Pamela Karlan, experienced advocate and co-director of Stanford’s Supreme Court Litigation Clinic, joins Kate and Leah to break down just how exceptional Solicitor General Elizabeth Prelogar is at her job. Then, all three hosts speak with Madiba K. Dennie about her book, The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back.

TRANSCRIPT

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

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

Kate Shaw And I’m Kate Shaw. Today we have another two part episode for you. Melissa will join us in the second half of the episode to talk to Madiba Dennie, about her new book, The Originalism Trap How Extremists Stole the Constitution and How We the People Can Take It Back. But first, we’re doing something pretty uncharacteristic for this podcast. We are going to have a positive and heartwarming conversation. This is something we have actually received a lot of requests for because a lot of people, fangirl, fanboy, nonbinary fan out over this person. And this person is Elizabeth Prelogar, who is the Biden administration’s lawyer in the Supreme Court, the solicitor general. She’s also coincidentally the subject of a big Vanity Fair profile this week by Christian Farias. So for the first half of today’s episode, we are going to talk about her greatest hits.

Leah Litman The Person Who Eats Bananas. Before oral arguments run circles around Brett Kavanaugh regularly and publicly own Sam Alito and more. And to help us pay tribute to one of the greatest to ever do it, we are joined by another one of the greatest, Pam Karlan, the Kenneth and Harl Montgomery, professor of public interest law and co-director of the Supreme Court Litigation Clinic at Stanford. Welcome to the show, Pam.

Pamela Karlan Thanks so much for having me.

Leah Litman So this episode, singing the praises of Solicitor General Prelogar is also another subtle way of making a call for four more years that may be especially motivating to our listeners at least. So four more years of general Prelogar. Unless of course, Justice Kagan might want to step down and have General Prelogar replace.

Kate Shaw Her four more years of her in some fashion. I mean, we’re not really okay with Elena Kagan stepping down. If she needed to Prelogar taking her place would be, you know, a comfort that we could live with.

Pamela Karlan I think it would be nicer, though, wouldn’t it, if she was taking Justice Alito.

Leah Litman Yes. Or Justice Thomas’s or both. But you have made this episode so infinitely more positive within, like the first two minutes than any previous episode. I love it.

Kate Shaw That’s what you’re voting for, right? And so to be clear, it is not just our listeners and us fanning out over a solicitor general Prelogar or the justices themselves do as well. So we are going to walk through some signs that the justices know she’s got it and how can we tell? Let us count the ways. First up, the Democratic appointees regularly invite her to just talk to make the case because they know she can do it. And her air time is just as valuable as theirs. And to be clear, these folks do think their airtime is pretty valuable. So it is notable that they are so willing to cede it to her.

Clip I want to ask on a completely different question. But one notable thing about the argument here is that on both sides, there’s been very little discussion of what originalism suggests about this question. And so I just want to ask, what would a committed originalist think about the kind of race consciousness that’s at issue here? In general, one of the through lines of the briefs in this case is I think it’s actually the first line of the petitioners brief or something like it is, is essentially Brown compels the overruling of Grutter. And the petitioners. I actually haven’t given a whole lot of attention to that argument. But the idea is and some of the questioning has reflected this this idea is that, you know, we have this long and horrible history of racial discrimination, and surely that functions here to prevent racial classifications or to prevent race consciousness of the kind that Harvard and USC are using. And I just thought I’d give you an opportunity to discuss what you think of that argument. I think that argument is wrong in just about every respect.

Leah Litman And Justice Jackson basically invited her to respond to more specific arguments Idaho’s counsel had made in Moyle the EMTALA case, which you can hear here.

Clip General, let me ask you to respond to a couple of things petitioners counsel said in just to give you the opportunity to respond. Is it true that there really isn’t in operation a difference between the two that the EMTALA and what Idaho has required here? No, that is gravely mistaken on three levels. It’s inconsistent with the actual text of the Idaho law. It’s inconsistent with medical reality and it’s inconsistent with what’s happening on the ground.

Leah Litman And then there were invitations from both Justice Kagan and Justice Jackson in Moore versus Harper, the independent state legislature case.

Clip When Mr. Thompson says, well, it should be subject to the constraint of federal review, but not of of state constitutional review. What do you think of that distinction?

Clip Because the lawmaking authority of the entity in question comes from. The state constitution, right? I mean, if it’s a lawmaking function that we’re tapping into, it’s the state constitution that gives that entity its lawmaking power and tells it when and under what circumstances and how it can act as the legislature. Right? Exactly. And this is black letter law, Justice Jackson.

Kate Shaw Having brought you that introduction, Pam, let’s bring you in. So give us a sense, as an experienced advocate before the court and obviously long time watcher of the court. How typical or atypical is it, in your view, for justices to just invite an advocate to talk to basically give them floor time or airtime rather than the justices using that time themselves?

Pamela Karlan Well, it’s pretty rare. And what’s particularly striking about these is the other times when you hear the justices give somebody a long time to talk, it’s usually because there’s a very technical detail that they don’t understand and the person does. So there’s a famous example of a case where the lawyer for the government spent a bunch of time explaining how you actually take a car apart in a case that involved auto searches and the like. And there you can kind of understand because they’re actually asking for information. But here they’re not really asking for information. They’re asking her to make her argument at length. And that’s that’s pretty rare. I mean, you know, I think of times where people begin, you know, may it please the court and the justices jump and say, well, it doesn’t. And now let us, you know, allow us explain to you what we think instead.

Leah Litman So you already kind of answered this one. But one of the aspects of this that really struck me is that Justice Kagan in particular is ceding air time to General Prelogar. And Justice Kagan, of course, is extremely brutally effective and also does not suffer fools easily and probably thinks a lot of the people that argue before her are fools. So, like, does Justice Kagan do this for anyone else?

Pamela Karlan I can’t think of somebody. I mean, maybe she has, but I can’t think of it.

Leah Litman And as the previous clips underscore, it’s not just Justice Kagan. You know, Justice Jackson uses a pretty standard formulation with General Prelogar, where Justice Jackson will state her point, ask, is this right or am I wrong? Which then just allows General Prelogar to elaborate. So this happened in the medication abortion case, which you can hear here.

Clip They’re saying because we object to having to be forced to participate in this procedure, we’re seeking an order preventing anyone from having.

Pamela Karlan Access to these drugs.

Clip At all. And I guess I’m just trying to understand how they could possibly be entitled to that given the injury that they have alleged. I agree, Justice Jackson and I do think it’s relevant to standing. There’s a profound mismatch here between the claimed injury and the remedy they were seeking.

Kate Shaw And she did something similar in Relentless versus Department of Commerce, which is one of the two cases asking the court to overrule Chevron. And here she was basically asking keylogger to talk about what the implications of overruling Chevron would be.

Clip I guess my concern is, I.

Pamela Karlan Suppose.

Clip Judicial policymaking is very stable, but precisely.

Clip Because.

Clip We are not accountable to the people and have lifetime appointments. So if we have gaps and ambiguities in statutes and the judiciary is coming in to fill them, I suppose we would have a something of a separation of powers or policy or excuse me, separation of powers.

Clip Concern.

Pamela Karlan Related to judicial.

Clip Policymaking. Am I wrong to be worried about that? No, I think that that concern is valid and I think it’s valid along two separate dimensions. And one is to recognize that in these scenarios where we’re at Chevron, step two, by definition, it’s because the statute itself doesn’t supply an answer and the court can’t ascertain that Congress actually meant to resolve it. And in that circumstance, it’s entirely sensible for Congress to give the issue to an agency when it is charged with administering the statute and of necessity, is going to have to fill the gap along the way. And Congress could quite legitimately want the agency to draw on its policymaking expertise in figuring out the what do you what do you say?

