Strict Scrutiny - How Rights Went Wrong

Episode Date: August 23, 2021

Kate and Leah talk with Jamal Greene about his new book, How Rights Went Wrong: Why Our Obsession with Rights is Tearing America Apart.  Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts today. I'm Kate Shaw. And I'm Leah Littman. And since it is summer and we have a break from the court's work and the chance to do some deep dives and longer

conversations, we are delighted to welcome to the podcast Jamal Green, who recently published How Rights Went Wrong, Why Our obsession with rights is tearing America apart. So let's start by introducing Jamal, who is the Dwight Professor of Law at Columbia Law School. Jamal is a leading scholar of constitutional law and the author of many indispensable law review articles and op-eds. I'm going to just take a point of personal privilege and flag two of my favorites, which is his canonical article, The Anti-Canon, and actually my favorite tribute to Justice Scalia, which is an op-ed he published titled Liberal Love for Justice Scalia. Not to have the show devolve into a debate

immediately, but obviously my favorite piece is on the origins of originalism in the Texas Law Review. Maybe we do like a bonus, a little bonus segment in which we just debate what is actually Jamal Green's best article. And then Jamal, you can like mediate between these positions. Okay, so before he entered law teaching, he served as a law clerk to Justice Stevens and to Judge Guido Calabresi. In addition to his teaching and writing, he serves as co-chair of the Facebook Oversight Board. He also served for a stint as an advisor to then Senator Kamala Harris on the Senate Judiciary Committee during the confirmation hearings for now Justice Brett Kavanaugh. So Jamal, welcome to Strict Scrutiny and congratulations on publishing the book. Thank you. Happy to be here.

So why don't we just start by asking you to outline the basic thesis of the book, which builds on a set of arguments that you began developing in a Harvard Law Review forward you wrote in 2017, Rights as Trump. So just for our listeners, what is the basic argument of the book? The book is basically about how to handle rights adjudication and thinking about rights conflict in a context of radical pluralism and radical conflict. I think that we have tended our courts and by extension, people outside of courts as well have tended to approach rights conflicts as an opportunity to kind of decide who has rights and who doesn't have rights, as opposed to thinking about rights conflicts in much more granular terms that assume that because we're all different from each other, we all have very different values and commitments. And therefore, we have to figure out how to reconcile a bunch of different rights that we all have. So the book is trying to diagnose that and then kind of offer some strategies for getting around it. So let me ask you to talk in some detail about one piece of the story you tell, which is, you know, kind of both diagnostic and prescriptive.

And that sort of centers Lochner versus New York. Right. So anybody who teaches constitutional law, anyone who's taken constitutional law, it's not surprising that that's an important player in the book. But your discussion isn't really about the court's famously misguided majority opinion striking down the New York law that limited the maximum hours bakery employees could work. And instead, you focus on the dissents as representing two distinct paths in American law, right? So there's Justice Holmes' dissent, which is beloved by law professors, which, you know, basically says the majority is just wrong to hold that the Constitution's Due Process Clause somehow protects the right to contract to work an unlimited number of hours in a bakery, and famously contains the line, the 14th Amendment does not enact Mr. Herbert Spencer's social

statics, which is a laissez-faire economic tract of the time. But there's another lesser known today dissent by Justice John Marshall Harlan, and you are very much on Team Harlan. So how does that dissent represent a better approach to rights? So yeah, it's interesting, Kate, that you started with the anti-canon, which is a piece I wrote almost a decade ago at this point, which focuses a lot on Lochner and thinks a lot about, you know, Lochner is an anti-canonical case. In some ways, it is the preeminent anti-canonical case. But I think in a lot of ways, it's not as obvious to someone who's not well socialized

into American law why Lochner is such an anti-canonical case. When you look at other anti-canon cases, it's like Dred Scott and Plessy and Korematsu, and these are sort of obviously racist cases. Lochner is not as obviously about race. So I think that's part of what ended up getting me interested in Lochner, is that article and that set of themes. And because the stakes are so high in saying what's wrong with cases that we all think are kind of anti-canonical, it's important to sort of dig in, what exactly is the problem with Lochner? So New York passes this law, it says it's maximum cases that we all think are kind of anti-canonical. It's important to sort of dig in, like what

exactly is the problem with Lochner? So New York passes this law. It says it's maximum hours law for bakers in the state of New York. Holmes writes this dissent that you mentioned. And Harlan's dissent doesn't take the approach that Holmes takes, which is to say, look, there is no right to contract. Look at usury laws, look at lotteries, look at Sunday closing laws, look at all sorts of things that we do to bridge the right to contract. That's clearly just not a right under the U.S. Constitution. And Harlan kind of starts his dissent by saying, no, actually, there is a right to contract. We've recognized it less than a decade ago, in fact, in a decision of this court. But that doesn't answer the question, right?

