How The Supreme Court is F**king up the Country - with Kate Shaw

Last week, Chinese President Xi Jinping allegedly told Donald Trump that Putin might regret invading Ukraine. Now other outlets are reporting that President Xi Jinping denies this conversation completely. With over 1 million casualties for Russia and counting, I would be regretting it. Now I read about this meeting on Ground News, which is today's sponsor of HMDK. Ground News is a platform that has helped our team be responsible consumers of the news. It shows a breakdown of all the publications reporting on a certain story, including the typical factuality of each publication, in which way they tend to lean politically. We can't eliminate bias. We all have them, right? But we can factor it in as we analyze an event or an issue. Take it from me. If we talk about my personal bias, I am always going to be questioning the veracity of a Donald Trump claim. But I have to withhold judgment for now. Based off the publication's reporting, no one is sure what actually was discussed between these two men. But if I had to guess, it was probably the Sheen influencer trip. Never forget, let's cut through the noise together. Go to groundnews.com/husson to subscribe and get 40% off the Unlimited Access Vantage plan, the same one that we use right here at HMDK. Go to groundnews.com/husson today. Support comes from WISE, the smart way to manage the currencies you need around the globe. Fed up with losing out to hidden fees? When you see this video, click the link in the description. Send money abroad with your everyday bank? Choose the smart way, WISE. You can count on the exchange rate you'd usually get on Google. No unwelcome surprises. Plus ditch that "where's my money" feeling. Most transfers arrive in under 20 seconds. Join millions saving billions on hidden fees. Be smart. Get WISE. Visit WISE.com. T's and C's apply. All right. The feedback from my audience is in. Making fun of Deepak Chopra? No thanks. Riffing with my boy, Rami Youssef, GTFO. This audience wants to learn. So get out your textbooks and then close those textbooks because you're on YouTube where people come to watch 12 minute animated recaps of books but not actually read them. Today's lesson? How the Supreme Court is fucking up the country. Let's begin. Now, when I first learned civics and social studies, I thought the Supreme Court was just nine old people in Hogwarts robes and that the real power was being a member of Congress because people in Congress, they made the laws. And as a kid, nobody was more powerful than my parents. I didn't know what to do. My parents were basically lawmakers. Bedtime was 9:00 p.m. Dumb was a swear word and the Simpsons were a banned substance because they were disrespectful to their parents. Those were the laws. More recently, I've realized that the real power in America isn't making new laws. It's interpreting what old laws mean. I'll give you an example. In the United States, all new laws have to follow the Constitution and the Supreme Court decides what the Constitution means. So let's say Congress passes a law to cap. How much money corporations can spend on a political campaign? There's nothing in the Constitution that says you can't do that, right? Well, it depends on how you interpret the Constitution, because if you interpret the word corporations as people and interpret the word money as speech, suddenly that's an unconstitutional limit to free speech. The Supreme Court doesn't see the Constitution as a living document, but it does see the dictionary as one. Yeah. Merriam-Webster is going to have to start releasing patch notes. Like update 14.2, gun is now a pronoun. For my entire adult life, it seems like the Supreme Court has been using its power to favor one particular political party, Republicans. In 2000, they stopped the Florida recount and essentially handed the presidency to George W. Bush. They were like, look, dude, enough with the hanging chads and all this Florida stuff. George W. is your president. Let's move on. In the 2010 Citizens United case, they legalized unlimited campaign spending and in 2013, they repealed a huge part of the vote. And I'm going to go back to the Republican Voting Rights Act by basically saying we don't need that anymore because racism is over. Okay. To be fair, Clarence Thomas didn't literally get up and go, racism is over by Felicia. But during oral arguments, Chief Justice Roberts asked the defense attorney, is it the government's submission that the citizens of the South are more racist than the citizens of the North? I mean, yeah, obviously, except for Boston. Now as extreme as those decisions were back in the pre-Trump era, the current court, the 6-3 conservative majority court. The court that we now have that's been in place since Brett Kavanaugh joined in 2018, that court? Oh, it's been more radical than anything that's come before. It's now a tradition. Every summer, we get two things on the big screen, a Nolan Imax movie and a Supreme Court civil rights slasher. The Supreme Court overturning Roe versus Wade, ending abortion as a constitutional right after nearly a half century. The Supreme Court striking down affirmative action and reshaping college admissions. Now, the court ruled that the official acts of sitting president and vice president are immune to criminal prosecution even after they leave office. The US Supreme Court today struck down one of Louisiana's majority black congressional districts, a decision that weakens key protections under the Voting Rights Act. But those high profile cases are only a part of the story because this court has also been using an extreme power that was only meant for emergencies. It's literally called the emergency docket, but you may have heard it called the shadow docket. In the past, it was used in dire situations. We're say lawyers needed to delay an execution so an appeal could be heard. The point is to allow the Supreme Court to quickly pause lower court decisions if they would cause irreparable harm. The court would basically be like, look, you're about to execute a man. Can we just give this a breather? Let the defense team file an appeal. Everyone take a little Dunkin Donuts break. We chill out. Then when we come back, we can figure out if we got to go Green Mile on this guy. This used to be rare during the 16 years of the Bush and Obama presidencies. They appealed for emergency relief just eight times. But during Donald Trump's first term, the White House requested it 41 times. And in the first year of his second term, Trump 2.0, they requested it over 30 times. At this point, Trump doesn't even bother to pass laws. He just does something crazy out of pocket, gets sued, and then immediately runs to the Supreme Court for help. And for some reason, the Supreme Court goes along with it. But by using the emergency docket, the court is implying two things pretty much. Number one, any lower court decision that DGT doesn't like, they count that as an emergency. And number two, if number 47 doesn't get what he wants, the court basically says this will cause the country irreparable harm. So they're completely twisting the meaning of the words emergency and harm. But I guess words now just mean what powerful people say they mean. It's why Starbucks can call its employees partners instead of what they really are. Bathroom attendants, the Supreme Court's use. The use of the shadow docket has allowed Trump to continue with a ton of policies that lower courts tried to stop. Like those deportations to Sudan and Venezuela. Countries those people aren't even from. Expulsion of transgender service members from the military. And allowing ICE to stop people based on their ethnicity or even their accent. Which is fucking crazy. ICE is just posting up outside of Chipotle's and snatching up anyone who pronounces pico de gallo correctly. They've also allowed the Trump administration to eliminate $4 billion in foreign aid in over a third of the Department of Education. And they did all of that without even explaining their reasoning because that's not required on the shadow docket. Who do they owe an explanation to? Their constituents? Me and you? Of course not. We don't vote on these guys. Clarence Thomas has never held elected office. Unless of course you count the presidential suite at the Sandals Barbados. As harsh as the Supreme Court's conservatives are on immigrants, trans people, and pregnant women, they reserve their harshest decisions for their true nemesis: Black Americans. In a 6-3 shadow docket decision earlier this month, the mask came off completely. The Supreme Court granted an emergency request from Alabama to move forward with its redrawn congressional map. Lower courts had ruled this map intentionally discriminated against Black voters. After a lower court said, whatever the Voting Rights Act says, this is unconstitutional. It is constitutionally impermissible to discriminate against Black people in this country, these United States, with our Constitution. And the court said, no, actually, you can't. So somewhere between 2013 and now, the Supreme Court changed its opinion from "racism is over" to "ok, fine, racism