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Has the Supreme Court Always Been This Terrible? with Mackenzie Joy Brennan
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- [00:01]
Sarah
What even are words if not a way to massage the average voter's brain into a jelly? Welcome to youo Wrong about the Podcast, where sometimes we ask what is happening and why is this allowed to be happening? Today I AM Talking to MacKenzie Joy Brennan, attorney and constitutional scholar, about the Supreme Court. Some recent decisions of theirs you may have noticed. Is there a constitutional right to abortion? No. And how many crimes can the president commit? Most of them. One of the difficult things, in my opinion, about being an American is that you can tell something terrible is going on. But if you don't have the legal vocabulary to name what you see happening according to the terminology chosen by the profession of the people making it happen, you can feel too ignorant to be allowed to have an opinion about it. Or at least that's how I feel sometimes. That is why we are talking today with McKenzie about the Supreme Court. What it is, how it works, what powers it claims to have and what it claims to derive them from. And one of the central themes in the Supreme Court's claim to power is the concept of originalism, the idea that the nine justice sworn in for life are uniquely able to interpret the desires and beliefs of the Founding Fathers and that this, if it were possible, would be the correct way to run a country. The real driving question of this episode for me is what is the Supreme Court and is it destined to be the thing it is now? And the answer is no. The world looks a certain way today, but it doesn't have to look that way forever. And it didn't look that way in the past. We have that power. Thank you for listening. Welcome to youo're Wrong about the Podcast, where sometimes we just ask a question of mine that I really want an answer for. And our guest today to help us in that quest is mackenzie Joy Brennan. Mackenzie, hello.
- [02:29]
MacKenzie Joy Brennan
Hi. I'm so excited to be doing this. Except for what brings us here.
- [02:35]
Sarah
Yes. I mean, yeah, the last eight years potentially happened because somebody wished on a monkey's paw that they would have something to write about as like a journalist or something covering. Oh my God.
- [02:48]
MacKenzie Joy Brennan
Right?
- [02:49]
Sarah
America.
- [02:50]
MacKenzie Joy Brennan
Oh, my God, right? Yeah. It's one of those things that. And I say this because I do abortion law as well. The only thing I would like more than doing this type of work is not having a job, you know, not having to represent people, not having to talk about this.
- [03:06]
Sarah
Yes. You're like Alan Grant in Jurassic Park.
- [03:10]
MacKenzie Joy Brennan
Exactly.
- [03:11]
Sarah
Except not really, because I think he really wants to be on a dig intimidating a child.
- [03:15]
MacKenzie Joy Brennan
Oh, for sure.
- [03:17]
Sarah
So I wanted you to answer my question, which I suspect is a question many of us have, especially lately, which is, has the Supreme Court always been this terrible? Does it have to be this terrible? And what was it like before, if there was one?
- [03:33]
MacKenzie Joy Brennan
Those are great questions. I want to preface everything with, like, don't take anything I'm saying, as, you know, back in the good old days, because generally that type of reasoning, especially with government, means a lot of us lose our rights. So, you know, take everything I say in terms of where we started out and the halcyon days of constitutional democracy with a grain of salt, because I know that we know that. But what I will say is that there's been a real turn in politicization of the Court. And in my humble opinion, I think that really started with Robert Bork and with the introduction of originalism. So those are the threads that I was thinking we could kind of trace through to answer what the heck is going on today and why we're here.
- [04:20]
Sarah
I would love that.
- [04:21]
MacKenzie Joy Brennan
Okay.
- [04:23]
Sarah
Also, to start, I would love for you to talk a little bit about what your profession within the law is. What is the law? While we're on it, what is your relationship to the Supreme Court? Which is a weird question to be asking, as if I'm accusing you of having gone out with it.
- [04:40]
MacKenzie Joy Brennan
Abusive relationship.
- [04:42]
Sarah
Yeah, Take both of those however you want.
- [04:45]
MacKenzie Joy Brennan
Right. So it's really sad to answer your last question first, because I always saw the judicial branch as, like, the last bastion of civility, some sort of rule of law. You know, it's harder, or it was for many years harder to overturn precedent, and that could be a good and a bad thing, but that there was some degree of, like, objectivity, and we must rely on this, and we wear robes, and that's great. So, yeah, I went to law school in New York and worked for the New York Supreme Court for a couple years under a judge there, doing all sorts of civil law stuff, family law, guardianship. He was great. But I got the sense that I was working for somebody who was an exception that proved the rule a little bit, that, like, oh, damn. Judges bring a lot more of their own biases and freedom to what they're doing. And so then I did a hard pivot and started doing more media commentary work. Came back to my home state of Arizona just in time for all this abortion stuff to happen in Arizona. Now, I am still taking abortion cases, but most of what I do is media work. And I'm with Abortion Access Front right now. So that's my relationship with the law on a very personal level. My late dad also wrote about originalism and his life's mission was debunking it. So he left that mantle behind for me to pick up. And here we are doing that. It's gotten worse.
- [06:11]
Sarah
So there's a little bit of a family of superheroes kind of equality to all this.
- [06:15]
MacKenzie Joy Brennan
I love that. Yeah. Except that nobody really cares about our plaintive call in the night, that this is all nonsense.
- [06:22]
Sarah
I care. I care about the Constitution. It has good parts. It's like Brian De Palma's body double. Like you wouldn't say unequivocally it was a good movie. But you're like, listen, there's great parts.
- [06:34]
MacKenzie Joy Brennan
Totally. And I feel like that's. I know you and I talked about this a little bit before, but that's what a lot of us on the more liberal side of things have kind of lost the opportunity to do that. Like, oh, the Constitution really was designed. Yes. It was written by very flawed people. And there, you know, are necessary amendments that have been made over the years and even more so that we haven't made. But there's a lot of good to it. And they kind of knew what they were doing in terms of making it able to grow. We just have let the rule of law really get co opted by people who have not taken it that way and have co opted it.
- [07:11]
Sarah
Sort of. One of the first questions of this show is how long has originalism been around? Because the name really does seem to imply that this is. Implies to me, this episode should really be called you're wrong about the legal system. Sarah. Implies to me that it's been around since the beginning because it's. It's called originalism. You just were like, well, it's old. Right, Right.
- [07:36]
MacKenzie Joy Brennan
That is the first intentional hoodwink because it really gained popularity in the 1980s. A lot of people credit Robert Bork, and I think I paralleled before that. It's like when a country calls themselves, like People's Republic or Democratic Republic.
- [07:52]
Sarah
Yes.
- [07:52]
MacKenzie Joy Brennan
Just a mask. They're really not doing that. And originalism, in using those words, it gives it a certain, like, degree of clout. And as I was researching this, I saw some places now calling it constitutionalism, which is even more brazen.
- [08:08]
Sarah
What even are words if not a way to massage the average voter's brain into a jelly.
- [08:15]
MacKenzie Joy Brennan
Oh, my God. I mean, you gotta hand it to conservatives that they really know how to play their semantic games. And it is working.
- [08:22]
Sarah
Yeah. The Clean Air Act.
