Strict Scrutiny - Allow Me To Retort

Episode Date: June 6, 2022

Melissa interviews Elie Mystal about his new book, Allow Me To Retort: A Black Guy's Guide to the Constitution.P.S. Melissa, Kate, and Leah will be on The Problem with Jon Stewart this Thursday, June 9th! Don't miss it. Follow us on Instagram, Twitter, Threads, and Bluesky

Hey, Strict Scrutiny listeners, Leah here. So, holy shit, Melissa, Kate, and I are going to be on The Problem with Jon Stewart this Thursday, June 9th. It was so much fun. We got to geek out about the SEC and the Fifth Circuit. We've got a little preview here for you, courtesy of their team. I don't understand how the SEC survives, because I can't imagine a Supreme Court with Gorsuch, Alito, and those others saying, no, they have the authority. I can't imagine. Neil Gorsuch has basically been salivating since his days from prep school, just waiting to knife the administrative state in the back. I mean, this is the project that he cares. It's an easy target. Nobody likes the administrative state.

Well, Kate actually has a theory. It's like a sort of like origin story about Neil Gorsuch's antipathy for the administrative state. Come on, Kate. I'm still workshopping it, Melissa, but I will share it in early form, John, which is that his mom was Reagan's EPA administrator and Gorsuch Burford. And there's some family psychodrama there that I don't yet fully understand. But she left after being the first cabinet secretary to be held in contempt of Congress because of a refusal to turn over some documents to the House Judiciary Committee. These were the events that led to another big, important Supreme Court case, Morrison versus Olson. Anyway, there's a family story there that, again, I'm still fully sort of fleshing out, but he's not a stranger to the administrative state. So basically, we're not going to be able to have functioning aircraft because Neil Gorsuch's mom

got a raw deal. That's basically right. You know, it's incredible how that, when that happens, that that anger permeates. You know, they say that Kushner's the same way, that it was his father's court case and how that, like, I feel like we're living in Gotham City and it's all just like, how'd that guy turn? You're like, Greek tragedy. This is very Oedipal. Yes. Again, that's us on The Problem with Jon Stewart this coming Thursday, June 9th. Available wherever you get your podcasts. Hey there, listeners. This is a very special episode of Strict Scrutiny. On March 1st of 2022, I got together with Ellie Mistal at the Commonwealth Club of San Francisco to talk about Ellie's new book, Allow Me to Retort, A Black Man's Guide to the Constitution.

What follows can only be described as a classic Ellie Mestal rollicking conversation about life, law, and everything in between. We hope you enjoy it. So Ellie, there is much to talk about. First of all, I think it's an understatement to say this book is irreverent. It is irreverent. It is snarky. It's sometimes profane. But it is the most compelling account of what is actually wrong with the system, the justice system, the judicial system, and the way in which law works to limit rather than to enhance rights. So I just want to ask sort of a basic question. Why this book and why now? Yeah, first of all, thank you so much for having me, Commonwealth Club. I really appreciate it. Thank you so much for doing this conversation with me, Professor Murray. For those who don't know, Professor Murray and I go way back. She read me before it was cool, back when I was blogging for Above the Law. And as you kind of point out,

some of that blogging kind of background, I think, comes out in the book. I try not to lose that sense of just talking to being in conversation with regular people. In terms of why the book and why now, look, we are at a time of unprecedented conservative takeover of the third branch of government. It goes beyond the 6-3 Supreme Court, although, my goodness, 6-3 hardcore conservatives control now the Supreme Court. It goes all throughout the federal judiciary, and it goes from where I sit to a way that we talk about the courts and legal issues and ideas that has almost been completely co-opted by conservative ideas, conservative thought, conservative language. We fight on the ground that conservatives want us to fight on. And so we kind of start the game losing. And so I wanted to write about how

that's wrong and how there's a whole different way of thinking about our rights or responsibilities about the Constitution itself. There's a whole different language of law that we can use, that we can think about, and that if we did use, would arrest the reduction of rights for people of color and minorities that are being spearheaded by the conservative movement in this country. It's felt timely to me because of how ascendant conservative ideology and philosophy is in our courts and in just our general public discourse. The audience here, I think, is everyone who reads and cares about the courts and about the Constitution and justice. But I also take from your words that the real audience are Democrats, right? Democrats who have not really been playing with all of the

arrows in their quivers at this point. And so what would you say to those in power right now about the best way to use the law and the court and how we should be thinking about responding to this conservative takeover and this conservative ideology that really is ascended. Republicans and conservatives are conducting a war on rights and Democrats have not taken the field. And they've not taken the field because they will not adopt the language and the legal ideology that has been laid before them for a long period of time. They won't adopt the language of an Earl Warren or a Justice Brennan or a Justice Brandeis or a Justice Thurgood Marshall, right? Or even a Justice Sotomayor or a Justice, but potentially a Justice Brown Jackson, right? There is a way of understanding our rights that is not grounded in the original intent and ideas of slavers, colonists, and rich white people willing to

make deals with slavers and colonists, right? Like, we can reject that vision of America and embrace a more fair, a more equal, a more pluralistic vision of America, but Democrats have to join the game and realize that the courts are important. When you ask, you know, to really answer the question, what do Democrats get wrong? They don't understand, they don't seem to embrace and understand just how powerful the third branch of government is, just how powerful Article 3 is. Folks, Article 3 has a veto power over Articles 1 and 2. That's not how the Constitution was written. That's just what the court aggrandized to itself when it gave itself the power of judicial review. The courts gave themselves the power to declare acts of Congress signed by the president unconstitutional.