isn't over, but we're cool with it." Now incredibly, everything I just described was done using powers that the Supreme Court already had. But the current Supreme Court is so radical that they are actually seizing whole new powers for themselves that they didn't even have before. Take the recent repeal of the Chevron deference. Now I know that sounds like the pen name. Of someone who writes legal erotica. But it's a little more complicated than that. So I'll explain. For decades, if Congress passed a law that said something vague, for example, we should have clean air, the court had to interpret what "clean" meant. They would defer to federal agencies for their interpretation. Those people were the experts. These agencies employ thousands of scientists and experts who could make a precise interpretation of what qualified as "clean air." It was a standard set in a Supreme Court decision. In 1984, Chevron v. Natural Resources Defense Counsel. But this Supreme Court overturned that decision in 2024 and said judges should be the ones that decide what any vague language means. So this was basically their logic. We can't trust the experts to decide what words mean. Judges should decide what words mean. Because judges are experts on words. And we need to trust the experts, which normal people would call circular reasoning. But this Supreme Court would probably give it some highbrow bullshit label like the circumference doctrine. Now, unlike the Supreme Court, I know this. I'm a dumbass. So I always choose to rely on experts, which is why I called in Kate Shaw. She's a constitutional expert who teaches law at the University of Pennsylvania, a school that I didn't go to, but my sister did for grad school. She previously worked in the Obama White House and she even clerked at the Supreme Court. So she's seen this place from the inside and out. She also co-hosts the legal podcast Strict Scrutiny. So I sat down with the professor to talk about the gutting of the Voting Rights Act. If anything gives the lie to the Alito claim in Calais that racism is basically done, it's literally the last month of the president's social media feed. How the whole idea of the Supreme Court as a nonpartisan institution is essentially gone. The court today, really for the first time in the modern era, has on it nine justices, each of whom votes pretty predictably with the policy preferences of the presidents who appointed them. And that was not always the case. And we talked about the upcoming birthright citizenship decision and why. It's so important today. Even though I think he's going to lose, it has created some uncertainty, some doubt, some pathway by which some future president or future Congress could try again, where I think that was unthinkable previously. Guess what? Y'all want nerdy shit? You want to study? Well, this is it, folks. I'm bringing on a guest who has a podcast just about the Supreme Court. Don't ever say I didn't give you baby birds what you want. Now, let's save education in this country. Right after this ad read. Here's why I wanted to sit down with you, professor. So I understand the power of Congress. They make laws. I understand the power of the president. He can start a nuclear war. Not great. Regrettably, yes. Yeah. Not too fun. No. But I didn't realize how powerful. Powerful the Supreme Supreme Court was kind of until recently. Yeah. Shit's getting pretty gnarly right now because I used to think of them as just kind of nine people in Hogwarts robes that are just in the shadows. Yeah. At a basic schoolhouse rock level. What does the Supreme Court do? So I think there are different answers across time. And I think when you say I didn't quite realize how powerful they are. That's because until recently, they were not as powerful as they are today. So when the Supreme Court is created by the Constitution, when it's first formed and stood up, it's not a particularly powerful institution. It's not totally clear what it does. It has the power to resolve cases and controversies. But it's hard for presidents even to get people to take the job of Supreme Court justice. Like somebody leaves to go be a judge on the South Carolina Supreme Court because that's a way higher status job. Like it's not a big deal. So in 1803, the Supreme Court passed a law. So in 1803, the Supreme Court decides this really important opinion, Marbury v. Madison. And John Marshall, who's this really critical chief justice, announces to the world it is emphatically the province and the duty of the judicial department, that is the federal courts, to say what the law is. Like we get to say what the law is and everybody else is bound by that. So that's 1803. And that's the kind of Supreme Court first staking out this position of power in our system of government. And it doesn't happen immediately. But over the course of the years. The Court does sort of quietly amass both this power and status. We all sort of accept that the Court has this really important role as the final decider, right? It's the arbiter of the meaning of the Constitution and the laws passed by Congress. And when the Court is acting modestly and in a restrained fashion, this function of being the ultimate decider of legal questions is actually a totally healthy one in a democracy. But I think we have seen, and this is why you are noticing them more, the Court really sort of spread its wings and assert all sorts of outsized authority that we really haven't seen the Supreme Court assert for most of our history. The Supreme Court essentially interprets laws. Right. Is that correct? Yeah, that's correct. You got it. OK. A so far. But Congress makes laws. Also right. So isn't Congress more important than the people that interpret it? The Constitution agrees with you and so did the people who drafted it. So Article 1, the first article, is the one that creates and empowers Congress. OK? So Congress is supposed to be in the driver's seat, right? We elect them in the House every two years, in the Senate every six years. They're supposed to channel the will of the people into the laws that govern all of us. Correct. But of course, someone's going to have to decide what those laws mean. Sometimes Congress writes broad and open-ended statutes, right? Like, you know, provides for a healthful environment, clean air, clean water, right? So these are big statutes that are deliberately drafted in broad and open-ended ways, and someone has to decide. And most of the time, the Supreme Court takes a look at, you know, statutes when there's a disagreement about what they mean, tries to figure out what Congress intended, used to look at what agencies who implemented those statutes understood about the statutes, and sort of gave their best guess about what sometimes ambiguous terms mean. This Supreme Court has really changed the way they interpret statutes, has invalidated many statutes passed by Congress, has read them narrowly using these invented doctrines like something called the major question. So the Supreme Court has done a lot more than just provide kind of guidance when they're ambiguous statutory terms. It has in many ways taken unto itself the power to make laws. And in some ways, we're living under a system that is as much the product of the Supreme Court as Congress, and that's not really the way it was supposed to work. It's really interesting that you're saying that, you know, words clearly have a meaning. But I take that example that you gave two examples, clean air, clean water, and I'm sure states, local municipalities. The public at large, they may disagree on how clean, how much toxic waste should be in the Hudson River or in the air. And you're saying the Supreme Court, hypothetically, if they were to take that case, they would define what the word clean means, like how clean is clean? I mean, I know that sounds crazy, but more or less, yes. So until recently, actually, in a case like that, what the Supreme Court would typically do is say, well, Congress passes these laws. And then agencies like the Environmental Protection Agency have to basically fill in the meaning of those laws. So if a court is asked, what does, you know, a healthful environment mean? What does clean air mean? It's not going to write on a blank slate. It's not going to decide what do the nine of us think those words mean. It's going to say, what are these experts in agencies that have spent years, you know, a lot of the time these laws, there's like state federal partnerships. So states and municipalities will come up with a proposal about how to achieve cleaner water or cleaner air because perfectly clean. Clean air and water are, you know, a little bit difficult to actually achieve. So agencies spend a lot of time and have a lot of expertize devoted to kind of filling in the meaning of those kinds of, you know, capacious statutory terms. So until recently, the Supreme Court said, well, we're going to defer to agencies when they've offered a reasonable interpretation of what a statute means. And this is an example of the Supreme Court asserting this kind of extraordinary role in our current moment. A couple of years ago, the Supreme Court said, you know, that