How the GOP is Trying to Steal the 2026 Midterms
00:00Strict scrutiny is brought to you by Americans United for Separation of Church and State.You don't destroy 250 years of secular democracy without gutting precedent, shattering norms, and dropping a few billion.The same people in groups that backed Project 2025 are part of a larger shadow network that's relentlessly pushing to impose a Christian nationalist agenda on our laws and lives.Church state separation is the bulwark blocking their agenda.One of the last bastions of church state separation is our public school system.So they're pushing vouchers everywhere.They're arguing for religious public schools.Yes, you heard that right, religious public schools at the Supreme Court in a case we've talked about on the podcast.
00:39And honestly, probably in another Supreme Court case soon.If you're listening to us, you're seeing the writing on the wall.We can, we must fight back.Join Americans United for separation of church and state and their growing movement because church-state separation protects us all.Learn more and get involved at AU.org slash crooked.There's a lot going on right now. Mounding economic inequality, threats to democracy, environmental disaster, the sour stench of chaos in the air.I'm Brooke Gladstone, host of WNYC's On the Media. Want to understand the reasons and the meanings of the narratives that led us here and maybe how to head them off at the past?That's on the media's specialty. Take a listen wherever you get your podcasts.
01:27Mr. Chief Justice, please support.It's an old joke, but when I argue men 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.Bonsorno and welcome back to Stricts scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it.I'm your host today, Melissa Murray, and I am back from a much-needed summer sojourn in Croatia and Italy.Yes, that is right, listeners.
02:26I am the Neil Gorsuch of this podcast because I had the most fantastico time in Dubrovnik and Romewhere I saw amazing art, ate amazing pasta, and regaled my friends with amazing tales of textualism and ice truckers.Just kidding about the last part.We never talked about the textualism.In fact, it was a vergonia, if you will, very missed opportunity.Anyway, folks, this is all to say that your girl is back, but I am without my trusty co-hosts, Kate.and Leah. But don't cry for me, stricties, because help is on the way.Happily, as part of our rotating summer respite schedule, I will not be alone for long.
03:07In fact, I am joined today by a very special guest host, someone whom I've known for a verylong time and have admired for even longer. So please give a warm strict scrutiny welcometo Amati Gandhi, the co-chief content officer at Rewire News Group, and the co-host of Rewire'sabsolutely terrific podcast. Boom, Lawyered. Thank you. I'm so excited to be here. I just have to tellthis story to your listeners, because I don't know if I'm going to get another chance, but it was about 10years ago that I was in the offices of Sister Song. It was like my, I was right in the beginning of myjourney along the reproductive justice road. And they had, they had your copy of your reproductivejustice textbook. And I was like, oh, it's Melissa Murray's textbook. I love her. And so I have a
03:51picture of me from 2014 with your textbook like it must have it just come out so yeah like i thinkthe first edition came out in 2014 right after hobby lobby um yeah like so it's so different nowthe book is literally only three pages it used to be like 346 like all the rights go i don't knowall the rights all the justice gone gone um i'm joking listeners um there actually is still a textbookand it's still about 400 pages with lots of stuff, lots of stuff that this court has done.But guess what?All of that is to say that Amani and I are a great team, and we have a banger of an episode for youtoday.
04:31As is our summer habit, we are going to start by recapping some of the news from the Article 2,Article 3, Vortex of Shame, and Gird Your Loins.There is a lot of news.Then we will have two terrific interviews for you.First, we'll feature my interview with Duke Law School's Brandon Gaines.Garrett about his recent book, Defending Due Process, which considers the age-old question.Is due process a pillar of the Anglo-American legal tradition or merely a luxury item that wecan all do without? A legal burkin bag, if you will. After that, Leo will talk with her Michigan
05:05colleague, Richard Primus, about his riveting new book, the oldest constitutional question,enumeration and federal power. How does that sound, Amani? Are we ready to dive in?Let's do this. I'm excited.Let's get going.quite me horrified because it's Donald Trump's America after all. After all. Anyway,let's start with some breaking news. And it is breaking news for real, for real, because we justgot an opinion in JG versus Trump. So these developments in this case continue to come fast andfurious. It is the case concerning the deportation of Venezuelan migrants to El Salvador under the
05:40auspices of the Alien Enemies Act. That is that 1700s era wartime statute that is beingused to deport migrants to a maximum security prison in El Salvador. And as you'll recall,listeners, in March, Judge Bozberg of the D.C. District Court ordered the Trump administrationto turn around the planes that were heading to El Salvador and to return the Venezuelan migrantswho were on those planes because the administration says that they are members of the Venezuelangang, Trend de Aragua, to return them back to the United States for proceedings that accord with therequirements of due process. The administration, as we know, did not heed that order.Thereafter, in April, Judge Bosberg issued an order and an accompanying opinion, finding that
06:27there was probable cause that some federal officials had willfully violated the temporaryrestraining order that he'd issued, meaning that those individuals could be found to be in criminalcontempt. Bozberg offered the government an option to purge the putative contempt by assertingcustody over the removed individuals or proposing other methods of complying with his order.And he also stated that if the government opted not to purge, it had to identify the executivebranch officials who, being aware of the court's TRO, made the decision to persist in the deportationsto El Salvador. Bozberg further stated that his next step would be, quote, to request that thecontempt be prosecuted by an attorney for the government, and if the government declines or the
07:10interest of justice requires that he would appoint another attorney to prosecute the contempt.So really strong measures from a judge who basically had it with people playing in his face.And then naturally, the administration took all of this personally. It appealed Boseberg'sruling to the D.C. Circuit seeking an emergency stay of the order or a writ of mandamus terminatingthe criminal contempt proceedings. The circuit quickly issued an emergency stay and took some time toconsider the mandamus request.And then last Friday, the D.C. Circuit issued a 2-1 ruling granting the government's motion for a writ of mandamus and excoriating Judge Bowsberg for overstepping his authority.Now, the lineup should surprise exactly no one. The two judges in the majority were Greg Katz's and Naomi Rao, both of whom are Trump appointees. And then Judge Nina Pilar was in dissent and she is a Obama appointee.
08:05That's right. We got this on Friday, just as we were about to tape.this. So we are literally unpacking this in real time. The ruling was issued as an unsignedprocurium opinion, but both Judge Katsis and Judge Rao filed concurring opinions elaboratingtheir positions. Judge Pallard also filed a dissenting opinion. And we haven't had a lot oftime to unpack all three opinions, but I did go through them quickly. And I just have a coupleof things that really stood out to me on this very quick cursory reading. First of all, Judge Rao reallyseems to think that the real problem here is district court judges. And as she writes, quote,the order forces a co-equal branch to choose between capitulating to an unlawful judicial order
08:51and subjecting its officials to dubious prosecution. It's a very strange way of putting it,but please proceed. Your mileage may vary. This is incredibly wild, I think, especially in lightof the fact that all of this is proceeding under the auspices of the Alien Enemies Act, which is awartime statute, and no one has shown that it has any applicability during peacetime.So the idea that this is all plausible and fine, and it's the judge who's being unlawfulseems just, again, really wild and crazy.It is doubly wild, I think, in light of all of the public reporting on Arez Ruveni'swhistleblower complaint.
09:30Erez Ruveni was one of the government's lawyers that was charged with presenting thesematerials to the courts.He was the one who dealt with the Ibrego-Garcia case in Judge Zedens' courtroom.He has said in many public statements in his whistleblower complaint that everyone was awarethat Judge Bozberg wanted those planes turned around.And so the idea here that it's the judge, that's the problem, as opposed to DOJ officials,is really interesting.You know, the whistleblower complaint alleges that DOJ officials were intent on
10:07completing the deportation, despite what Judge Boasberg had ordered, and they basically had noqualms about giving the court the middle finger on this. So, again, just absolutely wild in my view.Amani, would you think of the Katz's opinion? I mean, I thought the Rao opinion was out there,but what did you think? I mean, Judge Katz's opinion is no better, right? It reads like magicalthinking, which is to say, it totally inverts and rereads the facts of the case and the government'sinteractions with the district court. Katzis writes that the government was not willfully defiantbecause Judge Bostberg never really asked them to turn the planes around, which,okay, that part actually did make me laugh out loud. I was like, um, like he literally was like
10:52turned the planes around. Like he literally was like, hey guys, turn these goddamn planes around.I just literally, he writes, quote, in its show cause order, the district court itself disclaimed two ofthese three commands referenced in its oral order. It stressed that it had never imposed anyfreestanding requirement to turn planes around, and it repeatedly denied having imposed anyoverarching requirements to return suspected Trenda Aragua members to the United States.You know what, Melissa, I'll have what he's having. Yeah, he's, he's, it's the good stuff,for sure. It's the good stuff. This reminded me of the proceedings before Judge Bosberg, where, you know,Judge Boseberg had issued this sort of oral order, and then the lawyers were like,
11:38well, you didn't put it in writing, so I wasn't sure that I was supposed to put,it just feels like it's the same move that the government lawyers were making before,only this time it's been translated into judge talk and now has been made part of the federal reporter.I mean, it is just absolutely wild, and I think shocking that it's coming from a member ofjudiciary commenting on the work of a fellow judge.Yeah, I can't imagine as a practicing lawyer being like, well, it was just an oral orderfrom the bench, so who knows what I'm supposed to do?So I'm sure that more will come from all of this and we will continue to cover it, but
12:17this was an absolute bombshell on Friday morning.Anyway, Amani, you know what I really hate?Please tell me.I hate it when you're president and you push a wildly aggressive, probably unlawful, anddeeply unpopular agenda in the first six months of your administration. And Congress is like,you know what, champ, all of that sounds great. Keep doing you. And the voters are like,I don't know. I can't wait for the midterm so we can get some new people in here, flip the Houseof Representatives, and maybe get a less supine Congress, which then prompts you as president to think,
12:49hmm, what could I do to avoid the midterm curse whereby the party in power loses seats in Congress?what could I do to maintain, maybe even expand my party's majority in the House of Representativeswhile keeping the people from using this upcoming midterm election to make their voices heardand achieve the policy changes that they want? By now, listeners, the answer should be obvious.What's a president to do? Maybe engage in a little off-cycle nonsenses redistricting among friends,or, if your mileage varies, a little light anti-democracy among friends. So again, if you are thepresident, you might in these circumstances prevail upon the pliant governor of Texas, for example,and ask him to draw some new districting maps in order to find you the president five new congressional
13:36seats, enough seats to hold and even expand your house majority. And even though this is wildlyunorthodox because we just did a census, the pliant governor here, Governor Greg Abbott of Texas,is fully on board. He is like, yes, sir, may I have another? No problem. Would you?you like fries with that. And here we are in the middle of Texas's new ploy to redistrict the stateand give Donald Trump new seats and maybe even more authority in the House of Representativesto push his agenda into the remaining time in office. Yeah, it's great. It's really great. But let meadd some additional context here. It's a good plan. It's a good plan. It's a fantastic plan. WhenDonald Trump came into office in January 2020, the House Republicans had the smallest
14:25majority ever seen in Congress in the last 100 years.And it was a problem.And it was a problem for them.Like, not a huge problem, but a problem.But a bit of a problem.A little bit.Not only are the Democrats in striking distance to flip the house in the midterms.Even if the GOP maintained control of the chamber, a thin majority like the one that they
14:47had in the 119th Congress makes it hard to be as aggressive as the president and handmade speakerMike Johnson want to be.For example, the Republicans had a lot of trouble getting the big, beautiful bill throughthe house because of the narrow GOP majority.All you need is like Chip Roy saying asking questions and all of a sudden you're in deeptrouble.So it makes sense that they want to expand their majority.So it's easier to pass new regulations on cryptocurrency, which they had a lot of trouble
15:18doing with this thin majority in the house.The big beautiful bill would have gone through faster, maybe would have sounded lesscorny if like they'd had more of a majority to pass it. Who knows? But expanding, the majoritycertainly seems to be part of this, not simply just holding it, but actually making it biggerso that they can be more aggressive moving forward. Right. And that's because currently in theHouse of Representatives, the Republicans have a 219 to 12 majority with four vacancies. So it's notgreat for them, right? And that means that Democrats only need to win a handful of seats to win backthe House in the midterm election. Winning back the House means that the Democrats would be able
15:58to push back harder on the administration's policy agenda, have more robust oversight authority,and have the simple majority necessary to issue articles of impeachment, you know, if that sort of thingIt's all coming together now. It's all coming together now. You definitely don't want a Housein Democrat control. I can see it now. Right. And I'm not saying that anyone is worried about thesethings, right? Like, who's worried about articles of impeachment giving the rampant lawlessnessrunning through this administration? But it does give a sense of the stakes and why someone wouldgo to such extreme lengths to thwart democratic engagement. Well, happily, Amani, at leastsome Texans have a spine about this. So the Democrats in the Texas legislature recognizing
16:45that Governor Abbott would need a quorum in the legislature to move forward with this plan toredraw Texas's maps, they decided that they were just going to leave the state. The most epicIrish goodbye in history. Absolutely epic. So they chartered a plane and they flew to Illinois literallyto escape Greg Abbott. Absolute legends. But Governor Abbott is not one to give up, especially when hehas a president to please. So Abbott ordered the Texas Department of Public Safety to arrest the Democratsand bring them back to Austin.But there's one small issue.The Department of Public Safety
17:25doesn't have jurisdiction outside of Texasso they can't actually bring the legislators back, right?Federalism, you pesky federalism, you rats.And so Senator John Cornyn,Texas's senior senator,that is not the gentleman from Cancun.Oh my God, you are a real fan of the podcast.Oh my gosh.
