After an emergency intro looking at the Fifth Circuit’s bonkers main-in ballot decision, the ladies do a deep dive on two books. First, they speak with New York Times correspondents Lisa Lerer and Elizabeth Dias about The Fall of Roe: The Rise of a New America. Then, David Pozen of Columbia Law School joins to talk about The Constitution of the War on Drugs, his book about how the war on drugs influenced the constitutional law we have today.

TRANSCRIPT

Kate Shaw Hey, it’s Kate.

Leah Litman And Leah.

Kate Shaw And we are recording this conversation after our regular episode was basically already finished because of course it was. And we do have a great episode teed up for you today. It’s about how law changes and we discuss two terrific books on the topic. But before we get to those conversations, we have some breaking news we need to bring to you.

Leah Litman Because the fifth Circuit, fifth Circuit ID, by which we mean they have attempted to short circuit our democracy.

Kate Shaw And we flagged the case in which they did that. RNC versus Wetzel as a case to watch is a case about whether it is illegal for states to count ballots that arrive after Election Day, even if those votes were cast and mailed prior to Election Day. Now, in 18 states and the District of Columbia, there are laws on the books that authorize state officials to count votes that come in after Election Day, so long as those ballots are sent or postmarked by Election Day.

Leah Litman To which the Fifth Circuit said, watch this like Usher meme. Not for much longer, because in what can only be described as an outlandish, radical opinion that would extensively refashion elections. The Fifth Circuit discovered that unbeknownst to all of us, Congress in the 1800s, actually prohibited states from counting ballots that arrived after Election Day. In a true, true Galaxy brain move. Some geniuses, those on the Fifth Circuit like discovered that, well, actually, federal law has preempted these state laws for over 100 years. It’s just nobody realized it until now.

Kate Shaw Like this is becoming a familiar theme. We and only we can actually see what everyone has always missed.

Leah Litman Yes. Like these three judges discovered some truth embodied in these century old statutes that had somehow, until now eluded absolutely everyone, like all of their predecessors, all officials, you know, until they just happened upon it. And, you know, in order to see this universal truth, the judges had to issue textualism, you know, in a footnote to their opinion, they say, quote, While dictionary definitions often help us, our understanding of statutory text, they do not shed light on Congress’s use of the word election in the 19th century.

Kate Shaw Dictionaries, except if they cut against us and then no dictionary is.

Leah Litman Exactly, exactly the majesty of the rule of law.

Kate Shaw Right. So as Leah just described, you know, I do think that what this panel just did was but actually democracy and democracy as we know it for tens of millions of Americans. So the opinion is rich in irony. But we should say, before we talk more about the contents of the opinion, that it does seem to us all but certain that this opinion is not going to affect what ballots are counted in this election, the 2024 election, although going forward, it may well inject enormous destabilization into the way elections are conducted in many states. But as to the election, I was going to say the upcoming election, but the ongoing election in which many, many people have already voted because what the court did was finding that Mississippi’s law and presumably other laws that authorize ballots to be counted after Election Day were preempted by federal law. What the Fifth Circuit did was send the case back to the district court to determine what the remedy for this violation would be, and that would include whether any injunction would go into effect. So the Fifth Circuit itself did not put on hold this Mississippi law. It sent the case back to the district court.

Leah Litman And I think part of the reason why we’re optimistic that this wild ruling isn’t going to go into effect for the election underway is because the district court, the court to whom the Fifth Circuit sent the case back to that court had sensibly upheld the state law. So this is a district court that seems to understand the whole law thing, and that makes me cautiously optimistic that they will understand that they can’t just upend the rules of the election while the election is ongoing. You know, there is this Purcell principle that is supposed to prevent courts from switching election rules, including rules about what ballots can be counted a week or so before Election Day again, while the election is ongoing. Right. You say that and it’s just so insane.

Kate Shaw That is a conversation that has to be had that it’s even a question. But I do think, A, there’s every reason to be confident that the district court is not going to inject that chaos now. And I understand being hesitant to make predictions around this case because it’s already gone so bonkers. But even if we were wrong about that, I actually think even this Supreme Court would not allow the upending of election rules this close to an election. So I actually do feel pretty good.

Leah Litman I think there that you both happen right to do that. But not yeah, maybe not. Five So maybe a taste of some of the ridiculousness of this opinion. You know, the opinion begins in its analysis with this pronouncement of Congress’s broad authority to regulate elections. And we’re like, where was this energy? In Shelby County versus Holder. You know, when Republican appointees dismantled a key provision of the Voting Rights Act, their Congress’s power not so broad. But here it.

Kate Shaw Is. Congress and Congress alone gets to decide when elections happen and if insurrectionists get to run for office and otherwise.

Leah Litman Their sovereign.

Kate Shaw States are in the driver’s seat. That is.

Leah Litman I see.

Kate Shaw In fact, the majesty of the law. So what else is in the opinion? So it offers some conceivably absurd hypos to illustrate why ballots are only valid ones received, such as, quote, What if the state changes its law to allow voters to mark their ballots and place them in a drawer? Would that be a problem?

Leah Litman This is basically like Sam Alito holding up a pad of paper that is blank and asking Solicitor General Perella, Gah, like, is this a grocery list? Like here they’re pulling up some Apple dance tech talks and saying, is this a vote? Is this a ballot? Right. Imagine a law.

Kate Shaw Totally different from this one. Would that bother you? Yes. This one should to.

Leah Litman Imagine a law in which a vote does not actually go out to anyone else. You know, could a state declare that the vote would come?

Kate Shaw What if it just makes your thoughts a vote? Would that be a problem? Exactly. Exactly. Yeah. So they also fixate on this idea, which you had highlighted after the oral argument, Leah, of consummation. So the idea that an election has been consummated and they.

Leah Litman Insist that consummation.

Kate Shaw Which I’m trying to say so with the straight face, that consummation occurs only when officials know that there are, you know, X-number of ballots to count.

Leah Litman There is literally a section of the opinion on consummation and they just define consummation this way just by asserting it’s to be the case. And it, you know, makes you wonder whether ballots that are cast by Election Day but received after have I don’t know maybe it could be called the potential for life or the potential of a vote. And states should be able to recognize the dignity and sanctity of those votes and protect them and protect them and protect them. Alas, that obviously only applies when states are trying to restrict women’s health care, not expand the franchise. You know, I guess another way of framing it while we’re fixated on consummation and whatnot, is to ask whether states could decide to permit ballots postmarked by Election Day to be carried to term. Right. Is that an analogy that would have more purchase here? Like, no, we can’t know dropping ballots in the mail or ballot drop boxes? No, but.

Kate Shaw What if the ballots were allowed to be dropped in a baby box? I feel like then states could permit those votes to be counted.

Leah Litman Maybe only babies can be put in drop boxes, not ballots.

Kate Shaw What if there’s a ballot with the baby? Then maybe that ballot could count.

Leah Litman This is a hypothetical that the Fifth Circuit never considered that they clearly should have.

Kate Shaw I hope I hope if that case comes back, they take this under advisement. Yeah. Okay. Yeah. All right.

Leah Litman One quick mea culpa. You know, we had flagged this case because when we saw the panel, which was three Trump appointees, judges, Ho, Oldum and Duncan, it was like, whoa, whoa, whoa. Democracy, You’re in danger, girl. And then I listen to the argument and it didn’t sound like they were actually going to pull the trigger on this because you had the judges actually asking about Purcell, signaling some awareness that they can’t actually pull the rug out from under election rules while an election is ongoing. And yet it turns out my expectations were too high. Right. I was too, I don’t know, indulgent of the Fifth Circuit to willing to assume that they were going to act in good faith here. And I feel like any time anyone suggests where to me into the Fifth Circuit. No, no, no, no, no, no, no, no, no, no. Not mean enough, it turns out. Yeah.

Kate Shaw And this is just the rejoinder. Absolutely. So they have this crazy bottom line conclusion. They do exercise a degree of forbearance in sending the case back to the district court. And honestly, the fact that we’re.

Leah Litman The world’s tiniest violin, right cheering.

Kate Shaw Well, I mean, like, yeah, we are being saved from the country plunging into absolute disorder around this election based on the forbearance of these chaos agents. And that is a truly terrifying place to be. They easily could have just decided like, no, we’re going to put this into effect right away. They could have teed something up for Scotus that would have thrown voting into question not just for the Fifth Circuit, but for the rest of the country. And, you know, it is just like the tiniest shred of I don’t know what restraint that is holding this whole thing together. And, you know, two other maybe things to say. So, you know, they could have thrown the election into chaos everywhere or even if just the Fifth Circuit, Right. I mean, so the Fifth Circuit has Louisiana and Mississippi and Texas in it. But, you know, Texas really important state right now. There is an unexpectedly close Senate race in Texas.

