A Quarter of DOJ’s Lawyers Left. What Comes Next Is Worse. (w/ Melissa Murray) | Bulwark Podcast

0:00 It was a dark day for democracy last week.

0:02 I don't know what else to say about it.

0:04 And it was even darker because the court was so craven about what it did.

0:09 And Justice Alo wrote that he was

0:11 preserving section two of the Voting Rights Act.

0:15 That's like, you know,

0:16 my teenager tossing his room and then telling me he cleaned it.

0:19 Like really?

0:20 Okay, we rearranged it.

0:23 [music] Hello and welcome to the Bullwork Podcast.

0:30 I'm your host Tim Miller.

0:31 Delighted to welcome back to the show professor at NYU Law School,

0:34 co-host of the Strict Scrutiny Podcast,

0:37 an author of a new explainer on the Constitution,

0:39 the US Constitution, a comprehensive and annotated guide for the modern reader.

0:42 It is out today.

0:44 She is car holding it.

0:47 It has a salt rimmed edge.

0:49 [laughter] It's looking good.

0:51 Best margarita you'll ever read.

0:53 Happy Cinco de Mayo.

0:54 Do some light constitution reading.

0:56 I also just found out in the green

0:57 room you somehow have a child going to college,

1:00 which feels impossible.

1:01 You look amazing.

1:02 How is that possible?

1:03 Oh, Tim, thank you.

1:05 Um, yes, Melissa Murray has a college-aged child.

1:08 Melissa Murray is in her fifth decade.

1:12 Wow.

1:12 But, um, you know what keeps me looking so young?

1:14 Keep keeps me looking younger than some members of this administration.

1:17 What's that?

1:18 I can read the Constitution.

1:19 And I do.

1:20 And that's that's moisturizing and the truth.

1:24 That's the ticket.

1:25 It's the real originalism.

1:26 Read the Constitution.

1:28 Look like a younger person.

1:29 How do you think things are going with the Constitution right now?

1:32 Just overall, it's not great, Tim.

1:34 I'm not going to lie.

1:36 Um, okay.

1:37 We've got Congress that seems to be asleep some amulant.

1:43 Um, we have a president who is asserting what I think is

1:49 the most muscular vision of executive authority that we've seen in decades,

1:54 um, maybe even ever.

1:56 And we have a Supreme Court that basically does what it wants.

2:00 Um, precedent be damned, uh, prior rulings, everything.

2:05 Just, you know, does whatever it wants and facilitates

2:09 this administration in some of its worst excesses.

2:11 So, it's not great.

2:13 Um, but I think that's exactly the kind

2:15 of moment where we the people need to intervene, read the Constitution, um,

2:20 read what the Constitution was about and reclaim it for ourselves.

2:24 Yeah.

2:24 I was so excited, um, when I saw that this what you're writing on.

2:27 I when I heard Melissa Murray has a book and wants to, you know,

2:30 you're always welcome on no matter the topic.

2:32 But I was like, this is great for a number of reasons, but for one,

2:35 as like a former Republican,

2:37 maybe this is not true in the world, but I don't know.

2:40 But for me is like there was a period

2:42 of time when the constitution was kind of republican coded.

2:47 They at least wanted to talk about it more.

2:48 You know, there was like this very like we were

2:50 the ones it was the young Republicans that had our pocket constitutions.

2:54 I've got a pocket constitution in like six

2:56 drawers in the house like a old Catholic

2:58 granny has a you know has the pictures of the saints in every in every room.

3:01 I've got the pocket constitution and you know the young de I was a little

3:05 cringe I think for the young Democrats and I do think that in this moment

3:10 that that I'm I think an effort to flip it is important and need

3:14 it or you can object to the fact that that was ever even a thing.

3:17 Well, I mean I think I probably would

3:19 have hung out with you young Republican or not.

3:21 I was never a young Republican but I also did have a pocket constitution.

3:25 I think that was the point.

3:26 I think just being a young American means you ought to have a pocket

3:30 constitution because the whole point of this was that people would read it,

3:34 they would debate it, they would grapple with it.

3:36 And you know, maybe this is more of a tenant

3:39 of an older brand of Republican partisan affiliation.

3:45 But the Constitution at bottom is

3:47 a document that's about limited government, right?

3:50 It is genuinely about putting restraints on the state and you know

3:56 I think that's something right now we could all get down with.

3:59 Hell yeah.

4:00 Okay.

4:00 Um we we're going to to do a little bit

4:02 of the book to the context of some there's a lot

4:03 of legal news items I want to run through with you

4:05 and then you know maybe some other news items as well.

4:08 Uh and then I want you to regail me with some book anecdotes.

4:11 I want some fun constitution facts.

4:13 So start thinking about that.

4:14 There are a couple I've already spotted from from skimming the book.

4:17 Um the uh the first one is obviously the big news of on the Voting Rights Act.

4:21 Um and uh you know the the gutting of it.

4:25 I had Mark Elias on over the weekend.

4:27 We kind of did a deep dive on this and I

4:29 think kind of even since we taped on Saturday,

4:32 we're seeing even more of the southern states coming out and basically

4:36 saying they're going to try to jam through a redistricting here.

4:40 Even though in some of the states ballots are printed in my state of Louisiana,

4:44 people have already voted.

4:46 Um but they're still going to do it anyway.

4:48 Um what is your sense on the state of the play

4:50 both like on the politics and the and the legal side.

4:54 So I mean this is basically a bravo house real

4:58 housewives of Atlanta who going to check me boo moment right?

5:01 I mean these states are like who going to check me?

5:03 Nobody.

5:04 Not the Supreme Court probably nobody.

5:06 Uh it's a really this is a break glass emergency moment I think for democracy.

5:12 uh the Supreme Court in that opinion written by Justice Alto,

5:15 a 6 to3 opinion written by Justice Alto basically eviscerated the Voting

5:21 Rights Act and its promise of a multi-racial democracy for this entire country.

5:27 I mean, the idea that when states seek

5:31 to remedy racial gerrymandering by thinking about race

5:35 and constructing a map that gives minority voters

5:40 an opportunity to elect candidates of their own choice,

5:42 they're the ones engaging in race discrimination.

5:45 I mean, that's just bonkers.

5:47 I mean, this is the court taking its vision of colorblind constitution,

5:52 its imagined understanding of the 14th amendment as entirely colorblind,

5:57 which does not code with the history of the 14th amendment at all,

6:00 and now extending it beyond the usual

6:03 context like college admissions and affirmative action,

6:06 and now extending it to the most important right that we have,

6:10 the right to vote, the right to make our voices heard.

6:13 Um, it was a dark day for democracy last week.

6:16 I don't know what else to say about it.

6:18 And it was even darker because the court was so craven about what it did.

