Factually! with Adam Conover - The Myth of the Supreme Court

Episode Date: November 11, 2020

Author and professor Eric J. Segall joins Adam to explode the myth that the Supreme Court makes decisions by a dispassionate evaluation of the law. In reality, he argues, the Justices actually just “make shit up.” Adam and Eric dig into the real history of Brown vs. Board of Education, the ways "originalism" mirrors religion, and why Segall believes the Court should ultimately be weaker than it is. Learn more about your ad choices. Visit megaphone.fm/adchoices See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

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So if all of that sounds good, if you want a big box of delicious snacks like this for yourself, use the code factually for $15 off your first order at Bokksu.com. That's code factually for $15 off your first order on Bokksu.com. I don't know the way. I don't know what to think. I don't know what to say. Yeah, but that's alright. Yeah, that's okay. I don't know anything. Hello, welcome to Factually, I'm Adam Conover, and you know, the Supreme Court is really weird. You know, we have this myth that it's a group of nine priests who interpret our holy constitution using their perfect knowledge of the law. But, you know, get rid of the robes and they're just a bunch of adults with flabby mortal human bodies. You know, like they got genitalia flopping around like anybody under there. Not only that, they have friends, enemies, credit cards, dinner plans, family problems, all the things that we do.

They're people is what I'm saying. They live in the same country. We do. And they are the products of our times, just like we are, which means that they are not, in fact, angels sent from the land of law down to earth to interpret dispassionately. No, they're human beings that have all the ideology and biases that being a human entails. In fact, despite the impartial priestly branding, the Supreme Court has been susceptible to changes and developments in politics and American history just as profound as in any American institution. For instance, if you read the press, you'll see that there's a lot of talk right now about how bad it is that the Supreme Court is suddenly politicized, that it's

become a place of partisan competition. But the truth is, the Supreme Court has always been a contested political space. For instance, here's a quote about the court that could be said by a Democrat today decrying Republican machinations. Here it goes. By a fraudulent use of the Constitution, which has made judges irremovable, they have multiplied useless judges merely to strengthen their phalanx. That was a quote from Thomas Jefferson himself, and he wrote it because he was unhappy with the efforts of the Federalist Party to establish the court's power over states. That's right. In those days, it was not taken for granted that the court had power over state laws at all.

In fact, even though the judicial review of laws is basically what we think of the Supreme Court as being for today, as being its central purpose. That was not a given at the time that it had that power. But it was actually Jefferson's effort to push the court away from federalism that led to the famous 1803 decision Marbury versus Madison, where Chief Justice John Marshall declared for the first time that the court had the right to say what the law means. That's right. Judicial review is not in the Constitution. It was the court literally came up with it itself. Now, Jefferson didn't like this at all. He said that this decision would make the courts, quote, a despotic branch

of government. But nevertheless, judicial review was established. And the Supreme Court has ever since been the final arbiter on what the Constitution says, even though that power is not actually laid out in the Constitution and in fact was enacted over the protests of one of the founding fathers. So point being, we have always fought over this thing. In fact, the Supreme Court continued to be the site of battles throughout American history. In 1837, Andrew Jackson added two justices to the court to give him two more positions for his literal cronies. But then, after Abraham Lincoln was assassinated, the Republican Congress reduced the size of the court by two in order to stop

Lincoln's Democratic replacement, Andrew Johnson, from making pro-slavery appointments. Literally, these are politicians enlarging and smallening, that's not a word, but smallening the size of the court in order to achieve their political goals, just like politicians are discussing doing today. We finally ended up at our current nine justices in 1869, but up until then, it was very much in flux. And battles over the partisan makeup and size of the Supreme Court made their way right into the 20th century. During the New Deal, FDR threatened to add to the Supreme Court to famously pack the courts since the Supreme Court at the time was stifling and killing

the essential legislation like the right for unions to organize and minimum wages that we take for granted today and that he needed to, you know, do a little thing called ending the Great Depression. Now, FDR didn't succeed in packing the court, but it's believed by historians today that just the threat of doing it pushed one of the conservative justices to change sides on a key minimum wage case. This, quote, switch in time that saved nine averted an even greater crisis. So, look, point being, what am I getting at here? I'm trying to make the point to you crystal clear that the Supreme Court is not a disinterested body of law monks. It is a political institution and has been throughout our history.

And when you think about it, how could it not be? I mean, it makes decisions about our constitution, our founding political document. The constitution itself is, in fact, a political document. So it is nothing but politics all the way down. But so where did this myth of the impartial court come from? Well, the truth is that the court has always attempted to project and maintain a veneer of impartiality, to give an impression of itself as objective and only concerned with the law. And the reason is it needs to do that in order to be legitimate in the eyes of the public. And that's because the Supreme Court has a really specific role in American political life. Unlike the president, it doesn't have its own army to enforce its decisions.

You know, there's no Ruth Bader Ginsburg secret commando unit saying that if you don't do what the Supreme Court says, you're gonna get shot, okay? The court requires the rest of the government and the American people to believe that its decisions hold weight, that they are binding in order for them

to actually be binding. The Supreme Court, in other words, is a little bit like Tinkerbell. If we don't believe in it, it drops dead. And that means it's in the profound interest of those on the court to maintain a sense of legitimacy in the eyes of the public. And this need for legitimacy permeates every decision the court makes, from what cases it decides to take to when it decides to take them to the decisions themselves. If you read really smart legal analysts when

they're evaluating the decisions of the Supreme Court, they will explain how certain decisions are political because they were done in order to give an impression of impartiality and to dispel an impression of partisanship. Once again, it's politics all the way down. So to talk about how politics guides the Supreme Court and to dive deeper into the myths that underlie our conception of it, our guest today is Eric Siegel. He's an absolutely incredible thinker on this issue. He's a law professor at Georgia State University and the author, most recently, of the book Originalism as Faith. Please welcome Eric Siegel. Well, Eric, thank you so much for being here. My pleasure. Thank you for having me.

I think it must be a, we're recording this, the week of Amy Coney Barrett's confirmation of the Supreme Court. I imagine this must be a busy week for you as a Supreme Court scholar. It has been a busy week, month and three years, actually. Yeah, there's been a lot. There really hasn't been a dull moment at the Supreme Court. No, if you think about first, there was Garland, that fiasco. Then there was Gorsuch. Then there was the Kavanaugh fiasco.