Leah Litman People are sending in ballots from Cancun. And we don’t know if those are going to actually be received by Election Day.

Kate Shaw Well, and taxes, you can count them so long as they received the day after. And so. Really could throw into question the result in that Senate race and who knows what else. And I actually have to wonder. So this is, you know, me being sort of unusually cynical, I guess, but I have to wonder whether the reason they are exercising this modicum of restraint. We’ve seen something of a depolarization around early voting in this cycle as compared to 2020, where in 2020 Trump was ran so hard against early voting discourages people from using it. And so then their post-election move a lot of the time is to try to get early votes thrown out because they were going to skew so heavily Democratic. And we have seen some shifting in that in that voters of all stripes are taking advantage of early voting now. And so I wonder.

Leah Litman Whether that’s are encouraging them to do.

Kate Shaw So. And there are some surrogates are still expressing some doubt. But Trump has encouraged people in lots of places to vote early and lots of other Republicans on the ticket have as well. So I wonder whether part of the reason they decided to hold their fire is because they weren’t totally sure what the partizan like payoff would be like. You know, actually throwing all this into question could actually hurt Republicans in some instances. And if it was clear the way it was in 2020 that actually putting this into effect now would really help Republicans up and down the ticket. Maybe they would have just gone whole hog.

Leah Litman I think that’s a definite possibility because in order to know what the true meaning of Pacelle is, we need to know, like what outcome would favor Republicans. That’s part of the test. Right, Exactly. That is part of the legal test, as Steve Vladeck showed in his book The Shadow Docket. So one other note that I’ve kind of alluded to, two of the judges in the majority here, Judge Oldham and Judge Ho are likely Supreme Court nominees. I think in a second Trump administration. And the other judge on the panel is another Trump nominee, Stanford Storm Trooper Stewart, Kyle Duncan. So if you are thinking like, should I vote in this election, should I be participating to help others vote? I mean, one thing to think about is the president is going to likely pick, you know, a possible Supreme Court justice or two. And again, like this is the slate that Republicans are potentially choosing from, you know, the judges that, again, tried to tee up like, let’s do a little, I don’t know, like election interference, stop the stealing through the courts in the midst of an election. And it’s it’s not good.

Kate Shaw And so that’s one more reason choice one more reason among many to get out there and make sure everyone you know is getting out there to.

Leah Litman Okay. So on that uplifting note, one last thing before we get into the episode, staying on top of the news you need to know for this election year is more important and chaotic than ever. Luckily, the Crooked Media news team has you covered with What A Day a fresh podcast first thing when you wake up and a nightly recap newsletter. It’s the perfect match, like pumpkin spice and a fall season. Plus, our newsletter just got a refresh. New design, same great insights. Be prepared for this high stakes election season. Subscribe to the What A Day podcast and newsletter at Crooked.com/subscribe. Forward Slash Daily.

Kate Shaw And now on to our regularly scheduled program.

Show Intro Mr. Chief Justice, may it please the Court. It’s an old joke but when an argued man argues against two beautiful ladies like this. They’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Melissa Murray Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Melissa Murray.

Leah Litman I’m Leah Littman.

Kate Shaw And I’m Kate Shaw.

Melissa Murray And today, we have a special two part episode for you that is about how the law changes. And we make clear. Sometimes law changes quickly. Sometimes it can change incrementally over the long haul. But the real question is how and why it changes. So to launch that, we will first be in conversation with Lisa Lerer and Elizabeth Diaz, who are the authors of a recent book on reproductive rights and justice or the lack thereof. They are telling the story behind the overruling of Roe versus Wade. Then Kate and I will speak to Columbia law professor David Posen, who’s the author of a recent book on the war on drugs and how that war on drugs has influenced the constitutional law that we have today.

Kate Shaw So we spend a lot of time on this podcast rehashing Dobbs versus Jackson Women’s Health Organization, the 2022 Supreme Court decision that, of course, overruled Rowe versus Wade. And we also spend a lot of time assessing the landscape that has arisen in the wake of Dobbs.

Melissa Murray And it turns out we are not the only ones who are completely obsessed with Dobbs and its aftermath. Joining us today are Elizabeth Dias and Lisa Lerer. They are New York Times journalist. Elizabeth is the national religion correspondent for The Times. And Lisa covers the intersection of campaigns, elections and political power. And they have combined forces and coverage for a new book, The Fall of Rome The Rise of a New America, which is a searing account of the decades long project to overrule Rowe versus Wade. Elizabeth. Lisa. Welcome to Strict Scrutiny.

Elizabeth Dias Thanks for having us.

Lisa Lerer Thanks for having us.

Leah Litman So obviously, the two of your colleagues at the Times, but you cover distinct, though related beats. What’s the origin story of your partnership and how you decided to collaborate on this book?

Elizabeth Dias Well, Lisa and I joined the times around the same time in 2018 on the Politics Desk, and we were really interested in kind of covering the country and politics through culture and understanding the relationship between politics, daily life and just how culture really informs all of these big changes we were seeing in the country. And we were listening to the oral arguments in jobs from we were on opposite sides of the country covering the case. And in the middle of the arguments, we just kind of said to each other, this is like actually happening. I mean, if there’s anyone who thinks this might not be happening, they’re in for a big surprise. So we spent the next two and a half years researching, reporting, writing to try to answer this fundamental question of how did this big change happen? And with that, what kind of country, what kind of America do we have now and how did we get here?

Melissa Murray So you’ve made the case for why a postmortem on growth and jobs is so important. But one of the things that’s really interesting about the book is that you don’t start all the way back in 1973 with the response to. So you actually start in 2012, just ten years before Dobbs. Why that decision to begin telling the story just ten years ago?

Lisa Lerer Well, look, that was a narrative and a sort of a reporting choice that we made. We felt like you could do a 50 year book. You could do a ten year book. You could do a one year book. And people have and will do all those those sort of accounts of how this really seismic change in American life happened. We felt like there was this ten year arc where the pace of this whole thing really started to accelerate and it started to accelerate as changes swept the Republican Party and also changes really swept our democracy. And we felt ro really showed in some ways could illuminate those changes that happened to the Republican Party and raise questions about, you know, the state of American democracy. So we started ten years ago because it was the moment when the anti-abortion movement told us it was their lowest point in their 50 year arc of trying to take down. And, of course, that is right. When President Obama was reelected in 2013, it’s when the Republican Party thought that abortion was sort of a political loser for them and was trying to move this movement that had been a plank of their party for many years, decades out and pushed them to the sideline. And it’s also and this is something that people don’t realize quite as much. It was the moment when white conservative Christians became a minority in America just by a tiny bit, not by a sweeping margin. But it gave those forces who were so integral in this fight to take down Ro the sense that they were losing their grip on America, that America was changing and it was moving away from them in their power.

Kate Shaw And in that focus. What did your reporting show about how this coordinated effort in the last decade or so took shape, who the key players were? Like, what is that arc just from the most recent decade? Obviously, there are antecedents that are much earlier, but your focus is the more recent one.

Elizabeth Dias The right actually had a very sophisticated network that was hard for many people on the outside, I think, to see along the way. But the anti-abortion movement has long been one of the most organized and persistent elements of the Republican Party, and they kind of developed at every level. I mean, they had grassroots organizers. They had lobbyists at statehouses. They had state legislatures. They got judges, of course, into key positions. And they really lucked out and were surprised, despite their work, when former President Trump was elected, because it opened up this entire new way when a lot of other people were unprepared, they were very prepared to you know, they were experts at taking every crack, every opportunity to do whatever they could in that in that slice, to expand their options, you know, to figure out how to restrict abortion rights. So there was a specific plan, really, you know, days after President Trump was elected in 2016. And we document meetings and conversations that happened at the Federalist Society’s gathering in Washington. And this decision by a few people that this was a moment that they could actually and grow. And then we look at the network of Christian Family Policy Councils, how they worked with state attorneys general. They did a lot of work through the Alliance Defending Freedom, a prominent conservative Christian law firm. You know, of course, all the way up to the Supreme Court strategizing and really developing a litigator. Abstract using legislation athletic it have strategy to leverage different circuit court regions all the way to figure out what kind of case could they get at the court to get the result that they wanted.

