« The Weeds

After RBG


Vox’s judiciary expert Ian Milhiser joins the panel to explain Ruth Bader Ginsburg’s legacy and the future of American jurisprudence


"Ruth Bader Ginsburg’s legacy, and the future of the Supreme Court, explained" by Ian Millhiser, Vox

"The Surprising Conservatism of Ruth Bader Ginsburg" by Kimberly Wehle, Politico

"Social conservatives feel betrayed by the Supreme Court — and the GOP that appointed it" by Jane Coaston, Vox

"As Trump rushes to fill a court seat, conservative groups fear missteps" by Gabby Orr, Politico

"What happens to the Supreme Court (and the Constitution) if Trump wins" by Ian Millhiser, Vox


Ian Millhiser (@imillhiser) Senior Correspondent, Vox


Matt Yglesias (@mattyglesias), Senior Correspondent, Vox

Jane Coaston (@cjane87), Senior politics correspondent, Vox

Dara Lind (@DLind), Immigration reporter, ProPublica


Jeff Geld, (@jeff_geld), Editor and Producer

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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
Support for this episode comes from click up, we're losing out three hours every day, switching between all our work apps, but you can get them back with click up a flexible platform that brings all essential tools into one place, we can prioritize tasks. Collaborated, docks check with your team and track goals, so companies like Oberon web flow use click up as their mission Control Centre, replacing every other after we're using before cook up eating guarantees to help you save one day week and get more done. It's completely customizable, it's free forever! So try click up today at click up dot, com, slash the weeds, a man I had always been super sex If you are a woman, there just work the realm of opportune it is available to you for almost all of american history that are available now and Ruth Bader Ginsburg said I am going to stop that. And then she did it
hello, welcomes another episode of the Weeds Fox media podcast network. I met in place. He has joined today as usual by James costed and pro public as lend, but we also thought in light of the changing news environment, that we should bring onto this he and Mill Heizer? He is a senior corresponded at box. A specialist in judicial and constitutional issues. I think, a of a former. The aids and also has a minister he's on voting rights, that's running in the weeds feed are currently these days, but you know we wanted to talk about in a wheezy way. I think a lot of the political conversation has gone to questions of hypocrisy, questions of retaliation, wishes of democratic strategy, up
but in a weeds away, and I think we just want to try to talk about what's happening here, and I think that that starts with trying to understand and appreciate the actual legacy of Ruth Bade Ginsburg, who you know is like like Army g swag for sale at a store across the street from me in a way that, like there, they just isn't for like a lotta Kagan right. I wish there were I think that there are and we'll get into this little bit is that one of the reasons I'm excited this conversation is because there is like the notorious Arby's g, the personality that existed almost entirely separate from the actual justice. Today, we're gonna talk about Justice, Ruth, Better Ginsburg, her impact, the specific legal changes, will or could happen with her no longer on the bench and what this means for our politics in a more structured
kind of way and in a less sweatshirts you can buy on that place on Fourteenth street Conaway, I actually strongly disagree. I think that the cultivation of our bee g is something that lake you know, despite the cage I kind of couldn't happen to somebody who hadn't come at a particular time that she came in american jurisprudential history. It's interesting because She has nominated and placed on the court in the early nineteen nine days, and then it's only with her descent. And a twenty thirteen case that it becomes the leg. Shots fired, emerged, e r b g, which so there's a there's a break, and so she has a lot of opinions going for almost twenty years of being on the court that are not hashtag. Shots fired, hashtag, girl, boss, right in its work,
kind of separating her legacy as a judge, which is essentially as a Supreme Court justice, even though she did have a pellet career before that from her contributions to american law which like- and I think that this is a history that, to a certain extent, been reclaimed. As people have try to find a solid footing. For their army chief random. But it's still a worthwhile history. That's been reclaimed is the kind of looking at the role that she hide in kind of the forging of sex, Discrimination as something that needed to be given and like. The legal term. Here is strict scrutiny but like essentially, she is a pivotal figure in turning what had been for like a century. This very narrow, fourteenth amendment sense that the fourteenth amend it was supposed to be for black people, and so therefore there was a little bit of space to save it deserves
Action against black people was unconstitutional, although, like obviously it took, you know until the mid twentieth century for that to really mean anything, but you could use that argument for other groups must be for the most part. They like there's some jurisprudence and therefore like ancestry or national origin, that still closely related to raise its because of the work of Ruth Peterkins Bergen less because if any one particularly brilliant argument, she came up with than because of a strategy of litigation and argument that she pursued over the course of several years that she ultimately not only brought american law to a place where sex discrimination in law, both like explicit and often in a thing,
that only became clear like at the level of your applying for a benefit, but you, a single father, can't get a benefit, is only available for single mothers. That kind of thing not only allows the courts to say. Government has has a very high bar to meet to enshrine such discrimination in law, but also helped create a system that loud that level of scrutiny to get applied to other forms of discrimination as well, and so it is actually very substantial legacy for this particular moment in centre left politics when, claims of identity and structural discrimination are something that's being paid so much attention to that, like in law, which is often a realm where there is a very explicit desire to avoid look too much social science or evolving norms, or you know that there is very there's generally a desire to make your argument without having to refer.