Kate Shaw And some of these invitations at the hands of the justices to just make her case have generated particularly significant and high impact moments during the oral arguments. One example was during Rahimi versus United States, where Justice Kagan basically invited Prelogar to write the court’s opinion for them.

Clip General, there seems to be a fair bit of division and a fair bit of confusion about what Bruen means and what Bruen requires in the lower courts. And I’m wondering if you think that there is any useful guidance in addition to resolving this case, but any useful guidance we can give to lower courts about the methodology that Bruin requires be used and how that applies to cases even outside of this one. Yes, I think that there are three fundamental errors and methodology that this case exemplifies and that we are seeing repeated in other lower courts, and that this case provides an opportunity for the court to clarify that Bruen should not be interpret. Did in the way that respondent is suggesting.

Kate Shaw And the court leader in an eight one opinion by Chief Justice Roberts basically did what she asked. So, again, Pam, how unusual is that, inviting an advocate to essentially sketch out the contours of the court’s argument, which you then see in written form in the court’s opinion?

Pamela Karlan I mean, that’s a little less rare, especially when the court is really, you know, in Rahimi, the court is really sort of saying to the general, look, we recognize that we’ve got to rule for the government here, Tell us a way to get there that will not make us look terrible, you know, because I thought Justice Thomas was right there. If you actually apply the method that he talked about in Bruin, Rahimi should win and nobody thinks Rahimi should win.

Leah Litman Yeah, no. And that was something that General Lugar managed to do artfully, which will kind of come back to later, which is tell the court you messed up. You need to do something different without basically giving them the middle finger and saying you dumb dumbs, right? Like you really, really did not do well here. So one other kind of invitation to note on General Prelogar is good enough that Justice Kagan is willing to rope her in to some of Justice Kagan’s punch lines, which you can hear here in the tax case from last term Moore versus United States.

Clip Justice Gorsuch said, You were asking us to overrule 100 years of our precedent. Sounds bad. Are you? I am not asking the court to overrule any precedent in this case.

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Leah Litman Okay. So the next series of clips we’ve lumped under one of our favorite themes, which is publicly owning the justice that hopefully General Prelogar will replace Samuel Alito. So in Alliance for Hippocratic Medicine versus FDA, the medication abortion case, she flummox Justice Alito so much she got him to admit that Article three is important.

Clip Okay. Is there anybody who can sue and get a judicial ruling on whether what FDR did was lawful and maybe what they did was perfectly lawful? But shouldn’t somebody be able to challenge that in court? Who, in your view, who would have standing to bring that suit? I think that with respect to these regulatory changes, it’s hard to identify anyone who would have standing to sue. But the court has said time and again that the fact that no one would have standing doesn’t provide a basis to depart from Article three principles. It said that in Raines, in Richardson, in Valley Ford and in Clapper. And so I think it’s clear that even if there is no alternative person here who could sue, that doesn’t mean that the court should dispense with the indispensable requirements of Article three. Okay. I understand that an Article three is important.

Leah Litman And of course, Article three, you know, ended up being the court’s disposition of the case where the justices said the doctors, dentists and whoever else did not have standing to bring their challenge. Do you think Justice Alito realizes like he is being owned or that she is getting the better of him in these moments? Because one thing that strikes me is like he keeps trying.

Pamela Karlan Yeah. You know, I don’t think Justice Alito knows what it means to say someone is being overturned. So but I think he does realize that she’s not backing down and that she’s right. I mean, his frustration, you can you can kind of hear in his frustration over. Do you mean to tell me there’s nobody that will allow me to get rid of mifepristone? There’s no way I can get there. I have to adhere to Article three, The horror.

Kate Shaw It does feel like he doesn’t quite know what’s being done to him, but he is aware that something is happening. And some of our favorite fumbles are basically when she gets him to kind of flail about in the way she did in the argument in United States versus Texas, the one involving Texas S.B. eight, the abortion bounty hunter law. So let’s play that clip here.

Clip How can you say how can you enjoin a judge from performing a lawful act, which is the adjudication of a case that is filed before the judge? Well, I want to be perfectly precise that in our case, the district court enjoined Texas and found that that injunction could properly reach the state court personnel who would be then exercising the state’s authority. Texas is an abstract entity and any injunction has to apply to people.

Kate Shaw We loved this line and, you know, played it at length in the weeks after the oral argument. How do you think Texas took to this snag that it is, in fact, an abstract entity?

Pamela Karlan I’m sure that it got them fighting mad. Not since the Alamo such an outrage perpetrated.

Kate Shaw So that’s obviously like a little bit like lighthearted. But what about, you know, sometimes the flummox thing that she seems to produce in Justice Alito is more substantive. Right. When she gets him to make concessions. You know, he doesn’t always stick to these concessions, but those seem like more kind of substantively important moments. So that sort of felt like it happened in Moyle versus United States. The case involving M emergency medical care for individuals experiencing pregnancy emergencies. So let’s play that clip now.

Clip It’s not duties. How can you impose restrictions on what Idaho can criminalize simply because hospitals in Idaho have chosen to participate in Medicare? I don’t understand how this squares with a whole theory of the spending clause. Well, I think that it squares with this court’s long line of precedents cited at page 46. Well, I’ve looked I’ve looked at those cases. I haven’t found any square discussion of this particular issue. But I’m interested in the theory. Can you just explain how it works in theory? Sure. So spending clause legislation is federal law. It’s passed by both houses of Congress. It’s signed by the president. It qualifies as law within the meaning of the supremacy clause. Absolutely. And so I think the supremacy clause dictates the relevant principle here. But what’s the law?

Leah Litman So stepping back a bit from these clips, Pam, what is it that flummox him so much about General Prelogar’s advocacy?

Pamela Karlan So I think it’s two things. I think it’s a combination of the fact that she has this complete and total command of the facts and the record. And so you hear her say, well, on page 46 of our brief in the clip and the fact that she doesn’t back down, she sticks to her point and she doesn’t concede. You know, it’s like that line of Frederick Douglass is about power, concedes nothing without a demand, and she concedes nothing, even with the demand, which kind of shows her shows her power here.

Leah Litman And part of what makes us all so impressive is as we kind of gesture to before, she isn’t just kissing the justices rings throughout the arguments like she maintains the same kind of presence and cool and even a rapport at times when she is pushing back on the justices. So she had to take a stand with Justice Alito. So like he couldn’t get away with some things, like trying to get a concession about who could challenge the availability of medication abortion in the medication abortion case, which you can hear here.

Clip Could you provide a more specific answer to the first question that Justice Thomas asked you? Is there anybody who could challenge in court the lawfulness of what the FDA did here? In this particular case, I think the answer is no. Well, that wasn’t my question. Is there anybody who can do that? Let’s let’s start with the states that intervened below. Will you say in that litigation, fine. You can challenge it and let’s get to them to the merits of this issue, the lawfulness of what the FDA did? No, we think the states.

Leah Litman And she had to kind of do the same when Justice Alito tried to sneakily bring up the Comstock Act without referring to it as the Comstock Act.

Clip Shouldn’t the FDA have at least considered the application of 18 U.S.C. 1461? So I think that the Comstock provisions don’t fall within FDA’s lane.

