In This Episode
Melissa interviews Elie Mystal about his new book, Allow Me To Retort: A Black Guy’s Guide to the Constitution.
P.S. Melissa, Kate, and Leah will be on The Problem with Jon Stewart this Thursday, June 9th! Don’t miss it.
Leah Litman: [AD].
Leah Litman: Hey Strict Scrutiny listeners. Leah here. So. Holy shit. Melissa, Kate and I are going to be on The Problem with Jon Stewart this Thursday, June 9th. It was so much fun. We got to geek out about the SEC and the Fifth Circuit. We’ve got a little preview here for you courtesy of their team.
Jon Stewart: I don’t understand how the SEC survives because I can’t imagine a Supreme Court with Gorsuch, Alito and those others saying, no, they have the authority. I can’t imagine.
Leah Litman: Neil Gorsuch has basically been salivating since his days from prep school just waiting to knife the administrative state in the back. I mean, this is the project that he cares.
Jon Stewart: Easy target. Nobody likes the administrative state.
Melissa Murray: Well, Kate actually has a theory. It’s like a sort of like origin story about Neil Gorsuch’s antipathy for the administrative state.
Jon Stewart: Come on, Kate.
Kate Shaw: I’m still workshopping it, Melissa, but, I will share it in early form. John, which is that, you know, his mom was Reagan’s EPA administrator and Gorsuch. BURFORD And there’s some family psychodrama there that I don’t yet fully understand. But she left after being the first cabinet secretary to be held in contempt of Congress because of a refusal to turn over some documents to the House Judiciary Committee. These were the events that led to another big, important Supreme Court case, Morrison versus Olson. Anyway, there is a family story there that, again, I’m still fully sort of fleshing out, but he’s not a stranger to the administrative state.
Jon Stewart: So basically we’re not going to be able to have functioning aircraft because Neil Gorsuch is mom got a raw deal.
Kate Shaw: That’s basically right.
Jon Stewart: You know, it’s it’s incredible how that when that happens, that that anger permeates. You know, they say that Kushner is the same way that it was his father’s court case and and how that that like I feel like we’re living in Gotham City and it’s all just like how that guy turned. You’re like well .
Leah Litman: Or a Greek tragedy. This is very Oedipal.
Jon Stewart: Yes.
Leah Litman: Again, that’s us on The Problem with Jon Stewart this coming Thursday, June 9th, available wherever you get your podcasts.
Melissa Murray: Hey there, listeners. This is a very special episode of Strict Scrutiny. On March 1st, 2022, I got together with Elie Mystal at the Commonwealth Club of San Francisco to talk about his new book, Allow Me to Retort A Black Man’s Guide to the Constitution. What follows can only be described as a classic Elie Mystal rollicking conversation about life, law and everything in between. We hope you enjoy it. So, Elie, there is much to talk about. First of all, I think it’s an understatement to say this book is irreverent. It is irreverent, it is snarky, it’s sometimes profane, but it is the most compelling account of what is actually wrong with the system, the justice system, the judicial system, and the way in which law works to limit rather than to enhance. Right. So I just want to ask sort of a basic question, why this book and why now?
Elie Mystal: Yeah. First of all, thank you so much for having me. Commonwealth Club, I really appreciate it. Thank you so much for doing this conversation with me, Professor Murray. For those who don’t know, Professor Murray and I go way back. She read me before it was cool, before blogging for Above the Law. So and as you kind of point out, some of that blogging kind of a background I think comes out in the book. I try not to lose that sense of just talking to being in conversation with regular people in terms of why the book and why now. Look, we are at a time of unprecedented conservative takeover of the third branch of government. It goes beyond the six three Supreme Court, although, my goodness, 6 to 3 hard core conservatives control now the Supreme Court. It goes all throughout the federal judiciary. And it goes from from where I sit to a way that we talk about the courts and legal issues and ideas that has almost been completely co-opted by conservative ideas, conservative thought, conservative language. We fight on the ground that conservatives want us to fight on. And so we kind of start the game losing. And so I wanted to write about how that’s wrong and how there’s a whole different way of thinking about our rights and responsibilities, about the Constitution itself. There’s a whole different language of law that we can use, that we can think about, and that if we did use, would arrest the reduction of rights for people of color, minorities that are being spearheaded by the conservative movement in this country. It’s felt timely to me because of how ascendant conservative ideology and philosophy is in our courts and in just our general public discourse.
Melissa Murray: The audience here, I think, is everyone who reads and cares about the courts and about the Constitution and justice. But I also take from your words that the real audience are Democrats, like Democrats, who have not really been playing with all of the arrows in their quivers at this point. And so what would you say to those in power right now about the best way to use the law and the court and how we should be thinking about responding to this conservative takeover and this conservative ideology that really is ascendant?
Elie Mystal: Republicans and conservatives are conducting a war on rights, and Democrats have not taken the field and they’ve not taken the field because they will not adopt the language and the legal ideology that has been laid before them for a long period of time. They won’t adopt the language of Earl Warren or Justice Brennan or Justice Brandeis or Justice Thurgood Marshall. Right. And so what? Or even a Justice Sotomayor or a justice, but potentially a justice. Brown Jackson. Right. There is a way of understanding our rights that is not grounded in the original intent and ideas of slavers, colonists and rich white people willing to make deals with slavers and colonists. Like we can reject that that vision of America and embrace a more fair or more equal and more pluralistic vision of America. But Democrats have to join the game and realize that the courts are important. When you ask, you know, to really answer the question, what do Democrats get wrong? They don’t understand. They don’t seem to embrace and understand just how powerful the third branch of government is, just how powerful Article three is, folks. Article three has a veto power over Articles one and two. That’s not how the Constitution was written. That’s just what you know. That’s just what the court aggrandize to itself. When it when it gave itself the power of judicial review, the courts gave themselves the power to declare. Acts of Congress signed by the president unconstitutional. Folks, other industrialized Western democracies do not do it this way. All right. We have one of the most powerful Supreme Courts in the world. I think India is our competitor for that. But this is not how they do it in Canada. This is not how you do it in Germany. This is not how to do it in South Africa. So we have an extremely powerful Supreme Court, but Democrats act like all we have to do is the left the next savior, where whether it’s Barack Obama or Joe Biden, whoever the next savior is supposed to be, they think that we just have to elect a president and everything’s going to work out hunky dory. No, we have to we have to change how the third branch of government operates if we want to get anything done. And Democrats don’t always understand that.