You reality ideal. You what to do both, but like you can't just do the latter, she was able to reach reality into law, in a way that it helped a lot of people after her now that's different from like her legacy. Her legacy, as a judge, doesn't show that kind of pioneering spirit, but it does reflect what kind of the current state of liberal jurisprudence, which is that it's a the unification of a view of the federal government's job being to protect rights, with an attention to what the actual policy implications of various decisions will be, and we saw that both in her efforts to hold Missouri these together, like in the Obamacare cases where she was crucial in getting the other liberal justices to sign onto it? John Roberts opinion that they might not have
you know that might not have been there ideal opinion in order to preserve the law and also in heard a sense like the shall be county dissent that gave her in such prestige. So I think that both of you make good points when you, get the arc of her history and why she became a figure figure when she did the irony of justice, Ruth bade. Her Ginsburg is that, as she gained more form power ass. She became a judge and then a justice she were seated in her influence on the law. Like her most significant impact on the law. Was the feminist jurisprudence that she convinced this court to implement when she was still just a lawyer she began a judge in nineteen eighty shortly before Reagan, came into power and the liberal coalition started to collapse and as a justice shouldn't, you spend most for time and dissent, but she spent her entire time. Court watching the law moved inexorably to the right
more and more conservative justices were appointed at so I think the right then why the mythology of of Justice Ruth bade her Ginsburg emerged when it did was because there were this tremendous pace? and longing for a past. Amongst liberals, when they felt like things were possible, I mean America had always been super sex if you are a woman. There just work the realm of two unities available to you for all. Stall of american history that are available now and Ruth bade. Her Ginsburg said I going to stop that and then she did it and in Twenty thirteen, when the notorious Darby Meth emerge, we just been a government shot down? We ve been through a huge fires,
over whether or not we are going to default on our dat. There were very real real questions about whether America was capable of doing anything, much less making being transformative programme. Of change, and so a lot of this mythology, I think, grew from this nostalgia for front for an era where big transformative change was still possible, and Ruth Pater Ginsburg was our bridge to a world where it was possible. I was struck by the fact that circulated on twitter that She is the first woman to lay and stay at the. U S, capital which get on both obviously women's historic exclusions from positions of power, but also the fact that pioneering generation of sort of first is very new ride, so I mean we'd, better Ginsburg, joined the Supreme Court. When I was twelve daring, Jane. What the younger than that they ended
suddenly O Connor was already on the cord, so it doesn't strike me as like crazy, like a woman Supreme Court, just swayed, A woman secretary of State woman sent as you know like the debts have been my whole life within Europe I got an you like, but how can it be that nobody is when state before we better get so again, while Sunday, O Connor still live that on all bride who still live right, like their their elderly? At this point, right but it means that that pioneering generation is very very close to us and now passing away, perhaps starting with bits Ginsburg herself in a sort of an interesting way, right and we were close sweat. We were so close to the reality in which Hillary, becomes the first woman president and maybe tips thee, Wisconsin and Pennsylvania Senate raises along
her and Army jeez, appoint you. No replacement is appointed by the first woman president. Where Scully a seat is replaced by illiberal, where the five four could we'll talk about the contours by their roughly been a five. Every of justice majority in one form or another for decades spite and where we're so like you, know the movie sliding doors right like what we're we're circles very different meaning of Justice Ginsburg strategic retirement, her replacement her pass. Soon after that and it being a of tying, a bow on this kind of arc of second wave feminism and instead in what seems like a real moment for four progressives of loss or for conservatives of opportunity to somehow like put an exclamation point on things. One
I think is fascinating. I think that is worth getting until it a bit. Is that the calls of argue our been g also reflects the growth of the acknowledgement of judicial supremacy? I went back and looked in, Ginsburg was confirmed by a Senate vote of ninety six to three like the idea of getting a Senate vote of ninety six to three on any Supreme Court. Justice now or in the foreseeable future seems unimaginable, and this was obviously coming two years after Clarence Thomas's confirmation hearings which were on political describe them as tempestuous that I'll just if that there, by the idea and its after the kind of miss, you know the be moderate information account of how this works is that, after the Robert Bork nation under the again you and you now have a much higher. You know polarization and scrutiny
of judges, opinions and like clearly that narrative is complicated slightly by the fact that you have this pioneering liberal jurist getting dominated by getting confirmed by ninety six to three. It's also interests it is. She is a liberal jurist who also Republicans thought that she had a conservative reading of liberalism, which I and be fastening I'd love to hear more from in on this, but I think also the idea of like how conservatives think about thought about Justice Scalia, except that when they helpful exclude his opinions on flag burning, which he was right on flag burning, but Ginsburg seems to symbolize the idea we can have our own justice on this court that, as the new attempts to male buoy wrote in at times today, and a lot of people have been tweeting list that the passing of a Supreme Court justice