And now we have this, what I think is a fiasco. We're just chock full of fiasco. And now we have this, what I think is a fiasco. We're just chock full of fiascos. Well, what do you think from where you sit when Ruth Bader Ginsburg passed away and Amy Coney Barrett was announced as the nominee? What was your reaction as someone who studies this about how the Supreme Court is likely to change and what that is likely to mean for America. Sure. And I can't answer that in a soundbite, I'm afraid. So it's going to take a minute. And I want. This is why we have a podcast. We can talk for a while. That's good. I also want to expose my priors for your listeners who don't know, because I'm someone who believes

that the justices priors dictate almost everything they do. I want to be self-conscious that I am a progressive and have been my entire life, but I'm a progressive who my entire professional life for 30 years, I've argued against the Supreme Court. I think the institution should be weakened dramatically. And I've said that during Republican presidencies, Democrat presidencies. It's not a partisan issue for me. So with that caveat as my priors, two nights ago when Justice Clarence Thomas in a ceremonial White House stunt swore in Justice Barrett was one of the low moments, I think, in American Supreme Court history, because it represents the leaving of Justice Ginsburg, obviously through her death, who was not, who as a Supreme Court justice didn't accomplish all that much, frankly, because she didn't have the opportunity to, because Kennedy and O'Connor dominated most of her time on the court.

But before she became a justice, she was an American hero. She changed American society, helped change it, and really the world. And like Thurgood Marshall before his Supreme Court stint, he changed the world for African Americans. She changed it for women. They both changed it for all of us. And now we're swearing in somebody who has the opposite values. And now we're swearing in somebody who has the opposite values. And so it's not just going from, for example, Justice Lewis Powell to Justice Kennedy. Or it's not like going from Justice Rehnquist to Justice Roberts, you know, where not that much changes.

I'm not even talking about and I'm not talking here about results. results. The character, personality, and life achievements of Judge Barrett pale in comparison to Justice Ginsburg. There are other conservatives whose life legacies and life achievements would not pale compared to Justice Ginsburg, but hers does. And so it's a very sad moment. And just one last thing about that. It's similar to Justice Marshall being replaced by Justice Thomas. We had a hero to the civil rights movements movement replaced by somebody who is a major and substantial obstacle to civil rights movements. And that's just really sad for America. Yeah, that's quite a it's quite a swerve. I mean, Thurgood Marshall being one of the, you know, most most important civil rights attorneys in American history before he even became a Supreme Court justice. And then going to Clarence Thomas, who is somewhat the opposition to that. Thomas really had no nothing in his resume that was excellent or that would suggest a Supreme Court

seat. And the same is true for the same is true for Judge Barrett, who, by the way, I know a little bit and is a very nice person in person. Like I'm not saying, you know, she's you meet her and you go, oh, she's she's a perfectly polite, nice person, but she's a religious extremist and it's going to be a disaster. Well, I want to unpack some of the previous things that you said about, first of all, that you believe that justices mostly make their decisions based on their priors. Can you explain what you mean by a prior? I'm familiar with that term, but it's a little, you know, it's a little jargony if you can unpack that. And why do you believe that? Because that's the opposite of the way we normally talk about Supreme Court justices. We say they decide based on their knowledge of the law and they're just interpreting it. They're basically doing law math to figure out

what the right answer is. They're doing complicated algebra. And yeah. So why do you feel differently? And sorry for the jargon. I'm not usually a jargon guy, except- Oh, no, no, no, that's fine. That's fine. It's a great term. It's just one that I love to unpack given that we have the chance. Sure.

So political scientists who study the Supreme Court in an empirical way, as opposed to constitutional law professors, which I am, and we generally hate empiricism of any kind because we can't do math. Political scientists will tell you that the Supreme Court has always been full of people who decide cases based on their values and life experiences and partisan politics, though not entirely partisan politics, which is why Justice Stevens was Republican but voted liberal, and Justice White was a Democrat who sometimes voted conservative. I'm not suggesting it's all political party partisanship, although it is now.

But throughout the Supreme Court's history, there is no question that prior law doesn't matter. My first book, which I'm not plugging, I'm just making the point, was called Supreme Myths, Why the Supreme Court is Not a Court and its's Justice is Not Judges. What we expect judges to do is take prior law minimally seriously. In other words, if a judge came out and said, I'm going to make the best all things considered decision and I don't care about the law, we would say, well, you're not a judge. That's not what a judge, I don't care if it's traffic court, court of appeals or Supreme Court. My position has always been that the Supreme Court as an institution does not and never has taken prior law consistently and minimally in an important fashion. So what they're doing is making all things considered decisions. And so by prior

is what I mean is the way they look at the open-ended provisions of the Constitution, like freedom of speech or commerce among the states or cruel and unusual punishments or unreasonable searches and seizures, due process, equal protection, you name it. They have imprecise text with either unhelpful or conflicting history to decide our country's most difficult social problems like affirmative action, abortion, gun control, campaign finance reform, and to top it all off, they have life tenure and their decisions can't be reviewed absent a constitutional amendment, which never happens. So here's my question to you. If you had a job with life tenure, you could only be fired for committing a crime and unreviewable power. What would you do? Would you do what you think is right? Or would you do

what you think the law requires? You would do what you think is right. You can't be fired. Now, I have life tenure, by the way, as a constitutional law professor, which is terrible. I shouldn't, but I have no power, but I have no power. No one cares about me. You have power over your students. Um, yeah, but you know, um, to society, I make very little difference. And by the way, that's true of the most famous con law professor at Harvard as well. It doesn't matter. These justices resolve our divisive questions like abortion affirmative action gun policy and if they feel strongly about it or even moderately about it they're going to do what they think is best and so would you this is not a criticism of the justices it's a criticism of

the institution which and and one last um kind of whipped cream on that or cherry on that. Everybody from 1801 to 1859, 1869 knew this. The original number of Supreme Court judges was six. And the Supreme Court wasn't very important for a few years. Then it became important. And then the number went from six to five to seven to six to nine to 10 to nine. And they settled on nine in 1869, which has been ever since. But they changed those numbers because they knew the court was a political institution making political decisions and they had to manipulate it. FDR knew that. Right. And so we threatened the court packing plan. And we're back and we're back to where we were. I think finally, finally, maybe Bush versus Gore will come back to haunt the American people in a way that will make a difference that didn't matter in 2000. When Al Gore said, I accept the decision, which is what he should have done. I'm not criticizing it. But Bush versus Gore is such an obvious travesty of all things legal. And it was just five Republicans putting in a Republican president.

If that happens again, if Biden wins the popular vote by six, seven, eight or nine million, which I think is possible, and then the Supreme Court takes the election away, I think we're in for some serious hard times. Now, what's interesting. Yes, I do think we are in for some hard times that happens. Now, what's interesting is this is not going to air for until the election. And so we are now speaking. I want to be clear to everybody. I don't want to create an editing nightmare for my editor and have to edit around this and put in some provisos. So let me just say right now, we are recording this the Wednesday before the election. It'll come out soon afterwards. Assuming we're all around after the election, which, you know. Yeah, yeah, yeah. Assuming we're around by then. I mean, if you're listening to this, you know more about it than we do right now.