Leah Litman So typically, cultural change precedes legal and political changes. But as you show here, the right was able to use the legal and political landscapes to shape the culture around abortion. So could you say more about that dynamic?

Lisa Lerer Yeah. Look, I’m a I’m at my core a political reporter, right? That’s what I’ve done for most of my career. And I think there’s this sense with politics where the culture changes, people march and they protest and they reflect that change. Politicians hear them and policy changes as a result. And I think what the fall of Rome shows us is that sometimes, as you point out, culture changes in really different ways, that the law can be used to effectively force a change in the culture. And that’s really what happened here. There has been majority support for some form for Ro or some form of federal abortion rights for decades. At this point, nobody was really there was not a mass movement clamoring for wrote a fall. In fact, generally people supported Ro, but there was a very engaged, largely conservative Christian minority who spent a long time trying to take it out, and they were able to capture the levers of legal and political power in key spots. Of course, had the Supreme Court, the White House, but all the way down to really statehouses and these sort of even in some cases, city councils and be able to push through this legal change that then effectively changed the culture for the entire country.

Kate Shaw We’ve talked some about the religious conservatives and some of the organizations that were sort of key in both shifting culture and shifting law. Can we maybe just bring some other actors who are characters in your story into the picture? So you reference the kind of 2010, 2012 shift is this really important kind of inflection point. And I think that the book does a really good job of disrupting the kind of conventional wisdom around the Tea Party, which was, I think that it was largely an economic movement focused on the structure and function of smaller government. But there is this way more nuanced story that your book tells about how critical the Tea Party was in birthing the MAGA movement and both the political and the cultural changes that toppled Rowe. Do I have that basically right?

Lisa Lerer I think we think of the anti-abortion movement as these separate actors like happening over here. And then there’s, you know, Tea Party economic conservatives and now, you know, there’s these MAGA conservatives who want to, you know, do sort of stop the steal and these like election conspiracy theory things. In fact, these are all one movement and they’re really intertwined. And part of what we talk about in the book is how, you know, while the Tea Party rode into power on this wave of economic dissent and pushback to the sort of bailouts during the Obama term, in fact, what they were really effective at was pushing through a whole bunch of abortion restrictions. And, you know, 2011 was that was a high watermark until we got into sort of the final years of road, you know, much, you know, decade or so later, it was a high watermark for pushing through these kinds of restrictions. And it really like laid the groundwork for how those laws could continue to move forward in more dramatic ways, which, of course, led to the case that would, you know, end up being jobs. But in part, that was because it’s much easier to pass through the restrictions on abortion, particularly at a time when many people believe they were just mostly messaging bills that wouldn’t have that big of an impact because roads in place, that actually finding ways to cut government spending and take benefits that people like away from them. So those movements are really intertwined. And I think that’s a really important grounding for the decade that followed and eventually for how Row ended up being overturned.

Elizabeth Dias It is the Tea Party, but it’s really, you know, we call them the Tea Vangelicals. And thinking about them actually as one group of people is really helpful. I mean, many of the people who were elected at that time were very committed conservative Christians.

Melissa Murray You know, I think it’s a terrific point that I think gets obscured in the traditional telling of the story. And just to continue pressing on it, Dr. Ghazala Murray, who’s an abortion provider in Texas, recounted that, you know, for many years, the clinic where she practices had a regular crowd of anti-abortion protesters, and they were largely religious conservatives. Yet curiously, on January 5th, 2021, all the protesters were gone. And the patients at that clinic left and went in and had no problem. And the next day, January 6th, 2021, the same thing happened. The regular protesters weren’t there and the clinic staff was pretty confused until they began watching the midday news coverage of the unfolding riot at the U.S. Capitol and there as the cameras. Hand across the crowd of January 6th, protesters Moiety and the clinic staff realized why their parking lot was empty and there were no protesters because they were all at the Capitol like they found all the people that routinely came to their clinic. They were at the Capitol that day. And so in the book, you make a gesture toward linking this question of political violence, especially in the wake of Dobbs to this broader question of religious change, the fervor over the anti-abortion movement. And I think you may even be suggesting that some of the fights that we have seen over abortion over the years were really just dress rehearsals for the broader fight over democracy that we saw on January 6th, 2021.

Lisa Lerer Yeah, I think you saw you hit on something really important that we’re, it’s  so gratifying to hear you raise that point. I mean, I think the way we think about the fight over abortion rights is, of course, it is about when a woman, if a woman can and when she can legally terminate a pregnancy. But it is also about a whole lot more. And it’s really for a lot of the people, you’re sort of talking about this movement of anti-abortion protesters that has now become so integrated into the broader MAGA movement. It is a fight for Christian power and for the place of sort of conservative Christianity in American life and at its core, really about what American families should look like and what the role should be of American of women in this big American project.

Elizabeth Dias I would just add that I think it could be easy to look back at January 6th, 2021, and think of it as sort of this macho extremism moment. A lot the images is very male coded. There’s a lot of a lot of male visuals going on there.

Lisa Lerer It’s like a clip out of an action movie, you know.

Elizabeth Dias It’s very  action movie. Yeah, but it’s this the way in which sort of the soft behind the scenes, like the slower creep of change and impact of of things that were really quite radical but done in very legal ways had a huge effect for American women along the way. And I think it’s it was really valuable in the research to see what that looked like, like what that slow kind of behind the scenes takeover looks like and what kind of coup in a way that was and it was entirely legal.

Melissa Murray Like the frog being boiled and you just you don’t feel it until it explodes on the steps of the Capitol.

Lisa Lerer Yeah. And I think we’re conditioned to see sort of big shifts and of radicalization in one way that we think it should look like guys storming the Capitol. But in fact, it can look a lot of different ways. And sometimes it can look like you’re working things through the courts that hadn’t been done before in sort of unprecedented ways. So I think, you know, it’s a matter of broadening how we understand what it means to force through major shifts in American life.

Leah Litman So speaking of the frog being boiled, I guess we wanted to shift from talking about conservatives to talking about the left, you know, progressive the Democratic Party, because a major theme in the book is the left’s complacency, their refusal to acknowledge and respond to the threat that is metastasizing in plain sight. You know, and you have this moment where in 2015, Democrats all of a sudden realized that maybe this could happen. But at that point, you know, you say it’s too late. So I guess I would put the question to you. Has the left learned its lesson or is it continuing to overlook the growing threats that are forming in the midst? You know, what do we need to do now before we will realize it’s too late in a few years?

Lisa Lerer Well, I think 2015 as a realization point is really quite generous of you. And I’m not sure I would put it really that early for most people. But, you know, I have to say that I don’t it’s understandable in a way. Right. Like this was some roll was a foundation. I mean, look, I don’t need to tell you guys. People don’t really know a lot of the names of a lot of Supreme Court cases, but they know this one. Right. This was something that was really foundational to two generations of American families. So the idea that it could just simply go away was really hard for people to wrap their heads around. And what that meant is when Democratic politicians were out there saying, you know, you need to vote for me because rose under attack. People just thought it was like the kind of normal political promises that didn’t actually weren’t actually real. And as a result, it was not a major you know, it wasn’t that it’s really changed overnight since Rofl, but it really wasn’t a major political driver. So it wasn’t something that Democrats wanted to lean into because frankly, it didn’t do a ton for them politically. And so you had this situation where nobody really took this thing all that seriously. And there were some Republicans, too, who didn’t think it would actually go. And you saw that that’s evident by the bills that were put on the books that, you know, after Rafale, where you had all these conflicting statutes in states. So I do think some of this was just a profound sense of denial across the political spectrum, aside from this like small core of conservative, true believers who thought this could happen. And some of it was that it wasn’t as politically salient as Democrats, you know, in a way that would be really useful to Democrats, particularly as it is now. Now, look, I think the landscape has changed dramatically. I think it is one of the driving forces of this election. It is probably the best one of the best, if not the best issue Harris has to run on. And that’s why you see Democrats talking about it in every race across the country, every moment and every day they can. So I don’t think there’s that same sense of denial. But there’s also not a magic wand that Democrats can wave here that will suddenly reinstate federal abortion rights. So they’re I’m curious to see what happens if Harris is to win the election, what happens afterwards? Like there’s been a lot of promises to restore row. It’s unclear what that means. Right, Because Row doesn’t exist. So what is restoring it? What is the baseline we’re setting in terms of weeks and all of that? And also, it’s really legislatively difficult given that the margins Democrats are likely to have if they are even able to hold the Senate. So I think we’re going to be plunged into a really different conversation after the election. But I don’t think this sense of denial and a lack of action is the same problem that it was before. Rochelle For for the left.

