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Melissa and guest co-host Imani Gandy of Rewire News Group break down the week’s legal happenings, including how Texas Democrats are attempting to thwart that state’s gerrymandering efforts, college admissions in the age of Trump, and more Epstein fallout. Then, Melissa chats with Duke Law Professor Brandon Garrett about his book, Defending Due Process: Why Fairness Matters in a Polarized World. Finally, Leah speaks with University of Michigan Law Professor Richard Primus, author of the new book The Oldest Constitutional Question: Enumeration and Federal Power. Check out Imani’s podcast Boom! Lawyered.

 

Hosts’ Favorite Things:

• Melissa: Tom Lake, Ann Patchett; The Midnight Library, Matt Haig; How the George Floyd Protests Changed America, for Better and Worse, Justin Driver (NYT)

• Imani: Palisade Peaches; Revenge; Death Stranding; Brit Box

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TRANSCRIPT

Leah Litman [AD]

 

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

 

Melissa Murray Buongiorno and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I’m your host today, Melissa Murray, and I am back from a much needed summer sojourn in Croatia and Italy. Yes, that is right, listeners. I am the Neil Gorsuch of this podcast because I had the most fantastico time in Dubrovnik and Rome. Where I saw amazing art, ate amazing pasta, and regaled my friends with amazing tales of textualism and ice truckers. Just kidding about the last part. We never talked about the textualist. In fact, it was a vergonia, if you will, very missed opportunity. Anyway, folks, this is all to say that your girl is back, but I am without my trusty co-hosts, Kate and Leah. But don’t cry for me, stricties, because help is on the way. Happily, as part of our rotating summer respite schedule, I will not be alone for long. In fact, I am joined today by a very special guest host, someone whom I’ve known for a very long time and have admired for even longer. So please give a warm, Strict Scrutiny welcome to Imani Gandy, the co-chief content officer at Rewire News Group and the cohost of Rewires’ absolutely terrific podcast, Boom Lawyered.

 

Imani Gandy Thank you. I’m so excited to be here. I just have to tell this story to your listeners, because I don’t know if I’m going to get another chance, but it was about 10 years ago that I was in the offices of Sister Song. It was like my, I was right in the beginning of my journey along the reproductive justice road. And they had it, they had your copy of your reproductive justice textbook. And I was like, oh, it’s Melissa Murray’s textbook. I love her. And so I have a picture of me from 2014 with your textbook, like.

 

Melissa Murray Okay, it must have been… it had just come out. Yeah, I think the first edition came out in 2014 right after Hobby Lobby.

 

Imani Gandy Yeah, so.

 

Melissa Murray It’s so different now. The book is literally only three pages. It used to be like 346. Where did all the rights go? I don’t know. All the rights, all the justice, gone, gone. I’m joking, listeners. There actually is still a textbook, and it’s still about 400 pages with lots of stuff. Lots of stuff that this court has done. But guess what? All of that is to say that Imani and I are a great team, and we have a banger of an episode for you today. As is our summer habit, we are going to start by recapping some of the news from the Article 2, Article 3, Vortex of Shame, and Gird Your Loins. There is a lot of news. Then we will have two terrific interviews for you. First, we’ll feature my interview with Duke Law School’s Brandon Garrett about his recent book, Defending Due Process. Which considers the age-old question, is due process a pillar of the Anglo-American legal tradition or merely a luxury item that we can all do without? A legal Birkenbeg, if you will. After that, Leo will talk with her Michigan colleague, Richard Primus, about his riveting new book, The Oldest Constitutional Question, Enumeration and Federal Power. How does that sound, Imani? Are we ready to dive in?

 

Imani Gandy Let’s do this. I’m excited.

 

Melissa Murray Let’s get going.

 

Imani Gandy And slightly horrified because it’s Donald Trump’s America after all.

 

Melissa Murray After all anyway let’s start with some breaking news and it is breaking news for real for real because we just got an opinion in JGG versus Trump so these developments in this case continue to come fast and furious um it is the case concerning the deportation of venezuelan migrants to el salvador under the auspices of the alien enemies act that is that 1700s era wartime statute that is being used to deport migrants to a. Maximum security prison in El Salvador. And as you’ll recall, listeners, in March, Judge Boasberg of the DC District Court ordered the Trump administration to turn around the planes that were heading to El Salvador and to return the Venezuelan migrants who were on those planes because the administration says that they are members of the Venezuelian gang, Tren de Aragua, to return them back to the United States for proceedings that accord with the requirements of due process. The administration, as we know, did not heed that order. Thereafter, in April, Judge Boasberg issued an order and an accompanying opinion finding that there was probable cause that some federal officials had willfully violated the temporary restraining order that he’d issued, meaning that those individuals could be found to be in criminal contempt. Boasberg offered the government an option to purge the putative contempt by asserting custody over the removed individuals or proposing other methods of complying with his order. And he also stated that if the government opted not to purged, it had to identify the executive branch officials who, being aware of the court’s TRO, made the decision to persist in the deportations to El Salvador. Boasberg further stated that his next step would be, Quote. To request that the contempt be prosecuted by an attorney for the government, and if the government declines or the interest of justice requires, that he would appoint another attorney to prosecute the contempt. So really strong measures from a judge who’d basically had it with people playing in his face.

 

Imani Gandy And then naturally, the administration took all of this personally. It appealed Boasberg’s ruling to the DC Circuit, seeking an emergency stay of the order or a writ of mandamus terminating the criminal contempt proceedings. The circuit quickly issued an emergency state and took some time to consider the mandamus request. And then last Friday, the DC circuit issued a two-one ruling granting the government’s motion for a writ a mandamus and excoriating Judge Boasberg for overstepping his authority. Now the lineup should surprise exactly no one. The two judges in the majority were Greg Katsas and Naomi Rao, both of whom are Trump appointees. And then Judge Nina Pillard was in dissent and she is a Obama appointee.

 

Melissa Murray That’s right. We got this on Friday just as we were about to tape this. So we are literally unpacking this in real time. The ruling was issued as an unsigned per curiam opinion. But both Judge Katsas and Judge Rau filed concurring opinions elaborating their positions. Judge Pollard also filed a dissenting opinion. And we haven’t had a lot of time to unpack all three opinions. But. I did go through them quickly, and I just have a couple of things that really stood out to me on this very quick cursory reading. First of all, Judge Rao really seems to think that the real problem here is district court judges. And as she writes, quote, the order forces a co-equal branch to choose between capitulating to an unlawful judicial order and subjecting its officials to dubious prosecution. It’s a very strange way of putting it, but please proceed. Your mileage may vary. This is incredibly wild, I think, especially in light of the fact that all of this is proceeding under the auspices of the Alien Enemies Act, which is a wartime statute. And no one has shown that it has any applicability during peacetime. So the idea that this is all plausible and fine and it’s the judge who’s being unlawful seems just, again, really wild and crazy. It is doubly wild, in light of all of the public reporting on Erez Reuveni’s whistleblower complaint. Erez Reuveni. Was one of the government’s lawyers that was charged with presenting these materials to the courts. He was the one who dealt with the Abrego Garcia case in Judge Xinis’ courtroom. He has said in many public statements in his whistleblower complaint that everyone was aware that Judge Boasberg wanted those planes turned around. And so the idea here that it’s the judge that’s problem as opposed to DOJ officials. Is really interesting. The whistleblower complaint alleges that DOJ officials were intent on completing the deportation despite what Judge Boasberg had ordered. And they basically had no qualms about giving the court the middle finger on this. So again, just absolutely wild in my view. Amani, what did you think of the Katsas’s opinion? I mean, I thought the Rao opinion was out there, but what did think?

 

Imani Gandy I mean, Judge Katz’s opinion is no better, right? It reads like magical thinking, which is to say, it totally inverts and rereads the facts of the case and the government’s interactions with the district court. Katsas writes that the government was not willfully defiant because Judge Boasberg never really asked them to turn the planes around.

 

Melissa Murray OK, that part actually did make me laugh out loud. I was like, you literally was like turning the planes around.

 

Imani Gandy Like, he literally was like, hey, guys, turn these goddamn planes around. I just. Literally, he writes, quote, In its show cause order, the district court itself disclaimed two of these three commands referenced in its oral order, it stressed that it had never imposed any freestanding requirement to turn planes around, and it repeatedly denied having imposed any overarching requirements to return suspected Trende Aragua members to the United States. You know what, Melissa? I’ll have what he’s having. Yeah, he’s, he is.

 

Melissa Murray Good stuff, for sure. It’s the good stuff. This reminded me of the proceedings before Judge Boasberg where, you know, Judge Boisberg had issued this sort of oral order and then the lawyers were like, well, you didn’t put it in writing. So I wasn’t sure that I was supposed to put it. It just feels like it’s the same move that the government lawyers were making before, only this time it’s been translated into judge talk and now has been made part of the federal reporter. I mean It is just absolutely wild and I think shocking that it’s coming from a member of the judiciary commenting on the work of a fellow judge.

 

Imani Gandy Yeah, I can’t imagine as a practicing lawyer being like, well, it was just an oral order from the bench, so who knows what I’m supposed to do?

 

Melissa Murray So I’m sure that more will come from all of this, and we will continue to cover it. But this was an absolute bombshell on Friday morning. Anyway, Amani, you know what I really hate? Please tell me. I hate it when your president and you push a wildly aggressive, probably unlawful, and deeply unpopular agenda in the first six months of your administration, and Congress is like, you know, Champ, all of that sounds great. Keep doing you. And the voters are like, I don’t know. I can’t wait for the midterm so we can get some new people in here, flip the House of Representatives, and maybe get a less soup pie in Congress, which then prompts you, as president, to think, hmm, what could I do to avoid the mid-term curse whereby the party in power loses seats in Congress? What could I to maintain, maybe even expand, my party’s majority in the House of Representatives while keeping the people from using this upcoming midterm election to make their voices heard and achieve the policy changes that they want. By now, listeners, the answer should be obvious. What’s a president to do? Maybe engage in a little off-cycle, non-census redistricting among friends, or, if your mileage varies, a little light anti-democracy among friends. So again, if you are the president, you might, in these circumstances, prevail upon the pliant governor of Texas, for example, and ask him to draw some new districting maps in order to find you the president. Five new congressional seats, enough seats to hold and even expand your House majority. And even though this is wildly unorthodox because we just did a census, the pliant governor here, Governor Greg Abbott of Texas, is fully on board. He is like, yes, sir. May I have another? No problem. Would you like fries with that? And here we are in the middle of Texas’s new ploy to redistrict the state and give Donald Trump new seats and maybe even more authority in the House of Representatives to push his agenda into the remaining time in office.

 

Imani Gandy Yeah, it’s great. It’s really great. But let me add some additional content here. It’s a good plan. It’s fantastic plan. When Donald Trump came into office in January 2020, the House Republicans had the smallest majority ever seen in Congress in the last 100 years. And it was a problem. And it wasn’t a problem for them. Like not a huge problem, but a problem, but a bit of a problem a little bit. Not only are the Democrats in striking distance to flip the house in the midterms. Even if the GOP maintained control of the chamber, a thin majority like the one that they had in the 119th Congress makes it hard to be as aggressive as the president and handmade speaker Mike Johnson want to be. For example, the Republicans had a lot of trouble getting the big, beautiful bill through the House because of the narrow GOP majority.