The question is, why is the government doing this? Does it have good reasons for acting? What evidence is it relying on? So those kinds of questions, which don't put the court in the posture of saying, hey, you, New York bake shop owner, you just don't have rights. Constitution just doesn't care about you. It puts the court in a very different posture of saying, yeah, you do have rights, but other people have rights too. One of the ways in which they pursue their rights to health and safety and so forth is to pass legislation. We have to think about what kinds of commitments are underlying that legislation. And that's part of the constitutional case as well. So I use that case as an example of a different model and one that we've kind of lost in some ways because we have fetishized the approach that Justice Holmes takes in the Lochner case. So I love that. And I actually wanted to ask one follow-up question

about Lochner, which is something that I was somewhat surprised by in the book is that you spend not a ton of time, but some significant time on the biographical details of some of the justices who figure prominently in the cases that you're interested in. And I really liked those portions of the book, and I really learned from them. So you spend a decent amount of time talking about young Justice Harlan and Justice Holmes. I'm kind of curious what these stories about the justices' backgrounds, the social and political and legal milieus that they inhabited, sort of how those shaped them and their intellectual trajectories. What does all of that add to the constitutional argument that

you're making? Or is it just it's a book that's trying to reach a wide audience and it's fun to sort of add this kind of narrative? I was curious. Well, I think it's mostly the latter, right? So this book is not a monograph. It's a trade book. So it's a trade publisher. And I'm trying to reach an audience that isn't just law professors. So in a conversation with two eminent lawyers, I can just say, and Lochner, and just everyone knows what I'm talking about. But I think, and certainly my editors think, that it's more interesting if we can get into the biographies of these people a little bit. And I don't think it's entirely superfluous. I do think that there are aspects of Holmes's biography and Harlan's as well that do give some clues as to the sort of people these

were. Holmes is this patrician, Boston Brahmin, and his father actually originated that term in an essay in The Atlantic, who is just sort of weirdly unsentimental about everything in his life. And his approach to the law, I think, mirrors that in a lot of interesting ways. And we've come to kind of valorize, you know, the judge is supposed to pick out kind of legal abstractions that tell him what to do in the case, rather than focusing on the actual stakes of the case. And we sort of view that as being the sine qua non of what a good judge does. And I think that that's problematic in constitutional law. I think it may be less so in some other areas, but it's definitely problematic in constitutional law because it's not about legal abstractions. It's about people's actual joys and pains. And I think we lose

something if we ignore that. So maybe we can continue with a descriptive story about how the current approach to rights, you know, took form. And I take it that part of your argument is that the treatment of rights, or at least certain rights as essentially absolute, and as predictable, primarily by judges made sense at a moment in time when majoritarian processes were quite explicitly and brutally endeavoring to entrench white supremacy and to deny any and all rights to Black people, but that neither the absolutism nor judge-centered rights approaches is necessarily the best way today. So I guess, when do you think that shift occurred? I think I would reformulate it slightly, which is not to say that you have formulated it in an unfair way, Leah, because the more distance you get from a book, you know, I don't know what

I wrote in the book and what I think now anymore. But I would say not so much that there was a time when this was the right way to approach law, but rather that there was a time when this was a more sustainable way of approaching American law. And you can imagine a constitutional system where the only thing that we are prepared to recognize as rights is just the most abject denial of citizenship. And so once we recognize that, then that's a right. And if it's not that, then it's not a right. So in that universe, if you want to say, okay, we're going to have this categor of categorical approach, it's sort of easier if no one understands their life in terms of rights or understands their commitments and values in rights terms. But in the 1960s and the 1970s, and it certainly continues today apace, Americans recognize rights in lots and lots of different settings. Courts do, too. I think there are very good reasons for courts and American people to recognize rights in lots of different settings. But I focus in the

book on roughly the first five years of the 1960s, culminating in Griswold versus Connecticut, where you've got criminal procedure is starting to undergo its revolution. Free speech is understood in very different ways during this period. The sexual revolution is alive and growing. The women's rights movement is alive and growing. Government benefits or rights to government benefits becomes a very live issue. And so you've got a multiplicity of rights claims by people in all kinds of areas. And you can approach that through a number of different strategies, right? You can say, okay, all these people are wrong and actually what they're doing is not rights. And the only rights are the things we thought were rights 20 years

ago. That's one strategy. I think no one pursues that strategy and for good reason, because it shuts down a lot of claims that we think are important. The other strategy, the sort of opposite strategy, well, not opposite, but the strategy that I think we've pursued is to say, in rough terms, which of these rights can we properly analogize to the categories of things that have been recognized as rights under the U.S. Constitution? So race being the paradigm case. So how can we sort of compare things to race or in the free speech context, viewpoint discrimination as a category of discrimination? We try to sort of compare things to those abstract legal categories. The third option, which is the road not taken, is to not think in terms of

categories at all, but just to take each of these cases on their particular merits, to think about what interests the government's trying to pursue, how much it seems to burden people, what kinds of alternatives are available. That's what Justice Harlan does in the Lochner case. And in the middle of the 1960s, that's understood as inviting judicial activism in ways that are thought to be unacceptable by people on both the right and the left. So that path is kind of rejected in the U.S. at the same time, not exactly the same time, but in the subsequent two decades or so. In lots of foreign courts, they're doing exactly that, faced with exactly the same kinds of problems. But they don't have the same baggage that we do. They don't have the same baggage of