Melissa Murray So that is comforting, I guess, as we wait for what.

Lisa Lerer We’re not really going to deliver a lot of comfort, that’s not we’ve been told that’s not our space.

Leah Litman So I still feel like there is some denialism going on, like here in Michigan. Because in 2022, you know, our state ratified a state constitutional amendment for reproductive freedom. And it still feels to me that people don’t understand that in states with state constitutional protections for reproductive freedom, that’s not going to do the trick. In the event that the federal government tries to start enforcing the Comstock Act or reverses the FDA approval of before press down or, you know, they do other things like actually passing a federal abortion ban. I don’t think it still feels to me like there’s some dissonance and denial there.

Melissa Murray It also feels like just the focus on the presidential race without sort of taking into account what the congressional races and especially the Senate will mean both for courts and for the ability to pass filibuster reform and to codify row and keep it codified. It just people don’t seem to understand like this is a multi tiered project, not just elect her, although that is certainly part of it.

Elizabeth Dias Yeah, One of the things that the anti-abortion movement has been so effective at over the years is their ability to think and plan in generational like lengths of time and. Think the laughs, you know, it’s this is such a test for them right now. Like, yes, they’re thinking about it in terms of an election, but the scale that made the rights so effective was planning like way down the line. And we still see that even now. For example, yes, the Supreme Court didn’t rule on the FDA case, and the right expects that definitely to come back to the court and be examined again. But when they saw that loss, while many people on the left were sort of touting this as a victory, the US, the lawyers, the lawyers on the right were like, we’ve just learned something from this, like how to adjust our strategy. Plus then you have the Chevron case, which was a huge victory, and that’s another example where there was so much talk of the economic and regulatory impact there, right? The social conservatives were, you know, telling, telling us just how excited they were, how that was going to make things like repealing the FDA approval for easier medication, abortion, so much easier for them. So they’re just playing this down the line in a way that I’ll be curious to see how Democrats and reproductive rights activists respond in a more strategic way.

Lisa Lerer But I do think you can’t underestimate this, like wiping away of the denial. Like I do think that’s really important because I think, look, conservatives thought that they had taken they had been able to overturn race by winning American hearts and minds. But it wasn’t true. In fact, people just didn’t think it could happen. So they weren’t upset about it and they didn’t understand what it would be if it were to happen. And now they do. And there are very few issues that have, like, I don’t know, 80% popularity and support in American life and contraception and support for fertility treatments are two of them. So I just think it’s plunged them into such trickier political territory. And the Republican Party has you know, you’ve seen in different places candidates have tried to distance themselves from the anti-abortion movement where they could. They haven’t found a political a political answer to this that really works for them. This is a very politically damaging issue for Republicans and the party. I think there’s significant parts of the party that realize that. And so I do think that hasn’t that constrains some of what semble what can happen. And if you look at, you know, the reaction to what happened with IVF down in Alabama, it’s really interesting to see that that, you know, I wonder if that would have happened in the same way before, you know, in the political climate that existed when Rove was still, you know, standing.

Elizabeth Dias And anti-abortion activists themselves are worried about the fact that this denial has gone away. It’s not something that they talk about publicly. We love replacement opponent. Exactly. But they but they you know, they’re realizing that this is the first presidential election in half a century without Roe’s the foundation. So obviously, mobilizing Republican voters doesn’t work the same way. But they don’t they don’t have a that no one really knows entirely until you know how this will play out, until we start to see some results. But on the other hand, like one of the lessons in our book and we started, you know, talking about how we started our story in 2012 and there are a lot of resonances with the current moment there. I mean, it was the time when anti-abortion activists literally thought that all hope was lost because the Republican Party blamed them for President Obama’s reelection. So we’ll see. There’s a lot that’s going to unfold here. And I just think it’s hard to sort of overstate how how unknown this time is.

Melissa Murray Well, that is really comforting. The book is fantastic. We all loved it. It is not comforting reading, but it is essential nonetheless. The book is called The Fall of Rome and the Rise of a New America, and it is a searing must read. Run! Do not walk to your local bookstore to get your copy. Elizabeth Dias and Lisa Lerer, thank you so much for joining us today.

Elizabeth Dias Thank you so much for the conversation.

Lisa Lerer Thanks for having us.

Kate Shaw And now on to part two of the episode. Today we are delighted to be joined by David Pozen, who we have invited on the podcast to talk to us about his terrific new book, The Constitution of the War on Drugs. David is the Charles Keller Beekman Professor of law at Columbia and one of the best scholars of constitutional law around today. His most recent project is a book length treatment of the War on Drugs and its relationship to the Constitution. And I want to mention up top that the book is available on SSRI, and so you can download it and read it right now for free. So if you are interested in this discussion, run and do that. David, welcome to the pod. It’s great to have you.

David Pozen Thanks so much for having me on.

Melissa Murray So let’s start with the impetus for the book. What drew you to this topic? Kate recently wrote an essay for Jack Belkin’s blog Balkanization, and as she noted in that essay, The war on Drugs is not typically a topic that we think of in terms of constitutional law. So what brought you and all of your constitutional law knowledge to this topic, the war on drugs, and to think about all of the ways in which constitutional law has failed and maybe even furthered the war on drugs.

David Pozen Yeah, that observation, of course, is itself part of what brought me to this topic. That is, there’s this major drug reform movement that’s been underway for years now, and it assails the war on drugs for its violations of racial equality, individual liberty, reasoned government decision making. And as a constitutional law scholar, those struck me as the key tropes of modern constitutional law. And yet the drug reform movement almost never enlist the Constitution in its effort to fight punitive drug policies. So it was that that absence that drew me to the project more than anything. Where did the Constitution go in our struggles for humane and effective drug policies? And I knew enough when I was starting out that there had been generations of previous constitutional battles over drug policy to know that there might be something there historically to look into, and that launched the project. The other thing I’ll say briefly is the series for which the book is written is called The Inalienable Rights Series by Oxford University Press And one of the annual bowl rights named in the Declaration of Independence is the Pursuit of Happiness. And fully two thirds of the state constitutions codify a right to the pursuit of happiness. And that used to inform interpretation of the federal Constitution as well, and bears on drug policy. So I was also curious about that absence. Where did the right to happiness or the pursuit of happiness go in our constitutional tradition? And I sense that that was bound up in the history of the drug cases.

Kate Shaw As you mention, there is some history, despite the relative absence of the Constitution from present debates about drug policy. There actually have been lots of constitutional arguments made over the decades in state and federal court. And one of the I think, really important contributions of the book is pulling that history together. Right. Unearthing it for a lot of us. It was totally unfamiliar for me. Much of it was. So can you just tell our listeners a little bit about what the major strands of argument that were made, you know, sometimes getting traction against various aspects of our punitive drug laws?

David Pozen Sure it varied by time period some. So for example, in the late 1800s and early 1900s, you had a lot of arguments about the limits of government power. You know, the federal government couldn’t regulate activities that happened purely within a state, and even the state governments couldn’t regulate purely private conduct, at least in some jurisdictions. And people argue that the possession and consumption of drugs like alcohol was purely private conduct and so just walled off from the government’s regulatory authority. But those arguments fall out of the picture by the mid 20th century, when it’s well established that the government at both the federal and state levels does have that authority to regulate even private conduct. But what rises instead are rights claims in the 1960s and 70s. That’s the focus of the book. And they take many forms. There are liberty and privacy claims for, again, personal possession and use of drugs, especially in the home. Those are often brought under the due process clause, the so-called substantive due process arguments. There are arguments that illogical classifications of drugs, for example, lumping marijuana with heroin in their most restrictive drug schedules violates the equal protection clause and its guarantee of treating like things alike, you know, rational, rational government decision making. There are Eighth Amendment cruel and unusual punishment clause claims that it’s cruel to punish drug addicts for behaviors that they can’t control or that long prison sentences for nonviolent drug behaviors are grossly disproportionate to the gravity of the crime. There are First Amendment claims under the free exercise of religion and the free speech clause. It turns out there are many different parts of the Constitution that are enlisted in winning in some lower federal courts and state courts on all of these grounds and fighting draconian drug laws.

