you see that that is the real dividing point between the majority and the dissent.

[Mike Pesca]

Yeah, that's interesting. Especially if the law school has a colloquium with the ethics department. But the Supreme Court.

[Aziz Huq]

No, we don't do ethics. We're the University of Chicago.

[Mike Pesca]

But the Supreme Court is not charged with deciding the morality. It is charged with deciding the law. That. Sorry to be so blunt with you. You know, where would Sotomayor and the other two liberals find. Yes, I understand there is the.

[Aziz Huq]

But it's. It's a problem on both sides, and.

[Mike Pesca]

Oh, so what would be. Yeah, what would be the problem for the majority saying that on either side.

[Aziz Huq]

You have to say this is status or this is conduct. Yeah. And in drawing that distinction, you have to appeal to some kind of a moral notion. And, you know, I.

[Mike Pesca]

Sorry to interrupt. I think that it's if it's so hard, you have to default to we, as the Supreme Court have to. If it's so hard, we have to throw up our hands and say there is no clear moral answer to this. So therefore we defer to what the law is, what the law, what the established law has been.

[Aziz Huq]

I think. I think that there are many questions of particularly constitutional law, which it is impossible to answer without appealing to some kind of moralized notion. I think that that's true, for example, of the phrase free speech. It's impossible to know what's free speech and what's not free speech without making some essentially moral judgment. The Constitution uses the words equal protection, but it doesn't tell us what kind of equality that entails. It doesn't use, for example, the words equal protection of the races, which is something that was in earlier drafts. Right. And therefore it requires a moral judgment. So at least the way we have written our Constitution, the gap between law and morality is not one that can be sliced neatly. Now, one of the things I spend my time doing is thinking about how other places write their constitutions and organize their law. And it turns out that there are other constitutions which don't draw upon moral distinctions. They just avoid using language and using concepts that require moral thinking. And they're different in that regard from the US and there are also places where, and Canada actually is kind of interesting example of this, as is the United Kingdom, in which, yeah, they have concepts in their constitutional order that have a moral complexion to them that can't be seriously thought through by, except with. By bringing to bear some kind of moral thinking, but they don't reserve those decisions to judges. In Canada, for example, yeah, judges decide constitutional cases, cases under what's called the Charter, but those decisions can be overridden by a legislature. In the United Kingdom, they don't even have a written constitution. And even when there are fundamental rights cases under a statute called the Human Rights act, those, those decisions can be overridden by Parliament. And I think that, that those systems which are, which are common in the world, they're not. It's not. I gave Canada and the UK as examples because they're sort of close in some ways. Those kind of systems are a recognition that law, especially basic law, will often involve profoundly moral decisions. And maybe we shouldn't give those decisions to judges. Maybe we should give them to people who are directly elected and therefore have some sort of democratic license to engage and think through moral questions. And to my mind, this is one of the profound Questions in the design of constitutions. Right. Who do you give the power to decide these basic moral questions to? Do you give it to judges or do you give it to legislatures? Do you give it to the people through referendum systems? And you look around the world and places do different things. There are lots of different ways of doing it. And if you look at the places, some of them will look. So, for example, in Sweden, I was just in Sweden for an academic conference and I was talking about this very question. And it turns out in Sweden, there's a constitution. It's full of moralized terms. But courts are just like, no, we have no role in reading the Constitution. We just don't do it. We just apply the statutes. We don't even look at the Constitution. And they thought. I was talking to an academic and he said, well, look, it would be crazy for judges to read the Constitution precisely on the grounds that. Michael, you were just saying. Because that would undermine the motive for legislatures to engage in serious moral deliberation. So we're, you know, we, the judges are going to hold their fire so as to make sure that the legislators take their job really seriously. And that's just the, that's just the conventional wisdom. That's just the way the world is organized in their legal system. Right. So there's super different ways of doing this and organizing this. And I just to be clear, I'm not saying that one is right or wrong. I'm just saying, hey, look, like, look around the world, really different ways of doing this. Don't take for granted that our way is the right way.

[Mike Pesca]

I have to ask you two more things about grants Pass. Yes, of course. Morality informs and is shot through the Constitution. So there are always moral components to reasoning. Do you think when the Justices engage, how present or front of the mind is that? Do you think that the justices arguing and deciding on grants pass were saying, what I am doing now is essentially a proxy for my morality? Or are they saying to themselves, what is the law? Let us apply the law. Let us apply precedent.

[Aziz Huq]

I don't know what's going on in the head of different Justices. I think that the person I worked for was always alive to two possibilities. The first is that there can be a body of law. The body of law can be clear and it can direct something. And then you do the thing that the law directs, or you have a law that is in some sense open on the surface and so allows for the consideration of moral questions. And provided you are candid about where and how you bring to bear the moral reasoning, you're still doing law, right? Provided you're not hiding it, Provided you're not being deceptive about it, you're still doing what in the American, maybe not the Swedish, but in the American tradition, is recognized as law, and that's perfectly acceptable. So I think that the thoughtful judges, and I can only speak to the person. I don't know what other people do. I don't know how they think about it in chambers. I don't know how they talk to their clerks about it. But at least in my experience, it is feasible for judges to think about that. And I just add one thing to that, which is I clerked for a judge who was very liberal, but who happened to be very good friends with a judge who was very conservative.