And that's the that's the benefit of living in the future. But OK, man, I have I have so many questions for you off of this. one thing that just to make sure I understand your point about them using their priors if I can put it in my own language something like gun control you said imprecise text and the interesting thing you're the con law professor so please excuse me for saying like talking like I know anything but you know my understanding of the second amendment is that it is very vague. There's this question of like, where are the commas in this? You know, when it comes to like the militia and da da da, like literally, you know, you can parse the sentence two different ways to figure

out, OK, what are the founding fathers mean? And under those conditions, even if you are an originalist, even if you are saying what the founding fathers meant is the most important thing, there is still an ambiguity there that, hey, at the end of the day, you're just going to resolve based on whether you think there should be guns in the country or not. Or you're going to have to end up using just your own beliefs about guns if you're the justice. And there's no way around that. That's just how decision making works. Does that sound right? No, it's so much worse than that. Sorry. Oh, OK. I'm sorry. It is so much worse than that. I don't think the text of the Second Amendment is is vague or imprecise, and neither did most Americans for the first from 1791 until about the 1970s. A well-regulated militia being necessary

to the security of a free state, the right of the people to keep and bear arms should not be infringed. It's all about the militia. And the text is actually pretty clear about that. I'm not sure I can do this off the top of my head, but a well-regulated hospital being necessary to the safety of our people,

Americans should not be denied healthcare. That would mean in hospitals, right? A regulated hospital. I mean, it's just, it's obvious what's going on there. But worse than that, there are no historians, there are no legitimate historians who agree with the Second Amendment interpretation that Justice Scalia gave it in Heller. We know why the Second Amendment was passed. It's not, most history is unclear. This is not. They were afraid of a federal standing army. They were afraid of King George reappearing in the guise of the national government.

And they wanted to make sure that state militias were well armed in case that happened. It was never about self-defense in the home or any other kind of self-defense other than against a tyrannical federal government. And it was definitely not about hunting. Now, having said all of that, there's a way to get to gun rights in this country that several prominent liberal law professors have put forward. I don't think is right, but I think it's fair. And the argument is, by the time the 14th Amendment was passed in 1868, Americans kind of assumed they had gun rights. And if one believes in unenumerated rights, that's jargon again, I'm sorry, rights that are not written in the Constitution, If one believes the Supreme Court is allowed to find fundamental rights, like the right to terminate

a pregnancy, not in the Constitution, I think the right to own guns is a candidate for that, given American history. But you have to believe that that's the Supreme Court's job, is to find rights that aren't in the Constitution. I don't believe that. I've never believed that. I am pro-choice all the way down. I met my wife giving a talk to Planned Parenthood. I volunteer for Planned Parenthood. I have three daughters. I fight for their right to have reproductive freedom and justice.

And Roe versus Wade could not be worse, could not be. Roe versus Wade caused more horror for our country than almost any case. Wow. Because you believe the Supreme Court's job should not be to find unenumerated rights in the in the Constitution. Well, I'll put it. May I use a four letter word on this podcast or no? Of course you may. It is not the Supreme Court's job to make shit up. So I do. I do. Although it turns out that's exactly their job. So I blog at a place called Dorf on Law once a week or so.

And I've done that for five years. I think the blog post I wrote that got the most clicks or whatever you call it was one that said, how do you teach constitutional law in a world where the justices just make shit up? And let me tell you how that was triggered because it responds directly to your question, if you don't mind. There's a law professor at NYU named Christopher Sprigman, who is really well known in antitrust and some IP stuff. And he's really smart. And he was not traditionally a constitutional law guy. Then he decided he wanted to teach constitutional law. And he studied it and everything. And he taught it for a year, maybe two.

And then he tweeted it publicly and told me privately. He told his dean, I don't want to teach this anymore because I can't teach my students this stuff because it's not law. It's just making – it's just the judges making shit up. And that's what – and that's just making, it's just the judges making shit up. And that's what, and that's, and I cannot impress upon you enough, liberal, conservative, libertarian, reactionary, communist, it doesn't matter. They are dealing with vague text with imprecise history or no history, like drone strikes. How do we have history on drone strikes? And they're not bound by anything. See, lower court judges are bound by the Supreme Court.

And I know a lot of federal judges, both on the trial level and the court of appeals level. Now, I can't speak to this last three years wave of Trump judges. I can't speak to this last three years wave of Trump judges. But before that, the Republican judges and the Democrat judges that I knew, by and large, in good faith, try to figure out what the Supreme Court said and follow it. Now, sometimes there's no Supreme Court decision. Then they make shit up, too. But the difference between having to follow the orders of a higher up and having no orders higher up is all the difference in the world. It really is. them talk about the Supreme Court and what the Supreme Court does, that they interpret the Constitution and, you know, precedent and da da da, and that they're they're expert, they're legal experts, the experts above all experts who are figuring out how the law should be applied. And

and they're using some sort of like testable rules for doing this. According to you, that's all a fiction. And they're really just making up whatever they want to have happen. And they've created this sort of elaborate legal justification for why that for their power. But their power at the end of the day is just, hey, they're unelected. They have life tenure there. They can never be overruled except by a constitutional amendment. So they can do whatever they want. With one. You said that very well.

You want to teach my class tonight? Thank you. No. And by the way, when I teach, I do teach the doctrine as the court articulates it because my students have to be able to understand the doctrine, pass the bar exam, and if they practice constitutional law, which most don't,

but if they do, they need to talk the talk. But they also learn to understand that the court never walks the walk. That first you give, not never, but you give the court the reason you, their minds are made up most of the time in the big cases anyway. I just want to say the one exception to what you said, which was very well put, is there is one constraint and it's a serious constraint. So it's not totally unconstrained. They can only do what they think they can get away with. And that is a constraint. And they know that. Justice Roberts knows that as well as anybody, I think. they want to do, because if they did everything they wanted to do, some of them, then I think they know they would be too far ahead of or behind the American people. That has happened in the past.