- [08:24]
MacKenzie Joy Brennan
Yeah. And even like pro life no child Left Behind. Yeah, no child left behind. Yeah. But anyway. Yeah. So Robert Bork was the granddaddy of originalism, and before he introduced that word, he had a storied past in the more political sphere. I want to send you a picture of him because he's everything that you would think of somebody. I'm gonna quote from his book first. And his book is called Slouching Towards Gamora.
- [08:56]
Sarah
No. Why was he like, move over, Chun Tyrion.
- [09:02]
MacKenzie Joy Brennan
Yeah, yeah. He's gonna rewrite the manifesto. So he invade against liberals.
- [09:08]
Sarah
I'd call it Electric Borkaloo, but he didn't ask me.
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MacKenzie Joy Brennan
Oh, I hate that. He invade against liberals and premarital sex and working mothers, saying, a decline runs across our entire culture and the rot is spreading.
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Sarah
Okay, I'm going to.
- [09:28]
MacKenzie Joy Brennan
Okay. Do I send it in the chat? This super hot pic. Okay. All right. He's on his way.
- [09:34]
Sarah
Okay. Oh, boy. Oh, yeah. See, I recognize this face now that I see it. He looks like he plays Abraham Lincoln for, like, town 4th of July events.
- [09:47]
MacKenzie Joy Brennan
Yeah. Or we could say, like, Confederate General Foyle.
- [09:50]
Sarah
Yeah. Civil War. Civil War. Hair and beard.
- [09:55]
MacKenzie Joy Brennan
Yeah. So he also was part of what was called the Saturday Night Massacre. And so that was when Nixon was being investigated for Watergate. He tried to fire the special prosecutors who were looking into Watergate. And so, like, three successive DOJ folks were asked by Nixon to fire the special prosecutor, and they all refused, except for he got to the third in line, who was Bork, who was at the time deputy Attorney general, put a.
- [10:28]
Sarah
Cert in his mouth and said, well, Bobby, what do you say?
- [10:31]
MacKenzie Joy Brennan
Right. So Bork was the one who agreed to do it. He obeyed Nixon and fired Archibald Cox. So that was his first time in the public eye. Then by the time Reagan. Because of course it was Reagan nominated him to the Supreme Court in 1987. He had also spoken out against the Civil Rights act of 1964 and the SCOTUS cases that established the right to contraception, because obviously that is part of the rot that is bringing us to Gamora.
- [11:03]
Sarah
Well, yes. Yeah.
- [11:05]
MacKenzie Joy Brennan
So that's his proud history. He was not approved to the Supreme Court.
- [11:10]
Sarah
Isn't it fascinating that that used to happen? I mean, not in a while, but. Yeah.
- [11:15]
MacKenzie Joy Brennan
And he lost with the largest margin at the time for a nominee losing, which meant that people crossed party lines, which is quaint.
- [11:24]
Sarah
Which they also don't do. Don't do any longer. Really. Yeah, I've. And I remember that George W. Bush had a sort of notoriously underqualified nominee who was not appointed. And there was a feeling for me, at least at the time of, like, the executive branch is going to pull some shit. But there are. Yeah. The Supreme Court is, at the time felt like a moderating force. And I mean, it would seem to me that kind of the reason you have a judicial branch is so that they're not in the pocket of whoever's president. But I guess we don't believe that anymore.
- [12:01]
MacKenzie Joy Brennan
Exactly. And I think that that's kind of the paradigm that I believed we were in for a while, and I think we were more so in that world.
- [12:10]
Sarah
Yeah. It had to have been more so than this because, I mean, just look at.
- [12:14]
MacKenzie Joy Brennan
Totally.
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Sarah
Yeah. Because we would have noticed.
- [12:17]
MacKenzie Joy Brennan
And, like, looking as you should, looking at the Constitution, you can see that, like, there is a world with checks and balances that should and could exist under our structure. So, like, why not? But Bork opened a door because conservatives were so, so angry and they turned his name into a verb that means to get, like, vilified and defamed.
- [12:38]
Sarah
Oh, no.
- [12:39]
MacKenzie Joy Brennan
So, like, if somebody gets borked.
- [12:42]
Sarah
Well. And so aside from what you mentioned, was there a particular reason that it. That at least people cited? Because I know it's often more complex than a single thing, but what was the sense people had about why he.
- [12:53]
MacKenzie Joy Brennan
Wasn'T confirmed too political, that he was too partisan?
- [12:57]
Sarah
That doesn't happen anymore.
- [12:59]
MacKenzie Joy Brennan
Right. Isn't that wild that, like, I think the relationship that he had with Nixon and specifically with Watergate.
- [13:06]
Sarah
Oh, wow.
- [13:07]
MacKenzie Joy Brennan
The fact that he was questioning legislation that was on the books from Congress and questioning settled Supreme Court precedent because it approved contraception.
- [13:16]
Sarah
And I feel like today they'd be like, good for you. What was Nixon like.
- [13:22]
MacKenzie Joy Brennan
Also, though, on the other hand, Nixon was the one who signed federal funding for Planned Parenthood. So it's like, yep, they're all terrible, but they're also. We're reaching new levels of terrible as we go.
- [13:35]
Sarah
There are aspects of American culture, or, you know, specifically government, that were designed to be unjust from the very beginning. But there are also parts that were designed, at least with an intention toward justice. And we can actually try and use those. You know, there's still. There's life in the old girl yet.
- [13:54]
MacKenzie Joy Brennan
Absolutely. One of the things that my dad cited in some of his research is there are ample discussions of the framers talking about natural rights that they have not yet discovered, that future societies, as. As people become more civilized, if you will, will discover more rights and dignities that humans deserve. And that you know, the document is supposed to live with and embrace those things. So that, I mean, if that's not them speaking to progress within this constitutional scheme, I don't know how else you interpret that statement. But, like, it's there.
- [14:29]
Sarah
Yeah. What is the Constitution? And then what is the Supreme Court?
- [14:36]
MacKenzie Joy Brennan
Okay. Oh, boy.
- [14:39]
Sarah
So it's like talking to a baker and being like, what is flour? And they're like, I don't. Wow.
- [14:45]
MacKenzie Joy Brennan
Yeah. So the Constitution is, I think, our most important foundational document. It lays out a whole bunch of freedoms. And there was a big debate when they were drafting the Constitution about should we write out the rights that we want to be protected, or by writing out the list of fundamental rights, do we kind of beg the question down the line that, oh, man, they forgot something. If they took all this time to write out these rights and they didn't include xyz, that probably means they didn't intend to protect xyz, but it's impossible to enumerate all of the things that people have freedom to do, let alone contemplating that document, living with a society as time goes on. So they kind of struck a balance, and you can't write out the right to breathe, the right to sleep, the right to turn left. There's so many things that are so basic.
- [15:41]
Sarah
The right to wash or not wash your chicken.