Folks, other industrialized Western democracies do not do it this way. We have one of the most powerful Supreme Courts in the world. I think India is our competitor for that, but this is not how they do it in Canada. This is not how they do it in Germany. This is not how they do it in South Africa. So we have an extremely powerful Supreme Court, but Democrats act like all we have to do is elect the next savior, whether it's Barack Obama or Joe Biden, like whoever the next savior is supposed to be. They think that we just have to elect a president and everything's going to work out and be hunky-dory. No, we have to change how the third branch of government operates if we want to get anything done, and Democrats don't always understand that. So I think this is an excellent point. I recall back

in August of 2020, when the Democrats had their national convention, there was a lot of discussion of all of the great things that Joe Biden had done throughout his very illustrious career, first as a senator and then as vice president. And they talked about the Violence Against Women Act and his work with Obamacare and his work with DREAMers and the immigration reform. At no point did anyone acknowledge that all of those things had actually been upended and curtailed and disrupted by a five to four majority of the Supreme Court. The civil rights remedy of VAWA was struck down in United States versus Morrison. The ACA is constantly under threat in the courts. And no one would acknowledge that the courts are, by their nature, minoritarian institutions that can actually cancel out majoritarian domestic

policy. So I think that point is really apt, but it's a great entry for the book. You start with the premise that the Constitution, as we know it, was created and drafted in a moment that can only be described as a demographic deficit, right? A demographic, a democratic, whatever you want to call it, it is a deficit. Certain voices aren't represented. And indeed, you argue certain voices are overrepresented. There are those who are there at the Constitutional Convention for the purpose of re-entrenching white supremacy, re-entrenching property whites. And that's the document that we have inherited. And so you sort of start with the premise that this document is a problem and us expressing a kind of fidelity to its original interpretation is also a problem.

And yet, this is the fight we're having right now. The conservatives argue that the only way to interpret the Constitution is by looking to the way it would have been interpreted in 1787 or, alternatively, in 1867 when we had a second founding moment with the Reconstruction Amendments. What's wrong with this vision of originalism, with this fidelity to text that we see in the interpretation of statutes? What are we missing and how can we fight back? Yeah, so first of all, originalism is intellectually bankrupt, all right? Like the idea that I should have to interpret laws based on what my ancestral captors thought is simply illegitimate. Like, no, I reject that. I do not care what my captors thought I should be living under. Like, that's just not something that I agree with, right? One of the cleanest ways to see this, and I talk about this in the book, I have a whole chapter on this in the book, I think one of the cleanest ways to

see originalism's intellectual bankruptcy is through a discussion of the Eighth Amendment. Eighth Amendment bars cruel and unusual punishment. Now, just saying that out loud, most people can understand cruel and unusual punishment are pretty vague terms. Constitution didn't bother to define what cruel means. It didn't bother to define what unusual means. So it wasn't really all that good of an idea. So how do we resolve that ambiguity? Well, originalists say that we should look to what the founders, the people who wrote the Eighth Amendment, James Madison, and his cohorts meant. They say that we should look to the original public meaning of those words as they were understood in 1787 when they came out with the constitution. And I say, what? You want me to consult the slavers about what they thought cruel and unusual meant? Like, that's actually what you, that's actually

what you're selling, Neil Gorsuch. Like, that's actually what you're selling, John Roberts. No, no, I reject that. I do not care what people with such a moral deficit that they could enslave people, keep them in bondage and literally light firecrackers up their backsides if they misbehaved. No, I do not care what they thought punishments should be. I'm going to, I'll look to, I'll look to the moon. I will, I will pick, I will, I will find, I'll look to a comic book about what cruel and unusual should mean before I look to James Madison. Are you kidding me? So that's where the fight is. That's where the debate is. I reject out of hand the idea that the people who enslaved us have a valid starting point for what the laws mean now. The text, that's a different conversation.

I understand English. We got to start somewhere. I will read the text and we can iterate and interpret from there. But that somehow we need a Neil Gorsuch's Ouija board to figure out what Thomas Jefferson really meant. Please get out, get on my face with that. There's a kind of internal tension here because you were arguing that originalism is by itself morally and intellectually bankrupt. And I completely understand the argument that you're making about that. But it's not just an argument about originalism as an interpretive philosophy. At bottom, you're essentially arguing that the Constitution itself is morally and intellectually bankrupt. So is this really just about a different interpretive view that you have, or should we be scrapping this altogether?

Oh, Professor Murray, why don't you get me in trouble now? Yeah, you're right. That is a tension. Let's start here. South Africa, right? They free Nassim Mandela. He becomes the president of this new South Africa, right? They reject their apartheid ways. What do they do? Do they stick a couple amendments on their Afrikaans apartheid constitution and be like, okay, we're good now? Or do they throw it out the window and start again? And if you look at the history of South Africa, what they did in the 90s after Mandela became president was that they burned their stupid apartheid Afrikaans constitution. They started again with a new constitutional convention brought with all the people, people who have been historically left out of writing written constitutions. And they came up

with a new document. They took two years to do it. And right now, if you look on the international stage, this is going to surprise a lot of Americans. But if you look on the international stage, it is the South African constitution that is regularly held up as one of the best written constitutions in terms of the protection of human rights and democracy in the world, as opposed to the American constitution. What did we do when we had to overcome our apartheid constitution? And that's what the original constitution was. Black people held in bondage counted as three-fifths of people. That is an apartheid system violently enforced, by the way, by angry mobs of white people roving the South.

What did we do to overcome our apartheid constitution? We stuck a couple of amendments on it, right? It's like you have a Ford Focus and you go and you steal the hubcaps off a Cadillac and say, I'm driving a Cadillac now. No, you ain't. It's still a Ford Focus. I can tell. And we called it all good. One of the debates, one of the core debates in this country is basically whether the 13th, 14th, and 15th Amendment worked. If you think it worked, and I'm one of those people who tends to think that the Reconstruction Amendments worked, the Reconstruction Amendments and the 19th Amendment, they weren't passed at the same time because, again, white men, but I like to think of them, all four of them together. I tend to think that the Reconstruction Amendments worked, and so to make them work, every other thing has to be strained through the analysis of the 13th, 14th, 15th, and 19th amendments. People say like, oh, originalism, what the Republicans are so good at

is they have a snappy catchphrase for their stupid intellectual interpretive philosophy. I got a snappy catchphrase for mine too. I'm a 14th amendment-ist person, right? Like, for me, the Constitution is the 14th Amendment and some suggestions. At heart, I think you are something of an institutionalist because you don't necessarily want to scrap the whole thing. You really do believe in the promise of the 14th Amendment, although I will argue as a constitutional law professor that the promise of the 14th Amendment was upended even before it got going in the 1870s. And you talk about that in the book as well. But you actually are institutionally minded. You want to make this work better. So are there particular places where you think a more 14th