And when they get too far ahead or too far behind the American people, they get smacked down. So FDR threatens to pack the court. The number of justices change. Jurisdiction stripping proposals. That's jargon. I'm sorry. But proposals in Congress that take away the Supreme Court's jurisdiction get talked about, and then they back down. I think it's very likely that we're about to enter a time period where the court is going to get way more conservative than the median conservative voter. And if that's true, they're heading for big trouble. There's a guy named Barry Friedman, also coincidentally at NYU, who wrote like a 700 page book. It's a great book. We've been better for 300 pages, but it's a great book on how throughout history, it's called The Will of

the People. Throughout history, the Supreme Court, most of the time, is left of center, right of center. You know, so there's a, you know, there's a standard deviation. And even liberals will say, well, that's a bad ruling, but I can live with it. Or conservatives say that. But then there are pockets of time, the Warren court, the time between 1900 and 1930, when the court was striking down progressive legislation, where the court went too far. And when the court gets too far, it gets in trouble. So we'll see what happens. Man, it seems like it's going to be an exciting couple of years, exciting couple of decades, perhaps. Or generations. Yeah. Exciting is one way to put it. I have to tell you that I think it's going to be, as far as the Supreme Court goes goes a very sad and depressing era until it's corrected yeah well one one check on the supreme court that you hear about sometimes but it's often a little bit hard to wrap your head around and i want to make sure i understand this from you you hear people talking about hey people can also just

not follow what the supreme court decides that like, you know, we have this idea of the, you know, of, of our being a society of laws and like everyone has to follow them. The Supreme Court issues an edict and everyone has to shrug and say, all right, that's what we have to do. Our hands are tied. But, you know, there is such a thing as, you know, there are other branches of government that can refuse to enforce laws that can, you know, that can ignore them. And I don't know if there have been times in history that that's happened. Yes. And that brings us to another question. So I'll answer both if you don't. I mean, I'll address the second one, which you haven't asked, but people always do.

Siegel, if you're so, you know, a critic of the Supreme Court and you think it's – what about Brown versus Board of Education? You know, what – wasn't that case an unmitigated success on every level? So a couple things. There are about five cases in American history I can think of where I think the court was right to strike down a law. Brown is one of those cases. think the court was right to strike down a law. Brown is one of those cases. But the court, because you can just read the law, read the constitution. No state shall deny to any person the equal protection of the laws. That's the text. And then the state says, black kids have to go to these schools and white kids have to go to those schools. And the black kids schools are going to

be inferior, which of of course, they were. They're going to have less security. They're going to have less teachers, less money, less funding, everything else. That's literally a denial of the equal protection of the laws. I mean, so so so Brown is right. However, Brown's decided in 1954 in Brown to which no one ever talks about. There was a case called Brown to where the court said, what are we going to do? Okay, we made our decision, now what are we going to do? And they said, we know this is really hard. There's all these, there's two systems of schools in the, you know, all the southern states and many other states, blacks and whites. desegregate with, quote, all deliberate speed. That's what the court said. Do it with all deliberate speed, which meant no speed. In 1963, nine years after Brown versus Board of Education, public elementary and secondary schools in 12 southern states, 12, were 98.2% completely segregated. That's nine years after Brown. There's a book called

The Hollow Hope by Gerald Rosenberg that has all the data for that. So almost a decade after Brown, we still have a totally segregated school system in the South. What changed was Congress, well, what changed was John Kennedy got shot. And then Lyndon Johnson was able to get the Civil Rights Act passed, which Kennedy could not do. And in that Civil Rights Act, there were a lot of different parts of it. But a part of it was, we're going to give billions of dollars to the states for education, but only if they end formal legal segregation. Right. And that's a step that could have been taken without Brown versus Board of Education that. Yes. I mean, Brown versus Board of Education gave backup to LBJ to say, hey, we need to fulfill this Supreme Court case. Yes. But and by the way, I just want to say we are now what, 70 years after Brown versus Board of Education, American schools are still segregated and highly.

Brown versus Board of Education, American schools are still segregated, still highly segregated. And that is completely because of the Supreme Court. Not completely. It is largely, let me rephrase that. That's because of intentional discriminatory action taken by the federal government from 1945 to 1960 or so, where the federal government backed $100 billion of loans to houses, but only for whites. And that was called redlining. And this is something I have, I want to be clear, I don't talk about things outside my expertise, meaning the Supreme Court and constitutional law. But I have studied this issue, which is more politics. And your listeners really need to understand that our segregation today is not accidental. It's because of deliberate, intentional government policies where I grew up in Washington, New York, a suburb of New York.

My suburb, like most of Long Island, would not have happened were it not for this backing of mortgages by the federal government. And they deliberately limited it to white neighborhoods all over the country. Now my neighborhood's houses, because my neighborhood had good schools because the houses had good property values, the property values appreciate, my parents hand that money down to me as a, you know, and now I have, and that almost never happened for African Americans on a national basis. So what the Supreme Court did then is during, from 1963 to 1971, the court was very proactive in busing and other things to help this problem. And then we came to Detroit in 71. It may have been 73, but I think it was 71. And in Detroit, we have and have today an insurmountable problem in that the suburbs at

one time and still, and now again today, were fairly rich because the car industry, right? You know, especially, but especially in the 70s and 80s, those were really rich neighborhoods with great schools. And the inner city was all black and all poor. How do you change that? There's only one way to change that, which is to to mix those neighbors, to find some way to mix those neighborhoods. And that's what they want. That's what lower court judges wanted to do. And the Supreme Court in Milliken versus Bradley said, nope, that segregation was not. Detroit didn't have a law that said separate schools. All formal discrimination was gone.

So it's not the government's fault. So the government does not have to do anything about it. And that decision changed American history. It's not a decision people talk about. It was incredibly important. And then just one more thing. Skipping ahead to 2006, and this is the real tragedy, and this is one of the reasons I just detest the Supreme Court. Louisville was segregated, obviously, by law from the beginning of its public schools, whenever that was, in the early 20th century, until whenever, 1960-something. By law.

Separate schools. And then years and years go by, and now we're in the 90s, and parents are upset that their schools are still segregated. Well-meaning parents, white and black, school districts, local officials, school boards, what are we going to do about this problem? And they decide that every public school in Louisville, with the exception of a few magnet schools, are going to have a certain percentage of whites and blacks because it's really important that our white kids learn to live with black kids and vice versa. was pairing. And the Supreme Court strikes that down in Justice Roberts' first major opinion, five to four, in a horrific case called Parents Involved, where Justice Roberts ended the opinion with the soundbite, the way to stop discrimination based on race is to stop discriminating based on race. This wasn't discriminating based on race. This was mixing up kids to further racial diversity voluntarily by parents.