- [15:44]
MacKenzie Joy Brennan
Right. I exercise that right all the time. So the balance that they struck was, we'll have kind of catch alls, and we'll leave some of the way that we term these rights open to interpretation and able to grow and adapt. I'm maybe getting ahead of myself, but one of the most important ones is the ninth Amendment, which basically says, you know, don't worry about this whole argument that we had between the Federalists and Antifederalists. Anything that is not enumerated in this Constitution should not be interpreted to take away those rights from the people. All those rights that aren't included are retained by the people unless somebody says otherwise. Oh, and Bill of Rights are the first ten amendments, so.
- [16:27]
Sarah
Okay.
- [16:28]
MacKenzie Joy Brennan
But it also outlines in the Articles some of the powers that are delegated to different branches of government. And that brings us to the Supreme Court. Supreme Court is basically there to resolve conflicts on an appellate scale, or there's some cases over which they have what's called original jurisdiction where they're the first ones to hear the case, yada, yada. But the biggest thing for our purposes is they have the power to interpret the Constitution and resolve questions of constitutional interpretation. So that probably brings us to this power that they've wielded more brazenly in the last couple of decades, if you ask me.
- [17:07]
Sarah
Okay, so we have the US Supreme Court, which I feel like we're all used to calling scotus. Now we all have to talk about SCOTUS all day long, which makes me feel like we're all characters on Veep in a way. There aren't any other supreme courts. Are they, like, for counties?
- [17:27]
MacKenzie Joy Brennan
Yeah. There's not really a uniform structure. For example, in.
- [17:32]
Sarah
God damn it.
- [17:33]
MacKenzie Joy Brennan
I know, right? It's bananas. And this is what happens when you do the states rights thing. So many bad things stem from states rights, but. Yeah. So like in New York, for example, the highest court is not the Supreme Court. It's the New York Court of Appeals.
- [17:48]
Sarah
They were like, we're not calling it supreme. You know what it's like? It's like when they named Al Anon, they were like, we need a name for friends and loved ones of alcoholics. It'll be related to Alcoholics Anonymous, but very different. What should we call it? Let's just call it Al Anon.
- [18:02]
MacKenzie Joy Brennan
Let's make it super confusing. Yeah.
- [18:05]
Sarah
Everyone will be confused for the rest of time. But we did it. We really did it.
- [18:10]
MacKenzie Joy Brennan
It's bananas. And then because there are state courts and federal courts, and the federal courts have circuits, and they have below the circuit courts, which are, like, for different regions of the U.S. there are district courts, but then in some states, they also have, like, state district courts, or that's the word that they use. So. But the U.S. supreme Court is the highest court for everyone. Unless you go international. Yeah.
- [18:34]
Sarah
And when you say appellate. Well, here's what we'll do. I will try to explain what I think that means.
- [18:40]
MacKenzie Joy Brennan
Perfect. Yeah.
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Sarah
So what I learned from Law and Order, because they say this in every episode of Law and Order, is that when you're arrested, you have the right to remain silent, and you also have a right to an attorney. Although I didn't learn until adulthood that people only started having that right after arrest in, like, what, 1964.
- [18:58]
MacKenzie Joy Brennan
Yeah. With the Miranda case.
- [19:00]
Sarah
Yeah.
- [19:01]
MacKenzie Joy Brennan
And you also don't have a right to an attorney in lots of other types of cases. It's really just like as a criminal defendant, which is. Is also messed up if you think of custodial cases or domestic violence. Yeah. Anyways. But go ahead.
- [19:13]
Sarah
But those things don't matter because they don't matter to women. So, you know. Yeah, yeah. And so that you have these basic rights as a criminal defendant. And my very Very general understanding, although this warrants a whole other episode, is that we had to some extent an expansion of defendants rights in the 1960s because of the Warren Court, which was the Supreme Court under Chief Justice Earl Warren.
- [19:39]
MacKenzie Joy Brennan
You're doing very well. Yeah, that's correct.
- [19:42]
Sarah
I'm doing it. Yeah. Okay. So that the Warren court in the 60s was relatively liberal and then that we since then have been living kind of in the quote unquote, victims rights backlash to that. I think I probably know this because we did an episode with Rachel Monroe on victims rights.
- [20:01]
MacKenzie Joy Brennan
Yeah. And it's another case of like a misnomer and a willful misnomer. That it's really not about victims rights and it's just like a co option.
- [20:10]
Sarah
It's about prosecution's rights.
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MacKenzie Joy Brennan
Yeah. I think that there's kind of been a war between progressive and regressive, if I can call them.
- [20:19]
Sarah
I like that those things.
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MacKenzie Joy Brennan
Okay.
- [20:21]
Sarah
Because conservative implies, you know, restraint. Like I'm in a literal sense being conservative when I reuse leftovers.
- [20:29]
MacKenzie Joy Brennan
Yeah.
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Sarah
But like that's not, you know, the party's ideology is so much about waste that it feels a little bit weird to call it that at this point.
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MacKenzie Joy Brennan
It's not even that they're trying to retain values that existed in the framers days, it's that they're trying to be as regressive and bigoted as possible and find an excuse to do that. It's a double edged sword because it's like the way that the framers wrote it gave a lot of room to add definition. Like what does liberty mean if not privacy and autonomy? But also. Yeah, it's not defined. So that technically allows people to define it super narrowly too.
- [21:07]
Sarah
This is why founding documents are so difficult, I guess.
- [21:11]
MacKenzie Joy Brennan
Yeah. And liberty, I mean a lot of our personal freedom and bodily autonomy rights within the last, you know, 50 years have come through the liberty part of the due process clause where it says that you can't be deprived of life, liberty or property without due process of law. The older, more progressive courts ironically have taken that liberty phrase and paired it with things like the ninth Amendment and other protections of privacy, ironically like the third Amendment, that like the founders didn't want you to house people in your home. So they probably don't want people searching your body for contraceptives or knowing if you went to the doctor or keeping you from getting married. So all of those types of cases hinge on how we define liberty in the due process clause. Because take abortion or gay marriage. It's like they're not telling anybody to get that. They're just protecting those who want to. And that's where this whole weird theocratic morality that started with Reagan and Daddy Bork, our favorite guy, started to kind of poison our collective view of morality in government, too, and make it way more Judeo Christian regressive. If you wanted to go back and really find foundations of progressive values in the Constitution, a lot of the, like state conventions and constitutional conventions at a federal level talked about things like privacy and right to create your family. Abortion was super common. It was actually, like, more common per capita before what's called the Quickening at the time of the framing than it is now. And, yeah, they talk about protecting women, children, and animals. And so it's like, yeah, if you actually want to look at the Constitution, there's plenty of arguments to make. But that's not what quote, unquote, originalists are doing.
- [23:14]
Sarah
Right. Where are we now? What has the Supreme Court been up to for the last few years? Because I, like many people, have a general sense of, like, well, I don't think it's good. And everything I hear seems to be terrible. But I also can't say that I've been following it closely.
- [23:30]
MacKenzie Joy Brennan
Well, because it's painful to do that.
- [23:32]
Sarah
Yeah. So just give me all my pain right now, and then we'll go back to the 80s where I'll be safe.
