No Lie with Brian Tyler Cohen - The insidious reason Tucker Carlson supports the Canadian trucker protest

Episode Date: February 13, 2022

Canadian truckers hold a protest against vaccine mandates, as Tucker Carlson and other Republicans get involved. Brian interviews Al Franken about whether he’d run again for office, how much the Democrats should focus on January 6 ahead of midterms, and how much messaging should be taken into consideration when Democrats run candidates. And Michigan law professor Leah Litman joins to discuss the Supreme Court blocking Alabama from creating a second Black majority district and the raft of bounty laws sprouting up across the country after the court allowed Texas’ bounty law to stand. Donate to the "Don't Be A Mitch" fund: https://secure.actblue.com/donate/dontbeamitchShop merch: https://briantylercohen.com/shopYouTube: https://www.youtube.com/user/briantylercohenTwitter: https://twitter.com/briantylercohenFacebook: https://www.facebook.com/briantylercohenInstagram: https://www.instagram.com/briantylercohenPatreon: https://www.patreon.com/briantylercohenNewsletter: https://www.briantylercohen.com/sign-upWritten by Brian Tyler CohenProduced by Sam GraberRecorded in Los Angeles, CASee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Today we're going to talk about the Canadian trucker protest, Tucker Carlson and other Republicans' involvement, and the insidious reason that the right is supporting it. I interview Al Frank in about whether he'd run again for office, how much the Democrats should focus on January 6th ahead of midterms, and how much messaging should be taken into consideration when Democrats were on candidates. And I'm joined by Michigan Law Professor Leah Lippman to discuss the Supreme Court blocking Alabama from creating a second black majority district, and the raft of bounty law sprouting up across the country after the court allowed the Texas Bounty Law to stand.

I'm Brian Tyler Cohen, and you're listening to No Lie. So I'm sure you've heard a little about the Canadian trucker protest. And if you watch Fox News, I'm sure you've heard a lot about the Canadian trucker protest. So basically a faction of right-wing Canadian truckers who oppose Canada's vaccine mandates have used their semis to create roadblocks at a bunch of U.S. Canada border points in Ontario, Manitoba, and Alberta. And in Ontario, the ambassador bridge alone is responsible for 27% of trade between the U.S. and Canada. That's the bridge that connects Windsor, Ontario, to Detroit, Michigan. And it's already having a huge impact on the auto industry, which has

started cutting shifts because of a shortage of supplies. And those delays are costing as much as $300 million a day in economic damage. It's also serving as a model for protest, not only at other U.S. Canada border points, but around the world, where just a few truckers are basically holding an already fragile supply chain hostage so that they could exact concessions

on public health during a pandemic. Now, they're calling themselves the freedom convoy because, because of course they are, right? Like, it's always the people who think that they're entitled to some unmitigated, absolute degree of freedom,

and that if they don't have their demands met, then they want to burn the whole place down. Like, you can live in a free country like the U.S. or Canada, that doesn't mean that none of the rules apply to you. Like, we have laws. You wear seatbelts and cars. You wear pants in public. You can't punch someone in the face. That doesn't mean you've lost your freedom. It means you're part of a functional society, which doesn't seem to have gotten through to these, these quote unquote patriots who are throwing temper tantrums because they're not getting their way. Their way being no safety measures in the

middle of a pandemic that's already killed almost six million people worldwide. But I should note that it's not all truckers who support this. It's not even a majority of truckers who support this. They're basically a fringe group that isn't even popular. In Canada, all of 17% strongly support what the Freedom Convoy is doing. Meanwhile, two-thirds of Canadians oppose them. And the vaccine rules and the safety measures that they're protesting are, you know, unsurprisingly, overwhelmingly popular in Canada. Even in Alberta, which is probably the most conservative province, elected officials have implemented safety measures like vaccine passports, school mask mandates, bans on private indoor gatherings for more than 10 people.

Those were implemented by their conservative officials. Even the union that represents most long-haul truck drivers in Canada criticize the protest. They argue that these blockades are neither a safe nor effective policy. And they're right. Probably not going to gain a ton of sympathy destroying multinational supply chains. But I'll tell you who does support it, people like Tucker Carlson. far, that blockade has forced the Ford Motor Company to shut down one of its manufacturing plants and to operate another plant with a skeleton crew. Toyota says it won't be able to manufacture

vehicles in Ontario for the rest of the week. General Motors has canceled multiple shifts at its plant in Lansing, Michigan due to park shortages. So this protest is less than a week old and already it is causing deep pain to at least one global industry. It's hard to state the historical significance of what we're watching right here. The Canadian trucker convoy is the single most successful human rights protest in a generation. If nothing else, it has been a very useful reminder to our entitled ruling class. The working class men can be pushed, but only so far. When they push back, it hurts. It turns out that truck drivers are more important to a country's future than, say, diversity consultants or even MSNBC contributors.