Lochner. They don't have the same baggage of race as being the central paradigm case of a rights violation. And so I think you see a very different path and a very different response to a complex rights environment that I think is a healthier response. And we've been sort of laden with some baggage that we're still dealing with. So your invocation, of course, outside of the United States is, I think, a good pivot. And we wanted, of course, to ask you about the parts of your book that talk about, you know, you write with evident admiration about the way, or at least I took it to be admiration, about the way that the constitutional law and politics of abortion have developed in Germany in particular, as compared to the United States system. So I've got a lot of questions

about that part of the book, but we'll try to limit ourselves so we can kind of cover more ground. But first, can you talk us through the sort of German experience with the constitutional and kind of political questions around abortion regulation? Sure. And here's where I'll definitely refer people to chapter five of the book, which is about abortion rights, because it's a complex story. It's a complex story, both in Germany and in the U.S., more complex than I'm able to say in the book even. But the German experience is a really interesting example because it's a sort of parallel universe in a lot of ways, putting to one side for the moment all the various things that are different in Germany and West Germany at the time. In the middle of the 1970s,

abortion rights are controversial in the U.S., they're controversial in Germany, they're more controversial in West Germany at the time. I think there's a lot of evidence of that than they were in the U.S. at the time, and more divisive. Rose decided in January of 1973, roughly two years later, the German constitutional court decides its own abortion case coming from a very different direction. So Roe comes from the direction of states that have criminalized abortion and whether that violates the autonomy rights of women. The West German court is confronting a legislature that has just liberalized access to abortion, actually liberalized it in ways that would be, that would fall short of what Roe would require, right? So their abortion politics are, in U.S. conventional terms, to the right of where

the U.S. was in the 70s, but they had just passed an abortion liberalization law. And the question the court was called upon to answer by the social Democrats, who their political parties can make challenges to laws, pre-enforcement challenges under the Constitution, is whether that liberalization law respects the value of fetal life. Very interestingly, as you both know, in Roe, Justice Blackmun tries to address the question of whether the U.S. Constitution recognizes fetal personhood and says that it doesn't. And part of the case for saying it doesn't is that he says the whole case would fall apart. And he looks at various examples around the country of ways we've regulated the unborn, and says the case would fall apart if we recognize fetal personhood. The German court doesn't even pause on the question of whether the value of fetal life is of constitutional significance. I mean, it spends

about a paragraph on that question and says, of course it is. I mean, this has something to do with Germany's own history and the idea that the court is not going to say that certain lives and certain living beings are less valuable than others. But that doesn't end the case, right? So the case involves multiple rights that have to be blended together, optimized in some way. And so not just the value of fetal life, but also the value of what in German constitutional law is called personality, but we would think of in terms of autonomy or substantive due process or something. So the German court ends up requiring the state to pursue policies that recognize both the value of fetal life and the autonomy of women. Long story short, over time, the parties, the various disagreeing parties in Germany,

come to frame their arguments in terms of both of those values, end up settling, and it really is a political settlement in the early 1990s, end up settling around a set of policies that focus very heavily on support for women who are deciding whether to terminate a pregnancy or not. So how do you preserve fetal life? Well, you can try to do it by criminalizing abortion, but that's not a very effective way of doing it. The better way is to give people actual choices. And so there's a focus on prenatal and postnatal care and on childcare and on employment guarantees and on social safety net. And that's part of the constitutional questions in the case. And one of the points of the chapter is not to say that we can emulate that model here.

I don't know if we can emulate that model here. There's a lot of water under the bridge, right? But to say that there are ways of arriving at political conversation around even a very difficult, very controversial issue. And there are ways of people contributing to that conversation that don't require a court to step in and declare that one side of that issue involves rights and the other side doesn't involve rights. That, in fact, political settlement is consistent with saying that there are rights involved on both sides, even for a controversial question. So I'm glad you mentioned how the German courts have considered issues like child care or, you know, parental leave and whatnot in, you know, thinking about

the various rights or interests that are at stake in the regulation of abortion. Because one question I had is whether your approach or your suggested approach to rights adjudication might work better in some contexts than others, or perhaps whether it just like overlooks certain ways in which like our law and society kind of operate. Because, you know, part of the problem you identify with right thinking today is how individualistic it is that we would do better to conceive of these claims in more collective or communitarian ways. And the German example, you know, to my mind, shows how they thought about the decision about whether to bear a child as implicating, you know, collective and communitarian interests, and the interest in creating social structures and laws to support people in their

individual choices. But in a world in which the United States doesn't have those kind of social structures or parental leave policies, do we think that shifting the rights adjudication approach in the United States or in the courts would cause us to adopt a more communitarian collective approach to, again, creating laws and social structures that would empower people to make actual choices, rather than having their choices being constrained by, you know, material economic social conditions. Or if we shifted to more of a collective, you know, communitarian proportional rights adjudication, would the rest of law and society just kind of stay the same and individuals

would be forced to bear the consequences and internalize all of the costs that, again, in the German system of adjudication are kind of shared more collectively? This is a big question. And I think, I mean, the first thing I'll say is that the book is not intended to be utopian or to be even that optimistic about the role that courts can play in restructuring society. It is optimistic, or at least I should say pessimistic, about the role they're playing now, which is to say that I think courts are making it worse. No court can save a terrible society or a society that's unwilling to care for other people. I just don't think that's a court issue. You just have to take that as given. There are ways that I think you can lean into that.