6:23 And Justice Alo wrote that he was

6:25 preserving section two of the Voting Rights Act.

6:28 That's like, you know,

6:30 my teenager tossing his room and then telling me he cleaned it.

6:33 Like really?

6:34 Okay.

6:35 We rearranged it, right?

6:37 Well, that's basically what he said.

6:38 We realigned section two and its jurist prudence

6:41 um to to to accommodate this new understanding.

6:45 that's eviscerating the Voting Rights Act.

6:47 I mean, the whole idea of section two

6:50 was that you could bring these claims against

6:54 individuals who were trying to limit the power

6:58 of minorities to get to the ballot box.

7:00 That was what the 15th Amendment was about, infranchising African-Americans.

7:04 First, African-American men.

7:05 And then the Voting Rights Act in 1965 made

7:08 the promise of the 15th Amendment good for everybody.

7:11 and the courts pretty much put pretty much put the kibos on that.

7:15 uh the impact on representation is going to be so dramatic and I

7:19 mean some of this is kind of obvious but I just when I

7:22 was looking at a chart um that uh was put out of lean

7:26 just of like black representatives in Congress like over time in history and you

7:31 look at it and there's like a small period where there were some

7:33 in the south um uh you know before uh the rules were in place

7:38 of the voting rights act uh remedied uh to prevent them from having

7:42 representation uh and then there's a gap

7:44 of a period where there's basically none.

7:45 There's a couple in the Northeast and then the Voting Rights Act passes and then

7:49 like you see a big jump to where black representatives like match or get,

7:53 you know, around the percentage of their, you know,

7:57 representation in the population, right,

7:58 which is a community actually being represented.

8:01 And you're already seeing that kind of trying to tick back down.

8:04 And and I just think that the the chart will be so shocking uh you know,

8:07 if you look at it in 2029 if

8:09 this isn't fixed because you'll see almost a total reversal.

8:12 Well, I I'll put it in even more stark terms.

8:15 Um, the House is obviously one aspect of this.

8:17 I think it's even more pronounced in the Senate,

8:19 which is already a chamber that is somewhat distorted

8:22 by the whole idea of minority rule and the fact

8:25 that least the least populous states get to be

8:27 represented in the same way as the most populous states.

8:30 But prior to the Civil War,

8:33 there obviously hadn't been any black representatives or senators in the Senate.

8:39 After the Civil War, Mississippi appoints Hyram Rebels to the remainder

8:44 of a term and he serves from 1870 to 1871.

8:48 He's the first African-Amean to be appointed to a seat in the Senate.

8:52 Um he's only there for a year.

8:54 The whole time he is plagued by claims that he is an illegitimate senator,

8:59 that he's not a citizen,

9:00 and they advert's Dread Scott decision for that argument.

9:05 Uh there's another senator also elected from Mississippi, um Blanch Bruce.

9:10 He serves until around 1881.

9:13 After reconstruction ends in 1875, I think 1875 in the Hayes Tilton compromise.

9:20 We don't get another black senator in the Senate until 1967.

9:26 And that's 2 years after the Voting Rights Act.

9:28 And we've only had I think now it's 13 black senators in the Senate.

9:33 So, I mean, it has been really stark.

9:35 I don't think we're going to have a Congressional

9:37 Black Caucus going forward if this is allowed to stand.

9:42 Um, in large part because it's not just

9:43 that it's going to decimate black representation throughout the South.

9:46 Like, that's already happening and it will happen.

9:49 But the fact that Justice Alo left the shards of section two

9:54 in place means that it is available

9:57 going forward so non African-American litigants um

10:02 can challenge California for example when

10:04 California draws an opportunity district to counteract

10:08 what is going on now and counteract the losses that are being made.

10:11 Now, white voters can simply say,

10:13 uh, section two, this is racial discrimination,

10:16 and they will sue, and under this court's ruling,

10:19 they will likely be successful.

10:20 So, that's the even more craven part about what the court has done.

10:24 They haven't been honest about actually eviscerating it,

10:27 and they've left the shards of it in place so

10:29 that it can be co-opted and used against minority representation going forward.

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12:12 You talk about in the book about this 14th,

12:14 but all just the reconstruction amendments put together,

12:16 the 13th, 14th, 15th, and you know how, uh, you know,

12:21 the way that they were written, uh,

12:23 the contain clauses that have Congress like enforce the amendments through

12:27 different types of legislation like this is essentially what the VRA was.

12:31 Uh I'm just wondering talk about

12:32 that and and how you know the for these originalists

12:36 like how this uh reflects like what

12:39 the original intent was of those reconstruction amendments.

12:42 So the reconstruction amendments are passed

12:44 in the wake of the American Civil War,

12:45 the bloodiest conflict that's ever been fought

12:47 on American soil and a true moment of rupture

12:51 for this country where the country is sort

12:52 of like how do we put ourselves back together?

12:55 And they recognize that they're going to have to do something drastic.

12:59 they're going to have to actually remake how they are organized as a country.

13:04 And this means a series of new amendments.

13:06 So the 13th amendment abolishes slavery.

13:09 It basically says that slavery or the badges

13:12 and incidents of slavery cannot be used going forward.

13:16 Um they do make a provision for forced labor as a punishment for a crime,

13:20 but otherwise you're not going to be able

13:22 to just like re-entrench this under some other name.

13:25 and they enforce it not just against the state but also against private actors.

13:29 The 14th amendment deals with the entire question of citizenship.

13:33 Um it is to counteract Dread Scott,

13:36 that 1857 decision that said African-Americans and anyone

13:39 descended from African slaves could never be citizens.

13:42 Uh they counteract that uh with the 14th amendment.

13:46 They also lay out a whole series of provisions

13:48 of individual rights that the states are not to infringe upon.

13:54 And then they realize that that's not going

13:57 to be enough to guarantee a multi-racial democracy.

14:01 It's not going to be enough to integrate

14:03 the formerly enslaved into the body politic.

14:06 They actually need to do something explicit about infranchisement.

14:09 And so what they do is they pass the 15th amendment that says

14:12 that you cannot deny the right to vote on the basis of race.

14:16 And that effectively infr infranchises African-American men.

14:21 From the start, there is an immediate campaign

14:24 to cabin the impact and effect of the 15th amendment.

14:28 Uh the South does all sorts of things, much of it raceneutral,

14:32 like the imposition of pole taxes and literacy tests.

14:35 And you know, they'll say like if you want to vote,

14:37 you have to pay this pole tax.

14:39 Um or if you want to vote, you have to pass this exam.

14:42 And you might get a buy though if your grandfather

14:45 voted in this election or voted in, you know, two elections beforehand.

14:49 So they do these raceneutral very sneaky ways

14:52 of making sure that the black electorate is absolutely disenfranchised.