thing about where we used to defer to administrative agencies. No, we're the decider about what basically every statutory term means. So if we have a statute that says something like clean air, we're going to open some dictionaries. We're going to decide what clean means. We're going to decide what air means and we're going to show them together. And then we're going to decide, you know, whether whatever proposed plans say that, you know, whether it's a polluting company or a state or municipality that is trying to decide how to actually implement that broad congressional directive. It's to us, the federal courts to decide and the Supreme. Court, ultimately. And again, like that's them doing lawmaking in a way that was never really intended. Well, so here's the philosophical question, I think, for our conversation. Do words have meaning or are they just things that very powerful people get to define? Yeah, I mean, that's a profound question. I think that there will always be some discretion that the kind of interpretive endeavor entails. So, I mean, words in context have usually a range of meanings. And so I think the question is, if you're. The courts, your job is to ultimately decide what statutes mean, what are the rules of the road for figuring for figuring that meaning out? What kinds of sources do you consult and also what kind of humility to the task of interpretation do you bring? And again, historically, courts would bring, I think, a pretty heavy dose of humility to some of these interpretive questions, because, yes, words have meaning, but also words have different meanings in different contexts and at different moments in time. And there are different consequences to adopting different kinds of meanings. And so so I think a responsible court will sort of acknowledge the complexity of that task and say, we're going to look to all of these places for guidance. And I think what we're seeing on the Roberts court, right, the current Supreme Court is let's just like make it up and be legends. Right. Like if we think that an interpretation of a statute is going to be too burdensome on industry, on coal companies, because it's going to require them to really clean up the emissions that they produce. We're going to we're going to strike that interpretation that an agency is adopted down. And we're going to sort of decide for ourselves that it means something much more, you know, congenial to the kind of interest of industry. So that's just one example. But I think that that's the kind of moment we're in where the court is sort of abandon any pretense of deference or humility and is deciding for itself some of the most contentious and divisive questions. We're talking about statutory questions, but of course, constitutional questions are in some ways even harder and sometimes more consequential. And in all of those cases, the court is basically saying, let's sort of rip up a lot of the sort of. The way things have been done and the precedents that we and other entities have issued and just kind of. decide what we think the best policy looks like? When did that shift happen? It's a great question. And I think it's hard to say exactly. So I think that some people would say, you know, the kind of contemporary Supreme Court in some ways is traceable to Bush versus Gore in the year 2000, when the Supreme Court arguably really puts its thumb on the scale in favor of George W. Bush in the 2000 presidential election. It intervenes, it directs the halting of ballot counting and basically hands George W. Bush the presidential victory. Right. This is the big this is the big hanging Chad. Exactly. Florida situation in 2000. So that's, you know, quarter century ago. I think that's one possibility. Another possibility is you right now have both a pretty ideological court, but also in some ways a quite partisan court. So the court today, really for the first time in the modern era, has on it nine justices, each of whom votes pretty predictably with the policy preferences of the presidents who appointed them. So. Justice Anthony Kennedy, for example, was appointed by Ronald Reagan. He was a Republican appointee, but he wrote the most important gay rights decisions. He wrote the gay marriage decision. So he wrote decisions, you know, reaching liberal or progressive outcomes, even though he was a Republican appointee. John Paul Stevens, for whom I clerked, was a Ford appointee, so appointed by a Republican president, but was sort of the leader of the liberal wing of the court by the time he retired. So that kind of era where justices sort of had minds of their own and didn't always vote, you know, they didn't have the right to vote. And so that's, you know, that's kind of the way the presidents who put them on the court would have wanted really, I think, ends when Brett Kavanaugh gets on the court and replaces Anthony Kennedy. So we are less than a decade, I would say, into this sort of hyper partisan era of the Supreme Court. And I think in that sort of new hyper partisan era, we've had the court sort of doing much more to kind of implement its policy preferences in ways that don't always look terribly kind of judicial or judicious. Why was that Kavanaugh confirmation such a lightning rod moment in terms of the, the partisanship of the Supreme Court, you know, outside of everything else in his personal life that was being analyzed. But it really was this huge, certainly in my lifetime, where I felt like this conversation was now at the forefront that, hey, there is now a political party and partisan bent Supreme Court appointees. So I think that in some ways, the sort of the runway to that is, so Barack Obama is in the last year of his presidency, and he nominates Merrick Garland to fill the vacancy left right by Justice Scalia's desk. And he's in the last year of his death. And Mitch McConnell and the Republican Senate refused to even give Garland a hearing. And so that seat sits open for almost a year. And then when Trump gets into office, he quickly puts Neil Gorsuch on the court. So that's the seat before the Kavanaugh seat. And then but you know, Scalia was a diehard conservative, and so was Justice Gorsuch. And so, you know, that seat, to many people's mind was a stolen seat. But once Garland wasn't going to fill once Obama was not going to be able to fill the seat, Scalia's replacement with Gorsuch didn't change the balance of the court. Kennedy, you know, that seat being replaced by Kavanaugh fundamentally changed the balance of the court. And I think that's part of the reason that sort of you remember this as this kind of, you know, inflection point with people's understanding of the Supreme Court. And there was also the fact that, you know, there were these very serious sexual misconduct allegations against Kavanaugh that were surfaced during the course of his confirmation hearing. But it was also really fundamentally about the future and direction of the court. And so I think people rightly understood it to be very high stakes confirmation, he ultimately squeaks by right, one of the narrowest confirmation votes in history. And then the balance of the court is fundamentally shifted in ways that, you know, lead to the overturning of Roe versus Wade. And I think the court is in some ways just getting started in the precedents it's going to overturn. I'd love to go through some examples to get very specific about how it's changed over the past few years. Let's take one concrete example, birthright citizenship. So here's the exact quote about birthright citizenship from the 14th Amendment. So this is what it is. "All persons born or naturalized in the United States and subject to the jurisdiction of the Constitution thereof are citizens of the United States and of the state wherein they reside." So here's my interpretation. And again, this is my very basic poli-sci degree interpretation. I'm reading this. Hey, if you pop out of your mom in the 48 states here in the continental United States or Alaska or Hawaii, guess what? You're American. I thought this is pretty much settled. But then Trump was basically like, send the brown babies back. Unless of course you're white Africaners that welcome home kings and queens. So what's up with that? I mean, your understanding is the understanding that we have held essentially since the 14th Amendment was added to the Constitution in 1868. So this is constitutional bedrock. You are born here. It doesn't matter where your parents came from. It doesn't matter what their legal status was. You're a citizen, full stop. It's both been reaffirmed in multiple Supreme Court opinions, statutes passed by Congress, executive orders and regulations issued by the president and administrative agencies, states, cities, our constitutional culture. It has always been understood as one of the things that fundamentally actually makes America great. You were born here. You were American. That is what our pluralism largely is grounded in. And until recently, nobody seriously disputed it. So can I tell you what the shocking part for me was? I wasn't shocked that Donald Trump feels this way. In fact, the lawsuit challenging the executive order also didn't surprise