There are ways that you can make it worse. So I think our courts encourage us to think about our commitments in terms of what kinds of rights we can hold as a Trump over other people. I think that there are absolutely circumstances where it's important to hold rights as a cudgel against other people. But I think those circumstances are not nearly as rich as the courts seem to think they are. Now, the German example, of course, you're right that Germany has a bigger social safety net than the U.S. It has for a long time. It didn't really in the 1970s. So things have changed in both the U.S. and in West Germany since then. I don't know how much the court had to do with that.

I suspect not that much. Right. But I do think that one of the important points that the book tries to make is that rights do not just reside in individual claims made to courts. In fact, they don't paradigmatically reside in individual claims made to courts. When the state passes a law that puts in place a social safety net, or the state passes a law that protects people against gun violence, or the state passes a law that protects people's public health. That's people pursuing their rights. And that's constitutionally protected. That's at stake in lots of constitutional controversies.

And so when we talk about, just to go back to abortion rights, when you talk about abortion rights and you talk about a social safety net, I think this is something the German court understood well because the German constitutional court and the German constitution is not understood quite in individual rights terms. It's understood in terms of the values that the system has to pursue. When you pass a law that says people have to be given an employment guarantee, you are protecting not just someone's right to a job, but you're also protecting the reproductive choice.

And that's something that we just have a hard time getting to, getting to conceptualizing rights in those terms. And I hope that more people read the book and can get there because I think that's the only way we can really live together. Yeah, I think that's a great and important theme of the book, just that rights are not the sole province of courts and that institutions of state and local and federal government and school boards and educational institutions and civil society and many, many other players are involved in kind of constructing and elaborating sort of rights regimes. And you do it, you know, it's a theme that you it's both implicit and I think you return to it a bunch of times explicitly in the book. And when you're talking about the abortion example, you basically say, look, Germany's high court sought to put abortion into politics instead of

trying to take it out, right? It set forth some parameters and that it let the political branches do the real on the ground implementation. And it's a, you know, a motif, again, that you return to again and again, that courts do best when they give general parameters and identify interests, and then basically get out of the way and let the political processes kind of really resolve most contested questions. So I guess the question that for me follows from that premise is just the degree to which your argument is predicated on a functioning political process that actually does manage to channel majority preferences. I mean, a related, I guess, but distinct question is how you think about cases that come to the courts but involve the political process or voting and how courts should approach those kinds of claims, right? Is it a similar sort of kind of balancing or mediating

approach? I mean, as I was thinking about this, like Anderson Burdick, that kind of test that courts already use when adjudicating a lot of constitutional voting cases is really just like a balancing test, right? How strong is the state's interest? How serious is the impairment of the right to vote? And most of the time, it ends up resolving in favor of the state and not the individual claiming an infringement of the right to vote. To echo Leah's question about the degree to which this approach might work better or differently in different areas. First, does the argument fall apart if the political process isn't working? And relatedly, how should courts approach their role in preserving

or protecting a functioning political process so that the rest of the system actually functions. Sure. And like Leah's question, a very good one. I'll say a couple of things. So one is that when I talk about politics as the place where we resolve conflicts about rights, I don't mean the Senate chamber or the White House necessarily, although those are obviously part of politics. I mean, the political culture. So in this conversation, right, this is, we're engaged in a form of politics right now as we talk about these issues. And we talk about these issues in terms of their stakes. So when you talk about voting rights, you talk about them in terms of their stakes, rather than talking about them in terms of the Anderson verdict test, right, which is not a real thing. That's a legal

abstraction, right? So what I'm trying to encourage is a political conversation around stakes as opposed to a legal conversation, a strictly legal conversation around things like strict scrutiny. There's your plug. The second thing I'll say is, and here I'll get a little bit nerdy and say, you know, there's some resonance with John Hart Ely and with, even though I criticize Caroline Products with Note 4 in the book, but there's resonance in that what John Hart Ely in his famous book, Democracy and Distrust, was focused on. He said judicial intervention should happen when we see a breakdown in the political process. And he tried to identify where there were breakdowns.