Who knew? The White House has no interest. in knowing. According to the Associated Press tonight, the Biden administration is, quote, urging the Trudeau government to, quote, use its federal powers to stop this protest, to end the trucker's protest. In other words, crush them by force. And there is a reason that the far right and people like Tucker Carlson are such big fans of this protest. It's because it encompasses two things that help them politically. One is opposition to vaccine mandates, which, of course, we're all well aware of, and the other is that it's adding further strain to a supply chain that's already being tested by the pandemic, meaning Republicans get to continue wailing about

high prices and inflation. And yet, when Republicans are asked about solutions to these problems, problems, again, that they fall over themselves complaining about, when they ask for solutions, they're just not interested. Like, think about it, what's the solution to COVID? Getting everyone vaccinated. That's it. That's the solution. COVID won't disappear until enough people are vaccinated. But the most vaccine skeptical people are the Republicans. And so the people complaining about COVID are the same ones helping prolong it. What about inflation in high prices? Okay, well, Democrats introduced the America Competes Act, which would help fund the domestic semiconductor chip industry. That would help ease one of the

worst drivers of inflation. Every Republican but one voted against it. Democrats introduced Billback Better, which 17 Nobel Prize winning economists said would ease longer term inflationary pressures. Every single Republican voted against that. And now you have this Canadian trucker protest, which is already threatening to drive up the cost of goods, which is already shuddering auto factories, which, by the way, are the number one driver of inflation in this country. And what are Republicans doing? They're cheering it on. Tucker, Ron DeSantis, Ken Paxton, Republican House, Senate, gubernatorial candidates. They all wail about how bad it is that prices are going up. And yet when there is an obvious, visible example of something that will

directly cause prices to rise, they cheer it on. And so maybe. And I'm just, and I'm just spitball in here. Maybe Republicans in Fox News want as much inflation as possible and to block any efforts to ease it because high inflation and high prices gives them something to complain about on an endless loop because that's what they do. They don't care what needs to be destroyed so long as they can exploit it for their own personal gain. They don't want to govern. They don't want to fix anything. They don't want to make their constituents' lives better. They just want to rule. That's why they're there. Look at Greg Abbott. 700 Texans died in the last cold front. Five million left without power, and instead of fixing it, they spent their political capital in Texas

passing a voter suppression law, SB1, 1, the top priority, in the same way that HR1 was the congressional Democrats' top priority. Their top priority in Texas was entrenching their own power and not even bothering to pass a real bill reforming the power grid. Instead, they passed some bill with a loophole that allowed natural gas companies to simply opt out. So look, if Republicans want to complain, that's fine. I get it. That's their prerogative. They're the party out of power, but once you start blocking the solutions, once you actively work to ensure those problems won't get fixed, once you start cheering on the causes of those problems, then you've given the game away. So look for the people trying to fix things, not the ones trying to break

them. Next up is my interview with Al Franken. Today we have my good friend and long-time guest of the podcast, Al Franken. Thanks so much for coming back on. You bet. My pleasure. Thanks for ride me. So this past week, we both spoke with Jamie Rask, and he was our guest for both of our episodes coming out this past Sunday. In his book, Unthinkable Trauma Truth and the Trials of American Democracy, he really went deep into the events of January 6th and how much worse it was than we all even knew, how much closer we were to losing democracy than we otherwise thought. And as I was reading his book, I couldn't help but be floored by not only what I was reading, but also floored at basically how this is a non-issue for so many people. Like, we were in

inches away from a coup in the United States. So as a former senator, do you think that the Congress and Democrats more broadly are doing enough to drive home the depravity and the gravity of what happened on that day and how close we were to actually losing our democracy? Well, I do think that the Select Committee, January 6th, is going to be doing that work. And especially when they have hearings. We obviously have a very divided country, and we have these real nut cases on the right. I mean, you know, that this was legitimate political discourse is what the R&C called it almost unanimously.

I mean, that's crazy. And, you know, I mean, Congressman Raskin talked about broken vertebra, the cops had their eyes gouged out. Broken fingers, broken fingers. Yeah. Broken bird brain, traumatic brain injury. That's not, you know, legitimate. Political discourse, yeah.

How can you, how can, you can't even make fun of how absurd it is. You know, I know that there are a lot of highly paid political consultants who tell us constantly that the only thing the American people care about is the cost of gas and milk prices, right? But obviously January 6th is a major issue for me. I'm sure it's a major issue for you. I'm sure it's a major issue for people watching and listening to this. We may be the outliers.

I'm not sure. But how much do you think that Democrats should be focusing on January 6th as we head into midterms? Well, I do think this was on force error by the Republican National Committee. Because I do actually, you know, obviously the Republican Party is now in the thrall of this psychopath. And it's just a nutcase party. And I guess they're fine with what they say. I think they realized they screwed up, right? I think it's a great message that they're nuts and that they're scary.