Amendment, Reconstruction Amendment-ish view of constitutional interpretation would yield marginally or markedly different results than what we see now? Sure. We can start with the 15th Amendment, right? I mean, the entire discussion of voting rights basically comes down to whether or not you think the 15th Amendment is real, because white conservatives will tell you that it ain't. The 15th Amendment passed after the Civil War was immediately ignored by the Supreme Court from the end of Reconstruction until 1965. They just took the 15th Amendment and they stuffed it in the locker, and they pretended it didn't exist. When they finally rediscovered, when the 15th Amendment was finally unearthed and reimagined during the civil rights era, we passed the 1965 Voting Rights Act, which is my pick, by the way, as the most important piece of legislation in American history. Why? Because it is the first piece of legislation that made the democratic promise of universal suffrage real throughout the country.

We did not live a day in this country with anything approaching universal suffrage until 1965. Now, from 1965 on, what we saw was an amazing success story, if you really think about it, in terms of minorities and Black people in particular rising up the moment they took their foot off our neck. In about 40 years, we went from an oppressed people to the first Black president. That's in a generation. That's a pretty good track record. And white people got so pissed off about that, what's the first thing they did before the Black president was even out of office? They took away the Voting Rights Act. That's the first, before they went with their con man bigoted orange person. The first thing white conservatives did wasclearance of the Voting Rights Act. And that essentially took the 15th Amendment and stuck it right back in a locker. Now, I interpret the 15th Amendment so expansively that I think that it can stop not just the obvious racist examples of Republican voter

suppression. I think the 15th Amendment can be used to stop gerrymandering. I think the 15th Amendment can be used to stop a lot of things. I think it can be used to stop the filibuster. Like, we could go down the list of things that I think the 15th Amendment can be used to stop a lot of things that I think it can be used to stop the filibuster. Like we could go down the list of things that I think the 15th Amendment could do, but Republicans won't let it do anything. I do want to hear about this hidden power of the 15th Amendment. So let's bracket that for a minute. But I do think it's really interesting. And it's sort of the first time I've actually thought about it in this context, but you're telling a story of racial progress. And it's exactly that story of racial progress that Chief Justice John Roberts marshals to strike down the preclearance formula in Shelby County. And he tells a story that is true about more and more minorities voting, and we cannot be shackled to the past. The 15th Amendment is not the promise of constant punishment for past 15th Amendment is not the promise of constant

punishment for past sins. It is about the promise of a better future. So how do we reconcile in this world where racial progress can be figured in many different ways? How can you actually wrestle with the fact that there was racial progress and in fact, it was then used to retard that progress? Yeah. Well, first there's the Ruth Bader Ginsburg rejoinder to John Roberts' argument, where she says in her dissent in Shelby County, that throwing away the Voting Rights Act is like throwing away an umbrella in the middle of the rain because you're not getting wet. At a more kind of fundamental level, it really also goes to the function of the courts. If conservative Republicans were not

hypocrites, they would be more pissed at Shelby County than I am. Because what Shelby County really is, is John Roberts, an unelected, unaccountable Supreme Court justice, imposing his view of social progress upon the rest of the country over the objection of 98 senators, a voice vote in Congress, and a Republican president. Because that is what the Voting Rights Act was. The Voting Rights Act had been reauthorized by a voice vote in Congress, 98 senators, and President George doesn't care about black people, W. Bush signed the reauthorization of the Voting Rights Act in 2006. And it's that reauthorization that John Roberts threw out of the window based on his cockamamie theory about social progress. Now, in our system, we're not supposed to have, according to conservatives,

remind you, I'm making the Republican argument right now. According to the Republicans, we're not supposed to have Supreme Court justices trying to engineer social change through the courts, which is exactly what Roberts did. It's Congress that's supposed to be able to tell us when racism has been defeated or not. Are you basically saying that John Roberts is the same kind of judicial activist that Harry Blackmun was when he wrote Roe versus Wade in 1973, or Earl Warren was when Miranda versus Arizona was decided in the 1960s. Because this is the rap that conservatives have given to the court. No more activist judges. Originalism is about fidelity to tax, not about your own personal

political ideology or policy preferences. But are you suggesting then that John Roberts is doing the same kind of judicial activism that he accuses others of? Indeed I am, because indeed he is. Because John Roberts, at the end of the day, cares more about his political ideology and his political outcomes than he does about any kind of judicial principle. If he cared about judicial restraint, he would have upheld the Voting Rights Act. He wouldn't have eviscerated it. And remember, it's not just Section 5. Section 5 is what he did in 2013. Well, just this past summer, in Brnovich v. Arizona, he then went on and joined Samuel Alito, eviscerating Section 2. But what was that? See, that's the thing about Roberts that people need to understand.