Kate Shaw So those are some exchanges with Sam Alito. But she actually doesn’t just do this with Sam Alito. She did it with the chief justice in Rahimi versus United States as well, essentially like, no, no, no, don’t put this like your legal test on me. That’s in this clip.

Clip Why did you use the term responsible if what you meant was dangerous? I mean, responsible presents all sorts of problems. And dangerous is sort of a different set of considerations. I mean, if you thought that our prior precedents were talking about dangerous, it was a little confusing to all of a sudden find responsible being the operative term. We relied on the same phrasing the court itself used when it first articulated this this constitutional principle in Heller. And so I think we were trying to point out that the court itself has already recognized the category of regulation that’s consistent with the original meaning under the Second Amendment. And we just followed the court’s leading using that phrase.

Kate Shaw Pam, what did you think about this exchange? I remember listening to it and the goal of Chief Justice Roberts basically saying, how dare you use language? And a formulation that we ourselves have used, I thought was really striking. What did you make of that exchange and the way that she handled it?

Pamela Karlan Well, I mean, if you hear her tone, it’s like a very calm tone. It’s not what what the fuck? Right? She’s not saying don’t you blame me. But she’s making it really clear. You know, we’ve thought about your cases and we’re trying to use your cases to make our point. So don’t pretend that we’re the ones with the problem. You’re the ones with the problem.

Leah Litman And she’s done, you know, something like this also with Justice Gorsuch, which you can hear here in Roper Bright, just kind of correcting him with his survey of all the courts of appeals cases involving Chevron.

Clip So we don’t think that this is a case about silence at all. Yeah, that’s really good. Again, we’re back to the same question the chief had of of Mr. Clement. That’s a really good statutory interpretation argument. Sounds like exactly the bread and butter of what we do every single day. And we can resolve that. Right. We think that you could find that the statute is clear. But I think that. The fact that you think it’s clear and Mr. Clement thinks it’s clear, but a court below thought it was ambiguous should tell us something, shouldn’t it? No, I disagree with that. And I should say that I think actually, if you look at both what the D.C. Circuit and the First Circuit were doing in these cases, they recognized the force of the arguments.

Leah Litman And she’s had to do this with Neil more than a few times, but somehow always manages to do it nicely, like in more the tax case. You know, in a clip that we had talked about where she held her ground with Justice Gorsuch when he insisted she had not made an argument that, in fact, the federal government had made that argument.

Clip That this taxpayer had that kind of enjoyment isn’t in the briefs before us. And I’m just wondering, what do I do about that? Well, I think we did that make that argument because we made the point that to the extent the court goes down the road of recognizing some theory of constructive realization, then the mat would fit within that same framework because petitioners haven’t identified any actual distinction between how those other tax contacts operate and how the MRC operates. Let’s let’s just say I don’t see that argument. Then what do you want me to do? Am I supposed to vacate and remand if for for consideration of that question? Is it waived? You know, what would you have me do? I certainly think that in our brief we argued that here the taxpayer can. Properly be held accountable for the corporation’s income and that. The Court I got that. I got that argument, General, I got the argument that either there’s no realization or is a back up, there’s realization and fair attribution. But if I’m working within this court’s precedents, if I don’t consider them a wholly misguided. Okay. If I’m not willing to overturn 100 years where the precedent what you’re asking us to do and the question is, is it fair to say this this taxpayer constructively or actually realize this income? Should I vacate and remand? No, you should affirm, because here we made the argument that there is the same level of control and exactly the same relationship as in subpart F. So we did make this argument. Justice Gorsuch.

Leah Litman And then one of my personal favorites was in the case United States versus Texas, when she turned Justice Gorsuch, his words back on him immediately and emphasizing, you know, the novelty of Texas law. You know, when Justice Gorsuch was pressing her on the novelty or reported novelty of the lawsuit in the case.

Clip At point, they were asked. Why, counsel, are you aware of any other example of such such an injunction. With that specific term? I can’t cite one to you. Not in the history of the United States. You can’t you can’t identify one for us, Right. In the history of the United States, no state has done what Texas has done here.

Kate Shaw So this was a pretty amazing moment to my mind, not just in the kind of strength of that last line in the clip we just played, but in the way that Prelogar just, you know, uses this language that Gorsuch had just served her in the history of the United States and turned it precisely back on him. And I guess I’m curious, Pam, you’ve done this a lot. How hard is it to do this, to be as responsive in the moment as we see Prelogar being in her exchange with Gorsuch?

Pamela Karlan It’s really hard to like do what she did there, which is to pull out words from the justices own sentence and flip them around. It’s much easier if you’re taking words, he said in the past or words he said in an opinion. And you kind of heard that in the clip you ran earlier with Chief Justice Roberts about the word responsible in dealing with gun ownership. But in the moment, it’s much harder to do because you’re thinking about what your answer is going to be. You’re thinking about what the next question is going to be. And so paying that kind of close attention to the precise language is just a it’s a really major gift that she has.

Kate Shaw A high degree of difficulty in. And she is like executing perfectly.

Leah Litman Like the Simone Biles.

Pamela Karlan It’s like those dives, you know, And now we’re coming to the 3.7, an inverse reverse, two and a half flip with four twists.

Leah Litman She should have these moves named after her, just like Simone Biles did, Right? Exactly. Longer.

Pamela Karlan Yeah.

Leah Litman It’s a new skill.

Kate Shaw Yeah. Okay, so that’s Gorsuch. She’s had to push back on other members of the Georgetown Prep squad as well. So here she is again and relentless, but this time besting Kavanaugh’s truly ridiculous framing of the case.

Clip Last question, which is there was talk about democratically elected political branches. But I just want to get your agreement on something that I think you’ll agree on, which is the role of the judiciary historically under the Constitution to police the line between the legislature and the executive to make sure that the executive is not operating as a king, not operating outside the bounds of the authority granted to them by the legislature. You agree that’s a proper judicial role, I would assume. I of course, agree with that. But I think Chevron is consistent with that. The court polices the executive at step one by ensuring that Congress’s own choices are put into operation and it further polices the executive At step two, As the court said in Keizer, reasonableness is a test that agencies can fail, and so there’s work to be then done there to to make sure the agency doesn’t transgress some outer boundary line that Congress set.

Leah Litman So I did want to stay on the Georgetown Prep beat for a second and maybe go back to the other member of the Georgetown Prep squad on Neil Gorsuch, because one thing that I kind of picked up in listening to so many of these arguments is what sounds like Gorsuch’s weird paternalism toward her. So I just want to play up a montage of clips. They will be from Rahimi, the Second Amendment case, Department of Education versus Brown, the one of the student debt cancellation cases. So you can kind of hear what I’m talking about.

Clip So I agree that this is a facial challenge and the court could confine its analysis to see one. I guess I would make just two responses to that. One is to say that I think it’s going to be difficult for the court to avoid the C-2 issue. We ourselves have a pending petition where the Fifth Circuit has invalidated an application of the statute in AC2 context. So unless you want to see me here again next term on this issue, always. Delighted to see you have that issue has been fully briefed and we think it’s an important part of the statute. Generally. I appreciate your standing arguments and they’ve been laid out very clearly here in. Missing feature of this particular case, as you well know, is that the court entered a universal decree. We’ve chatted about this prior case. We have indeed Justice Gorsuch. And I would just wanted to give you another chance to talk about Universal Vacant with some of my friends here, if you want it. And if you don’t, that’s fine. I will always take that opportunity.