should not throw american politics into this much disarray, and it is a sign that we have for twenty Eads God years now. We have basically left much of the most important decisions made to the Supreme Court, because Congress would re rather tweet about things they think are mean or something like that. I'm interested in how the symbolism? with better Ginsburg, also indicates the growth and understanding that judicial supremacy is here to stay, put so kind of an understanding of the limits of that right like I do think that a lot of the end it's hard to kind of road, the counterfactual on what happens. If Army G isn't made into a lake millennial white female icon, but I think that some of the appeal that she had an inner last year's was that she
was straining a little bit against the constraints of the notion of the meaner soup, superlatively neutral judiciary. She had the same. I know, on the one hand, like wasn't a seeding maximally to the idea that judicial appointments are a strategic tool for the democratic party. In so far as your few inertia there would have been an obvious opportunity for her to retire in the second Obama term, and she didn't do so, but at the same time, her comments during the twenty sixteen election, which certainly like got got blown into a deal by the right boats did reflect a level of expressing preference, for a presidential candidate that wasn't precedent it and, of course, the fact that she clearly why
Did it to be known on her death bed vit. She very much did not want to be replaced until not not just until after the election, but until a new president was in place, which says something about how she thought the election was going to go, does reflect the growing frustration of you know it. In the same way that route Bitter Ginsburg, when just squeeze it I'd much was made of their friendship and the fact that they were able to have a good personal relationship while still disagreeing on things, and I think that the eye codification of her by liberals reflects a certain frustration that link we would be willing to be friends. Inner like it's, not our fault, we're playing by the rules were being civil were being friendly, but things have gotten so bad. The other side has just gotten so uncompromising vit, it's unfair to ask
ass to be the only ones were constrained by norms, so I'm gonna take the somewhat contrary in position that Justice Ginsburg was actually an icon of judicial restraint and issue and unique amongst liberals or democratic judges in this sense So we're not fighting about Justice Ginsburg right now, this big fight over what you just said. I should be it's not about Justice Ginsburg, it's not about Robert Bork, either it's about one thousand, nine hundred and thirty seven. So so you ve already got into I'd only on board. I am times the mayor, Are we talking court packing Ah, oh, no! This is way before cranking. So before about kosher chickens, Kosha chickens, talking about old mill, like all the wars going to love this stuff. Ok, so we had a super,
action, Airy Supreme Court, starting in the nineteenth century that basically felt the added cited very vague passages in the constitution that it had a free raining ability to veto walls arm. You know that much of the stars referred to as the lock nor error after decision called, lock, nervy New York, which struck down a New York law preventing Bay. Read from overworking their workers Emmy the decision that error. You read them and a really just feels like they're making Staffa by I mean like there is some jurisprudential coherence, that, like their building off of ideas that other people made up in the past, but its very, very difficult to tie them to constitutional text what happened in night must, though they did. The idea right was that there was a freedom of country right. That was the fear.
I was delighted to spell it out right, my as as as Roby Wade rests on a right to privacy rights that some on the right have found. Jav be dubiously, grounded Roy text. The idea that you couldn't regulate working hours in a bakery was said to violate a freedom of contract idea, which allegedly we exist in the fourteenth amendment so that that's exactly right. So the idea was that you have a right to contract to work really long hours at really low wages, and the wall can't take that so called right away from you, but anyways so nice, Thirty seven Roosevelt spans his first term in a big fight with the Supreme Court. He eventually wins. The Supreme Court decides that it's gonna back away from me decisions where the court was exercising Vito power over the economic policy of the United States and for like a years there was a truce in place. The truce was that
Everyone agreed that labour policy economic policy big questions of why you know Our economy should be regulated, were not the business of the court's Democrats M Republic. Agreed on this, and if anything Democrats were trying to defend, and Roby Wade, which was there one out wire that you did kind of resemble Lardner, but for the most part, everyone agreed that have a very limited role and when Obama came in the supreme port started and you could serve lawyers started bringing back the kinds of arguments that were off the table three generations in order to go after Obama CARE and as conservative judges started, sizing more power. Republicans were like We like this, and so that's what this fight is about the