Roberts has been an enemy of Black people voting for his entire career. And when I say his entire career, I literally mean his first job after clerking. So his first real job was working in the Reagan Justice Department, where he was brought on specifically to come up with a way to defeat the 1982 amendments to the Voting Rights Act, the ones that expanded the Voting Rights Act to punish not just overt discrimination, not just discriminatory intent, but discriminatory effect. Because before 1982, as long as the state legislature said, well, I didn't mean to keep Black people from voting, that was okay. And in 1982, we had an amendment that said, like, actually, if you have force and effect

of keeping black people from voting, that's just as bad. That was the amendment that John Roberts was brought on to defeat. And Reagan was looking for a way to defeat this amendment. But even Ronald Reagan, who started his campaign in Philadelphia, Mississippi, that's Mississippi burning country for those being along, and literally said during his presidential campaign that the Voting Rights Act humiliates the South. That is Ronald Reagan. Even Ronald Reagan had to go along eventually with the 1982 Voting Rights Amendment. That's how popular people voting was back in 1982. It is John Roberts who harbored that anger at those amendments that he played the one. John Roberts has been waiting for Black people in the tall grass for a long time. And so the decision in

Brnovich v. Arizona was actually John Roberts finally getting to eviscerate the 1982 voting rights amendments that he was long against. So that's who we're dealing with when we're talking about John Roberts. Let's switch gears a little bit. John Roberts not only joined Samuel Alito's opinion in the Brnovich cases from last summer, a couple of summers before in 2019 in a case called Ruscio versus Common Cause, he determined that federal courts cannot intervene to hear cases involving partisan gerrymandering. So I want to get back to this point you made. How can a more generative vision of the 15th Amendment actually be used to address these questions, questions of racial gerrymandering, partisan gerrymandering that have been essentially foreclosed by the courts through just disability decisions or alternatively through the narrowing of legislation like the

Voting Rights Act. Voting Rights Act says that to make the 15th Amendment work for voting for regardless of race, color, or creed cannot be denied or diluted on account of race or diluted. And it's the dilution of the vote beyond the straight denial of the vote that gerrymandering does. And so a robust interpretation of the 15th Amendment would also say that the dilution of the Black vote or of minority votes or of Native American votes in Arizona, Latino votes in Texas, Black votes in Georgia, that these dilution of votes are offensive to the 15th Amendment, just like the actual straight up denial of votes that, let's say, Florida does when it refuses to allow former prisoners the right to vote,

right? So you could have a 15th Amendment that is chesty and strong and goes around stopping these kinds of gerrymanders. But again, Republicans won't let it happen. And this is what I'm saying. The way to fix that is not to change Republican minds. Republicans don't like Black people voting. That's kind of consistent, right? Conservatives don't like Black people voting, I should say. What conservatives call themselves in the morning, I care about less. Right now, they call themselves Republicans. Back in the day, they called themselves Democrats. I don't really care

what label they put on. The conservative party has been against Black people voting for a very long time in this country. And the liberal party has never done enough to secure the voting power of minorities when they have a chance. So yes, a robust version of the 15th Amendment. Think about it this way as well with Rucho. And I talk about this a little bit in my book because my dad was a local politician and his job was basically to be a gerrymanderer. That was... I knew what gerrymandering was when I was 12 because that's what my dad did professionally. And one of the things, one of the real dodges that Roberts does there that you wouldn't know unless you knew what gerrymandering, how it really worked, is that

he's trying to make a distinction between political gerrymanderers and racial gerrymanderers, as if those are two completely different things. Folks, they ain't. When a politician is sitting trying to draw a map, they're not taking political factors to one side and racial factors to the other side. They're putting it all in the same pot. A lot of minority voters tend to vote Democrat. A lot of Democrats tend to be minority. I mean, those are one-to-one overlap. But general, you know, economic situations, those kind of overlap. You know, politicians are looking at everything. You know, they're looking at church to strip club ratios. You know, how many liquor stores do you got in your neighborhood?

How many gun shops do you have in your neighborhood? They're looking at all of that when they're drawing a map. And to act like one is okay and one is verboten is just, it's a ridiculous, it's a ridiculous position that Roberts has. But you wouldn't know how ridiculous it is unless you've actually like kind of been in the room where it happens and seen one of these maps made. Can we shift gears a little bit? Like for the last 24 months, we have been absolutely consumed with this question of police violence. And you talk about this at length in the book, including sharing your own story about being stopped by the police, not once, not twice,

but three times. And you specifically focus on the third time where you came very close to being a casualty of a police stop. Can you talk a little bit about how the court itself has cultivated the conditions where African-Americans, people of color are routinely targeted for these kinds of stops. And the police often have widened opportunities to use violence without recourse. Conservatives always want to tell you that policing is a local municipal issue, that there's limited federal power to change anything in policing. And too often, the Democrats like to go along, especially national Democrats, because it lets them off the hook. Oops, I can't do anything more, black people. I'm just a federal official, right? Don't believe it. Don't buy it.

I can take a significant bite out of police brutality. I can significantly change the amount of brutality that this system allows if you just let me change three Supreme Court decisions. That's literally all I need. First, Terry B. Ohio. That's the stop case. That's the non-arrest stop case. That's the case that allows cops to stop me as a black man on a hunch that maybe I'm thinking about committing a crime one day. That's a Warren Court decision with Justice Thurgood Marshall concurring in that decision. That was that, look, you understand. So if we want to go into Terry, the issue was that

this potential criminal was seen casing a joint, like literally going back 12, you know, six to 12 times, making a circuit around a joint. Eventually a cop was just like, I wonder what was going on with him, stopped him, did a immediate search of his person to make sure that, you know, that he was safe, basically found the gun. And, and eventually, Terry was convicted of, you know, attempted robbery or whatever it was. And so this case went to the Supreme Court, because Terry was like, you had no reason to stop me other than that I was, you know, a person. And Terry lost. And the Warren Court said, there has to be some ability for a police officer to question a suspect before the suspect has done something so obviously criminal, right? Before they have, you know, something before

probable cause that the suspect committed a crime, the police officer has to be able to question to conduct an investigation. And in the course of conducting those questions, of course, they should be allowed to frisk very lightly the outside of a person's clothing to make sure that there are no obvious weapons that the person can have to harm the police officer, right? And Warren and Marshall, they struggle with it. And Warren has a long thing about the Fourth Amendment and it's sacrosanct and blah, but they're trying to figure out this basic way, right? And at the time, so Terry v. Ohio was, by the way,

the first case that was argued by two black people in front of the Supreme Court. The prosecutor who argued in front of the Supreme Court was black and the defense attorney who argued in front of the Supreme Court was black. and this man named Louis Stokes. Louis Stokes went on to be one of the first Black, I think the first Black representative congressperson from Ohio. And Stokes saw the whole thing coming. Stokes said that what that decision would do would basically unleash racial profiling. He said it to Marshall at his face at the court. He said