14:58 The 15th amendment has a section two and that section two authorizes

15:03 Congress to pass legislation to enforce the terms of the 15th amendment.

15:07 The 14th amendment has an analogous enforcement clause.

15:10 It's section five of the 14th amendment which gives

15:13 Congress the power to pass legislation to enforce its terms.

15:17 It is under those enforcement provisions

15:20 that the Voting Rights Act of 1965 is passed

15:23 in 1965 in the wake of a bloody battle that results in people being killed,

15:28 people like literally fighting for the right

15:30 to vote and paying for it in their blood.

15:33 And Congress passes this law that is meant to address

15:37 the fact that the states of the former Confederacy have for years,

15:41 a generation and more been suppressing the right to vote on the basis of race

15:46 and the terms of the voting rights act

15:48 and section 2 basically mimic the 15th amendment.

15:51 And so for this court to come back and say the 15th amendment is race blind,

15:56 the 15th amendment is colorblind.

15:58 You're not supposed to take race into account just

16:00 belies the whole purpose of what they were doing.

16:02 They knew that what they were dealing with and they

16:05 knew that to remedy the impact of race discrimination,

16:09 they might actually have to think about race and race discrimination.

16:12 And so the idea that you shouldn't or you can't,

16:14 it's impermissible to do so is just literally mind-boggling.

16:18 But that's what this court is doing.

16:19 We move on to some of the other uh court news.

16:21 We have the Myth Prese case.

16:23 So on Friday, the fifth surf circuit issued a nationwide injunction banning

16:28 the mailing of the drug uh drug material to the Supreme Court and Alto.

16:32 interestingly on Monday temporarily lifted the ban on mailing.

16:36 I'm not really sure what to read into that.

16:38 I would read anything into that.

16:40 Um I mean essentially it's a oneweek stay of the lower court's order.

16:45 Um first of all the fifth circuit is on one and has been on one for some time.

16:50 I mean it is so far off the wall that even the court has to rein it in.

16:55 I mean the fifth circuit is basically the Supreme Court's PR machine.

16:58 It does stuff that's so outlandish that when the court comes in to correct them,

17:03 they the court basically looks normal and the court is not normal.

17:06 So the fifth circuit serves an important role.

17:09 Maybe I should go hang out down there just going to see what's happening.

17:11 That's right.

17:12 Those are your people, Texas.

17:14 Those are your people, Tim.

17:15 Those are your people.

17:16 Um but they initiate they basically implemented

17:20 this nationwide ban on mepherristone on the view that uh these doctors who have

17:26 challenged the distribution of mephrristone via teleaalth

17:31 and through the males are effectively thwarting

17:34 Louisiana's law that prohibits abortion and it

17:38 is denying Louisianans and the state

17:40 of Louisiana the opportunity to protect unborn life.

17:44 uh that it is uh dangerous to use meopristone.

17:48 Um this is a little spotty here because uh they say

17:51 that two women have had ill effects from the use of meopristone.

17:55 Yet they note that thousands of women have been

17:58 ordering and receiving meopristone through the mail via telealth.

18:02 So two women have ill effects but thousands are actually receiving it.

18:06 I'm not sure what that says about the safety record of mephipristone.

18:09 do know that the FDA for years has determined that my methopristone

18:13 is safe and that not only is it safe for terminating a pregnancy,

18:18 it's needed to terminate a pregnancy in circumstances where the pregnancy

18:21 has already been lost and the woman has had a miscarriage,

18:24 uh, medication, abortion is the standard

18:27 protocol of care in those circumstances.

18:29 And this obviously throws that into disarray and endangers

18:33 the lives of many women who will need it.

18:35 one in three women suffers pregnancy loss and needs to have this kind

18:39 of treatment uh to maintain fertility and to have children going forward.

18:44 So the court steps in um there is

18:46 a request for a stay of the fifth circuit's decision.

18:50 Uh it comes from the manufacturers of the drug Danco

18:53 and another manufacturer and Justice Alo who's the circuit justice

18:57 for the fifth circuit is the one to whom the petition

19:00 for the stay is directed and he grants a oneweek stay.

19:04 So that has lifted this ban for a week.

19:08 Um, member Pristone is broadly available through

19:11 teleaalth and through the mails for a week

19:14 and we'll basically get a timeline for how this is going to go before the court.

19:20 Steve Vadic, a friend of my podcast, Strict Scrutiny, uh noted on his Substack,

19:25 that Justice Alto frequently as the fifth circuit circuit justice,

19:30 um will have to implement stays.

19:31 And he often implements stays with no deadline

19:34 and no time limit in issues that he likely agrees with, but puts a time limited

19:40 stamp on the ones with which he disagrees.

19:42 So, the only thing I might read into this is that we

19:45 already know what Justice Alto's vote will be on this case.

19:48 I think the real question is what will be

19:49 the vote of Brett Kavanaaugh who in the DOB's

19:51 opinion talked about the importance of states being able

19:54 to do as they liked in the context of abortion.

19:58 That might weigh in favor of Louisiana.

20:00 It might also weigh in favor of the states with physicians who are

20:04 prescribing this medication because it's lawful

20:06 for them to do so in their states.

20:08 So I mean there are a lot of really important questions here.

20:11 And I will just say in conclusion,

20:13 this court told us they were settling the issue

20:15 of abortion when they overruled Row versus Wade and Dobs.

20:19 And here we are again.

20:20 It's it's just so weird.

20:22 Is seen as a swing vote, I would say.

20:24 I would assume on this or Gorsuch

20:26 h I mean, I don't like it's a six to three court.

20:29 I'm pretty much I I know how I think most of them are going to vote.

20:31 Like Justice Thomas is definitely not going to be

20:34 allowing me to flow freely throughout the United States.

20:37 I think the real sort of wild card might be the chief justice.

20:40 Um I'm not sure about Justice Barrett.

20:43 Um she's a little wonky on that.

20:46 Uh Justice Kavanagh I think has said a lot

20:48 of different things about federalism and the right to travel.

20:51 I'd just be interested to see what he says at oral argument.

20:53 So is that uh going to be then in this session resolved?

20:58 Possibly.

20:59 I I think maybe not.

21:00 I mean this session is pretty much winding down.

21:02 Um it might be something that they hold

21:03 over for formal argument in the next term.

21:06 Um, I think we're going to find out.

21:07 I think right now there are sort of interim emergency um,

21:11 rulings that will be issued on the shadow docket,

21:14 the interim docket, and then we're going

21:15 to find out how this gets slated and resolved.

21:17 There's this New York Times story in the shadow docket

21:19 a couple weeks ago that was so interesting that I haven't

21:22 I had haven't had a chance to get to, but I'm

21:23 just wondering if you kind of want to weigh in.

21:25 I I didn't as I love this article as Okay, great.