17:46We said that way back in the daywhen Ted Cruz went to Cancun.I can't believe you remember that.It's Ted Cruz, they're crying online for crying out loud.But John Cornyn called on the FBI to get in the mix to bring the legislators back to Austin.And according to Cornyn, the FBI agreed to help out.Great.And so it seems like there are some people who think this is a good idea.
18:09Let's roll the tape.Should the FBI get involved?Well, they may have to.They may have to.No, I know they want them back.Not only the attorney general, the governor wants them back.if you look, I mean, the governor of Texas is demanding they come back. So a lot of peopleare demanding they come back. You can't just sit it out. You have to go back. You have to fight it
18:28out. That's what elections are all about. Just like ridiculous. I don't want to be the turd inthe punch bowl here, but I would really love to know what role federal law enforcement has to playin a state legislative dispute. But, you know, the president thinks it's probably okay here.and, you know, he seems to have a great grasp of these federalism principles, all to say that I think Leah, if she were here, would call all of this a vibe. Not necessarily law, but a vibe. No law just vibe. Isn't that y'all's catchphrase? We have many catchphrases. One of the many catchphrases. It seems unclear that the FBI actually has jurisdiction to intercede here and forcibly bring the legislators back to Austin, but John Cornyn says that they are getting involved, and,you know, whatever federalism be damned. In any event, Governor Abbott has taken a more traditionalroute to bring these recalcitrant legislators back into line. So last Tuesday, he filed anemergency petition in the Supreme Court of Texas seeking to remove from the legislature,Texas state representative Gene Wu, whom Abbott described as the quote, ringleader of the
19:41derelict Democrats. According to Abbott, the legislators have abandoned theiroffices justifying their removal. The Texas court gave Representative Wu until Friday evening torespond. Now, it's not clear that Democrats have a long-term strategy here. Texas state legislativepositions are part-time gigs, so these legislators have real day jobs and families that they willneed to return to at some point. Abbott has until December to get these maps redrawn for use in the26 election. And it's not clear that Democrats can hold out for four more months, right? And it's notclear that their families are going to want to hold out for four more months without seeing,you know, mommy or daddy. Right. They've done this before. This isn't the first time Texas Democrats
20:27have fled the state, but usually it's meant to draw attention, public attention, and this hascertainly done that. What is clear, though, is that if this absolutely brazen ploy to thwartdemocracy so that Texans cannot register their preferences in the midterm's works,it's going to embolden other state legislatures to similarly engage in mid-census redistrictingto hold the House of Representatives for this president.And it's a race to the bottom.Like blue state governors have indicated that they are ready to respond in kind,although it's unclear whether they would be able to do so in time to counteract
21:05what Texas is doing in the upcoming midterm election cycle.But they're ready, and this just builds and bills.and it goes straight to the bottom.It's also clear, I think, that a big portionof the blame for what is happening right nowlie squarely at the feet of the United States Supreme Court,which in 2019 concluded that federal courtshad no role to play in addressing partisan gerrymandering.
21:29And that decision in Rousseau versus Common Causemidwifed what we are seeing right now.States literally going to the mattressesand doing absolutely insane shitto redraw district lines in order to consolidate one party rule.And again, it's the same court that is hobbling the Voting Rights Act, which, incidentally, turned 60 years old last Wednesday on August 6th.It's the same court that blew up the VRA's preclearance regime in Shelby County v. Holder in 2013 that hobbled Section 2 of the Voting Rights Act in Bernovich v. D&C.And now, in Louisiana versus Calais, which was held over from last term, this court could further whittled down Section 2 of the VRA by making it harder, maybe even.
22:13impossible for states to draw majority minority districts to ensure that underrepresented minoritiesactually do have representation in congressional districts. So thanks, guys. You're doinggreat. Hell of a job. Got to love that white voters are complaining about two majority blackdistricts. Get a grip. Nice. Speaking of brazen employees to thwart democracy, the Trump administrationhas reprised its quest to mess with the census, ostensibly to influence the allocation ofcongressional seats. Now, listeners, this requires us to take a little trip down memory lane.So listeners, you'll recall that in the first Trump administration, the president directed Secretaryof Commerce, Wilbur Ross, to add a citizenship question to the census. And he said it was necessary
23:03to do this because we had to enforce the Voting Rights Act. That became a catchphrase on strictscrutiny as well. Well, that ploy was rightly challenged in the courts and ultimately the SupremeCourt shut it down, although only after Thomas Hofeller, a major GOP strategist who was known asthe Michelangelo of partisan gerrymandering, died and his estranged daughter in the most epic actof pettiness and filial betrayal discovered and made public a cache of documents on Hofeller's hard drivethat included reports that said that adding a citizenship question to the census would allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats and consolidate certain states under Republican control.So that's the backstory of that.And although the court ultimately ruled that the administration's stated reason for adding the census question to better enforce the Voting Rights Act was quote unquote contrived and likely a pretext for.
24:06for discriminatory motive, you don't say, it didn't actually rule on a related question.And that related question was whether the president can actually exclude non-citizens fromthe census, which brings us to 2025. On Thursday, President Trump made the following announcementon truth social. Quote, I have instructed our Department of Commerce to immediately beginwork on a new and highly accurate census based on modern-day facts, figures, and importantly,using the results and information gained from the presidential election of 2024.Sidebar, not quite sure what presidential election results have to do with the census,but I digress.
24:49He continues, people who are in our country illegally will not be counted in the census.Thank you for your attention to this matter.That's literally what it says.But what is clear is that a census that excluded,non-citizens would violate Section 2 of the 14th Amendment, which requires the, quote, whole numberof persons in each state to be included in census data used to determine how presidents and membersof Congress are elected. It also seems likely that the president taking unilateral actionto change the census would violate the separation of powers. Article 1 of the Constitution
25:25in powers Congress, not the president, to carry out the quote, actual enumeration.of the country's population in, quote,such manner as they shall by law direct.And in Title 13 of the U.S. Code,Congress directs the Secretary of Commerceto follow a once-a-decade census schedule.So what you're saying here, Romani,is that the 14th Amendment is like,
25:49you've got to count everyone.And Article 1 is like,also Congress plays a role here.You just don't get to do this, you know, laterally.And the president's like, Constitution.I don't even know her.Like, what's that?Yeah.
26:01Yeah. 14th Amendment? Never heard of it.Well, I mean, it's getting a major assist from the court and like completely underminingand whittling away the 14th Amendment, but we digress. In any event, listeners, it's unclearwhether the president wants to change the 2030 census or whether this is about a mid-censusheadcount, like between two censuses. And whether this shift will have real effectson how we think about congressional apportionment or whether it's just, again, a head count.So I think what is clear, though, is we shouldn't look at this as a disaggregated effort,but rather should think about it in tandem with what is happening in Texas right now
26:41in this effort to redistrict that state and maybe other states in advance of the midterm elections.This is all about trying to redraw these lines, redraw these districts,and consolidate control in both state legislatures and in Congress.strict scrutiny is brought to you by zbiotics pre-alcohol let me tell you if there's a surefire way to wake up feeling vacation fresh after drinks with friends it's with pre-alcoholzibiotic's pre-alcohol probiotic drink is the world's first genetically engineered probiotic it was invented by phd scientists to tackle rough mornings after drinking here's how it workswhen you drink, alcohol gets converted into a toxic byproduct in the gut.It's a buildup of this byproduct, not dehydration.That's to blame for rough days after drinking.
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28:32So if you are unsatisfied for any reason, they'll refund your money, no questions asked.Remember to head to Zbiotics.com slash strict and use the code strict at checkout for 15% off.You want to know what else is going on here?When I hear about how the administration is burning birth controlrather than sending it to needy people in Africa?Yeah.Tell me about it.Let's go.
29:05The dismantling of USAID has had serious consequences for global aid efforts.And now the New York Times is reporting that the Trump administration is using the destructionof USAID to kill Trump.Two birds with one stone.That's efficiency.That's efficiency right there.That is very efficient.Doge.
29:22Somebody called Elon Musk.Doge.Apparently, it's not enough to abruptly end global aid to developing countries.You have to really stick it to women around the world while doing it.The New York Times is reporting that the administration plans to incinerate over $19 millionworth of contraception that was stockpiled in Belgium for distribution to third worldcountries under the U.S. AID program. $19 million. Just like burning it? You heard that right.Just like literally setting it on fire. Just legitimately setting it on fire. Rather than selling
29:58the contraceptives to NGOs that are willing to take these materials off our hands,the United States would prefer to set these materials on fire ablaze because we're endinggovernment waste, apparently. Wow. So according to the New York Times, quote,it is not clear why the government would not sell or donate the contraceptives.The department in its statement referred to policies preventing the U.S. government from providingaid to overseas non-governmental organizations, NGOs, that provide or help with access to abortionsbased on a rule that the Trump administration reinstated.That rule is what's known as the global gag rule or the Mexico City policy, which is a U.S.