And I don't think it's scary how many Republican base is with him and with this. But I don't, you know, I don't think that's 60% or 65% of America. I agree. And so I think it helps us tremendously. It's sad, but it does. Yeah. If you were running, what percent of your focus would be spent on the events of January 6 versus other elements of campaigning? What would you focus on if you were running?

Well, you know, you can do both. You can walk and chew gum at the same time. And both are incredibly important. The threat to our democracy is an existential one and is one that we should be talking about all the time and has to do with voter suppression and Republicans is trying to take over the administration of elections we should be talking about that we should i always think scorn and ridicule is is great and i definitely use that um in in my campaigns and in a certain way uh and in my books and in what i do in my podcast etc but i also think we should be talking about universal pre-k child care allowing the governments negotiate lower drug price

All that stuff, that's the shame that, and I think we should put those issues each on the floor and just one after another. And so the American people, because the press, it likes to play inside baseball and horse race. So the American people haven't seen what's in buildback better, even though it's been hanging out there forever. but the press just talks about mansion and cinema and right is it 3.5 trillion or is it 1.5 trillion or is it 1.75 make it come to a vote on each one of those and the American people are for these things overwhelmingly and that's I think how we win this. I think we need to do that and as soon as possible in the roll up to the election. You had mentioned ridicule as

one of something that you have a history of focusing on. I want to get your take on these anti-critical race theory laws. I know, for example, that Ron DeSantis has come out in favor of the Stop Woke Act in Florida. We're seeing similar legislation spread up in states across the country as part of this whole culture

war focus. Well, yeah, this is that parents can sue teachers if the teacher, anything anything the teacher teaches is causing discomfort. Right.

The anti-safe space Republicans don't want, don't want anybody to experience any discomfort. If you need an example of the hypocrisy there. Oh, yeah, it's pretty amazing. And, you know, how do you teach American history if you're a teacher in Florida then? I mean, do you go, is it like, okay, now in this country for the first two, 250 years, there were people that worked for free for other people. And, PJ, no, no, it wasn't like your unpaid internship with your dad's law firm. That was more voluntary.

This was, this was involuntary. Less voluntary. And it was, yeah, and it was a lot tougher. Then that went on for about 250 years. and then we had a war that ended it. And then it got better for a while. That was called Reconstruction.

And then it got worse. It got worse after that end. And then kind of got slightly better after the... Ashley, why are you crying? I mean, I don't... Yeah. It's the entire country. It's the entire history of this country.

There is literally no other way to teach it without focusing on these things that might, God forbid, make somebody uncomfortable and and this whole thing about critical race theory is it's just a fraud it's a complete fraud their critical race theory is not taught in you know elementary school it's not taught in junior high is not taught in high school it's not done college it's a graduate level car it's a law school course and they know it just a big lie and they don't mind doing that's what what they do and young and said the day i become governor we're going to end critical race theory

being taught in ours it's not being taught you know it i mean he knows it uh it's it's ugly it's just ugly and of course people don't know our history people don't know that redlining was started by the f h a and during the new deal and that you know when guys got back from World War II and Black soldiers got back from World War II. They couldn't use the GI Bill to buy a home because they're redlined. I had Heather McGee on the other day on my podcast, and she told me something which I had to look it up after she told me. I trust her. She's a scholar of economists, but that the average black family headed by a college grader, graduate has less wealth than the average white family headed by a high school dropout.

So, yeah, there's systemic racism in our country, and it's been going on for our entire history, and we have to teach it. And, you know, mainly we're doing our kids a disservice, right? DeSantis actually invoked Martin Luther King Jr. while he was announcing his support for the bill. Oh, yeah, it's the judged by the character. Yeah, yeah, exactly. Content of your character.

That is so bogus. Invoking Martin Luther King on behalf of a bill that's intention is to stop kids from learning about racial justice. Well, not only that, but that is used by Republicans all the time, which is, I have a dream, you know, my children will be judged by the kind.

That was in the, I have a dream speech in 1963. We still had segregation. in the south this is pre the voting rights bill this is and he was that whole speech if you you're maybe too young i remember the damn speech and of course we can read it every day you know uh but that was about uh that there was we're here to collect a promissory note a bad check written to uh blacks in this country and that we are owed and that was very clear and this was he was saying I have a dream and this was his dream but the dream was way off we weren't there and to get there we had to deal with this stuff yeah and that when they do that that oh yeah mark

luther king said that i would you know that people should be judged by the content of their character not the color of their skin therefore we we shouldn't discuss our history and we shouldn't have affirmative action. Martin Luther King was for affirmative action. Of course, of course. Yeah. But, you know, I think this is actually part of a bigger issue that Democrats face contending with stuff like critical race theory.

And that's that when it comes to messaging, Democrats are A, always on the defense, you know, always responding to the prevailing narrative put out by Republicans. And B, even when they do control the messaging, they're very bad at it. We are. You had a great joke where you said that the prototypical Democratic bumper sticker would... Well, I'll do the joke. All our bumper stickers end with continued on next bumper sticker. Right, yeah.