And the court struck it down. And just horrific decisions. So the court, after Brown, except for a few years, walks away from the problem of segregation, walks away from it, and then stops voluntary desegregation adopted by horrible just horrible stuff uh sorry for that sorry for that long answer but no no no that was all fascinating i'd never heard of that case and you know redlining and segregation are something that i've covered extensively on this show i grew up up on Long Island as well. And another one of those communities where I grew up in a town called waiting river way out East. Yeah. It's out in Suffolk, but you know, same, same thing. You know, I'd be on the Long Island railroad being like, wait, why are, why are why do all the black folks get on, on this stop? You know what I mean? Like,

oh, I wonder why that is. I didn't find out until, you know, 25 years later. Right. But just return to Brown versus Board of Education for a second. You said that that case was 1954. Yeah. 1954. And it wasn't until 1963 that it began to be enforced. And so you had a Supreme Court decision where I said, hey, we must end racial segregation in schools. And then most governors, most states in the country said, nah, we're not going to do it. And it took I mean, it eventually took a president to, you know, sort of sack up and send the military in to force them to do it. And then that was there was major reaction against that. So that's, so in 1958, the governor of Arkansas said, I'm not bound by Brown versus Board of Education. And then Eisenhower did send in the National Guard. But I remember the number I gave

you was 98.2%. So there were some schools, actually, if you take Texas out of the mix, it goes up to like 99 and a half percent or something. But you're right. The governor of Arkansas said officially, I'm not abiding by this. And then the court said you have to abide by this because we're the supreme law of the land, which actually is the first time the court really ever said that. is the first time the court really ever said that. And that's 1958. Now, the court had been saying for a long time, like in other cases, you know, we say what the law is when a case is presented to us. But it wasn't until 1958 where the court said, we are the ultimate expositors of the Constitution. That's the exact phrase the court used. And everybody is bound by us. But even that didn't help. I mean, it really as usual, I'm outside my area of expertise, but as usual, it is money that matters. And it wasn't until the states were threatened with loss of money that they changed. Yeah. My point is that this is a case that sort of shows the myth that, you know, of the Supreme

Court's supreme power in a way that it is to a certain extent something that sort of shows the myth that, you know, of the Supreme Court's supreme power in a way that it is to a certain extent, something that the people of the country need to believe in that the other elected officials in the country need to enforce. And that that power, if I'm trying to enforce your point here of if they get too far away from the rest of the country and the rest of the country says, nah, fuck that Supreme Court decision. There's a lot of ways we can see it not happen. And in fact, Brown versus Board of Education, one of the most famous cases, the one that everybody learns about in school for all these different reasons. And because these later cases you describe ended up being a lot less powerful than the story that we tell about it.

OK, so I agree with every single syllable you just said, but let me give you what the other side about Brown. I don't accept this, but it's not a frivolous argument. The other side. Wait, can we, before you, before you do it, can we take a really quick break? We got to do an ad break or my producer is going to kill me. And then I want to hear this answer.

And I also have to ask you about, I really want to know your feelings on the O word originalism. So we'll be right back with more Eric Siegel. We're back with Eric Siegel, Eric, please put me in my place. Finish what you were about to tell me before the ad break. You agree with every single syllable, but. Not but, I and. I agree with every syllable. And there's another argument that we should present to your listeners, I think. Brown was incredibly important symbolically, nationally, and internationally.

What was happening, the reason Brown came out was because it was the Cold War and we were accusing Russia of doing all these horrible human rights violations. And they were smart enough to say, wait a minute, you're accusing us of human rights violations and you basically have apartheid. You have different water fountains, have apartheid. You have different water fountains, playgrounds, schools, jails, phone booths, parks for whites and blacks. How dare you accuse us? Once Brown came out, that argument was harder to make whatever the underground the conditions were. In addition, some people argue without Brown, we don't get the Civil Rights Act of 1964 just because of political forces and all that. I don't accept those arguments. I think it was very important symbolically. I don't accept,

I don't really accept them, but I think they're reasonable arguments that people should listen to. I mean, it's fair. Okay. Well, so let's talk about, let's get into some of the other issues of the court because I could talk to you all day, but we have a limited amount of time. And I want to and I want to get your opinion on some of these big things. So the idea of originalism, right, this is much talked about. This is becoming a dominant. No, it's not a way of thinking. No, it's not. No, it's not. No. OK, tell me your thoughts on it. Set me put me on my place. I'm going to stop talking. You talk, please.

I'm sorry. I just I just I can't. So I wrote a book called Originalism is Faith. And first of all, there's never been an originalist judge that I know of. In the modern era, Scalia and Thomas both voted to strike down somewhere between, in Scalia's case, 130 laws. In Justice Thomas's case, so far about 120. That's a lot of laws, right? I mean, 130 laws. In Justice Thomas's case, so far, about 120. That's a lot of laws, right? I mean, 130 laws Scalia voted to strike down, and almost none of them was there a plausible originalist justification. So they say they're originalists, but you say, well, they are not, in point of fact, behaving in a way that is consistent with that belief.

Correct. They don't vote originalists. They just talk the talk. And when I say that, people get all up in arms. On two bases, they get up in arms on two levels. One is easy to understand. The other is a little more subtle, but I think it's important. The first objection is, but you're calling them liars by saying that.

And I say, how dare, and they say, how dare you? And I say, well, even if that's true, I have a theory to say they're not lying. But even if I'm saying they're lying, and sometimes they clearly lie, I don't understand your point. We call governors liars. We call presidents liars. We call senators liars. We call traffic court people. I mean, we call people liars all the time.

Why are Supreme Court judges not in that category? So I was thinking about, to make that point, the first Obamacare case, the first Obamacare case, the court struck down the Medicaid part of that law. Medicaid part of that law. It upheld the law, but it struck down a part of it that said to the states, if you want to continue to get Medicaid funding, you have to agree to cover more people. And the Supreme Court, it doesn't really matter why they struck it down. It was completely ridiculous. But Justice Roberts, in that opinion, said Congress is not allowed to put retroactive conditions on the states when it spends money. That's a direct quote, retroactive. The Affordable Care Act was passed in 2010. It didn't go into effect in 2014. This lawsuit was 2012. And the feds were going to pay all the costs for the first three years or four years. So the states had eight years to prepare for this change. The phrase it was

retroactive is a demonstrably false lie. It just is. There was nothing retroactive about it. It was prospective. Eight years from now, you have to do something if you want to get our money. My point is, what I just described happens all the time. If a governor did it, we'd say he's a liar, right? We'd say, well, I'm telling you that the justices in that sense lie all the time. Now, the second objection is more important is, but they don't, they think they're originalists. Who are you? They think they're deciding cases a certain way and you're saying they're not. Who are you to do that? They think they're deciding cases a certain way and you're saying they're not.

Who are you to do that? So my answer comes from the leading intellectual in America of the 20th century, a guy named Richard Posner. I don't know if you know him, but I have heard this name. I am not enough of an intellectual to have read his work, but I am just enough to have heard of him and go, oh, yes, Richard Posner. Yes, very eminent, very eminent. to have heard of him and go, ah, yes, Richard Posner. Yes. Very eminent. Very eminent. A court of appeals judge, uh, the most cited legal scholar of all time by a hundred percent. That was his, that was his part-time job writing law review articles and books. He wrote 60 books. Um, he's the smartest man I've ever met. And I think he's the most honest judge I've ever met.

And in his book, um, how judges think, which is a great book, he talked about the internal perspective, what judges think they're doing, cannot fully describe what they're doing. And he's exactly right about that. And let me give you an analogy. Do you have kids? No. Okay. Well, I do. I have three daughters. That's okay. I have three that. And let me give you an analogy. Do you have kids? No. Okay. Well, I do. I have three daughters. That's okay. I have three daughters.