- [23:39]
MacKenzie Joy Brennan
Rip the bandaid. Okay, so let's do, like, greatest hits of this last term.
- [23:45]
Sarah
Do they get summers off?
- [23:46]
MacKenzie Joy Brennan
Yeah, they do.
- [23:48]
Sarah
God damn it. Come on, you guys.
- [23:52]
MacKenzie Joy Brennan
Seriously? Yeah. So I feel like it's worth noting also that a fair amount of the current justices are either not duly appointed or have done things criminal to unethical in nature that in any other government job would bar you from serving. So.
- [24:09]
Sarah
Well, it's not good.
- [24:12]
MacKenzie Joy Brennan
Do you want to do decisions or the people.
- [24:16]
Sarah
Well, yeah, let's do. Let's start with our. Let's start with our cast of characters.
- [24:20]
MacKenzie Joy Brennan
Okay. Fun. So, like, we have credible sexual misconduct and then perjury about the facts surrounding that misconduct. In the Senate hearings with both Thomas and Kavanaugh, you also have gross conduct in what is a job interview from the same two. Because Thomas, in his Senate hearing where he talked about the Anita Hill accusations, called it a lynching. Which is bananas to say that in a job interview when your victim was also black, she was a black woman. So, like, how are you? How dare you? And then Kavanaugh in his job interview yelling and crying about how much he likes beer. I wouldn't get hired if I did that. It's not technically against the law, but worth saying.
- [25:04]
Sarah
It feels like it's an important part of the GOP rulebook to very strongly enforce morals that you then don't follow.
- [25:11]
MacKenzie Joy Brennan
Yeah, yeah. And that actually comes up in the next section of what should be disqualifying conduct, which is improper appointments. Gorsuch's appointment resulted from a violation of Article 1 when the Senate did not give a hearing to a properly nominated appointee from a party that they didn't want to hear. So that was Garland. So Gorsuch didn't do anything in his hearing, but his seat should have properly been heard with the Garland appointment. So that's one. And then you take the reasoning that the McConnell Senate used to deny Garland a hearing, and that was that it was like too close to an election because it was a number of months before a presidential election. But when Ginsburg died, it was roughly a month, I want to say a little less than a month before a presidential election. And McConnell's Senate in that case was fine having an appointment hearing.
- [26:08]
Sarah
Yeah. And that one was extra bad because it was only a couple years difference. It was like, come on, we all remember this.
- [26:16]
MacKenzie Joy Brennan
So by your own rules, you made Amy Coney Barrett's appointment improper. And so that takes us to how many? Four of them with questionable traits. And then not recusing heavily. Vested interest and demonstrated bias. And then bribery applies to Alito, Thomas and Kennedy, who retired to give Kavanaugh a seat. We've all heard a fair amount about the Thomas bribery nonsense, that he's been getting bought off by a big right.
- [26:48]
Sarah
Wing donor and he gave him an RV or something. I mean, it's like a ton of other stuff, but.
- [26:53]
MacKenzie Joy Brennan
Yeah, and vacations and like paid for his grandson's tuition or something. And then Alito apparently has nothing to do with the Stop the steal flag that was hanging at his house because his wife has bodily autonomy and he doesn't interfere in that.
- [27:10]
Sarah
Well, I suppose it's hardly relevant. I mean. Right. It's like, I just think that if you're going to be a criminal, you should just commit. And like, there's nothing less attractive than hypocrisy.
- [27:22]
MacKenzie Joy Brennan
They're a hair away from just doing that because in this term, and maybe this is a good segue, they said that bribing a federal official is okay.
- [27:30]
Sarah
What?
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MacKenzie Joy Brennan
That was one of their holdings. Yeah, that kind of snuck in there.
- [27:35]
Sarah
Because what I. Yeah, and what I, you know, what I got was the headline, which is that they're like, well, crimes are okay if you need to commit them to be president, which is.
- [27:44]
MacKenzie Joy Brennan
Like, that's huge, right?
- [27:47]
Sarah
Yeah. And you just don't necessarily think about how much that covers. But it's like, in the breakdown of the details that the shock factor really comes in.
- [27:55]
MacKenzie Joy Brennan
Yeah. I mean, it makes everything that Nixon did in Watergate legal now. Wow.
- [28:00]
Sarah
Is Nixon. I guess he already was pardoned by Ford, but we can just pardon him again.
- [28:05]
MacKenzie Joy Brennan
But, yeah, like, that's wild. And also, like, within the theme of originalism, how crazy is it that, like, they're bringing us close to a monarchy and acting like they're adhering to the Constitution, the whole point of our country's formation is that we didn't want a king?
- [28:20]
Sarah
Like, yeah, I may not be a great student, but I do remember that part. Right.
- [28:25]
MacKenzie Joy Brennan
It's fundamental.
- [28:27]
Sarah
I guess it's nice, because one silver lining, and I realize I'm really grasping here, is that this degree of government malfeasance is so transparent and cartoonish that you can't really ignore it and you can't feel like it's too complicated for you to grasp because it's just. Just so corrupt right on its face that maybe it's kind of empowering to feel like, you know, I don't know. I think there's. Throughout recent history, there's been a lot of Emperor's New Clothes about it, and that's harder to maintain these days.
- [29:00]
MacKenzie Joy Brennan
Yep. For better or worse, it was like a watershed moment. So people who maybe didn't hear the quiet part before, now they do. What they do with that is another matter. But it certainly has pushed some people to, like, wait a second. I'm not okay with this. This is a bridge too far. I don't know.
- [29:18]
Sarah
When the Supreme Court reviews, I guess, a case, what's the procedure there?
- [29:24]
MacKenzie Joy Brennan
A big element of that is deciding whether they want to leave a case be where it was, which is kind of a ratification of what the lower court did, because it's like they heard it correctly or their analysis is fine enough that we don't have to mess with it. Sometimes they decide to do that if they don't want to touch an issue also. And I feel like that is common for political reasons, that maybe something is a hot button issue. The inverse of that is now you're seeing the court like they have granted cert to some trans ban cases for next term. Yeah. So, I mean, there are all sorts of different things within those umbrellas that they can do. They can remand something so they can say that we're not going to rule on it, but we'll send it back to the lower court for, like, rehearing the case. And sometimes they'll give instructions on how to do that. Sometimes they'll say that something isn't ripe yet. So try coming back with this case in a while if you have different plaintiffs, yada, yada.
- [30:30]
Sarah
This is sounding stunningly similar to what it's like to submit a piece to a magazine or something, you know, because you have, like, editors who are like, yeah, this is a good concept, but it's not a story yet. Like, make some calls, see what you find, or whatever. They're like.
- [30:48]
MacKenzie Joy Brennan
Or like, we'll totally ignore you, and you just have to live with that.
- [30:53]
Sarah
Right. Or they're like, this is, like, interesting, but it's not like, something that it makes sense to put in our fall issue. You know, try a sec. Whatever.
- [31:02]
MacKenzie Joy Brennan
Yep.