me. What I'm surprised by is the Supreme Court took the case. Yeah. Why? Well, OK, so a couple of things. So Trump, you know, in his first term, he had made noises about this. But obviously, on just to sort of lay the groundwork a little bit, day one of Trump 2.0, he issues his executive order. It says birthright citizenship contra all of this broad agreement and sort of settled history that we have just discussed is no longer the law of the land. And anybody born 30 days after the issuance of this is not a citizen or lawful permanent resident parent. Even if your parents are here on a student visa or other temporary status, you're out of luck. And obviously, immediately challenged and lower court after lower court says this is a blatantly unconstitutional executive order. And the administration takes the case up to the Supreme Court. So it actually came up to the court once last year on this kind of procedural question of whether lower courts can issue something called nationwide injunctions. The court said, no, they can't. This has to be a class action. So it's back before the court as a class action. But the kind of fundamental question is, is this executive order constitutional? And in some ways, the question is right. The court had an opportunity last year to basically say, we're going to just put an end to this. This is an obviously unconstitutional statute and so unconstitutional executive order. So we're done with this. When the lower courts issued their opinions striking down the executive order, I actually think it was right for the Supreme Court to agree to hear the case. So they could provide a nationwide answer. And hopefully, and I think the answer is that the order is obviously unconstitutional. But the reason it's actually important for the court to be the one to answer that is if you have, you know, so far, all the lower courts that have considered this question have unanimously concluded that it's unconstitutional. But you could imagine a very conservative lower federal court reaching a different conclusion. I don't think they could do it plausibly or reasonably, but I wouldn't rule it out. And if that happened, you could imagine a patchwork in which courts in some parts of the country have said the executive order is unconstitutional. And in other parts of the country, the order goes into effect. And that would be intolerable. Like you're an American if your parents are in, you know, you're born in California, but not in Texas. Like, I think that that doesn't work. You need a uniform national answer. So I do think the court wasn't wrong to take the case. But I think it'll be immensely disturbing if even a single justice votes to, you know, uphold this executive order. And based on the tenor of the argument, I think that, you know, maybe two, maybe as many as three justices will vote with Trump. But I didn't hear a majority. So that at least is an enormous relief. You've called birthright citizenship settled law. Is that correct? Yes, absolutely. OK, so my interpretation of settled law, when I read that in kind of like my pre-interview document, was kind of like, I imagine my dad being like, this is settled. Like we used to have this all the time with my dad and Chuck E. Cheese. I'm like, can we please go to Chuck E. Cheese or Dave and Buster's? He's like, we're not going. This is settled. OK. And as soon as it was settled, I was like, we're not going. I would tell my little sister, I'm like, this is never happening. This is an executive order coming from Nodge Me Down. We are never going to Chuck E. This is settled. Yeah. Now, I always thought birthright citizenship was settled law. But wasn't Roe v. Wade also settled law? Like, hey, this is done. This is the law of the land. We all need to accept this and get on board. You are right, I think, to point to just kind of how destabilized we are. And I think that's a good point. I think that's a good point. That's part of liberty and autonomy. But for decades, not immediately, but within a few years of Roe, there was enormous effort to unsettle Roe. And the courts came close to overturning Roe in the early 1990s in a case called Planned Parenthood v. Casey, ultimately reaffirmed it, but on a very narrow vote. And state legislatures and even Congress have, or some members of for a long time, you know, had Roe in the room. the crosshairs. So Dobbs, which overturned Roe, was the culmination of this half century, really, of effort, you know, through lawmaking, through popular mobilization, through judicial appointments, right, putting judges on the bench that you thought would be sympathetic to overturning Roe. It was the culmination of this long multi-front sort of campaign. Birthright citizenship is just different. It is something that, you know, Trump, again, played with, talked about a little bit in 2015, and then, you know, generated a little bit of support with a handful of law professors who wrote some articles that sort of seemed to provide some support for this outlandish theory that the phrase in the middle of the first sentence of the 14th Amendment, that's sort of subject to the jurisdiction thereof, somehow swallowed the rest of the amendment that confers birthright citizenship. So they developed an argument very recently. But I do think that just it's about as settled, birthright citizenship is about as settled as something gets. And so trying to unsettle it, I think, has the very disconcerting effect of essentially throwing everything into question. And it feels like the long term goal, if I'm understanding this correctly, is. Even if it loses, the goal is to start to tally up those votes and shift the legal Overton window. Absolutely. Is that correct? I think that's right. Of like, hey, it lost six to three, but we got three. Yeah. No one thought you could get three a decade ago, right? He could spin that as a victory. Three people now think that I have the constitutional authority to override this settled principle that, you know, is both in the 14th Amendment, but in many ways, like way predates even the 14th Amendment. And so, yeah, I think that maybe this is part of a, you know, decades long strategy as well. Do you think opposition to birthright citizenship will now be kind of like a go to quality the president is looking for when looking for a Republican leaning Supreme Court justice nominee? Does that become like a new litmus test? Yeah. The way trying to figure out if a justice or totally that's got to be on the dating profile. I mean, you know, the kind of the long standing norms about presidents considering prospective Supreme Court nominees is they're not supposed to ask and nominees are not supposed to make any kinds of assurances about specific cases. But absolutely, the people sort of, you know, producing lists of recommended judges to President Trump were very focused on whether, you know, a prospective nominee would vote to overturn Roe as Gorsuch and Kavanaugh and Barrett, Trump's three appointees all did. I mean, I hope that's, I hope this is this thing that he takes this run at and loses big and decides like there's another shiny object to focus on. But I think that because it goes so deeply to the kind of pluralist character of the nation, I think you're not wrong that it could become something that like remains an object of real fixation for the conservative legal movement and sort of Trump and whoever the kind of heirs are. 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Hey, it's Ryan Reynolds here for Mint Mobile. Now, I was looking for fun ways to tell you that Mint's offer of unlimited premium wireless for $15 a month is back. So I thought it would be fun if we made $15 bills. But it turns out that's very illegal. So there goes my big idea for the commercial. Give it a try at MintMobile.com slash switch. Upfront payment of $45 for three dollars for 12 month plan required. $15 per month equivalent. Taxes and fees extra. Initial plan term only. Greater than 50 gigabytes. May slow when network is busy. See terms. Now, for the longest time, I thought the Voting Rights Act of 1965 was settled law. Yeah. Let's break this down to the audience. What is the Voting Rights Act of 1965 and how is it now under attack? Sure. So Voting Rights Act of 1965 is in some ways the sort of crown jewel achievement of the civil rights movement. Again, to sort of back up just for a minute, you know, after the Civil War, we have the 14th Amendment, which we were just talking about, and also the 15th Amendment. And then we have the Civil War, which is the 14th Amendment, which is the 15th Amendment, added to the Constitution two years later in 1870, which prohibits denying the right to vote on the basis of race. And for about a decade, right, during the Reconstruction period, that means something, right? You have genuine black enfranchisement and actual representatives in state legislatures and Congress. And then Reconstruction ends at the end of the 1870s. And for almost a century, the promise of the 15th Amendment is, you know, a dead letter. There is no meaningful black enfranchisement in the southern states. Voter registration for the I mean, Jim Crow means that like there is no