Melissa Murray: So I think this is an excellent point. I recall back in August of 2020 when the Democrats had their national convention, there was a lot of discussion of all of the great things that Joe Biden had done throughout his very illustrious career, first as a senator and then as vice president. And they talked about the Violence Against Women Act and his work with Obamacare and his work with Dreamers and the immigration reform. At no point did anyone acknowledge that all of those things had actually been upended and curtailed and disrupted by a 5 to 4 majority. The Supreme Court, the civil rights remedy available, was struck down in the United States versus Morrison. The ACA is constantly under threat in the courts, and no one would acknowledge that the courts are, by their nature, minoritarian institutions that can actually cancel out majoritarian domestic policy. So I think that point is is really apt, but it’s a great entry for the book. You start with the premise that the Constitution, as we know it, was created and drafted in a moment that can only be described as a demographic deficit or a demographic, a democratic, whatever you want to call it. It is a deficit. Certain voices aren’t represented. And indeed, you argue, certain voices are over represented. There are those who are there at the Constitutional Convention for the purpose of re entrenching white supremacy, re entrenching property rights. And that’s the document that we have inherited. And so you sort of start with the premise that this document is a problem and us expressing a kind of fidelity to its original interpretation is also a problem. And yet this is the fight we’re having right now. The Conservatives argue that the only way to interpret the Constitution is by looking to the way it would have been interpreted in 1787 or alternatively in 1867, when we had a second founding moment with the Reconstruction Amendments. What’s wrong with this vision of originalism, with this fidelity to text that we see in the interpretation of statutes? What are we missing and how can we fight back?
Elie Mystal: Yeah. So first of all, originalism is intellectually bankrupt. All right? Like the idea that I should have to interpret laws based on what my ancestral captors thought is simply is simply illegitimate. Like, no, I reject that. I do not care what my captors thought I should be living under. Like, that’s that’s just not something that I agree with. Right. One of the keenest ways to see this and I talked about this in the book, I have a whole chapter on this. In the book. I think one of the cleanest ways to see originalism, intellectual bankruptcy is through a discussion of the Eighth Amendment. Eighth Amendment bars cruel and unusual punishment. Now, just saying that out loud, most people can understand. Cruel and unusual punishment are pretty vague terms. Constitution didn’t bother to define what cruel means and didn’t bother to define what unusual means. It wasn’t really all that good of an idea. So how do we resolve that ambiguity? While originalists say that we should look to what the founders, the people who wrote the Eighth Amendment, James Madison and his cohorts meant. They say that we should look to the original public meaning of those words as they were understood in 1787 when they came out with the Constitution. And I say what? You want me to consult the slavers about what they thought cruel and unusual meant? Like, that’s actually what you that’s actually what you’re selling. Neil Gorsuch Like that’s actually what you’re selling. John Roberts No, no, I reject that. I do not care what people with such a merry deficit that they could enslave people, keep them in bondage and literally light firecrackers up their backsides if they misbehave. No, I do not care what they thought punishment should be. I’m going to I’ll look to I’ll look to the moon. I will. I will pick. I will. I will. I’ll look to a comic book about what cruel and unusual mean before I looked at James Madison. Are you kidding me? So that’s that’s that’s where the that’s where the fight is. That’s where the debate is. I reject out of hand the idea that the people who enslaved us have a valid starting point. For what the laws mean. Now the text. That’s a different conversation. I understand English. We got to start somewhere. I will read the text and we can iterate and interpret from there, but that somehow we need a Neil Gorsuch just Ouija board to figure out what Thomas Jefferson really meant. Please get out of my face with that.
Melissa Murray: There’s a kind of internal tension here because you are arguing that originalism is by itself morally and intellectually bankrupt. And I completely understand the argument that you’re making about that. But it’s not just an argument about originalism as an interpretive philosophy. At bottom, you’re essentially arguing that the Constitution itself is morally and intellectually bankrupt. So is this really just about a different interpretive view that you have, or should we be scrapping this altogether?
Elie Mystal: Oh, Professor Murray, why don’t you get me in trouble now? Yeah, you’re right. That that is a tension. Let’s start here. South Africa, right? They free Nelson Mandela. He becomes the president of this new South Africa. Right. They reject their their apartheid ways. What do they do? Do they stick a couple of amendments on their African’s apartheid constitution and be like, okay, we’re good now? Or do they throw it out the window and start again? And if you look at the history of South Africa, what they did in the nineties after Mandela became president was that they burned their stupid apartheid African’s constitution. They started again with a new constitutional convention, brought with all the people, people who have been historically left out of writing written constitutions. And they came up with a new documentary, took two years to do it. And right now, if you look on the international stage, this is going to surprise a lot of Americans. But if you look on the international stage, it is the South African Constitution that is regularly held up as one of the best written constitutions in terms of the protection of human rights and democracy in the world as opposed to the American Constitution. What do we do when we had to overcome our apartheid constitution? And that’s what the original constitution was. Black people held in bondage, kind of 3/5 of people. That is an apartheid system violently enforced, by the way, by angry mobs of white people removing the south. What did we do to overcome our apartheid constitution? We stuck a couple of amendments on it. Right. We mean, you know, it’s like it’s like you had a you have a Ford Focus and you go and you still the hubcaps off a Cadillac and say, I’m driving a Cadillac now. No, you ain’t. It’s no Ford Focus. I can tell. And we called it all good. One of the debates, one of the core debates in this country is basically whether the 13th, 14th and 15th Amendment worked. If you think it worked. And I’m one of those people who tends to think that the reconstruction amendments work, the reconstruction amendments and the 19th Amendment, those they weren’t passed at the same time because, again, white men but like I like to think of them, all four of them together. I tend to think that the reconstruction amendments worked. And so to make them work, every other thing has to be strained through the analysis of the 13, 14, 15 to 19 19th Amendments. People say like, Oh, originalism. What the Republicans are so good at is they have a snappy catchphrase for their stupid intellectual interpretive philosophy. I got a snappy catch phrase for mine too. I’m a 14th Amendment person, right? Like, just like for me, the Constitution is the 14th Amendment. And some suggestions at heart.