And for him, famously, that's when the political insiders are keeping political outsiders away and when policies are burdening certain kinds of minority groups. I think that's the right instinct, to say that judges should be intervening when there are breakdowns in politics. But I think that those breakdowns have to be identified in less categorical ways. Breakdowns aren't just when certain discrete and insular minority groups are being discriminated against. They're also I mean in lots of different ways, capture politics, right, that can also reflect a breakdown in the political process. Voting rights in violations are classic examples of breakdowns in the political process. I want the judicial conversation to look like what an I might structure it a little bit differently than the court does. I would certainly come out differently on some cases than the court does. And so nothing I say is a guarantee of any particular result. Right. But the conversation should be about the stakes. And that's not just in what we call politics, but also in courts, because constitutional law is not distinct from politics in the way that courts sometimes pretend it is. So could I ask you about two examples of arguably the sort of framework that you just described, which is courts attempting to resolve a given question by discussing the stakes,

you know, at issue, you know, in the dispute and attempting to balance different considerations on both sides. So another arguable voting rights example is the court's recent decision in Brnovich versus Democratic National Committee, where Justice Alito says, look, you consider the size of the burden on different groups. You consider the extent of any disparity against that. You weigh the state's interest. You consider how prevalent or common or widespread a given state practices, and you kind of put all those things in a bag, you shake them up, you see what comes out. And right, like, that's, that's how we analyze claims under Section Two of the Voting Rights Act. And then a second example, I think, is arguably, you know, abortion rights in

the United States under the undue burden standard, where, you know, under Planned Parenthood versus Casey, the court says, well, you know, or at least in Whole Woman's Health versus Hellerstedt's articulation of the Casey undue burden standard, you weigh the benefits that a law offers, you know, to the state's legitimate interest against the burdens on women. And again, you look at those two things and you ask, like, you know, does a law go too far or is it acceptable? And, you know, those are examples of courts considering the stakes on both sides. I guess I tend to think that the court has applied both of those standards in ways that under-protect one set of interests, you know, voting rights, as well as women's access to abortion. And I guess I'm curious to know whether that is just a problem with, as you were

suggesting, how courts apply, you know, the interest balancing approach, or is it an indictment of interest balancing approaches, which kind of might allow courts to overvalue interests, you know, on sides with, you know, which they, you know, identify more or more sympathetic to. And, you know, that's obviously not unique to a rights balancing approach or interest balancing approach that happens in rights claims, too. But I guess I'm just curious whether those frameworks are approximations of interest balancing approaches or not. So I think as to the two options you gave, is this sort of an error in application or is this just a problem with balancing tests?

I think the answer is probably both. So on Brnovich, I would say something a little bit different about these two, because Brnovich is, as you say, a statutory case. And Section 2 of the Voting Rights Act, as amended in 1982, arises because of the court refusing to engage in this kind of approach in cases where it could not identify categorically discriminatory intent, right? So court says, you know, we just don't see this as a constitutional problem at all because we can't see intent. And so Congress remedies that and says, no, that's too narrow. What Congress is telling the court to do is what I think the court should be doing. Now, the court in Brnovich takes that and I think narrows it in ways that Congress did not intend. So that is, I think, just an error in statutory interpretation. Casey, I think, and Casey being applied in however one thinks it's being applied in Hellerstedt and in June Medical is, I think, an example of an area where the constitutional stakes

are such that I don't think it's avoidable to say that you're going to see some kind of balancing happening in some way. Now, the way the U.S. approach to rights is constructed is that the balancing happens on the front end. So you do the balancing and deciding whether the right exists or not, right? So the kind of pressure, let's go back to the summer of 1992 and what kind of pressure was being put on Roe versus Wade and what the alternative to that was, right? So Chief Justice Rehnquist writes an opinion that is a majority opinion saying that Roe is wrongly decided and should be overruled. And part of the reason he believes that is because he thinks that there are important rights that are not being respected and that they can't be respected, inconsistent with Roe. Casey, I think, does try to say, no, there are ways of thinking about these

rights in the same way. I think Casey is an advancement over Roe versus Wade. I would come out differently on lots of cases. And I think the reason I would come out differently on lots of cases and the reason, Leah, that you come out differently than lots of judges on lots of cases is because we just have different values from other people, different commitments from other people. We're all different people. And, you know, I think that one can make a strong argument for the values you think are important and try to persuade someone of those. But I think for courts, which are tasked with making a final decision and saying who's right for all time and who isn't, I think they're

obligated to think seriously about and try to optimize. I use the language that the German theorist Robert Alexey uses to optimize those values in the ways that you have to use your judgment and reach a lot of qualitative judgments and try to persuade people about how valuable certain kinds of rights are to people. I think there's often

money left on the table because we've devolved into the only way I can win is to deny that what you say is important. And, you know, I think you can get to better politics, to better political outcomes if we don't think that the stakes of litigation is that one side's going to win entirely or one side's going to lose entirely. So maybe let's pivot now and talk about Masterpiece Cake Shop, which is a case that you discuss a number of times in the book. And, you know, you offer it as kind of what I take to be sort of a paradigmatic use case for your preferred approach. So Masterpiece Cake Shop involved a baker, Jack Phillips, who refused to bake a wedding cake for a same-sex couple. And you suggest that the court missed an opportunity to put into place, I gather, some kind of parameters that would have resulted in a