this fight is a bow whether or not this truce that has been place for eighty years, where we all agreed that the courts have a very limited role and will fight over Roby weighed on the side should remain in a fact or whether we should have we're gonna abandon this truce and if Republicans control the court. That means that they're gonna say asserting a veto power over much of american law in the process of let's take a break and then I want to come back in and make that turned into what is at stake here. If the last year's. How does anything it's that we? Don't? what will happen next, but there's One thing we can all be sure of the only future one we can all share and leading the charge in building that future his mercy core. With over forty if humanitarian work under its belt building together, is a mercy course DNA and as the climate this increases their partnering with those on the front lines
making resources more accessible to farmers across the globe strengthening communities against against escalating natural disasters. Ensuring people have the who's. They mean to thrive mercy course doing orkut matters, but they can't do it alone, that's where you and I commend together. We all the power to reshape the world when it seems like every day brings a new crisis when every news alert makes you want to throw your phone across the room, we may start to feel a little powerless mercy course here to remind us. We don't need to Turkey merely based action. We can make change. We are nothing if in this together. What's next up to all of us. Learn how you can be a part of what possible at mercy core dot. Org that's our see why c, o r p s dot org. So, in a kind of some ballistic sense we use have a court that leads to the right, but we're just Kennedy was typically the kind of the swing bow and
justice, Scalia unexpectedly died, while Barack Obama was president. There were the opportunity to accomplish something that would have been quite historically significant, which was to be replaced. With a mere garland, was considered a moderate choice among democratic lawyers, but Scully was very, very conservative Rachel. You think in terms of the the info it's on the media. There would have been a huge conduct, switch that, of course, it happen in part because the stakes are so large. There, then Justice, Kennedy, retired right and he he strategically timed it. So you would be replaced by republican President and Republicans Senate, but everyone's general understanding was that he hadn't it was instead Jack, I'm a level of he was going to be replaced by someone who was just like him he's replaced by breaking nah, who was a clerk of his temper, was understood to be
more fully a member of that contemporary conservative movement? And so that is an obvious. Change in that in the pivot points right here, just Ginsberg you know, is well known for her legacies. An attorney in the seventies is well known for her fiery descents, but is precisely not well now for her like swings status and her actual like influential super. Any not did she never wrote a Supreme Court decision, but we. Don't have like, over the past five years, like tons of our Rigi written opinions of the court that are now to be replaced by baron opinions or or what have you. In concrete terms, I mean, I know Jane. You view Britain some about this. What were the rights, continuing disappointments with Roberts court that they could seek redress on in this new era
early. Another way to put this is: why is there so much more excitement? I mean as much as the kind of outcome. Of the Kavanaugh hearings ended up. Getting a lot of conservatives fired up about him just kind of in a defensive way. There wasn't the kind of excitement over the chance to replace Anthony Kennedy who had been a swing justice with a conservative that there is now to replace Rbg, and I think that that does speak to the kind of disappointment with the Roberts court. That has emerged that now there is an opportunity to correct right. I think part of this has to do with a level of specificity that you are seeing social conservatives specifically using realized that specifies, Gideon and specifically, are basically the same thing but whatever so one of the unspoken or not often spoken and purpose of the Republican Party for a social conservatives in many respects is too. If you vote for Publican President's and elect Republicans to Congress, they will put
place. Conservative judges who adhere to its original list view of the constitution and and will deliver a conservative rulings on abortion cases on cases having to do with many of the most important aspects of public and private american life. The challenge there is twofold: one, the purportedly Originally justices who were nominated and put on the court have been making decisions that such a conservatives don't like and that this has caused a lot of, conservatives to argue, like original ism has failed us. The the Federalist society has failed us. We need to be extremely specific about what we mean. What we say that a conservative justice or an original is justice. We do not mean sort of a mundane adherence to aid the libertarian, the conservatism we mean you have to
that Roby Wade was wrongly decided. I quote here from Centre Josh Ali who said that there is a case earlier this year: Bostock VIII, Clayton County, which held that federal law prohibits employment, discrimination against elderly tiki workers and is essential written by justice. Neo Gore such an so Holly responded that this sense represents the end of the conservative legal move movement, as we know it, because our quota Is if we ve been fighting for original islamic extremism, and this is the result of that, then I have to say it turns out we have been fighting for very much or maybe we ve been fighting for quite a lot, but it's been the exactly the opposite of what we are fighting for its rights and that with the rulings and Boston and with other cases, I think that there is a sense that these specificity of what these hearings are going to do