And yeah, it's, we're just not good at it. You know, it's easy to point out that we're bad at it. You know, I'm not, you know, Frank Luntz came up with the death tax. That's brilliant, I guess, you know. we used to have every the Senate we would do a Senate retreat a Democratic Senate retreat every year and we go to some conference center or something for the weekend and it would be it was always we were focusing on message and most of these things were really not not very helpful I remember one year we had these two brothers who wrote a book called made to stick made to stick

In the first night, they gave a presentation on their book, and it was about messaging. And so they did their presentation, and I went up to him afterwards, and I said, oh, I really got out a lot out of that, your presentation. What was the name of the book again? And they said, made the stick. I said, uh-huh, made the stick? Yes, made the stick. I go, oh, okay, okay. So the next day, they were on a panel discussion

and for during a breakfast. And so I was getting my scrambled eggs and one of the brothers was getting his scrambled eggs and I said, do them. Really looking forward to this panel discussion. What was the name of your book again? And he said, made to stick. Made the stick.

I went, uh-huh. Make it stick? No, no, no. to stick. I go, oh, made to stick. You go like, yes. So they do the presentation or the panel discussion, and I come up to him afterwards, the two brothers.

I said, that was really very interesting. What was the name of the book again? And I must have done this like 10 times. Yeah. During the weekend. I remember coming down that evening and saying like, you know,

I tried to buy your book on line. And I go, well, it's on Amazon. I went, no, I put it in, make it stick. And I went, it's made to stick. I got, oh, made to stick? Yes. So, you know, for a joke to stick, you got to get it. Yeah. It's basically what the lesson from that was. But we're just terrible. Well, look, you know, when Democrats are largely legislators, right, as opposed to Republicans, who focus on messaging. Madison Cawthorne came into office and expressly said that his focus was communications and not legislation, which is great if your job is to govern. Should messaging and charisma be the primary factors that Democrats take into consideration when we're running

candidates? No, I mean, but you want people to win. But you can do both. You know, you can be And by messaging, I don't mean making a great bumper sticker or making a great slogan. I just mean being able to speak in a compelling way in a way that makes sense and a way that people understand in a way that people are, you know, drawn to you and interested and are and that you're convincing and that you. Something that's interesting is we look at what works on the right and we know what works on the right because Fox News, they will, they do two things. Well, they lie and then they repeat it over and over and over and over and over again. And these lawmakers do the same thing. It feels like when you watch these Republicans come out, it feels like they went to the morning meeting and came out with their talking points and they all are completely on message

and they just pepper away with the same exact message over and over and over and over again. Democrats generally don't like to do that because it's exhausting and not a very compelling way to do this, but at the same time, the Republican Party has build the wall. has, you know, all of their, all of their three-forward bumper stickers, basically, that everybody knows. Is this a strategy that Democrats should take, where it's just simple repetition over and over and over again, to the point, to a maddening degree, but at the same time, does it not work? I still think that we can be compelling when we speak and that we can message in a better

way without just endlessly repeating things. So you're right. We like to legislate. We like to. The Republican Party is for nothing right now. There's nothing they're for. They have, you know, I mean, famously, there was no platform in the 2020. And they don't have a platform for 2022.

They do, they don't care about, they don't have any ideas. And it's sort of easy to be for nothing, I guess. You just can be brain dead. But they're like against everything. That takes some effort. And they, they, it's really sad. We have a party now that is unlike any, they're an autocratic party. You know, and they also have all this money behind them.

They have Fox News. It's willing to do exactly what you're saying. Constantly lie. But I, I really believe if we put this legislation out there, if people see what it is, I would love to debate it. I would love to change the rules of the filibuster to modify it to have a talking filibuster so that you debate this stuff.

We should, you know, obviously we have two senators who won't do that. We did have a more promising redistricting cycle than we had anticipated. You know, granted a lot of what happens in midterms is going to depend on Biden's approval rating and what legislation we are able to put out. But I don't know that we're in the same

All Hope is Lost position that we were in six months ago. Well, I don't think so either. It's a long way we're going to start seeing these infrastructure projects start, at least. People will see them beginning. It'll be interesting to see how many Republicans in the House who voted against the infrastructure bill who'll be at the groundbreakings. Yeah. Well, you know what?

They'll be happy to tweet about it and talk about it in their, and their town hall is just like they've already started doing. And that's before any ground was broken. Just wait until these bridges start to go up and these roads start to get paved to see Republicans falling over themselves. You know, I was at a groundbreaking early on for an extension of a highway.