Leah Litman Pam, I have to ask again, since you are at the court like so often, is Justice Gorsuch always this way or is it something coming out? In response to her advocacy? That’s affecting his affect because other times I feel like he he’s got a meaner streak or tries to have a meaner streak with advocates. But but not really here.

Pamela Karlan Yeah. I mean, he really has backed down on her from his usual thing, which is if he’s not getting the answer he wants, he claims you’re not answering the question. You know, if he says to you, should you lose the case and you say no, he says you’re not answering the question because he wants you say, well, of course. And with her, I think he really kind of recognizes that she’s in full command of what she’s doing. And it’s it doesn’t go well to act as if she’s not answering the question or she’s not responding correctly.

Kate Shaw It’s true that kind of you’re not answering. Line that he pulls out constantly. I’m trying to recall if he’s used it on her. It’s very infrequently. And I’m not I certainly doesn’t use it with her ever. He has to concede she is answering. And if he is, you know, if she’s winning the exchanges with him, he sort of grudgingly concedes that and moves on. It’s really something to see. So we finally wanted to play kind of a grab bag that is just a highlight reel of some of our favorite moments. And we’ve previously mentioned her opening and closing arguments in Dobbs versus Jackson Women’s Health Organization. So let’s play that opening again here.

Clip The court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society. The court should not overrule this central component of women’s liberty.

Leah Litman I mentioned, you know, in our term recap this as both a rose and a thorn, and I’m going to play it here as well, which is the exchanges with Justice Alito in the Antalya case, male versus United States, where General Prelogar finished her points with like the appropriate, in my mind, level of righteous indignation as Justice Alito attempted to forge ahead in his efforts to justify and minimize the prospect of denying emergency care to pregnant patients. This is going to be a long line, but, you know, just just hear it out.

Clip But if you go so far as to say that the statute is clear in your favor, I don’t know how you can say that in light of that of those provisions that I’ve just read to you, the statute did nothing to displace the woman herself as an individual with an emergency medical condition when her life is in danger, when her health is in danger, that stabilization obligation equally runs to her and makes clear that the hospital has to give her necessary stabilizing treatment. And in many of the cases you’re thinking about, there is no possible way to to stabilize the unborn child because the fetus is sufficiently before viability that it’s inevitable that the pregnancy is going to be lost. But Idaho would deny women treatment in that circumstance. Doesn’t even though it’s senseless. Doesn’t what I’ve read to you show that the statute imposes on the hospital a duty to the woman? Certainly, and also a duty to the child. And it doesn’t tell the hospital how it is to adjudicate conflicts between those interests. And it leaves that to state law. And I may be a lot most of your argument today has been dedicated to the proposition that the Idaho law is a bad law, and that may well be the case. But what you’re asking us to do is to construe this statute that was enacted back during the Reagan administration and signed by President Reagan to mean that there’s an obligation under certain circumstances to perform an abortion, even if doing that is a violation of state law. If Congress had wanted to displace protections for pregnant women who are in danger of losing their own lives or their health, then it could have redefined the statute so that the fetus itself is an individual with an emergency medical condition. But that’s not how Congress structured this. Instead, it put the protection in to expand protection for the pregnant woman. The duties still run to her, and in a situation where her own life and health is gravely endangered, that in that situation, I’m it is clear, it says the hospital has to offer her stabilizing treatment and she doesn’t have to accept it. These are tragic circumstances and many women want to do whatever they can to save that pregnancy. But the statute protects her and gives her that choice. It’s indisputably protects the interests of the unborn child. So it’s inconsistent with the definition in the in the dictionary act. No, not at all. The duty runs to the individual with the emergency medical condition. The statute makes clear that’s the pregnant woman. And of course, Congress wanted to be able to protect her in situations where she suffered. Barring some kind of emergency and her own health isn’t at risk, but the fetus might die. That includes common things like a prolapse of the umbilical cord into the cervix where the fetus is in grave distress. But the woman is not at all affected. Hospitals otherwise wouldn’t have an obligation to treat her, and Congress wanted to fix that. But to suggest that in doing so, Congress suggested that the woman herself isn’t an individual, that she doesn’t deserve stabilization. I think that that is an erroneous reading of this. Nobody’s suggesting that a woman is not an individual when she doesn’t she doesn’t deserve stabilization. Well, the premise of the question would be that the state of Idaho can declare that she cannot get the stabilizing treatment even if she’s about to die. That is their theory of this case and this statute. And it’s wrong.

Kate Shaw Long but, you know, with incredible pay off at the end, that was such a powerful exchange and it was such a powerful ending. And I feel like I heard from people in the courtroom as though they could sort of see the force of her reasoning sort of like knocked Justice Alito back at his seat a little bit. At the end of that exchange. I was not present, but this is what I heard from others. Okay. So last but not least, we had to come back to her exchange with Justice Alito in NFIB versus OSHA. That’s the one that led him to loudly insist that he was not saying what he was saying about vaccines. So let’s remind folks of that clip here.

Clip All right. So it’s different in that respect. And here’s another respect in which it may be different. And I don’t want to be misunderstood in making this point because I’m not saying the vaccines are unsafe. The FDA has approved them. It’s found that they’re safe. It’s said that the benefits greatly outweigh the risks. I’m not contesting that in any way. I don’t want to be misunderstood. I’m sure I will be misunderstood. I just want to emphasize, I’m not making that point. But is it not the case that this these vaccines and every other vaccine of which I’m aware and many other medications have benefits and they also have risks and that some people who are vaccinated and some people who take medication that is highly beneficial will suffer adverse consequences. Is that not true of these vaccines? And if that is is that true? That can be true. But of course, there is far, far greater risk from being what there. Are there than. Orders of magnitude. Right. There is some risk. Do you dispute that? There can be a very minimal risk with respect to some individuals. But but again, I would emphasize that I think that there would be no basis to think that these FDA approved and authorized vaccines are not safe and effective. I’m not making that point. I tried to make it as clear as I could. I’m not making that point. I’m not making that point. I’m not making that point.

Leah Litman So obviously, that clip could have been played in the Alito segment, but I wanted to save it for toward the end of the episode. But, Pam, you know, I feel like those were just some of our favorites. I’d love to ask you, you know, whether you have any particular ones that come to mind.

Pamela Karlan Yeah. So I actually have two and you can pick which one you want to talk about. One of them was again from Moyle, where Justice Alito is asking her about, well, are you saying that you can abort a viable fetus? And he’s she basically like gives him. So you weren’t paying attention in ninth grade reproductive health class where she explains, well, if the fetus is viable, normally the way you would handle a medical emergency is you would deliver the viable fetus, which would then be a baby, and you would take care of the woman. And it if that seemed to surprise him. But the clip then I actually hearken back to so much because it says something so important about her and her understanding of her role in the world and like comes from the SFA case, the affirmative action cases where she’s talking about how do you understand when there’s been discrimination? And she points to the Supreme Court bar and she says she says this. She says, and I think it would be reasonable for a woman to look at that, which is the number of lawyers who are women who argued in that sitting and wonder, is that a path that’s open to me to be a Supreme Court advocate? Are private clients willing to hire women to argue their Supreme Court cases when there is that kind of gross disparity in representation? It can matter, and it’s common sense. And that’s her saying something probably as personal as she’s ever going to say in the courtroom. And boy, was that a powerful moment.