[Mike Pesca]

We could name these Ruth Bader Ginsburg and Antonin Scalia.

[Aziz Huq]

Yeah, they were good friends. And I got to know a lot of the Scalia clerks very well. And I would say that the same was true in his chambers. This was true in Ginsburg's chambers. So what I'm saying, I don't think has a. It's not about being liberal or being conservative. You can be a good judge faithful to the law, recognize when the law leaves space for some sort of moral reasoning, and be kind of candid and clear about what that moral reasoning is, and be both honest that you're doing it and honest about the quality of it. And I think, for better and for worse, both Ginsburg and Scalia did that. I think it made their opinions, in a sense, more transparent than maybe what's the case for others. And I don't think there's anything elicit.

[Mike Pesca]

About that last question. And I can't get into the Atlantic piece, the dual state. You've been very generous with your time. I'll just recommend that people read it. It's really interest, um, in this Grant's past case, given that we've talked. We've talked about the morass of trying to sort through the morality and the close calls about morality on either side. Uh, and we've also acknowledged that this is how judges reason and morality is a part of their reasoning. I would think if I was a justice on the Supreme Court, I might find the morality so hard to get a clear answer for. And so, at best, a 51, 49% determination that I would default to the public policy. The public policy questions are things like, well, if you don't let the police clear these areas, they often fester and are dangerous for the residents and diseases spread, and all the public policy implications. If you do, there's also public policy considerations in that way, what are you doing with the rest of the homeless people? But judges aren't supposed to do that, too. To me, using a public policy lens on this question, essentially becoming a legislator is much clearer than using the philosopher slash ethicist lens. So I would grasp for that. Are you not allowed to do that?

[Aziz Huq]

I think that the direction that you're pushing in is the direction that was taken by one of the. The greatest justices in American history, a man called Oliver Wendell Holmes. And Holmes was first a Massachusetts judge, and then he becomes a justice of the Supreme Court. He very famously dissents in a series of cases concerning liberty of contract. And it's often taken that his dissents are about his disfavor of libertarian views of regulation. But that's not actually what they're about. It's not what he says they're about. What he says is rather a version of what Michael, you just said. He said, look, it's not my job to make moral judgments, and it's also not my job to make public policy judgments about how many hours a person can work or what a minimum wage ought to be.

[Mike Pesca]

Right, because those New York bakers.

[Aziz Huq]

Right, exactly. Those policy judgments, kind of along the lines of what you were saying, were basically judgments about what's morally right and how we should organize our society. And I don't do those either. And my job is just to make sure that the trains run in terms of our political system. The trains of our political system run on the right tracks, and everyone knows when the train's coming and when to get on. And that's it. I'm just the signal person. I'm just making sure everything is working smoothly. My job is not to tell you where the train is going. My job is not to tell you when and how the switches get pulled. It's just to make sure that they're there and that they're pulled when they're supposed to be. And if, said Holmes, the people acting in a majority want to take the train to hell, then it is my job just to help them do that, just so long as they're doing it by the ordinary rules that the law provides. So, you know, Holmes's view, I think, is. It's a really powerful view because I think it picks up on the intuitions that you've rightly put on the table. But I think for many people that the sort of the. I'm happy to let everything go to hell because it's not my problem. There's lots of people who have a lot of hesitation before embracing that point of view. So. Absolutely. The argument that you've given, I think is a really powerful one. I think it drives us to the position of Oliver Wendell Holmes. And that's a, that's not a bad position to be in, like, great. One of the greatest justices of all time, Right?

[Mike Pesca]

Yeah.

[Aziz Huq]

But it's also a position that people are, you know, many people are profoundly uncomfortable with.

[Mike Pesca]

Yeah. But I think if you facial hair knew about the F train, speaking of the train to hell, I can only assume that's what he meant.

[Aziz Huq]

Yes, yes.

[Mike Pesca]

Aziz Huq is the author of the Collapse of Constitutional Remedies. I've also been promoting his recent Atlantic piece, America is Watching the Rise of a Dual State. He is a professor at the University of Chicago School of Law. Thank you so much for joining me today.

[Aziz Huq]

Thanks very much for the really smart questions and terrific conversation. Michael.

[Mike Pesca]

And that's it for today's show. Cory War is the producer of the Gist and Ashley Kahns, our production coordinator Kathleen Sykes helps me with the Gist list. Very much helps me. Philip Swissgood consults on all matters Substack where I am@mikepesca substack.com and Michelle Pesca oversees it all. Peru. G Peru. Do Peru. And thanks for listening. Marketing is hard, but I'll tell you a little secret. It doesn't have to be. Let me point something out. You're listening to a podcast right now and it's great. You love the host. You seek it out and download it. You listen to it while driving, working out, cooking, even going to the bathroom. Podcasts are a pretty close companion. And this is a podcast ad. Did I get your attention? You can reach great listeners like yourself with podcast advertising from Libsyn Ads. Choose from hundreds of top podcasts offering host endorsements or run a pre produced ad like this one across thousands of shows. To reach your target audience in their favorite podcasts with Libsyn ads, go to Libsynads.com that's L I B S Y N ads.com today.