Melissa Murray To me, this was the most fascinating aspect of the book. This whole idea that there was this history in which lower federal courts and state courts of last resort were actually crediting some of these alternative theories of constitutional protection for drug use. So you talk about the Alaska Supreme Court, for example, and there are these other lower courts, but this question of constitutional limits on the state’s ability to regulate drugs really kind of goes fallow in the 1960s and 1970s. And it does so at precisely the moment where the 14th Amendment and in particular the due process clause and the equal protection clause are really pushing forward to protect racial equality and reproductive freedom. So why the mismatch in the ways in which these limits on government authority that come out of the Constitution are used and why can’t they be used for drugs.

David Pozen Whether they are used for a for a period? So in the late 60s and early mid 1970s, the new liberty equality arguments that the Supreme Court is blessing are exactly what’s leveraged by drug reform advocates and drug defendants lawyers to to challenge these punitive drug policies. And then it’s really toward the end of the 1970s that the courts pull back, partly because of signals they’re getting from the U.S. Supreme Court, partly because I think some courts are worried about just how far this rights revolution is going to go, that they they’ve ushered in, partly because drug politics are changing. It’s a it’s a complicated story. But to make it more concrete, I’ll just say it’s in 1965 that the US Supreme Court handed down Griswold versus Connecticut, recognizing a right for married couples to use contraceptives in the home. And that ushers in this new era under a right to privacy rubric. And so suddenly, substantive liberty or privacy claims can be brought again. And the drug lawyers quickly figure out that Griswold can be mobilized on their behalf. So they start bringing a whole tidal wave of claims using Griswold. And then I think you also reference the reproductive rights cases like Row. Row two is used by drug reform advocates to stand for this right to control one’s body and important life decisions and cannot be applied to drug use as well. So I think there is a moment where for about a decade where it looks like there might be a very robust privacy and liberty jurisprudence extending beyond marital couples, beyond reproductive choice, and into all sorts of personal behaviors as well. My favorite little factoid here with Roh and drugs is the California State Senate studies the issue of marijuana in the early 1970s and puts out this report that row versus Wade compels the conclusion that adults have a right to personal possession and use of marijuana. What could be clearer than that? Rowe versus Wade compels that conclusion. So people did not think this was a fanciful. Yeah, you know, leap from those private celebrity cases to drugs.

Melissa Murray Well, so I push on that a little bit. So and we see a kind of similar dynamic in the arena of sexual freedom and in particular gay rights at the same period of time. So, you know, there are a lot of anti-sodomy challenges. That reference Griswold versus Connecticut and then eventually reference Rowe versus Wade. And over time, like they’re sort of shut down very quickly. But then in the 2000, in the 1990s, they begin to flower again. And of course, we know in 2003, the court decides Lawrence versus Texas and finds that there are some kind of constitutional protection for consensual, private same sex sexuality. We don’t see the same kind of oscillation with regard to the war on drugs, where there is this sort of opening and then retrenchment and then again another opening. And so why why is that?

David Pozen Yeah, I mean, there’s there’s an opening and then retrenchment, but. Right. Not a further reopening there. I think by the mid 1980s, the full militaristic version of the war on drugs has taken hold. And what’s different is that the kind of broad base of popular and elite constituencies for drug liberalization has gone away by the 1980s and and then the doctrinal openings have closed as well. So in the 1970s, by contrast, you have numerous government commissions endorsing drug liberalization. President Carter, President Ford in his way as well. You have the National Council of Churches, the National Council of Rabbis calling for drug decriminalization. You have the Consumers Union doing the same thing, the ACLU. So you have this wide swath of kind of establishment groups that recognize that punitive drug policies tend to be mistaken and cruel, and you have just surging use of drugs, illicit drugs, not only by hippies and countercultural figures, but also by Vietnam veterans and groups that are not easily dismissed, you know, as as on the fringe of American politics. So so that that all keeps alive the possibility of drug rights in the 1970s, as well as these doctrinal openings that are happening. And and it’s what goes away in the 1980s. I’ll just say quickly, on the privacy claims, what seems to me unresolved in the late 60s and 70s, but then proves fatal to claims for a liberty or privacy based right to drug use is whether or not you need to establish that your liberty interest is fundamental to have a chance of getting constitutional protection. And now I think we all teach in our classes that, you know, the first step in a substantive due process analysis is, is the liberty interest in question fundamental? However, you judge that, if so, strict scrutiny, if not, you know, you lose rational basis review. But that wasn’t established in this period. And when it when it is established, I think in part because of the flood of drug claims that courts start to get afraid of, no judges are willing to say you’re right to smoke pot is fundamental, you know, and therefore you win. The better version of the argument, I think, is your right to smoke pot is nontrivial. There’s some liberty and privacy and autonomy interest at stake. But what’s really bad for the government’s case is they don’t have a good argument for criminalizing what you’re doing. And so if we balance those, we find that you ought to not be thrown in prison for this kind of behavior. But when that when that possibility of that kind of argument goes away and you have to prove to a judge that it’s fundamental, then the drug rights winds dry up.

Kate Shaw Right. So that’s something that you just throughout the book that the constitutional grammar that sort of solidifies sometime in maybe the 19 late 70s 80s renders basically illegible. A lot of the claims that would be the most likely to succeed. And that I don’t want to put words in your mouth, but that you seem to find in some ways like the most persuasive the government. Most of the time there’s some kind of non-trivial interest. Government usually doesn’t have any decent reason for restricting in the way it does, at least most currently illegal drugs. And that is an argument that the Constitution should recognize. And yet our current constitutional grammar doesn’t necessarily do that. So we’re talking mostly about liberty and privacy and equality. And there are also interesting First Amendment strains in the story that you tell. So, you know, I think the First Amendment figures in a couple of different ways. One that you alluded to a couple of minutes ago is there are First Amendment arguments grounded, particularly in the free exercise clause against certain prohibitions in particular on the use of substances like peyote. But the First Amendment is also a major obstacle to drug law reform in that it cuts off a possible channel, which would be something like decriminalization, paired with limits on advertising, essentially that this kind of weaponized First Amendment and First Amendment protections for commercial speech have actually stood as a major obstacle to drug law reform. Can you kind of spell that argument out for our listeners?

David Pozen The First Amendment is used aggressively in the 60s and 70s to try to attack these this prohibitory drug laws, both under the free exercise clause, which protects the free exercise of religion and the free speech clause. Free exercise challenges to drug laws yield a small set of wins largely revolving around the Native American Church and later the Church of Saturday, May 4th. Peyote and ayahuasca, the free speech claims are take two forms. Some people say that the right to use drugs is itself a form of symbolic. Speech, mainly protest against the establishment and courts basically don’t take that too seriously if using drugs is symbolic speech. And so it’s a lot of things we do, but they take more seriously the idea that drug control can amount to thought control. That is the idea that drugs can stimulate new modes of perception or cognition or sensation. There’s a long line of free speech cases saying that freedom of thought is covered by the right to free speech. You have the Supreme Court in 1969 say that obscenity in this case, Stanley versus Georgia, you have a right to possess obscene materials like a pornography video. In that case, even though obscenity is not speech at all under the First Amendment, because otherwise the government would have the power to control people’s minds. So that looks like a promising avenue to challenge drug bands, particularly psychedelic drug bands, that people say, you know, free their minds. And and that argument actually has taken off abroad in recent years under the banner of cognitive liberty. Okay, enough on that. Was just to say there are an interesting mixture of free exercise, of free speech claims you could bring against against drug bans. But what happens instead when those avenues largely get closed off is the Supreme Court in 1976 recognizes commercial speech as a type of speech covered by the First Amendment. Wasn’t clear before 1976 that advertising got any First Amendment protection. But once it does, when you have a legal product, then it’s very hard to restrict advertising about it. You can restrict for illegal products. And Kate, what I think you’re getting at is this is this is troubling for those who want to legalize drugs or at least liberalize drug policies, but not have a flood of advertising targeting, say, adolescents in particular. For me personally, I’ll just say I would love to pair relatively liberal drug policies with with pretty strict limits on advertising, but that balance is unavailable because once you legalize, the First Amendment basically allows, you know, think of the alcohol ads you see or what Purdue did with OxyContin, a much more advertising of potential of psychoactive substances than we see in other countries. So the first of both isn’t helping people get out of punitive drug laws very much, and it is helping manufacturers of legal drugs, you know, distribute them as widely as they can in a way that I think is disserved us.