And I got to the Senate late, as you remember, in 2009. So I didn't vote for the stimulus package. So I was at this event. There were a lot of mayors, you know, local mayors who was just county executives. et cetera. But Amy was there who voted for it. And I was there. But also Eric Paulson, the Republican Congressman from the third district, was there. And he voted against it. So when Amy spoke first and we were wearing, it was like this hard hats and shovel event, you know, one of those

things. So I went up to speak and I said, well, I have to admit, I did not vote for the stimulus package i got there late so we really should just thank uh the members of congress who who are here who voted for it so let me see that would be see amy and oh not eric eric voted against it right you voted against the stimulus thing why i don't know exactly why eric's here huh did he ever respond to you He was kind of not a very dynamic. He was a tool. Yeah. He was a tool.

And he didn't have the wherewithal to respond. And also, he was there on very serious. Not much of a response you can give anyway to that. No. He shouldn't have been there. I wanted to shame him for being there. Speaking of the filibuster, we do have the opportunity in the Senate. Also, we have a lot of close races coming up.

We have Senate races that are perfectly winnable in places like Wisconsin and Pennsylvania, especially. And I know you've been asked this as well, and I apologize if this question is annoying at this point. But do you have any desire at any point to run again for office? Well, you know, I'm young. I'm 70. By today's standards. And, you know, Chuck Grassley is running for election. He's 87.

Right. what I found interesting was that he kind of condemned Trump right after January 6th, nevertheless embraced him in Iowa a couple, like a month ago. And I just thought, like, huh, if you're not going to stand up for principle and risk your political career when you're 87, you're probably not ever going to do it. And so I don't know. I love being in the Senate. I can tell you that.

And I, you know, I follow it all the time. And it's frustrating to follow it and to watch some of the hearings and not see the kind. You know, I was pretty good at questioning people. Yeah. So I would, yeah, I'm considering doing it again, but sometimes. Well, you know, I do know that you, that you missed the Senate. And we've spoken about that on previous episodes and previous interviews. Obviously, though, comedy has always been a huge part of your life.

When you're on tour like you are right now, does that fill some of that void for you? Do you feel like you're back where you belong? Oh, yeah. I love, you know, I was part of a comedy team, Franken and Davis, way back. You may be too young. But we were two of the original S&L writers, and we went to high school together, and we were a comedy team. And we used to tour as a team. but I never did it as a single stand-up.

And I really admire great stand-ups. You know, I'm a huge fan of so many actually stand-ups today, but also people like Carlin and Pryor and those people. And so about, I started to go down to the comedy cellar in the village and doing stand-up. And, you know, and I've been on tour. I've done, I did 15 cities last fall. And I'm about to start where I'm going to Bethlehem, PA next weekend and also Terrytown, New York.

And I have 16 more gigs ahead of me. And I really love it. The show, it's just fun. And I love it as an art form. And I very much admire. some of the great stand-ups I'm seeing today. Has there been a moment since you've been on tour that was especially memorable for you? Every laugh.

Or anybody that you've spoken with or met or anything like that that's been especially memorable. Well, yeah, I'm seeing people around the country or my friends are showing up. But I really just, there's something about being from an audience and, you know, the electricity of doing it and hearing these huge laughs. And my focus, there's a lot about politics in it, a lot about my time in the Senate, but it's stand-up comedy. It's about laughs. And so I'm very, I've been very happy with it, actually. Yeah. How do you reconcile these two competing personas for you? Because I know that for a few years in the Senate, You were afraid to make anybody laugh because it would kind of undermine the gravitas of being a senator.

I wanted people to understand that I was there to do my job. And I was. So there was that. And then once I, so my first term, I was very, you know, my team told me, don't be funny. Don't be funny on the floor. Don't be funny in hearings. I could be funny in the caucus lunch. And I could be funny on the floor just talking to my colleagues.

colleagues. I was really, we had an unbelievably great time in her office. I think I had the greatest continuity of staff because we had a lot of fun and also got a tremendous amount done. Yeah, but once I won re-election, I'd tell this story about, so I won re-election and so I said, okay, come on now. And I was kind of, the first time I won by 312 votes, this time I won by well over 200,000. So I felt like, Okay, come on, I've proven it. It makes me funny. So after Obergefeld came out and the Supreme Court decision legalizing same-gender marriage nationwide, I said, I'm going to write the press release.

So I wrote Senator Al Franken, Democrat of Minnesota, congratulated the Supreme Court today on legalizing. same gender marriage nationwide, but called Justice and then Scalia's dissent, quote, very gay. Yeah. And my team went, no. And I went, oh, come on, I won. I get to do that. I went, no, you can't do it. And I went, oh, geez.

And did you? So they squashed it? No, they just, I mean, you know, I basically would give in. to my community because they had done a really good job and I just felt like okay it's not worth it right I suppose I had the authority to say yes you have to do it yeah yeah I suppose so Al where can work in people watching listening find out more about the tour and go to al franken dot com if you can remember that al frankin dot com and they have the tour schedule and they can see if I'm coming to your community, if you're your city.