30:39government policy that restricts foreign NGOs receiving U.S. global health assistance,from performing or promoting abortion as a method of family planning, even with their ownnon-U.S. funding. Now, if you're wondering, what on earth might the Mexico City policy globalgag rule, which deals with abortion, have to do with stockpiles of contraception?You are asking exactly the right question. So, Amani, I'm not quite understanding how all of thisfits together. So please tell me how burning contraception helps limit the spread ofabortion across the world.I mean, before I get into that, I think we need to talk about the fact that there's not a better
31:21metaphor for this flaming dumpster fire of an administration's priorities than literallysetting birth control on fire.Diaphram's a blaze.Right.A blaze.Flaming marinas everywhere.Flaming marinas.That sounds like a shot that you would have at a bar.
31:40It is a good cocktail, right?I'd like a flaming marina.But let's be clear. This is obviously not about ending government waste. This is about punishingwomen and people capable of becoming pregnant. This is about letting ideology override science andbasic human decency. Because when you're so committed to controlling people's reproductivelives that you would rather incinerate millions of dollars worth of contraception than dispatch itto people who desperately need it, that's really just performative cruelty. Because there's noreason why he doesn't just hand over all the contraception to Jared Kushner and let him sell it,
32:15you know, put another $19 million back into his pocket. No, they're burning it. Allegedly. Allegedly.Allegedly. Allegedly. And you are absolutely right to tie this to the global gag rule, which has beenproven over and over again to increase abortion rates and maternal mortality. So if this weretruly about reducing abortion, the data just doesn't support these kinds of measures. But we both know,it's never been about reducing abortion, right?It's about punishing people,especially poor, brown, and black peoplefor having sex,
32:48for trying to live lives on their own terms,for wanting control over their futures.And to be very clear,back to your original point,like how does any of this have to do with abortion?All of this is undergirdedby right-wing junk sciencethat insists that certain forms of contraception
33:06are actually abortifashions.To be clear,birth control pills are not abortifashions.IUDs, flaming marinas are not abortifashions, right?Emergency contraception is not an abortion.But conservatives have been running a decades-long propaganda campaignto conflate contraception with abortions so they can attack both at the same time.Because in their view, a fertilized egg is a person.
33:33And if a contraceptive prevents that person from being implanted into the uterus,then that contraceptive caused an abortion, right?And this isn't an accident that they're using this junk science.It's a strategy for creeping fetal personhood.That is actually really efficient.You can strike a blow at global aid.You can strike a blow at reproductive rights.And you can make the push for fetal personhood all in one fell swoop.
34:00Burn it to the ground.Yeah.And you can also own the libs, which is really like the driving force of most of what they do.Speaking of creepy person, oh, actually, you said creeping person.Not creepy personhood.Peeping personhood.That was my mistake.Sorry.
34:13Freudian slip.Anyway, what's that I hear, Amani?I think it's the sound of America getting healthier.No.Oh, sure.Nope.It's just secretary raw milk slash baby bear carcass cancelling existing government contractsto develop M RNA vaccines.
34:29So just a reminder that actual scientists, not brainworm hosts,agree that M RNA vaccines are the best line of defensein a pandemic because not only are they effective, they can be developed really quickly,allowing you to respond in real time to whatever the pandemic issue is and to respond to anymutations in the disease as they arise. Well, remember how much fun the last pandemic was?Really fun. It was a hoot. It was a hoot. It did get a little bit better when vaccines becameavailable and you can leave your house and stop wiping down your groceries with bleach wipes.But that may be a thing of the past and we may have to go into the next pandemic and
35:17seems likely that there very well could be another pandemic without the benefit of this technologybecause our Secretary of Health and Human Services has decided to cancel all of the contractsfor developing further mRNA technology and vaccines.is all part and parcel of RFK Jr.'s vaccine skepticism, right? And particularly hisdistrust of the COVID-19 vaccine, which was an MRNA vaccine. He called COVID shots,quote, the deadliest vaccine ever made. And in a social media post last Tuesday,he claimed that MRNA vaccines are ineffective against respiratory illnesses, like the fluand COVID. Scientists, real ones, actual scientists, vigorously dispute these claims.
36:04Right. So the MRNA vaccine, I think that's the one that's used every year to update the flu vaccine.Like it's an – yeah. Okay. Again, I got nothing.Yeah. And, you know, some people have speculated that these contract rescissions will prompt lawsuits.Yeah. And so I guess we'll keep you posted, meaning Melissa Kate.And Melissa Kate and Leah will keep you posted.All right. Again, the war on expertise continues. And in this case, while we're speaking ofactual expertise, or rather disdain for actual expertise, it's worth acknowledging that thePresident of the United States recently fired Dr. Erica McIntyrefer, who was the commissioner of the
36:47Bureau of Labor Statistics. And this firing took place after the Bureau released monthly jobsdata showing surprisingly weak hiring in July and large downward revisions to job growthin the previous two months. So she had to revise the statistics,President Trump says that this shows that they were always cooking the books or whatnot,although it's my understanding that the jobs data request goes out, people fill it out,but sometimes people fill it out late, and so you have to revise the data as new informationcomes in. So it's not unusual for the Bureau to issue revisions to its initial predictions.But in any event, experts reviewing the reports and the revised reports surmised that the reports
37:30indicated that the administration's economic policies were actually beginning to have a negativeimpact. And so apparently, the president decided to truth through it, posting on truth socialthat the country was, quote unquote, doing great. And I honestly think that would have landedbetter if he hadn't fired Dr. McIntarfer and instead had dressed up like a tiger and offeredthe whole country a bowl of frosted flakes. I would have enjoyed a nice bowl of frosted flakes. I would haveenjoyed a nice bowl of frosted flakes but instead Trump decided to fire the messenger always especiallyif the messenger is a lady right and maybe disband the bureau altogether apparently if there are no badjobs reports then there's no bad economy like if a tree falls in the forest is there a bad economy
38:18like this is the same thing they did during COVID like if we just don't test we don't know who hasCOVID and that means there's no COVID like it's exactly yeah it's really bonkers for what it'sWorth, Dr. McIntarfer was appointed commissioner of the Bureau by President Biden in2023 after a long career at the Census Bureau and other agencies, where she served underpresidents of both parties, including Donald Trump.So, wait, he'd actually, she'd been employed by him before.Yes.You're fired.
38:47It's probably what he said.You're fired.Yeah.You're fired.But notably, she was confirmed to the position with bipartisan support.To this position.Among those who voted for her confirmation was then, oh,Ohio's junior senator, Mr. J.D. Vance.
39:01Okay, so I love that.So she served under Trump before.She was confirmed with bipartisan support, including J.D. Vance, who is then the juniorsenator from Ohio.And now she's too partisan to have in this position, so we have to fire her, all becauseshe seems to be predicting that these policies, like the tariffs, whatever, are goingto lead us down a bad path economically.Yeah.
39:25Yeah.Allegedly.Allegedly.Okay.We haven't even scratched the surface.We're still going on the news more to discuss.On Thursday, President Trump announced a new requirement that colleges and universitiessubmit their admissions data to the federal government to verify compliance with the
39:44Supreme Court's decision in SFFA versus Harvard.That decision required schools to end their limited use of race as part of an holisticadmissions process.The government now is also requiring Secretary of Education.Ms. Education, Linda McMahon, to increase the number of accuracy checks on the data thatuniversities submit and to take action against any university that submits untimely or inaccuratedata. Just want to note, we are to think of the federal government in its quest for efficiencyand streamlining government processes now deciding to be America's best admissions counselors
40:25and actually going through and reading through admissions files.But I digress.The education department is also going to require universities to revamp their processesfor collecting higher education data.That's known as the integrated post-secondary education data system,and includes details about admissions, enrollments, financial aid.All of this information, apparently, will be made more accessible to the public.That sounds pretty weird and suss.
40:52But my real question in all of this, Amani, is how is the Department of Education reviewingthis data going to know that universities have been compliant?What do schools have to show for the administration to be satisfied that they are abidingby the law, right?I mean, like, the way that race was used before is that you considered race among other things,like whether someone was a tuba player and you needed a tuba player for your band orwhether someone was from Alaska and there was no one from Alaska in your entire freshmanclass. Like how do you disaggregate all of these different component parts of someone's profile
41:31to say that the real reason they were admitted was because of race? Like what is going to showthat this is all quote unquote merit base? Does every admitted student have to have a 4.0 and a1600 on the SAT? Is that enough? What are we going to do about legacies and recruited athletes who don'thave perfect grades and perfect scores? Like, what is the measure here? I'm pretty sure the measureis going to be how many black and brown students are at the school. Right? I mean, it seems tome like... So you're going to actually have to show a real diminution in the number of blackand brown students. And then they'll be like, yeah, you're compliant. This is all about merit.Right. Before you have 5%, now you have 1% perfect, doing great. Because it's like...
42:16Because it's about racial supremacy and racial hierarchy. It's not about merit.it's absolutely not about merit because if it was about merit you get rid of the legaciesright exactly like lacrosse players from brin marr or whatever would be out on their asses rightlike it's absolutely not about merit we're not checking the gpAs of you know field hockey playerswhat they're really after is fewer black and brown students and it's so annoyed me that theythey hung the harvard case around like asian students next like oh there aren't enoughAsian students and Asian students are complaining.And now the Asian student population is like,
42:51well, I mean, to be clear here,the government's intervention in this arena is predicatedon the fact that the government disperses federal fundingto these colleges.So as a condition for receiving these funds,they now have to submit to this regime.But I mean, it's a real question about academic freedom,a real question about how universities choose to cobble together their classes,
43:13like what they're looking for, what values.they're trying to pursue.And again, I think you're right.We're going to see real changes in what colleges and universities look like.Again, as they seek to show compliance with a metric that I don't think is really about metrics.It's really not.It's really not.It's about fewer black students, fewer brown students.
43:37More legacies, more athletes.Well, I'll say, this is interesting.Linda McMahon said that this will now assure everyone that, quote, aspiring students are being judgedsolely on their merits, not their race or their sex.And is this going to mean that all colleges are going to be like predominantly female now?Because the data shows that women applicants are much better positioned for entry andadmissions than their male counterparts.And in fact, there was a story in the New York Times after the SFFA decision that talked
44:08about how male candidates were so hotly desired by the colleges that schools like Wesleyand we're actually creating football teamsso that they could recruit menwhere they'd never had these before.So, you know, if we're doing this purely on merit,I guess all the ladies are going to be going to collegeand maybe the men won't.You think that's what they have in mind?
44:28I feel like white ladies, this is your time to shine.Just get in there and go to the best Ivy League school that you can.Something tells me that's not what they're seeking.Something tells me that's not quite what they're seeking.And honestly, in my view,I really think that people should be judged on race and sex, right?Like if you look at how Brazil has done their affirmative action program, they actuallyleft, they had quotas, and they left open spaces for Afro-Brazilians based on the slave trade.
44:56And now the schools in Brazil are very diverse.There's none of that, oh, but they're affirmative action babies and they're going to bestigmatized.The people who had spaces held for them actually did as well or better than like the moreelite students.So it's really just this country's just refusal to divest from white supremacy and alsoit's refusal to give black people any sort of reparations, even if it means, hey, go toschool.
45:21It's okay.We're not going to kick you out.All right.We still have some more news.Like, just never ending here.Do we get a drink break?Like a cocktail?I really do wish we could have a cocktail, like a mid-news cocktail.