 

Melissa Murray No, like all you need is like Chip Royce saying, asking questions, and all of a sudden you’re in deep trouble. So it makes sense that they want to expand their majority. So it’s easier to pass new regulations on cryptocurrency, which they had a lot of trouble doing with this thin majority in the house. The big, beautiful bill would have gone through faster, maybe would have sounded less porny if like they’d had more of a majority to pass it. Who knows? Expanding, the majority certainly seems to be part of this, not simply just holding it, but actually making it bigger so that they can be more aggressive moving forward.

 

Imani Gandy Right. And that’s because currently in the House of Representatives, the Republicans have a 219 to 212 majority with four vacancies. So it’s not great for them, right? And that means that Democrats only need to win a handful of seats to win back the House in the midterm election. Winning back the house means that the Democrats would be able to push back harder on the administration’s policy agenda, have more robust oversight authority, and have the The simple majority necessary to issue Articles of impeachment!

 

Melissa Murray You know, if that sort of thing. It’s all coming together now. It’s coming together. Now you definitely don’t want a house in Democrat control. I can see it.

 

Imani Gandy Right, and I’m not saying that anyone is worried about these things, right, like who’s worried about articles of impeachment giving the rampant lawlessness running through this administration? But it does give a sense of the stakes and why someone would go to such extreme lengths to thwart democratic engagement.

 

Melissa Murray Well, happily, Amani, at least some Texans have a spine about this. So the Democrats in the Texas legislature, recognizing that Governor Abbott would need a quorum in the legislature to move forward with this plan to redraw Texas’s maps, they decided that they were just going to leave the state. The most epic Irish goodbye in history, absolutely epic. So they chartered a plane. And they flew to Illinois literally to escape Greg Abbott. Absolute legends.

 

Imani Gandy But Governor Abbott is not one to give up, especially when he has a president to please. So Abbott ordered the Texas Department of Public Safety to arrest the Democrats and bring them back to Austin. But there’s one small issue. The Department of public safety doesn’t have jurisdiction outside of Texas, so they can’t actually bring the legislators back, right? Federalism, you pesky federalism, you rat. And so. Senator John Cornyn, Texas’ senior senator that is not the gentleman from Cancun.

 

Melissa Murray Oh my God, you are a real fan of the podcast. Oh my gosh. We said that way back in the day when Ted Cruz went to Cancun. I can’t believe it.

 

Imani Gandy I mean, it’s Ted Cruz for crying out loud. But John Cornyn called on the FBI to get in the mix to bring the legislators back to Austin. And according to Cornynn, the FBI agreed to help out. Great. And so it seems like there are some people who think this is a good idea. Let’s roll the tape.

 

Clip Should the FBI get involved. Well, they may have to. They may have to. No, I know they want them back. Not only the attorney general, the governor wants them back. If you look, I mean, the the governor of Texas is demanding they come back. So a lot of people have demanded they come back. You can’t just sit it out. You have to go back. You have to fight it out, that’s what elections are all about. Just like ridiculous.

 

Melissa Murray I don’t want to be the turd in the punch bowl here, but I would really love to know what role federal law enforcement has to play in a state legislative dispute. But the president thinks it’s probably OK here, and he seems to have a great grasp of these federalism principles. All to say that I think Leah, if she were here, would call all of this a vibe. Not necessarily law, but.

 

Imani Gandy No law, just vibe. Isn’t that y’all’s catchphrase? We have many catchphrases. One of the many catch phrases.

 

Melissa Murray It seems unclear that the FBI actually has jurisdiction to intercede here and forcibly bring the legislators back to Austin, but John Cornyn says that they are getting involved and whatever federalism be damned. In any event, Governor Abbott has taken a more traditional route to bring these recalcitrant legislators back into line. So last Tuesday, he filed an emergency petition in the Supreme Court of Texas seeking to remove from the legislature. Texas State Representative Gene Wu, whom Abbott described as the quote, ringleader of the derelict Democrats.

 

Imani Gandy According to Abbott, the legislators have abandoned their offices, justifying their removal. The Texas court gave Representative Wu until Friday evening to respond. Now, it’s not clear that Democrats have a long-term strategy here. Texas state legislative positions are part-time gigs, so these legislators have real day jobs and families that they will need to return to at some point. Abbott has until December to get these maps redrawn for use in the 2026 election. And it’s not clear that Democrats can hold out for four more months, right? And it is not clear that their families are gonna want to hold out for four or more months without seeing, you know, mommy or daddy. Right, they’ve done-

 

Melissa Murray this before. This isn’t the first time Texas Democrats have fled the state, but usually it’s meant to draw attention, public attention, and this has certainly done that. What is clear though is that if this absolutely brazen ploy to thwart democracy so that Texans cannot register their preferences in the midterm works, it’s going to embolden other state legislatures to similarly engage in mid-census redistricting to hold the House of Representatives for this president and. It’s a race to the bottom. Blue state governors have indicated that they are ready to respond in kind, although it’s unclear whether they would be able to do so in time to counteract what Texas is doing in the upcoming midterm election cycle. But they’re ready, and this just builds and builds, and it goes straight to the button. It’s also clear, I think, that a big portion of the blame for what is happening right now lies squarely at the feet of the United States Supreme Court, which in 2019 concluded that federal courts had no role to play in addressing partisan gerrymandering. And that decision in Russo versus Common Cause midwifed what we are seeing right now. States literally going to the mattresses and doing absolutely insane shit to redraw district lines in order to consolidate one party rule. And again, it’s the same court that is hobbling the Voting Rights Act, which incidentally turned 60 years old last Wednesday on August 6th. It’s the same court that blew up the VRA’s pre-clearance regime in Shelby County versus Holder in 2013 that hobbled section two of the Voting Rights Act in Brnovich versus DNC. And now in Louisiana versus Calais, which was held over from last term, this court could further whittle down section two the V.R.A. By making it harder, maybe even impossible, for states to draw up majority minority districts to ensure that underrepresented minorities actually do have representation in congressional districts. So. Thanks guys, you’re doing great. Hell of a job.

 

Imani Gandy I kind of love that white voters are complaining about two majority black districts. Get a grip, ice. Speaking of brazen ploys to thwart democracy, the Trump administration has reprised its quest to mess with the census, ostensibly to influence the allocation of congressional seats.

 

Melissa Murray Now listeners, this requires us to take a little trip down memory lane. So listeners, you’ll recall that in the first Trump administration, the president directed Secretary of Commerce Wilbur Ross to add a citizenship question to the census, and he said it was necessary to do this because we had to enforce the Voting Rights Act. That became a catchphrase on strict scrutiny as well. Well, that ploy was rightly challenged in the courts, and ultimately the Supreme Court shut it down, although Only after Thomas Hofeller, a major GOP strategist who was known as the Michelangelo of partisan cherry-mandering died and his estranged daughter in the most epic act of pettiness and filial betrayal discovered and made public a cache of documents on Hofeller’s hard drive that included reports that said that adding a citizenship question to the census would allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats and consolidate certain states under Republican control. So that’s the backstory of that. And although the court ultimately ruled that the administration’s stated reason for adding the census question to better enforce the Voting Rights Act was quote unquote contrived, and likely a pretext for discriminatory motive, you don’t say. It didn’t actually rule on a related question. And that related question was whether the president can actually exclude non-citizens from the census, which brings us to 2025. On Thursday, President Trump made the following announcement on Truth Social. Quote, I have instructed our Department of Commerce to immediately begin work on a new and highly accurate census based on modern day facts, figures, and importantly, using the results and information gained from the presidential election of 2024. Sidebar, not quite sure what presidential election results have to do with the census, but I digress. He continues, people who are in our country illegally will not be counted in the census. Thank you for your attention to this matter. That’s literally what it says.

 

Imani Gandy But what is clear is that a census that excluded non-citizens would violate section two of the 14th amendment, which requires the quote, whole number of persons in each state to be included in census data used to determine how presidents and members of Congress are elected. It also seems likely that the president taking unilateral action to change the census would violate the separation of powers. Article one of the constitution empowers Congress not the president, to carry out the quote, actual enumeration of the country’s population in quote, such manner as they shall by law direct. And in Title 13 of the U.S. Code, Congress directs the Secretary of Commerce to follow a once a decade census schedule.

 

Melissa Murray So what you’re saying here, Imani, is that the 14th Amendment is like, you’ve got to count everyone. And Article 1 is like also Congress plays a role here. You just don’t get to do this unilaterally. And the president’s like, Constitution? I don’t even know her. Like, what’s that?

 

Imani Gandy Yeah, 14th Amendment. Never heard of it.

 

Melissa Murray Well, I mean, it’s getting a major assist from the court and completely undermining and whittling away the 14th Amendment, but we digress. In any event, listeners, it is unclear whether the president wants to change the 2030 census or whether this is about a mid-census headcount, like between two censuses, and whether this shift will have real effects on how we think about congressional apportionment or whether it’s just, again, a headcount. I think what is clear, though, is we shouldn’t look at this as a disaggregated effort, but rather should think about it in tandem with what is happening in Texas right now in this effort to redistrict that state and maybe other states in advance of the midterm elections. This is all about trying to redraw these lines, redraw the districts, and consolidate control in both state legislatures and in Congress.

 

Leah Litman [AD]

 

Imani Gandy You want to know what else is going on here? I want to hear about how the administration is burning birth control rather than sending it to needy people in Africa. That’s happening.

 

Melissa Murray Tell me about it. Let’s go.

 

Imani Gandy The dismantling of USAID has had serious consequences for global aid efforts. And now the New York Times is reporting that the Trump administration is using the destruction of USA ID to kill two birds with one stone.

 

Melissa Murray That’s efficiency, that’s efficiency right there.

 

Imani Gandy That is very efficient.

 

Melissa Murray DOGE.

 

Imani Gandy Somebody call Elon Musk.

 

Melissa Murray DOGE.

 

Imani Gandy Apparently it’s not enough to abruptly end global aid to developing countries. You have to really stick it to women around the world while doing it. The New York Times is reporting that the administration plans to incinerate over $19 million worth of contraception that was stockpiled in Belgium for distribution to third world countries under the U.S. AID program. $19,000,000.

 

Melissa Murray Just like burning it?

 

Imani Gandy You heard that right.

 

Melissa Murray Just like literally setting it on fire.

 

Imani Gandy Just legitimately setting it on fire. Rather than selling the contraceptives to NGOs that are willing to take these materials off our hands, the United States would prefer to set these materials on fire, ablaze, because we’re ending government waste, apparently.

 

Melissa Murray Wow. So according to the New York Times, quote, it is not clear why the government would not sell or donate the contraceptives. The department, in its statement, referred to policies preventing the US government from providing aid to overseas non-governmental organizations, NGOs, that provide or help with access to abortions based on a rule that the Trump administration reinstated. That rule is what’s known as the global gag rule or the Mexico City policy, which is a US government policy that restricts foreign NGOs receiving US global health assistance from performing or promoting abortion as a method of family planning, even with their own non-US funding. Now, if you’re wondering what on earth might the Mexico City policy global gag rule, which deals with abortion, have to do with stockpiles of contraception. You are asking exactly the right question. So, Imani, I’m not quite understanding how all of this fits together, so please tell me how burning contraception helps limit the spread of abortion across the world.

 

Imani Gandy I mean, before I get into that, I think we need to talk about the fact that there’s not a better metaphor for this flaming dumpster fire of an administration’s priorities than literally setting birth control on fire. Diaphragms ablaze. But we have to…

 

Melissa Murray Right. A blaze. A Blaze. Flaming Morena’s everywhere.