21:28 Well, as not a court watcher,

21:29 I I guess I didn't realize just it's it's sort of similar.

21:34 It's sort of akin to like the filibuster story a little bit, right?

21:37 Which is like the filibuster was something that was used like a little

21:40 bit for a while in certain cases that were ext, you know,

21:43 where there were extreme cases and then all

21:45 of a sudden it gets institutionalized and now like every bill

21:49 requires the filibuster and like if you look at the charts

21:51 like a hockey stick on how often the filibuster

21:53 is invoked and I guess that's basically what happened

21:55 with the shadow docket starting in the Roberts court which is

21:57 something that I I didn't really realize but talk

22:00 to a little bit about that and what the implications are.

22:02 Sure.

22:02 So, you know, there's always been a shadow docket.

22:05 Um, it's usually for issues that have

22:08 to be resolved very quickly while litigation is pending.

22:11 So, it often was used in the context

22:14 of the death penalty or election related cases.

22:18 Um, that came up a lot.

22:20 It wasn't really used for issues like the issues we see it being used for now,

22:24 like actual substantive issues about the exercise of presidential authority

22:29 or whether the executive has intruded upon the prerogatives of Congress.

22:34 Those questions typically weren't resolved on the shadow docket.

22:37 Those questions were and I think properly resolved on the court's

22:42 merits document where it would be set for oral argument.

22:45 There would be full briefing from the parties.

22:47 there would be an oral argument and then the court would write a decision

22:51 explaining how it resolved the case and maybe

22:54 there are concurrences or dissents or whatnot.

22:57 What is happening now is that um more and more cases are

23:00 being decided um in the interim on the shadow docket which means

23:05 that the litigants will run to the court while the litigation is still

23:08 pending at the lower courts and ask the court to resolve a particular issue.

23:12 So, for example, when the Trump administration

23:16 tried to dismantle the Department of Education, it was sued and a lower federal

23:22 court implemented an injunction saying that they couldn't

23:25 do what they wanted to do um

23:27 by stripping the Department of Education of its funding.

23:30 And then the Trump administration left that trial

23:34 court that had issued that ruling and went

23:36 immediately to the Supreme Court to ask the court

23:39 for a stay of the lower court's ruling.

23:41 the state would effectively lift the lower court's

23:43 injunction and allow the administration to continue doing

23:46 what it was doing while the litigation then

23:48 made its way through the lower federal courts.

23:51 And um you know my colleague Leah Litman at Strict Scrutiny

23:55 uh refers to the shadow docket as the just the tip docket.

24:00 And [laughter] at first I didn't know what she meant.

24:04 Well, so was I.

24:05 And I got an education, I'll tell you what.

24:07 Um, so she explained to me I'm like,

24:09 "Why do you call it the just the tip docket?" She's like, "Well,

24:12 it's like when people who ab advocate

24:16 for abstinence say that if it's just the tip,

24:19 it's not really sex and you're not getting effed,

24:23 right?" She's like, "But you are getting effed."

24:25 And so the court says it's just the shadow docket.

24:28 It's not doing anything.

24:29 They're just interim decisions.

24:31 They're not changing anything.

24:32 But in fact, we're all getting[ __] Yeah.

24:35 You know, super interesting just like the types of things that it

24:38 was used for like they did a part of education thing

24:40 like it just be has begun to be used for a lot

24:42 of different things where it's like it's not an emergency actually

24:45 like that that should percolate up but like

24:46 the administration recognizing that the court is

24:49 amendable to these shadow docket requests is just

24:51 channeled more and more to the shadow docket.

24:54 And the thing that this um reporting from Jod Caner and Adam Liptac really made

24:58 clear was that there's a moment where it all kind of comes together and it's

25:02 in 2016 with the clean power plan where

25:06 the litigants the the energy industry the states

25:09 immediately run to the court uh to challenge

25:14 this clean power plan hasn't gone into effect.

25:17 It has the longest timeline for its implementation.

25:20 I think it wasn't even supposed to go fully into effect until 2030.

25:23 Uh but in 2016 they get a ruling on the shadow docket from the Supreme

25:28 Court and the memos that are reported

25:31 in this article in the New York Times makes

25:33 clear that the court and John Roberts

25:37 the chief justice in particular is really on one

25:40 to decide this and to like like to show the Obama administration who is boss.

25:44 like they really are worried that the Obama administration is thumbming its nose

25:48 at the courts that the EPA is thumbming its nose at the courts that they're,

25:53 you know, taking into account all of these outofc court

25:56 statements that EPA administrators and officials have made in like,

26:00 you know, newspapers or magazines or on TV,

26:02 but none of it is part of the record because there is no

26:04 record because this case has not formally been adjudicated in any lower court.

26:10 And you know, the court is just basically

26:12 of the view that the Obama administration can't do this.

26:16 And they don't wait for formal briefing.

26:18 They don't wait for oral argument.

26:19 They just stop it in its track.

26:22 And that's basically and and they don't give

26:24 a lot of explanation for why they're doing it.

26:26 It's a decision that they make and they decide to take

26:29 this unprecedented procedural step um

26:31 with very little discussion among the justices

26:35 and there's no discussion of the impact on the environment of you

26:40 know not allowing the clean power plant to go into effect.

26:44 Um, all the chief justice and the other justices are really

26:47 concerned about are the effects on the states and regulated industries

26:51 on the domestic power industry and the harm to those litigants

26:56 if the clean power plan is allowed to go into effect.

27:00 And it's contrasted with the way the court talks about

27:04 irreparable harm now when it's making decisions on the shadow docket.

27:07 is now when the Trump administration comes seeking a stay on the shadow docket,

27:13 the court is very solicitous of the administration's claims of irreparable harm.

27:18 Like basically thwarting the administration and doing

27:21 anything causes the administration irreparable harm,

27:24 which means the Trump administration almost always wins.

27:26 And so there's a real contrast between when the president

27:29 is a Democrat and when the president is a Republican.

27:32 Um, anything else particular on the court

27:33 you're watching over the next few months?

27:35 Well, I mean, I think the girls are fighting and I would love to see it.

27:39 I just want to know everything that's going on.

27:40 Justice uh Sotomayor at the University of Kansas had

27:44 some sharp comments for Justice Kavanaaugh about basically him

27:48 being clueless about how these Kavanaaugh stops where you

27:51 can basically racially profile people for purposes of ICE detention,

27:54 how that works in real life.

27:56 And I guess she kind of got some

27:58 flak from her colleagues about that because she issued

28:02 an apology u through the court's public information offices

28:05 and then said that she'd apologized to her colleague.

28:08 But on the same day that she issued that apology,

28:11 Justice Thomas gave a speech at the University of Texas at Austin.