- [31:03]
Sarah
Is like, I know that they don't have to decide everything that comes to them, but I do, I think, have this still sort of instinctive sense that, like, surely what we hear about is like, a representation.
- [31:15]
MacKenzie Joy Brennan
Right. Like a balanced sense of what is going on in the country and.
- [31:19]
Sarah
Yeah, exactly. That it's somehow representative of the bigger picture when really it's like, nope, no. There has to be an element of, like, what's advantageous for us to talk about right now.
- [31:30]
MacKenzie Joy Brennan
Absolutely. Like, they didn't have to touch any of these things.
- [31:33]
Sarah
Yeah. And that would be less surprising if they didn't insist on having lifetime appointments and robes, which, like, I just don't like.
- [31:43]
MacKenzie Joy Brennan
It's a wild amount of power.
- [31:44]
Sarah
I know I talk about this too much, but. Yeah. And just the sort of pomp and circumstance. They have a big red curtain and stuff, too. It's like, do this in a VFW hall if they're so confident. This is too much ceremony. It's like the Vatican.
- [32:01]
MacKenzie Joy Brennan
It totally is. And it's all just, like, inching us closer to that monarchy, but with a crazy, disproportionate amount of power in the court. Because when the Dobbs case was initially moving through the courts, and that was the one that overturned Roe v. Wade, it was a big deal that they granted cert to that because if they hadn't re looked at Roe v. Wade, it would have stayed settled law. And that's what precedent should do.
- [32:26]
Sarah
Like, they kind of want to have it both ways, at least historically, by being like, we are here to serve the constitute. Well, I guess this is originally that the originalist argument as far as I can tell, is saying, we are here to serve the Constitution. We merely, you know, and it's kind of like the idea that a preacher is your conduit to God.
- [32:44]
MacKenzie Joy Brennan
Exactly. Like, we're just the messengers. We know what they were saying.
- [32:48]
Sarah
We are simply doing what the Constitution says, and it happens to say exactly what we believe that we should do this thing that was never relevant for the past, you know, 51 years or whatever.
- [33:01]
MacKenzie Joy Brennan
Yep, absolutely. And that doesn't stick with precedent, which, like, by the Supreme Court's own rules, you really should only overturn precedent if it's not proven workable. And if new information or new science has come out that makes it inapplicable, lower courts are struggling to apply it. So, like, none of those things apply in these weird overturnings that they've been doing on political bases.
- [33:26]
Sarah
Mm.
- [33:28]
MacKenzie Joy Brennan
But originalism. Yeah.
- [33:29]
Sarah
Okay, so we have kind of a near miss with Bork, and then. Yeah. How do we get from there to now?
- [33:36]
MacKenzie Joy Brennan
Yeah. Like, I think Scalia was really the one.
- [33:39]
Sarah
The return of Bork. Bork Strikes Back.
- [33:42]
MacKenzie Joy Brennan
That is borked up. Yeah. So Scalia brought originalism to the court with a vengeance. And I think one of the best examples of, like, how absurd calling it originalism is is Scalia's opinion in D.C. versus Heller. Are you familiar with that case?
- [34:03]
Sarah
No.
- [34:04]
MacKenzie Joy Brennan
So that's the one that kind of redefined the Second Amendment as having an individual right to firearms, which.
- [34:12]
Sarah
Whoops.
- [34:13]
MacKenzie Joy Brennan
Yeah, Oopsie. Except it was intentional. But that's another one. Kind of like the term originalism that has not been around forever. The Second Amendment was seen as like a town militia type. Right. And that's its own episode in and of itself. But in establishing this, like, individual rights conception, probably because he was in bed with the nra, he quoted from the dissent written by the minority of the Pennsylvania State Convention to the Constitutional Convention. Oh, so, like, that is such cherry picking.
- [34:48]
Sarah
I didn't know there was a minority opinion in the Constitutional Convention.
- [34:52]
MacKenzie Joy Brennan
And, like, not even the convention at large, but the Pennsylvania State Convention.
- [34:57]
Sarah
Right. Okay. We got a real Eagles fan here, apparently, man.
- [35:04]
MacKenzie Joy Brennan
And that's the thing. Like, you can find anything to support your own weird little biases if you look hard enough. And in the Supreme Court cases, like, the counsel come to you with that research already done, so somebody probably handed them, hey, look at this one excerpt from the minority dissent in Pennsylvania that says individual right. Basically original intent.
- [35:24]
Sarah
To quote another 30 Rock joke. It's like the Mamma Mia. Tagline saying, fun.
- [35:30]
MacKenzie Joy Brennan
Good, good.
- [35:32]
Sarah
Yeah.
- [35:33]
MacKenzie Joy Brennan
What are you leaving out? Yeah. So I feel like that is a perfect poster child for how quote unquote, originalism operates and how Scalia brought that to the court and did it with such pride that people just kind of bought it. They're like, oh, yeah, okay. Originalism. Right to firearms. But I feel like here's a good quote from Justice Brennan, who is no relation, tragically of mine, but I'd like to pretend he was. He described originalism as arrogance cloaked as humility. Ooh, I think that says it.
- [36:13]
Sarah
Yeah. Yeah. That's a read by Brennan.
- [36:15]
MacKenzie Joy Brennan
Yeah.
- [36:16]
Sarah
What are your thoughts on that quote and sort of. How does that illuminate it for you?
- [36:20]
MacKenzie Joy Brennan
The arrogance piece is pretending that they know the intention. And I think where maybe for a while, you could argue that they really did believe that original intent said blank and that the framers even intended for original intent to be used, because that's also a novel idea. Like, nothing in the Constitution says, look to our society as the guide and put disproportionate power in, like, the 1700s.
- [36:46]
Sarah
Right. They seem to really, based on what you're saying, to be extremely oriented towards the future. Yeah. And so it's very funny to sort of take something that's very focused on the future and the idea that we're sort of keeping this a bit loose. I mean, it's like writing a syllabus and being like, here are some ideas for how I want this class to go, but you, the students, are going to tell me what you want to learn, and it'll kind of develop on its own. And then acting as if that syllabus was written in the spirit of. Oh, boy. It says no loud foods. So, I mean, how do we define loud? Right. Like, silken tofu is made out of soybeans, which are allowed to harvest when you use a combine for it. So when you think.
- [37:28]
MacKenzie Joy Brennan
And like, we found a receipt in the pocket of somebody who wrote the syllabus, and they went to this restaurant once. So this is probably all they meant. Like.
- [37:38]
Sarah
Yeah, it feels like a transparently unnecessary degree of fixation on just a handful of people who, you know, would drop dead if you gave them a pixie stick or whatever.
- [37:50]
MacKenzie Joy Brennan
Yeah.
- [37:50]
Sarah
And I also understand, you know, like, I can see how for a lot of us, the founding fathers are made out to be these sort of demigod type figures. And I believe that. I think that this is a cynical political movement, but I believe that there's enough good faith, plausible deniability about this for citizens who are raised when we're taught history at all, to see historical Americans as sort of so much better than us and as these great legends, that it's easy to sort of of trick a well meaning populace into believing that this is the most reasonable way to approach the Constitution.