 

Imani Gandy Flaming Morena’s. That sounds like a shot that you would have at a bar. It is a good cocktail, right? I’d like a Flaming Marina, please. I’d a Flamin’ Marina. But let’s be clear. This is obviously not about ending government waste. This is about punishing women and people capable of becoming pregnant. This is is about letting ideology override science and basic human decency. Because when you’re so committed to controlling people’s reproductive lives that you would rather incinerate millions of dollars worth of contraception than dispatch it to people who desperately need it, that’s really just performative cruelty because there’s no reason why he doesn’t just hand over all the contraceptions to Jared Kushner and just let him sell it, put another $19 million back into his pocket. No, they’re burning it. Allegedly. Allegedly, allegedly. And you are absolutely right to tie this to the global gag rule, which has been. Proven over and over again to increase abortion rates and maternal mortality. So if this were truly about reducing abortion, the data just doesn’t support these kinds of measures. But we both know it’s never been about reducing abortions, right? It’s about punishing people, especially poor brown and black people for having sex, for trying to live lives on their own terms, for wanting control over their futures. And to be very clear, back to your original point, like how does any of this have to do with abortion? All of this is undergirded by right-wing junk science that insists that certain forms of contraception are actually abortifashions. To be clear, birth control pills are not abortifascents. IUDs, flaming marinas, are not abortionifashients, right? Emergency contraceptions is not an abortion. But conservatives have been running a decades-long propaganda campaign to conflate contraception with abortion so they can attack both at the same time. Because in their view, a fertilized egg is a person. And if a contraceptive prevents that person from being implanted into the uterus, then that contraceptives caused an abortion, right? And this isn’t an accident that they’re using this junk science. It’s a strategy for creeping fetal personhood.

 

Melissa Murray That is actually really efficient. You can strike a blow at global aid. You can strikes a blow at reproductive rights. And you can make the push for fetal personhood all in one fell swoop. Burn it to the ground.

 

Imani Gandy Yeah, and you can also own the libs, which is really like the driving force of most of what they do.

 

Melissa Murray Speaking of creepy person, oh, actually, you said creeping personhood, not creepy personhood. Creeping personhood! That was my mistake. Freudian slip. Anyway, what’s that I hear, Amani? I think it’s the sound of America getting healthier. No.

 

Imani Gandy Oh sure.

 

Melissa Murray It’s just Secretary Raw Milk slash Baby Bear carcus canceling existing government contracts to develop mRNA vaccines. So just a reminder that actual scientists, not brain worm hosts, agree that mRNA vaccines are the best line of defense in a pandemic because not only are they effective, they can be developed really quickly, allowing you to respond in real time. To whatever the pandemic issue is and to respond to any mutations in the disease as they arise. Well, remember how much fun the last pandemic was? Really fun. It was a hoot. It was hoot, it did get a little bit better when vaccines became available and you can leave your house and stop wiping down your groceries with bleach wipes. Some, but. That may be a thing of the past, and we may have to go into the next pandemic. And it seems likely that there very well could be another pandemic without the benefit of this technology, because our Secretary of Health and Human Services has decided to cancel all of the contracts for developing further mRNA technology and vaccines.

 

Imani Gandy This is all part and parcel of RFK Jr.’s vaccine skepticism, right? And particularly his distrust of the COVID-19 vaccine, which was an mRNA vaccine. He called COVID shots, quote, the deadliest vaccine ever made. And in a social media post last Tuesday, he claimed that mRNA vaccines are ineffective against respiratory illnesses like the flu and COVID. Scientists, real ones, actual scientists, vigorously dispute these claims.

 

Melissa Murray Great. So the mRNA vaccine, I think that’s the one that’s used every year to update the flu vaccine. Like it’s an M, yeah. OK, again, I got nothing.

 

Imani Gandy Yeah, and you know, some people have speculated that these contract rescissions will prompt lawsuits.

 

Melissa Murray Yeah, I…

 

Imani Gandy And so I guess we’ll keep you posted, meaning Melissa, Kate and Leah will keep you posted.

 

Melissa Murray All right, again, the war on expertise continues. And in this case, while we’re speaking of actual expertise or rather disdain for actual expertise, it’s worth acknowledging that the President of the United States recently fired Dr. Erica McIntarfer, who was the commissioner of the Bureau of Labor Statistics. And this firing took place. The Bureau released monthly jobs data showing surprisingly weak hiring in July and large downward revisions to job growth in the previous two months. So she had to revise the statistics. President Trump says that this shows that they were always cooking the books or whatnot. Although… It’s my understanding that the jobs data request goes out, people fill it out, but sometimes people fill it out late and so you have to revise the data as new information comes in. So it’s not unusual for the Bureau to issue revisions to its initial predictions, but in any event, experts reviewing the reports and the revised reports surmised that the reports indicated that the administration’s economic policies were actually beginning to have a negative impact. And so. Apparently, the president decided to truth through it, posting on Truth Social that the country was, quote unquote, doing great. And I honestly think that would have landed better if he hadn’t fired Dr. McIntarfer and instead had dressed up like a tiger and offered the whole country a bowl of Frosted Flakes.

 

Imani Gandy I would have enjoyed a nice bowl of Frosted Flakes, but instead, Trump decided to fire the messenger. Always.

 

Melissa Murray Especially if the messenger is a lady.

 

Imani Gandy Right, and maybe disband the bureau altogether. Apparently, if there are no bad jobs reports, then there’s no bad economy. Like, if a tree falls in the forest, is there a bad economy?

 

Melissa Murray Well, this is the same thing they did during COVID, like if we just don’t test, we don’t know who has COVID. That means there’s no COVID.

 

Imani Gandy Exactly.

 

Melissa Murray Yeah, it’s really bonkers.

 

Imani Gandy For what it’s worth, Dr. McIntarfer was appointed commissioner of the Bureau by President Biden in 2023, after a long career at the Census Bureau and other agencies, where she served under presidents of both parties, including Donald Trump.

 

Melissa Murray So wait, he’d actually, she’d been employed by him before.

 

Imani Gandy You’re fired. Is probably what he said to her.

 

You’re fire. Yeah, yeah.

 

Imani Gandy You’re fired. But notably, she was confirmed to the position with bipartisan support.

 

Melissa Murray To this position as commissioner.

 

Imani Gandy Among those who voted for her confirmation was then Ohio’s junior senator, Mr. J.D. Vance.

 

Melissa Murray OK, so I love this. So she served under Trump before. She was confirmed with bipartisan support, including JD Vance, who was then the junior senator from Ohio. And now she’s too partisan to have in this position, so we have to fire her, all because she seems to be predicting that these policies, like the tariffs, whatever, are going to lead us down a bad path economically. Yeah, yeah, that’s it. Allegedly. Allegedly? We haven’t even scratched the surface. We’re still going on the news more to discuss. On Thursday, President Trump announced a new requirement that colleges and universities submit their admissions data to the federal government to verify compliance with the Supreme Court’s decision in SFFA versus Harvard. That decision required schools to end their limited use of race as part of a holistic admissions process. The government now is also requiring Secretary of Education. Ms. Education, Linda McMahon, to increase the number of accuracy checks on the data that universities submit and to take action against any university that submits untimely or inaccurate data. Just want to note, weird to think of the federal government in its quest for efficiency and streamlining government processes now deciding to be America’s best admissions counselors at actually going through and reading through admissions files. Bye. I digress. The education department is also going to require universities to revamp their processes for collecting higher education data. That’s known as the Integrated Post-Secondary Education Data System and includes details about admissions, enrollments, financial aid. All of this information apparently will be made more accessible to the public. That sounds pretty weird and sus. But my real question in all of this, Tamani is, how is the Department of Education? Reviewing this data, going to know that universities have been compliant. What do schools have to show for the administration to be satisfied that they are abiding by the law, right? I mean, the way that race was used before is that you considered race among other things, like whether someone was a tuba player and you needed a tubo player for your band or whether someone who was from Alaska and there was no one from Alaska in your entire. Freshman class, how do you disaggregate all of these different component parts of someone’s profile to say that the real reason they were admitted was because of race? What is going to show that this is all, quote unquote, merit-based? Does every admitted student have to have a 4.0 and a 1600 on the SAT? Is that enough? What are we going to do about legacies and recruited athletes who don’t have perfect grades and perfect scores? Like, what is the measure?

 

Imani Gandy I’m pretty sure the measure is going to be how many black and brown students are at the school. Right. I mean, it seems to me like you’re going to actually have to show.

 

Melissa Murray You’re gonna actually have to show a real diminution in the number of black and brown students and then they’ll be like, yeah, you’re compliant.

 

Imani Gandy This is all about merit. Right, before you had 5%, now you have 1%, perfect, doing great.

 

Melissa Murray Because it’s about racial supremacy and racial hierarchy. It’s not about merit. It’s absolutely not about. Because if it was about merit, you’d get rid of the legacies.

 

Imani Gandy And they’re created athletes. Like lacrosse players from Bryn Mawr or whatever would be out on their asses, right? It’s absolutely not about merit. We’re not checking the GPAs of field hockey players. What they’re really after is fewer black and brown students. And it’s so annoyed me that they hung the Harvard case around Asian students next. Like, oh, there aren’t enough Asian students, and Asian students are complaining. And now the Asian student population is like,

 

Melissa Murray To be clear here, the government’s intervention in this arena is predicated on the fact that the government disperses federal funding to these colleges. So as a condition for receiving these funds, they now have to submit to this regime. But I mean, it’s a real question about academic freedom, a real questions about how universities choose to cobble together their classes, like what they’re looking for, what values they’re trying to pursue. And again, I think you’re right. We’re going to see real changes in what colleges and universities look like, again, as they seek to show compliance with a metric that I don’t think is really about metrics.

 

Imani Gandy It’s really not. It’s not. It’s about fewer black students, fewer brown students, more legacies, more athletes.

 

Melissa Murray Well, this is interesting. Linda McMahon said that this will now assure everyone that, quote, aspiring students are being judged solely on their merits, not their race or their sex. And is this going to mean that all colleges are going to be predominantly female now? Because the data shows that women applicants are much better positioned for entry and admissions than their male counterparts. And in fact, there was a story in the New York Times. Done. After the SFFA decision that talked about how male candidates were so hotly desired by the colleges that schools like Wesleyan were actually creating football teams so that they could recruit men where they’d never had these before. So if we’re doing this purely on merit, I guess all the ladies are going to be going to college and maybe the men won’t. You think that’s what they have in mind?

 

Imani Gandy I feel like white ladies, this is your time to shine. Just get in there and go to the best Ivy League school that you can.

 

Melissa Murray Something tells me that’s not what they’re seeking. Something tells you that’s not quite what they are seeking. I don’t think that’s what they seeking.

 

Imani Gandy In my view, I really think that people should be judged on race and sex, right? Like if you look at how Brazil has done their affirmative action program, they actually left, they had quotas and they left open spaces for Afro-Brazilians based on the slave trade. And now the schools in Brazil are very diverse. There’s none of that, oh, but they’re affirmative action babies and they’re gonna be stigmatized. The people who had spaces held for them actually did as well or better than like the more elite students. So. It’s really just this country’s just refusal to divest from white supremacy and also its refusal to give black people any sort of reparations, even if it means, hey, go to school, it’s okay, we’re not gonna kick you out.