28:16 And before he actually launched into his speech,

28:18 he acknowledged that sitting in the audience was Harlon Crowe.

28:22 And if you think that sounds familiar, who's that guy?

28:25 Uh, it was that guy.

28:26 He was like taking Justice Thomas on fancy

28:28 vacations and private jets and yachts and stuff.

28:30 So, Justice Thomas wants you to know

28:32 that he's still pinging around with Harlland

28:34 Crow and he basically doesn't give a[ __] if you care about it.

28:38 So, there's that.

28:39 Um, and then he went on to talk about how progressives

28:42 are basically a scourge that have cultivated the conditions under which Hitler,

28:47 Mao, and other despots have been allowed to rise.

28:50 And no, no apology was forthcoming from Justice

28:54 Thomas for basically insulting more than half the country.

28:57 This episode is sponsored by Better Help.

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30:11 The only good part that I can think of, the only silver lining to Justice

30:15 Thomas DJF is um that if he

30:21 was purely motivated by ideology instead of self-interest,

30:25 he would retire this fall.

30:27 Um just, you know what I mean?

30:29 Because he's pretty old.

30:30 Uh and uh getting up there and and I and you know,

30:34 if the Democrats take the Senate,

30:36 uh might be the last chance for him to get replaced for six years.

30:40 Uh maybe, maybe not.

30:41 or 10 years or or maybe that will not

30:43 happen and and MAGA will stay in power forever.

30:45 But it's a risk like he's putting he's putting

30:47 that seat at risk and he's doing so because

30:50 he wants to be the longest running Supreme Court

30:51 justice of all time and he only cares about himself.

30:53 So uh sometimes selfishness knocking on wood

30:56 that that in this case selfishness might backfire.

30:59 I mean let's all do a Ruth Bader Ginsburg.

31:01 [laughter] Seriously speaking of self selfishness.

31:04 Anywh who um the uh I want to talk briefly about Iran.

31:08 Um the the war seems to be escalating uh which is

31:12 relevant in the legal context because I was assured last week uh

31:18 that uh the president and the administration did not have to abide

31:21 by the war powers act because the war was basically over.

31:24 I mean it wasn't like over over but it

31:26 was over like we've won and there's a ceasefire.

31:30 This is what Trump [snorts] and Bessant and and Hegath were saying

31:33 on different words and so they didn't have to go to Congress about

31:37 this and uh you know now we have uh a a uh

31:43 you know a kinetic fighting starting again uh Iran shooting drones at UAE,

31:49 Iran and US shooting each other's boats in the straight.

31:52 Um uh you know uh Trump made a threat uh on Monday

31:57 afternoon saying basically Iran has 24 hours to get their[ __]

32:00 together or else no whatever I'm going to blow them to smitherines

32:04 again or whatever you know kind of fake bombast threat he's using.

32:07 So I'm just wondering I any broad thoughts you have on the state of play

32:11 are welcome but also how it intersects with the with the war powers act.

32:15 So again, most would say that this war that has

32:22 been conducted in the absence of any congressional authority,

32:25 much less just letting Congress know, hey,

32:27 I I plan to do this, uh, raises some real constitutional questions, right?

32:32 Um, Congress has the authority to declare war.

32:34 Obviously, the president is commander-in-chief of the armed forces,

32:38 but the whole idea is that they're working in concert together,

32:41 and this does not seem to be the kind of coordination

32:45 that was imagined by the framers in the conduct of war.

32:50 Uh the question of whether you could bring a claim under the War Powers Act,

32:54 um whether you know there is some sort of action one could take,

32:57 I think that's a harder question.

32:59 Um the Supreme Court has often been wary to take up questions

33:04 around war making powers on the view

33:07 that they present non-justitiable political questions.

33:10 The idea that the whole power to wage war

33:14 uh has been committed by the constitution to the congress

33:19 and the president the political branches and you know

33:22 the courts don't have much jurisdiction to weigh in on that.

33:26 So, I'm not sure that this is something that's ever going to get to the court,

33:29 but I do think there are real questions for Congress.

33:33 And, you know, it would be nice to see Congress

33:36 be more to see Congress more jealously protect its own prerogatives.

33:41 Maybe I'm wrong about this.

33:43 Obviously, there's nobody's won any money in the last

33:46 decade betting on Republicans in Congress to show some backbone,

33:50 but uh there is the Epstein example.

33:53 Now, there's only a couple of them.

33:55 Uh but we're kind of in the situation now and the majority is so small

33:59 and the war is becoming such a boondoggle

34:02 and it's impacting people so directly at home

34:06 um that you do wonder if some pressure starts to mount for them actually

34:11 for them actually to act um and to kind of use this as a way in.

34:15 I mean this is your belly wick and so I you

34:17 know I'm interested to hear what you have to say about it.

34:20 I, you know, [snorts] you've got to wonder when some

34:25 of these Republicans are going to figure out that it's musical chairs, right?

34:31 Like one chair is coming out.

34:33 Is it yours?

34:33 I don't know.

34:34 Like, but this guy isn't going to be president forever.

34:37 Um, not clear who the heir of Slytherin will be, but it's not going to be him.

34:44 like how how invested are you in continuing to carry

34:48 water for this guy um at your own expense?

34:52 I mean like it's a very unpopular war uh for all manner of reasons.

34:59 Why continue?

35:00 I I just don't get it.

35:01 Yeah.

35:01 This is why I wish Marjorie Taylor Green had stayed in Congress.

35:04 I know that's such a weird thing to say.

35:06 if you if you had taken this clip of myself before [laughter]

35:11 like why are you saying this you know taken it out of context

35:13 and showed it to myself I was like I must have been like man

35:15 shit's getting weird in 2026 who knows why I would have said that but because

35:19 I think she could have survived it and um and and and you

35:24 know you can you see it only takes like a little bit of backbone

35:27 for other people to start to to start to jump on board you

35:30 see this in other areas and and we'll see how Massie ends up

35:33 in his primary but I just think that a lot of Like this is unpopular.

35:38 I mean unlike all the other Trump stuff,

35:41 like he's done other things that are unpopular before.

35:43 The last time his approval rating was

35:44 anywhere near this was right after January 6th.

35:47 January 6th didn't actually affect anybody.

35:49 I mean like in the esoteric it did.

35:51 It affected our democracy.

35:52 It was a like nobody's personal life

35:54 changed on January 7th except for like obviously

35:57 officer Siknic and like the handful of people got jailed but like but the rest

36:01 of the country who was not there that day their life didn't change any

36:04 people's lives are getting worse and so I do think that this is a different

36:08 situation for that reason I don't well TBD I was intrigued by Marjorie saying

36:12 today that she had some text messages from Trump that she would be arrested if

36:16 she released so she's welcome on the pod anytime and we're happy to challenge

36:20 that because he has a very bad track

36:21 record of trying to arrest his political foes.