Great. And of course, a podcast and the YouTube channel, I would highly recommend. So, Al, with that said, thank you so much for taking the time again. I appreciate it. Always a pleasure. Thank you for doing what you do and thank you for your friendship. Thanks, Al. You bet.

Okay, now we've got the Michigan Law School professor and co-host of the strict scrutiny podcast, Leah Lipman. Thanks so much for coming on. Thanks for having me. So we had a fleeting bit of good news when a federal judge had ruled that Alabama needed a second black majority district, and that was only to see the Supreme Court then block the creation of that district. Now, black voters in Alabama are over a quarter of the state's population, and yet, as it stands right now, they have about 15% representation in Congress with just one majority

black district. What was the Supreme Court's justification for this, and does it hold any water? The problem is, is we don't entirely know what the Supreme Court's justification is for blocking the decision that enjoined Alabama's new legislative maps, which they drew on the basis of the 2020 census. We know that there were five of the Republican appointed justices who would have blocked the decision, but only two of them actually explained their votes. Justice Kavanaugh wrote a concurrence, which was joined by Justice Alito. The only ground that Justice Kavanaugh gave for putting on hold the lower court decision was to say that it ran the risk of changing the rules on an election to close to the eve of an election.

That makes no sense applied to these facts. We are not on the eve of an election. The primaries here are not until May. The plaintiffs in these cases challenged the new maps within days of them being drawn. And the principle that Justice Kavanaugh invoked is designed for circumstances where states already have in place a set of rules that courts are tinkering with. Here, however, Alabama had to draw a new map. It's not like there were old maps in place, which everyone was going to be sticking with. Alabama had to draw a new map after the 2020 census. And so the principal Justice Kavanaugh invoked makes no sense on these facts. What about the fact that we also don't have maps in a number of states as it stands right now. We don't have a selected map in Florida. The maps in Texas and Georgia

are still undergoing litigation. So it's not like these maps in Alabama were the last ones out the gate and we're just waiting on these, you know, these very last maps to come through. We still have a number of states around the country that don't have their maps in place for the midterm elections. That's exactly right. And there are some state Supreme Court decisions that have invalidated some of the maps that have been drawn. So the Ohio Supreme Court, for example, directed the legislature to draw a new map. So it's definitely not unheard of for legislatures to still be drawing maps at this point. And in fact, Alabama put together this map within the span of a few days. And the district court gave them two weeks to draw a new set of maps, which is a lot longer

than they took to draw the version that diluted the votes of Black Alabamians. Right. Well, I guess more broadly, it kind of begs this question. How does the court reconcile this desperate need for it to be considered a nonpartisan entity, you know, I know that's purportedly been a priority for people like John Roberts and Justice Breyer, while simultaneously appearing so obviously as a partisan entity. Like, like, these things are so glaringly contradictory. Are we really just all pretending here that this, that this is something that it isn't, that the Supreme Court is still some, you know, apolitical entity in our political system? I think one way you can understand what the conservative justices or the Republican

appointed justices are doing, is they are demanding to be treated with respect, even when they are not acting respectably. I mean, Justice Kavanaugh wrote this concurrence saying, you know, watch me try to be reasonable and invoke these legal principles to explain why we can't ticker with the rules of an election on the even of an election. But if you even pause for a second to think about the actual facts of the case, it's clear that his reasons just make no sense at all. I mean, at one point in the opinion he suggests it's not clear to him whether the plaintiffs in the case or the state are ultimately going to prevail. But if that's right, that he just admitted the state failed to make the required showing to put the lower court decision on hold. Because you're

only supposed to put those lower court decisions on hold if you can prove they were necessarily wrong. And so his opinion is just all over the place. It's full of gobbledygook and nonsense and is pretty lawless. And so how does that work for somebody like you who has dedicated her life to studying this? And usually, you know, you would presume that these Supreme Court justices that the top of their field, like that they have not only a good understanding, but a mastery of this kind of stuff and that their arguments would be airtight. And yet these don't hold up to even the mildest of scrutiny. How does, how does, how does, how does, how does, how does someone like you deal with that? I think it's important to understand that, um, for a while, uh, some

politicians have not been selecting, let's say, the best people, um, for Supreme Court justices. And I think that's important to understand when we're thinking about conversations, about who is going to replace Justice Breyer. The idea that, you know, the Supreme Court justices who were in the majority pausing this decision, in joining Alabama's maps are somehow these super geniuses who are super qualified and have all of the best qualifications and yet are utterly incapable of following the law or at least they're unwilling to do so should tell us something that maybe that's not how we should be selecting justices or maybe we shouldn't be listening to the people who insisted those were the

most justices or the most qualified justices for the positions. It's very disappointing as someone who studies law to see the court act in such a lawless fashion. But I also think it's important to communicate to people that that's what's going on. While we're on the topic of Justice Breyer, I know that a few weeks ago he announced his retirement. Who would you like to see take his place? Do you have a personal favorite? There's so many wonderful qualified nominees. If I was picking, my top candidates would probably be Cheryl and Eiffel, the outgoing president and director counsel of the NAACP Legal Defense Fund. My strict scrutiny coach, host, Melissa Marie, an award-winning professor at New York University School of Law, the former