like where the Federalist society can't claim that this is an originalist justice. You can't say that this is someone who appeals to the constitutional norms of federalism. You have got to say: ROE versus Wade was wrong. Decided Oberg, Rafael was wrong with a side of these decisions. Are wrong decisions not eve whether or not they apply to a textual reading of the law. But these these rulings were wrong because in some way social conservative say it is I mean it. So I do what it calls him attention. I dont think we need to go down this rapid hold that just because, if you're throwing out the prospect of a consensus that oh burger fell, was wrongly decided, it's just. Noting fur listeners that, like there is absolutely a push toward explicitness on row and like there has been for decades organisation about that. But it is because so much the conservative establishment appears
given up the fight on gay marriage, in particular in the post over for all landscape, which is a fascinating development, and I think that that speaks to where social conservatism is right. Now that's why you see among a lot of social conservatives and understanding that now the fight is on issues of religious freedom on the specific issues, abortion still as a major driver, but one I've spoken a sofa. Conservatives Dave essentially said that, like it's, not that they changed, poster Bert fell as just let the mouth noises day use now are different because they re. Nice that, on those specific issues, I if there were a case that went to challenge o burger, fell the number republican senators who would run away from reporters would be extraordinarily high, especially because I think that there is an understanding that the issue of abortion is a cross market driver and
splain that by saying that there are a lot of their number of eligibility conservatives there are gay conservatives who are married and their very much as a sense that on that particular issue. You you'll hear sometimes some conservative personalities who argue wine libertarian on those issues or this shouldn't have been left to the courts at all. Or that say, that's a issue that should be handled by the states are in some respects. But bullshit is viewed as an issue that can be a driver across those classes where you can be a gay conservative who is opposed to abortion. You can be these cross cultural, crass demographic entities,
still feel the same way about row and about abortion Writ large and which is a really fascinating shift for anyone who has been alive for longer than five years. There is no need to bring that up. Jurists, potentially, is that I think it's it's worth pointing out that, like as much as jurists talk about especially on the right about you know the original public meaning of the constitution and how things should be left to shift because norms and political windows or shifting is the extent to which you are going to be coloured, in which fights your prioritizing, by which political and social that you see is worth fighting or not. And so I think that that, as we look toward a conservative era of the Supreme Court, something that should be understood as a kind of an untested relation between what you would say in a law, seminar is lake, not great law, and you would actually be willing to go after. I think this is a about whether judges are distinct from other policymakers,
judges are clearly policy by it. The issue, who here is that like? If I'm a lawyer- and I want to get a court to do something- I have to wrap what I want that court to do in the language of the wall and if I can't make a ploy Global sounding legal argument for what I want to get done in theory. Judges are supposed to say no debate at so like to take a very rich said, Kate June Medical is a abortion case that the Supreme Poor just handed down and the facts of June Medical are pretty much identical to a different abortion case that the soup, court decided just a few years ago. The only difference is that Justice Kennedy was on the court for the first case. Just as Cavanaugh was on the court for the second case, and why, of the rules that lawyers expressed a rap their arguments. It is called story. Decisive were supposed to be deferential to pass the Patriots so John Raw, birds really hates abortion and he really.
Wanted to rule. I get strove anyway. I am sure that he is eventually gonna get around to overruling it, but You bring the exact same case. If you re John Roberts, his decision to June Medical or you read, is concurring. Oppian basically saying is come on, follow the rules folks, and we know what Josh is saying. You know what a lot of these social conservative voices are saying is based we don't want to have to deal with that constraint, and more, that is a real constrain on judicial power. This need to follow you legal norms, and that is what I really think it is being fought over years, whether those dorm should still constrain as republic gain more and more seats on the Supreme Court. Anything you ve seen this for a long time in the different opinions that the different conservative justices right about certain things, like. I was looking recently back at the
long ago, country schools ACT case in which the Supreme Court. Five four decision strikes down this provision of the country, schools act by saying this is too tenuous. They related to interest commerce to fly and for liberal justices descent, and they say, no like this- is just the same as the new deal. Cases like this no difference here and the opinion of the court is at its very different for all kinds of special reasons and Bob above a bar, but then Clarence Thomas has a concurrence in which he says no, like the liberals are re. This is just The aim is the new deal cases, but the new jail cases were wrongly decide and we should reverse right now, It's always attention right. So I, if you look at the you, know, litigation the civil rights movement, the first, ship civil rights victory is that their commercial me and W C p when they're all all, like oh
accommodations aren't really equal or o. This actually spent provision regulating the railroad industry that hasn't been enforced correctly rag, and it takes a long time. It's like a fifteen year round until the Brown be bored of education decision, in which you know like that, the wording of the court was like oh yeah. There's all decisions were wrong. I like that It's a big difference so like there's a reason that we look, Brown as they like iconic historical turning point Not some earlier decision about her Missouri didn't have a law school for African Americans or a particular thing about her train in Arkansas right because, like but people who leave strongly in something like they want. The disease that says, like you, were right all along. You know, like pro life, people think love wave is really bad right. Not that, like we should