Melissa Murray: I think you are something of an institutional because you don’t necessarily want to scrap the whole thing. You really do believe in the promise of the 14th Amendment. Although I will argue as a constitutional law professor that the promise of the 14th Amendment was ended even before it got going in the 1870s. And you talk about that in the book as well, but you actually are institutionally minded. You want to make this work better. So are there particular places where you think a more 14th Amendment Reconstruction Amendment ish view of constitutional interpretation would yield marginally or markedly different results than what we see now?
Elie Mystal: Sure, we can start with the 15th Amendment right. I mean, the entire discussion of voting rights basically comes down to whether or not you think the 15th Amendment is real because white conservatives will tell you that it ain’t. The 15th Amendment passed after the Civil War was immediately ignored by the Supreme Court from the end of Reconstruction until 1965. They just took the 15th Amendment and they stopped in Milwaukee and they pretended it didn’t exist. When they finally rediscover when the when the 15th Amendment was finally unearthed and re-imagined during the civil rights era, we passed the 1965 Voting Rights Act, which is my picked, by the way, as the most important piece of legislation in American history. Why? Because it is the first piece of legislation that. Made the democratic promise of universal suffrage real throughout the country. We did not live a day in this country with anything approaching universal suffrage until 1965. Now, from 1965 on, what we saw was an amazing success story. If you really think about it in terms of minorities and black people in particular rising up the moment they took their foot off our neck in about 40 years, we went from an oppressed people to the first black president in 40. That’s that’s in a generation. That’s that’s a pretty good track record. And white people got so pissed off about that. What’s the first thing they did before the black president was even out of office? They took away the Voting Rights Act. That’s the first before they went with their calm and bigoted orange person. The first thing white conservatives did was to take away the Voting Rights Act. John Roberts, 2013 Shelby County v Holder eviscerates Section five preclearance of the Voting Rights Act, and that essentially took the 15th Amendment and stuck it right back in a lock. Now, I interpret the 15th Amendment so expansively that I think that they can stop not just the obvious racist examples of Republican voter suppression. I think the 15th Amendment can be used to stop gerrymandering. I think the 15th Amendment can be used to stop a lot of things. I think it can be used to stop the filibuster. Like we can go down the list of things that I think the 15th Amendment could do, but Republicans won’t let it do anything.
Melissa Murray: I do want to hear about this hidden power of the 15th Amendment. So let’s bracket that for a minute. But I do think it’s really interesting and it’s sort of the first time I’ve actually thought about it in this context. But you’re telling a story of racial progress, and it’s exactly that story of racial progress that Chief Justice John Roberts marshals to strike down the preclearance formula in Shelby County. And he tells a story that is true about more and more minorities voting. And we cannot be shackled to the past. The 15th Amendment is not the promise of constant punishment for past sins. It is about the promise of a better future. So how do we reconcile in this world where racial progress can be figured in many different ways? How can you actually wrestle with the fact that there was racial progress and in fact, it was then used to retard that progress?
Elie Mystal: Yeah. Well, first there’s the Ruth Bader Ginsburg rejoinder to John Roberts’s argument, where she says in her dissent in Shelby County that throwing away the Voting Rights Act is like throwing away an umbrella in the middle of the rain because you’re not getting wet at a more kind of fundamental level. It really also goes to the function of the courts. If conservative Republicans were not hypocrites, they would be more pissed at Shelby County than I am. Because what Shelby County really is is John Roberts an unelected, unaccountable Supreme Court justice, imposing his view of social progress upon the rest of the country over the objection of 98 senators, a voice vote in Congress and a Republican president, because that is what the Voting Rights Act was. The Winning Rights Act had been reauthorized by a voice vote in Congress. 98 senators and President George doesn’t care about black people. W Bush signed the reauthorization of the Voting Rights Act in 2006, and it’s that reauthorization that John Roberts threw out the window based on his cockamamie theory about social progress. Now, in our system, we’re not supposed to have, according to conservatives, mind you, I’m making the I’m making the Republican argument right now, according to the Republicans, we’re not supposed to have Supreme Court justices trying to engineer social change through the courts, which is exactly what Roberts did. It’s Congress that’s supposed to be able to tell us when racism has been has been defeated or not.
Melissa Murray: Are you basically saying that John Roberts is the same kind of judicial activist that Harry Blackmun was when he wrote Roe versus Wade in 1973, or Earl Warren was when Miranda versus Arizona was decided in the 1960s, because this is the wrath that conservatives have given to the court, like no more activist judges. Originalism is about fidelity to text, not about your own personal political ideology or policy preferences. But are you suggesting, then, that John Roberts is doing the same kind of judicial activism that he accuses others?
Elie Mystal: Indeed I am. Because indeed he is because John Roberts, at the end of the day, cares more about his political ideology and his political outcomes than he does about any kind of judicial principle. If he cared about judicial restraint, he would have upheld the Voting Rights Act. He wouldn’t have eviscerated. And remember, it’s not just Section five. Section five is what he did in 2013. Well, just this past summer in Brnovich v Arizona, he then went on and joined Samuel Alito eviscerating section two. But what was that? See, that’s that’s that’s the thing about Roberts that people need to understand. Roberts has been an enemy of black. People voting for his entire career. And when I say his entire career, I literally mean his first job after clerking. So his first real job was working in the Reagan Justice Department, where he was brought on specifically to come up with a way to defeat the 1982 amendments to the Voting Rights Act, the ones that expanded the Voting Rights Act to to punish not just overt discrimination, not just discriminatory intent, but discriminatory effects, because before 1982, as long as the state legislature said, well, I didn’t mean to keep black people from voting, that was okay. And in 1982, we had an amendment that said, like, actually, if you have force, in effect, of keeping white people from voting, that’s just as bad. That was the amendment that John Roberts was brought on to defeat. And Reagan was looking for a way to defeat this amendment. But even Ronald Reagan, who started his campaign in Philadelphia, Mississippi, that’s Mississippi Burning Country for voting along and literally said during the during his presidential campaign that the Voting Rights Act humiliates the South. That is Ronald Reagan. Even Ronald Reagan had to go along eventually with the 1982 Voting Rights Amendment. That’s how popular people voting was back in 1982. It is John Roberts who harbored that anger at those amendments that he played the John Roberts of waiting for black people in the tall grass for a long time. And so the decision in Brnovich v Arizona was actually John Roberts finally getting to eviscerate the 1982 voting rights amendments that he was long against. So that’s that’s who we’re dealing with. We’re talking about John Roberts.