black voting and like appreciable numbers in much of the United States. Civil rights movement, you know, has as one of its key objectives achieving meaningful voting rights and the implementation of the 15th Amendment. And that's what the 1965 Voting Rights Act does. It actually it prohibits denying the right to vote on the basis of race. And it actually creates these mechanisms for making that mean something. So it requires states that are covered, like mostly the former Confederate states, to get permission before they change anything to do with voting in their states. It also has a categorical prohibition on denying or diluting the right to vote on the basis of race. And it makes an enormous difference. Like you actually have meaningful black participation and representation. You have actual multiracial democracy, you know, beginning in the midnight or to late 1960s in this country. And within the last decade and a half, the Roberts Court begins chipping away at that. So in 2013, the Supreme Court in a decision called Shelby County strikes down one key provision of the Voting Rights Act, the preclearance part, the part that requires permission before changing your voting rules, basically on the logic that the South has changed and is less racist. And so this singling out for special coverage of certain states is, you know, injures the dignity of those states. And thus, that part of the Voting Rights Act has to be invalidated. And then there are a couple of other intervening decisions that sort of further chip away at the Voting Rights Act. And then just a couple of weeks ago in Louisiana versus Calais, the Supreme Court largely deals a death blow to what remains of the Voting Rights Act. A landmark Supreme Court decision 11 days ago found a congressional map in Louisiana was unconstitutional. The court said legislators relied too heavily on race to draw the lines. In the name of disentangling race from voting, the Supreme Court has made it virtually impossible. Impossible for black voters to challenge gerrymandered congressional maps. Tell me if this is right. Did the Supreme Court essentially rule that parties are now allowed to just draw congressional maps that are low key racist as long as they don't say it out loud? Yeah. Is that correct? Yes, basically. So as long as there's not evidence of intentional discrimination. So right. So they have said we are drawing the map in this shape to hurt black voters. So if they don't say that and instead if they say, we are drawing the map in this way with this shape to hurt Democratic voters, that's fine. The Supreme Court had in a decision between the two Voting Rights Act cases I just mentioned issued another decision that basically said partisan gerrymandering, you know, drawing maps that are going to advantage you and your political party and disadvantage your opponents, which, of course, has significant overlap with race because race and partisanship are highly correlated. But the court said, well, we're just talking about partisan gerrymandering. That's fine. Fast forward to Calais. The court said, well, we already said partisan gerrymandering was fine. And also this whole problem with like needing to protect black voters against sort of racist legislators and map drawers. Things are much better in the South anyway. So for essentially those two reasons, let's toss them in a blender and the sort of outcome will be as long as you don't, you know, say do the racism verbally. And as long as you say what we're doing is seeking partisan advantage. Essentially, the rules are out the window and you can draw maps sort of however you choose, which is sort of has us in a brave new world in terms of the sort of redistricting that's ongoing right now. Well, I'm seeing a lot of parallels between the conversation around the Voting Rights Act and then the way affirmative action was attacked. Absolutely. Out of curiosity, are you familiar with Edward Blum? Regrettably, yes. OK, so I used to have a show called Patriot Act. It was on Netflix. It got canceled. And that's unfortunate. But we did an episode on affirmative action, and Edward Blum was a key character in that episode. Now, for those of you that don't know, Edward Blum is basically the Martin Luther King Jr. for Asian parents. Who wanted their kid to get into Harvard. Let's take a look at his clip. The paradigm of race that we lived with in the 60s that led to the March on Water. Washington, that led to the passage of the Civil Rights Act and the Voting Rights Act. Those times are fading, that we now have an America that is multi-racial, multi-ethnic. You see African Americans with Anglos, you see little cafe au lait looking children. To say that we're going to continue doing what we're doing that we did 50 years ago, I'm ready to move on. Cafe au lait babies, I've never heard that used in a sentence ever. So I was weirded out by all of that. But at its essence, is this the argument that won with the Supreme Court when it came to affirmative action? And is this what's going to win with the Voting Rights Act, this kind of Edward Blum energy of racism's over? Yeah. There's plenty of cafe au laits out there. Maybe not the cafe au lait babies part, but yes, the kind of like, I'm ready to move on. I'm ready to move on is such a perfect distillation of I think that is sort of the TLDR of both the Roberts opinion in Shelby County and Justice Leader wrote the opinion in Calais. They both are basically saying, let's move on, which is just like not how judges are supposed to operate like they, I think, by this argument that we have improved, we have moved on. Racism, if not a totally thing of the past, is, you know, such a kind of less serious problem today. And so I think it's important for us to think about this, that the interventions that might have been required in the mid 1960s are no longer required. I think that's wildly wrong. But even if it's right, Congress and not the courts are the ones who should be considering that argument. Right. If we no longer need the Civil Rights Act or the Voting Rights Act, Congress can repeal those things. It hasn't done that. In fact, it is reauthorized again and again by virtual unanimity, the most recent voting most recent voting rights reauthorization. The continued need to repeal those things. It hasn't done that. In fact, it is reauthorized again and again by virtual unanimity. The continued need for those statutes. But I do think that that is essentially the logic that was at play in both of the Voting Rights Act cases that we're talking about and then also in the two affirmative action cases. Well, more than two, but there are two big ones that Bloom was like, really, he bankrolled parts of. He found the plaintiffs. He was really critical in as sort of an architect of those cases, which, you know, succeeded in the Harvard and UNC cases in 2023, essentially announcing the end of affirmative action in colleges and universities. I have a very silly but obvious question. If they're going to entertain the idea that racism is quote unquote over, have they seen the president's tweets? They pretend they haven't. But but how do they do that in good faith? Yeah. Like, how does Brett Kavanaugh in good faith see every fourth tweet that Donald Trump tweets that's pretty racist? I mean, the one on Easter was wild. Do you remember that one? Of course. Yeah. I think it was Happy Easter. We're going to bomb Iran. As-Salaam-Alaikum. Yeah. I think it was some hodgepodge of that. Yeah. I mean, it was offensive to everyone. Yeah. I don't I think Christians, Muslims and Iranians alike. Impressively sort of. Yeah. It was kind of this Venn diagram where everyone should be equally terrified. Correct. On planet Earth. Yeah. Yeah. Because he was threatening nuclear war. And then it was oddly, oddly kind of like racist. Yes. But then also like a celebration of Christ rising. Anyways, I say that to say, yeah, these nine justices are clearly aware of what's happening in the country. Yes. And they kind of hold this Edward Blum argument and be like, no, it is it is over. I wish I could get inside their heads and answer that question. I mean, there's actually a case pending not not to sort of go too far afield, but there's a case pending with Trump's effort to or his administration's effort to cancel this temporary protected status, this protection from deportation that the executive branch can extend, that it's extended to a lot of places and then tried to cancel with respect to Haiti and Syria, among other places. And so the court actually heard arguments. A month or two ago in a case about, you know, the decision to cancel this status for Haitian individuals in the country. And the justices were presented with many of the president's wildly racist tweets about Haitians, not just tweet statements, both Trump and Vance and cats and dogs and shit hole countries. I mean, the stuff was like vile, vile, racist garbage. Yeah. But in the blockchain, the Haitian dog stuff, him in speeches. Yeah. It was insane. Yeah. And I think that's the answer to the question that you're posing, which is, can they actually put on their blinders and refuse to consider the statements when