 

Melissa Murray All right, we still have some more news, just never ending here. Do we get a drink break, like a cocktail hour? I really do wish we could have a cocktail, like, a mid-news cocktail, but let’s continue. Last Thursday, a federal judge temporarily enjoined the administration’s efforts to build an immigration detention center in the Florida Everglades. And conservation groups and the Miccosukee tribe sued Florida and the federal government on June 27, four days after Florida began setting up what Governor Ron DeSantis called a, quote, makeshift detention center located right next to the Everglade National Park and within the Big Cypress National Preserve. And if you’re not from Florida, as I am, You won’t know, but these are two environmentally sensitive areas within the state where there are some endangered species, lots of plant life that people want to preserve. In any event, within days, a tent facility that would house 3,000 detainees was erected. And the governor insisted that the facility was temporary and that the Everglades would simply grow over it once the site was eventually decommissioned. So there wouldn’t actually be a negative environmental impact. I guess. That seems like weird science, but OK. All to say, though, that Governor DeSantis in the state of Florida seem really eager to assist the Department of Homeland Security in detaining immigrants. And there’s actually plans to open another facility, another detention facility in North Florida. But at least for now, a federal judge has paused the administration’s efforts to continue developing alligator alcatraz. While she has an opportunity to have a hearing on what the environmental impact would be, both for the state and the affected interests, including the tribal interests here.

 

Imani Gandy I feel like the sewage waste alone is gonna have a pretty remarkable environmental impact. And now for the story that will not die no matter how much the administration tries to distract us with Sydney Sweeney commercials. La Faire Epstein.

 

Melissa Murray No, I can’t do this anymore. Are we still doing this?

 

Imani Gandy It’s just the story that won’t die.

 

Melissa Murray I think, like, now we sound like Donald Trump, like it’s a little story that won’t die.

 

Imani Gandy It was Obama and the Clintons and it was probably, I don’t know, Andrew Cuomo and that Anthony Weiner guy. It was all those people. It wasn’t me. If you’ve been watching the news coverage of Representative Mike Flood’s town halls in Nebraska, you know that folks want transparency on the Epstein saga. Take a listen to this.

 

Clip Why are you covering up the Epstein files?

 

Melissa Murray Well, it seems that House Republicans are going to give the people exactly what they want, sort of. Last week, House Oversight Committee Chairman James Comer, who’s a representative from Kentucky, formally issued a subpoena to the Department of Justice to release the files. And this was two weeks after a House subcommittee voted to compel the DOJ to do so. So as some people noted, Comer’s subpoenas was sort of pro forma. He had to do it. But he did it, so there we are.

 

Imani Gandy So in addition to the demand for the Epstein files, Chairman Comer also subpoenaed documents or testimony from several high profile figures who had either investigated or associated with Epstein in the past. And the list includes Bill and Hillary Clinton, Merrick Garland, Jim Comey, Robert Mueller, Jeff Sessions, Bilbo Biggett, like why is he in there, Alberto Gonzalez, and Bill Barr. Curiously, the subpoena did not seek the testimony of Alex Acosta, the one-time U.S. Attorney in the Southern District of Florida, who according to a 2020 DOJ report, quote, made the pivotal decision to resolve the federal investigation by having Epstein plead guilty to state charges and laid the foundation for Epstein to enter into a non-prosecution agreement.

 

Melissa Murray Not going to lie, seems like a weird omission. If we’re bringing in all the people who are relevant here or simply had government positions in a period of time, might have included him. Just a little bit. One would think. One would thing. Notably, Alex Acosta also served as Secretary of Labor in the first Trump administration, although he resigned from that position in July 2019 amidst persistent questions about his handling of the Epstein case when he was the US attorney in Miami. The subpoena that was issued to the Department of Justice sets an August 19th deadline for the department to hand over its records on Epstein and Ghislaine Maxwell. That is Epstein’s imprisoned associate. So I guess we will see what will come from all of this. I’m sure it will be total and complete transparency.

 

Imani Gandy Oh, 100%. We’re going to find everything out about Epstein and Ghislaine Maxwell. No doubt. 100%. Okay.

 

Melissa Murray All right, that was a lot of news. And we didn’t even have time to cover the TikTok calico critters copyright lawsuit, which is wild. And honestly, listeners, you’ve got to look that one up. What’s up ahead for us, though? So having covered all that news, we’ve got good stuff for you now. We ate the vegetables. Now it’s time for dessert. So right up next, listeners is my conversation with Duke Law Professor Brandon Garrett about his recent book, Defending Due Process. Stay tuned.

 

Leah Litman [AD]

 

Melissa Murray Well, listeners, the second Trump administration has given us no shortage of legal news to cover. But, perhaps surprisingly, a good portion of the news that we have covered since January 20th, 2025, has actually involved principles that we thought were pretty well-settled. Among them, the notion that the government cannot detain you, deport you, or deprive you. Of some benefit without giving you the opportunity to be heard. As many of you know, in March, the Trump administration detained a number of individuals from student protesters to alleged Venezuelan gang members. And as the lawyers for those individuals maintain, these detentions occurred in the absence of due process protections, meaning that the individuals did not have an opportunity to challenge the government’s decision to detain them, nor did they have the opportunity to present evidence that would cast doubt. On the government’s rationale for those detentions. In an oral argument at the DC Circuit involving the detention of alleged Venezuelan gang members, Judge Patricia Millett of the DC circuit questioned the government neglect of standard due process protections. Let’s roll that tape.

 

Clip No, but the point here was that there were plane loads of people. I mean, it was also it’s a class action. There were planeloads of people, there were no procedures in place to notify people. Nazis got better treatment under the Alien Enemy Act and has happened here where the proclamation required the promulgation of regulations and they had hearing boards before people were removed. And yet here, there’s nothing in there about hearing boards. There’s no regulations. And nothing was adopted by the agency officials that were administering this. People weren’t given notice. They weren’t told where they were going. And they were given, those people on those planes on that Saturday had no opportunity to file habeas or any type of action to challenge the removal under the AEA. And like you’ve agreed that two of those airplanes, people were removed under the AEA.

 

Melissa Murray As importantly, Judge Mallette said the million dollar question out loud. Here she is again.

 

Clip The question is whether the implementation of this proclamation without any process to determine whether people qualify under it. I mean, if the government says, we don’t have to give process for that, then y’all could have put me up on Saturday and throw me on a plane, thinking I’m a member of Trendy Ragwa and giving me no chance to protest it and say somehow it’s a violation of the law. Presidential war powers for me to say, excuse me, no, I’m not, I’d like a hearing. He wouldn’t say that.

 

Melissa Murray That actually is the question. Do we still have due process? And if we’re not sure that we still do process, does that mean that the government can deport any of us without notice, a hearing, or any other kind of procedural protections? With that pressing question in mind, we thought it would be a good idea to talk to Brandon Garrett. Brandon is a leading scholar of the criminal justice system and constitutional rights. He’s also the L. Neal Williams Professor of Law, as well as the Founder and Faculty Director of the Wilson Center for Science and Justice at Duke University School of Law. And perhaps most relevant for today’s discussion, Brandon is also the author of a new book, Defending Due Process, Why Fairness Matters in a Polarized World. So Brandon, welcome to Strict Scrutiny.

 

Brandon Garrett Thank you. I’m so excited to be here.

 

Melissa Murray Well, we are so excited to have you because we wanted to talk about due process, whether it still exists and.

 

Brandon Garrett Right.

 

Melissa Murray If it’s been imperiled, why and what we can do about it. So let’s just level set a little bit for those in the audience who aren’t trained as lawyers. When we say due process, what do we mean?

 

Brandon Garrett Well, and to be fair to those of us who are lawyers, the basics of due process don’t actually come up that much in law school either, because we just assume that it’s in the background, that of course the government can’t just do totally random and arbitrary things to people. But that’s the idea, that the government shouldn’t be able to do totally random and arbitrary thing to people, and so the idea is you have a right to notice and an opportunity to be heard before someone who is impartial, before the government tries to take your life liberty or property away.

 

Melissa Murray And a big part of the Constitution, namely the Bill of Rights, is actually principally preoccupied with the whole notion of due process. So there is an actual due process clause in the Fifth Amendment. But a number of the other provisions in the Bill Of Rights, those are the first 10 amendments to the Constitution concern questions of due processes. So there’s the Fourth Amendment, prohibition on search and seizure, has real due process elements to it. These Sixth Amendment’s right to counsel, the right to a trial if you are… Being charged with criminal charges, the Eighth Amendment’s prohibition on excessive penalties. All of these things really focus on these core attributes of due process. So where did the framers get this preoccupation and how is it threaded through other parts of our legal tradition?

 

Brandon Garrett Well and so the due process clause is also a right that’s so important, so nice we said it twice. It’s in the Fourteenth Amendment because after the Civil War it was thought to be crucial to make sure that just like the Fifth Amendment says you can’t deprive people of due process as federal officials, after the civil war it was incorporated against the states. The due process Clause of the Fourteenth Amendment says state officials can’t take away life, liberty or property without due process. But due process was referenced in the Declaration of Independence. It was well understood by the founders that You cannot live in a free society if the government can take things from you, including your liberty, including your life, including your property, without some kind of a fair procedure, ideally and typically in court with a jury. Not always if it’s not a criminal case, for example, or if it not a civil right, but whether it’s public benefits or your job or are you gonna be detained, charged with a crime or held without a crime. All these things are understood to implicate due process. It came from an old English due process tradition. Over the centuries, the English courts had emphasized with more and more rigor over time that you just can’t have local officials or main government officials doing arbitrary things to people, that basically like, you can have police. That’s okay. But that doesn’t mean you have to live in a police state.

 

Melissa Murray Right. OK. So these are foundational principles, and they go back very far in our legal tradition, all the way back to the Magna Carta you point out in the book. Why then, if they are so foundational, are they now under threat?

 

Brandon Garrett So I talk about three reasons. One is due process in society. People don’t value due process the same way that our legal system does. And I have a lot of research on that. But it’s understandable that people sometimes want to just, you know, I want to be treated with fairness. But criminals, fraudsters, non-citizens entering our country, they shouldn’t deserve all the same rights. It’s very easy to other people and figure, like, they don’t deserve all these niceties. Like, sometimes we need to get results. And we can’t be occupied with everything playing out in court. Second is judges have eroded due process protections and weakened them in different ways over the decades. And third, I talk about the dangers posed by technology, including AI stuff, but also algorithms. We see this in lots of different settings. The government can do things not just to one person, but to hundreds of thousands of people with the push of a key.

 

Melissa Murray So one notion that you bring up repeatedly in the book is this idea of what’s known as Black-Stone’s Ratio. Yes. This is the idea that it is better for 10 guilty men To go free than for a single innocent person to be wrongfully charged and convicted. And this is sort of foundational. Blackstone, who was a giant of the common law tradition, said it. But as you note in the book, there are these cutting of corners, and people are like, actually, I’m really concerned that the 10 guilty people are going free, perhaps more so than I am, about the prospect of a single person being wrongfully convicted. Why is that?

 

Brandon Garrett Yeah, so Blackstone, English jurist, wrote his commentaries that, although Thomas Jefferson hated Blackstone. But, very interesting.

 

Melissa Murray But he liked other things.

 

Brandon Garrett But he liked other things, and in general there’s this idea that if you’re gonna convict someone of a crime, you have to be very, very careful. And so our Supreme Court has many times cited to Blackstone, and one of the ways that they do that, they say, why do we have a due process standard that you can’t convict some of a a crime unless you have evidence beyond a reasonable doubt? Why do we that very high bar to convict someone, jurors need a lot of evidence. They need to be almost 100% sure in a criminal case.