45:36But let's continue.you. Okay. Last Thursday, a federal judge temporarily enjoying the administration's efforts to build animmigration detention center in the Florida Everglades. And conservation groups and the Miccosuckytribe sued Florida and the federal government on June 27th, four days after Florida began setting upwhat Governor Ron DeSantis called a, quote, makeshift detention center located right next to theEverglades National Park and within the Big Cyprus National Preserve. And if you're not from Florida,as I am, you won't know, but these are two environmentally sensitive areas within the statewhere there are some endangered species, lots of plant life that people want to preserve.
46:18In any event, within days, a tent facility that would house 3,000 detainees was erected,and the governor insisted that the facility was temporary and that the Everglades would simplygrow over it once the site was eventually decommissioned.So there wouldn't actually be a negative environmental impact, I guess.That seems like weird science, but okay.All to say, though, that Governor DeSantis on the state of Florida seem really eager to assistthe Department of Homeland Security in detaining immigrants.And there's actually plans to open another facility, another detention facility in North Florida.
46:58But at least for now, a federal judge has paused the administration's efforts to continuedeveloping alligator alcatraz while she has an opportunity to have a hearing on what theenvironmental impact would be both for the state and the affected interests, including the tribalinterests here. I feel like the sewage waste alone is going to have a pretty remarkable environmentalimpact. And now for the story that will not die, no matter how much the administration tries todistract us with Sydney's Sweeney commercials. La Fair Epstein.No, I can't do this anymore.We still doing this.
47:36It's just the story that won't die.I think now we sound like Donald Trump.Like, it's a little story that won't die.It was Obama and in the Clintons and it was probably, I know,Andrew Cuomo and that Anthony Weiner guy.It was all those people.It wasn't me.If you've been watching the news coverage of Representative Mike Flood's
47:54town halls in Nebraska, you know that folks want transparency on the Epstein saga.Take a listen to this.Why are you covering up the Epstein?files. Well, it seems that House Republicans are going to give the people exactly what theywants. Sort of. Last week, House Oversight Committee Chairman James Comer, who's a representativefrom Kentucky, formally issued a subpoena to the Department of Justice to release the files.And this was two weeks after a House subcommittee voted to compel the DOJ to do so. So as some peoplenoted, Comer's subpoena was sort of pro forma. He had to do it, but he did it. So there we are.
48:33So in addition to the demand for the Epstein files, Chairman Comer also subpoenaed documents or testimony from several high-profile figures who had either investigated or associated with Epstein in the past.And the list includes Bill and Hillary Clinton, Merrick Garland, Jim Comey, Robert Mueller, Jeff Sessions, Bilbo Biggett, like why is he in there?Alberto Gonzalez and Bill Barr.Curiously, the subpoena did not seek the testimony of Alex Acosta, the one of the one.one-time U.S. attorney in the Southern District of Florida, who, according to a 2020 DOJ report, quote, made the pivotal decision to resolve the federal investigation by having Epstein plead guilty to state charges and laid the foundation for Epstein to enter into a non-prosecution agreement.Not going to lie, seems like a weird omission.Like if we're bringing in all the people who are relevant here or simply had government positions in a period of time, might have included him.just a little bit.
49:34One would think.Notably, Alex Acosta also served as Secretary of Labor in the first Trump administration,although he resigned from that position in July 2019 amidst persistent questions about his handlingof the Epstein case when he was the U.S. attorney in Miami.The subpoena that was issued to the Department of Justice sets an August 19th deadline forthe department to hand over its records on Epstein and Galane Maxwell, that is Epstein'simprisoned associate. So I guess we will see what will come from all of this. I'm sure it will betotal and complete transparency. Oh, 100%. We're going to find everything out about Epstein and Galeen
50:14Maxwell. No doubt. 100%. Okay. All right. That was a lot of news. And we didn't even have time tocover the TikTok Calico Critters copyright lawsuit, which is wild. And honestly, listeners,you've got to look that one up. What's up ahead for us, though? So how? How do you?having covered all that news, we've got good stuff for you now. We ate the vegetables. Now it'stime for dessert. So right up next, listeners, is my conversation with Duke Law ProfessorBrandon Garrett about his recent book, Defending Due Process. Stay tuned.Strict scrutiny is brought to you by Stamps.com. Life admin. It is the worst. All of those tedioustasks that add up and are just no fun, leaving you with less time and less energy to focus on what you
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51:39from different carriers. This is really helpful when, for example, you are sending out books forpeople to read, or thank you mugs and t-shirts for people who read your book and helped promote ithypothetically. And I can do all of those things with Stamps.com without it turning into a millionand one different errands. Don't waste time worrying about being a postage expert.or standing in line to drop off letters and packages.Let Stamps.com do what they do best so you can do what you do better.Go to Stamps.com slash strict to sign up for a special offer.No contract, cancel any time.
52:12That's Stamps.com slash strict.Well, listeners, the second Trump administration has given us no shortage of legal news to cover.But perhaps surprisingly,A good portion of the news that we have covered since January 20th, 2025 has actually involvedprinciples that we thought were pretty well settled. Among them, the notion that the governmentcannot detain you, deport you, or deprive you of some benefit without giving you the opportunityto be heard. As many of you know, in March, the Trump administration detained a number of individualsfrom student protesters to alleged Venezuelan gang members. And as the lawyers for those individuals
52:56maintain, these detentions occurred in the absence of due process protections, meaningthat the individuals did not have an opportunity to challenge the government's decisionto detain them, nor did they have the opportunity to present evidence that would cast doubton the government's rationale for those detentions. In an oral argument at the D.C. Circuitinvolving the detention of alleged Venezuelan gang members, Judge Patricia Millett of the D.C.Circuit questioned the government's neglect of standard due process protections. Let'sroll that tape.No, but the point here was that there were plain loads of people.
53:32I mean, it was also, it's a class action.There were plain loads of people.There were no procedures in place to notify people.Nazis got better treatment under the Alien Enemy Act than has happened here where theproclamation required the promulgation of regulations, and they had hearing boards beforepeople were removed.And yet here, there's nothing in there about hearing boards.no regulations, and nothing was adopted by the agency officials that were administering this.
54:03People weren't given notice. They weren't told where they were going. And they were giventhose people on those plans on that Saturday had no opportunity to file habeas or any type ofaction to challenge the removal under the AEA. And like, you've agreed that two of thoseairplanes, people were removed under the AEA.As importantly, Judge Millett said the million-dollar question out loud.Here she is again.The question is whether the implementation of this proclamationwithout any process to determine whether people qualify under it.
54:41I mean, if the government says we don't have to give process for that,then y'all could have put me up on Saturday and throw me on a plane,thinking I'm a member of Trendaragua and giving me no.chance to protest it and say somehow it's a violation of presidential war powers for me to say,excuse me, no, I'm not. I'd like a hearing. He wouldn't say that. That actually is the question.Do we still have due process? And if we're not sure that we still have due process, does that meanthat the government can deport any of us without notice a hearing or any other kind of proceduralprotections? With that pressing question in mind, we thought it would be a good idea to talk to
55:23Brandon Garrett. Brandon is a leading scholar of the criminal justice system in constitutional rights.He's also the L. Neal Williams Professor of Law, as well as the founder and faculty directorof the Wilson Center for Science and Justice at Duke University School of Law. And perhapsmost relevant for today's discussion, Brandon is also the author of a new book, Defending DueProcess, Why Fairness Matters in a Polarized World. So Brandon, welcome to strict scrutiny.Thank you. I'm so excited to be here.Well, we are so excited to have you because we wanted to talk about due process, whether it still exists, and if it's been imperiled, why and what we can do about it.So let's just level set a little bit for those in the audience who aren't trained as lawyers.
56:08When we say due process, what do we mean?Well, and to be fair to those of us who are lawyers, the basics of due process don't actually come up that much in law school either because we just assume that it's in the background, that of course, the government can't just do totally random and arbitrary things to people.But that's the idea that the government shouldn't be able to do totally random and arbitrary things to people.And so the idea is you have a right to notice and an opportunity to be heard before someone who is impartial before the government tries to take your life liberty or property away.And a big part of the Constitution, namely the Bill of Rights, is actually principally preoccupied with the whole notion of due process.So there is an actual due process clause in the Fifth Amendment.but a number of the other provisions in the Bill of Rights, those are the first 10 amendments to theConstitution, concern questions of due process. So there's the Fourth Amendment, prohibition on
56:57search and seizure, has real due process elements to it. The Sixth Amendments, right to counsel,the right to a trial if you are being charged with criminal charges. The Eighth Amendments,prohibition on excessive penalties, all of these things really focus on these core attributes of dueprocess. So where did the framers get this preoccupation and how is it threaded through other partsof our legal tradition? Well, and so the due process clause is also a right that's so important.So nice, we said it twice. It's in the 14th Amendment because after the Civil War was thought to becrucial to make sure that just like the Fifth Amendment says you can't deprive people of dueprocess as federal officials after the Civil War. It was incorporated against the states.
57:39The Due Process Clause of the 14th Amendment says state officials can't take away life, liberty,or property without due process.But due process was referenced in the Declaration of Independence.It was well understood by the founders that you cannot live in a free societyif the government can take things from you, including your liberty, including your life,including your property, without some kind of a fair procedure.Ideally, and typically in court with a jury.Not always if it's not a criminal case, for example, or if it's not a civil right,
58:09but whether it's public benefits or your job or are you,going to be detained, charged with a crime, or held without a crime. All these things were understoodto implicate due process. It came from an old English due process tradition. Over the centuries,the English courts had emphasized with more and more rigor over time that you just can't havelocal officials or main government officials doing arbitrary things to people. That basicallylike, you can have police. That's okay. But that doesn't mean you have to live in a police state.Right. Okay. So these are foundational principles and they go back very far inour legal tradition, all the way back to the Magna Carta, you point out in the book.
58:48Why then, if they are so foundational, are they now under threat?So I talk about three reasons. One is due process in society. People don't value dueprocess the same way that our legal system does. And I have a lot of research on that.But it's understandable that people sometimes want to just, you know, I want to be treatedwith fairness, but criminals, fraudsters, non-citizens entering our country.they shouldn't deserve all the same rights.It's very easy to other people and figure, like,they don't deserve all these niceties.
59:20Like, sometimes we need to get results quickly,and we can't be occupied with everything playing out in court.Second is, judges have eroded due process protectionsand weaken them in different ways over the decades.And third, I talk about the dangers posed by technology,including AI stuff, but also algorithms.We see this in lots of different settings.The government can do things, not just to one person,
59:43but to hundreds of thousands of people with the push of a key.So one notion that you bring up repeatedly in the book is this idea of what's known as Blackstone's ratio.Yes.And this is the idea that it is better for 10 guilty men to go free than for a single innocent person to be wrongfully charged and convicted.And this is sort of foundational.Blackstone, who was a giant of the common law tradition, said it.But as you note in the book, there are.these cutting of corners? And people were like, actually, I'm really concerned that the 10 guilty
01:00:18people are going free, perhaps more so than I am, about the prospect of a single person beingwrongfully convicted. Why is that? Yeah, so Blackstone, English jurist wrote his commentaries that,although Thomas Jefferson hated Blackstone, but very... But he liked other things. But he liked otherthings. And in general, there's this idea that if you're going to convict someone of a crime, you have to bevery, very careful. And so our Supreme Court has many times cited to Blackstone, and one of theways that they do that, they say, like, why do we have a due process standard that you can'tconvict someone of a crime unless you have evidence beyond a reasonable doubt? Why do we have thatvery high bar to convict someone? Jurors need a lot of evidence. They need to be almost 100%
01:01:01sure in a criminal case. It's because... And the prosecution has to establish their case to thatstandard, which makes it an uphill battle for the prosecution. And they cite to Blackstone as part of that.Better to let 10 guilty people free.That's how sure we have to be if someone is going to be deprived of their liberty in a country that is a free country.But that said, so over more than a decade with my psychologist and lawyer friend Greg Mitchell,we've done these studies.We've surveyed about 15,000 people at this point.Adults in the U.S., people eligible to be on juries, giving them mock jury type scenarios.