And we have hard parenting decisions all the time, especially during the pandemic, right? I have an 11-year-old. We gave her a phone when we said we wouldn't because she had to talk to her, you know, all kinds of issues like that. When my wife and I sit down and go over the pros and cons and then make a decision, we're reflective about it, but I don't know what else is going into that, like how I was parented, what I'm afraid of, my subconscious. I would never suggest in my hard parenting decisions, I'm fully cognizant of why I'm making them. That's true for judges deciding hard cases as well.

that's true for judges deciding hard cases as well. I can tell you from an analytical perspective, I can name you 30 off the top, incredibly important laws, Justice Scalia voted to strike down with no originalist basis whatsoever. So the reality is originalism for pundits and politicians is just a label to say, I'm conservative, I'm a libertarian. For judges, it is sometimes dishonest, but more often it's just cognitive dissonance. For scholars, it has become an article of faith. And it could not be a more misguided one. an article of faith. And it could not be a more misguided one. If you think about it for one minute, we have an issue today about lesbian, about LGBTQ folks. Could you, just tell me first, could you define what originalism means as they define it? No, you can't.

Well, not really, because today, originalism is 25 different theories. Some originalists think judges should never strike down laws, almost never. Some originalists think, well, it's kind of medium. Some originalists, like Randy Barnett of Georgetown, who's the most famous academic originalist, wants the court to strike down all laws because he's a libertarian and thinks everything is unconstitutional. There really is no glue except for one thing. They say what they mean is the words mean what they were originally meant. So whatever they meant in 1789, when the Constitution was ratified, or 1868, when the Reconstruction Amendments, you know, that we look at the words as what they meant then. But then they say, and you're going to tell me I'm making this up because it's so outrageous, but I'm not.

Then they say, but of course, if what they meant was based on facts that we now know are untrue, then judges aren't bound by what the words originally meant because those people had wrong facts. by what the words originally meant because those people had wrong facts. But once you say that, we're done because there are so many facts that have changed, obviously. So here's my – can I give you a real quick example, the best example? Oh, please do. We know for a fact, historical certainty, that the 14th Amendment to the United States Constitution was not meant to enlarge the rights of women at all, had nothing to do with women. Somebody, many people said during the debates about the 14th and 15th Amendments, 14th Amendment,

no state shall deny any person equal protection of the laws, due process of law, or deny them privileges or immunities. 15th Amendment, no state shall, you know, racial discrimination in voting is illegal. When those two amendments were being debated, people said, if we give blacks all these things, then women are going to want them. And the answer was, no, that's not going to happen. No, we're not going to give women those rights. Don't worry about it. Don't you see the word person? That means man. Exactly. No, exactly. In fact, they added the word male in the 14th Amendment to a voting thing.

Anyway, we also know that in 1868, women couldn't vote. We know that in Illinois, they couldn't be lawyers. And the Supreme Court upheld that in the 1870s, upheld a bar on women being lawyers. We know that as late as 1940s, Michigan had a law saying women couldn't be bartenders. And the Supreme Court upheld that law. So if we look at original meaning, there is no way to get to gender equality. But most originalists today are in favor of gender equality, right? They think that's obviously Illinois can't borrow women from being lawyers. That would be

unconstitutional. Why not? This is what they say, and I'm not making this up. Because they thought women couldn't do those things. That was based on wrong facts, because we know women can do those things. So the meaning was based on this wrong thing, and now judges can change that. But of course, that's nonsense. It wasn't based on wrong facts. It was all about values, obviously. It makes your values and facts, but mostly about. But once you let judges change things as facts change,

you're no longer originalist. But that's what they all say. That's what they all say. The reason they call themselves originalist is because it is a salient, effective political label. And that's that's all it is. And well, man, there's a lot to unpack there. Yeah. First of all, if you're going to use that, yeah, you can do that for anything. You could use that for guns and say, well, at the time that this was written, there was no such thing as self-defense. There were guns were muskets where gunpowder was flammable. You could do all that shit. Well, excuse me one second. So what you'd say is there were no AK-47.

If they knew how if they knew how powerful our guns were today, they would have been they would have they would have written something very different. Yeah. But but also there's a thing that strikes me with originalism that specifically comports with a conservative way of looking at the world, which is an interesting. You know, we just had Rick Pearlstein on the historian of conservatism in America. And, you know, it's something that I'm interested in, in understanding. And one of the things that always strikes me that you see as a through line and all conservative thought is, is always deferring to love, deferring to a text, deferring to these old people way back when wrote this and we are, but mere mortals who shall not question it, you know, and you see that in the Bible, for instance, like that's, you know, we're going to go back to the Bible and follow that. And the originalism as a belief system or a professed belief system aligns

with that same sort of, hey, we love old words written on a very old piece of paper. And, you know, those were given to us by God. And so it fits, it has an emotional alignment in addition to that, I think makes it work as a political label in the way that you say. That's why I wrote a book that was very well put. And that's exactly why I wrote a book called Originalism as Faith. So to many people, there is something reverential, holy about both the document and the time it was written. But if you think about that deeply, or not even deeply at all for a minute, you realize, wait a minute, slavery? Women were the property of their husbands? Women couldn't vote?

I mean, there's a lot of good things the founding fathers did. couldn't vote. I mean, there's a lot of good things the founding fathers did, but it's not a time to celebrate on the level of equality and those kinds of issues. So why they'd be reverential for that time period strikes me. I just reviewed the newest book on originals, the very newest one. I was asked to review for a law review. And it's really scary. It's written by a really smart guy. In fact, all these origins are smart, but they get blinded by what you just described really well. And in this book, he literally compares the Constitution to a religious document. I mean, doesn't make any bones about it. This country is not bound by the Bible or the Torah. We're bound by our Constitution.

We look at it in a reverential religious way. And I swear to God, he says this. And the way to human flourishing is through originalism. This isn't, this is a law professor talking. The way to get to virtue, the way to get to virtue is through originalism, by looking backward. And your point that that's by definition, anti-progressive is fair, but even worse than that, you're looking backward to a time when only white males could do stuff. It's crazy. Yeah. It, it, it to me is baffling. I was just ranting about this on my, on my Twitch stream, oddly enough. The idea that like the founding fathers were, you know, prophets who communed with God to write a perfect document is,

I don't understand how one believes that because, you know, like what, where does this belief come from that the founding fathers who wrote this document were smarter than anyone living today and that no one today can ever have a better idea than them. These were just at the, at that time, you know why they were so smart? They were like the only people in America who had educations. You know what I mean? Like they were the, they were the landed elite who had gone to good schools. Everybody else was just out in the forest chopping wood. So they made the rules and they made a bunch of great

decisions. But guess what? Like not only forget about the slavery and all that other stuff, because those arguments have been well-. Like human knowledge has progressed. Human thought has progressed. We have had hundreds of years of philosophy, political science, regular science, you know, all these things. And guess what? There are now millions of people in America who have excellent educations, people such as yourself. I don't put myself in that group, but, you know, many, many people do. And those people could come up with a good like if we were to write a new constitution right now,

I think we do a pretty good job. I think we would do a better job than them because we know fucking more than they did. And there's no reason to think that, you know, Hey, just cause we happen to have a statue of Thomas Jefferson today that he is because of that smarter than anyone who could possibly be alive on Earth. That's ridiculous to believe that. Well, actually, it's a dude. The argument you just made is the argument Thomas Jefferson made to everybody who would listen at the time. He he Jefferson actually wanted a new constitution.