limit, the scope of the precedent in some kind of way right and they would they would like the court to be like up like you guys were on the right side. History, the whole time like this, was terrible but What's the range of issues where this is possibly because we're talking you met about a one judge turn, and I did no matter how right wing this new judges do not gonna team up with Clarence Thomas and overturned like everything from the past eight years. I think that's, hopefully right So let me I guess, let's start with like this. The issues at the social conservatives really care about, because that's what we were just discussing so I was already dead. I mean row has been on life support since Justice Kennedy retired its The matter of you know how long it takes for a competent lawyer to bring a case that not literally identical to another abortion case that went
other way, three other fights that I think we're gonna see so there's huge fight going on right now about religious exemptions. There's a case pending right now involving the city of Philadelphia delegates, it's some authority over child adoptions to a new to various private groups of one, they delegated to as a catholic group and that Catholic grew discriminates against algae between people won't let them adopt children and so the question here I mean this is actually very surprised at the court took this particular case because most of the cases we ve seen so far have been about whether a private business it isn't doing. Anything governmental at all is allowed to discriminate against customers who are gay or trans because of the rules
just beliefs of the owner. This case is coming. It's it's a catholic organization, but the Catholic Organization, exercising government authority is a government contractor for the the city of Philadelphia and if the Supreme Court, which think is now likely says that government contractors have the right to claim Legists exemptions to the law. I mean that goes to some pretty hairy place. The main religious exemption cases, though Basically, I mean like we have allowed standing like sex discrimination, body of law- also, the catholic church does not ordain women priests. So that's the uncontroversial version of that's right that, like we're not going to dislike bake the catholic religion illegal as part of our general purpose, of having sex discrimination lush, but then you get into these these edge cases like ok, can a bit
claim religious reasons for violating generally applicable the rights laws. Are you know, hobby Bobby, and you know it goes to like. Do you have to have these exemptions in the law, or are they option, or can you just sort of claim them free lance and that's become as Jean within that we come like the retreat, but you go in El Gb T issue where I think conservatives are no longer by, turning to like in french discriminatory principles into the public sphere, but wanna say you can't have brought discrimination walls. So I think that's right, but there's a real question as to how, broadly, exemptions gotten. So, like one decision that I think is safe at least for Now- is the boss stock decision. That was a decision interpreting. It was not a constitutional decision interpreted a federal civil rights law to say
that it is illegal to fire, someone for being algae, BT and That decision was sixty three, so you know, republics will have to fill to more seats for that applause Lee on the chopping block, but the thing I am fairly certain is going to happen. Is that the Supreme Court is going to say that if you are an owner of a business and you claim of religious exemption to employing gay people or by people or Trans people, you're allowed to fire them, but there are all kinds of edge. Within that, what if I'm a mid level manager at Walmart, and I have a religious objection to arm were working. Having sullen work. For me, who is gay but Walmart, the corporation doesn't have an objection to it. Am I, as a mid level manager, allow claim, a religious right to fire, this person, and so You can imagine these religious exemptions being interpreted so broadly that, even though boss
talk nominally remains good law, pretty much anyone discriminates against a gay person or Trans person has an out. You have started early we are talking about the new deal and I was talking bout. This danger ninety five case about was an hour. You know people associate the Supreme Court praying merrily with these cultural politics issue is but Justice Kennedy, he was often aligned with liberals on social issues and cultural controversies and yet He strategically timed. His retirement should be replaced by Donald Trump and critically. I any both it is we not entirely coincidence that Republicans put Kennedy and Oconnor on the bench in the first place, even if they later claim to regret and also both Kennedy. No Conor themselves saw them
Elves is more aligned with the conservative legal movement and, in my view, the moral of the story is pretty clear that you know that the judicial brain, primarily concerns itself with economic and regulatory issues, or at least that's the the part of the conservative legal movement project. Even if it's not as interesting to like demand on the or the media right yeah. Like you go to the federalist societies. Gatherings like as a Federalist Society convention, I meet a handful of people who are litigating religious liberty cases or who, like work for Anti abortion group, most the p I meet there in a roomful of one thousand lawyers. Probably nine hundred of them are lawyers at firms that represent corporate clients who want their corporate clients to be able to not be sued.