01:01:33And we've asked them this question, which error is more harmful to society?convicting an innocent person or acquitting a guilty person, or are they both equally harmful?And most people do not say, blackstone ratio, convicting an innocent person, that's the worstthing that you could do. That's horrible. That's a miscarriage of justice. Most people don't saythat all we care about is public safety and not freeing guilty people. Almost everyone, like two-thirdsof the people surveyed across over a dozen studies, over 10,000 people, closer to 15,000. Mostpeople say both harms are equally serious. We care about due process, but we also care aboutthe outcome. We care about public safety. We care about both. And Democrats, Republicans,
01:02:16people of all ages, people of all demographics, people in different parts of the country,this is just a very widely shared view. People care about both. And you see it play out in publicdebates. People do not want to see serious criminals going free, but they also don't want to seepeople arbitrarily arrested for no reason either.Well, so if they're trying to hold these two things in equipoise, the safety of the public, as well as limiting the opportunity for wrongful convictions, why then are people more iffy on the whole idea of due process?It does seem that public safety often predominates in these discussions, not this idea that we're trying to hold these two things in balance.I think it's very easy for people to just assume, especially if they're told it, that this is zero-sup.Like, look, if you want to be safe in your community, we've got to lock them up.
01:03:06And if we don't lock them up, then you'll be unsafe.So, like, if someone comes on TV and tells you that they're sending not their best people,they're sending the rapists, the criminals, like, you might legitimately think that individualsfrom other countries pose a threat to public safety, and you might be willing to cut some cornerson due process for those individuals.I think people view it differently if they're told, oh, by the way, you know, if youconvict an innocent person, not only is that horribly unfair to that innocent person, butbut the guilty person now can act with impunity.
01:03:35They know they're never going to get punished.It's actually both bad things just happened.You've harmed public safety and you've harmed someone's rights in a horrible way.It's not zero-sum.That's the reason why we have Blackstone's ratio.Like both bad things happened.If you're doing things arbitrarily, you're going to harm public safetyand you're going to harm people's rights at the same time.
01:03:53And you're going to erode trust in the justice system if you're doing that sort of thing.People aren't going to believe that the justice system is fair if we don't actually have due process.Yeah.if you care about public safety, the people who actually are harmful, why would they thinkthat they're going to get punished if innocent people are getting punished? It's going to be badin both respects. And I talk in the book about examples where this has happened, where we'veactually implemented better due process protections and people are worried, is this going to betoo expensive? We're going to give lawyers to people at bail hearings. That's lawyers are
01:04:22expensive. And we're just going to like free more people from jail and there's going to be more crime.Instead, what we found is providing those due process protections actually help them andreduce crime. Fewer people in jail and less crime. Both good things happened. It was not zerosum at all. Okay. You mentioned bail very briefly. I want to come back to the whole questionof cash bail, as well as the broader apparatus of fines and fees that often occur in the contextof civil kinds of charges. They're not criminal necessarily. They're just sort of like traffictickets or parking tickets or things like that, that as you know in the book have real consequencesfor due process. And this actually has been an issue that has gained a lot of traction over the last
01:05:07couple of years. In the book, you mentioned the case of Damien Stini, who was a Virginia man whowas literally so overwhelmed by the fact of a number of parking tickets that just sort of increasedand escalated and basically made it impossible for him to have a driver's license, made itimpossible for him to have a job, keep a job, all of these things. He was one of these activists,or in his name, activists managed to get the state of Virginia to do away with the impositionof those kinds of traffic fees. And interestingly, for longtime strict scrutiny listeners,the Supreme Court in this term addressed a case involving the question of attorney's feesin circumstances where you had a situation where a state of its own volition removed the whole
01:05:54question of this apparatus of fines and fees, whether that was a win for purposes of the impositionof attorney's fees. That case was lackey versus Stinney. The Stinney was Damian Stinney. So again,lots of connections to the court, although not necessarily a direct one. But as you note in the book,fines and fees and cash bail have been a huge issue for due process. Can you say more about thatand how the weight of these likely, for some people, not that consequential set of obligation,But for others, an absolutely crushing set of obligations that absolutely overwhelms them.Well, just like we can have public safety, we can have police without living in a police state, we can have prisons, and we can sometimes, you know, jail people for committing crimes without having debtors prisons, without putting people in jail or in prison just because they're too or poor to pay.And it had been the case that in almost every state, if you couldn't pay a traffic ticket, oh, failure to comply.
01:06:51your license is taken away indefinitely.There have been a number of different jurisdictions around the countrywhere people who couldn't pay the fees for probation supervision.You have to pay for your own supervision.You don't pay the fees?Back in jail.And the Supreme Court has said from time to time over the years that, wait a minute, no.Someone should not be deprived of liberty just because they're too poor to pay.
01:07:13Like you have to do an inquiry.But these systems seem to metastasize.People like Damien Stinney cannot ease, they can't afford their own lawyers.If they couldn't afford a $70 traffic ticket, they can't hire a lawyer.And so unless the civil rights firm steps in and helps them, these things will go on.And, you know, local governments seem to think sometimes that, well, you know, we're going to make a lot more money off of these tickets if we have a big stick.If people have to pay their tickets, they have to borrow, they'll do anything to pay the ticket.Because otherwise, we're going to take their driver's license away forever.
01:07:44In many states, even like, okay, so serious DUI, serious, you know, vehicular manslaughter, your license will be taken away as apunishment for a year or six months. But if you can't pay $70 for a ticket, indefinitely, it'lllast forever. And many courts have not viewed this the way that the court did in Virginia, whichled to that law being struck down under due process, and then the legislature got rid of it.Some courts have taken this very formalistic approach, and we need the Supreme Court to step inand do something about this. Some courts have said, well, if in theory on paper there's a wayto ask the judge, to consider your poverty, even if judges never ask those questions, never tellany one of those rights, no one ever is told of the due process. If it's on paper,
01:08:23maybe that's good enough for procedural due process. That's another reason why thesesystems have exploded around the country. In my state of North Carolina, more than one outof ten adult drivers have an indefinitely suspended driver's license. Wow. Just huge numbers ofsome communities, 50% of adult drivers don't have a license. Wow. Another focus of the book isthe role that technology can play in cultivating the conditions under which due process might becurtailed. Can you say a little bit more about technology? And in particular, how do you thinkAI is going to shape the field and this whole question of due process in conjunction withalgorithmic justice? Yeah, so we're hearing more and more calls to improve government by bringing
01:09:02an AI so that we can like detect fraud or detect dangers. But there's a history of thatand it hasn't gone well. There have been due process cases which have exposed some of theproblems with AI, which is black box, meaning we don't know how it works. The developers themselvesmay not know how it works. A lot of people assume, because AI can be useful, and many peoplehave played around with chat GPT, and wow, the machine seems pretty smart. That, like, machinescan detect patterns that we can't, which is true. And so, like, we should use AI. It's valuable.But they're just terrifying cases where off-the-shelf systems were used. They're currently being usedin facial recognition, they've been used to demote or fire teachers, they've been used
01:09:48to flag people and take away their health care.And if it's the system as a black box and no one knows how the developer did it, eventhe developer may not know how their machine came up with its code, then how do you know?Why was your health care shut off?You're at the hospital and all of a sudden you get a $15,000 bill.Well, the computer flagged you.How?And how can you meaningfully challenge that if no one knows why the computer flagged you?
01:10:12If you lose your job or you're demoted, well, you're a poorly performing teacher.Why?I've gotten awards for my teaching.Well, we can't tell you.The computer flagged you.Or the computer flagged your face.It says you're the one who held up the convenience store.I'm innocent.
01:10:28How did the computer flag me?Can't tell you.It's a black box.That's the problem.The due process is just incompatible.If the system can't tell you what it did, then we shouldn't be using it in court, but these systemshave been used by the government and have been used in court.courts are only slowly grappling with the challenges to due process that these technologies pose.
01:10:46One of the things you talk about in the book, Brandon, is the political climate in whichdemands for due process may arise or demands to do away with due process may arise.So, you know, we've seen this before in the context of 9-11, the immediate wake of 9-11,where in the name of public safety and fighting terrorism, some people thought that maybe we shouldbe a little more free and loose with due process protections.I think we've also seen this in the context of the Me Too movement, in the heat of trying to hold individuals credibly accused of sexual assault to account, there's been discussions of maybe doing away with the more robust aspects of procedural due process.How do we maintain a fidelity to these principles in a political climate that shifts and moves in its dynamic and where the demand for due process may wax or wane?I do think that people really want to be treated fairly, and it's easier to appreciate due process if you see yourself in the situation.
01:11:46I mean, it's certainly like if you get a traffic ticket, you don't want to lose your license indefinitely.You want a fair chance to either pay the ticket or contest it.If it happens, it's one reason there's been so much movement around the driver's license suspension stuff.A lot of people drive. A lot of people can relate to it.People remember what it was like to be a student.Did I go to a protest as a student because I was caught up in the issue for thethe day, I may not have even known what the protest was about, but I thought it was interesting.I wanted to hear what people were saying. It's much harder to value due process when it's someone
01:12:16accused of something that he think is really despicable, and that's when it's most important.As criminal defense lawyers, we get that. Like some criminal defense lawyers clients are peoplethat are widely deplored. And that's when the protections really, really matter.That's the challenge. Like people care about fairness when it applies to us. But from the thirdperson's perspective, do we care more about process or do we care about cutting to the chase,cutting to the outcome. We don't know. It makes it harder. I'd also say, I mean, the phraserush to judgment is really important. It's really tempting to rush to judgment when you seesomeone who you think did something terrible and kind of like, why do we have to wait? Why can't we
01:12:53just do something about this right now? And that's what courts and lawyers are for. I talk in thebook a little bit about Oppenheimer, who was deprived of a security clearance. And lots of peoplewatch the movie. It was a really gripping movie, really about due process because you're not alwaysentitled to a trial. It wasn't a trial. It was a hearing before this security board,but you're entitled to notice. He got noticed. We're going to take your security clearance awaybecause we think you're a communist. He had a chance to respond, but it wasn't impartial, right?The hearing board was stacked with people who were out to get Oppenheimer. And that'sconsider now a great stain on our country's legacy. Like there have been public apologies.