 

Melissa Murray And the prosecution has to establish their case to that standard, which makes it an uphill battle for the prosecution.

 

Brandon Garrett And they cite to Blackstone as part of that like it better to let 10 guilty people free That’s how sure we have to be If someone is going to be deprived of their liberty in a country that is a free country But that said so over more than a decade with my psychologist and lawyer friend Greg Mitchell We’ve done these studies. We surveyed about 15,000 people at this point Adults in the u.s. People eligible to be on juries Giving them mock jury type scenarios and we’ve asked them this question which error is more harmful to society convicting an innocent person or acquitting a guilty person or are they both equally harmful? And most people do not say, Blackstone ratio, convicting and innocent person, that’s the worst thing that you could do. That’s horrible. That’s a miscarriage of justice. Most people don’t say that all we care about is public safety and not freeing guilty people. Almost everyone, like two thirds of the people surveyed across over a dozen studies, over 10,000 people, closer to 15,000. Most people say both harms are equally serious. We care about due process, but we also care about the outcome, we care about public safety, we care both. And Democrats, Republicans, people of all ages, people of demographics, people in different parts of the country, this is just a very widely shared view. People care about both. And you see it play out in public debates. People do not want to see serious criminals going free, but they also don’t wanna see people arbitrarily arrested for no reason either.

 

Melissa Murray If they’re trying to hold these two things in equipoise, the safety of the public, as well as limiting the opportunity for wrongful convictions, why then are people more iffy on the whole idea of due process? It does seem that public safety often predominates in these discussions, not this idea that we’re trying to hold those two things imbalanced.

 

Brandon Garrett I think it’s very easy for people to just assume, especially if they’re told it, that this is zero sum. Like, look, if you wanna be safe in your community, we gotta lock them up. And if we don’t lock them, that you’ll be unsafe.

 

Melissa Murray So like if someone comes on TV and tells you that they’re sending not their best people, they’re setting the rapists, the criminals, like you might legitimately think that individuals from other countries pose a threat to public safety and you might be willing to cut some corners on due process for those individuals.

 

Brandon Garrett I think people view it differently if they’re told, oh, by the way, if you convict an innocent person, not only is that horribly unfair to that innocent person but the guilty person now can act with impunity. They know they’re never gonna get punished. It’s actually both bad things just happened. You’ve harmed public safety and you’ve harmed someone’s rights in a horrible way. It’s not zero sum. That’s the reason why we have Blackstone’s ratio. Both bad things happened. If you’re doing things arbitrarily, you’re gonna harm public safety and you’re going to harm people’s rights at the same time.

 

Melissa Murray And you’re gonna erode trust in the justice system if you’re doing that sort of thing. People aren’t going to believe that the justice system is fair if we don’t actually have due process.

 

Brandon Garrett Yeah, and if you care about public safety, the people who actually are harmful, why would they think that they’re going to get punished if innocent people are getting punished? It’s going to be bad in both respects. And I talk in the book about examples where this has happened, where we’ve actually implemented better due process protections and people are worried, is this going to too expensive, we’re going give lawyers to people at bail hearings, lawyers are expensive, and we’re just going to free more people from jail and there’s going be more crime. Instead, what we found is providing those due process protections actually help them and reduce crime. Fewer people in jail and less crime, both good things happened. It was not zero sum at all.

 

Melissa Murray You mentioned bail very briefly. I wanna come back to the whole question of cash bail as well as the broader apparatus of fines and fees that often occur in the context of civil kinds of charges. They’re not criminal necessarily. They’re just sort of like traffic tickets or parking tickets or things like that. That as you know in the book have real consequences for due process. And this actually has been an issue that has. Gained a lot of traction over the last couple of years. In the book, you mention the case of Damian Stinnie, who is a Virginia man who was literally so overwhelmed by the fact of a number of parking tickets that just sort of increased and escalated and basically made it impossible for him to have a driver’s license, made it possible for him to have job, keep a job, all of these things. He was one of these activists, or in his name, activists managed to get the state of Virginia to do away with the imposition of those kinds of traffic fees. And, interestingly, for longtime strict scrutiny listeners, the Supreme Court in this term addressed a case involving the question of attorney’s fees in circumstances where you had a situation where a state of its own volition removed. The whole question of this apparatus of fines and fees, whether that was a win for purposes of the imposition of attorney’s fees. That case was Lackey versus Stinnie. The Stinnie was Damian Stinny. So, again, lots of connections to the court, although not necessarily a direct one. But as you note in the book, fines and fee and cash bail have been a huge issue for due process. Can you say more about that and how the weight of these likely, for some people… Not that consequential set of obligations, but for others, an absolutely crushing set of obligations that absolutely overwhelms them.

 

Brandon Garrett Well, just like we can have public safety, we can police without living in a police state, we can prisons and we can sometimes jail people for committing crimes without having debtors prisons, without putting people in jail or in prison just because they’re too poor to pay. And it had been the case that in almost every state, if you couldn’t pay a traffic ticket, oh, failure to comply, your license is taken away indefinitely. There have been a number of different jurisdictions around the country where people who couldn’t pay the fees for. Probation supervision you have to pay for your own supervision you don’t pay the fees back in jail and the Supreme Court has said from time to time over the years that wait a minute no someone should not be deprived of liberty just because they’re too poor to pay like you have to do an inquiry but these these systems seem to metastasize people like Damien Stinnie cannot use they can’t afford their own lawyers if they couldn’t afford a 70-dollar traffic ticket they can hire a lawyer and so unless a civil rights firm steps in and helps them these things will go on. You know, local governments seem to think sometimes that, well, you know, we’re gonna make a lot more money off of these tickets if we have a big stick, if people have to pay their tickets, they have to borrow, they’ll do anything to pay the ticket because otherwise we’re going to take their driver’s license away forever. In many states, even like, okay, so serious DUI, serious, you now, vehicular manslaughter, your license will be taken away as a punishment for a year or six months. But if you can’t pay $70 for a ticket, indefinitely, it’ll last forever. And many, many courts have not viewed this the way that the court did in Virginia, which led to that law being struck down under due process and then the legislature got rid of it. Some courts have taken this very formalistic approach and we need the Supreme Court to step in and do something about this. Some courts said, well, if in theory on paper there’s a way to ask the judge to consider your poverty, even if judges never ask those questions, never tell anyone of those rights, no one ever is told of the due process. If it’s on paper, maybe that’s good enough for procedural due process, and that’s another reason why these systems have exploded around the country. In my state of North Carolina, more than one out of 10 adult drivers have an indefinitely suspended driver’s license. Wow. Just huge numbers of, some communities, 50% of adult drivers don’t have a license.

 

Melissa Murray Another focus of the book is the role that technology can play in cultivating the conditions under which due process might be curtailed. Can you say a little bit more about technology and in particular, how do you think AI is going to shape the field and this whole question of due process in conjunction with algorithmic justice?

 

Brandon Garrett Yeah, so we’re hearing more and more calls to improve government by bringing in AI so that we can like detect fraud or detect dangers. But there’s a history of that and it hasn’t gone well. And there have been due process cases which have exposed some of the problems with AI, which is black box meaning we don’t know how it works, the developers themselves may not know how works. A lot of people assume because AI can be useful and we’ve… Many people have played around with ChatGPT, and wow, the machine seems pretty smart, that machines can detect patterns that we can’t, which is true, and so we should use AI, it’s valuable. But there are just terrifying cases where off-the-shelf systems were used. They’re currently being used in facial recognition. They’ve been used to demote or fire teachers. They’ve used to flag people and take away their healthcare. And if the system is a black box and no one knows how the developer. Did it that even the developer may not know how their machine came up with its code then how do you know why was your health care shut off? You’re at the hospital and all of a sudden you get a fifteen thousand dollar bill well the computer flagged you. How? And how can you meaningfully challenge that if you have no if no one knows why the computer flagged you? Or if you lose your job or you’re demoted, you’re a poorly performing teacher. Why? I’ve got no words for my teaching. Well we can’t tell you the computer flagged. Or the computer flagged your face. It says, you’re the one who held up the convenience store. I’m innocent. How did the computer flake me? Can’t tell you, it’s a black box. That’s the problem. The due process is just incompatible. If the system can’t tell what it did, then we shouldn’t be using it in court. But these systems have been used by the government and have been in court, and courts are only slowly grappling with the challenges to due process that these technologies pose.

 

Melissa Murray One of the things you talk about in the book, Brandon, is the political climate in which demands for due process may arise, or demands to do away with due process, may arise. So we’ve seen this before in the context of 9-11, the immediate wake of 9 11, where in the name of public safety and fighting terrorism, some people thought that maybe we should be a little more free and loose with due process protections. I think we’ve also seen this in the context of the Me Too movement. In the heat of trying to hold individuals credibly accused of sexual assault to account, there’s been discussions of maybe doing away with the more robust aspects of procedural due process. How do we maintain a fidelity to these principles in a political climate that shifts and moves in its dynamic and where the demand for due process may wax or wane?

 

Brandon Garrett I do think that people really want to be treated fairly and it’s easier to appreciate due process if you see yourself in the situation. I mean, it’s certainly like, if you get a traffic ticket, you don’t want to lose your license indefinitely. You want a fair chance to either pay the ticket or contest it if it happens. It’s one reason there’s been so much movement around the driver’s license suspension stuff. A lot of people drive. A lot people can relate to it. People remember what it was like to be a student. Did I go to a protest as a student? Because I was caught up in the issue for the day. I may not have even known what the protest was about, but I thought it was interesting. I wanted to hear what people were saying. It’s much harder to value due process when it’s someone accused of something that you think is really despicable. And that’s when it is most important. As criminal defense lawyers, we get that. Like some criminal defense lawyer’s clients are people that are widely deplored. And that is when the protections really, really matter. That’s the challenge. Like people care about fairness when it applies to us. But from the third person’s perspective. Do we care more about process, or do we care about cutting to the chase, cutting to outcome? We don’t know, it makes it harder. I’d also say, I mean, the phrase rusted judgment is really important. It’s really tempting to rush to judgment when you see someone who you think did something terrible, and you’re kind of like, why do we have to wait? Why can’t we just do something about this right now? And that’s what courts and lawyers are for. I talk in the book a little bit about Oppenheimer. Who was deprived of a security clearance. And lots of people watched the movie. It was a really gripping movie, really about due process because you’re not always entitled to a trial. It wasn’t a trial, it was a hearing before this security board. But you’re entitled to notice. He got noticed, we’re gonna take your security clearance away because we think you’re a communist. He had a chance to respond, but it wasn’t impartial. The hearing board was stacked with people who were out to get Oppenheimer. And that’s considered now a great stain on our country’s legacy. Like there have been public apologies. But during that time, did people think at the height of the Cold War, like, were they shedding tears over, you know, just someone’s security clearance? It ended his career though. And now actually, like, security clearances, federal jobs, public benefits, there are all sorts of situations which don’t involve deporting people, putting people in jail, jailing people which nevertheless affects people’s lives in dramatic ways. And you’re not always entitled to a trial. But a kangaroo court hearing within an agency that takes away someone’s clearance, that can damage someone’s life, their life’s work, their reputation.

 

Melissa Murray And deprive us of their life’s work. I mean, we were deprived of whatever Robert Oppenheimer was going to do in the later parts of his career.

 

Brandon Garrett And so in some ways, I think people know about wrongful convictions and understand why that’s a miscarriage of justice. We’ve seen DNA exonerations in this country many times. But the hope is we need to focus on these lower level things, the bail hearings, the national security clearance hearings, the welfare hearings, Medicaid, these systems that take away lots of things from lots and lots of people. And yet, it’s not like courtroom drama.