it for the rest of his life. And Louis Stokes was absolutely right, because once they had the decision that you could stop somebody, it went from officer sees a man casing a joint six to 12 times high standard for stop to where we are now, which is just basically the cop doesn't even need to have a reason to stop a person. So that's the problem with Terry. It's one of those ideas that's kind of good on paper, but you give white cops an inch and they will take a mile. Like basically it is a power that white cops cannot be trusted to use to wield fairly because of racism in our society. So yeah, you change Terry, you significantly decrease the ability for cops to stop you. Another case that would change is Graham v. Connor. That's the use of force case. That's the case that says cops' use of force, the reasonableness of that force is determined by a cop on the scene, as opposed to, you know, anybody else. I would go for anybody else than a cop on the scene trying

to tell me whether or not his use of force against me was reasonable. And the idea behind this is that rather than some objective, reasonable person, we basically credit whatever fears, however rational they may be in the moment that the cop has when he or she actually exercises this force. And you use the example of Michael Brown in Ferguson about this. Can you maybe say a little bit about that example? So Michael Brown murdered in Ferguson, Missouri. If you read the deposition of Darren Wilson, the officer who shot and killed Michael Brown, and what you read is the thoughts of an unhinged crazy person. Darren Wilson says, oh, when I grabbed onto Michael Brown, it felt like he was Hulk Hogan. It felt like he was Hulk Hogan and I was a five-year-old.

Man, Michael Brown was a big boy. He was 6'6". Darren Wilson was 6'4". All right? There was not a Hulk Hogan versus a five-year-old size disparity. Darren Wilson said, when I looked into his eyes, he looked like a demon. Well, that's not reasonable because he wasn't a demon. He was not Hellboy. But because of the way the law works,

Darren Wilson has to say that he feared for his life in order to justify shooting an unarmed person to death. Well, the only way you can make the case that he feared for his life is if Darren Wilson is a crazy hysterical coward who fears for his life very easily. And the way the law works, as long as there are enough cops who are similarly hysterical cowards, then they can get away with murder. And that should not be a constitutional principle.

So basically, your point is that Graham, the case, lays out the conditions whereby in order to be justified in the use of excessive force, cops basically have to say that they're constantly in fear of their lives, which leads to, I think, a probably not untrue narrative of policing being dangerous, but perhaps overstates the degree to which individuals present that danger and perhaps hyper-identifies those who are not like the officer as those who pose the most risk of danger. Whether or not my constitutional rights exist should not be dependent on the hysteria of the officer who stops me. That to me sounds like is a simple proposition, right? If the officer who stops me is, you know, so I'm driving my car and I get stopped by an officer, and yet have constitutional protections

for their violations because other cops would agree with that hysterical position. So simply changing the standard in Graham to being a reasonable person as opposed to assessing reasonableness from the perspective of a cop, like making it objective as opposed to subjective, would be one way. You say, so what's the third way? So we're changing the Terry stops. We're changing the standard to a reasonable person standard in Graham. What's the third? Qualified immunity. Bye-bye. Bye-bye. You don't get that anymore. Just take it away from law enforcement. We roll over the police unions, just like we've rolled over pretty much every other union. Like, why do police unions get to

be the only union that still has teeth, right? It's basically in this country, the police union and the Major League Baseball Players Association Union are the only unions that still get to have teeth in this country. Well, I would take that away from the police union. There is no reason, there is no good reason to me for, in 2022, a cop to have qualified immunity for constitutional violations they commit while on the job. They have lost that privilege. You want to give qualified immunity to a politician so they don't get sued for theft when they sign the property tax assessment. Fine. That's not, I'm happy for qualified immunity for people who don't have the ability to kill people. But once you get the imprimatur of the state that you can use violence

against me, the very least thing that we can do is take away your qualified immunity to use that violence without accountability for your actions, just because you say that you did it while on the job. I do think that prosecutors should have a limited reason to ask for qualified immunity because mistakes are made. We have an adversarial system that requires defense attorneys to zealously advocate for their clients, even clients that are probably often very suspect. That same adversarial system requires prosecutors to zealously advocate for the state and arguably the victims of crime.

And we don't want to overly chill that zealous advocacy, but we must punish prosecutors who I would say purposefully get it wrong. Are you giving more grace to lawyers like you and me than you are to rank and file police officers? Indeed. You know what the difference is though, Melissa? It's not because I'm a lawyer and not a cop.

It's because I don't have a gun. Those are actual lawyers, so there's that. Right, by the way, just so you know. Play one on TV, yes, but not actual clients. No, they have like issues issues and they're people. The difference between my grace to the legal profession that I don't extend to the police profession is the gun. So we can also play it this way. I will allow cops to keep their qualified immunity if they turn in their guns, like they do in the UK, by the way. Like, it's entirely possible to police a large urban environment without firearms.

The Mounties do it all the damn time, right? So we could have a system like that where you get qualified immunity, but you don't get your gun. But once you get a gun, then the levels have gotten off the charts here. And there's got to be some way for me to hold you accountable for your actions with that firearm. Let me switch gears. You mentioned guns. Two major cases before the Supreme Court this term, one that deals with the possible expansion of the Second Amendment to allow for open carrying in public of a weapon, and then also a case that likely will call the question of whether Roe versus

Wade will continue as a precedent. That's the Dobbs case. Say a little bit about this constitution of ours and the question of unenumerated rights and the question of rights that are explicitly enumerated in the Bill of Rights. What's the tension here and how do we resolve it? Yeah, so I mean, I don't even know that there's a tension here. The conservative interpretation of the Second Amendment was invented in the 70s by the NRA. It wasn't in the founding. It wasn't part of our history. The NRA invented, made that up in the 70s for political gains. That's all it is. Second Amendment is there.