01:13:28But during that time, did people think at the height of the Cold War? Like, were they sheddingtears over, you know, it's just someone's security clearance. It ended his career, though. And now,like security clearances, federal jobs, public benefits.There are all sorts of situations which don't involve deporting people,putting people in jail, jailing people,which nevertheless affects people's lives in dramatic ways.And you're not always entitled to a trial,but a kangaroo court hearing within an agency
01:13:57that takes away someone's clearance,that can damage someone's life, their life's work, their reputation.And deprive us of their life's work.I mean, we were deprived of whatever.Robert Oppenheimer was going to do in the later parts of his career.And so in some ways, like, I think people know about wrongful convictions and understand whythat's a miscarriage of justice. We've seen DNA exonerations in this country many times.But the hope is, like, we need to focus on these lower level things, the bail hearings,
01:14:24the national security clearance hearings, the welfare hearings, Medicaid, these systemsthat take away lots of things from lots and lots of people. And yet, you know, it's not likecourtroom drama. Right. I should note, the book is not all doom and gloom. You actuallyoffer some very hopeful prescriptions for how we can strengthen due process commitmentsand firm up our own commitments to due process and making that explicit. Can you talk a littlebit about some of these prescriptions? And specifically, can you tell our listeners how they,as ordinary people out in the world, can bolster due process protections right now?Ending zero-sum thinking helps. Just in your own mind, when you think about how people might be
01:15:04rushing to judgment, like even just stepping in saying, like, let's see what the evidence is. Let'swait to see what the evidence is, and let's test that in a real hearing, a real court.Let's not prejudge.It's so easy to prejudge when you hear about terrible conduct.Insisting on due process in your own personal life is a good thing, and it might cause youto listen to people you disagree with more.But there's also the zero-sum thinking where, like, we shouldn't be paying for trials,for lawyers.
01:15:29It's too costly.We need results in this day and age.And in fact, we need technology.Let's just let AI decide who committed fraud or who should be put in jail based on their riskor let AI decide if that's the person's face.We should be resistant to all of these things.And there's a lot of evidence that due process doesn't cost much.Lawyers are actually pretty cheap compared to the cost of jailing people for weeks, months,
01:15:55years, detention facilities, really, really expensive.They're talking about what billions of dollars it will cost to ramp up immigration detentionin this country.jails, incredibly expensive. And if you're holding people in these places, if you're takingaway people's driver's licenses, turning from detention to things that affect people on the civilside, people can't get to work. It's enormously costly to the economy. People can't take theirkids to school, or they're afraid to. They're afraid to go to the doctor. Like, these are a drag onpeople's lives, cutting off people's Medicaid benefits. If they're eligible, they will reapply
01:16:27and they will get it again. But they may get medical debt in the meantime. It'll be reallyexpensive to have to process people again. Like, just keep them on Medicaid. They're entitled tobe on it. So we shouldn't be spending money on violating people's due process rights. It's costly,it's unfair, and we can be a better society if we dig into fairness. I hope, you know, I feellike we've learned those lessons the hard way many times before, and we may be about to learnthem again. Excellence over efficiency or undue efficiency. Yeah, you know, the process really doesmatter, and the process may be technical, may sound technical, notice, opportunity to be heard,But this is about giving people a fair shake before the government does something to them.
01:17:06I think that is something, actually, that we can all relate to.All right.Brandon Garrett, the book is terrific.It is urgent, and it is both maddening and hopeful.So thank you so much for the opportunity to talk about it.The book is called Defending Due Process, Why Fairness Matters in a Polarized World.It is timely, important, and most importantly, it is available wherever you get your great read.So hop down there and get one today.
01:17:32Thank you.Thank you.Thanks so much to Brandon Garrett for that terrific conversation.Lots to think about in a moment where due process has never been more important and more urgent.Just after this set of commercials, we are going to have another fantastic book conversation.This time, Leah is going to be speaking with her Michigan colleague, Richard Primus,about his fascinating new book, the oldest constitutional question, enumeration and federal power.That is up next.
01:18:03strict scrutiny is brought to you by cook unity okay as you know i got back from an amazing vacationin the greek islands and part of what was so amazing about it was the food their tomato and egg and onionbreakfast situation and fava bean spread and fresh fish at dinner were to die for and while theymight not have whole red snapper off the grill cook unities renown chefs make some prettycraveable delightful items too cook unity was made for adventurous eaters with countless globalcuisines from more than 160 award-winning chefs.Explore an ever-expanding menu of small batch meals, all tailored to your lifestyle,dietary needs, and cravings.
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01:20:11cookunity.com slash strict free. Terms and conditions apply. Go to cookunity.com for details.For this segment, I am delighted to be joined by my colleague Richard Primus,the Theodore J. St. Antoine, Collegiate Professor of Law at the University of Michigan Law School.We're going to be talking about his new book, The Oldest Constitutional Question.Welcome to strict scrutiny, Richard.Yeah, I'm delighted to be here. Thanks for having me.Of course. So I didn't want to spoil the surprise by revealing what the oldest constitutional question is by summarizing the book.So could you tell us what is the oldest constitutional question that your book is about?
01:20:57Sure. So the oldest constitutional question is how to divide power between the national government and the states. The traditional answer is that it's a matter of the enumerated powers of Congress, right? The Constitution enumerates a bunch of congressional powers. And the Orthodox view is that Congress can exercise only those powers, everything else is left for the states. So by enumerated just for our listeners who might not have gone to law school, you're referring to mostly Article 1, Section 8, which is Article 1, the section 8, which is Article 1, the section.of the Constitution that deals with Congress. Article 1, Section 8 says Congress shall have the powerto and then lists out a bunch of powers just to kind of frame that.Yeah, Article 1, Section 8 has 18 clauses. All the clauses list congressional powers.Strictly speaking, the Constitution doesn't enumerate the powers. Strictly speaking,that would mean the powers are numbered. They're not actually numbered. We use it metaphoricallyto mean something like listed in the text. The big bulk of them is an Article 1, Section 8.And then there are a bunch of them scattered elsewhere through the document.
01:22:00Yes.Okay.So the full title of the book is the oldest constitutional question, enumeration and federal power.I didn't read it to give it away.But this issue, what enumeration means, the scope of Congress's powers, the balance of powerbetween the national government and the states has come up in several significant cases,some quite recent.And one of those cases is kind of my origin story in some respects.
01:22:22So, Richard, could you tell us when did this idea about what it means for the federalgovernment to be a government of enumerated powers come up. And maybe we can start withUnited States versus Lopez and the issue there. Sure. Lopez is a great place to start. Andsometime I'd like to hear how it's your origin story case. Not Lopez. The one we'll talk aboutnext is my origin story. Okay. Okay. So Lopez was a landmark decision in which the Supremecourt struck down the Federal Gun Free School Zones Act of 1990, that the act prohibited the carryingof firearms within a thousand feet of schools, subject to a bunch of exceptions, but basicallyprohibited the carrying a firearms near schools. And the government defended Congress's authority
01:23:10to enact the law by saying that it was part of Congress's enumerated power to regulate commerce.The third clause of Article 1, Section 8 says the Congress has the power to regulate commerceamong the several states. And for more than 50 years, there had been a broad understanding of thecommerce power under which anything that in the aggregate affected interstate commerce could beregulated by Congress. So really that means at the very least any purchase and sale of goods,because even though my sale of a tomato to you doesn't affect the market for tomatoes,if you multiply it by everyone else in the country who's selling tomatoes to everyone else in the country,you've affected the market interstate.
01:23:56And the government said, in this case, that violence in schools considered in the aggregate affected commerce.And as an empirical matter, that's obviously true, right?It forces schools to spend money on security, and that affects the market for security personnel and equipment.It affected insurance rates, which is also an interstate market and so on and so on.But the court majority was skeptical.And I guess why are they skeptical or what was the anxiety?The anxiety is everyone knows, right?This is Conlaw 101, that the enumerated powers are supposed to be limiting.
01:24:36The point of having the powers written out in the Constitution's text is to limit what Congress can do and leave a bunch of other stuff for the states.And the worry was, if the commerce power is really broad enough to cover things because they are reachable, if in the aggregate, they affect interstate commerce, then pretty much everything people do would be affected by interstate commerce and would be within the reach of the Commerce Clause.Now, that still wouldn't mean that Congress can do anything. Congress can't establish religions, but it would mean that unless there's some affirmative prohibition, Congress could reach pretty much everything with its enumerated powers.and that can't be right.Right. So you can hear that particular anxiety and this intuition that, of course, it has to bethat enumeration and the scope of those enumerated powers can't allow Congress to do everythingin these questions from Justice O'Connor as well as Chief Justice Rehnquist.If this is covered of what's left of enumerated powers,
01:25:39what is there that Congress could not do under this rubric if you are correct?Well, what would be, if this case is, if Congress can reach under the interstate Congress bar, what would be an example of a case which it couldn't reach?Well, Your Honor, I'm not prepared to speculate generally.As I previewed, the case I was referencing as part of my origin story, National Federation of Independent Business versus Sebelius, the constitutional challenge to the Affordable Care Act.So I have talked some about how my time at the Supreme Court spawned this podcast. I clerked both at the Supreme Court and at the U.S. Court.appeals during years when those courts heard these challenges. So, Richard, how did thisenumeration anxiety come up in NFIB? So in NFIB, the question was whether there would beanything that Congress couldn't reach with its enumerated powers if those powers were sufficient
01:26:32to authorize the individual mandate of the Affordable Care Act. The individual mandate required peopleto carry health insurance. And the critics of the law said, wait a minute.These people aren't engaged in commerce at all.You're saying that this law is valid because it's a regulation of the market for health care,and we understand that health care is commerce,but if you can dragoon people into the market for commerce by telling them that they have to buy something,you could use the commerce power to regulate pretty much anything that people do.It's, again, hard to think of what would be beyond the commerce power categorically.
01:27:15if this were permitted.So you can hear that concern reflected in this question from Justice Kennedy.Then the question is whether or not there are any limits on the Commerce Clause.Can you identify for some limits on the Commerce Clause?And then this prospect of the federal government being able to require people to engage in commerceand the implications of that theory was thought to tee up the dreaded broccoli hypothetical,which you can hear Justice Scalia spin out here.Could you define the market? Everybody has to buy food sooner or later. So you define the market as food. Therefore, everybody's in the market. Therefore, you can make people buy broccoli. Okay. So Richard, you've already alluded to this idea that the fact that it's a list leads people to think, well, the list can't include everything. But why do people think there has to be something that Article 1 or the Commerce Clause in particular or the combined set of Congress's powers doesn't authorize Congress to.
01:28:15do? So there's a complicated set of reasons. It's not just one thing. It's a whole way of thinkingabout the Constitution. And with a tip of the hat to Wisconsin's David Schwartz, we can call this wayof thinking enumerationism. Enumerationism is not a single proposition. It's a bundle of thingsthat travel together. So first is the idea that Congress can only do things that are enumerated. And wherethat idea comes from is the fact that there is a list which creates that intuition and alsoa traditional understanding of the founding on which the founders were very keen to limit the federalgovernment. They were worried about making a federal government that was too powerful. And so theyadopted the mechanism of enumerating the things that Congress could do specifically in order to
01:29:08limit Congress. And there's a canonical origin story here that most of us know that says thatthe framers initially did not include a bill of rights in the Constitution because they trustedthe enumeration of powers to do the necessary limiting work. In fact, they didn't want to includeaffirmative prohibitions like no laws establishing religions or abridging free speech because thatwould give people the wrong idea about the Constitution. The right idea was the limit isbuilt into the fact that Congress is only allowed to do these things. And that origin story,and that sense of what the Constitution is for, and that a bunch of other things built up on topof that have created this sense that, of course, the enumeration must be limiting. Okay. So now I want
01:29:57to shift to what this account gets wrong. So maybe we can tick through just a few of thedifferent kinds of sources and constitutional arguments.that you analyze?So can we start with text and structure?I think that's related to this question of what's the point of enumerating congressional powers,if not to limit what Congress can do?Yes, because the thesis of the book is that enumerationism is a flawed way of understandingthe Constitution.