negotiated outcome of some sort under which this baker would have had to either supply the cake for the same-sex couple or maybe to find someone else to do so. And I guess my question is, would that have served the kind of settling function that you suggest? Now, I actually really appreciated the portions of this discussion that suggested there was the kind of rhetoric surrounding Masterpiece Cake Shop amplified the kind of distance between the parties. There was a maximalism to the kind of rhetoric around the case and its framing. You suggest that actually the distance between the parties was rather modest and a creative court

might have fashioned a result that everyone could have lived with. And I guess I just want to push back a little bit on the suggestion that the Jack Phillips kind of plaintiffs of the world would have accepted the kind of settlement that you describe, right? I mean, I was reminded a little bit of the political branch compromise around the contraceptive coverage mandate of the Affordable Care Act, right? So the executive

branch devised a system in which religious objectors could basically, you know, produce a certification of their objection to providing contraceptive coverage, and the federal government would step in. And that resulted in a number of rounds of litigation. Because that that seemed to me exactly the kind of solution that you were proposing with respect to the Baker, right? Just like, you know, it's a complex, pluralistic democracy, and claims are going to be in conflict, and we just have to figure out creative solutions. I mean, it gathers, you know, a really sort of simplified overview of your thesis. But I guess maybe to complete the question, it feels to me as though a lot of your book is kind of pitched at the political and legal left as maybe, I don't know about the primary culprits, but among the primary culprits of this kind of rights absolutism or

rightsism, as you call it. And I guess I'm just not sure. It feels to me as though the problem of absolutism and rights claiming is far more acute on the legal and political right today and that Jack Phillips and what I imagine would have been his reaction to a solution of the sort that you describe is kind I use Masterpiece Take Shop as an example of, I think maximalist is a good term here, where the case is framed as, in order to decide this case, we've got to decide whether either religious freedom or freedom of speech has to trump a right to not be discriminated against on the basis of sexual orientation. And I think that that's not the right frame for this case in that there were important, I think more important religious freedom than freedom of speech issues involved here. And I think there are important anti-discrimination issues involved here that would have been easier to see if we also saw that when a state passes an anti-discrimination law, they're protecting people's rights in ways that we should respect constitutionally and not just as a statute that someone happened to pass. But I take the crux of the question. So at one point is, is this blaming the left more? I don't think people on the right take the book to be blaming the left more. I think I've heard more people saying, well, isn't

this just a left liberal law professor, you know, trying to say that sort of there's a more neutral, politically oriented way to reach, you know, the results that you care about. But there are examples where I do think, where I do blame the left sometimes. So I think that's accurate. The underlying question, I take it to be, aren't people just going to, if you have unreasonable people, aren't they just going to push their advantage as much as possible? And you use Hobby Lobby, Little Sisters of the Poor as an example of this. But one of the things I'd say to that is we can have a conversation about whether it is more burdensome on a religious affiliated employer to provide insurance to their employees that includes contraceptive coverage,

or whether it's more burdensome for them to apply for an exemption. Those things, I think just about anyone would say, those are actually different from each other. These are different cases. Whatever you think the outcome should be, these are different from each other. But the way that it's painted by a certain view of religious freedom is that we actually can't say whether these are different from each other. Because as long as the religious objector says, this is important to me, we can say no more. We have no, like, that's it. That's the case. And that just can't be right as a matter of constitutional law decided by secular courts. We just can't outsource constitutional law to whatever someone says as part of their

religious commitments. So the plea is not to say, listen to unreasonable people. The plea is to say that we should not take unreasonable positions to be required. The law is able to distinguish between different situations and different kinds of burdens. And that's exactly what judges should do and should discuss. Because people differ from each other and people weigh things differently, they're going to come out differently in different cases. I have no doubt that if, you know, Samuel Alito decided, you know, I'm going to adopt everything Jamal says in his book, I'm fully on board. You know, he comes to a very different set of outcomes than I do. There's no doubt about that. But that's going to happen. That happens now. And that happens now in a way in which one is able to say, I'm doing this because the framers said I have to do it this way, or I'm doing it

this way because the way the Constitution is written says I have to do it this way, or I do it this way because here's this test from a case that I decided a few years ago, and it says I have to do it this way. Those kinds of approaches shield the rest of us from the conversation, because then it just becomes a conversation among legal elites. And so we don't have any access to that conversation. That conversation is taken out of the political culture as if it is just the same kind of conversation as a question of, you know, who owns Black Acre, when that's not the kind of question that these difficult constitutional questions are. They're continuous with political conversation. Doesn't mean that

law and politics are the same. Judges have a different role to play than the rest of us do in political conversation. But they shouldn't be having a totally different conversation when we're talking about our constitution, not the judge's constitution. So I guess I have a question about the relative value or work that the outcome of a case is doing versus the reasoning in the case is doing. So I'll stick with the Masterpiece Cake Shop example, just because we're on that. So in the book, you talk about Masterpiece Cake Shop. And, you know, I take it from the discussion that you think, as Kate was suggesting, like a sensible remedy would have been, you know, some set of principles that allowed Jack Phillips, the baker, to refuse to make the cake so long as he found someone else to provide the wedding cake for the couple. And, you know, in service of that conclusion, you know, you draw a comparison between LGBTQ discrimination and discrimination against racial minorities, particularly in the Jim Crow