interim dean of Berkeley Law. I'm also a big fan of Judge Katanji Brown Jackson on the D.C. Circuit, or Justice Leonda Kruger on the California Supreme Court. I would also include people who aren't even on the president's short list. So Michelle Goodwin, who's a chancellor's professor at University of California Irvine, I think would be a terrific Supreme Court justice. There are so many, but there are five quick names. Now, what do you think of these Republican attempts to decry Biden's choice of a black woman as racist or reverse racist or whatever tortured rationale they're going with here? They're utterly hypocritical, and they fail to appreciate how Supreme Court justices have been

selected thus far. Ronald Reagan promised to appoint a woman as a Supreme Court justice when he was on the campaign trail, and he did so. President Trump said one of the reasons he wanted to pick Amy Coney Barrett was because she was a woman. And we saw a bunch of conservative legal commentators say that was a reason to support her so that they could have a woman writing the decision or joining the decision overruling Roe versus Wade. The reality is it's basically been a criteria, you know, up until the last 50 years for every Supreme Court justice to be a white man. And that used to be the criteria. It's no longer the criteria. And so we should embrace. President Biden altering those rules. I think something that was especially interesting a couple weeks ago was that Ted Cruz came out and said, well, black women only represent 6% of the population. And so it's a slap in the face to the other 94% of Americans. But by that logic, if you're just going for a majoritarian candidate, then because white people

like are the majority in the United States, it would always be a white person. If any time you chose a candidate who represents a smaller faction of the population to slap in the face to the majority, then he's basically betraying his position that every time you choose a Supreme Court nominee, it has to be a white person. It's a silly position and it doesn't make much sense when you dig down into it. And I think it also fails to appreciate that no one is entitled to be a Supreme Court justice. And the idea that there is somehow this one person who is objectively the best qualified and on the merits would be the best Supreme Court justice because they received really good grades and had particular jobs.

It's just very silly. The reality is that being a Supreme Court justice requires a lot of judgment. And whether someone has judgment doesn't really depend on whether they received the highest grades, you know, from Harvard or Gale Law School or some other criteria that some senators appear to be obsessed with. Yeah. So I want to jump over to these recent spate of bounty laws. You know, the Supreme Court had allowed the Texas bounty law to stand. And that was giving it, you know, where regular people could turn in people who were seeking abortions for a $10,000 bounty.

Since then, we have very predictably seen other bounty laws get introduced. We've seen bounty laws be introduced in California on guns. There was a group that offered $500 for teachers getting caught violating New Hampshire's limits on the discussion of systemic racism in the classroom. DeSantis in Florida is pushing, it's called the Stop Woke Act, and that would allow parents to sue schools. over some critical race theory bullshit. So this is clearly getting worse and worse with politicians basically given free reign to deputize regular Americans

to do their political bidding. Do you imagine that there's going to be any moment where the court realizes the extent to which it fucked up? Or is it just going to be a case where, because it's mostly Republicans using and abusing this system, that this is exactly what the conservatives on the court do want? I think this was a very predictable consequence. of the Supreme Court's ruling. And I also think it was predictable that it was going to result in

largely asymmetric warfare, that it would be Republican legislators and Republican legislatures who were more willing to evade this idea that people should be able to challenge laws that they are subject to and willing to kind of enact a law that flies in the face of the rule of law, that they would be the ones to do so rather than their Democratic counterparts. So I think it is predictable. I think it is unlikely that the court is going to intervene in at least some of the cases that we've been discussing, in part for the reasons you suggest, but also because some other cases or context might be a little bit different than the Texas SB8 law, because Texas SB8, part of what made it work is the people subject to liability under the Act, abortion providers,

weren't sure whether if they were sued, the United States Supreme Court would reaffirm Roe versus Wade and say, yes, in fact, you know, there is a constitutional right for a woman to decide to have an abortion. Whereas let's imagine that a Democratic legislature actually does pass an analogous bounty hunter law and says, you can sue anyone who possesses an unlicensed handgun for tens of thousands of dollars. You know, let's say someone actually gets sued in that blue state. There is no doubt in my mind that the United States Supreme Court would, at the first opportunity, leap in, stay that judgment, reverse it, and say you can't punish someone for exercising the Second Amendment right to bear a firearm. And so I think that asymmetry is also important to understand where

laws are targeting rights that this court likes, that this court favors. They're less likely to be effective in doing what SB 8 did. Yeah, that's a great point. And also chilling to a degree, do you think that if Democrats retain the majority in the House and Senate in this upcoming midterm cycle and were able to pass a law that bans partisan gerrymandering that the Supreme Court would allow it to stand? Because this is a court, like you said, that's twisted itself in a pretzels to achieve their political ends.