36:23 Um, so [laughter] so may maybe you should give it a shot.

36:27 But, uh, what actually what do you think?

36:28 That's a decent transition.

36:29 Uh, like what do you think about the revenge the revenge campaign by the DOJ?

36:34 I have a bunch of DOJ questions for you.

36:36 Is is pretty ham-handed.

36:38 And so, how do you balance talking about that um,

36:41 versus the obvious threats to the to the rule of law?

36:46 So, I mean, the first thing we have to just be very honest about

36:49 is that Todd Blanch is working overtime

36:53 to be America's next top attorney general.

36:56 And, you know, that's what a big part of this is because I mean,

37:00 the seashells indictment, like [laughter] when you've lost Jonathan Turley,

37:05 I I think you've lost the plot.

37:07 Um so one like some of this is obviously animated by personal ambition

37:13 and you know there is there is that and it is what it is.

37:18 The other thing I will say though is um I don't think

37:22 anyone in the Department of Justice or even in the Trump administration thinks

37:28 that any of this is going to be availing like resulting in Jim

37:31 Comey and you know an orange jumpsuit somewhere or anyone for that matter.

37:36 Everyone knows that the purpose of all

37:38 of these prosecutions is to cow dissenters into silence,

37:43 to stop dissent, to stop critics of this president and this administration.

37:48 Uh you can basically trace those prosecutions,

37:53 those ridiculous prosecutions to what the president

37:56 is doing with regard to the media.

37:59 Uh there is a very important Supreme Court

38:02 case New York Times versus Sullivan that is basically

38:04 the bedrock of a free press in the United

38:07 States and it basically says that you know

38:10 reporters will make mistakes in the course

38:12 of their reporting and they cannot be held accountable

38:15 as defaming an individual unless the individual can establish

38:19 that they made the untrue statement with actual malice.

38:23 is a very hard standard to meet um and it is what insulates the press uh because

38:29 and very meaningful about our free press

38:31 versus what you see in other countries actually.

38:33 Right.

38:33 Right.

38:33 I mean this is not what they have in the UK for example

38:36 where it's much easier to bring a defamation suit or a liel suit.

38:40 But it is what makes the press free here

38:43 and what enables the press to be able to hold

38:45 truth to power because they can speak freely um

38:49 so long as they're not doing it with actual malice.

38:52 the president though in suing these media institutions whether it's

38:56 CBS or ABC uh and and negotiating these settlements with them.

39:01 Right?

39:02 So these are cases that don't go to adjudication.

39:05 Um and you know most experts most first amendment

39:08 experts say that a lot of these cases aren't meritorious.

39:12 They're not going to result in the president winning.

39:14 But when they're settled,

39:16 it basically allows the president to sort of circumvent

39:20 the high standards that New York Times versus Sullivan

39:23 and other presidents would be require that would have

39:26 to be satisfied in order for him to prevail.

39:28 Allows him to circumvent them entirely and basically establish

39:31 the kind of system that they have in the UK,

39:34 a system that he has on many occasions said he would prefer.

39:38 And that's the worst part of the but only for him.

39:42 Yeah, it's an impartial system.

39:44 It's an unbiased system or or it's a biased system, right?

39:47 Not an impartial, it's a bias.

39:48 It means that every like when other people see

39:51 the settlements like when the public sees the settlement one,

39:54 they're like, well, something must have happened or ABC

39:57 wouldn't have settled or CBS wouldn't have settled.

39:59 And so that, you know,

40:00 cultivates in the minds of the public that maybe the press are against him.

40:03 Maybe there is something biased here.

40:04 So there's that aspect of it and then it just cows other

40:08 people from dissenting because nobody wants to get sued by the president.

40:12 No, it's a it's a good insight and I think that it was one of the things

40:15 that frustrated me the most about the White House

40:16 correspondents discourse and all this where I was just

40:19 I was just so frustrated that people

40:21 that the journalists that work at these outlets were were

40:24 going along with the charade while this assault

40:26 on their on their rights to free speech was happening.

40:30 It would be one thing if it was and I still would have

40:32 been against it probably but maybe less

40:33 passionately if it was just Trump calling

40:36 them the enemy of the people and it's a big kayfabe dinner and like

40:39 whatever they call each other names and you know we pretend like that's normal.

40:44 Uh that would be one thing but it's he's not just calling them names, right?

40:46 He's doing it a direct assault on their ability to do their jobs.

40:50 only when it comes to reporting on him and him

40:53 and his admin administration are they put at these threats um from attacks

40:58 from him and [snorts] and so uh participating in that to me

41:02 felt like uh you're giving aid to his effort to undermine

41:08 well that I mean it's not just the press he's

41:11 undermining with this so you know when he's rewriting for himself

41:14 and cowing other people into you know basically subscribing

41:18 to this vision of what the legal landscape looks like for media.

41:23 He's circumventing the court.

41:25 The court said what the law was in New

41:27 York Times versus Sullivan and they haven't said anything different.

41:30 Um, in fact, the court turned down an opportunity to rethink

41:34 and reappraise the whole landscape um in a challenge brought

41:37 by Steve Win that would have or could have overruled

41:41 New York Times versus Sullivan and they declined to do so.

41:43 This is the president basically usurping the court's

41:47 prerogative to say what the law is.

41:48 And it's not just in the context of the press.

41:50 He's also doing it with these executive orders against law

41:53 firms where he's telling law firms that DEI is impermissible.

41:57 And all of these law firms say, "Okay, DEI is impermissible.

42:00 We're not going to do DEI anymore.

42:02 We're not going to have like, you know,

42:03 a women's club or a women's alliance or anything like

42:06 that." The Supreme Court has never said that you could not address

42:10 the lack of representation or the historic the historic lack of representation

42:15 of a particular group in your industry by having these groups.

42:20 They never said that that was impermissible.

42:22 He's saying it's impermissible and people are just going along with it.

42:25 And so, you know, one it is obeying in advance.

42:28 Um it is obeying and creating a legal landscape that doesn't actually exist.

42:33 In fact, a couple Epstein items that have have popped up

42:36 and I think this is going to be more

42:37 and more in the news uh as the Dem Democrats

42:39 take over the House of Representatives most likely next year.

42:41 But even right now, you have House oversight um

42:44 now doing uh trying to do oversight on Pam Bondi.

42:47 I know that she's not administration anymore as a former attorney general.

42:50 The Dow Dow a [laughter] couple uh well, is the Dow back to 50?

42:55 Not, you know, we'll see uh whether or not she'll be able

42:58 to testifi testify depending on where the where the Dow Jones is.

43:02 Look at that.

43:03 489.

43:04 It's It's creeping back up.

43:05 We'll see how long that lasts.