era. And you say anti-Black racism, unlike homophobia, was pervasive and had the implicit sanction of the state. You know, there isn't an epidemic of gay customers in Colorado being refused artisanal wedding cakes. And so I take that to be, you know, an example of how a Judge Green might, you know, have reasoned through the case. But like, I'm imagining how a Judge Littman might have reasoned through the case. And a Judge Littman, you know, would say, yes, right, there isn't a similar history of owning LGBTQ individuals as property, but there were anti-sodomy laws, violent mom action against LGBTQ individuals, state indifference to the LGBTQ community, you know, thinking of the Reagan lack of concern for the AIDS epidemic, you know, the murder of Matthew Shepard, and many different things that kept LGBTQ people in the closet. And, you know, this legislative anti-discrimination protection is a way of safeguarding rights. And so, right, I say applying that ordinance to everyone is just fine. And,

you know, I get that they have interests on the other side and that this interferes with their beliefs, but I too am held to a bunch of laws that conflict with my beliefs, including religious ones. And we are a pluralistic society. We have to learn to serve people and inhabit spaces with people with whom we disagree. And that's the project that this anti-discrimination statute is in service for. But again, I'm not underselling your interests. I'm not saying you don't have any. I've just balanced them in this way. And I guess I wonder whether the reasoning in that case, and maybe my articulation of that reasoning is really bad, but let's imagine I did like a good balancing of interests, an actual balancing of interests. But I reached the outcome

that the religious objector was still bound by the anti-discrimination statute. I guess my question is another variation on Kate's. Like, would that really have mattered to Jack Phillips and the people representing him? Like, I guess my intuition is no, but maybe that's just my pessimism. So I'll say a couple of things. So one is just on this particular case. I just want to make something clear about the case that, and this goes back to my point about what they're actually disagreeing about. And one can certainly say that this is cynical or that Jack Phillips is being cynical or that he's being disingenuous in some way. But his claim was not that he shouldn't serve gay customers. His claim is that he doesn't want to bake a cake for a same-sex wedding.

That's a different case than someone who puts a white-only sign in their window. Again, as he said, and again, one can question his credibility or whatever. I don't know him, right? But he said, if it were a cake saying, I hate same-sex weddings, he wouldn't have baked that cake either, right? Because he thinks that that's an ideological stance that he doesn't want to associate his cakes with, right? So again, whatever one thinks about the outcome to the case, my point is that it's a different situation than the Jim Crow South, where people are just like,

you are a lesser human, I will not serve you. And those differences matter in a society in which we have conflicts about things like same-sex marriage. Now, does it matter whether, you know, how things are reasoned? You know, does that matter to a Jack Phillips? I don't know if it matters to Jack Phillips. The claim that thinking about rights in the more binary way that I'm trying to criticize is more destructive of social solidarity is a prediction and it's speculation. I don't have an empirical basis for saying that. But if you tell someone, look, the reason you lose is because you don't have any kind of constitutional claim at all, versus telling someone the reason you lose is because you do have a constitutional claim.

Look, there are other claims that matter too. It is a different posture for a court to take. It's a different posture for our courts to take in general. And I think it's a healthier posture for them to take. And again, I don't think this solves polarization, but I don't see how you don't make it worse. If you say our job as a court is to just, look, we look at this totally vague constitutional texts and we decide who has rights and who doesn't, even though that's not in any obvious way connected to this text. You know, the answer to that question is not determined by the text in any obvious way. But I'm going to say, because my job is to settle things, I'm going to say that one of you has to win for all time and

the other has to lose. And my prediction, and if I'm wrong about that, I'm happy to cop to that. But my prediction is that that's worse than trying to encourage people to think about the rights of others when they think about their political conflicts. And when I think about the right outcome in Masterpiece Cake Shop, I think this is also important to say, I don't think the best outcome in Masterpiece Cake Shop is they litigate this and get to the Supreme Court and the Supreme Court says the right answer to this is, you know, you've got to find a sous chef, right? I think that's a better outcome than some others. But I think the right outcome in Mastery's Cake Shop is it doesn't get litigated at all because people don't see the stakes of litigation as giving absolute victories to one or, you know, Jack Phillips doesn't think it's worth it for him to fight this fight and says, you know, I've got this objection. So maybe I'll figure out something else to do so that I don't insult people and kick them out of my shop.