Like, can you see a world in which their majority is so big that they can just unilaterally then declare that unconstitutional? Absolutely. I'm extremely concerned about that possibility. The Voting Rights Act case we just mentioned, I think there is a non-zero chance that they are going to say the Voting Rights Act protections for minority voters and black voters are potentially unconstitutional to the extent that they require courts and legislatures to take race into account when ensuring there is representation for racial minority. And if they're willing to do that, if they are willing to say that trying to ensure that black voters receive adequate representation is unconstitutional discrimination on the basis of race, I think it's also possible that they would invalidate a federal statute prohibiting partisan gerrymandering. And one theory that they might use to do so is this idea that only state legislatures can write the rules for how electors in presidential elections are

selected. And if that's correct, then Congress can't be the ones to draw districting maps or set limits on state legislature's ability to do so. And that theory has already been floated. You know, several of the current justices on the court adopted that theory in this Arizona an independent redistricting commission case when state voters tried to adopt a state constitutional amendment to require independent redistricting commissions to draw legislative maps rather than state legislatures. So I think it's very possible that this court could possibly invalidate a federal prohibition on partisan gerrymandering. And of course, they would like that because if you look at a number of these far-right legislatures, which are already gerrymandered to within an inch of their life

and already gerrymandered in such a way that it's actually impossible to redraw the maps into anything fair, barring some constitutional amendment like we saw in Michigan, but we're not going to see something like that in a number of these other states. Really, then, the Supreme Court has this, like, unfair advantage where they can just basically enact the Republicans will unilaterally. I mean, that does kind of present this issue of the only way to then remedy that is expanding the court. I mean, I know that this is always floated as some, like, extreme, extreme far-left radical position, but is this not an extreme? far-right radical situation that we're in? And isn't that the only remedy that we have in front of

us right now? I think people should ask themselves, like, is it extreme? Is it out there for the five Republican appointees on the Supreme Court to have basically a veto over every single law, every single regulation that Congress might pass, that federal agencies might pass? And if they are exercising that power in aggressive ways, you know, potentially striking down, a provision of the Voting Rights Act, potentially striking down, a federal prohibition on partisan gerrymandering, I mean, that's a pretty extreme world too. And so I think that has to be part of the analysis and the calculus. If the court is merely acting like a super legislature and just undoing the laws and policies it doesn't like, that is not an acceptable arrangement for a country that calls itself a constitutional. democracy. Yeah. And so how did Democrats get over this fear of, which is partially owed to the fact that they allow Republicans to control the narrative, but how did Democrats get over this fear of any expansion of the court seeming like this radical move? I think this isn't something that

is just going to change overnight. I think the more this court does, the more this court is frankly making the case for court reform. And I think Democratic politicians and Democratic organizers have to learn how to talk about the court. You know, Democrats are by nature kind of institutionalists. They have faith in our institutions of government. They think government is good and government can work. And I think that faith in institutions is misplaced in a world where this Supreme Court is acting the way it does. So I think, you know, people need to divorce their ideas about how, the court should act from how the court actually is acting. Yeah, that's perfectly put. Finally, let's end with this. What's coming up on the docket that you're going to be paying

particularly close attention to? The voting rights case is absolutely a case that I will be paying attention to what the court says about the Alabama maps. The court also has an upcoming case about the environmental protection agency's authority to enact regulations designed to address climate change. That is likely to be a pitched battle about whether federal agencies will have authority to regulate health, safety, welfare, and address, you know, real national crises. So in addition to the abortion case, you know, those are the two that I am watching most closely. And just judging based on what you know about this court, how do you feel about those two impending cases? Do you have any I feel like I don't want to hear the answer to this question, but do you have any prediction on what

that it'll look like? Not great. You know, I have little faith that the court is going to say the Environmental Protection Agency possesses the authority to adopt particular measures designed to control the spread of climate change. And, you know, the abortion case is going to be a disaster. The only question is how much of a disaster. And given what they did on the Alabama districting case already, I think it's likely that they are taking this case in order to radically refashion the law on redistricting. and vote dilution, and the question is just how extreme they are in doing so. Well, if anybody listening was on the fence as to how radical or extreme expanding the court was, hopefully this will move your position on that a little bit.

So with that said, Leah Lippman, thank you so much. If anybody listening wants to hear more, check out the strict scrutiny podcast. It's wonderful. I listen to it. It's part of my weekly rotation. Thank you again for taking the time. I appreciate it. Thanks so much for having me.

Thanks again to Leah. That's it for this episode. Talk to you next week. You've been listening to No Lie with Brian Tyler Cohen, produced by Sam Graber, music by Wellesie, interviews captured and edited for YouTube and Facebook by Nicholas Nicotera, and recorded in Los Angeles, California. If you enjoyed this episode, please subscribe on your preferred podcast app. Feel free to leave a five-star rating and a review, and check out Briantylercoen.com for links to all of my other channels.