Or to not be regulated. And yet I mean that's really where the veto it doesn't get the headlines, but it The energy is on the conservative. Many of us just eat, just like the bulk of lawsuits thread that just like you guys like. If you look at what happens like data day in a federal court house like it's, a lot of business is suing each other oftentimes for obscure reasons, And then you know it's like people trying to make claims against companies that they feel have screwed them over somehow and different kinds of regulatory battles are just like a very hefty volume and its one where the law has been. It's not like we're going to wake up with just the skins virtual place, and confirmed and like all my God is the conservatives in the judiciary like they right if they ve been there for a long time, but this, but there is always a question of how far does this Go Rex, because you don't just o Connor Justice
Kennedy. It seems justice Roberts as well have never been comfortable saying exactly like. Ok, we're just we're just tossing a couple generation. Work from case law. So let me start with them that I think I have a high degree of certainty is gonna happen very soon so thoroughly. On a federal laws where Congress rather than like setting out here, are the rules that you have to apply obey. If you are a power plant, it instead says here is a broad general policy that we want be implemented to make sure that there is less pollution coming from power plants. And it is the job of the EPA to implement that policy so, for example, on the Clean AIR Act says that power plants have to use the best available technology to reduce emissions with certain factors such as costs taken in into account, as well The EPA is job too
study how the technology is changing and as new technology emerges and it becomes affordable. It wool and down, what's called a regulation, and that regulation tells the power plants, ok, that you can't use this old text, gee that you ve been using. You now have to install this new technology, and Justice Gore such in particular, has wanted to, if this rate, Congo his power to delegate power to federal agencies in this way- and he has the vote to do a lot of that year. He already had the votes even before again Burke, died for the Supreme Court to say you're, going to play a much more active role in vetoing regulations that we think goes too far, and so like here. I'm going to get a little fuzzy because I don't know exactly what's going to happen, but with each republican view, now that the Supreme Court has decided that it's going to claim a
toe power over these regulations with each Republican appointed to the court. They're just going to use that veto power more and more often, and so we could potentially really soon be living in a world where laws like the Clean AIR Act or the clean Water ACT really don't have much force at all because they depend on the EPA power to regulate an EPA is about to be stripped of a lot of that power, and I mean so. This is a sort of a general characteristic of the american political system. Is that so what we do in a few different ways right? So there's there's the EPA style in would you have a unitary executive agency whose director serves at the pleasure of the president and which promote gets worse than you? Have the independent agency model right? So you have the s he see. The F t see the c c? And these are five member commissions with a partisan balance and they have a light Quayside legislative function,
and then you have the Sherman ACT model, where the fact that the main anti trust statue in the United States against crazy you try to figure you're like you like. What is the Anti trust law say? Look it up at its as well. They can't have a restraint of commerce, and you like why I am so. Basically, the whole thing is a point to the judiciary. Re examine so it then he can operate in in three different ways right. So it's like the courts can say what one move is to say: you'd be a style delegation. You can do other move is to say. Ok, we are going to question the legitimacy of the independent agency set up as like I as a concept, and then the third is that, like the the most traditional is that kind of Sherman ACT. Putt punt registry, like those that can be an agency law which is talking of courts but then like what the judges think is explicitly the most
one factor in the whole thing. Like that law, it's a weird thing: you look it up and you like the Senate, like almost unanimously, and I got. How could that be in its Conservative members just had confidence that, like nothing, will come of it. I think it's also worth pointing out that late when we talk about laws getting struck down, especially in the context of because the court rules that Congress can't punt to another branch of government. There is an obvious remedy here, which is for Congress to pass new laws. The debate that we're having over the concept of how much power the courts should have in the three branch system is, to a large extent a debate over well, assuming that Congress is in, capable of passing a new law to conform to a judicial principle, which really does also come out of shall be county where the Voting Rights ACT had been. Overwhelmingly ray theorized onward on abroad by partisan basis, and
in the aftermath of the court, deciding that sections of it were no longer constitutional. There wasn't a critical mass of interest in Congo in authorizing a new version or kind of rule of changing those section. Of the Vieira to conform to what shall be how he had done or even to Lake, propose an alternate ito, robust framework that could then have gotten litigated in its own right, so late in our eyes joking for a bit that the current flow of government is the executive branch me policy. The judicial branch rules on that policy and the Congress votes on when to sides went to start voting on judges who will do the who will do the evaluation, but, as we kind of talk about the role of the court's, it's impossible to talk about that without pointing out that, like the
other two branches of government have settled into an equilibrium. That is by no means inevitable right, and I think that that really speaks to one of the major challenges here. Is that the reason why this has become this fight to the death? The reason why Windsor had to come? before the court. Why? Oh burger fell had to come up before the court is because the let like, even when you look back. I remember I was writing something about how the court and how conservatives have thought about marriage equality in the past is that do remember back into thousand for when a major voting issue was The idea of getting a constitutional amendment to ban same sex marriage nationwide, and I was like a big thing that George W Bush was going to push through. He won again in two thousand and four and I dont know if you recall what happened after that, but that did not take place. So much of our- and perhaps this is one of my libertarian Hobbes horse, but so much of our politics is based on the price.