they're so germane to a particular case? So that's about this TPS case regarding this particular immigration status. But the broader question, like if if anything gives the lie to the Alito claim in Calais that racism is basically done, it's literally the last month of the president's social media feed. Plus what? Southern Republican controlled state legislatures have done. In the three weeks since Calais was issued, Tennessee Governor Bill Lee just signed a new congressional map into law, splitting up the state's only majority black district. Tonight, the court's conservatives cleared the way for Alabama to move forward with a set of maps that would eliminate one of the two majority black districts in the state ahead of the midterms. Governor Ron DeSantis signing the state's new congressional map into law yesterday, tweeting signed, sealed and delivered. Like, no, racism is not over. And just like, again, sort of to return to what we sort of were starting talking about, the kind of hubris that these justices would decide that five or six of them are the seers and the knowers of like how big a problem racism is, how much racism is tolerable, whether Congress's careful judgment about what federal statutes we should all live under should be upheld or whether the court should just strike them down because it disagrees. Like, that is the world we are living in, and it's not really supposed to work this way. I want to talk about this idea. And I see this common thread coming up a lot when it comes to legal arguments where on one side you have people saying, if you show that the outcome of something is racist, it should be overturned. Yeah. And then on the other side is you have to only prove intent. Right. That something was racist. Then it should be overturned. Yeah. But it's very hard to prove intent, correct? Yes. Yes. And I do think that, you know, Alito and Roberts and maybe Ed Blum have a point, which is that. Racism has gotten a little bit more underground and sublimated, right? I think there's less explicit and overt racism. I don't know that there is less racism, but I do think it's the case that, say, legislators who want to draw a map to hurt black voters are less likely to say that with their mouths today maybe than half a century ago. And I think that, you know, that means it's much more difficult in a world where you have to show actual hard evidence of intentional discrimination, racial bias or animus, it's harder to invalidate something. Even if it's super racist, if there isn't the right kind of evidence, and that was in some ways the beauty of the Voting Rights Act, like you didn't have to have that kind of evidence. You could show, hey, if you're going to take all of the voting, the polling places out of a black neighborhood or leave one in a black neighborhood and a comparably populated white neighborhood gets 10 polling places, we don't need someone to have said a racist thing. We see that that is a racist act because it disproportionately hurts disadvantages, inconveniences, black voters. We have way longer lines to wade in, like that was how the Voting Rights Act worked. And that is no longer operational. Professor, what's the legal term for I know what you're trying to do. I know what you're trying to do.gov because my sister is an attorney and arguing with her is just a nightmare. Yeah. And sometimes I just go, I know what you're doing. Yeah. I know what you're trying to do. There's probably a Latin phrase for it. Okay. Because here's what I mean. I'm married. I have two kids. They're getting older. Just my Google calendar is destroying me, professor. I want to hang out with the boys. And I've told my wife this. And she's like, well, that's kind of sexist that you only want to hang out with dub boys. Here's how I would do it. If I was a conservative judge, I would say I want to pass a law for short hair gatherings. If you have short hair, preferably, you know, like a number two buzz cut. I'll take number two to number four, but it's a short hair gathering. Yeah. If ten people showed up, most likely it's going to be nine dudes and then maybe Doja Cat or Linda generous. But the outcome is pretty. Yeah. I think in a world where you can basically say, huh, that at least that's not going to necessarily tell us that that is sex discrimination, but at least there is, you know, that evidence may be compared with the conversations you have had with your wife. If we're going to bring her in and ask her, you know, like, what is awesome? Do you know why? Why is what's up with the short hair gathering? And she says, well, he does want to hang out with the boys. Like, maybe we can get to actually this is what you're trying to do. Smoking gun. Well, but we don't. I'm saying we don't even necessarily. We don't need that if in a world where a bunch of kind of evidence together that doesn't you don't need like the sentence that says, like, I just want to hang out with men and not women like dudes only. But you've said, like, I missed a boys. You haven't actually said, I don't want to hang out with women. I only want to hang out with men. I missed a boys. And then there's the short hair thing. Like together, we might say that is beginning to look a little bit like sex discrimination. And I'm not saying you can't hang out with the boys, but sometimes the law needs to be able to take into account sort of this kind of. Constellation of evidence that actually tells us we can smoke out what is happening here. And it's not illegal for you to have friends and to hang out with your friends. But it actually is illegal if, you know, substitute in. I want to hire a producer for my show and I'm going to just, you know, limit the application pool to the short haired folks because I'd like to hang out with like, you know, the boys on set like that actually is a problem and it should be a problem whether or not there is smoking gun evidence that you only want male producers. Well, what what ends up happening? So, for example, let's say. I only want male producers. Here's what I could put on LinkedIn. Prove to me that you've played GTA five at least 40 hours this week. I don't trust me. trust me you're gonna get a group of heterosexual men that love monster energy drinks and just play video games all day okay but it's gonna be dudes yeah and i'm saying dudes with a z there's a particular type of dude that's gonna apply for this job okay but what i'm what i'm saying professors there's very tricky ways to do this and and i don't think they're never gonna find maybe they will i don't know you tell me are they ever gonna find an email saying yeah hey we need to eliminate black voters in southern districts they're probably not gonna find that right i mean you'd be surprised it actually does happen sometimes um but on a dot gov i mean a few years ago there was a there was a case in north carolina where literally one of the members of the legislature asked for data on what forms of voting black voters disproportionately engaged in sunday voting or early voting and when they got the information back about you know sort of black and white participation rates in different forms of early voting they then eliminated the kinds of early voting that black voters you know were overrepresented in so that was pretty smoking guns so and that's just a few years ago so it does sometimes happen but you're right it's pretty rare an intent requirement is going to mean that very very few cases challenging what are actually discriminatory moves in practice in their effect those are going to just be able to you know go unchallenged because there isn't the smoking gun so i really think this conversation centers around this larger idea of the argument industrial complex and i'm not talking about male podcasters that's its own argument industrial complex indeed but but six of the nine right supreme court justices were a part of this thing called the federalist society yeah what is the federalist society so i love the argument industrial complex um and i think that's a good description so the federal society is a conservative legal organization it's founded in the early 1980s on law school campuses and also sort of has a counterpart in the reagan administration the justice department in the white house these are the early days of the reagan years and it's a bunch of conservative law students and lawyers who are sort of unhappy with the direction of the law this is sort of after the warren court which issued a lot of very liberal decisions brown versus board of education most famously but other ones involving you know race participation voting representation um into the burger court which is a little bit later there's roe versus wade there's cases about you know contraception intimate privacy things like that so um these lawyers and law students are big mad about all of this right they think that all of this rests on an incorrect understanding of the constitution and um they're simultaneously i think this is more the kind of administration side of it interested in kind of increasing presidential control over the executive branch and independent agencies and rolling back regulations that are kind of burdensome