Leah Litman Yeah. Yeah. So it reminds me of the moment from argument of another former solicitor general, Seth Waxman. You know, where in the FCC versus Fox, he is gesturing toward the kind of artwork in the Supreme Court room where he suggests maybe that would be obscene under some of the FCC standards. But in that case, it felt like, well, like everyone could have a good laugh because, of course, the justices did not themselves create the artwork. Whereas here, you know, as you’re saying, General Prelogar is asking the justices to look kind of at themselves because, of course, like as participants in the system of who gets to argue and how the Supreme Court works, they are helping to generate. Right. The extreme disparities, extreme gender disparities, and who gets to argue. And yet. She somehow managed to pull it off without making it seem like accusatory or or whatnot. And it was super powerful.

Pamela Karlan Yeah. And look at, you know, look at the cases where they actually determine that directly, the ones where they appoint somebody to argue in favor of the judgment below, they are disproportionately appointing men. Yeah.

Kate Shaw And I wrote a paper about this a few years ago that, like, actually catalogs each of these appointments. And I’ve tracked it since. And it is just wild that they have this tiny little opportunity to diversify in a small but meaningful way. The advocates who appear before them and it is men, it is white men, it is their former law clerks. And often it’s the first opportunity to argue that one of these youngish former law clerks gets. That’s, of course, how John Roberts got his first oral argument when he was appointed. As you know, a young ish former law clerk to Chief Justice Rehnquist. But I think they hate being treated as being reminded that they exist within not apart from our system of law and government. And I actually think that despite how kind of gracious and light touch he was, it was something that, you know, it might have antagonized them. And she, I think, must have realized that. And I think she decided to make the calculated risk. And and I’m really glad she did. And I also think there is, you know, a public facing function to some of these choices. And that’s why I think it’s really useful, you know, on a podcast like this to just kind of aggregate all of these powerful moments because she’s talking to the justices. But and it’s in a very technical kind of framework a lot of the time. But there are these moments where it does feel like she’s speaking in what could be a more public facing register. And I think it’s important to try to bring some of that to the public. So I do think it’s worth actually sitting down and listening to these moments because, again, I think her audience is nine. I think that’s how she thinks about what she’s getting up to do. But I think that there are ways where, you know, in which we can sort of help bring some of that to an audience that is much more than nine.

Leah Litman So, Pam, you know, we love to kind of hear any additional thoughts you have either about General Lugar or, you know, what makes her advocacy. So, I don’t know, amazing where, you know, when she’s doing an argument on Twitter, it feels like all of law, Twitter is heaping praise on her. Kind of What sticks out to you about her?

Pamela Karlan Well, I think it’s a combination of the fact that she’s a terrific oral advocate and she is also running a terrific office. She has argued probably a higher percentage of the cases that she’s office argues than a lot of recent solicitors general. But she’s running a team as well. And, you know, they’re doing it. They’re doing an excellent job for an administration that’s facing a very hostile court.

Leah Litman Yes, indeed.

Kate Shaw You know, Pam, that last answer made me wonder about something. And I’m curious if you have any thoughts and you argue there are all the time and this may be something that you’ve thought about, too, but I had a conversation with a law professor like maybe a year ago about an amicus brief in a case. And this is a law professor who I was surprised to get this reaction from. But the professor said, I’m not going to sign an amicus brief. And I actually no longer think the court is an institution that one can reason with in an amicus brief. And I kind of don’t want to credit them as such by even putting my name to a brief. And again, this is someone who used to sign briefs. Not every law professor does. Every logger approaches every argument like she is, you know, engaging in a good faith exchange of ideas about the law with open minded people who are discharging their duties in, you know, some recognizably judicial fashion. And there are all kinds of ways in which those of us with the luxury to just comment from afar about the court feel as though that’s no longer the institution that many of these justices are actually a part of. And I wonder whether that is something difficult to struggle with if you’re somebody who’s an advocate before the court, whether part of the private bar or the solicitor general. So any thoughts or reactions to sort of what the increasingly, you know, maximalist and, you know, precedent smashing behavior of the Supreme Court, what that means for the advocates who have to appear day in and day out before it and treat it like it’s a normal court.

Pamela Karlan It’s a good question to ask. And the reason it’s a good question is that if you’re going to go up there and advocate for clients and she’s arguing for the most important client in some way, the people of the United States of America, you have to treat the cases as if there is a possibility of winning them. And she has managed to pull out some cases. You know, that might have been very hard. I think Moyle is a perfect example of that. You know, using doctrines like standing and the like to, you know, to to win cases or or conceding as she did there, the conscience stuff because she knows they’re going to give a conscience exemption that’s wide enough to drive a truck through no matter what she does. So give that to them and then get them to see that the case is now actually a much harder case. And, you know, you can still win some cases that matter a lot to the causes and the people you care about. But it it is hard sometimes when you read some of their opinions. I mean, you know, she was not in for obvious reasons. Trump against United States. But you. Read Trump against United States. And it’s hard to treat that as law in the way that in the way that we think about things. Or you read some of the other cases that the court decides and you think this is just sheer. We do it because we can you know, it’s the it’s Leah’s old line about it’s the Yolo court. And that’s hard. But and I think one of the things is, you know, she gets up there and argue some of the cases that she knows the government is going to lose. Right? I mean, she knew the government was going to lose. Loper Bright and relentless. How did she know? Because they granted cert and Rachel. Right. We’re only eight justices were sitting. So, you know, there are five to get rid of Chevron. But she gets up there and does her best. And I think by by doing her best and treating the court there as if it’s really a court, she builds up capital that allows her in the cases that are closer to being winnable to win those cases. And that’s that’s what you have to do.

Leah Litman Yeah. I think that that, you know, what you’re describing is a really tough and tricky balance because, you know, obviously it requires making concessions, it requires having some outlook. But I at least have never felt like in the last four years kind of watching her as an advocate that she has gratuitously thrown causes or people under the bus in the name of building credibility. You know, obviously her office has taken some positions that like, I don’t agree with. Right. And some like immigration cases or whatnot, but I did not feel that, again, she was doing so, you know, again, as sort of like a performative act of, you know, watch me do something so I can try to eke out a win, you know, in another corner. And I think that that’s admirable.

Pamela Karlan No, I think I think that’s right. I mean, and, you know, in a lot of the cases that you or I don’t like the result that the government does, those are the kinds of cases where the interests of the executive branch are not our interests. Yeah. And and she is up there arguing not for herself. She’s up there arguing for the executive branch of the of the federal government.

Leah Litman So we wanted to leave you with General Prelogar in her own words, talking about, you know, her as General Prelogar and doing her job. This is from the ninth Circuit Judicial Conference, where she was one of the featured speakers.

Clip It’s true that my client is the entire federal government and all of its agencies and officers, but really it’s more than that. Ours is a government by the people, of the people and for the people. And so, as former Solicitor General Fredric Lehman once said, the United States wins its point whenever justice is done, its citizens in the courts. Those words reflect the getting the law right and ensuring justice is done. Matters more than scoring a technical win for the government in any particular case. And I want to pause on this point because it’s especially important. It’s so important, in fact, that General Lehman’s quote is inscribed along the molding of the antechamber leading into the office just down the hall from my own office. It is the mission and the responsibility of the Department of Justice to promote justice and the rule of law, not to win at all costs.

Leah Litman Pam, thank you so much for taking time out of what is one of the busiest schedules I am aware of exists to talk with us about General Prelogar and to join the show. We really appreciate it.

Pamela Karlan Thanks for having me. As you know, I’m such a fan of the show that getting to be on it as well. For me, it’s just as good as getting to argue in front of a court that’s going to rule against my clients.