Kate Shaw So I actually think there are a lot of parallels between the failure of the Constitution to track the abuses of the war on drugs and the failure of the Constitution to meaningfully protect abortion. And I mean both the failure poster jobs, but in many ways the failure of the Constitution to really protect access to abortion under the rules set forth. And, you know, Rowe and Casey, which formally protected access to abortion, but permitted all kinds of regulations that placed it functionally out of reach for many, many people. So I guess I’m curious if you agree that there are parallels between the failures of the Constitution in these two, you know, related but disparate domains. And I actually wanted to ask I don’t know if you saw this, but those parallels seem to me are particularly acute right now in light of Louisiana’s recent decision to classify the drugs used in medication abortion as controlled substances. So this is a recent development, but it makes me think that maybe these parallels actually these lines may converge in more direct ways than I even realized when I was reading the book.

David Pozen Yeah, I have to check out the new decision out of Louisiana, which sounds disturbing. The I would obviously drug drugs don’t implicate sex equality in the same way as abortion rights and so are are distinguishable. But I think you’re right on the on the on the liberty interest side there are a lot of parallels in the way the doctrines develop. So, for example, in Dobbs, you see, Justice Alito demand is very stringent and particular inquiry into what makes a liberty interest covered, you know, by the Constitution that it be narrowly defined, deeply rooted in history and tradition. And he says that abortion abortion rights fail that test. That same kind of logic is basically what is used to weed out drug claims. You know, a generation previously, as with abortion, there actually is a plausible historical case for a right to illicit drug use that Alito seems oblivious to. And, of course, the way he constructs the history is deeply uncharitable to the way you would you might think about abortion rights historically. And and indeed, in Dobbs there’s this weird passage in dictum where Justice Alito goes out of his way to say, if you define the liberty interest in question here, too, generally, that could lead to crazy outcomes like a right to use illicit drugs, which has no claim being deeply rooted in history. Again, oblivious to the fact that prior generations of Americans thought it clearly was a plausible constitutional claim.

Melissa Murray Wait, are you saying that Justice Alito is a poor historian, Dave?

David Pozen I’m saying he’s is an unserious historian and it cites nothing for. For that for that claim about drugs. And, you know, I know you’ve deconstructed.

Melissa Murray He’s a better flag dancer than he is a historian.

David Pozen I think. I think I think that’s right. But, you know but it’s it’s interesting to kind of cultural He links drugs to abortion. They’re both to him sinful, shameful practices it seems. You know, and just as he’s oblivious or doesn’t take seriously the ways in which the war on drugs, you know, for example, it’s disastrous for racial justice he’s not taking seriously.

Melissa Murray Or maybe he is.

David Pozen For gender justice. Right. And so this weird kind of ahistorical, you know, reactionary agenda, I think, you know, is is yoked together with the way he treats drugs and reproductive rights claims. Now, I think you’re adding another wrinkle, which is now, you know, medication abortion actually makes drugs not just relevant by analogy, but but very directly to abortion regulation. And what you’re describing out of Louisiana, again, I’ll have to check out, suggests this pathological convergence of punitive drug policy, a punitive abortion policy, again, all in the service of a broad the I don’t know what to call it, traditional, religious, traditional moral vision.

Melissa Murray I believe the word is theocracy.

David Pozen *laughs*.

Melissa Murray So one of the things it seems that you are saying in the book is that the Constitution hasn’t been terribly effective at limiting or constraining the war on drugs. But it also seems like you’re saying that in some cases and in some context, the Constitution has actually affirmatively legitimated the war on drugs. So I guess my question is like, how do we figure the Constitution as a culprit in this story? Is this the Constitution making it impossible to address the question of the decriminalization of drugs or the Constitution affirmatively affirming, I guess, the idea that the government can wage a war on drugs. And I think this leads into some of the arguments that, you know, later in the book for perhaps harnessing the interest in originalism to advance some arguments that are historically grounded that might lead some of the conservatives on the court to perhaps think differently about the question of the war on drugs in the Constitution as a limit on it.

David Pozen Right. Yeah. The Constitution is figuring into the war on drugs on a few levels. So one level is defendants are trying to invoke the Constitution as a as a shield. You know, you can’t punish me this harshly because I have a right, a liberty right of privacy. Right. Right. Against cruel and unusual punishment or what have you. And when the courts eventually turn against those claims and shut them down, I see them as legitimating the government policies and entrenching those policies at a moment when it’s unclear whether they would be broadly embraced. So on the one hand, the Constitution fails to stop the war on drugs, worst excesses from from taking off and allows this unjust policy to grow and grow. On the other hand, I think you’re also getting out, Melissa, the Constitution at some points goes further and becomes a sword with which people attack relatively modest drug policies that are trying to reverse the worst excesses of the war on drugs. So I’m thinking we already talked about commercial advertising and how pharmaceutical companies and makers of illicit drugs use the Constitution to prevent restrictions on their advertising. We might also talk about how now that marijuana is getting legalized in a number of states, Some of those states have tried to set aside licenses for cannabis dispensaries for historically underrepresented racial minority groups. And the Equal Protection clause has been invoked by basically white owners of other dispensaries to strike down those those laws that started in Ohio and spread more broadly. You have also that so-called dormant commerce clause, the clause that gives Congress the power to regulate interstate commerce. It’s been rare to say that states therefore, can’t interfere too much with interstate commerce that’s being used to prevent states from privileging local businesses too much as against big national chains. So the dormant commerce clause could become a big problem in trying to avoid the big tobacco ification of marijuana. So in all these ways, the Constitution is both, you know, failing to protect people from overly punitive drug policies and attacking us, what seem to me relatively modest, sensible reforms to try to unwind some of the harms of the war on drugs. I think I hear you also also to ask, but going forward, could the Constitution play a more productive and less, you know, destructive role in this space? It certainly could in theory in many countries around the world. There are now drug rights being recognized in limited forms, but usually around marijuana, recognizing that criminal responses to some drug behaviors really don’t serve an adequate public benefit for the costs they impose on individuals. But here in the U.S., we have the rise of originalism. And I’ve talked about law and strict scrutiny. There are I see a bunch of original argument that could be made against punitive drug policies if only the courts would take them seriously. And I also see a lot of other moves that could be made in the state courts. So just as in prior periods, there were many clause of the Constitution that seemed relevant to drug reformers still today that those paths remain open.

Melissa Murray And some of the ones that you mention in the book involve the Eighth Amendment and the prohibition on cruel and unusual punishment, for example. Can you maybe flesh out what some of these might be and why, if they are actually originalist arguments, might the courts be unreceptive to them? Because they are originalists.

David Pozen Right through through the. I think in some ways, the cleanest originalist argument is it should be quite compelling to anyone, whatever your interpretive commitment. So there’s all this research. John Stanford is a leading scholar in this space that when the Eighth Amendment was written in 1791, there was a surprisingly broad understanding among many about what constituted cruel and unusual punishment, not just barbaric modes of punishment, but also punishments that fail to fit the crime. In the sense that the punishment is is way out of whack with the moral gravity of what the person has done. And Stanford says that if you’re going to be a faithful originalist, you have to take seriously the possibility that long prison terms for nonviolent offenses violate the original understanding of the cruel and unusual punishment clause. So there’s a very straightforward argument about how, you know, long prison terms for low level drug offenses are a constitutional violation. There’s a lot of original scholarship to support other moves, like reviving substantive liberty protections, maybe under the privileges or immunities clause, maybe out of state protections for the right to pursue happiness. You could also challenge the federal government’s regulatory authority under the Controlled Substances Act. If you’re an originalist, you could support jury nullification where juries get to refuse to convict, not because they believe the defendant is factually innocent, but because they believe the law is unjust, which was used very effectively for alcohol prohibition. A lot of original suggests that was the original understanding of the jury that they would have the power to nullify. So there are all these original move that I think could be could be quite fruitful for people want to challenge strict drug laws. But originalism has this conservative valence in the way it’s developed since the 1970s and 80s. And as it’s been applied very sporadically and opportunistically, it seems to me, by the Supreme Court, it it tends not to to vindicate the progressive originalism claims. And so I guess I’m not that optimistic that, you know, the Roberts court is going to embrace any drug rights originalist claims, even though I think a number of them are very plausible on the merits.

Melissa Murray It’s almost like they’re faithless, originalist, but different. Different. Different line of argument.