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Melissa Murray: Let’s switch gears a little bit. John Roberts not only joined Samuel Alito’s opinion in the Brnovich cases from last summer a couple of summers before in 2019, in a case called Russia versus Common Cause, he determined that federal courts cannot intervene to hear cases involving partizan gerrymandering. So I want to get back to this point you made. How can a more generative vision of the 15th Amendment actually be used to address these questions, questions of racial gerrymandering, partizan gerrymandering that have been essentially foreclosed by the courts through just disability decisions, or alternatively through the narrowing of legislation like the Voting Rights Act.
Elie Mystal: Voting Rights Act says that to make the 15th Amendment work for voting for regardless of race, color, creed cannot be denied or diluted on account of race or dilute it. And it’s the dilution of the vote beyond the straight denial of the vote that gerrymandering does. And so a robust interpretation of the 15th Amendment would also say that the dilution of the black votes or of minority votes or of needing, you know, Native American votes in Arizona, Latino votes in Texas, black votes in Georgia, that these dilution of votes are offensive to the 15th Amendment. Just like the actual straight up denial of votes that, let’s say Florida does when it refuses to allow former prisoners the right to vote. Right. So you can have a 15th Amendment that is just and strong and goes around stopping these kinds of gerrymanders. But again, Republicans won’t let it happen. And, you know, and this is what I’m saying, like the way to fix that is not to change Republican minds. Republicans don’t like black people voting. That’s kind of consistent, right? Like of conservatives don’t like white people voting, I should say, like, you know what conservatives call themselves in the morning. I care about less in the right now. They call themselves Republicans. Back in the day, they call themselves Democrats. I only care what label they from. The Conservative Party has been against black people voting for a very long time in this country and the Liberal Party has never done enough to secure the voting power of minorities when they have a chance. So, yes, a robust version of the 15th Amendment. Think about it this way as well with Rojo, when he and I talked about this a little bit in my book because my dad was a local politician and his job was basically to be a gerrymander like that. Like, I knew what gerrymandering was when I was 12 because that’s what my dad did, like professionally. And one of the things, one of the real dodges that Roberts does there that you wouldn’t know unless you knew what gerrymandering, how it really worked, is that he trying to make a distinction between political gerrymanders and racial gerrymanders, as if those are two completely different things. Folks, they hate when a politician is sitting trying to draw a map. They’re not taking political factors to one side and racial factors to the other side. They’re putting it all in the same pot. A lot of minority voters tend to vote Democrat. A lot of Democrats tend to be minority. I mean, those are those are or 1 to 1 overlap. But General, you know, economic situations, those kind of overlap. You know, politicians are looking at everything. You know, they’re looking at church to strip club ratios. You know, how many liquor stores you got in your neighborhood, how many gunshots you have in your neighborhood? You’re looking at all of that when they’re drawing a map. And so they act like one is okay and one is for Bolton. It’s just it’s a ridiculous it’s a ridiculous position that Roberts has. But you wouldn’t know how ridiculous it is unless you actually, like, kind of been in the room or happens and seen one of these maps made.
Melissa Murray: Can we shift gears a little bit? Like for the last 24 months, we have been absolutely consumed with this question of police violence. And you talk about this at length in the book, including sharing your own story about being stopped by the police not once, not twice, but three times. And you specifically focus on the third time where you came very close to being a casualty of a police stop. Can you talk a little bit about how the court itself has cultivated the conditions where African-Americans, people of color, are routinely targeted for these kinds of stops and the police often have widened opportunities to use violence without recourse.
Elie Mystal: Conservatives always want to tell you that policing is a local municipal issue, that there’s limited federal power to change anything in policing. And too often the Democrats like to go along, especially national Democrats, because it lets them off the hook. Oops, like I can’t do anything more black people. I’m just a federal official. Right? Don’t, don’t, don’t believe it. Don’t buy it there. I can. I can take a significant bite out of police brutality. I can significantly change the amounts of brutality that the system allows. If you just let me change three Supreme Court decisions, that’s literally all I need. First, Terry, the Ohio. That’s the stop case. That’s the that’s the non arrest stop case. That’s the case that allows cops to stop me as a black man on a hunch that maybe I’m thinking about committing a crime one day. That’s a war and court decision with Justice Thurgood Marshall concurring in that decision. That was that. Look, you understand. So if we want to go into the issue is that this this potential criminal we’re seeing casing a joint, like literally going back 12, 6 to 12 times, making a circuit around a joint. Eventually, a cop was just like, I wonder what was going on with him, stopped him, did an immediate search of his person to make sure that, you know, that he was safe, basically found the gun. And and eventually Terry was convicted of attempted robbery or whatever it was. And so this case went to the Supreme Court because there was like you had no reason to stop me. Other than that, I was, you know, a person and Terry lost. And the Warren Court said there has to be some ability for a police officer to question a suspect before the suspect has done something. So obviously criminal before they have, you know, something before probable cause, a suspect committed a crime, the police officer has to be able to question to conduct an investigation. And in the course of conducting those questions, of course, they should be allowed to frisk very lightly the outside of a person’s clothing to make sure that there are obvious weapons that the person can have to harm the police officer. Right. And the warrant and martial, they struggle with it. And Warren has a long thing about the Fourth Amendment, and that’s sacrosanct and rare. But they trying that they’re trying to figure out this basic way. Right. And at the time. So, Terry, the Ohio is the by the way, the first case that was argued by two black people in front of the Supreme Court, the prosecutor who argued in front of some court was black. And the defense attorney who argued from the Supreme Court was black, a man named Louis Stokes. Louis Stokes went on to be one of the first black I think the first black representative congressperson from Ohio. And Stokes saw the whole thing coming. Stokes said that what that decision would do would basically unleash racial profiling. He said it’s a marshall it has face at the court. He said it for the rest of his life. And Louis Stokes was absolutely right, because once they had the decision that you could stop somebody. It went from officer sees a man casing a joint 6 to 12 times to officer has a hunch that black guy is up to no good. So we just we just went from what in martial and Warren’s mind was still a very high standard for a stop to where we are now, which is just basically the cop doesn’t even need to have a reason to stop a person. So that’s that’s the problem with Terry. It’s it’s one of those ideas that’s kind of good on paper. But you give white cops an inch and they will take a mile like white. Basically, it is a power that white cops cannot be trusted to use to wield fairly because of racism in our society. So, yeah, you change, Terry, you you significantly decrease the ability for cops to stop you. Another case that I would change is Graham V Connor. That’s the use of force case. That’s the case that says cops use of force. The reasonableness of that force is determined by a cop on the scene as opposed to, you know, anybody else. I would go for anybody else. Then a cop on the scene try to tell me whether or not his use of force against me was reasonable.