- [38:30]
MacKenzie Joy Brennan
Yeah. And I think the tragedy is that it has forced us to kind of fight on their level and pick out how terrible elements of that society were in a very real and legitimate way. You know, Jefferson was no paragon of virtue, especially by modern standards, but they did design something sustainable. And we shouldn't even be fighting over whether they're sainted or not. They didn't want us to focus on them. So it's like we don't even need to be having that argument because they didn't see themselves that way. And so if we want to play the originalist game, we should be focusing on now.
- [39:06]
Sarah
Yeah.
- [39:06]
MacKenzie Joy Brennan
So that's the arrogance piece. And I think time has also showed that it goes beyond arrogance and it's just bad faith. It's intentional at this point.
- [39:17]
Sarah
Yeah. And tell me how and where can we see that bad faith in action?
- [39:22]
MacKenzie Joy Brennan
Hmm. Well, I think that Scalia, using the dissent of a minority of one state when everything else in the historical record, including the convention at large, did not suggest that there was an individual right to firearms. That's a pretty good one. And I think the fact that this court has also overturned so much precedent, one decision that came out of this last term that we didn't mention was it overturned something called Chevron, which was this decades old, hugely important precedent on agency authority. So places like the cdc, the faa, the fda, all of those under Chevron had the power to interpret and enforce the rules that they themselves make. So that makes sense. They're the experts. They're the ones who passed these guidelines. They had the authority to. And with a conservative majority, this court just overturned that and basically said that courts can decide if there's some ambiguity in a rule that came out of an agency that courts can determine over an agency saying that this is how we meant that to be interpreted. So let's use an example like, so Fauci headed the cdc. That's an agency. Right. If the CDC put out guidelines on quarantine under Covid and said that, you know, TSA agents at airports should do XYZ and they should quarantine themselves. But there was a question about what the word quarantine meant under Chevron under this case that has been around forever and had been cited like thousands of times. If you had confusion about how to interpret those agency rules. You would defer to the agency. And so then Fauci and his buddies would say, like, this is what we mean when we say quarantine. And courts would be bound to enforce what the agency says. Now people can challenge it more comfortably because there isn't this deference to what agencies say. And the ultimate arbiter is the court. And so, of course, the court has handed themselves power to say, like, no, we're the authorities on what the word quarantine means or what the FDA means when they say that this is their new medication approval or the FAA rules. Like, it's a lot of really scary substance. Yeah.
- [41:45]
Sarah
Right. And it feels like this interesting kind of jiu jitsu move in a way, where you are taking power away from federal agencies, which, you know, classically, conservatives dislike. Strong federal government.
- [41:58]
MacKenzie Joy Brennan
Yeah.
- [41:58]
Sarah
But then you are simply making another branch of the federal government the arbiter of what they do. So it seems like you are supporting the strength of a federal government, when, in fact, you are kicking it over to the inside men you have put in the Supreme Court to help along the whole theocracy project.
- [42:20]
MacKenzie Joy Brennan
What you said is absolutely true, but it also just gums up the gears of everyday agency functioning because they'll be spending time defending themselves against all of these random challenges to their rules and interpretations instead of actually focusing on what they are supposed to do.
- [42:37]
Sarah
Yeah. Which, you know, you can imagine some of the implications of that pretty easily. It's not as if federal agencies are running with very much efficiency to this point.
- [42:48]
MacKenzie Joy Brennan
Exactly. Like they're already on their last legs and.
- [42:52]
Sarah
Yeah.
- [42:53]
MacKenzie Joy Brennan
Oy.
- [42:53]
Sarah
Yeah.
- [42:54]
MacKenzie Joy Brennan
One of the dissents from this term was really good, and I think it was Kagan. It was in that. That Chevron agency case.
- [43:02]
Sarah
One of the rare Supreme Court justices who doesn't, you know, have any criminal charges that seem like they should be pending. Yeah. What a thought.
- [43:11]
MacKenzie Joy Brennan
I mean, it was a really powerful season of dissents, if anybody's into it.
- [43:15]
Sarah
HBO's best season ever of dissent. You've seen severance, you've seen succession. Now watch dissent.
- [43:25]
MacKenzie Joy Brennan
Oh, my gosh. I would watch it. Yeah.
- [43:26]
Sarah
Oh, yeah, we would watch it.
- [43:28]
MacKenzie Joy Brennan
But okay, so Kagan says judges are not experts in the field and are not part of either political branch of the government. Those were the days. Because that was a quote from the case they overturned. Those were the days when we knew what we were and knew what we are not. And so she's kind of saying, like, we don't know how to make these decisions. So we shouldn't empower ourselves to make them, which is what people who are responsible and hold power should do.
- [43:54]
Sarah
Yeah. And to come back to sort of, I don't know, the role of the judge, you know, it does feel like the magic of trials, the magic of our idea of the courtroom, that a lot of it comes down to our idea of the magic of the judge, who is this mystical figure who wears a black robe like, you know, a religious leader. And who sits higher than everybody else. And who gets to have these romantically charged sidebar conversations with counsel.
- [44:23]
MacKenzie Joy Brennan
Very intimate. Yeah.
- [44:25]
Sarah
You know, and to decide what happens and what doesn't. And who's sort of the director of the play, but also the sort of idol who has to be appeased. It seems like.
- [44:32]
MacKenzie Joy Brennan
Yeah. It's the whole. Like, you can't take their name in vain even.
- [44:35]
Sarah
Yeah.
- [44:36]
MacKenzie Joy Brennan
You gotta call them a special name. Yeah. That's apt.
- [44:39]
Sarah
That's real weird. Yeah. And that whole monarchy thing.
- [44:43]
MacKenzie Joy Brennan
Yeah. It's an enormous amount of power. And maybe that can bring us to some action items related to.
- [44:49]
Sarah
Oh, boy.
- [44:50]
MacKenzie Joy Brennan
We have an election.
- [44:52]
Sarah
We do. We are having an election. I hear.
- [44:55]
MacKenzie Joy Brennan
I've heard word on the street it's a very stressful time.
- [45:00]
Sarah
I heard that it's Tuesday.
- [45:05]
MacKenzie Joy Brennan
I'm not excited about it, but. Yeah. Like, one of the few things that the executive. Which. For me, it's helpful to remember that the executive is a branch, not a person. And so think about what the agenda is of the branch. And one of my colleagues actually had another great point, and she was like, which one of these guys would you rather fight with and argue with? Who do you think would actually hear you and might take some of your points into consideration rather than just be a megalomaniac? But food for thought, one of the few powers that an executive does have pretty unilaterally is nominating federal judges.
- [45:45]
Sarah
Yeah.
- [45:46]
MacKenzie Joy Brennan
Not just Supreme Court.
- [45:47]
Sarah
And committing crimes now. So.
- [45:49]
MacKenzie Joy Brennan
And barely.
- [45:50]
Sarah
Yeah.