And the first part of the Second Amendment, a well-regulated militia. That's the part that conservatives act like, oh, that just, they can read, they try to wipe that part out of the Constitution. In fact, that was a real deal. Having a militia was a real deal, especially for the Southern states, because that's how they stopped slave revolts. No, Carol Anderson and I did a talk here at the Commonwealth Club a couple of months ago. And her book, The Second Race and Guns in a Fatally Unequal America, really details it, and it's magnificent. So for all of those who are in the audience, it was a really terrific

conversation. And Carol Anderson explains this as well, but she sort of makes an originalist argument about the Second Amendment, linking it to the preservation of slave militia, like militias for putting down slave revolts. So if you want to make the originalist argument for the Second Amendment, that's where it is, right? It's this personal right to self-defense. That's the thing that they invented that's basically Scalia invented in D.C. versus Heller. Everything that people think about the Second Amendment is just not true. It's just not where that they invented that's basically Scalia invented in D.C. versus Heller. Everything that people think about the Second Amendment is just not true. It's just not where it comes from, right? So I don't even think there's a tension there. I think there is just a willful misread of the constitutional text in history on the Second Amendment. When it comes to a woman's

right to choose, I will stipulate, and I have always stipulated, that the Constitution does not explicitly say that a woman has a right to reproductive rights. You know why? Because the white male slavers and colonists who wrote the Constitution didn't think women had any rights at all. So of course they didn't think that women had a right to their own bodies. They didn't think that women had a right to own property or vote or finish her sentences. Is that the best argument to make about abortion? Because there are lots of things that are not explicitly enumerated in the Constitution, but we hold them as sacrosanct fundamental rights nonetheless. The right to marry, the right of parents to raise their children in the manner of their choosing, executive privilege, which we've heard about ad nauseum. And there's a great question from one of the audience members about the Trump archives. So why is it that we

are so fixated on this issue of unenumerated rights when there's so much that the Constitution purposefully left vague or absent with the understanding that it could not have been an exhaustive document? Because the people who are concerned with the expansion of rights are the same people who had all the rights at the beginning, right? It's like one way of telling the story of America is the race and the attempt for everybody else to get the same rights that rich white people had in 1787. Like, as a black man in 2022, I'm still just trying to get back to where white people were in 1787. And the countervailing force against that story have been the white people who had their rights in 1787, trying to stop everybody else from getting them, trying to put up additional hurdles and

additional roadblocks to other people getting to the point that they were born into. That's one way of telling the story. And that is why there are people who are so concerned with unenumerated rights. Look, James Madison, the person who was forced to write the Bill of Rights, who didn't want to, remember, James Madison didn't think we needed the Bill of Rights, thought the Constitution was fine as is. You know, James Madison, people need to think of him like Aaron making the golden calf, right? He knows it's wrong, but all the people are just like, we need a God, we need a God. And he's like, okay, right? While, you know, Moses is off somewhere else getting the commandments, Aaron, okay, here's the, right? That's the Bill of Rights.

While he's doing that, Madison's like, look, I'm going to give myself an out, because he knows that some fool in the future will think, and this is why he says that he doesn't want to write the Bill of Rights in the first place, because he thinks that some fool in the future will think that the only rights that we have are the ones that he bothered to write down, which of course, he couldn't possibly do that. You can't possibly write down all the rights that people should have. So he gives himself an out. That out is the Ninth Amendment, where it says explicitly this document does not represent a full and complete list of all rights, that there are unenumerated rights that he didn't have time to write down, but still exist. That's the Ninth Amendment. And conservatives, for all of their original textual hypocrisy, conservatives act

like the Ninth Amendment doesn't exist at all. Literally, Robert Bork, the founder in many ways, the intellectual founder of originalism, says that the Ninth Amendment is an inkblot under which nobody can know what's under there, and so acts like it doesn't exist. And Antonin Scalia kept right on with that tradition, and Neil Gorsuch keeps right on with that tradition of acting like the ninth amendment doesn't exist but the ninth amendment does exist and it does it does protect rights that aren't enumerated in the rest of the document which is why i go to the ninth again i go to the 14th amendment first and foremost i'm like well equal protection if men get to control their reproductive cycle then women get to control their reproductive cycle, then women get to control their reproductive cycle. Get out of my face. However, if the 14th Amendment doesn't work for

you, then we have the 9th Amendment, which says that there are more rights, including, I would argue, the rights to privacy that are not enumerated in the Constitution. And quite frankly, Professor Murray, if you don't like my 14th Amendment argument and my 9th Amendment argument, I have a 13th Amendment argument because right there in the Thirteenth Amendment, it says forced labor is unconstitutional. Forcing a woman to labor against her will for free is something that shouldn't be unconstitutional. I believe we fought a war over that. So there are a number of questions in the chat from audience members, and they're really excellent. One person notes that we yesterday heard oral arguments at the court in a case called West Virginia versus Environmental Protection

Agency. And this person asks, are you worried about regulatory agencies being dissolved by this current court? Yes. Yes. Part of the long-term ideological goals of the conservative movement has been to take away the regulatory power of the state. And they do it through specifically this attack on executive agencies because folks, executive agencies are where the science is. All right. You've seen Congress. I've seen Congress. You voted for Congress people. They're not scientists. They're not physicists. They're not experts. All right. They're experts at talking Congress people. They're not scientists. They're not physicists. They're not experts, all right? They're experts at talking and hair. They're not experts on the ground of the issues that we have to face. We have professionals. We have often non-political appointee professionals

in the executive agencies that are supposed to do the work of turning congressional law into something real and practical and manageable in this country, right? So when Congress passes a law, we should have clean water. We should have clean air. It is the executive agencies that figure out what clean air means, what clean aggrandize themselves and be the ones who decide what clean air or clean water means and requires. It is a power grab by the conservative majority against the elected branches of government. And that's how we have to understand it. And that's how we have to talk about it.