Leah Litman Wow. Wow, what high praise. What praise.

Kate Shaw Well, we are huge fans of yours, and we would rule in favor of your clients in every single case, Pam. So if there’s any consolation. Seriously, thank you so much, it’s terrific to have you.

Pamela Karlan Thank you.

Leah Litman And when we come back, Melissa will be with us. And we’ll return to our regularly scheduled programing shedding on originalism.

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Kate Shaw With us today is Madiba K. Dennie, an attorney, a columnist and a commentator. She wears many hats. But most importantly for our discussion today. She is the author of an excellent debut book titled The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back. Madiba, welcome to Strict Scrutiny.

Madiba K. Dennie Thank you so much for having me.

Melissa Murray Well, we’re going to dive right in. I love explaining to people who asked me what originalism is by telling them that originalism is the world’s best lawyer joke. Like it’s literally a scam that people have come to hear so often that it’s become naturalized as an actual method of constitutional interpretation. But obviously, as you suggest in your book, there is more to originalism than that. In fact, it seems like originalism was cooked up in a meth lab of conservative grievance in the 1980s. So you talk about this. You talk about the many cases that have had appalling outcomes because of the influence of originalism. But what specifically prompted you to write this book and to take down originalism in quite such a fantastic fashion?

Madiba K. Dennie Well, thank you so much, first of all. Second, as for what was the final impetus, like you said, it’s kind of a lawyer joke. I feel like a lot of us have known for a while that originalism is trash. But what really gave me what really gave me the impetus that sort of pushed me over the edge and like, okay, I need to say something about this at once. And for a hopefully mass audience was when the Dobbs decision was leaked. I remember reading that draft when it came out and just thinking, Wow, they are really going to use this notion that we can’t have rights now that we didn’t have then to chain women to the past and revoke our constitutional right.

Leah Litman So it’s so funny that that was your reaction because Neil Gorsuch read the draft and ten minutes later he was like, this is fucking amazing. You’re doing amazing, sweetie. Sam Alito, join me and Fall.

Madiba K. Dennie Right? I was like, I’ve taken longer to decide what to order for lunch than it took Neil Gorsuch to sign on to that opinion. But yeah, it was just so, so outrageous and so transparent that by linking constitutional interpretation to your imagined version of the 1800s or what have you, you are by definition going to re enshrine all of the biases of that era and seeing that the court was really just going to go for it and this and this really egregious way. I was like, okay, enough is enough. Gloves are coming off.

Melissa Murray I love this for you and for them.

Leah Litman As you discussed in the book. Originalism has changed, you know, over the course of its popular usage. Justice Scalia somewhat famously said, I’m an originalist, not a nut about Justice Thomas. And even more academic theories of originalism changed from, you know, original intent to original public meaning, to original methods, to original contours to whatever. So how do you define originalism for this project? And do you count all of the, quote, originalists as originalists?

Madiba K. Dennie Yeah. Something something I say in the book is that I think those various versions are kind of just splitting centuries old hairs, that all versions of originalism can be boiled down to a central thesis that, like all of all of the variations, still have this thing in common, which is the idea that the meaning of the Constitution is fixed in time. They say it was frozen at the moment of enactment. So, yes, some might say, well, look at the intent of the of the people who wrote it, but they don’t really do that so much anymore. And others say we look at the original public meaning saying, how would Chinese slaveholder have understood it when it was written? But regardless, they’re saying we’re time traveling. We are going back to whose views were valued in the 1800s and saying that that understanding remains the governing authority now. So I think that’s that’s the that’s the way you can sort of consistently understand what originalism is, despite the various academic nit picking here and there about what particular flavor of originalism they feel like you’re saying.

Melissa Murray Well, let’s dive into the conservative meth lab from which originalism sprang fully formed from the head of Antonin Scalia and his minions. The first chapter of your book, called Heist, talks about the history of originalism and its takeover recapture of the Supreme Court. In that chapter, you make a few arguments about the birth of originalism, so spell it out for us. When and why do you think originalism actually got started? What is the animating principle behind this theory of constitutional interpretation?

Madiba K. Dennie That’s a great question. And I think I think part of what makes that question so good is because there’s a lot of misinformation around it. I think a lot of people typically pinpoint the origin story of originalism with Bork. He is sort of seen as like the father of originalism, like he wrote this big this big paper about how this is the only way to have a neutral principles to understand what the Constitution means. But I think we actually have to go back a bit before that and look at the backdrop against which that developed and the backdrop of it really comes out of Brown Report. Because in Brown, the court said, well, while the arguments are being made, they said, hey, various parties in this case and like intervening parties, can you tell us what their reconstruction framers thought about how the 14th Amendment could apply to to segregated schools? And they got different answers, which I think should already tell you something about originalism to claim to have a single true answer. They got different answers. Some saying, well, the the purpose of the reconstruction amendments was to foster racial equality so you can’t have segregated schools while others were saying they they the people who wrote the 14th Amendment didn’t have any intention of removing the power of states to segregate schools if they so desired. So they’re having this argument about it. And the Supreme Court took in all that information and said, actually, you know what, we don’t need that. That’s that’s not that should not be our guiding influence. We shouldn’t look at whatever we think the original understanding may have been like. Clearly, there’s disagreements about what it was. But also, even so, we shouldn’t be tied to just that. We need to look at the underlying principles and we need to look at the the role of education currently in our society and think about like how these core underlying things like equality and dignity and freedom. How will they map on to our world today? That was what the court said in Brown, and that led the court to say that segregated schools were unconstitutional. And the conservatives freaked out about this. It took a great deal of offense. And Congress members put out in a statement called the Declaration of Constitutional Principles, which we now know more commonly as the Southern Manifesto. And in that, they put forth a bunch of constitutional arguments to say that Brown was legally unsound and that the Supreme Court got it wrong. And a fundamental part of their argument was that the court exceeded its authority. It did something it did not and should not have the power to do by deviating from the original understanding. And this is actually something that the pro segregationists argued in Brown as well. They were saying, you know, it’s not just that the framers thought this, but if the framers thought this, you have to say so as well. It’s not just that history could be a factor, but this is the only factor that matters. So that is the critical backdrop. That’s how we then get this professionalization of these types of arguments to say, well, the one legitimate way to decide what the law means, what the Constitution means is to look at what it meant then. All of that arises from a backlash to the civil rights movement.

Kate Shaw Okay. So this history is really illuminating. And as you know, the title makes clear and as our discussion so far has made clear, the book is in part an extended critique of both the origins and the contemporary practice of what calls itself originalism on today’s Supreme Court. But the book, we should say, is not just an exercise in critique or, you know, a tearing down exercise. It also offers up an alternative which you term inclusive constitutionalism. And that’s a mode of interpretation that is grounded in the values of the reconstruction amendments. So for our listeners, can you tell us about inclusive constitutionalism?