And we work it out because that's the way that people who disagree with each other work through their conflicts. They work through them rather than going to court. So we've been talking a lot about the cases that you write about in the book, and we thought maybe in the couple of minutes that remain, we'd get your take on some of the court's very recent decisions and how the approach that you advocate would have looked or maybe actually was even already at work in some of those cases. So the first one that we wanted to ask about was Mahanoy, what we've called the salty cheerleader case, in which Justice Breyer, it seems to me kind of does something similar to what you are advocating, which is right to say, you know, these students have, you know, rights. I mean, maybe there's an on-off switch that the court does sort of flick to the on position in a

way that is problematic at the outset, but does seem otherwise to be saying there are important rights on both sides here. Student speech rights, the right of a school, a public school, that's certainly a source of, you know, political and legal contestation to exercise some kinds of controls over student speech that it deems damaging. And it's sort of, it seems to, you know, kind of incorporate all of those considerations in deciding that the school went too far in that case. So, so has, did Breyer get an advanced copy of your book? And is that actually what he was working from, is my question? No, I, I got a, I got an old copy of Breyer's book is more like it. Um, uh, and I,

you know, I, I, there are lots of things I disagree with Stephen Breyer about, but, um, but he has been the person on the court who has been most sympathetic to the kind of proportionality analysis that I that I basically support in the book. And I think that his approach to lots of constitutional rights questions is he's asking the right kinds of questions. And in the cheerleader case that, you know, that it seems about right to me. Like, how could it not be the case that the school has some interest in what students are saying off campus? And how could it also be the case that their interest, you know, doesn't depend on what the person said and what the context is and so forth? I think the student speech cases in general have been sub rosa. It's a knucklehead thesis. Like if you're being a knucklehead, your bong hits for Jesus sign, your sexual innuendo at the student council elections, you know, you lose.

But if you're saying something, you know, you're protesting the Vietnam War or you're protesting the cheerleading policy, right? These are, they're being honest and trying to, you know, talk about their views. And that's, we basically protect those things and basically don't protect your right to just say whatever you want. And that's fine, right? That sounds about right. So maybe one other example of a justice other than Justice Breyer arguably embracing such a proportionality or interest balancing approach.

And that was in Fulton v. City of Philadelphia, where you had some justices imagining what a world post-employment division versus Smith would look like. And in her concurrence, Justice Barrett said, yes, I'm open to revisiting Smith, but I am unwilling to embrace the proposition that Justice Alito does, which is all laws burdening religious practices are presumptively unconstitutional. Instead, I think maybe that world could be a proportionality analysis, you know, that considers, you know, the various interests at stake and how those interests play out, you know, in a particular case. Is that kind of an example of the interest balancing approach to adjudication, you know, that's represented by the book. And I guess one other question is, you know, one concern that has been raised with that approach is, well, at least under Justice Alito's world, you have an absolute rule that tells justices to treat, you know, all claims by different religious groups the same, whereas under a Justice Barrett world of proportionality, that vests more discretion in, you know, the

judges and might allow them to favor, you know, some religious groups more than others. Again, I don't think that's necessarily different from the world that we're living in now, but it is a possibility under a proportionality balancing approach. So Justice Barrett's opinion in the Fulton case, I think is super interesting. I think it's encouraging because I think that Justice Alito's approach, which would restore a version of, or not restore, would create a version of strict scrutiny in these cases that has never existed, is problematic. I think Smith is also problematic. And I think most people on the left thought that too back in 1990 when the paradigmatic religious freedom case wasn't an anti-LGBT case. Now it is. And so the politics of Smith change a bit. But Smith is not a progressive opinion to say that we just never, no matter what, just never take a disparate, a substantial burden on religious practice to be a constitutional concern

unless it's intentional. That also seems problematic. So that's what Barrett basically says. Now, she doesn't say much more than that. And so I'd want to know much more about what she has in mind going forward. But I think that the idea that we need something, some middle ground, some ground that's contextual, like all of law, susceptible to being misapplied, susceptible to being applied poorly. That's part of why I like, and I think I've evolved here as well over the course of my career, but I like transparency here about what exactly is being weighed and what isn't being weighed. Smith is certainly not certainly susceptible to being applied differently to different kinds of religions. You rely a lot on majorities. But I think the overall point here, in this area as in others, is that a constitutional case is not just about the rights at issue, at least the way we understand rights in traditional

terms, which is a plaintiff who comes to a court claims a right. So we shouldn't think of that as just a case about how do we protect the rights of that plaintiff? That's, of course, very important. But it's also important to understand what is being, why the person is being burdened in the way they are. That involves rights as well, not rights that are being brought to a court in the particular posture that we've associated with rights as a court-protected thing that protects individual plaintiffs, but there are rights elsewhere as well and other sides. And Fulton is certainly an example of that, where there are rights of couples to not be discriminated against in the foster't ignore that you're talking about the Catholic Church, right, that's been engaged in adoptions for a long time

and has a very well-established good faith policy that lots of people disagree with, but is their genuine religious belief, right? So I think you can't ignore any of those things. And so if you can't ignore either of those things, then I think there's a problem with what Justice Alito says and there's a problem with Smith. So I think that's probably all we have time for, unfortunately.

So thanks to Jamal Green for coming on the podcast. Thanks to Melody Rowell, our producer. Thanks to Eddie Cooper, who makes our music. Thanks to Liam Bendixson, our intern for the summer. And thanks to all of you for listening. And if you'd like to support the show, you can become a GLOW subscriber at glow.fm forward to support the show, you can become a Glow subscriber at glow.fm forward slash strict scrutiny or you can get a back to school glow up at strictscrutinypodcast.com.