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Episode: No Choice but to Stan: A Deep Dive on Solicitor General Elizabeth Prelogar

Author: Crooked Media
Duration: 01:18:43

Episode Shownotes

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

and How We the People Can Take It Back. Follow us on Instagram, Twitter, Threads, and Bluesky

Summary

In this episode of Strict Scrutiny, hosts Leah Litman and Kate Shaw analyze the notable contributions of Solicitor General Elizabeth Prelogar within the Supreme Court framework. They commend her adept interactions with justices, particularly Kagan and Alito, showcasing her ability to navigate complex legal arguments while advocating for women's rights. The episode also touches on the broader themes of originalism and inclusive constitutionalism, critiquing originalist interpretations and promoting a more equitable approach to constitutional law, particularly as it pertains to the Reconstruction Amendments. Insights are also offered on the potential need for reform within the Supreme Court for greater inclusivity and accountability.

Go to PodExtra AI's episode page (No Choice but to Stan: A Deep Dive on Solicitor General Elizabeth Prelogar) to play and view complete AI-processed content: summary, mindmap, topics, takeaways, transcript, keywords and highlights.

Full Transcript

00:00:01 Speaker_08
Chief Justice, please report. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word.

00:00:13 Speaker_06
She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet

00:00:43 Speaker_05
Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Leah Littman.

00:00:51 Speaker_12
And I'm Kate Shaw. Today we have another two-part episode for you.

00:00:54 Speaker_12
Melissa will join us in the second half of the episode to talk to Madiba Denny about her new book, The Originalism Trap, how extremists stole the Constitution, and how we the people can take it back.

00:01:05 Speaker_12
But first, we're doing something pretty uncharacteristic for this podcast. We're going to have a positive and heartwarming conversation.

00:01:13 Speaker_12
This is something we have actually received a lot of requests for because a lot of people fangirl, fanboy, non-binary fan out over this person.

00:01:22 Speaker_12
And this person is Elizabeth Prelager, who is the Biden administration's lawyer in the Supreme Court, the Solicitor General. She's also coincidentally the subject of a big Vanity Fair profile this week by Christian Farias.

00:01:35 Speaker_12
So for the first half of today's episode, we are going to talk about her greatest hits.

00:01:40 Speaker_05
The person who eats bananas before oral arguments, runs circles around Brett Kavanaugh, regularly and publicly owns Sam Alito and more.

00:01:48 Speaker_05
And to help us pay tribute to one of the greatest to ever do it, we are joined by another one of the greatest, Pam Carlin, the Kenneth and Harrell Montgomery Professor of Public Interest Law and co-director of the Supreme Court Litigation Clinic at Stanford.

00:02:00 Speaker_05
Welcome to the show, Pam. Thanks so much for having me. So this episode singing the praises of Solicitor General Prelogger is also another subtle way of making a call for four more years that may be especially motivating to our listeners, at least.

00:02:13 Speaker_05
So four more years of General Prelogger, unless, of course, Justice Kagan might want to step down and have General Prelogger replace her.

00:02:20 Speaker_13
Four more years of her in some fashion. I mean, we're not really OK with Elena Kagan stepping down. No. If she needed to, Prelogger taking her place would be a comfort that we could live with, I think.

00:02:30 Speaker_04
It would be nicer, though, wouldn't it, if she was taking Justice Alito's?

00:02:34 Speaker_05
Yes, or Justice Thomas's. Or both. Pam, you have made this episode so infinitely more positive within the first two minutes than any previous episode. I love it.

00:02:45 Speaker_13
That's what you're voting for, right. And so to be clear, it is not just our listeners and us fanning out over Solicitor General Prelogger. The justices themselves do as well.

00:02:55 Speaker_13
So we are going to walk through some signs that the justices know she's got it. And how can we tell? Let us count the ways.

00:03:02 Speaker_13
First up, the Democratic appointees regularly invite her to just talk, to make the case because they know she can do it and her airtime is just as valuable as theirs. And to be clear, these folks do think their airtime is pretty valuable.

00:03:16 Speaker_13
So it is notable that they are so willing to cede it to her.

00:03:19 Speaker_01
I want to ask a completely different question. But one notable thing about the argument here is that on both sides, there's been very little discussion of what originalism suggests about this question.

00:03:32 Speaker_01
And so I just want to ask, what would a committed originalist think about the kind of race consciousness that's at issue here?

00:03:40 Speaker_01
General, one of the through lines of the briefs in this case is, I think it's actually the first line of the petitioner's brief or something like it, is, is essentially Brown compels the overruling of Grutter.

00:03:54 Speaker_01
And the petitioners actually haven't given a whole lot of attention to that argument. But the idea is, and some of the questioning has reflected this idea, is that we have this long and horrible history of racial discrimination.

00:04:12 Speaker_01
And surely that functions here to prevent racial classifications or to prevent raise consciousness of the kind that Harvard and UNC are using. And I just thought I'd give you an opportunity to discuss what you think of that argument.

00:04:30 Speaker_03
I think that argument is wrong in just about every respect.

00:04:35 Speaker_05
And Justice Jackson basically invited her to respond to more specific arguments Idaho's counsel had made in Moyle, the Mtala case, which you can hear here.

00:04:43 Speaker_10
General, let me ask you. to respond to a couple of things petitioner's counsel said and just give you the opportunity to respond.