 

Melissa Murray I should note, the book is not all doom and gloom. You actually offer some very hopeful prescriptions for how we can strengthen due process commitments and firm up our own commitments to due process and making that explicit. Can you talk a little bit about some of these prescriptions and specifically, can you tell our listeners how they as ordinary people out in the world can bolster due process protections right now?

 

Brandon Garrett Ending zero-sum thinking helps. Just in your own mind, when you think about how people might be rushing to judgment, like even just stepping in saying, like, let’s see what the evidence is, let’s wait to see what evidence is and let’s test that in a real hearing, a real court. Let’s not prejudge, it’s so easy to prejudge when you hear about terrible conduct. Insisting on due process in your personal life is a good thing and it might cause you to listen to people you disagree with more. But there’s also the zero-some thinking where like, we shouldn’t be paying for trials for lawyers. It’s too costly. We have to, we need results in this day and age. In fact, we do technology. Let’s just let AI decide who committed fraud or who should be put in jail based on their risk or let AI decided if that’s the person’s face. We should be resistant to all of these things. And there’s a lot of evidence that due process doesn’t cost much. Lawyers are actually pretty cheap compared to the cost of jailing people for weeks, months, years, detention facilities. Really really expensive they’re talking about you know what billions of dollars it will cost to to ramp up immigration detention in this country’s local jails incredibly expensive and if you’re holding people in these places if you’re taking away people’s drivers licenses turning from detention to things that affect people in the civil side people can’t get to work it’s enormously costly to the economy people can take their kids to school or they’re afraid to they’re are afraid to go to the doctor like these are these are a drag on people’s lives cutting off people’s Medicaid benefits. If they’re eligible, they will reapply and they will get it again, but they may get medical debt in the meantime. It’ll be really expensive to have to process people again, like just keep them on Medicaid, they’re entitled to be on it. So we shouldn’t be spending money on violating people’s due process rights. It’s costly, it’s unfair, and we can be a better society if we dig into fairness. I hope, I feel like we’ve learned those lessons the hard way many times before and we may be about to learn them again.

 

Melissa Murray Excellence over efficiency or undue efficiency.

 

Brandon Garrett Yeah, you know, the process really does matter, and the process may be technical, may sound technical, notice, opportunity to be heard, but this is about giving people a fair shake before the government does something to them. I think that is something, actually, that we can all relate to.

 

Melissa Murray Brandon Garrett, the book is terrific, it is urgent, and it is both maddening and hopeful. So thank you so much for the opportunity to talk about it. The book is called Defending Due Process, Why Fairness Matters in a Polarized World. It is timely, important, and most importantly, it is available wherever you get your great reads. So hop down there and get one today. Thank you. Thank you Thanks so much to Brandon Garrett for that terrific conversation, lots to think about in a moment where due process has never been more important and more urgent. Just after this set of commercials, we’re going to have another fantastic book conversation. This time, Leah is going to be speaking with her Michigan colleague, Richard Primus, about his fascinating new book, The Oldest Constitutional Question, Enumeration and Federal Power. That is up next.

 

Leah Litman [AD].

 

Leah Litman For this segment, I am delighted to be joined by my colleague Richard Primus, the Theodore J. St. Antoine Collegiate Professor of Law at the University of Michigan Law School. We’re going to be talking about his new book, The Oldest Constitutional Question. Welcome to Strict Scrutiny, Richard.

 

Richard Primus Yeah, I’m delighted to be here. Thanks for having me.

 

Leah Litman Of course. So I didn’t want to spoil the surprise by revealing what the oldest constitutional question is by summarizing the book. So could you tell us what is the oldest constitutional question that your book is about?

 

Richard Primus Sure, so the oldest constitutional question is how to divide power between the national government and the states. The traditional answer is that it’s a matter of the enumerated powers of Congress, right? The constitution enumerates a bunch of congressional powers and the orthodox view is that Congress can exercise only those powers, everything else is left for the states

 

Leah Litman So by enumerated, just for our listeners who might not have gone to law school, you’re referring to mostly Article 1 Section 8, which is Article 1, the section of the Constitution that deals with Congress. Article 1 Section 8 says Congress shall have the power to, and then lists out a bunch of powers. Just to kind of frame that.

 

Richard Primus Yeah, Article 1, Section 8 has 18 clauses. All of the clauses list congressional powers. Strictly speaking, the Constitution doesn’t enumerate the powers. Strict speaking, that would mean the powers are numbered. They’re not actually numbered. We use it metaphorically to mean something like listed in the text. The big bulk of them is in Article 1 Section 8. And then there are a bunch of them scattered elsewhere through the document.

 

Leah Litman Yes, OK, so the full title of the book is The Oldest Constitutional Question, Enumeration and Federal Power. I didn’t read it to give it away. But this issue, what enumeration means, the scope of Congress’s powers, the balance of power between the national government and the states has come up in several significant cases, some quite recent. And one of those cases is kind of my origin story in some respects. So Richard, could you tell us? When did this idea about what it means for the federal government to be a government of enumerated powers come up? And maybe we can start with United States versus Lopez and the issue there.

 

Richard Primus Sure, Lopez is a great place to start and sometime I’d like to hear how it’s your origin story case.

 

Leah Litman Not Lopez, the one we’ll talk about next is my urgent story.

 

Richard Primus Lopez was a landmark decision in which the Supreme Court struck down the Federal Gun-Free School Zones Act of 1990, that the act prohibited the carrying of firearms within a thousand feet of the schools, subject to a bunch of exceptions, but basically prohibited the carrying of fire arms near schools. And the government defended Congress’s authority to enact the law by saying that it was part of Congress’s enumerated power. To regulate commerce. The third clause of Article 1, Section 8 says the Congress has the power to regulate commerce among the several states. And for more than 50 years, there had been a broad understanding of the commerce power, under which anything that, in the aggregate, affected interstate commerce could be regulated by Congress. So really, that means, at the very least, any purchase and sale of goods. Because even though my sale of a tomato to you doesn’t affect the market for tomatoes, if you multiply it by everyone else in the country who’s selling tomatoes to everyone else in the county, you’ve affected the market interstate. And the government said, in this case, that violence in schools, considered in the aggregate, affected commerce. And as an empirical matter, that’s obviously true, right? It forces schools to spend money on security and that affects the market for security personnel and equipment. It affected insurance rates, which is also an interstate market and so on and so. But the court majority was skeptical.

 

Leah Litman And I guess why are they skeptical or what was the anxiety?

 

Richard Primus The anxiety is, everyone knows, right, this is Con Law 101, that the enumerated powers are supposed to be limiting, that the point of having the powers written out in the Constitution’s text is to limit what Congress can do and leave a bunch of other stuff for the states. And the worry was, if the commerce power is really broad enough to cover things because they are, reachable, if in the aggregate they affect interstate commerce, then pretty much everything people do would be affected by interstate commerce and would be within the reach of the commerce clause. Now that still wouldn’t mean that congress can do anything, congress can’t establish religions, but it would mean that unless there’s some affirmative prohibition, congress could reach pretty much everything with its enumerated powers and that can’t be right.

 

Leah Litman Right. So you can hear that particular anxiety and this intuition that, of course, it has to be that enumeration and the scope of those enumerated powers can’t allow Congress to do everything in these questions from Justice O’Connor as well as Chief Justice Rehnquist.

 

Clip If this is covered, what’s left of enumerated powers? What is there that Congress could not do under this rubric, if you are correct?

 

Clip Well, what would be an – if this case is – if Congress can reach under the interstate counters bar, what will be an example of a case which it couldn’t reach? Well, Your Honor, I’m not prepared to speculate. Generally –

 

Leah Litman As I previewed the case, I was referencing, as part of my origin story, National Federation of Independent Business versus Sibelius, the constitutional challenge to the Affordable Care Act. So I have talked some about how my time at the Supreme Court spawned this podcast. I clerked both at the supreme court and at the US Court of Appeals during years when those courts heard these challenges. So Richard, how did this enumeration anxiety come up in NFIB?

 

Richard Primus So in NFIB, the question was whether there would be anything that Congress couldn’t reach with its enumerated powers if those powers were sufficient to authorize the individual mandate of the Affordable Care Act. The individual mandate required people to carry health insurance. And the critics of the law said, wait a minute, these people aren’t engaged in commerce at all. You’re saying that this law is valid because It’s a regulation of the market for health care, and we understand that health care is commerce, but if you can dragoon people into the market for commerce by telling them that they have to buy something, you could use the commerce power to regulate pretty much anything that people do. It’s again, hard to think of what would be beyond the commerce powers categorically if this were permitted.

 

Leah Litman So you can hear that concern reflected in this question from Justice Kennedy.

 

Clip Then the question is whether or not there are any limits on the Commerce Clause. Can you identify for some limits on a Commerce C clause?

 

Leah Litman And then this prospect of the federal government being able to require people to engage in commerce and the implications of that theory was thought to tee up the dreaded broccoli hypothetical, which you can hear Justice Scalia spin out here.

 

Clip Could you define the market? Everybody has to buy food sooner or later. So you define the market as food. Therefore, everybody’s in the market. Therefore you can make people buy broccoli.

 

Leah Litman So, Richard, you’ve already alluded to this idea that the fact that it’s a list leads people to think, well, the list can’t include everything. But why do people think there has to be something that Article 1 or the Commerce Clause in particular or the combined set of Congress’s powers doesn’t authorize Congress to do?

 

Richard Primus So there’s a complicated set of reasons. It’s not just one thing, it’s a whole way of thinking about the Constitution. And with a tip of the hat to Wisconsin’s David Schwartz, we can call this way of think enumerationism. Enumeration is not a single proposition, it’s bundle of things that travel together. So first is the idea that Congress can only do things that are enumerated and where that idea comes from the fact that there is a list which creates that intuition, and also a traditional understanding of the founding on which the founders were very keen to limit the federal government. They were worried about making a federal government that was too powerful. And so they adopted the mechanism of enumerating the things that Congress could do specifically in order to limit Congress. And there’s a canonical origin story here, that most of us know. That says that the framers initially did not include a bill of rights in the Constitution because they trusted the enumeration of powers to do the necessary limiting work. In fact, they didn’t want to include affirmative prohibitions like no laws establishing religions or abridging free speech because that would give people the wrong idea about the Constitution. The right idea was the limit is built into the fact that Congress is only allowed to do these things. And that origin story and that sense of what the Constitution is for, and then a bunch of other things built up on top of that, have created this sense that, of course, the enumeration must be limiting.

 

Leah Litman OK, so now I want to shift to what this account gets wrong. So maybe we can tick through just a few of the different kinds of sources and constitutional argument that you analyze. So can we start with text and structure? I think that’s related to this question of, what’s the point of enumerating congressional powers if not to limit what Congress can do?