But in terms of what's happening, yeah, we're losing. We're absolutely losing. And again, this is one of those issues where Democrats have not taken the field. If you poll any person under 35 and you will see climate as one of their biggest issues,

trying to explain to people, you will get nothing on climate for 30 years if you do not control the courts. That would be a winning political argument, but Democrats don't make it. So in the 2060s, in the 2070s, long after Trump and all these current people are dead, the judges that he put on the court will still be retarding our ability to meet the global climate threats of the future. Do you think the Democrats actually know what's going on or are they so compromised and committed to going after the sort of third way, the middle way, the center of the country essentially, that they've forgotten about their base.

Is that what's going on or is it something else? I think it's something else, actually. I think what it is is that Democrats don't feel like the court is a winning issue for them. They feel like it's a winning issue for the right. And that's because the right wing has cultivated a whole army of single, army of single issue voters on the Supreme Court, right? So I can go to Tabernacle in Utah, and I can find a person who doesn't know anything about civics, who doesn't know anything about how the law works, who doesn't like Donald Trump, who thinks that he's a racist, sexist, misogynist person, but will vote for Republicans up and down

the ticket because they care about abortion. You can go find that person in parts of this country. It's very hard on the other side to find that person on the Democratic side, especially on the hard left, right? It's hard to find the hard left progressive who is going to be a single issue voter on the Supreme Court. You can have people just like, well, both parties are the same in terms of Medicare for all. And you can say, well, maybe, but like the both justices aren't the same. Do you think that's changing, though? Because I mean, I just do you think that's changing in this moment? The fact of this incredibly extreme Supreme Court with a six to three conservative supermajority.

I mean, are Democrats maybe waking up that they are perhaps single issue voters on some things? We just talked about 2020. 2020 convention went through the whole convention, didn't mention the courts at all. That's strike one. Here's another way of looking at it. Of the people running for the Democratic nomination for president in 2020, Joe Biden was the most conservative when it came to the courts. Everybody, Pete Buttigieg had a whole plan to maybe think about re-imagining the courts. Bernie Sanders is out there. Maybe we need a hundred justices. He doesn't know. Everyone was at least expansion curious, right? But not Joe Biden. And it didn't cost him a vote. But he also was the only one who actually said he was going to

do something potentially historic vis-a-vis the courts. And that was to name a black woman. And that's what won him South Carolina. Yes. Yes. That's- So is that evidence that there's some interest? I mean, I wonder what 2016 would have looked like if after Hillary Clinton selected Tim Kaine to be her running mate, she had gone further and said, if I am elected president, I'm going to name Goodwin Liu of the California Supreme Court as the first Asian American justice or Tino Cuellar of this California Supreme Court as the second Latino justice. Would that have put

a third person on that ticket to give it a little lift and energy that would have brought some voters out? I think it might have. I'll do you one better, Professor Murray. If Barack Obama had nominated Kataji Brown Jackson last time when she was a finalist for the seat that eventually went to Merrick Garland, maybe the unprecedented obstruction by Mitch McConnell wouldn't have worked. I mean, I think a lot of, I was one of those people that a lot of people criticized Obama for nominating Garland when he had people like Brown Jackson in the wings who might have inspired more progressive energy and made the Republicans look worse as they were doing their obstruction. But basically, your arguments are that there is a change amongst progressives to care more about the courts than perhaps they did

in the past. And I would- Actual reform this year, expanding the court, limiting life tenure. And I can't agree with you until I see a Democrat pay the price, right? Because we just haven't seen a Democrat lose a vote, lose a primary. And we haven't seen a senatorial Democrat lose a primary over the court's issues. It happens to Republicans all the time. People forget, like I just talked about 2020. Let's go back to 2016, where Donald Trump, anti-establishment, outsider guy, just throwing Republican establishments just overboard, just destroyed. Not with the court. No, no, no. When it came to the court, he had to put out that list,

that federal society approved list. Donald Trump had to toe the line when it came to Supreme Court nomination. Everything else, he could be crazy outsider man. But with Supreme Court, Republicans don't play. They would have elected Jeb if they thought they were going to lose the court. But so he had to play. He had to play with the establishment when it came to the Supreme Court. Everything else, he could be crazy. And so that's what I'm saying.

Republicans lose when they are weak on courts. I haven't seen a Democrat lose for being weak on courts. And even if you take, you know, a more recent example, Dick Durbin is making a new chart. Sheldon Whitehouse spends every day like in Excel, like making new charts with like string about like the Federalist Society and where the money is coming from and the Heritage Foundation and the Judicial Act. He understands the entire room, but he couldn't get that job. No, because it was Dick Durbin's turn. That's how Democrats roll. And until that stops happening, I think we're going to continue fighting an asymmetrical war here. Is there any sort of small policy fix that we can make that would help any of this? I think court expansion is pretty small. I mean, it's just a simple bill.

I do think structural reform is the answer, but I will give you something small. Ethics reform. People outside of our world, Professor Murray, are just latterly, thanks to Jane Mayer and the New Yorker, oh, this Ginny Thomas person seems to be corrupt. Yeah. 30 years of it, folks. The bald corruption of the Thomases is getting air now. The bald corruption of Brett Kavanaugh got some play back when he was nominated. The Supreme Court is the only court, is the only court in the country that operates without ethics

rules. According to the court, only the individual justices can hold themselves to any standard. That's ridiculous. And a very kind of small bore change to change the ethic, to apply ethics rules to the Supreme Court might actually do some good. Let's actually put in when justices must recuse themselves from cases. That might be of a help, you know, at least might lessen their ability to literally go out and fundraise on behalf of a political organization like the Federal Society, that might stop, right? And generally, people are in favor of ethics. Generally, ethics polls high. So I think that in terms of a small-bore transitional change, just the concept that ethics should be applied to the Supreme Court would be a step in the right direction.

So you've mentioned the Jane Mayer article in the New Yorker about Ginny Thomas and her connections with far right conservative organizations and how that has sort of influenced or has come up in petitions to the court and cases that are argued before the court where her husband sits. There's also a New York Times Magazine profile just last week on the same thing.