I forget if it was every 12 years or every 18 years, but it was one of those two numbers. He thought it was ludicrous to think that what they were doing would, you know, be a sufficient charter for a government ongoing for 20 years, much less 200 years. Now, having said that, it is very important in democratic countries, although whether we're democracy anymore or not, it's an open question, but let's just bracket that. It is very important to settle some things, right? We need to know how many years the president serves. We need to know how people were elected to the Senate and the House. And we need to have that written down someplace and then only change it and then abide by it when we want to change it, unless we want to change it. But what is

completely crazy, and they knew this, the founding fathers knew this, is the idea that so the president has to be 35. Well, if the Messiah comes and he's 31, I'm sorry, she can't be president until we amend the Constitution. And judges should stop her from being president because judges have to enforce the clear language of the Constitution. But when we're talking about equal protection, due process, unreasonable searches and seizures, freedom of religion, all that stuff, they knew that those concepts would evolve over time. They just knew that those concepts would evolve over time. They just knew that. And the idea that we would decide today's controversial subjects based on what people thought 200 years ago is ludicrous. And by the way, it doesn't happen.

That's not how they decide cases. It's just how they say they decide, the originalists. It's how they say they decide cases. say they decide cases. There's a guy named David Strauss at University of Chicago who wrote a book who's famous for writing that what we have in this country is common law constitutionalism. And what that common law judges made stuff up, like products liability law. They just made it up and it was binding. The difference was legislatures by majority vote could change that common law if they didn't agree with it. What we have is a common law of constitutional law made by judges who make shit up. And we can't change that by majority vote. In fact, we can't change it at all, except for by constitutional amendment, which is, you know, almost impossible. So he doesn't say it's a bad thing. I think it's

a terrible thing. He doesn't say it's a bad thing, but he and I agree that is the correct descriptive account of the Supreme Court. All First Amendment, very complicated free speech law with a lot of rules and sub rules and sub sub rules is all stuff made up by the Supreme Court. The Constitution has one sentence about it. So what I've been trying to ask, I do a lot of public speaking to non-lawyers as well as lawyers, and all I ask is that we see the Supreme Court for what it is and then decide if we want it. See, I think there's a place for a third branch of government

to maybe have a veto over laws if one believes in checks and balances, separation of powers, and one is a kind of a libertarian type person. I have no problem with that. But don't pretend you're doing it based on a document written 200 years ago. You're doing it because that's what you want to do today. So what we have basically is we have a bunch of unelected judges who have life tenure. They have basically supreme power in our system and they do not they have a false a false profession that they do it based on the Constitution. But in fact, they're just enacting their policy preferences no matter what they say. That's what all justices have done, according to

you. We treat them like priests. They wear the robes. And that's why people get mad when you say that they've lied, because they were like, wait, hold on a second. This is the voice of God here. They're wearing a long robe. What are you talking about? And and we now have them almost we have the body almost completely controlled by one party, which represents a minority of the American electorate. So let's move to in the time we have left. What the fuck do we do about it? You're arguing that the Supreme Court should be weaker. That's what you said at the beginning. And what do you mean by that? And how could that even be accomplished? In February of 2016, I hosted the biggest conference I've ever hosted. And I've hosted many on all the ways the Supreme Court hides from the American people.

They don't let themselves be on TV. They don't have any ethical rules. It was called Invisible Justices. And it was as hard as i've ever worked in my life um and i promised my wife that that weekend we'd go i'll get to your point i promise i promised my wife we'd get to them we go to the mountains that weekend with the kids and i would turn my phone off and i would not respond and my wife works very hard too so i mean as hard as i do but we agreed this is going to be a vacation with the kids because i worked really hard so we go to the

mountains and we're playing uh scrabble with the kids because I work really hard. So we go to the mountains and we're playing Scrabble with the kids. And my wife's phone rings because my phone was off. And it was a text from a friend saying, what does Eric think about the news? And I was like, uh-oh, what news? Justice Scalia just died. And then I turn on my phone and Salon wants me to write a piece. You dive into the lake and grab your phone out of it and dry it off. Like we got, I got work to do.

I turned to my kids and I said, I am so, so sorry. But when a Supreme Court justice dies, I'm just on call. It's just one of those things. Yeah. So about a month later, I started writing pieces in the New York Times and Daily Beast and Huffington Post, eventually found into a scholarly law review article where I said, we have eight justices, four Republicans, four Democrats. One of the liberals, Justice Breyer, sometimes votes with the conservatives on criminal

cases. One of the conservatives, Justice Kennedy, sometimes votes on gay rights cases and other cases with the liberals. But they're basically for conservatives, for liberals. Freeze it right here for the rest of time. And we always have to have an even number of seats. And then I built in a statutory way to get independent in there if we have an independent. But the idea was with four Republicans and four Democrats, every or six of six and eight of eight, with four Republicans and four Democrats, every or six of six and eight of eight, whatever, every decision has to have one Democrat voting with Republican or one Republican voting with a Democrat, every decision. They also would compromise more. They would and and they would issue narrower decisions, they would become weaker. Now, I'm a member of something called the American Constitution Society. I'm on its board. It's very progressive. It is the very, very poor step sister brother of

the Federalist Society, but it's the same kind of organization just with much less money. And their slogan at the time, the Merrick Garland thing was going on, was we need nine. My slogan was eight is great. And they didn't like me, or eight is enough, great. And they didn't like me. And they didn't like me or eight is enough, actually. And they didn't like me for a long time. I mean, they didn't not like me, but they kind of excommunicated me for a while. So the point I want the whole long story was in one point. If Joe Biden wins, please, God, and if Dems take the Senate, please God. And if Dems take the Senate, they should not pack the court. They should weaken the court and they should tell the Republicans, look, either you come with us on this or we're going to, we're going to just put like 17 Democrats on whatever, because they have the power to do

that. But that's not what we want to do. What we want to do is figure out a way to A, take away life tenure, which we can do without passing a constitutional amendment. Really? I thought it took an amendment. Nope. We can tell the justices, okay, you can be a Supreme Court justice for 18 years, and then you go work on the lower courts. Or not work at all. We'll pay you for life.