01:30:30These propositions aren't facts about the Constitution.They're the way the Constitution might look if you looked at it through a particular lens,and it's a distorting lens.So, for example, the 10th Amendment does a lot of work here.The 10th Amendment says the power is not delegated to the United Statesare reserved to the states or to the people.This is conventionally read as if it contained the word enumerated,where it contains the word delegated.
01:31:01But it doesn't.The 10th Amendment doesn't say the power is not enumerated in this document.are reserved to the states. It says the power is not delegated by the Constitution.Powers can be delegated expressly or implicitly, and this language doesn't decide between those two things.In fact, the Congress that proposed the 10th Amendment beat back two separate attempts to include the wordexpressly before delegated. That doesn't tell us that delegated in the 10th Amendment means expressly orimplicitly, but it tells us that people at the time understood that it could bear the broadermeaning and that Congress rejected the attempt to confine it to the narrower meaning. So although
01:31:48we think of the 10th Amendment conventionally as standing for the proposition that Congress canexercise only its numerated powers, the text actually doesn't say that. We read it to mean thatbecause we think we know that that's supposed to be the right answer and the text says somethingsort of like it, so we make the text say that. Similarly, the opening of Article 1,the vesting clause of Article 1, Article 1, Section 1 says, all legislative powers here andgranted shall be vested in a Congress of the United States. And since the 1990s, there's been a verypowerful school of thought that reads that also as confirmation of the idea of enumerationism.People say, look, the Constitution doesn't say Congress has legislative powers. The Constitution
01:32:37speaks of the powers here and granted. That tells us that the only powers Congress can exerciseare the ones that are expressly written here. Here's the problem. That reads the text as if it saidonly the powers here and granted are vested in the United States. And it doesn't say that.It says all legislative powers here and granted are vested in the United States, which might meanthese and also others.But we have learned conventionally to ignore that possibility because we think the answer issupposed to be that Congress can exercise only its enumerated powers.So related to this, we think we know the answer.
01:33:19I kind of wanted to shift to the historical account, which you gestured toward earlier, whichis we think that enumeration was a device to constrain a federal government that the framers, ratifiers were concerned, would run amok.So I appreciated in your discussion of the text and structure.You weren't saying that the 10th Amendment or the vesting clause necessarily means Congress could conceivably exercise any power that isn't explicitly prohibited.And your approach to the history is similar.But could you tell us a little bit about why the conventional historical account, which is enumeration is a device to limit powers and that kind of bolsters this interpretation of the text is incomplete, at least?Yes, because the history is profoundly ambiguous, right? Let's start with something that's not ambiguous. The Bill of Rights story, that's a fable. It never happened. Here's what I mean. During the ratification ofdebates, prominent federalists, including Hamilton in Federalist 84, argued that the reason the
01:34:29Constitution didn't have a bill of rights was that it was built to use the enumeration as theconstraining mechanism.Constitutional culture takes that as a sincere explanation.But contemporaries did not.There's very little evidence that anyone at the time was persuaded that that was really the reasonwhy there was no bill of rights. In fact, anti-federalists started baiting federalistsduring the ratification debates to try to get them to repeat this argument because it was sotransparently a lousy argument that they thought if they could, the more they could get the
01:35:07federalists to make this argument, the more people would think that they shouldn't trust thefederalists. Because the argument made no sense and was understood at the time to make nosense. The Constitution already contained a bunch of prohibitions, no bill of attainder, no ex post factolaw. So it didn't really make sense to say we shouldn't have any affirmative prohibitions. Andit was really obvious even at the time that if you were concerned to prevent a government frombeing too powerful and you were going to limit it by enumerating its powers, you wouldn't give itthe power to tax and the power to raise armies. That's plenty enough for the national governmentto be oppressive. So it seems that the federalists who argued that's why there's no Bill of Rights
01:35:58fooled the future, but not their contemporaries. The better view of the founding goes somethinglike this, I think. The basic project of the Philadelphia Convention was not limitation. It wasempowerment. The problem they went to Philadelphia to solve was that they had a nationalgovernment that was much too weak, right? It governed too little, not too much. That was theArticles of Confederation. Yes. The basic problem with the Articles of Confederation was thatit produced a government that governed too little, not too much. So they went to Philadelphiato create a stronger national government. And the enumeration, like so much else about theConstitution was fundamentally a device for making sure that the new government would be powerful
01:36:45enough, right? Think just commonsensically, why would you put a bunch of powers in writing?It's not implicitly to rule out things that are not on the list. It's to make sure that the thingsthat are on the list are ruled in, right? Get your authority in writing. Understood that way,the enumerated powers might be the floor and not the ceiling of what Congress can do.And there were a lot of people at the Philadelphia Convention and in the ratification debateswho thought of the enumeration that way. Not everyone. There was disagreement among the foundinggeneration about how powerful the federal government should be. And the framers wrote a constitutionthat neither said, and by the way, this is the floor, nor, and by the way, these powers are all
01:37:40there are. But it's quite clear that the major project was empowerment, that it makes senseto enumerate a list of essential powers if the goal is to create a more powerful federalgovernment, and that there were important architects of the Constitution who understoodthose powers as a floor and not a ceiling.So another line that people often point to that relates to this enumerationism is the famous words of Chief Justice Marshall, enumeration presupposes something unenumerated. And people like to invoke that as a basis that Congress doesn't under its enumerated slash delegated powers or the commerce power have the ability to regulate everything. So what have we gotten wrong about that line?So much. John Marshall did say this, right? In the great case of Gibbons versus Ogden, the steamboat case, he wrote,the enumeration presupposes something not enumerated. The first problem is he wasn't talking about theenumeration of federal powers. He was talking about the enumeration within one clause of Article I,
01:38:48Section 8, within the Commerce Clause, actually, which enumerates three kinds of commerce, commerce among thestates, commerce with foreign nations, commerce with the Indian tribes.And he was arguing this enumeration implies that there is also some other kind of commerce other thanthese three. And he made an argument about that. Now, you might think, okay, fine, Richard,but that's a trivial distinction, right? He's still arguing that enumerations presuppose thingsnot enumerated. His argument would work just as well if you applied it to the set of congressionalpowers as a whole. But that's not true, right? We all know some enumerations,presuppose things not enumerated.
01:39:29And some do not.There's no iron law here.I'm a big fan of the Arnold Lobel children's storiesabout Frog and Toad.There's one called A List,on which Toad writes a list of the things that he's going to do today,and then faces all kinds of problemsbecause he didn't write down things like,
01:39:49go to sleep at the end.A list of things that you're going to do todaymight not contain everything.that you're going to do today, you might write a grocery list and get to the grocery storeand buy something else that you didn't put on the list. Whether any particular list is meantto be exclusive depends on facts about that list and not simply is something that follows fromthe fact that there is a list. So having marshaled at least some of the case against enumerationism,I have to ask, do you think you can convince the Supreme Court or you will,
01:40:26would convince the court if enough people sent them this book.Not a chance.Not a chance.No, no, no, no, no.Enumerationalism is a deeply entrenched element of faith in the way that the present generationof constitutional lawyers thinks about constitutional law.I learned it as a one-ell, right?You learned it as a one-el.
01:40:54all the members of the current Supreme Court learned it as one else. It's deeply embedded in ourconstitutional culture. And justices of the Supreme Court are fully grown adults with fullyformed worldviews. And I don't think that books like these by law professors change thoseworldviews all that much. I had really hope Sam Alito would radically change his worldview when he readmine, but, you know, I take the point. Well, your book is different from my, Leah. You may havemore success than I, but I am a little bit less ambitious, or, well, maybe not less ambitious.Or diluted. Well, differently ambitious. I would say this. For the present generation, I would like toinduce doubt. I would like, if I can't get people to give up enumerationism, I would
01:41:53would at least like thoughtful people who learned enumeration and think it makes sense to confrontsomething that makes them say, you know what, maybe this isn't the only way of looking at it.Maybe there are limits to this view, and I think that's really important because since I thinkthat enumerationism has the tendency to be destructive, it makes a big difference whether peoplein power think of enumerationism as a fighting faith that must be upheld at all costs, or somethingthat I kind of think, but that I'm willing to balance against other reasonable things becauseI shouldn't be too sure. And then the larger ambition is for the future. If I can persuadeenough people in the present to think of enumerationism as just a lens for thinking about
01:42:38constitutional law rather than the real truth and as a flawed lens and that there are betterlenses, then maybe the next generation of people who learn constitutional law will think about itdifferently and we might get change over time. So can I ask you to elaborate on that last point justfor a little bit as a final question? Because I think oftentimes when people learn more aboutwhat is happening at the Supreme Court, they become despondent. And they think, what can I do?Because the justices aren't going to listen to what I say, even if I have very persuasive arguments.And so if it's not about convincing the Supreme Court, what does the process of affecting change,constitutional change look like or how does it work? It works over a long term. I mean, believe me,
01:43:30I know the frustration that you're describing. I remember when I clerked at the Supreme Courtseveral weeks into the term, there was a case that I worked on. And I thought I understood the casereally well. And I thought I really understood what the better arguments were. And my side lost thecase. And when it was over, I thought, we didn't lose the case because the other side hasbetter arguments. That's not what happened. We just lost the case because there are more of themthan there are of us on this issue. It's frustrating, right? But you need to come to terms withit because there's no system in which you win all the time. This podcast is my way of coming toterms with it. Yeah, right? And like, and like in the present environment where like people with
01:44:12views, like your views and like my views, lose an awful lot. It's especially frustrating andin a large way. Like, there's a republic at stake here, right? The thing is, positive constitutionalchange happens over a long period of time. Imagine that we were constitutional lawyers,not in 2025, but in 1925. And we thought,You know, Jim Crow is a really big problem.There's formalized segregation throughout much of this country, and it's unjust, and it contraveneswhat we understand to be the best reading of what the Constitution already requires.Why can't we get the courts to see anything here?
01:45:01And if we thought in terms of what we can convince people now or next year or even five yearsfrom now, we would be despondent.Change came.It took 30 to 40 years.from that point. But part of the process of bringing about that change over a long period of timewas that people kept making arguments. They kept showing the logic of a better way of thinking.They kept arguing about the weaknesses of an existing way of thinking. And you persuade some peopleand you persuade some more people and you persuade some more people and you win some elections and you
01:45:41appoint some judges and you change the way lawyers are socialized. That happens over a long period oftime. So Richard, thank you so much for joining us. Listeners, the full title of the book that youshould, if not send to all of the Supreme Court justices, then send to all of the young lawyerswho need to be socialized in this deeper understanding of federal power is the oldest constitutionalquestion, enumeration and federal power. Again, Richard, thanks.much for joining. Leah, thanks for having me. All right. Many thanks to Richard Primus and Leahfor that really insightful conversation. I know I feel better about the status of the oldestconstitutional question, and I hope you do as well. Before we take off, it's time for my favorite
01:46:26segment, Amani. It's called Favorite Things. This is where we review and recommend the books,shows, meals, whatever that brought us joy over the last week. So I want to invite you to give ussome of your favorite things. But to give you a moment, since I'm springing this on you at the lastminute, I'll go first. So you have some time. Okay? Sounds good. All right. So my favorite thingthis week was vacation. I'm not going to lie, vacation is now one of my absolute favorite things.I went to Debravnik and Rome, and it was glorious. Debravnik is an absolutely gorgeous city,the pearl of the Adriatic, lovely people, beautiful beaches, and Rome. What can you say about theEternal City. I literally ate my weight in Cassio Apepe, and I don't even like pasta. I don't even
01:47:13eat pasta in this country, and I was eating it like it was my job in Rome, and it was trulyfantastico. Also, as some of you might know, 2025 is a Jubilee year, which is when Catholicsare encouraged to make a pilgrimage to Rome, to confess their sins, and process through the fourholy doors, which are doors of four prominent basilicas in the city of Rome. And so,So our trip not only coincided with the Jubilee,it coincided with the Jubilee's Youth Week.And Rome was literally flooded with young people,young Catholics from all over the world
01:47:48who were making their pilgrimages.And they were so lovely and warm.And they would just spontaneously burst into song.It was like the von Traps were everywhere.They just like start singing.And they would occupy different parts of the citydepending on what country they were from.So all of the Spaniards and the Portuguese would be at the Spanish steps.