Madiba K. Dennie So by inclusive constitutionalism, I mean the idea that the Constitution includes everyone and the purpose of our constitutional interpretation is to make the promise of the reconstruction amendments real. These promises have been unfulfilled for since since they were written on paper, basically. And I think that originalism very intentionally obscures and downplays the liberatory commands of the reconstruction amendments. And so when we are when we are interpreting any part of the Constitution, we should be doing so with the frame of the reconstruction amendments in mind. We should be understanding that these amendments transform the whole document. It basically repurposed the Constitution, saying this is no longer just the enslavers document. It’s really concerned with property rights. We are now also like we’re putting forth this concern with the rights of marginalized people. We’re trying to expand the polity. We’re trying to expand and protect rights for for everybody who had been excluded. So that’s the real purpose of the reconstruction. And that is that is how people understood and acted on these amendments, trying to flesh out the their goals, always fighting to make them broader and more inclusive over time and saying like, that’s the right idea. It is it is incorrect and misguided and flawed for us to think we actually need to be turning back time and constraining rights when actually the whole point is making a freer and more democratic, more egalitarian and just society. So that’s what inclusive constitutionalism says, says that we need to be interpreting the Constitution in order to make an egalitarian, democratic society that works for everyone.

Melissa Murray So the court’s decision in Brown was assailed as living constitutionalism, like the court was proceeding on vibes in their own personal policy preferences in favor of desegregation rather than on the actual terms of the Constitution. What you just said about inclusive constitutionalism seems a little bit different from what we understand to be living constitutionalism. So can you really tease out for us what the differences are because you’re talking about broad principles in the way of living constitutionalism, but it seems meaningfully different from the critiques of living constitutionalism, right?

Madiba K. Dennie I think that the living constitutionalism idea left itself open to a lot of that vibes based critique by basically saying that, of course, the meaning of the Constitution changes without actually asserting how it should change. So that’s the that’s the gap that I’m trying to fill with inclusive constitutionalism, saying, yes, of course it changes and this is the way in which it should change. It should be changing in order to have this freer society that includes and works for everyone that, like all persons, can be treated with dignity and like act on their rights. Because I think that the weakness of the living constitutionalism idea is because if you just say the meaning of the constitution changes, then the follow up question is like changes How? Like changes to what? Like, are you saying that it can mean anything? And I mean, realistically, yeah. We have seen that over all of constitutional history, not just with people who were considered themselves living constitutionalist, but with originalists. They be making the Constitution mean any old thing that they want to. But I am trying to provide a principled statement of how it should change. So it’s not. Yes, whichever way the wind blows, saying this is the way we should be doing things.

Leah Litman I think that’s also a way of differentiating, you know, your theory of inclusive constitutionalism from popular constitutionalism, you know, which is the theory that maintains the Constitution should kind of proceed and be interpreted according to popular majorities. But of course, the pushback to that was, well, what if. Right. A majority of the country, let’s say, embraces the Stop the steal movement or January 6th. Right. Are you saying it should change there? Right. You know, and not like that. But, you know, in the spirit of putting forward an alternative to originalism, you know, I guess I would love to hear your views on how important you think it is that opponents of originalism name and claim an alternative to originalism. So part of this question is, you know, does it take a theory to build a theory? But another part of the question is, you know, I think some people thought a virtue of originalism was, you know, maybe it’s stupid, maybe it’s wrong, maybe it’s trash. Right. Like, as you say. But it can be explained in like five words, right? So it becomes like a buzzword or almost a meme that people can just use in confirmation hearings or public statements and, you know, like sounds like something even if it’s nothing. But but I guess, you know, what are your thoughts on, you know, the the need for alternative theory and an alternative theory that might sound something like originalism in that respect?

Madiba K. Dennie Yeah. Originalism main value is as a branding exercise and a mobilizing vehicle. It let them say something with the air of legitimacy while cranking out conservative policies. And I hear what you’re saying about that. Does it take a theory to be the theory? I want I want to share for the readers. You know, you have your you have your. Scalia. I don’t have to be it just have to be The best theory is supposed to be better than their alternatives. And believe me, like, that’s not that’s not hard. And then you have Professor Alan Schumer Minsky, who came out with his great book titled Worse Than Nothing, saying that originalism is, in fact, worse than having no theory at all. But I but I do think there is actually another way you can have a theory, because I think and I think there is value to that in that sort of mobilizing way as well. And that I think that people want to know what judges should be doing. Beyond. Not that I think they can look at the originalist court and recognize this as a far right conservative hellscape, but still want to know, you know, like, okay, well, what should we be doing then? So I think it is valuable then to be able to say this is the thing we should be doing to be able to say, and because of constitutionalism, it can be helpful and motivating in that way as well and help you connect with people, connect with other advocates, connect with people who, you know, could be could be brought on board to support the goals of of progressive advocates if they’re not actively advocating themselves. Because the idea of the Constitution means a lot to a lot of Americans. And I think that originalists shouldn’t get to lay claim to having the one true idea of the Constitution, especially when that idea is so bogus and harmful. I think there’s merit to saying there is an inclusive understanding of the Constitution. This is based on the Constitution itself, like in the reconstruction amendments that can help us get to a more just future. And this is something that we can all get on board with and work towards.

Melissa Murray To that point, Madiba, what would you make of the liberals and liberal scholars who advocate repurposing originalism for more progressive ends? You know, there are lots of outfits are really in the business of showing that originalism doesn’t have to lead necessarily to conservative outcomes, but could actually lead to progressive possibilities. Is it okay to reclaim originalism or is there a flaw in that as well?

Madiba K. Dennie I do think it’s flawed. I understand it, but I think it’s flawed. I think that it’s valuable insofar as you’re making the point that originalists are lying to you all the time. To say that like like a bear, they’re claiming to be dependent on history, but this isn’t even a good understanding of history. I think that that has some some value to it, just to, like, let people know this is nonsense. But as a as a matter of being an actual guiding principle and of like convincing people about how you should understand the Constitution, I don’t think doing originalism from the left is actually that valuable. I think it’s still conceding the premise that the way we should be understanding the Constitution is by linking it to some imagined version of the past. And I also think that it definitionally kind of sets you up for failure, too, because I don’t want something that we’ve had before. I want better. I want us to have that more democratic society and better understanding of the 14th Amendment, like even the 14th Amendment, which I love, which Imani Gandy referred to as the Black ass amendments, which I found delightful and amusing. Like, these are the sort of baseline racial justice amendments. But even they, when they were first written, weren’t as expansive as they are now. Like it didn’t apply to women, for example. And that’s something that Scalia said outright in front of people where folks could hear him was like, yeah, no one ever thought that the 14th Amendment applied to women. Like, that’s not actually what it means. So I think if you want to do originalism but make it leftist, you’re that’s a dangerous you’re walking into the originalism trap that way. So we are best served by crafting a whole new method of interpretation distinct from their artificial constraints.

Kate Shaw So we’ve been talking, you know, kind of broadly about, you know, methods of interpretation and something that you do in the book that I think is really useful is not just a sketch out in broad terms your vision of inclusive constitutionalism, but also to walk through what an inclusive constitutionalist approach to some of the court’s recent cases would look like. So that includes abominations like dogs, which we’ve already talked about, cases like in the gun case, which we’ve talked about a lot in the podcast, but also cases, you know, even where you agree with the outcome the court reaches. So a good example there I think is Department of Commerce versus New York, which is the case about the Trump administration’s attempt to add a citizenship question to the 2020 census. So for folks who haven’t read the book, can you just walk through what kind of, on your view, an inclusive constitutionalist approach to that case might have looked like?