Oh, rotating. Or we'll just pay you for life. You can do something else. Not another job, but you can – but whatever it is, I a lot of there's division of authority on this. But the overwhelm. But I think the majority view is that would not require a constitutional amendment. My point here is the Democrats should go to the American people and say, our motivation here is not to make the court the new Warren court. We're not going to make a new

Democratic progressive court. We could. We could. We have the power. We could add 10 seats tomorrow and put 10 Democrats on. We could do that. That's not what we're going to do. Instead, we're going to try to work with the Republicans for a very short period of time if they come along, and we're going to weaken the court through all these kind of proposals. So what we're presenting to the American people is not court packing, it's court weakening and court balancing. That's what we should do. Wow. And so what does that weakening look like? You talked about changing the makeup of the court term limits or by another name, or this four and four plan that you were talking about. But let's just say, let's keep it at nine and let's weaken it. What does that look

like? So that guy I told you about earlier, Christopher Sprigman, who came to constitutional law late, looked at it and went, oh, my God, this is a can I can I really curse on the show? Like, yeah, say whatever you want. This is fucking stupid. He said, curse on this show like yes say whatever you want this is fucking stupid he said they're just they're just making stuff up this is ridiculous uh and um so so chris has an art as a big scholarly article coming out shortly and we're gonna have we're gonna have an article together like in salon or someplace um before that but um the constitution says um that there shall be one supreme court and such inferior lower courts as the Congress may from time to time ordain and establish. And the Supreme Court, which there has to be a Supreme Court, has original jurisdiction, meaning the case comes to it the first time, over a very narrow category of cases. And then appellate jurisdiction with such exceptions

and under such regulations as the Congress shall make. So what he is arguing, and I agree with him, is Congress could pass a law tomorrow saying, sorry, court, you have no jurisdiction over whatever class of cases you want to talk about. Threaten them with that. Threaten them, really threaten them with that. Or do it. For example, I think if we had a Dem House, a Dem Senate, and a Dem President, we could maybe pass meaningful campaign finance reform that would likely violate Citizens United. But then you put in the end of that, at the end of that statute, the Supreme Court has

no appellate jurisdiction to hear any case involving, or the federal courts have no jurisdiction to any case involving this statute. I think that's fully constitutional. And this is a measure that, according to you, because the problem with court packing, people say slippery slope, then the Republicans come in, they do the same thing. Yes. But according to you, hey, if Republicans want to come in later and pass their own laws and say the court has no jurisdiction over this, that's good because your belief is that the Supreme Court should have less jurisdiction overall. So the slippery slope is a slippery slope to heaven. Yes. Yes. And it's even, and there's one other larger point involving our country's

politics in general. We have a Senate where Wyoming has as much power as California. That's insane. That's freaking fucking insane. In fact, the Supreme Court ruled in 1963, again, making stuff up, that one person, one, everybody thinks one person, one vote is in the Constitution. It's not. The Supreme Court, the Supreme Court made it up. But the irony, I think it's a good rule, but they made it up. But the irony is what they require of all town, state and federal legislatures, other than the Senate, one person, one vote, is violated by the Senate, which doesn't have one person, one vote. So, you know, that's just crazy. In addition, I think the Electoral College is crazy. So what I'm trying to get to is the Supreme Court is one of many anti-majoritarian measures

the founding fathers put in because they didn't want majority rule. They want to keep their property. They were afraid of, you know, so so we need much more majority rule in this country. And the less the Supreme Court does, the more majority rule we have. Now, someone will say, hold on, you know, that we've got the segregation and and same sex marriage and all those other issues. And I'll say, well, the court's not been 100% terrible. I'm not saying that. I'm saying it's been 80% terrible. And I can document that. And the 20% is the same sex marriage decision. You know, I think that's absolutely justified by the equal protection clause. There's Brown. There's the case saying that women couldn't be excluded from VMI. There's Brown. There's the case saying that women couldn't be excluded from VMI.

That's really about it. Like all the other thousands of laws the court has struck down, they shouldn't have struck down because reasonable people could disagree about their validity. And if reasonable people can disagree, then we should go back to, of all people, when we eventually close this, or I guess we're about to close it, we should end with Alexander Hamilton. We really should. Not because we were bound by him. That's not the reason. Because he was operating in what we call a veil of ignorance. He was writing about the Supreme Court before there was a Supreme Court, when the Constitution left Philadelphia in 1787 and went to the states to be ratified. And there were people who were against the Constitution, a lot of people. And one of the objections, a guy named Brutus wrote this down a lot. One of the objections, excuse me, Plubius, Plubius.

One of the objections was, are you kidding me? You're giving judges the power to veto laws? Are you out of your mind? Giving judges, giving anyone the power to veto is giving them the ultimate power. No judge in history has ever done this. Are you crazy? Federalist Paper No. 78. The Federalist Papers were essays written by Hamilton, Madison, and John Jay, three pretty famous people, about what the Constitution meant. And he said to these people, sit down, relax, take a breath. Okay, he didn't say that. What he said was, don't worry about judges being too powerful for two reasons. First, they have neither purse nor sword, meaning they have no money and they have no military. So if the executive branch or the people hate what they do, they won't follow the court,

which you and I talked about earlier. But second, more importantly, he said, they will only strike down laws when there's an irreconcilable variance. That's his expression, irreconcilable variance between a law and the Constitution. And I agree with that. If there's a 33-year-old president, no, sorry, amend the Constitution. But 99.5% of the laws the court has struck down do not have an irreconcilable variance with the Constitution. We should go back to that system. And he did that not knowing who would be on the court. In other words, he was operating under a veil of political ignorance when he said

that. He was right. He was right. So we should. So in order to fix the court, we should weaken it such that it is only able to take those sorts of very limited events into account. And then everything else when we're talking about desegregation equal or not desegregation, not desegregation, I'm sorry, bad example, because that's the one that one of the ones you agree with. But 99 percent of what the court is covering, which is policy differences that we can have good faith arguments about, we should be doing that through the democratically elected branches of government, uh, like the, such as the legislature. And we should work to make those more democratic at the same time and less, uh, fucked up. I can't say it any better. Well, Eric, I thank you so much for coming on here. You give a lot of, you gave a lot of clarity

to this. You made me see the court in a different way. And I love, I just love, I just love how strong your take on all this is. I really appreciate you being here. It's my pleasure. And thanks for a different way. And I love, I just love, I just love how strong your take on all this is. I really appreciate you being here. It's my pleasure. And thanks for a great conversation. Well, thank you once again to Eric Siegel for coming on the show. I hope you love that conversation as much as I did. If you did, please, please, please leave us a rating or review wherever you listen to the podcast. If that's you, if you're listening to the podcast, you like this episode, you've never left us a rating or review before. Please just pop open that app and give us give us a couple of stars, baby.

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