Melissa Murray: And the idea behind this is that rather than some objective, reasonable person, we basically credit whatever fears, however rational they may be in the moment that the cop has when he or she actually exercises this force. And you use the example of Michael Brown in Ferguson about this, can can you maybe say a little bit about that example?
Elie Mystal: So Michael Brown murder in Ferguson, Missouri. If you read the deposition of Darren Wilson, the officer who shot and killed Michael Brown, and what you read is the thoughts of an unhinged, crazy person. Darren Wilson says, Oh, well, I grabbed on to Michael Brown. It felt like he was Hulk Hogan. It’s all like he was Hulk Hogan. And I was a five year old man. Michael Brown was a big boy. He was six, six. Darren Wilson was six four. All right. There was not the kind there was not a Hulk Hogan versus a five year old size disparity. Right. Darren Wilson said, well, look, to do his eyes, you look like a demon. Well, that’s not reasonable because he wasn’t a demon. He didn’t. He had no, he was not Hellboy. All right. And so but but because of the way the law works, Darren Wilson has to say that he feared for his life in order to justify shooting an unarmed person to death. Well, the only way you can make the case that he feared for his life is if Darren Wilson is a crazy, hysterical coward who fears for his life very easily. And the way the law works, as long as there are enough cops who are similarly hysterical cowards, then they can get away with murder. And that should not be a constitutional principle.
Melissa Murray: So basically your point is that. Graham, the case lays out the conditions whereby in order to be justified in the use of excessive force, cops basically have to say that they’re constantly in fear of their lives, which leads to, I think, probably not untrue narrative of policing being dangerous, but perhaps overstates the degree to which individuals present that danger and perhaps hyper. Hyper identifies those who are not like the officer as those who pose the most risk of danger.
Elie Mystal: Whether or not my constitutional rights exist should not be dependent on the Hysteria of the officer who stops me. That to me sounds, is a simple proposition, right? If the officer who stops me is, you know, so I’m driving the car and I get stopped by an officer and the officer is afraid that I’m going to roll down my window and suck out his soul with my big black lips. That’s not reasonable. I don’t care how many officers agree with him. That’s not reasonable. That should not be a reason to shoot me. But instead, we have these situations where officers can say patently unreasonable, crazy, hysterical things and yet have constitutional protections for their violations because other cops would agree with that hysterical position.
Melissa Murray: So simply changing the standard and Graham to being a reasonable person as opposed to assessing reasonableness from the perspective of a cop like making it objective as opposed to subjective, would be one way you say, So what’s the third way? So we’re changing. The Terry stops, we’re changing the standard to a reasonable person. Standard and ground. What’s the third qualified immunity?
Elie Mystal: Buy, buy, buy, buy. You don’t get that anymore. Just take just take it away from law enforcement. We roll over the police unions just like we’ve rolled over pretty much every other union. And like, why is why do police unions get to be the only union that still has teeth? Right. It’s basically in this country, the police union and the Major League Baseball Players Association union are. The only unions. I still get to have teeth in this country. Well, I would take that away from police. There was no reason. There was no good reason to me for in 2020 to a cop to have qualified immunity for constitutional violations they commit while on the job, they have lost that privilege. You want to give qualified immunity to a politician so that they don’t get sued for theft when they sign the property tax assessment? Fine. That’s not. I’m happy for qualified immunity for people who don’t have the ability to kill people. But once you get the imprimatur of the state that you can use violence against me. The very least thing that we can do is take away your qualified immunity to use that violence without accountability for your actions just because you say that you did it while on the job. I do think that prosecutors should have a limited reason to ask for qualified immunity because there is mistakes. Mistakes are made. We have an adversarial system that requires defense attorneys to zealously advocate for their clients, even clients that are probably often very suspect. That same adversarial system requires prosecutors to zealously advocate for the state and arguably the victims of crime. And we don’t want to overly shill that zealous advocacy, but we must punish prosecutors who I would say purposefully get it wrong. You know, I was.
Melissa Murray: Are you giving more grace to lawyers like you and me than you are to rank and file police officers?
Elie Mystal: Bill, did you know what the difference is, though, Melissa? It’s not because I’m a lawyer and not a cop. It’s because I don’t have a gun.
Melissa Murray: An actual lawyer. So there’s that.
Elie Mystal: Right, by the way. Just just so you know. Play one on TV, yes, but not on actual clients. No. They have, like issues and like they’re people. You know, the difference between my grace to the legal profession that I don’t extend to the police profession is the gun if if you want. So we can also play it this way. I will allow cops to keep their qualified immunity if they turn in their guns like they do in the UK. By the way, like it’s entirely possible to police a large urban environment without firearms. The Mounties do it all the damn time. Right? So we can have a system like that where you get qualified immunity, but you don’t get your gun. But once you get a gun, then the levels have gotten off the charts here. And there’s got to be some way for me to hold you accountable for your actions with that firearm.
Leah Litman: [AD]
Melissa Murray: Let me switch gears. You mentioned guns. Two major cases before the Supreme Court this term, one that deals with the possible expansion of the Second Amendment to allow for open carrying in public of a weapon. And then also a case that likely will call the question of whether Roe versus Wade will continue as a precedent. If that’s the case, say a little bit about this constitution of ours and the question of unenumerated rights and the question of rights that are explicitly enumerated in the Bill of Rights. What’s the tension here and how do we resolve it?
Elie Mystal: Yes. So I mean, I don’t even know that there’s a tension here. The conservative interpretation of the Second Amendment was invented in the seventies by the NRA, that it just it wasn’t in the founding. It wasn’t part of our history. The NRA and then made that up in the seventies for political gains. That’s all it is. So amendment is there. And the first part of this amendment, a well-regulated militia. That’s the part that conservatives act like. Oh, that just they can read that. They try to wipe that part out of the Constitution. In fact, that was a real deal. Having a militia was a real deal, especially for the southern states, because that’s how they stopped slave revolts.