43:06 Um B So Bondi, two interesting story items related to this.

43:10 Uh one was that Jim Comr was asked whether they were looking into offering

43:17 a a pardon or clemency to Gla Maxwell in exchange for her testimony.

43:22 And he said, "My committee split on that." So about half of the Republicans

43:26 apparently are in favor of a Glain Maxwell pardon in exchange for her testimony.

43:32 Uh it's pretty noteworthy.

43:33 The other thing is Har Dylan is has filed uh indicating she's

43:38 representing Pam Bondi in the Apstein

43:40 oversight hearing in her personal capacity.

43:43 Harme Dylan is the Yeah.

43:46 Yeah.

43:46 Yeah.

43:47 So anyway, I don't know.

43:48 Assistant attorney general for civil rights.

43:49 [laughter]

43:50 Any thoughts on on the Bondi and Epstein affair and the latest I mean,

43:57 I think the most delicious day of DOJ watching that I

44:01 had was the day when her meet Dylan was on one.

44:05 I think it was on Twitter and or maybe it was True Social.

44:08 Look, they're indistinguishable at this point.

44:10 Um, but she called her critics hoes.

44:14 Okay.

44:14 Did you see that part?

44:15 Did you see that?

44:15 Yeah, I remember.

44:16 I don't recall what she was calling them hoes about, but I do

44:19 and and that's just where I end like like I

44:22 you can't take her I I don't take like Yeah.

44:24 Like you're not supposed to have another job

44:26 when you're the assistant attorney general for civil rights.

44:30 Like that's your job cuz we're paying you.

44:32 Actually, I'm paying you.

44:33 I'm not paying you to also

44:35 as a side hustle represent the former attorney general.

44:38 It's like Pam Bondi got Hermit Dylan

44:41 on Task Rabbit to represent her in the overseas.

44:43 It's a gig.

44:44 It's a gig.

44:44 the attorney general was covering up a pedophile

44:48 like information about about sex criminals, pedophiles,

44:53 and so I don't really want somebody that I'm paying who works for the Department

44:56 of Justice to be representing her in that in a defense of that effort.

45:00 But the real question is just about just Congress, the executive like adversity.

45:07 Like the whole thing is is the whole thing is weird.

45:09 They're running out of lawyers though is

45:11 maybe part of the reason why doing this.

45:12 There's that story and show the DOJ has

45:15 lost a quarter of its lawyers since January 2025.

45:20 Yeah, that is wild.

45:22 Not surprising.

45:22 Um between surprising the purges the purges uh the way in which

45:27 the administration kind of realigned uh the missions of certain offices.

45:32 I like within DOJ like I'm not surprised at all.

45:36 And like people voluntarily left, people were made to leave.

45:39 And yeah, it'll take a generation to remake the Department of Justice.

45:44 Back to the book stuff.

45:45 How'd you have the time?

45:46 When were you doing this?

45:47 Your parenting, you have TV, you have podcast.

45:49 Where were you?

45:50 And then my actual real job at the research.

45:52 [laughter] Yeah.

45:53 You're teaching.

45:55 When were you doing the constitution research in there?

45:58 Well, you know, I was on sobatical last year and I was working on another

46:02 project and then decided to do this in part because it seemed really urgent,

46:09 especially after 2025, after January 2025,

46:13 just like wanting to know the constitution because

46:15 every moment I was like, can they do that?

46:17 I don't think they can do that under the constitution.

46:19 So, I was like looking things up and I was like,

46:21 you know, I should be writing this down.

46:23 Um, but the real impetus for the book actually

46:25 happened back in the day when I was on Twitter.

46:28 Do you remember how fun Twitter used to be?

46:30 Like it just I loved it.

46:32 I know it was a guilty pleasure, but it was it was and now it's just it's gross.

46:39 Um, but back in the day when I was in the Twitter streets,

46:42 um, I came across a thread from Luther Campbell.

46:46 Do you know who this is?

46:48 Let me see how how like how southern you really are to Okay, Luther Campbell.

46:51 No, I don't have it.

46:53 Luke Campbell.

46:53 Uncle Luke.

46:55 Oh, Uncle Luke the rapper from Two Live Crew, right?

46:58 So, he was in the Twitter like I'm from Florida as you know,

47:02 and Uncle Luke like Two Live Crew was big when I was a teenager.

47:06 Anyway, so he was on these on these Twitter streets um

47:10 talking about what Joe Biden should be doing and you know,

47:12 Joe Biden should be addressing the price of gas and Joe Biden should be

47:15 doing this and Joe Biden should be doing that and vaccines and blah blah blah.

47:18 And about half the things he wanted Joe Biden to do,

47:21 I was reading and I was like, Joe Biden can't do any of that.

47:24 Um, half these things he can't do because he's

47:26 not authorized because the president doesn't have that authority.

47:29 And it just sort of occurred to me that there

47:32 probably lots of people out here who are like Uncle Luke.

47:35 Um, in this world in which we've devested

47:38 public education of art and music and civics education,

47:42 like No Child Left Behind,

47:44 no child is left behind with a copy of the Constitution.

47:46 Like they don't know it.

47:47 They don't know how a bill becomes a law.

47:49 And we're basically creating a whole generation

47:52 of Americans who don't know how this government works.

47:54 And so I decided I was going

47:55 to spend the sbatical sitting down trying to explain

47:58 the constitution and the whole purpose of limiting

48:02 government so that it doesn't become despotic.

48:07 Just winning over my never Trumper.

48:09 You're kind of like I'm tingling.

48:11 I got a tingle up my leg right now.

48:13 Limited government restraint.

48:16 Yes.

48:17 Anti- tyranny.

48:19 Yes.

48:18 Oh, man.

48:19 Young college Republican Tim is on fire right now.

48:22 What this is this leads me I guess I'll leave it to you

48:24 with this because I think that the ramifications of this going forward are real,

48:28 which is let's just let's just be positive.

48:31 Okay, let's be positive.

48:33 Let's say I'm positive.

48:34 Let's say now I'm not so I'm speak I'm really

48:37 it's I'm more you know giving myself a pep talk.

48:39 Let's say that the Democrats take back the Senate and let's say

48:42 that Clarence Thomas for some reason is not able to be a Supreme Court

48:46 justice anymore and he can be replaced from the Supreme Court

48:48 and and a Democrat and the Democrats use the uh Merrick Garland rule and it's

48:53 like ooh sorry we'll revisit this in January 2029 and then in January

48:57 2029 a Democrat becomes the president and it's a Democrat who cares about

49:01 the rule of law and loves the Constitution and the Supreme Court is

49:05 at least it's 54 but at least it's a little bit more manageable.

49:09 Okay.

49:09 In that world, within the confines of the Constitution that you just annotated,

49:14 like what are some reforms you think

49:17 that the Democrats could do that they could actually do?