Position of doing things for the performance of doing things in Congress, where the things are not actually done, and so with marriage. That fight was taken from court to court to court to court. I was at the human rights campaign back in twenty fourteen and two thousand and fifteen, and that was so much of just recognizing, like you need to get the the right cases before the right judges, because this needs to go through the right circuit. Because at no point the individual states that voted on marriage, the individual states that put marriage equality on the ballot. There was a recognition that, if you wanted to have marriage equality at the federal level for the benefit of the taxpayer, that that came up in the Windsor case or for any of the other bit benefits that happen. When you are allowed,
be legally married in office. The estates you this was going to be a court challenges is going to be a court battle, because I think that we have seen that it's not new. We ve seen that even with loving versus Virginia this nineteen sixty seven is that struck down bans on message, a nation or mixed race, marriage as fun people call it. You recognise that there is an understanding by many of the people. Who are making these arguments that that was the perfect test case. This case coming out of, obviously the loving so aptly named, but the understanding was that if they did not get this right, there would be states- and there are still some states today with laws that no one follows or that that would still bar mixed trace marriage. And so this is not a new challenge, de lack of willingness of Congress to do things on these big cultural issues, with the understanding that the courts will have two, because otherwise the status quo would remain for decades into the future. But I do think
That's how we got here and that's. How would this moment has been shaped? Is this understanding that the courts are where we answer these big questions, where we get answers to these big questions where you can be as upset as you want to be about the asiatic or about a bird befell or about Windsor. You can call it the dread Scott case, but then about three years later, you're gonna say that you're, a libertarian on the issue and everyone will have moved on. So I want to point to the OECD case this that's pending right now, if anything. If anything, I think this case belongs in its own category, like I was talking before about how Gore such as price, has this whole theory that Prague, at a half this Friday to dismantle, to the Clean AIR Act, but I at least he since here about that, like there is a serious like wealth.
Without legal theory behind what he wants to do there. I happened to disagree with it, but like it's not like these just making stuff up here, there is Obama CARE case pending before the Supreme Court. Right now, and I mean I can go into detail about the go argument. It is essentially that, when Congress reduced, the out of the individual mandate to zero so where they effectively repealed it, they secretly repealed the end higher law and I can go into more of it, but I promise you if I spent an hour explaining it it'll just make it sound. Less stupid home just make some more stupid Israel. Worst legal argument, literally the worst sort legal argument. I have ever receive an argument in the Supreme Court of the United States and, if This argument were to prevail. Congress could fix it.
The easily they they could raise their the penalty under the mandate to one dollar and that that would be for data to repeal. Yeah or they get like there's all, but, like the bat here, like the reason why this stupid wall suit was bought was brought, is that republicans are betting, that Congress is gonna, be too dysfunctional and if they can just at five justices to do some extraordinarily partisan thing here: no one's gonna build you're a damn thing about it and, like obviously, that's my biggest fear about a six to three republican core, like I mean I'd like to think I'm a good lawyer. I can like red precedents and I can read two cents and try to figure out what do action individual just as want to take the law, but there's just going to be a lot of these black sheep cases and if the Supreme Court Green light them by buying in to this naughty Obamacare case, the Federalist Assize Gonna take one
Get that and go oh game on. We can bring what ever we want now, and I can even begin to predict what the court, is do in the future. So I mean, I think another way of thinking about this right is that You dont, be american legislative process. Has a high number of veto points right that you could think about eight, formerly identical system of judicial review, but with like you know, canadian model of of parliament right in which laws passed very expert, and in that case, some of these doctrines right that that sort of exist on paper might not be that consequential in cracked sway greatly limited the discretion of executive agencies, but how highly efficient unit camera. Parliament, then ok, like you, would
spawn to executive branch experts, recommending changes by rapidly drafting new laws and passing right and like a fair enough and select, one could say. Ok, I it would be bad right to have a system in which change is to technology or to the objective situation, are addressed ledge light of means rather than to independent agencies, but don't to realize that vision of how government should function. Would be like you know that you're turning attract a right is it you, gotta posts, Lever is like less discretion to the agencies, but in the other direction, like more actual institutional capacity to to change laws. Raw that's right, above all, we have in America rights. Does this no effort to increase that right to have a rapid ping pong between Congress and and the judicial system works
basically taking a system with a lot of veto points and just adding one more. So it's good for you. Had a majority. You had a big majority ten years ago, like it's gone now so by law, and how are you gonna get it back? so. I am glad that there's data on this that shows that it is getting worse up. Fester, Rick Hassen has a paper on this and what he has shown and I'm doing from memory. So I apologise if I don't remember these numbers precisely but from like nineteen. Seventy five, until I think nineteen ninety Congress, were ruled about twelve Supreme Court decisions every in every two year period between a bit between election, so too, Now by overruling that doesn't mean that they completely wiped it out. They might tweak thing they might like change a procedural born, but in some way Congress Past, I believe a dozen walls every two years that in some way changed
all from what the Supreme Court has said. Ah, I can't remember how far study goes. I think it goes to twenty. Thirteen, but in the most recent period that he looks at that number down to about two point eight times every two years, so Congress is overruling the Supreme Court about twenty percent as often as it used to and if Europe ass? This I read, you think he got free game now, because you know you know that the call that the Congress isn't going to step in that's a good place to wrap it up. I'm thanks so much ie and for joining us thanks, Jane and dare I thanks outdoor sponsors and to our producers. Gown The weeds will be back on Friday.
Transcript generated on 2021-05-15.