and costly for industry it sort of initially styles itself as this kind of you know insurgent effort to sort of change the sort of legal system the courts law schools and other law schools executive branch etc um and sort of you know is a big part of the push that we were talking about to sort of slowly you know and eventually successfully overturn roe versus wade and change a lot of legal doctrines that the federal society was really hostile to um and you know this sort of very long kind of half century long almost effort has kind of fully borne fruit and we now have it's been very effective majority absolutely of supreme court justices who are former members who i think you know still attend federal society gatherings who view themselves and i think that's a big part of the push that we're talking about and i think that's a big part of the push that we're talking about and i think that's a big part of the push that we're talking about and i think that's a big part of the push that we're talking about you know sort of still you know sort of still kind of proud participants in the federal society and it has had sort of transformational effect on our do you see it as inherently bad or good how do you see it um yes i mean i think that it has done enormous damage to our legal system i think that you know it i think that the sort of argument industrial complex is interesting is an interesting description because in some ways i think that gets at something profound it calls itself just a debating society right it says we are about the exchange of ideas you know we think that there has been sort of a legal a liberal stranglehold on the legal profession and on the courts and so we want to create sort of intellectual diversity and debate hard questions and come up with interesting ideas so that i think is their conception of self and i think many people like truly feel that way about what the federal society is for and about but i also think it has been very strategic in developing a lot of legal theories that it has slowly kind of amassed support for by having a lot of like legal scholars write articles that sort of come out of it and i think that's a big part of the process and i think that that's a big part of the process and i think that that's a big part of the support these ideas you know carefully vetting judges to see that they're going to be receptive to these kind of arguments when they get before them um and so it's a very instrumental approach the law like we are going to change the legal system and the interpretation of the constitution for a set of specific goals and i think like very dangerous and destructive goals much of the time and so i do think that on balance it's been a very very bad thing for us a debating society if that's all it was i think is something that we could all get on board with but i actually don't think that's what fed sock is about because that when i when i read about it i was like oh it's like a kiwanis club or just like the friars club we're gonna come in here and roast each other not innocuous like that but my reading of it and my interpretation just tell me if i'm interpreting this correct it's basically an argument factory what are the key arguments that we want to push into american society through the legal system meets this kind of minor league pro-am system for supreme court justices yeah like the same way they have all these baseball players in the dominican republic they're like we'll find you when you're four and in 20 years you'll play for the new york yankees and it's like how did you it's a tiny island how are so many new york yankees playing from the dr you know it's that sort of that was my interpretation yeah i think that's right i mean i think that people get clerkships with fancy conservative judges after their first year of law school sometimes so they're not kindergartners but those are first year of law school like that's not a lot of you know kind of experience and training under your belt and you're already being identified as somebody who could be a future potentially federal judge what are they looking at are they looking for the tucker carlson bow you know just kind of like as a 1l student we're like i like i like your moxie i think come on i think that well partly it's have you become an active member of the chapter of the federal society at your law school and have you said you you know you support originalism textualism these kind of federalist society endorsed modes of interpretation um that you know we can then sort of train you in and sort of send you out at a very young age to maybe be a judge and you know maybe a let me play devil's advocate here can't anyone with money kind of do this george soros could do this um the qataris could do this even though they haven't called me my dms are open i think i check out dm me essentially time plus money plus brain power those three things can lead to huge political and legal outcomes yeah if you only have two of those three you're the only one who can do that you're the daily wire right but just to be fair yeah can't other movements yeah why isn't there yeah why is this one particular or why is this particularly nefarious if that's the game yeah okay like nicely done you were really patient right you held your your bonds for 35 years and now they're yielding huge legal dividends i think it is i i share the a degree of admiration at just how effective the federal society has been um i don't think there's anything stopping the kind of legal left and some say big funders on the legal left from doing something comparable i mean i think fundamentally for better or worse a lot of the time liberals don't think about the law in quite so instrumental a fashion like we we think the constitution you know should be interpreted in a way that is sort of faithful to its core principles and that sort of accords with history and tradition to a degree sometimes we break with history and tradition so i think we have these sort of broad views but to sort of say we're gonna you know decide on an outcome we want and then retrofit a set of legal arguments to get there feels like fundamentally hackish and inconsistent with a principled approach to what the law should be how courts should operate what they are for and so i think there is a principled reason that we don't have a liberal answer to the federal society but as a strategic matter i think it is an enormous problem so i think maybe we just need to like get over it you mentioned this idea of originalism earlier what is originalism is this the whole like uh little mermaid can't be black thing is that what originalism is do you remember there was this whole hullabaloo yeah so like yeah when when the little mermaid was black people lost their fucking minds and i i think they were totally wrong to do that because i went to go see the little mermaid yeah hallie she's incredible in the movie but the animation of the fish they are fucking terrifying okay i haven't oh my god don't okay if you have children they've seen it but i haven't yes flounder looks terrifying the lobster looks like a real lobster yeah i mean if you look at real lobsters in real life they look like they come from the dungeons of hell yeah it's some dante's inferno underground crazy shit yeah i think we should be more appalled by that yeah not that the little mermaid is black yeah so is that what originalism is make make ariel white again i i confess i didn't i'm not sure i tracked the discourse closely enough where they focused on like the hans christian anderson like obviously had a white mermaid in mind or was it about the disney ariel or i'm not sure but i actually think their frame of reference was i had a vhs in 1991 yeah of the little mermaid and ariel was perhaps my first sexual awakening and she has to be caucasian i don't know if that's true but i don't know if that's true but i don't know if that's true but i don't know if that's true but i don't know if that's true but i'll be candid with you i think disney did a pretty great job with the casting and again i think the soundtrack was amazing she's an incredible actress and singer i'm totally flounder's your only beef my beef is really with both flounder and scuttle yeah and what's the lobster's name he's the jamaican dude and i mean that's in the original one um sebastian sebastian is fucking terrifying oh that's too bad specials amazing he's one of my favorite characters yeah um so all right so we're gonna move on to the next one and we're gonna move on to the next one okay i think in some ways yes that's that that's a good parallel i mean the idea is just basically that the constitution has to be under its terms should be understood the way they were understood when the terms were drafted and added to the Constitution. And so that kind of yokes us, like yokes us today to the meaning of a Constitution that was forged at a very different moment when sort of, you know, the polity, like people who actually participated in the making of law and who even had access to like what terms meant were basically just like propertied white men. Like that was kind of it. And so that's, it's an enormous problem with