49:21 Because I do think a lot of times in in progressive podcast space,

49:25 you know, there's a lot of talk about like, oh,

49:27 we just need to do this or that or the other thing

49:29 that are going to make them sound kind of like Uncle Luke.

49:32 You know, they want this immediacy, right?

49:34 Like we're going to change everything immediately.

49:37 And it's like, well, no, we we still have a system here.

49:40 So, what are some things that come to mind,

49:42 you know, that might be worth thinking about?

49:45 So, one, we have to address partisan gerrymandering

49:48 because it not only affects the composition of Congress,

49:51 it affects the composition of state legislatores,

49:54 it affects the composition of local like county representation, all of that.

49:59 But really important,

50:01 the state legislators are necessary if you're going to amend the constitution.

50:05 So the fact that the state legislatores are so skewed in one direction,

50:08 especially in states that are like where the political

50:12 divide is much closer than the representation in the state

50:15 legislature would suggest that has to be addressed or you're

50:18 never going to be able to amend the constitution.

50:20 Um like realistically,

50:22 uh how do you address the whole question of partisan jerrymandering?

50:25 Um well certainly Congress can pass some laws.

50:27 States can also pass laws that make it um a violation

50:32 of either state statute or in some cases the state

50:34 constitution to organize your state legislatores in ways that are

50:39 anti-democratic or unrepresentative in the way

50:41 that partisan gerrymandering might be.

50:43 So those are some steps.

50:44 Um as an initial matter um you know we

50:46 the people can step up and actually take voting seriously.

50:50 Um, I I know lots of people who listen to this podcast do,

50:53 but a third of the electorate sat out the 2024 election.

50:57 And if if those people had come out,

51:00 maybe we have a just an entirely different outcome here.

51:03 Like, you know, we can't be apathetic anymore.

51:05 But with all of that, um, and not only can we not be apathetic, um, we,

51:10 it hurts us to be apathetic because right

51:12 now we need the numbers in order to counteract

51:16 the level of distortion that gerrymandering and suppressive

51:19 voter laws are doing to the electoral landscape.

51:22 So, you actually have to rise up in quite significant numbers.

51:26 And, you know, that's part of part of what they're why they're doing this.

51:29 Um, if you're able to do all of that and you're

51:32 able to do actual constitutional change through the amendment process,

51:37 we're not going to get amendments.

51:39 Amendments change.

51:41 I don't know that it is.

51:42 If you can change the state legislatores, maybe um, you know,

51:45 I think Democrats should really think about DC and Puerto Rico and statehood.

51:49 I mean like truly I mean if you read the chapter

51:52 in here about the amendment that allows DC to vote in presidential elections,

51:57 it is so unbelievable how much race shapes the history

52:02 of the constitution and our entire relationship with the District of Columbia.

52:09 So you know there's that agree on that one.

52:13 Um Supreme Court stuff.

52:14 I think we have to think about court reform.

52:16 We are the only constitutional democracy in the world

52:20 where the Supreme Court has life tenure.

52:23 Like every other constitutional democracy has

52:25 implemented term limits for their justices.

52:28 Um some say that this can't be done without a constitutional amendment.

52:33 You know, I I think there are ways that you can structure

52:35 it where justices of the Supreme Court don't lose their life tenure.

52:39 They simply move to a different role within the federal judiciary.

52:43 And I think that might suffice the whole for the whole

52:45 question of um not avoiding the constitution's requirement of life tenure,

52:50 but term limits is definitely on the table.

52:53 Uh some people have talked about adding justices to the court and I don't think

52:57 that's off the table and it's not

52:58 something that would be impeded by the constitution.

53:01 Like we've had different numbers of justices before.

53:03 It doesn't have to be nine.

53:04 It could be fewer.

53:05 It could be more.

53:06 uh that might be necessary in order to recalibrate the court

53:10 and make a court that is perhaps more reflective of where

53:16 the country is as opposed to this 6 to3 conservative supermajority

53:20 which feels not reflective at all of at least half the country.

53:24 Um other kinds of electoral reforms I think

53:28 we really have to talk about the electoral

53:30 college and we came so close to amending

53:33 the constitution to get rid of the electoral college.

53:36 Um, nobody talks about Bir,

53:37 but Burb literally pushed through a whole bunch of amendments

53:41 and he got so close with some of these others,

53:44 including an amendment that would have eliminated the electoral college.

53:47 The electoral college is about minority rule.

53:50 It is about the framer's distrust of the populace, of ordinary people.

53:55 We don't live in that world anymore, and we shouldn't be governed by that.

53:58 Pretty good.

53:58 I liked one of the fun constitution facts that I got reading it.

54:02 Okay.

54:02 Okay.

54:02 Which I may have known at one time, but I didn't know anymore.

54:05 Uh was that there was a committee on style.

54:08 The committee on style.

54:09 So they all agreed to kind of certain language or whatever the rules.

54:12 Then it got sent to the committee on style

54:15 which like in my mind are, you know, kind of some

54:19 hand like Miranda Priestley, Anna Wintor, Chloe [laughter] Maul.

54:24 It's like the the saratoral drafters, you know,

54:26 the ones who have the best taste.

54:28 And uh and I love that the committee on style was one that changed the preamble

54:34 from it.

54:35 It had it had it had listed out the 13

54:37 states and they they changed that to we the people.

54:40 Can you imagine?

54:41 I mean like just like think about like law roach being like I hate it.

54:45 Let's change [laughter] it.

54:46 We the people.

54:48 We the people.

54:49 It's not giving.

54:50 [laughter] It's we the people is giving.

54:53 I know.

54:54 It's so good.

54:54 So I love that.

54:55 Yes, there are other good if Constitution facts in there

54:58 if you go get today the US Constitution,

55:01 a comprehensive and annotative guide for the modern reader.

55:04 Melissa Murray is the author.

55:06 She's got it right there for the YouTube viewers.

55:08 It's looking good.

55:09 It's looking cute.

55:10 The little uh what is that?

55:12 The feather pen.

55:12 The quill.

55:13 The quill.

55:13 It's a quill.

55:14 The quill.

55:14 It came to me.

55:15 I got it.

55:16 Um the quill.

55:18 Looking nice.

55:18 Looking chic.

55:19 The committee on style approves.

55:21 It's giving.

55:22 Melissa Murray, thank you so much.

55:24 Thank you for having me, friend.

55:26 I appreciate it.

55:27 Of course.

55:27 Uh we'll be back tomorrow.

55:28 I think we got a double header for you.

55:29 Go check out the next level if you want

55:31 the politics talk today and uh we'll see everybody soon.

55:34 All right.

55:34 Go get the book.

55:36 Peace.

55:37 [music]