Madiba K. Dennie Yeah. Well, I think that so the census clause of the Constitution says that we need to count all persons residing residing in the country for apportionment purposes. And at the Trump administration was putting forth this novel idea and claiming that it was, in fact historical and originalists, even though this is not the way things have ever been done in the entire multisensory history of the census. I got a lot of feelings about this. They are saying that actually only only legal citizens should be counted. And I think that this is plainly at odds with the way the Constitution should be understood. It went through an inclusive constitutionalist lens because. They are they are declaring that some people are less than people like quite literally a la the 3/5 compromise. It’s basically rebooting that and it is wiping some people out of the of the countries out of the population base and then compromising the allocation of political and financial power that comes as a result. It very and very deliberately is trying to oppress marginalized people by excluding them, excluding them from the population so as to exclude them from political power and economic benefits. And this is just blatantly at odds with everything the reconstruction amendments are supposed to do. They’re supposed to put a stop to stuff like that. That was the whole grand idea. So I think that was a really clear example of how an inclusive constitutionalist understanding could work, even if, as you said, the court got to the right conclusion, they think they got to the right conclusion for the for the wrong reasons. In in the expenses case, basically, John Roberts decided it based off of saying the Trump administration was clearly lying. And so saying this is an administrative procedure act issue because you’re supposed to be honest about the reasons why administrative agencies are making decisions and so on. Like this man is really sitting here and saying, I can excuse racism, but I draw the line. And Administrative Procedure Act violations is like, be serious. You are you are missing an opportunity to say something much more important about the role of the Constitution in protecting everyone and how we all have a right to be to be counted at a census is quite literally about who counts in America, and it’s at odds with the reconstruction amendments as they should be properly understood to ignore that.

Leah Litman So in addition to the books, focus on interpretation, you do also discuss court reforms, you know, including court expansion and term limits and other meaningful reforms that could limit the court’s power and promote democracy, you know, including some of the ones that President Joe Biden has recently come around to. So what is your vision for the structure of the Supreme Court? You know, how many justices would serve or how long would they serve? Would there be any changes to the appointment process or the court’s authority? What does an inclusive constitutionalist court look like?

Madiba K. Dennie Yeah, well, there should absolutely be a bigger court. That’s just easy peasy, no brainer. They should there should be a bigger court. There’s there’s no reason why a country of this size should be governed by this, like itty bitty handful of Yale law grads, basically, who get to get to rule forever. So we we need a bigger court and then a more diverse court. And I do think it makes a lot of sense as well to realize when appointments happen in addition to create the creation of term limits, because it is absurd that the direction of the country can depend on like whether one little old lady who’s like a repeat cancer survivor can like keep on living. Like that’s that’s not that’s not how a government should function, but that the weight is on this tiny little old lady’s back. We need to we need to have another another way of doing things rather than depending on like when the Grim Reaper comes knocking. So I think that regularizing appointments makes a lot it makes a lot more sense. And term limits also makes a lot of sense. So again, if that’s the only that’s the only role in the in America’s government, where you have someone get to rule forever for the rest of their natural lives, it’s absolutely absurd. I think we should also this hasn’t been as as big as a part of the public discussion as, say, court expansion or term limits has. But I think in addition to limiting the power of any individual justice, as I think term limits and court expansion, do we also need to look at limiting the power of the court as a whole? Because the court has been amassing more and more power for itself and using this to obstruct anything even approaching progressive policy making? And so I think that this could look a bunch of different ways, whether limiting the jurisdiction the court has. My hot take is that the court just did not have the ability to to review any statute enacted under the authority of the reconstruction amendments. You’re saying if it’s if it’s a reconstruction amendment based law, the court just has to mind its business. It can apply it and does not get to strike it down, as it did with Section five of the Voting Rights Act, for example. I think you can also look at making easier mechanisms for for Congress to respond to court to say. Seems like maybe maybe some sort of mechanism where if the if the court makes a decision on a law passed by Congress sort of goes right back to Congress for a quick yea or nay vote? I think so. I think some mechanism like that would make it easier to respond to the court’s decisions quickly in real time than just this feeling. But I think a lot of people have of being stuck with whatever nonsense the court does. So I have I have a lot of thoughts on on ways that the courts could be structurally reformed. But I do think that disempowering performance for the court as a whole should be considered in addition to these ones that are more about individual justices.

Melissa Murray Well, speaking of the nonsense that the court does, your last chapter talks about what we, the people, that is, laypeople and lawyers can do to take back the Constitution. And it’s a really important intervention, especially as we go into October term 2024, where the court will hear yet another slew of cases that imperil really critical liberties. And there’s a case concerning gender affirming care for minors on the docket. There will be a challenge to the ATF’s regulation of ghost guns. How can inclusive constitutionalists wield the public outrage over the court and its recent originalism forward decisions and direct that energy toward influencing more just outcomes in the upcoming term? So what can listeners do? What can readers do? Are there any other recommendations besides just getting mad and drinking ourselves into a blind stupor?

Madiba K. Dennie Yeah, you know, no, no shades, words, anger and drinking. Two things I enjoy. However, we’ve got we’ve got to do a bit more than that as well. And I try to put forth a couple different strategies in the book. I also want to be clear that this is not an exhaustive list of strategies by any means. I think that we always have room for more creative responses to the various like assaults on our rights and assaults on reasoning that the that the court is doing. But some that I try to put forth are constitutional izing your arguments Like I think that sometimes we are like leaving power on the table by not saying actually like the Constitution requires this or the Constitution does not permit that. Whereas this was something that the right wing had done even after a row was was decided. Conservatives never stopped saying that abortion is unconstitutional and they worked and kept saying that until more people started believing it. And so I think that we should make sure to seize that sort of discourse shaping power as well, and just declaring things that we think should be constitutional are basically it’s like a Michael a legal version of fake it till you make it.

Leah Litman Or if you build it, they will come.

Madiba K. Dennie Right. Right, exactly. There’s a lot of power in acting out your constitutional vision as well. I describe this in the book with a story about the Montgomery bus boycott, basically saying how thousands of black Southerners said, We think that segregated busses are unlawful and therefore we are not giving the segregated bus system our money. We’re not riding the bus and created a lot of pressure on on the city, which was being deprived of those bus fares to to reevaluate how it was thinking about the law. And so I think that any opportunity we have to build that kind of collective power and apply pressure on any sort of legal body, whether they be congresspeople or courts would have what have you. And like any any such opportunity is good. Also, again, just like acting as if your vision of the Constitution is already correct. I think that we saw we saw people do this before. Role was the law of the land. How there were sometimes it’s like like underground, basically like abortion networks to provide people care anyway. And we are and we’re seeing that now as well as some folks are dedicating themselves to making sure that people can still get abortion care regardless of what the court in their state says. I think that’s really important to keep doing.

Kate Shaw And not just that doing it, but you’re saying to use both. Both are doing it critically important, but also doing it and using a constitutional register to talk about the imperative of providing people with autonomy and access to health care. And those things are constitutional values. They align with our vision of the country. Exactly. So it’s the two it’s the sort of the theory and the praxis kind of come together. So, unfortunately, we have to leave it there. Thank you so much for joining us. The book, once again, is The Originalism Trap How Extremists Stole the Constitution and How We the People Can Take It Back. It’s available at bookshop.org as an audiobook. Read by the author and wherever you get your books. Once again, Madiba, thank you so much for the wonderful book and for taking the time to be with us today.

Madiba K. Dennie Yes, thank you for having me.

Melissa Murray [AD]

Kate Shaw Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell with help from Bill Pollock. Michael Goldsmith is our associate producer. Our interns this summer are Hannah Saraf and Tess O’Donohue. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production Support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production. And thanks to our digital team Phoebe Bradford and Joe Matusky. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at YouTube.com/Strict Scrutiny Podcast. And if you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode and you wanna help other people find the show, please rate and review us. It really helps.