Melissa Murray: No, Carol, Anderson and I did a talk here at the Commonwealth Club a couple of months ago in her book The Second Race and Guns in a Fatally Unequal America really details it, and it’s magnificent. So for all of those who are in the audience, it was a really terrific conversation. And Carol Anderson explains this as well. But she sort of makes an originalist argument about the Second Amendment, linking it to the preservation of slave militia like militias for putting down slave revolts.
Elie Mystal: So if you want to make the original argument for this amendment, that’s where it is, right? It’s this personal right to self-defense. That’s the thing that they invented. That’s basically Scalia Demented and D.C. versus Heller. Everything that people think about the Second Amendment is just is just not it’s just not true. It’s just not where it comes from. Right. So I don’t even think there’s a tension there. I think there is a just a willful misread of the constitutional text and history on the Second Amendment when it comes to a woman’s right to choose. I will stipulate, and I have always stipulated that the Constitution does not explicitly say that a woman has a right to reproductive rights. You know why? Because the white male slavers and colonists who wrote the Constitution didn’t think women had any rights at all. So, of course, they didn’t think that women had a right to their own bodies. They didn’t think that women had a right to own property or vote or finish her sentences.
Melissa Murray: Is that the best argument to make about abortion? Because there are lots of things that are not explicitly enumerated in the Constitution, but we hold them as sacrosanct fundamental rights nonetheless the right to marry, the right of parents to raise their children in the manner of their choosing. Executive privilege, which we’ve heard about ad nauseum. And there’s a great question from one of the audience members about the Trump archives. So why is it that we are so fixated on this issue of unenumerated rights when there’s so much that the Constitution purposely left vague or absent with the understanding that it could not have been an exhaustive document.
Elie Mystal: Because the people who are concerned with the expansion of rights are the same people who have all the rights at the beginning. Right? It’s like one way of telling the story of America is the race and the attempt for everybody else to get the same rights that rich white people had in 1787. Like as a black man in 2022. I’m still just trying to get back to where white people were in 1787. And the countervailing force against that story have been the white people who had their rights in 1787 trying to stop everybody else from getting them, trying to put up additional hurdles and additional roadblocks to other people, getting to the point that they had they were born into that. That’s one way of telling the story, and that is why there are people who are so concerned with unenumerated rights. Look, James Madison, the person who was forced to write the Bill of Rights, who didn’t want to remember James Madison, didn’t think we needed the Bill of Rights, thought the Constitution was fine, as is. You know, James Madison, people need to think of him like Aaron making the golden calf right. He knows it’s wrong, but all people are just like, we need a god, we need a God. And he’s like, okay, right. While, you know, Moses is off somewhere else getting the commandments and. Okay, here’s the right. That’s the that’s the Bill of Rights. While he’s doing that, Madison is like, look, I’m going to I’m going to give myself an out because he knows that some fool in the future will think. And this is why he says that he doesn’t want to write the Bill of Rights in the first place because he thinks that some fool in the future will think that the only rights that we have are the ones that he bothered to write down, which of course he couldn’t possibly do that you can’t possibly write down all the rights of people. Snap. So he gives himself let out. That out is the Ninth Amendment where it says explicitly this document does not represent its all complete list of all rights, that there are unenumerated rights that he didn’t have time to write down but still exist. That’s the Ninth Amendment and conservatives for all their original textual theocracy. Conservatives attacking the Ninth Amendment doesn’t exist at all. Literally, Robert Bork, the founder in many ways the intellectual founder of originalism, says that the Ninth Amendment is an inkblot under which nobody can know what’s under there and so acts like it doesn’t exist. And Antonin Scalia kept right on with that tradition. And Neil Gorsuch keeps right on with that tradition of acting like the Ninth Amendment doesn’t exist. But the Ninth Amendment does exist. And it does it does protect rights that aren’t enumerated in the rest of the document, which is why I go to the ninth. I go to the 14th Amendment first, because I’m like, well, equal protection. If men get to control their reproductive cycle, then women get to control their reproductive cycle. Get out of my face. However, if the 14th Amendment doesn’t work for you, then we have the ninth Amendment which says that there are more rights, including, I would argue, the rights to privacy that are not enumerated in the Constitution. And quite frankly, Professor Murray, if you don’t like my 14th Amendment argument and my Ninth Amendment argument, I have a 13th Amendment argument because right there in the 13th Amendment, it says forced labor is unconstitutional. Forcing a woman to labor against her will for free is something that shouldn’t be unconstitutional. I believe we fight a war over that.
Melissa Murray: Right. So there are a number of questions in the chat from audience members and they’re really excellent. One person notes that we yesterday heard oral arguments at the court in a case called West Virginia versus Environmental Protection Agency. And this person asks, Are you worried about regulatory agencies being dissolved by this current court?
Elie Mystal: Yes. Yes. Part of the long term ideological goals of the conservative movement has been to take away the regulatory power of the state, and they do it through specifically this attack on executive agencies, because folks, executive agencies are where the science is. All right. You’ve seen Congress. I’ve seen Congress. You’ve voted for congresspeople. They’re not scientists. They’re not physicists. They’re not experts. They’re experts at talking. And here they’re not experts in on the ground of the issues that we have to face. We have we have professionals. We have often nonpolitical appointee professionals in the executive agencies. They’re supposed to do the work of turning congressional law into something real and practical and manageable in this country. Right. So when Congress is a Congress passes the law, we should have clean water. We should have clean air. It is the executive agencies that figure out what clean air means, what clean water means, and how we’re going to go and get that done. What the conservatives want is to basically eviscerate the power of the executive agencies to do that work, because they then allow judges to aggrandize themselves and be the ones who decide what clean air or clean water means and requires. It is a power grab by the conservative majority against the elected branches of government, and that’s how we have to understand it, and that’s all we have to talk about it. But in terms of what’s happened yet, we’re going to we’re losing. We’re absolutely losing. And again, this is one of those issues where Democrats have not taken the field. If you poll any person under 35 and you will see climate as one of their biggest issues, trying to explain to people you will get nothing on climate for 30 years if you do not control the courts. That would be a winning political argument. But Democrats don’t make it so in the 2060s, in the 2070s, long after Trump and all these current people are dead, the judges that he put on the court will still be retarding our ability to meet the global climate threats of the future.
Melissa Murray: Do you think the Democrats actually know what’s going on, or are they so compromised and committed to going after the sort of third way, the middle way, the center of the country, essentially, that they’ve forgotten about their base? Is that what’s going on? Or is it something else?