- [45:51]
MacKenzie Joy Brennan
Murdering if they want to. If it's official enough, I guess.
- [45:54]
Sarah
Like, how do you like. If you're like. Well, you know, it's. I. They were impacting my mental state. They were annoying me, so I had to kill them. I'm. It affected my ability to be president. It's like. Well, truly with that, you just kind.
- [46:08]
MacKenzie Joy Brennan
Of have to say it's official. Which. That seems like the only requirement that they have. And that sounds pretty damn like a monarchy to me. I don't know what other differences you could point to, but, yeah, that's a huge amount of Power.
- [46:21]
Sarah
Yeah. I mean, it seems like we have these founding documents and the sort of idea of government that was based out of, you know, the both intelligent and more wishful, let's say, ideas of a handful of guys who were around during the Age of Enlightenment, some of whom had fortunes in businesses entirely dependent on the labor of hundreds of enslaved people, that that's what we have to work with. And I think that it makes sense that we find ourselves in this really, if we let it be interesting, this really interesting kind of gray area of there is so much humanistic potential in some of these writings, but also to treat these men like gods is to actually ignore the very best of what they had figured out, in my opinion, which is some basic concept of human rights and, you know, the inalienable rights of man, parentheses humans.
- [47:25]
MacKenzie Joy Brennan
And that societies are designed to evolve and grow.
- [47:28]
Sarah
Yeah. And that, like, to write something and to expect it to remain immutable and be graven in stone is. Yeah. Contrary to, like, whatever you think of the Founding Fathers, it's hard to not admit that that is contrary to the best of what they had to offer.
- [47:46]
MacKenzie Joy Brennan
Exactly. Yeah.
- [47:47]
Sarah
And then looking at originalism, it's like, okay, so we're taking the figure of the judge from the littlest ones to the SCOTUS ones. These people who are sort of torn between humanity and divinity and who have to sort of maintain consciousness and responsibility about this great power that they have in order to sort of preside over a system that hopefully will lead toward justice through the participation of every person involved. And what if we just, like, tell them that they're the only ones who can know what the Constitution is meant to say? That specifically the Supreme Court justices, who are already more powerful than everybody else, that they just know, and they get to just.
- [48:31]
MacKenzie Joy Brennan
Even what wasn't written down, they know.
- [48:34]
Sarah
Like, without any proof, they get to just decide.
- [48:37]
MacKenzie Joy Brennan
Like, when you put it that way, it sounds insane.
- [48:39]
Sarah
It's, you know, just. I don't know, looking at it from the perspective just of people in a role where, like, you have to be in a culture of humility and that this is a philosophy that, among so much else, is just. Yeah. About arrogance. Disguises humility. Like good old your cousin, Justice Brent.
- [49:02]
MacKenzie Joy Brennan
Yeah.
- [49:03]
Sarah
Okay. And so is originalism. What do we know about why this rose as sort of a legal school of thought? And is this, you know, how did this idea get to us? Do we know?
- [49:19]
MacKenzie Joy Brennan
I mean, it was just persistence, dogged insistence that they are the conduits. First Bork and then Scalia and Now, on the current court, you have Alito really playing that role. Thomas tends to do the same thing as Scalia and Alito and Gorsuch now, as a new addition, is very, quote, unquote, originalist. So I think it was real political money behind a movement after Reagan, that whole theocratic conservative movement started, and they put their money where their mouth is. And originalism was the theory that worked for instilling regressive religious morals in the government. And I think part of what makes it good to talk about how new it is and how not sainted it is is that a big part of it picking up steam was our acceptance collectively that it was original intent and that it was a valid way to interpret things. So I feel like conversations like this are the best antidote. The lack of conversations like this is probably why it gained so much power so quickly beyond, you know, money and politics, et cetera, which is, like, I.
- [50:37]
Sarah
Don'T know, to me, very motivating to think of it in terms of anytime you're afraid to ask a question because you don't want to seem ignorant or stupid, that makes it easier for terrible ideas to just kind of swim under the radar with an okay sounding name. And I remember first starting to learn about just general sort of Supreme Court stuff, and it totally working on me. There's a sort of this real laundering of the concept where you're like, well, it's called originalism. It's based on the idea that we should get as close to the intent of the Founding Fathers as we can. And on the face of it, it's like, it doesn't. At least to me, you know, at the time, it didn't immediately seem terrible. Like, you have to kind of, I think, learn about the implications.
- [51:23]
MacKenzie Joy Brennan
Yeah. Like if you did apply it as the name would suggest, you would reach different, more rational conclusions.
- [51:29]
Sarah
Yeah.
- [51:30]
MacKenzie Joy Brennan
And that's where I think the semantics is so insidious. So, yeah, I think this kind of pushback is good.
- [51:36]
Sarah
Yeah. You know, there is really a lot of opacity to relatively simple concepts.
- [51:42]
MacKenzie Joy Brennan
Well, especially when you're talking about that feeling of superiority that we get from the judiciary. Making them opaque really serves their end goal of making sure that no one catches on to what they're doing.
- [51:55]
Sarah
Yeah.
- [51:55]
MacKenzie Joy Brennan
So if you throw a lot of legalese at somebody and then the one term they do understand is original intent, it's like, oh, okay.
- [52:03]
Sarah
You're like, that has to be good. Tell me if this metaphor makes sense. I feel like it's like. Like the Constitution is like Grandma's casserole recipe. You know, and Grandma wrote this casserole and she's like, here is a recipe for a delicious casserole. These are the things that I put in it. But I don't expect you to always put these things in it or to be able to buy these things easily where you are, because I will die and you will live and make this casserole recipe and give it to your children and your children's. And I don't imagine that I am able to foresee, you know, how much changes in, like, agriculture and whatever, you know?
- [52:42]
MacKenzie Joy Brennan
Yeah.
- [52:42]
Sarah
Like, Grandma was really thinking it through.
- [52:46]
MacKenzie Joy Brennan
I love it. She's a benevolent grandma. She foresees a flexible legacy for her casserole.
- [52:52]
Sarah
Yeah.
- [52:53]
MacKenzie Joy Brennan
And she wants it to be sustainable.
- [52:55]
Sarah
And then fucking 200 years later, some cooking YouTuber comes along and is like, the only way to make Grandma's casserole recipe is with French's onions and green beans. Just like, she made it that one.
- [53:10]
MacKenzie Joy Brennan
Time, even though they went out of business. And if you don't do it this way, you go to prison.
- [53:14]
Sarah
Right. And it's like. But Grandma was very clear.
- [53:19]
MacKenzie Joy Brennan
Yeah, that was part of the recipe. Is be flexible.
- [53:23]
Sarah
Yeah. But flexibility is part of the recipe. And then to come along and be dramatically rigid about a recipe that was successful because it has a degree of adaptability to it is silly.
- [53:39]
MacKenzie Joy Brennan
Yes. And I like that It's a random YouTuber who has taken on this task, because that's exactly, like, why does this person know what Grandma meant? They don't.
- [53:50]
Sarah
Yeah. So, okay, so it has been a horrifying few years. And what next? What are we going to do, Mackenzie? Fix it.