Has the battle against these dark money forces really changed in the last few years because of the energy of perhaps Senator Whitehouse or the reporting efforts of folks like Jane Mayer? I don't know that it's changed. Again, I can't say that it's changed until I see some consequences. Like it's what we are now seems to be, and I think this goes for many things. I think this goes to why I wrote the book, right? What we are in right now is a point where we are trying to get information into the hands of people who maybe haven't been paying attention the entire

time, right? So we're kind of in a stage of, don't worry about being late to the party. Let's just embrace the fact that you showed up at all. Like that's where we are today, right? But we are still a very long way from taking that new information, taking that new focus and turning it into action, turning it into consequences, turning it into results. That's still a dream as opposed to a

reality. I hope we get there. And I hope that, as with so many things, I hope that the younger generation is ready to lead the way on this. I think when you look at the energy that they have around climate, the energy they have around guns, if you can just explain to them that the courts are the things that are preventing them from getting those things forward, that are preventing those policies from happening, that could create a lot of energy around taking back the courts from the Republicans. This is going to sound a little pie in the sky, but there's also the potential that the worst thing that can happen for conservatives is them getting exactly what they want, because they're about to get exactly what they want.

They're about to take away a woman's right to choose. They're about to unleash guns onto our subways and increase the number of mass shootings that we have. They're about to destroy climate change legislation. They're about to get rid of affirmative action. They're about to take away gay rights and trans rights. And once we are living in that conservative theocracy that they have so long wanted, perhaps people will realize that it's not a great place to live and be willing to do something about it. So the only upside of the next three or four years of this conservative supermajority is the prospect perhaps that their work spurs political action and galvanizes the left. I hope it's three or four years. I thought you were going to say three or four decades. Well, I'm just sort of thinking in the short term. Two last questions before we go. It seems so much of this is focused on the courts, but the Senate is also a real problem. And so one listener would

like to know what should we do about Joe Manchin and Kyrsten Sinema and their rigidity on these questions. I'd love for you to weigh in. What would you do? Were you in charge? Well, first of all, let's remember Joe Manchin and Kyrsten Sinema have actually been pretty reliable when it comes to Biden's judicial appointments. They've been terrible on the filibuster and terrible on structural reform change because they're not reformers. They're corrupted. But on the actual justices, they've been pretty good. So I'm not super worried about them in terms of this current nomination fight. Look, one of the reasons why I am in favor of court expansion, and people don't really understand this until I spell it out,

is that it is a way to fix the obviously broken Senate confirmation process. So if you had 20 more justices, 30 more justices, I mean, literally like big numbers here, then changing them out would become rote. It would become not make or break, you know, everybody to the mattresses kind of moment for the political parties. It would just be like, oh, and today we also nominated a new three or four in the same way that it already is for the lower courts where it's generally wrote, where you can have justices like Katonji Brown Jackson get 53 votes for the D.C. Circuit because they're like, oh, whatever. It's just a thing that they do as part of the normal course of business. Having more Supreme Court justices would do that. Another thing that it would do is that it would, I think,

make for much more moderate opinions. People say we want mainstream moderate opinions. Now, personally, I know I like crazy lefty opinions. That's just me. But if you want, you know, mainstream kind of center mass moderate opinions, let me tell you something, trying to get 15 of your friends, if you had a 29 person court, and so to get a majority, you needed 15 people on your majority, that's going to make for much more mainstream opinion. I like to say, if you just have to convince three or four of your boys to go out for a night, you could end up at a strip club, you could end up at a drag race, you could end up at some places, right? If you got to convince 15 of your friends to go out for a night, you're going to end up at Applebee's. You're going to end up at Olive Garden. You're going to end up at a nice, safe family place, right? And so if you want moderate decisions,

what you want is more justices because it means for a larger majority that you have to herd together. You need to write this up in an op-ed with like the Applebee's versus the strip club theory of judicial nominations. I would read it. I would buy it. One last question. Let's end on hopefully a high note, fingers crossed. We just got a new nomination, an historic groundbreaking nomination of Katonji Brown Jackson to the U.S. Supreme Court, the first Black woman to ever sit on the Supreme Court. Does it make you hopeful or is it just more of the same? Like surely this sparked a little flame of warmth in your cold,

dead heart. Yes. Cause we're getting rid of Brian. No, I'm just joking. Just joking. Brian's a very nice man. He's look, Brian doesn't get enough credit for it. He's honestly like the most justice against the death penalty that we've had for quite some time. I think that's great. Of course, I'm like, oh, will she be able to convince – no, no. Neil Gorsuch is not convincable on anything, right? Brett Kavanaugh, he's such a weak moral person that he just goes with the strongest man in the room. She's not going to – but you know what she might convince?

She might convince Kagan on a couple of things. She might convince Sotomayor who – Sotomayor has prosecutorial experience. She might pull Sotomayor on a couple of things. She might convince Sotomayor, who Sotomayor has prosecutorial experience. She might pull Sotomayor on a couple of things. Sotomayor might pull her on a couple of things. Sometimes just getting the liberals together to stay together would be enough of a victory for me. So I have hope that not only for the quality of her work and the quality of her opinions and her reasoning, I do have hope that like having people with her kind of background and experience give, you know, if nothing else, somebody to give Sotomayor and Kagan another friend on the bench.

Like I think all of that stuff is good and you never know how history plays out. You said it for three or four years. I worry about three or four decades, but like nobody expected Scalia to die. You know, these people, these are old people. People get hit by buses every day in this country, right? You never know what's going to happen. And having actual liberals on the court is always a good thing. So yeah, I have a lot of hope for her career.

I will be watching it with interest. I'm sure I'll be writing about it a lot. I think she'll be a great for joining us. And you can find Ellie's new book, Allow Me to Retort, A Black Man's Guide to the Constitution, at all major booksellers. Although maybe not in Florida, because CRT and all that. Thank you so much for listening. As always, Strict Scrutiny is a production of Crooked Media, and we are really grateful to all of the good folks at Crooked who help get us into your ear holes every week. And especially to Melody Rowell, our producer. Thanks for listening.