Elie Mystal: I think it’s something else. Actually, I think what it is, is that Democrats don’t feel like the court is a winning issue for them. They feel like it’s a winning issue for the right. And that’s because the right wing has cultivated a whole army of single issue voters on the Supreme Court. So I can go to a tabernacle in Utah and I can find a person who doesn’t know anything about civics or doesn’t know anything about about how the law works. Who doesn’t like Donald Trump? Who thinks that he’s a racist, sexist, misogynist person that will vote for Republicans up and down the ticket because they care about abortion? You can go find that person in parts of this country. It’s very hard on the other side to find that person on the Democratic side, especially on the on the hard left right. It’s hard to find the hard left progressive who is going to be a single issue voter on the Supreme Court. I can you know, you can have people just like, well, you know, both parties are the same in terms of Medicare for All. And you can say, well, maybe like the both justices aren’t the same.
Melissa Murray: Do you think that’s changing, though? Because I mean, I just. Do you think that’s changing in this moment, the fact of this incredibly extreme Supreme Court with a 6 to 3 conservative supermajority? I mean, are Democrats maybe waking up that they are perhaps single issue voters on some things?
Elie Mystal: We just talked about 2020. 2020 convention went through the whole convention, didn’t mention the courts at all. That’s strike one. Here’s another way of looking at it. Of the people running for the Democratic nomination for president in 2020, Joe Biden was the most conservative when it came to the courts. Everybody up to the judge had a whole plan to maybe think about reimagining the courts. Bernie Sanders out there, maybe we need 100 justices, you know, not like everyone was like at least expansion. Curious, right? But not Joe Biden. And it didn’t cost him a vote.
Melissa Murray: But he also was the only one who actually said he was going to do something potentially historic vis a vis the courts. And that was to name a black woman. And that’s what won him South Carolina.
Elie Mystal: Yes. Yes, that’s.
Melissa Murray: So isn’t that evidence that there’s some interest? I mean, I wonder what 2016 would have look like if after Hillary Clinton selected Tim Kaine to be her running mate, she had gone further and said, and if I am elected president, I’m going to name Goodwin Liu of the California Supreme Court as the first Asian-American justice or know co-chair of this California Supreme Court as the second Latino justice. Would that have put a third person on that ticket to give it a little lift and energy that would have brought some voters out? I think it might have.
Elie Mystal: I’ll do you one better. Professor Murray, if Barack Obama had nominated Ketanji Brown Jackson last time when she was a finalist for the seat that eventually went to Merrick Garland. Maybe the unprecedented obstruction by Mitch McConnell, wouldn’t have worked. I mean, I think a lot of I was one of those people that a lot of people criticize Obama for nominating Garland when he had people like Brown Jackson in the wings who might have inspired more progressive energy and made the Republicans look worse as they were doing their obstruction. But basically, your arguments are that there there is a swell there is a change among progressives to care more about the courts than perhaps they did in the past. And I would.
Melissa Murray: Sure will reform this year, expanding the court, limiting life tenure.
Elie Mystal: And I can’t agree with you until I see a Democrat pay the price. Right. Because we just haven’t seen a Democrat lose a vote, lose a primary, and we haven’t seen a senatorial Democrat lose a primary over the court’s issues. It happens to Republicans all the time. People forget, like I just talked about, to 20, 2020. Let’s go back to 2016 where Donald Trump, anti-establishment, outsider guy, just just throw in Republican establishment, just overboard. Just destroy. Not with the court. No, the came to the court. He had to put out that list, that Federalist Society approved list. Donald Trump had to toe the line when it came to Supreme Court nominees and everything else. He could be crazy outsider man. But with Supreme Court Republicans don’t play. They would have elected Jeb if they thought they were going to lose the court. But so he had to play he had to play with the establishment when it came to the Supreme Court, everything else, he could be crazy. And so, as I’m saying, Republicans lose when they are weak on the courts. I haven’t seen a Democrat lose for being weak on courts. And even if you take, you know, a more recent example, Dick Durbin is the chair of the Senate Judiciary Committee because it’s his turn. It was cramming. Jim Jordan is a fine man. I don’t have a problem. But but he’s not Sheldon Whitehouse. Sheldon Whitehouse, who every day is making a new chart. Sheldon Whitehouse spends every day, like, in Excel. Like making new charts with. Like string about like the federal society and where the money is coming from. And the Heritage Foundation and. And the judicial. He understands the entire room. But he couldn’t get that job. No, because it was Dick Durbin’s turn. That’s how Democrats roll. And until that stops happening, I think we’re going to continue fighting an asymmetrical war here.
Melissa Murray: Is there any sort of small policy fix that we could make that would help any of this?
Elie Mystal: I think expansion is pretty small. It’s just a it’s just a simple bill. Now, I do think structural reform is the answer, but I will give you something small. Ethics reform. People outside of our world, Professor Murray, are just laterally thanks to Jane Mayer and The New Yorker. Oh, this Junie Thomas person seems to be corrupt. Yeah, three years of it, folks. The bald corruption of the Thomases is getting air now. The bald corruption of Brett Kavanaugh got some play back when he was nominated. The Supreme Court is the only court is the only court in the country that operates without ethics rules. According to the court, only the individual justice justices can hold themselves to any standard. That’s ridiculous. And a very kind of small bore change to change the ethic, to apply ethics rules to the Supreme Court might actually do some good. Let’s actually put in when justices must recuse themselves from cases that might be of help, you know, at least might might a lesson their ability to literally go out and fundraise on behalf of a political organization like the Federalist Society, that might stop. And generally people aren’t they are in favor of ethics, generally ethics polls. Hi. So I think that in terms of a small bore transitional change, just the concept that ethics should be applied to the Supreme Court would be a step in the right direction.
Melissa Murray: So you’ve mentioned the Jane Mayer article in The New Yorker about Ginni Thomas and her connections with far right conservative organizations and how that has sort of influenced or has come up in petitions to the court and cases that are argued before the court where her husband sits. There’s also a New York Times Magazine profile just last week on the same thing. Has the battle against these dark money forces really changed in the last few years because of the energy for perhaps Senator Whitehouse or the reporting efforts of folks like Jane Mayer?