- [54:00]
MacKenzie Joy Brennan
Yeah, let's feel constructive. I always, like, really want to end on a positive note, but I think there are some good things. One really substantive thing that people can do that politicians can do Us, as a populist is put pressure on Chief Justice Roberts because he really. He's the daddy of the whole gang. And so he is allowed to comment publicly on ethics violations. But, like, he could work with Congress on a code of conduct on ethics violations. He could also push his subservient justices to recuse themselves on cases about a president that they clearly have feelings about.
- [54:45]
Sarah
They clearly all have crushes on. I mean, they do. Oh, my God, how the party is operating.
- [54:50]
MacKenzie Joy Brennan
Like, he's not going to fuck you, bro. I'm sorry. I don't know if you use obscenity in this.
- [54:54]
Sarah
Not only that, but, like, he's not even going to smile genuinely at you. He only does that with Putin.
- [55:00]
MacKenzie Joy Brennan
Roberts is somebody who could actually make a lot of the changes that virtually nobody else could. So that, I mean, there's an outlet also. Congress is an outlet. And I know that we really focus on the presidential election, but a lot of the things that haven't happened in the last four years is because we didn't have enough of a majority behind a lot of issues. So I know it's exhausting, and it feels easy to give up and just walk away from the whole thing, but really, we need more, not less, because things like term limits and getting rid of the filibuster that could allow us to get term limits, those are in the hands of our appointed representatives, whether they be senators or actual reps. Yeah.
- [55:47]
Sarah
And I do sometimes feel like the grand circus of national politics can, in a way also, you know, not intentionally, but that we are so distracted by these giant things happening that we don't feel much or any control over, that it can be easy to be so exhausted that we don't, you know, have the energy to get involved more locally.
- [56:05]
MacKenzie Joy Brennan
Yeah. Sometimes it is really nice to feel like there is an outlet. And in a lot of places, you know, it is fairly easy to get in contact with your representatives, people. Now, there are a lot of different ways to do it. I know. I hate making phone calls. So if you want to send a letter, if you want to send an email, if you want to go to an event, like, there are a lot of different ways to exert this pressure, and it's all worthwhile. So find a way that feels right for you and do it. I mean, make weird collage postcards and send them to your reps. Like, do whatever is your right way of advocating, but just do it.
- [56:44]
Sarah
I find it reassuring that in the story you're telling of originalism, it's like, well, how did we get in this mess? And it's like, well, we came up with this political approach to the constitution in the 80s.
- [57:00]
MacKenzie Joy Brennan
Yeah.
- [57:01]
Sarah
And then it, you know, really took off and gathered speed over time, and within about 30 years, it had sort of expanded into the most useful legal doctrine of the gop, I guess you could say, and allowed us to have a Supreme Court packed with criminals. And not even in a fun, like a Scorsese kind of a way.
- [57:24]
MacKenzie Joy Brennan
Yeah.
- [57:25]
Sarah
In an annoying way, a creepy way, in a taking your rights away without any apparent style kind of a way. And that. That is a horrifying story, but also it tells us that this is not what justice in this country must Be, you know.
- [57:43]
MacKenzie Joy Brennan
Exactly. I think it's weirdly empowering how short a time span it's been because that also means the inverse could kind of happen.
- [57:51]
Sarah
Yeah. Not every terrible process is irreversible. And the hollowing out of our Supreme Court is a reversible process. You know, like, we can fix that. There are things that we can fix. And also things, you know, things that we can't fix are still things that we can mitigate. And mitigate is a fancy legal word for make not so bad.
- [58:14]
MacKenzie Joy Brennan
Make suck less. Yeah. I mean, we have two justices and they're two of the pointedly bad ones who are in their 70s. So, you know, life happens. It's possible that whoever the next president is will have two appointments, and that could change everything. I mean, it could also take generations to see a different composition of the court because nominees have gotten younger since Bork, too. But who knows? This time next year, two years from now, it could be a totally different picture.
- [58:45]
Sarah
Is it possible that we could not have the lifetime appointment thing anymore?
- [58:50]
MacKenzie Joy Brennan
Yeah.
- [58:50]
Sarah
I also think that the lifetime appointment thing has a different meaning in the 18th century than now.
- [58:58]
MacKenzie Joy Brennan
Yeah. Seriously. Speaking of original intent, you had more.
- [59:02]
Sarah
Churn when people were, you know, getting a blister while walking to work and then dying of sepsis a week later.
- [59:08]
MacKenzie Joy Brennan
Right.
- [59:09]
Sarah
Not that people don't do that in America now, but, you know, that's because of lack of access to medical care and not because we don't know how to treat it.
- [59:17]
MacKenzie Joy Brennan
Yeah. Like, you combine the life expectancy back then with the fact that they were generally older appointees, and it was kind of like the people who had seen everything in their career for the last couple years of their working life, and then they're gone. Yeah.
- [59:33]
Sarah
Yeah.
- [59:34]
MacKenzie Joy Brennan
So I think that's another substantive thing to work on. If my understanding is right, we'd have to get rid of the filibuster for Supreme Court appointments because that would allow a non majority party in Congress to stonewall changes to things like that. So that would kind of be the first thing to do. And then you could change the lifetime appointments or the size of the court. And those are the two substantive ways that we could mess with the composition without somebody dying or stepping down. So. Yeah, I mean, there are options. There are definitely options, but we gotta vote first.
- [60:10]
Sarah
Yeah. Oh, boy. Yeah, we all have to vote. And. Yeah, I just. I. This is maybe not the most reassuring message, but I'll really take what I can get, you know, and take maybe not comfort necessarily, but derive energy from the idea that like we are cooking with a casserole recipe that was designed to be revised by the people. And we are the people.
- [60:35]
MacKenzie Joy Brennan
Absolutely. And I still kind of like that recipe.
- [60:39]
Sarah
Well, Mackenzie, I'm really happy to be in the kitchen with you.
- [60:43]
MacKenzie Joy Brennan
Yeah.
- [60:43]
Sarah
Tell us, I guess, what you're up to, where people can find you and also anything that you recommend for people to feel a little bit less helpless.
- [60:52]
MacKenzie Joy Brennan
Oh, boy. Yeah. On all the socials sans X, I am kzjoybrennan. I also have a substack where I talk true crime media ethics, but that is on a summer break right now because of the election and trying to focus on election prep both in Arizona and federally. And I don't know, just don't lose hope and hold each other close.
- [61:19]
Sarah
Yeah.
- [61:19]
MacKenzie Joy Brennan
So that we don't all fall apart.
- [61:34]
Sarah
Thank you for listening to our episode today. Thank you so much to MacKenzie Joy Brennan for being our wonderful guest. You can find MacKenzie online at www.mkzjoybrennan.com. thank you so much to Miranda Zickler for editing help. Thank you, as always, to Carolyn Kendrick for editing. We've got bonus episodes for you on Apple+ and Patreon. We love you. We're happy you listen, we're happy you're here and we're going to see you in two weeks.