David Pozen Selective originalist.

Melissa Murray And itinerant originalists. Speaking of those selective and itinerant originalists. And let’s try and bring some of the insights of your book to bear on some of the cases at the court. One of the cases that you note at length in the book is Robinson versus California, which is a 1962 case in which the Warren Court held about the status of drug addiction, could not be the basis for criminalization, even if the state could criminalize drug use. So this sort of distinction between status and conduct. Robinson, as you know, featured very prominently in the oral argument in Grants Pass versus Johnson, which is the case about unhoused individuals and whether localities can criminalize the status of being unhoused.

David Pozen My view of Robinson, which fascinating case, is that it’s already been whittled down to to do very little. So the book talks about this in the Eighth Amendment chapter, where Robinson is this 1962 case where the Supreme Court is confronted with a California law which, as it had been construed by the California courts, made it a crime to be to be a narcotics addict, to have the status of being a narcotics addict, whether or not it was proven that you had actually used narcotics. And the court said that violates the cruel and unusual punishment clause to just for the status of being an addict to be a crime. And it’s a weird opinion because it has almost no Eighth Amendment analysis whatsoever. Probably a decade later, it would have been a substantive due process ruling down an Eighth Amendment ruling. And actually, Robinson himself had died about eight months before oral argument in the case, and no one seemed aware of that. And arguably, the case should have been moot as a result. So lots of strange stuff going on. There was a big debate in the years after Robinson about how far it should be extended. If it’s cruel to punish someone for the status of being an addict, a status they can’t control. As the court puts it in Robinson, then it should likewise be cruel to punish them for procuring or consuming the substance to which they’re addicted. You know, that would seem to follow from their addiction. And and you have a number of lower courts finding in that spirit in the in the five years or so after Robinson and then the courts kind of pull back by the end of the 1960s and suggest that Robinson really just prohibits criminalizing a status. But if there’s any act involved, then then it’s not necessarily covered by Robinson. And very, very few states have laws that punish the mere status of anything, including addiction. And so. Robinson But but still, it’s kind of hung around as this resource or this source of hope for people who think behaviors that we can’t control that are out of our you know, for example, if you are unhoused and need to sleep somewhere, ought not to be subject to criminal punishment. That’s still really that’s a powerful, you know, idea that still pulls on a lot of people. And it’s just hard to locate it within the doctrine at this point. Robinson still remains this this potential source of that move. And there I think Robinson never had. That strong originalist grounding that was really the Warren Court at its most freewheeling, just operating in a kind of common law, almost casual fashion with with a morally compelling outcome. Another interesting historical tidbit with Robinson is one of the justices who is most place plays one of the biggest roles in limiting its potential impact is Thurgood Marshall, You know, liberal lion. You might think someone who would be quite sympathetic to the kinds of people who would be protected by a broader reading of Robinson in this 1968 case, Powell versus Texas, where an alcoholic, chronic alcoholic tried to get covered by who was convicted of public drunk public intoxication. Tries to say I couldn’t control myself. I am. I am. I’m an alcoholic. And, you know, so I shouldn’t be subject to criminal punishment for for doing the thing I can’t control. And Justice Marshall, in a plurality opinion, says we can’t we can’t allow this this logic because then people are going to come in and say, I suffered from a compulsion to kill. Yeah. And we’re going to have to let murderers off the hook because they’re not going to that’s going to be covered by the eighth minute. We’re going to have to allow drunk driving to go unprosecuted. And as is pointed out in the dissent in that case, and by lots of lower court judges, that doesn’t necessarily follow at all. You could draw a lot of lines, you know, where only certain types of compulsion very closely tied to the addiction, say are covered and not conduct that affects third parties like murder. You know, it was not ever going to be the case of murder is going to go free. But I think what you see in Justice Marshall’s reaction is he’s afraid of any jurisprudence where case after case after case, lower court judges are going to have to wrestle with could this defendant have controlled their actions or in some psychological or material sense, was it, you know, beyond there, beyond their conscious control that they did what they did? And that is a very difficult determination, you know, that you’re going to judge the psychologist and and in opening up that kind of argument, I think for Justice Marshall was going to tax the judiciary’s resources and competence more than he felt comfortable with. So any kind of jurisprudence allows people to have a defense that I couldn’t control myself. You have a lot of judges, including some liberals, who who are seem very averse to that.

Melissa Murray Perhaps paradoxically, for Marshall, like when the courts are called upon to exercise their own subjective judgment, it may have real racial dynamics underlying at that aren’t even perceptible. And I think that’s something that he talked about in some of his other jurisprudence. And I think James Foreman talks a lot about this. When you think about the sort of unusual bedfellows of African-Americans who lined up in favor of really draconian drug policies in his book, Locking Up Our Own.

Kate Shaw And Dave, you cite that book and you’re talking about some of the sort of social movement explanations for. So we were talking about jurisprudence primarily. Help us understand why these arguments that were gaining some traction ultimately failed. Those windows closed. There’s also kind of a social movement, explanation or set of explanations that you offer that distinguish drug policy reform efforts from like, you know, gay rights and other kinds of efforts that did bear fruit in courts but had different sort of coalitions underlying those legal efforts. Can you just say a little bit about that?

David Pozen Sure. To use the court’s terminology, you know, we hear a lot about how so-called discrete and insular minority groups are the best candidates for special protection because it’s thought that they’re not able to advocate for themselves effectively in the political process. And they’re kind of recognizable to the courts as as groups that share a coherent social identity and are the subject of oppressive state treatment. And so that fits, say, the gay rights movement pretty well. And drug users, it seems to me, and I talk about in the book, are not a discrete and insular minority of the population. There are too few. In an anonymous plurality, there are tens of millions of them at any given time around the country illegally using drugs. So it’s not a small number. It’s a huge number. And however, they’re largely not organized. They’re in the closet. They are not claiming their drug use as an important part of their identity and making kind of identitarian or moral claims about what they’re doing. And so they aren’t able to cohere into a robust coalition that can weather the losses that come in the courts in the 1970s. And once drug policy becomes much more punitive in the 1980s. And then you get the panic over crack cocaine in the mid to late 80s, all these groups kind of fold. So I think there are certain characteristics of successful social movements that bring rights, claims that the drug groups just just don’t have. And. But it’s a bit of a puzzle why they don’t do better. Because just as far as sheer numbers, you have tens of millions of Americans potentially subject to prison time in any given year across all strata of society. Why aren’t elites mobilizing to stop that, you know, and protect their kids from going to prison? And there I also bring in how the way the war on drugs was enforced, however. People who are relatively high up the socioeconomic ladder and particularly whites, were very unlikely to face any prison time for non trafficking offenses. And so basically we reached this equilibrium where elites were spared the worst ravages of the war on drugs and other more vulnerable groups in society were subject to its, you know, brutal punishment. And that equilibrium could last, sadly, for a full generation in our politics. But I do think there’s something to be learned, not just from those very few rights movements that have succeeded in our history, which we lavish attention on gay rights, gun rights, but also from the failures, you know, of forcible movements that started to make some headway and then got shut down. I wonder if it’s almost more to learn from them given that they’re they’re much more representative of what we see, you know, in constitutional law than than the few famous, you know, successful movements.

Kate Shaw Maybe just to take one more beat on kind of extrajudicial kinds of topics. So, again, we’ve been mostly talking about courts. And the book, you know, is about the Constitution, but it is mostly most of the stories that you’re telling our court stories. But obviously, there are lots of other actors who participate in shaping constitutional law. And there’s a way in which there are all these pathologies baked into various kind of organs of government. And we both, Dave, you and I, both served in the executive branch in the Obama administration, and there’s just the security clearance process strikes me as actually a very important kind of gatekeeper in which there are still these, you know, real archaic seeming questions about drug use. And it’s a process like selection for federal government service involves winnowing out people who have either engaged in extensive drug use or cop to have engaged in extensive drug use. And that is just one, I think, of many, many examples of how, you know, policymaking is distorted by, you know, at these very different sort of moments and levers and entry points. And that’s not something you touched in the book, but it is something that gets into my yeah.

David Pozen That’s the role of the drug questions and security course is fascinating to hope one could do a whole you know study of that. But it seems to me that it’s been a kind of proxy for weeding out people who have overly anti-authoritarian, you know, mindsets or, you know, libertarian views.

Melissa Murray Or who can be compromised in certain ways. Yeah.