 

Richard Primus Yes, because the thesis of the book is that enumerationism is a flawed way of understanding the Constitution. These propositions aren’t facts about the Constitution, they’re the way the Constitution might look if you looked at it through a particular lens, and it’s a distorting lens. So, for example, the 10th Amendment does a lot of work here. The 10th amendment says the powers not delegated to the United States. Are reserved to the states or to the people. This is conventionally read as if it contained the word enumerated where it contains the word delegated. But it doesn’t. The 10th Amendment doesn’t say the powers not enumerate in this document are reserved the states. It says the power’s not delegated by the Constitution. Powers can be delegated expressly or implicitly. And this language doesn’t decide between those two things. In fact, the Congress that proposed the 10th Amendment beat back two separate attempts to include the word expressly before delegated. That doesn’t tell us that delegated in the 10 amendment means expressly or implicitly, but it tells us that people at the time understood that it could bear the broader meaning. And that Congress rejected the attempt to confine it to the narrower meaning. So although we think of the 10th Amendment conventionally as standing for the proposition that Congress can exercise only its enumerated powers, the text actually doesn’t say that. We read it to mean that because we think we know that that’s supposed to be the right answer and the text says something sort of like it. So we make the text say that, similarly, the opening of article one. The vesting clause of Article 1, Article 1 Section 1, says, all legislative powers herein granted shall be vested in a Congress of the United States. And since the 1990s, there’s been a very powerful school of thought that reads that also as confirmation of the idea of enumerationism. People say, look, the Constitution doesn’t say, Congress has legislative powers. The Constitution speaks of the powers here in granted. That tells us that the only powers Congress can exercise are the ones that are expressly written here. Here’s the problem. That reads the text as if it said, only the powers herein granted are vested in the United States. And it doesn’t say that. It says all legislative powers here and granted are vested the United states, which might mean these and also others. But we have learned conventionally to ignore that possibility. Because we think the answer is supposed to be that Congress can exercise only its enumerated powers.

 

Leah Litman So related to this, we think we know the answer. I kind of wanted to shift to the historical account, which you gestured toward earlier, which is we think that enumeration was a device to constrain a federal government that the framers ratifiers were concerned would run amok. So I appreciated in your discussion of the text and structure, you weren’t saying that the 10th amendment or the vesting clause necessarily means Congress could conceivably. Exercise any power that isn’t explicitly prohibited and your approach to the history is similar. But could you tell us a little bit about why the conventional historical account, which is enumeration is a device to limit powers and that kind of bolsters this interpretation of the text is incomplete, at least.

 

Richard Primus Yes, because the history is profoundly ambiguous, right? Let’s start with something that’s not ambiguous. The Bill of Rights story. That’s a fable. It never happened. Here’s what I mean. During the ratification debates, prominent Federalists, including Hamilton in Federalist 84, argued that the reason the Constitution didn’t have a Bill of rights was that it was built to use the enumeration as the constraining mechanism. Constitutional culture takes that as a sincere explanation. Contemporaries did not. There’s very little evidence that anyone at the time was persuaded that that was really the reason why there was no Bill of Rights. In fact, anti-federalists started baiting federalists during the ratification debates to try to get them to repeat this argument because it was so transparently a lousy argument that they thought the more they could get the federalists to make this argument, the more people would think that they shouldn’t trust the federalist. Because the argument made no sense and was understood at the time to make no sense. The Constitution already contained a bunch of prohibitions, no bill of attainder, no ex post facto law. So it didn’t really make sense to say we shouldn’t have any affirmative prohibitions. And it was really obvious even at the times that if you were concerned to prevent a government from being too powerful and you were going to limit it by enumerating its powers. You wouldn’t give it the power to tax and the power to raise armies, right? That’s plenty enough for the national government to be oppressive. So it seems that the federalists who argued that’s why there’s no Bill of Rights fooled the future, but not their contemporaries. The better view of the founding goes something like this, I think. The basic project of the Philadelphia Convention I know. Was not limitation, it was empowerment. The problem they went to Philadelphia to solve was that they had a national government that was much too weak, right? It governed too little, not too much.

 

Leah Litman That was the Articles of Confederation.

 

Richard Primus Yes, the basic problem with the Articles of Confederation was that it produced a government that governed too little, not too much. So they went to Philadelphia to create a stronger national government. And the enumeration, like so much else about the Constitution, was fundamentally a device for making sure that the new government would be powerful enough. Think just common sensically, why would you put a bunch of powers in writing It’s not implicitly to rule out things that are not on the list, it’s to make sure that the things that are on the list are ruled in, right? Get your authority in writing. Understood that way, the enumerated powers might be the floor and not the ceiling of what Congress can do. And there were a lot of people at the Philadelphia convention. And in the ratification debates who thought of the enumeration that way. Not everyone. There was disagreement among the founding generation about how powerful the federal government should be and the framers wrote a constitution that neither said and by the way this is the floor, nor and by the way these powers are all there are. But it’s quite clear that the major project was empowerment. That it makes sense to enumerate a list of essential powers if the goal is to create a more powerful federal government, and that there were important architects of the Constitution who understood those powers as a floor and not a ceiling.

 

Leah Litman So another line that people often point to that relates to this enumerationism is the famous words of Chief Justice Marshall, enumoration presupposes something unenumerated and people like to invoke that as a basis that Congress doesn’t under its enumerated slash delegated powers or the commerce power have the ability to regulate everything. So what have we gotten wrong about that line.

 

Richard Primus So much! So, John Marshall did say this, right, in the great case of Gibbons vs. Ogden, the steamboat case. He wrote, the enumeration presupposes something not enumerated. The first problem is he wasn’t talking about the enumeration of federal powers. He was talking about enumeraion within one clause of Article 1, Section 8, within the Commerce Clause, actually, which enumerates three kinds of commerce. Commerce among the states, commerce with foreign nations, commerce with the Indian tribes. And he was arguing this enumeration implies that there is also some other kind of commerce other than these three. And he made an argument about that. Now, you might think, OK, fine, Richard, but that’s a trivial distinction, right? He’s still arguing that enumerations presuppose things not enumerated. His argument would work just as well if you applied it to the set of congressional powers as a whole. But that’s not true, right. We all know. Some enumerations presuppose things not enumerated, and some do not, right? There’s no iron law here. I’m a big fan of the Arnold Lobel children’s stories about Frog and Toad. There’s one called A List on which Toad writes a list of the things that he’s going to do today, and then faces all kinds of problems because he didn’t write down things like go to sleep at the end. A list of things that you’re going to do today might not contain everything that you are going to do today. You might write a grocery list and get to the grocery store and buy something else that you didn’t put on the list. Whether any particular list is meant to be exclusive depends on facts about that list and not simply is something that follows from the fact that there is a list.

 

Leah Litman So having marshaled at least some of the case against enumerationism, I have to ask, do you think you can convince the Supreme Court or you would convince the court if enough people sent them this book?

 

Richard Primus Not a chance, not a chance. No, no, no. Enumerationism is a deeply entrenched element of faith in the way that the present generation of constitutional lawyers thinks about constitutional law. I learned it as a 1L, you learned it as a one L, all the members of the current Supreme Court. Learned it as one else. It’s deeply embedded in our constitutional culture. And justices of the Supreme Court are, you know, fully grown adults with fully formed worldviews. And I don’t think that books like these by law professors change those worldviews all that much.

 

Leah Litman I really hope Sam Alito would radically change his worldview when he read mine, but I take the point.

 

Richard Primus Well, your book is different from mine, Leah. You may have more success than I, but I am a little bit less ambitious, or, well, maybe not less ambitious. Or deluded. Well, differently ambitious. I would say this. For the present generation, I would like to induce doubt. I would, if I can’t get people to give up enumerationism. I would at least like thoughtful people who learned numeration and think it makes sense to confront something that makes them say, you know what? Maybe this isn’t the only way of looking at it. Maybe there are limits to this view. And I think that’s really important because since I think the numeration ism has the tendency to be destructive, it makes a big difference whether people in power think enumerationism as a fighting faith that must be upheld at all costs or something that I kind of think, but that I’m willing to balance against other reasonable things because I shouldn’t be too sure. And then the larger ambition is for the future. If I can persuade enough people in the present to think of enumerationism as just a lens for thinking about constitutional law rather than the real truth, and as a flawed lens and that there are better lenses, then maybe the next generation of people who learn constitutional law we’ll think about it differently and we might get change over time.

 

Leah Litman So can I ask you to elaborate on that last point just for a little bit as a final question? Because I think oftentimes when people learn more about what is happening at the Supreme Court, they become despondent. And they think, what can I do? Because the justices aren’t going to listen to what I say, even if I have very persuasive arguments. And so if it’s not about convincing the Supreme Court, what does the process of affecting change, constitutional change, look like? Or how does it work?

 

Richard Primus It works over a long-term. I mean, believe me, I know the frustration that you’re describing. I remember when I clerked at the Supreme Court, several weeks into the term, there was a case that I worked on and I thought I understood the case really well and I really understood what the better arguments were and my side lost the case. And when it was over, I thought… We didn’t lose the case because the other side has better arguments. That’s not what happened. We just lost the case because there are more of them than there are of us on this issue. It’s frustrating, right? But you need to come to terms with it because there’s no system in which you win all the time.

 

Leah Litman This podcast is my way of coming to terms with it.

 

Richard Primus Yeah, right and like and like in the present environment where like people with views like your views and like my views lose an awful lot It’s especially frustrating and um and in a large way like there’s a republic at stake here, right? The thing is positive constitutional change happens over a long period of time like imagine that we were constitutional lawyers not in 2025, but in 1925. And we thought, you know, Jim Crow is a really big problem. There’s formalized segregation throughout much of this country, and it’s unjust, and it contravenes what we understand to be the best reading of what the Constitution already requires. Why can’t we get the courts to see anything here? And if we thought in terms of what we can convince people now or next year or even five years from now, we would be despondent. Change came. It took 30 to 40 years from that point. But part of the process of bringing about that change over a long period of time was that people kept making arguments. They kept showing the logic of a better way of thinking. They kept arguing about the weaknesses of an existing way of and you persuade some people, and you persuaded some more people, and you persuades some more and you win some elections, and you appoint some judges, and you change the way lawyers are socialized, that happens over a long period of time.

 

Leah Litman So Richard, thank you so much for joining us. Listeners, the full title of the book that you should, if not send to all of the Supreme Court justices, then send to, all of the young lawyers who need to be socialized in this deeper understanding of federal power is, The Oldest Constitutional Question, Enumeration and Federal Power. Again, Richard, thanks so much joining.

 

Richard Primus Thanks for having me.

 

Melissa Murray All right, many thanks to Richard Primus and Leah for that really insightful conversation. I know I feel better about the status of the oldest constitutional question, and I hope you do as well. Before we take off, it’s time for my favorite segment, Imani. It’s called Favorite Things. This is where we review and recommend the books, shows, meals, whatever. That brought us joy over the last week. So I want to invite you to give us some of your favorite things, but to give you a moment, since I’m springing this on you at the last minute, I’ll go first, so you have some time, okay?

 

Imani Gandy Sounds good.