Elie Mystal: I don’t know that it’s again, I can’t say that’s changed until I see some consequences. Like it’s what we are now seems to be. And I think this goes for many things. I think this goes to why I wrote the book, right? What we are in right now is a point where we are trying to get information into the hands of people who maybe haven’t been paying attention the entire time. Right. So we’re kind of in a stage of don’t worry about being late to the party. Let’s just embrace the fact that you showed up at all like that’s where we are today. Right. But we are still a very long way from taking that new information, taking that new focus and turning it into action, turning it into consequences, turning it into results. That’s still a dream as opposed to a reality. I hope we get there. And I hope that that as with so many things, I hope the younger generation is ready to lead the way on this. I think when you look at the energy that they have around climate and the energy they have around guns, if you can just explain to them that the courts are the things that are preventing them from getting those things forward, that are preventing those policies from happening, that could create a lot of energy around taking back to the courts from the Republicans. This is going to sound a little pie in the sky, but we are there’s also the potential that the worst thing that can happen for conservatives is them getting exactly what they want because they’re about to get exactly what they want. They’re about to take away a woman’s right to choose. They’re about to unleash guns onto our subways and increase the number of mass shootings that we have. They’re about to destroy climate change legislation. They’re about to get rid of affirmative action. They’re about to take take away gay rights and trans rights. And once we are living in that conservative theocracy that they have so long wanted, perhaps people will realize that it’s not a great place to live and be willing to do something about it.
Melissa Murray: So the only upside of the next three or four years of this conservative super majority is the prospect, perhaps, that their work spurs political action, galvanizes the left.
Elie Mystal: I hope it’s three or four years. I thought you were to say three or four decades.
Melissa Murray: Well, I’m just sort of thinking of the short term to ask questions before we go. It seems so much of this is focused on the courts, but the Senate is also a real problem. And so one listener would like to know what should we do about Joe Manchin and Christian cinema and their rigidity on these questions? I’d love for you to weigh in. Like, what would you do? Were you in charge?
Elie Mystal: Well, first of all, let’s remember Joe Manchin, the customer, has actually been pretty reliable when it comes to Biden’s judicial appointments. They’ve been terrible on the filibuster and terrible on structural reform change because they’re not they’re not reformers. They’re they’re they’re corrupted. But on the actual justices, they’ve been pretty good. So I’m not just just I’m not super worried about them in terms of this current nomination fight. Look, one of the reasons why I am in favor of court extension and people don’t really understand this this until they spell it out, is that it is a way to fix the obviously broken Senate confirmation process. So if you had 20 more justices, 30 more justices, I mean, literally like big numbers here, then changing them out would become wrote. It would become not a make or break, you know, everybody to the mattresses kind of moment for the political parties. It would just be like, oh, today we also nominated a new three or four in the same way that already is for the lower courts, where it’s generally rote, where, you know, you can have justices like Ketanji Brown Jackson get 53 votes for the D.C. Circuit. However, you know, it’s just it’s just a thing that they do as part of the normal course of business. Having more Supreme Court justices would do that. Another thing that it would do is that it would, I think, make for much more moderate opinions. People saying we want mainstream, moderate opinions. I personally I don’t I like crazy lefty opinions. That’s just me. But if you want, you know, mainstream kind of central mass moderate opinions. Let me tell you something. Trying to get 15 of your friends if you had a if you had a 29 person court. And so to get a majority, you need 15 people on your majority. That’s going to make for much more mainstream opinion, like to say if you just have to convince three or four of your boys to go out for a night, you can end up at a strip club. You could end up at a at a drag race. You could end up at some places. Right. If you’ve got to convince 15 of your friends to go out for a night, you’re going to end up at Applebee’s, you’re going to end up at Olive Garden, you’re going to end up in a nice, safe family place. Right. And so if you want moderate decisions, what you want is more justices, because it means for a larger majority that you have to herd together.
Melissa Murray: You need to write this up in an op ed like the Applebee’s versus the strip club theory of judicial nominations. I would I would read it. I would buy it. One last question. Let’s end on hopefully a high note. Fingers crossed. We just got a new nomination and historic, groundbreaking nomination of Ketanji Brown Jackson to the U.S. Supreme Court, the first black woman to ever sit on the Supreme Court. Is that make you hopeful or is it just more of the same? Like, surely this sparked a little flame of warmth in your cold, dead heart.
Elie Mystal: Yes. Because we’re getting rid of Dreier. No, I’m just joking. Just joking. Dreier’s a very nice man. Look, Brian doesn’t get enough credit for it. He’s honestly, like, the most justice against the death penalty that we’ve had for quite some time. I think that’s great. Of course, I’m excited about Brown Jackson. I’m excited because she has you know, we’ve talked about this before, but she will come to the court with more public defense experience than any Justice Thurgood Marshall. I think that’s critical. I think that’s good. I think that that, you know, people say like, oh, will she be able to convince? No, no. Neil Gorsuch is not contestable on anything. Right. Brett Kavanaugh, he just he’s such a weak moral person that he just goes with the strongest man in the room. She’s not going to. But you know what? She might commence she might commence Kagan on a couple of things. She might convince Sotomayor who but you know, somebody who has has prosecutorial experience. She might pull Sotomayor on a couple of things. Sotomayor might pull her on a couple of things, like just sometimes just getting the liberals together to stand together would be enough of a victory for me. So I have hope that that not only for the quality of her work and the quality of her opinions and her reasoning, I do have hope that like having people with her kind of background and experience give, you know, some, if nothing else, somebody to give Sotomayor and Kagan another friend on the bench. Like, I think all of that stuff is good and you never know how history plays out. You set up for three or four years. I worry about three or four decades. But like nobody expected Scalia to die. You know, these people, these are old people. People get hit by busses every day in this country. Right. You never know what’s going to happen. And having actual liberals on the court is always a good thing. So, yeah, I have a lot of hope for for her career. I will be watching it with interest. I’m sure I’ll be writing about it a lot. And I think she’ll be a great Supreme Court justice for, you know, the next 30 years.
Melissa Murray: Thanks for listening to this very special episode of Strict Scrutiny brought to you in collaboration with the Commonwealth Club of California. Thanks so much to Elie Mystal for joining us. And you can find Elie’s new book, Allow Me to Retort: A Black Man’s Guide to the Constitution at all, major booksellers. Although maybe not in Florida because CRT and all that. Thank you so much for listening. As always, Strict Scrutiny is a production of Crooked Media and we are really grateful to all of the good folks at Crooked who helped get us into your ear holes every week, and especially to Melody Rowell, our producer. Thanks for listening.
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