the method, to my mind, in some ways it makes it a non-starter, but it's a very influential method. Why did the Federalist Society mainstream this relatively fringe idea? Because the Constitution was written 200 years ago. Women couldn't vote. Black people couldn't vote. Cursive was a thing. It's not a thing anymore. DocuSign eliminated that completely. I know their Fs and their Ss like looked kind of similar, sort of hard to distinguish between. People were drinking raw milk. That's back now, apparently, which is nuts. But why shouldn't the Constitution? Constitution be interpreted as this living, breathing thing that needs to be applied to the times we're living through now? Amen. I would say so. I mean, I think that, you know, there are a lot of things that go into constitutional interpretation, but sort of our current values, problems, needs, like those should inform the meaning of constitutional terms. And that is the sort of idea of a living constitution. And originalism was sort of a reaction to it. It basically said, well, that idea of living constitutionalism lets judges inject their policy preferences into the Constitution. And kind of rule us all. And, you know, they're unelected. This is the idea of unelected judges. And so a way to constrain them is to sort of figure out a set of kind of interpretive rules. And this is the one that they sort of arrived at, which is, you know, the meaning of the terms is the meaning that they have had since their inception, since they were added. So the original Constitution versus like the 14th Amendment in 1868. So that sort of the timeframe might depend on when a constitutional provision was added. But the basic idea is you look to that kind of contemporary concept. And that's what we're talking about. lower court invalidated that Supreme Court said no green light without saying why so people are put on planes as a direct consequence of that shadow docket order on the shadow docket you know Trump got the approval to kick every trans member out of the military and the list goes on yeah so why is is it uniquely used in these very nefarious cases why is it the Amazon Prime one day delivery of injustice yeah I mean taking American citizens and then extraditing them or shipping them off to Sudan or even Venezuela okay so they haven't done it with citizens to my knowledge but individuals who are here yes yes but they're not from that place no absolutely they don't even return to sender no they like yes they punt it to a completely other part of the world absolutely which feels so uniquely cruel like yes where would the justices get off on saying yeah this seems like a good idea I don't understand what's in it for them I honestly think that they so again it's hard for me to get inside their head I think that it may not be a coincidence that it's some of the most nefarious stuff that happens in the least transparent way because I think they think this stuff would be hard to defend if you had to write an opinion explaining yourself and so they don't so I thought the court system was supposed to be slow but these decisions are happening fast yeah how do they justify kicking trans people out of the military as an emergency they say this is sort of back to kind of unitary executive stuff the commander in chief I mean again they don't say anything so I'm just like I am imputing reasoning that I don't know if they actually like share but I imagine because these are the arguments that Trump was making that it's intolerable for the commander in chief to be saddled with people in his military he doesn't want that's the basic argument I want to end with a piece of optimism the Supreme Court you know is as unpopular as it's ever been is there any way we can blow it all up and start over I mean I think that you are having an hour conversation about the Supreme Court as actually a little an optimistic note I do think that public attention and pressure really does matter now blow it up and start over as hard because it's you know it's in the Constitution so there is a Supreme Court but things like the size of it there don't have to be nine justices that's not in the Constitution we could add a bunch of additional wait there's no limit on the number of Supreme Court justices there needs to be a chief that's it they could there were six originally seven ten it's been nine for about 150 years but there's no set number so Congress could just pass a law changing the size of the Supreme Court could make it much bigger could give a president a bunch of additional appointments we could do term limits they serve forever now it's crazy so you could limit them to 18 years you could require them to give reasons and they do things like tell people yeah you can be sent to South Sudan or after a distinguished career in the military you're out of luck because the president doesn't want you anymore you have to explain yourself why are lifetime appointments okay what's up with that it's in the Constitution but what was the thinking what was the originalist thinking you want to protect them from being too kind of beholden to the political will political process they need to be able to sort of fearlessly and independently exercise judgment and if they're afraid you know they're going to lose their job fired for making a bad decision they're not going to be able to be independent but we've gone too far yeah I don't know I mean I feel the same way about PE teachers growing up I had this PE teacher that was my PE teacher my sister's PE teacher he was there forever his name was Mr. DeMarco he did this thing where he basically you know kids in PE wouldn't do push-ups and he's like if you do your push-ups I'll give you a starburst and he'd reach into his pocket and pull out these like warm starbursts that were essentially congealed to his thigh and give them out to children now I don't know what the legality of what he did was but it was certainly fucked up and weird doesn't sound great but Mr. DeMarco could move with impunity because he's like no one's going to come in and be a new PE teacher here at Holmes Junior High yes well look I don't want to you know necessarily ascribe nefarious motives he might be dead now he also admitted to doing steroids in the 80s so he's for sure for sure no no I appreciate his transparency he's like you guys won't do your push-ups I also did did he offer those or just the starburst he didn't offer steroids he didn't offer steroids I would have taken the steroids over the starburst the starburst was kind of weird I would have loved to get ripped so I think that sort of you know too long a tenure is not great in any position of power whether that's a PE teacher or a seat on the highest court on the land in the land but but I do think that the stakes are no disrespect to your PE teacher a lot higher when it comes to Supreme Court justices and if we're going to start somewhere that seems like a really good place to start you know they've done this on C-SPAN with White House press briefings and they've done it in kind of like Senate hearings the confirmation hearings what about adding cameras to the Supreme Court can we see their decisions in full 4k would that incentivize better behavior I don't know how you feel pivoting to video I'm not sure is necessarily great for anybody like does anybody get better when the camera is on them I am not sure but I the sentiment is right more transparency I think is important and actually they now live stream the audio of the oral arguments which is a relative that's a COVID development they started doing it during COVID because you couldn't go into the courtroom and they kept doing it so we can I have to because I'm professionally obligated to sit and listen to every argument basically that they hold and like I wouldn't really wish that on anyone but it's useful to be able to tune in that way used to have to travel to Washington and like stand in line overnight to get into the Supreme Court we used to have to stand in line at like it's 30 Rock and you're trying to get into SNL yeah except like you're a law nerd and it's the Supreme Court yeah so that happened but you're but you are saying transparency would be helpful there has been some and more transparency I think would be incredibly helpful I'm just not sure about the cameras okay fine let's scratch the cameras professor how about this full browser history you want to talk about wisdom what you're really about what are you looking at I want to see your incognito browser not your regular browser where you just only happen to visit Gmail and Google and yahoo.com I'm talking about your incognito mode look if you get to judge we get to judge you first okay I think I could get that's my solution okay nothing is a clearer read of what you're about than incognito mode okay all right let's work it out I'm here to just pitch solutions professor I'm trying to move the ball forward um professor thank you so much for joining us on the show this was really really lovely it was really fun thank you so much for having me thank you so much for joining us on the show this was really really lovely thank you so much for joining us on the show this was really really