 

Melissa Murray So my favorite thing this week was vacation. I’m not going to lie, vacation is now one of my absolute favorite things. I went to Dubrovnik and Rome, and it was glorious. Dubrovnic is an absolutely gorgeous city, the pearl of the Adriatic, lovely people, beautiful beaches, and Rome. What can you say about the eternal city? I literally ate my weight in Cascio e Pepe. And I don’t even like pasta. I don’t even eat pasta in this country. I was eating it like it was my job in Rome, and it was truly fantastico. Also, as some of you might know, 2025 is a Jubilee year, which is when Catholics are encouraged to make a pilgrimage to Rome to confess their sins and process through the four holy doors, which are doors of four prominent basilicas in the city of Rome. And so our trip not only coincided with the Jubilee, It coincided with the Jubilee’s youth week, and Rome was literally flooded with young people, young Catholics from all over the world who were making their pilgrimages. And they were so lovely and warm, and they would just spontaneously burst into song. It was like the von Trapps were everywhere. They just start singing, and they would occupy different parts of the city depending on what country they were from, so. All of the Spaniards and the Portuguese would be at the Spanish Steps and they’d be singing these Spanish songs. I mean, it was just really lovely and they were fantastic and the energy was really great and the weather was fantastic. While I was gone on this vacation, I managed to read some books, some no opinions. The first book I read was Tom Lake by Anne Patchett. And just going to say, this was a recommendation from Justice Elena Kagan. Not to me personally. I don’t have a personal relationship in that way. With her, she made this recommendation at her 2024 address at the Ninth Circuit Judicial Conference. And she specifically recommended that the audience listen to the Tom Lake audio book, which is read by Meryl Streep. So I took her advice. I did download the audio book and I listened to it. It was really good. Meryll Streep was wonderful. But on this vacation, I happened to come across an actual physical copy of the book Tom Lake, and I just started reading it. And even though I know the story, I thought the book was even better than the audio book. It was just so beautifully written. The characters are memorable. I almost felt like maybe my voice was better than Meryl Streep, at least in my own head. Sometimes that happens. And the book is truly first rate, highly recommend. I also read The Midnight Library by Matt Haig, which was a recommendation from some of you listeners and it was a great recommendation. Really wonderful, thought provoking and engaging, even on vacation. And now that I’m back in the country, I’m Back to reading all of the papers and the news, as you saw from this long ass episode of news. And I want to recommend two pieces from the New York Times. The first is Yale Law Professor Justin Driver’s review of William Chatterton Wilson’s recent book, The Summer of Our Discontent, which considers the cultural impact of the George Floyd killing in the summer of 2020. Driver’s review is titled How the George Floyd Protest Changed America for Better and Worse. And it is sharp, critical, and unsparing in its uncount of the many things that Driver thinks that Wilson overlooked. I think Justin Driver is a terrific writer, an amazing wordsmith. And this review makes that so clear. I will be using the phrase, drive by approbria as often as I can going forward in the next couple of weeks. So be prepared for that. And the second piece I want to recommend is Jamal Bowie’s The Death of the Fourth American Republic, which focuses on the Voting Rights Act at 60 and its role in actually making America a democracy, as well as the role of President Trump and John Roberts in their mutual efforts to unmake the Votting Rights Act and its legacy. It is urgent, timely, and a must-read. All right, that’s a lot of stuff. But I was on vacation, so I did a lot reading. It was great.

 

Imani Gandy I was going to say your favorite things are just way more interesting than mine because mine is like palisade peaches.

 

Melissa Murray Oh!

 

Imani Gandy It’s stone fruit season in Colorado right now.

 

Melissa Murray I love that! Okay, what are Palisades Peaches?

 

Imani Gandy They’re so good. They’re just from this particular area in Colorado. And I’m telling you, and I apologize to any of your listeners who are from Atlanta, they are better than Georgia Peaches.

 

Melissa Murray Oh, stop.

 

Imani Gandy They are better.

 

Melissa Murray Oh, Stop.

 

Than Georgia Peachess. And you can just drive around. People are selling them on the side of the road. I was driving around with my parents and the Rockies and literally I saw a stand and I was like, U-turn. Everyone was like AHHHH as I made this dramatic u-turn.

 

Melissa Murray I’m going to call Jared Polis up and like, find me 11,000 Palisade peaches.

 

Imani Gandy Yeah. OK.

 

Melissa Murray I mean, they’re so good. What makes them so… Are they just sweeter?

 

Imani Gandy They’re really sweet, they’re really juicy. Some of them are like this big, they are huge. They’re like eat over the sink peaches, right? You just have to eat it over the-.

 

Melissa Murray Are they white flesh or yellow flesh?

 

Imani Gandy Yellow flesh.

 

Melissa Murray Interesting.

 

Imani Gandy And they make an amazing cobbler. I made the best cobblar last week. Oh, I do love cobblor. Don’t even understand. How do you-

 

Melissa Murray How do you take the skins off? How do take the skin off?

 

Imani Gandy Um, you blanch them, basically. Do you blanche them and put them in an ice bath? Yeah. Blanche them, put them into an icebath, peel the skins off, bing, bang, boom. It’s so easy. It’s easy.

 

Melissa Murray Okay. I’m writing that down.

 

Imani Gandy Another thing I’ve been doing, I don’t know if you remember the show Revenge Oh, yes, with Emily!

 

Melissa Murray Oh yes, with Emily, what’s her face?

 

Imani Gandy Emily Van Camp.

 

Melissa Murray With Emily Van Cam? Yes.

 

Imani Gandy Yeah. So my girlfriend has been watching it, so she started me watching it. So now we’re both watching it in different areas of the house.

 

Melissa Murray Oh wait, Madeline Stowe, too, is in that.

 

Imani Gandy Madeline Stowe, yes, and Henry Zerny, who was in like the earlier Mission Impossible movies, who’s really good as like just a nasty white guy, nasty rich white guy. I just love treacherous rich white people television, right? Like rich white in the Hamptons or wherever, just doing really dodgy shit.

 

Melissa Murray You’ll love sirens then, because that’s the whole vibe.

 

Imani Gandy I’m writing that down.

 

Melissa Murray Sirens.

 

Imani Gandy Yeah, so I’ve been watching a lot of Revenge and I’m a video gamer. So I’ve been playing a lot of video games, a particular game called Death Stranding. It’s a game by Hideo Kojima, and it’s bizarre. Like I can’t even begin to explain it to you, but it does star Norman Reedus, who is Daryl Dixon. The Walking Dead. In The Walking dead. So he’s the main character. He’s also the father of.

 

Melissa Murray Elena Christensen’s eldest child.

 

Imani Gandy Get out of town. I didn’t know that. You’re welcome. But there’s one particular like cut scene where he has to like, after delivering all this stuff, he has go and take a shower. And I never skipped that cut scene. I’ll tell you that right now. Norman Reedus in the shower. Yes, please.

 

Melissa Murray This is a PG show most of the time.

 

Imani Gandy This is a family establishment. Anyway, all you see is butt cheeks. It’s no big deal. His peaches, as it were. His peache, exactly. His palisade peaches. His palesade peache. And aside from that, I just have to recommend, I know streaming services are a nightmare these days, with some of them capitulating to Trump and others just having garbage shows. Brit Box. I have to, I cannot recommend Brit Box Oh, I love Brit Box, I like Brit Box! I love Britbots. I’ve been watching a lot of Poirot now. I have been watching all of the Agatha Christie Marple series. And then there’s this really adorable series starring Stephen Moyer who was in True Blood. Look at his mind. That guy. I don’t know if you ever watched True Blood, but anyway, he’s married to Anna Paquin. Yeah, they met on the show. They met on this show. Exactly. So he plays this really kind of nerdy art detective. Like he’s a cop in like the arts department of the arts, the department of police station. And so he goes. And investigates all these art crimes and it’s a very different character than anything I’ve ever seen from him. And it’s kind of adorable. It’s called Art Detective and it is new on Brit Box.

 

Melissa Murray Oh, I love Brit Box. OK, these are all fantastic. It’s such a delight to be here with you today. And I’m sorry we had so much news to run through. It’s OK. I love news. Well, there’s a lot of it.

 

Imani Gandy But yeah, thank you for having me. It was so much fun. I’ve been I’ve been an admirer of yours for over a decade now.

 

Melissa Murray The feeling is so mutual. I will say, when I was on Twitter, I loved your Twitter. Where can we find you these days on social media? I’m on Blue Sky, exclusively. Okay.

 

Imani Gandy Exclusively on Blue Sky. What’s your handle? Yeah. I like, my handle is angryblacklady.bsky.social. You just look me up, Imani Gandy or Angry Black Lady. Also, I have to say, since I have the opportunity and I think some of your listeners might be interested, I am launching my own podcast next month.

 

Melissa Murray Okay, I’m listening.

 

Imani Gandy They’re giving me my own podcast, Melissa.

 

Melissa Murray OK.

 

Imani Gandy And guess what the name is? The name is called Bitch Listen: An Angry Black Lady podcast. Isn’t that the best name?

 

Melissa Murray It’s an amazing name.

 

Imani Gandy It’s an amazing name and I have to give credit to our, to my boss, Mallory, because she’s a black woman. And I can tell you that none of my other prior bosses would have let me name my podcast, Bitch Listen. So it’s gonna be great. I’m hoping to have you on at some point. It’s gonna to be mostly an interview show about reproductive justice, about black family surveillance, about criminalization of pregnancy, about me and my life. My first guest is gonna be Francesca Ramsey. We’re gonna talk about being late stage queers. So that’s gonna fun. And I’m just really looking forward to it. So, Bitch Listen, it launches September the 25th, I believe. And I hope your listeners will give me a chance to see if I can do this thing on my own.

 

Melissa Murray Bitches is Listen. Bitch Listen is coming your way on September 25th. That is Imani Gandy of the Rewire News Group and the co-host of Boom, Lawyered, and the upcoming solo host of Bitch Listen.

 

Imani Gandy Yep.

 

Melissa Murray Thanks so much for joining us today.

 

Imani Gandy Thank you so much having me.

 

Melissa Murray Before we actually factually go, I have a little housekeeping for all of you. First up, in case you missed it, listeners, Crooked Media just announced its first-ever CrookedCon in Washington, DC. That is the first annual, or in your case, once-in-a-lifetime chance to join America’s smartest organizers and least annoying politicians to strategize, debate, and commiserate about where we go from here, hopefully up. On Friday, November 7, Crooked will be joined by some of the most influential names in politics for a full day of conversations, workshops, and live pods as we all figure out how to build the big pro-democracy movement. We need to defeat rising authoritarianism before or maybe after it’s already too late. If you like this podcast, and I know you do, you’re definitely going to love CrookedCon. And while we can’t say officially that we’re going to be at CrookedCon, I would say that there is a very strong chance, wink, wink that we will be at CrookedCon. So get those tickets while you can. Head to CrookedCon.com for tickets, lineup announcements, and more. That’s C-R-O-O K-E-D-C-O N dot com. And we have a discount code that you can use to buy your November 7th tickets early. The discount code is freedom and content. All one word, all caps, and the discounted tickets are limited. So move quickly. And if you are so excited about Crooked Con and you know you’ve got to get your Crooked con fit together, guess what? I’ve got great news for you. The Crooked stores big summer sale is here and everything is 20% off. So if you need a new Friend of the Pod tee or a No Law Just Vibes tee to show up at CrookedCon with your best glow up, just head on over there. Merch is a great way to support the pods you love and the network you love without having to buy a meme coin or a golden phone with our faces etched on it. And right now, everything is on sale. So shop 20% off everything at crooked.com forward slash store. Strict Scruitiny is a Crooked Media production hosted and executive produced by Leah Litman, me Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell, Michael Goldsmith is our associate producer, Jordan Thomas is our intern. We get audio support from Kyle Seglin and Charlotte Landes, and music is by Eddie Cooper. We get production support from Katie Long and Adrian Hill, and Matt DeGroot is our head of production. We are thankful for our digital team, Ben Hethcote, Joe Matoski, and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. You can subscribe to Strict Scrutiny on YouTube to catch full episodes and you can find us at youtube.com forward slash at Strict Scrutiny podcast. If you haven’t already, be sure to subscribe to Strict Scrutiny and your favorite podcast app so you never miss an episode. And if you really want to help other people find the show, please rate and review us. It really helps.