Kate Shaw That is I think that that is the predicate. I think in this sort of drug liberalization era, because you have retained essentially these questions intact. But right. Though the logic continues to be, well, you could be subject to blackmail as opposed to there is something that fundamentally disqualifies you from government service. But the fact remains the questions are basically unchanged since, like, I don’t know, the mid late 1950s. I mean, it is wild. But yeah, the drug questions that remain.

David Pozen I’ll just say, you know, this is also for me a good example of how if you want to challenge drug policies that you think are unjust, really what prior constitutional reformers realized is you have to go to the source, that is the prohibitions themselves and the penalties they impose, because if you allow drugs to be criminalized, then all kinds of downstream bad things happen in the way those laws get enforced. You get security clearance litmus tests, you get urine testing at work. You get invasive police tactics of all kinds. You get stop and frisk. You get no knock warrants. You get aerial surveillance. That’s because drug people use drugs and always have in huge numbers. They’re victimless crimes in the sense that if someone buys drugs from someone else on the street, there is no one who’s going to report that that’s a voluntary transaction. Drugs are small and portable, so they’re hard to find. People often do them in their home. So the only way you’re going to possibly enforce drug laws is through very aggressive tactics of the of the kinds we just canvased.

Melissa Murray It sounds a lot like sex.

David Pozen Like sex. Yeah. Because people are going to do it, you know, whether you like it or not.

Melissa Murray Like these are the same things that same tactics that birth control advocates talked about in the 1960s. Like, you know, how are you going to enforce a ban on contraception in Connecticut? Are you going to have a police officer under every bed? I mean, it’s the same kind of logic.

David Pozen And one thing that really struck me from reading what people were writing in the 60s and 70s, everyone saw this, all the leading scholars and the government commissions that were studying the drug problem. They all said, you know, if we allow these behaviors for widely popular drugs like marijuana to be criminalized, we’re going to get a racialized police state. Because what how else are we going to possibly enforce these laws And given the political kind. Racial economy of criminal enforcement in this country. It’s going to be targeted at kind of relatively poor urban neighborhoods and people of color. And and you’re going to get police your quote. Nixon’s Commission on marijuana and Drug Abuse in 1972 says the following. Possession of marijuana is generally a private behavior in order to find it. The police many times must operate on the edge of constitutional limitations. Arrest without probable cause, illegal searches and selective enforcement occur often enough to arouse concern about the integrity of the criminal process and, quote. So that is a relatively conservative commission pointing out very clearly 50 plus years ago that you’re going to get deeply troubling police practices if you don’t decriminalize here. So I was just to say one thing the book tries to do is recover what I see as the first order fights of what can be punished and prohibited in the first place. Not to say that the enforcement procedural issues aren’t extremely important, but they are there all downstream from the first order decision.

Kate Shaw Something that was in that quote that you just read suggests that contra the exchange we were just having about security clearances, there’s actually a way in which the executive branch has sometimes been ahead of courts in, you know, at least identifying the need for reform or some of the potential dangers in punitive drug policies. So I actually wanted to pose a question about a recent development, which is that the DEA has proposed to reclassify marijuana as a Schedule three as opposed to a schedule one controlled substance. That is a move that has President Biden’s support. And this would not totally decriminalize marijuana. That would require, you know, complete this scheduling, but it would place it alongside drugs like Tylenol with codeine. So things that can be, I think, lawfully purchased, subject to limitations and robust regulation. It would also have lots of tax implications. There also was toward the end of 2023, President Biden pardoned thousands of individuals convicted of simple possession of marijuana. So it does seem like there have been many meaningful steps toward drug reform happening outside of courts. Now, that’s just the federal government. Obviously, as you mentioned earlier, we have seen total decriminalization in a number of states. You know, so those efforts have not been framed in constitutional terms. They haven’t happened in courts. So I guess why should we focus attention or sort of what is the advantage of focusing attention both on courts and maybe more broadly on the Constitution as actually, you know, sources and sites of potential real reform around our current drug policy?

David Pozen I can’t help but just say on the rescheduling of marijuana, which looks like it’s going to happen in the coming months from schedule 1 to 3, that’s actually going to do very little for access to marijuana because although schedule three substances that can sometimes be prescribed by a physician. So you might think we’re getting medical marijuana, the drug in question has to also be FDA approved.

Kate Shaw So it’s on a path, right?

David Pozen It doesn’t it’s never going to get FDA approved. Actually, most most people think because. Yeah, because the FDA requires a certain you have to isolate the relevant ingredient or chemical compound within the drug and then subjected to kind of randomized controlled trials. And you know, what’s considered best practice for clinical testing and medical marijuana. I’m not a scientist, but what from what I understand from the literature, people say that the way it works is all these different cannabinoids in in the marijuana plant interact great, whatever benefits it affords. And you can’t just isolate, you know, Delta nine or a particular compound and test that and think you’re getting the effects. So the this is sometimes called the entourage effect of how medical marijuana works. These these chemicals work together. And the FDA process is just not suited to that kind of a drug. So if that’s right, and that was a real layperson’s version of the the theory, then it’s never going to get FDA approved. It’s not even teed up for FDA approval. So I support what President Biden is doing here and moving toward a less criminal approach. But just to say that you would really need to schedule marijuana to get to get the full benefits. But but your bigger question is, you know, what do we need come out at all here if there is some real reform happening outside of the courts, outside of the Constitution, maybe that’s the way to go. And I do think it’s basically the way to go. But I also think constitutional law still has a role to play. And I’ll just I’ll just name a few roles that I think I could play constructively. One is the history of drug policy in this country is, as I see it, is one of episodic racialized moral panics around a given drug, you know, crack cocaine in the 1980s, we’re now getting a one around opioids, I think a panic of a different sort with a different racial violence. And it was heroin before that. And then you get. Very draconian drug policies that follow. But in between these periods of panic, there are moments of relative calm when liberalizing reforms are possible. And I think one thing constitutional law can do well is entrench policy gains against against rollback. So that one one role come all could play is to help take off the table the most extreme punitive policies in periods where liberal reform is possible. I know that’s abstract, but in general, I think that’s right. And then second, I’ll just say karma can still be useful outside of the federal courts, in state courts. It’s actually where we’ve seen the most interesting and exciting drug rulings historically. They’re open to different interpretive methodologies than the federal courts. For example, they tend to be much more open to balancing the costs and benefits of policies than the federal courts. Like the rest, the courts in the rest of the world do. So I think you could target your taxes at the state level where most drug prosecutions happen. And then outside the courts altogether, you can picture constitutional arguments to regulators and legislators, as you’re suggesting. And whatever you think of the proper role for courts in society. I think it’s it’s outrageous that the executive branch doesn’t take into account at all when it does drug scheduling. The constitutional values at stake, whether it’s liberty, privacy, racial equality, cronyism or punishment. Nor does it take into account the benefits that people think they get from drugs, not just the medical ones, but whatever, whatever else. And it’s a weird zone of administrative law and practice where the government only looks at costs and not at benefits. And of course, the cost benefit analysis is going to get wildly lopsided in that result. It’s going to look reasonable to punish things when you just exclude all the benefits people think they get. Nor does the government look at the costs of criminal prohibitions and how they themselves are criminogenic. They create crime and they themselves create more dangerous drug behaviors. So in all kinds of ways, I think constant arguments and other sorts of arguments could be woven into the way we do drug regulation, not necessarily in the courts, but would be just a much more sensible outcome.

Melissa Murray So, Dave, you have just said a mouthful and it’s a perfect way to end because, again, the book is so rich with so much history. And then all of these really interesting arguments about what the future of drug policy and the war on drugs might look like. So thank you so much for joining us today. And the book listeners, once again is The Constitution of the War on Drugs. And it is sweeping and robust and free. All you need to do is fire up SSR end, which for those of you who are unfamiliar, is the Social Science Research Network. Or just put the title into Google Search and it can be yours totally gratis today and you’ll get an amazing education and a history that has been hiding in plain sight. So thank you, Dave Posen, for coming to talk with us today.

David Pozen Thank you, Melissa and Kate. I really appreciate it.

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Kate Shaw Strict Scrutiny is a Crooked Media production posted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production Support from Madeline Herringer and Ari Schwartz. Matthew DeGroot is our head of production. And thanks to our digital team Phoebe Bradford and Joe Matoski. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at YouTube.com slash Strict Scrutiny podcast. And 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 want to help other people find the show, please rate and review us. It really helps.

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