01:48:07and they'd be singing these Spanish songs.I mean, it was just really lovely, and they were fantastic,and the energy was really great, and the weather was fantastic.And while I was gone on this vacation, I managed to read some books, no opinions.The first book I read was Tom Lake by Anne Patchett,and just going to say, this was a recommendation from Justice Elena Kagan,not to me personally.I don't have a personal relationship in that way with her.
01:48:33She made this recommendation at her 2024 address at the 9th,000.Circuit Judicial Conference, and she specifically recommended that the audience listened to theTom Lake audiobook, which is read by Meryl Streep.So I took her advice.I did download the audiobook, and I listened to it.It was really good.Meryl Streep was wonderful.But on this vacation, I happened to come across an actual physical copy of the book, Tom
01:48:56Lake, and I just started reading it.And even though I know the story, I thought the book was even better than the audiobook.It was just so beautifully written, the characters are memorable.I almost felt like maybe my voice was better than Meryl Streep, at least in my own head.Sometimes that happens.And the book is truly first rate, highly recommend.I also read The Midnight Library by Matt Haig, which was a recommendation from some of you listeners.And it was a great recommendation, really wonderful, thought-provoking and engaging even on vacation.
01:49:28And now that I'm back in the country, I'm back to reading all of the papers and the news, as you saw from this long-ass episode.of news. And I want to recommend two pieces from the New York Times. The first is Yale law professorJustin Driver's review of William Chatterton Wilson's recent book, The Summer of Our Discontent,which considers the cultural impact of the George Floyd killing in the summer of 2020.Driver's Review is titled How the George Floyd Protest changed America for better and worse,and it is sharp, critical, and unsparing in its uncount of the many things that Driver thinksthat Wilson overlooked.I think Justin Jarver is a terrific writer, an amazing wordsmith, and this review makes that
01:50:14so clear.I will be using the phrase, drive-by-appropriia, as often as I can, going forward in thenext couple of weeks, so be prepared for that.And the second piece I want to recommend is Jamel Bowie's The Death of the FourthAmerican Republic, which focuses on the Voting Rights Act at 60 and its role in actuallymaking America democracy.as well as the role of President Trump and John Roberts in their mutual efforts tounmake the Voting Rights Act and its legacy.
01:50:45It is urgent, timely, and a must read.All right, that's a lot of stuff.But I was on vacation, so I did a lot of reading.It was great.I was going to say, your favorite things are just way more interesting than mine becausemine is like palisade peaches.It's stone fruit season in Colorado right now.I love that.
01:51:02Okay, what are palisade peaches?They're so good.They're just from this particular area in Colorado, and I'm telling you, and I apologize to any of your listeners who are from Atlanta, they are better than Georgia peaches.Oh, stop.They are better than Georgia peaches.And you can just drive around.People are selling them on the side of the road.I was driving around with my parents and the Rockies.
01:51:22And literally, I saw a stand.And I was like, you turn.Everyone was like, ah, as I made this dramatic turn.So am I going to call Jared Polis up and, like, find me 11,000 palisade peaches?Yeah.Okay.Yeah.I mean, they're so good.
01:51:35So are they just sweeter?They're really sweet.They're really juicy.Some of them are like, like this big.They're huge.They're like eat over the sink peaches, right?Are they white flesh or yellow flesh?Yellow flesh.
01:51:48Interesting.And they make an amazing cobbler.I made the best cobbler last week.Oh, I do love cobbler.Don't even understand.How do you take the skins off?How do you take the skins off?You blanch them basically.
01:52:00Do you blanch them and put them in an ice bath?Yeah.Blanch them, put them in an ice bath, peel.skins off. Bing, bang, boom. It's so easy. It's so easy. Okay. I'm writing that down. Another thingI've been doing, I don't know if you remember the show, Revenge from 15 years ago.Oh, yes. With Emily, what's her face? Emily Van Camp. Yes. So my girlfriend has been watching it.And so she started me watching it. So now we're both watching it in different areas of the house.Oh, wait. Madeline Stowe, too, is in that. Madeline Stowe. Yes. And Henry Zernie,
01:52:29who was in like the earlier Mission Impossible movies, who's really good as like just a nasty white guy,rich white guy. I just love treacherous rich white people television, right? Like rich white peoplein the Hamptons or wherever just doing really dodgy shit. Right? You'll love Sirens then becausethat's the whole vibe. I'm writing that down. Sirens. Yeah. So I've been watching a lot ofrevenge and I'm a video gamer. So I've been playing a lot of video games. What video games do you play?What video games do you play? It's a game by Hideo Kojima and it's bizarre. Like I can't evenbegin to explain it to you, but it does star Norman Redis, who is Daryl Dixon. The Walking Dead.In The Walking Dead. So he's the main character. He's also the father of Helena Christensen's eldest
01:53:13child. Only child. Yeah, out of town. I didn't know that. You're welcome. But there's one particularlike cutscene where he has to like, after delivering all this stuff, he has to go and take a shower.And I never skip that cutscene. I'll tell you that right now. Norman Reit is in the shower.Yes, please. This is a PG show most of the time. This is a fan.family establishment.Anyway, all you see is butt cheeks.It's no big deal.His peaches, as it were.
01:53:39His palisade peaches.His palisade peaches.And aside from that, I just have to recommend if, like, I know streaming servicesare a nightmare these days with like some of them capitulating to Trump and like others,you know, just having garbage shows.Britbox.I have to, I love Britbox.I love Britbox.
01:53:57I love Britbox.I've been watching a lot of Poirotro now.I've been watching all of the.I get the Christi Marple series.And then there's this really adorable series starring Stephen Moyer, who was in True Blood.You know, Sooka is mine.That guy?I don't know if you ever watched True Blood.
01:54:13But anyway, he's married to Anna Pacquine.Yeah, they met on the show.They met on the show.Exactly.So he plays this really kind of nerdy art detective.Like he's a cop and like the arts department of the arts department of the police station.And so he goes and investigates all these art crimes.And it's a very different character than anything I've ever seen from him.
01:54:32And it's kind of adorable. It's called Art Detective, and it's new on Britbox.I love Britbox. Okay. These are all fantastic. It's such a delight to be here with you today.And like, I'm sorry we had so much news to run through. Like it was like, it's okay. I love news.Well, it was a lot of it. But yeah, thank you for having me. It was so much fun.I've been an admirer of yours for over a decade now. So it's always fun.Feeling is so mutual. I will say, when I was on Twitter, I loved your Twitter. Where can we find you thesedays on social media?I'm on blue sky, exclusively on blue sky.
01:55:06What's your handle?Yeah, I like, my handle is angry blacklady.That's social.You just look me up, Imani Gandhi or Angry Black Lady.Also, I have to say, since I have the opportunity, and I think some of your listenersmight be interested, I am launching my own podcast next month.Okay.I'm listening.
01:55:21They're giving me my own podcast, Melissa.Okay.And guess what the name is?The name is called Bitch Listen, colon, an Angry Black Lady podcast.Isn't it the best name?It's an amazing name.It's an amazing name.And I have to give credit to my boss, Mallory, because she's a black woman.
01:55:40And I can tell you that none of my other prior bosses would have let me name my podcast.Bitch, listen.So it's going to be great.I'm hoping to have you on at some point.It's going to be mostly an interview show about reproductive justice, about black family surveillance, about criminalization of pregnancy, about me and my life.My first guest is going to be Francesca Ramman.We're going to talk about being late stage queers, so that's going to be fun.And I'm just really looking forward to it.
01:56:07So, Bitch Listen.It launches September the 25th, I believe.And I hope your listeners will give me a chance to see if I can do this thing on my own.Bitches Listen.Bitch Listen is coming your way on September 25th.That is Imani Gandhi of the Rewire News Group and the co-host of Boom, Lawyard, and the upcomingsolo host of Bitch Listen.Yep.
01:56:29Thanks so much for joining us today.Thank you so much for having me.Before we actually factually go, I have a little housekeeping for all of you.First up, in case you missed it, listeners, Cricket Media just announced it's a first everCricketCon in Washington, D.C.That is the first annual, or in your case, once in a lifetime chance to join America'ssmartest organizers and least annoying politicians to strategize, debate, and commiserateabout where we go from here.
01:56:58hopefully up. On Friday, November 7th, Cricket will be joined by some of the most influentialnames in politics for a full day of conversations, workshops, and live pods as we all figureout how to build the big pro-democracy movement we need to defeat rising authoritarianismbefore or maybe after. It's already too late. If you like this podcast, and I know you do,you're definitely going to love CricketCon. And while we can't say officially that we're goingto be at CricketCon, I would say that they're going to be at CricketCon. I would say that thethere is a very strong chance, wink, wink, that we will be at CrookedCon.So get those tickets while you can.
01:57:34Head to CricketCon.com for tickets, line-up announcements, and more.That's C-R-O-O-K-E-D-C-O-N.com.And we have a discount code that you can use to buy your November 7th tickets early.The discount code is freedom and content, all one word, all caps,and the discounted tickets are limited, so move quickly.And if you are so excited about CrookedCon and you know you'vegot to get your CricketCon fit together, guess what? I've got great news for you. The Cricketstore's big summer sale is here and everything is 20% off. So if you need a new friend of the
01:58:09pod tea or a no law just vibes tea to show up at CricketCon with your best glow up, just headon over there. Merch is a great way to support the pods you love and the network you lovewithout having to buy a meme coin or a golden phone with our faces etched on it. And right now,everything is on sale. So shop 20% off everything at crooked.com forward slash store.Strict scrutiny is a Cricket Media production hosted and executive produced by Leah Lippman,me Melissa Murray, and Kate Shaw. It's produced and edited by Melody Rowell. Michael Goldsmithis our associate producer. Jordan Thomas is our intern. We get audio support from Kyle Seiglinand Charlotte Landis and music is by Eddie Cooper. We get production support from Katie Long
01:58:54and Adrian Hill and Matt DeGroote is our head of production.We are thankful for our digital team, Ben Hethko, Joe Matoski, and Johanna Case.Our production staff is proudly unionized with the Writers Guild of America East.You can subscribe to Strict Scrutiny on YouTube to catch full episodes, and you can find us at YouTube.com forward slash at Strict Scrutiny Podcast.If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode.And if you really want to help other people find the show, please rate and review us.It really helps.POMAYOR.
01:59:29Thank you.
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