00:04:51 Speaker_10
Is it true that there really isn't in operation a difference between the two, the EMTALA and what Idaho has required here?

00:05:00 Speaker_03
No, that is gravely mistaken on three levels. It's inconsistent with the actual text of the Idaho law, it's inconsistent with medical reality, and it's inconsistent with what's happening on the ground.

00:05:11 Speaker_05
And then there were invitations from both Justice Kagan and Justice Jackson in Moore v. Harper, the independent state legislature case.

00:05:19 Speaker_01
When Mr. Thompson says, well, it should be subject to the constraint of federal review, but not of state constitutional review, what do you think of that distinction?

00:05:32 Speaker_10
Because the lawmaking authority of the entity in question comes from the state constitution, right?

00:05:38 Speaker_10
I mean, if it's a lawmaking function that we're tapping into, it's the state constitution that gives that entity its lawmaking power and tells it when and under what circumstances and how it can act as the legislature, right?

00:05:52 Speaker_03
Exactly. And this is black letter law, Justice Jackson.

00:05:55 Speaker_13
Having brought you that introduction, Pam, let's bring you in.

00:05:59 Speaker_13
give us a sense as an experienced advocate before the court and obviously longtime watcher of the court, how typical or atypical is it in your view for justices to just invite an advocate to talk, to basically give them floor time or air time rather than the justices using that time themselves?

00:06:16 Speaker_04
Well, it's pretty rare. And what's particularly striking about these is the other times when you hear the justices give somebody a long time to talk, it's usually because there's a very technical detail that they don't understand and the person does.

00:06:28 Speaker_04
So there's a famous example of a case where the lawyer for the government spent a bunch of time explaining how you actually take a car apart in a case that involved auto searches and the like.

00:06:40 Speaker_04
And there you can kind of understand because they're actually asking for information, but here they're not really asking for information. They're asking her to make her argument at length. And that's pretty rare.

00:06:50 Speaker_04
I mean, I think of times where people begin, may it please the court. And the justices jump in and say, well, it doesn't. And now let us explain to you what we think instead.

00:07:00 Speaker_05
So you already kind of answered this one. But one of the aspects of this that really struck me is that Justice Kagan, in particular, is ceding airtime to General Prelogger.

00:07:11 Speaker_05
And Justice Kagan, of course, is extremely brutally effective and also does not suffer fools easily and probably thinks a lot of the people that argue before her are fools. So does Justice Kagan do this for anyone else?

00:07:24 Speaker_04
I can't think of somebody. I mean, maybe she has, but I can't think of it.

00:07:29 Speaker_05
And as the previous clips underscore, it's not just Justice Kagan.

00:07:31 Speaker_05
You know, Justice Jackson uses a pretty standard formulation with General Prelogger, where Justice Jackson will state her point, ask, is this right or am I wrong, which then just allows General Prelogger to elaborate.

00:07:42 Speaker_05
So this happened in the medication abortion case, which you can hear here.

00:07:47 Speaker_10
They're saying because we object to having to be forced to participate in this procedure, We're seeking an order preventing anyone from having access to these drugs at all.

00:07:58 Speaker_10
And I guess I'm just trying to understand how they could possibly be entitled to that given the injury that they have alleged.

00:08:05 Speaker_03
I agree, Justice Jackson, and I do think it's relevant to standing. There's a profound mismatch here between the claimed injury and the remedy they were seeking.

00:08:14 Speaker_13
And she did something similar in Relentless v. Department of Commerce, which is one of the two cases asking the court to overrule Chevron. And here she was basically asking Prelogger to talk about what the implications of overruling Chevron would be.

00:08:26 Speaker_10
I guess my concern is I suppose judicial policymaking is very stable, but precisely because we are not accountable to the people and have lifetime appointments. So if we have gaps and ambiguities in statutes and the judiciary,

00:08:44 Speaker_10
is coming in to fill them, I suppose we would have something of a separation of powers concern related to judicial policymaking. Am I wrong to be worried about that?

00:08:59 Speaker_03
No. I think that that concern is valid, and I think it's valid along two separate dimensions. And one is to recognize that in these scenarios where we're at Chevron Step 2,

00:09:09 Speaker_03
By definition, it's because the statute itself doesn't supply an answer and the court can't ascertain that Congress actually meant to resolve it.

00:09:16 Speaker_03
And in that circumstance, it's entirely sensible for Congress to give the issue to an agency when it is charged with administering the statute and, of necessity, is going to have to fill the gap along the way.

00:09:27 Speaker_03
And Congress could quite legitimately want the agency to draw on its policymaking expertise in figuring out the right way to fill the gap.

00:09:35 Speaker_13
And some of these invitations at the hands of the justices to just make her case have generated particularly significant and high-impact moments during the oral arguments.

00:09:45 Speaker_13
One example was during Rahimi v. United States, where Justice Kagan basically invited Prelogger to write the court's opinion for them.

00:09:52 Speaker_01
General, there seems to be a fair bit of division and a fair bit of confusion about what Bruin means and what Bruin requires in the lower courts. And I'm wondering if you think that there's any useful guidance in addition to

00:10:09 Speaker_01
this case, but any useful guidance we can give to lower courts about the methodology that Bruin requires be used and how that applies to cases even outside of this one?

00:10:23 Speaker_03
Yes. I think that there are three fundamental errors in methodology that this case exemplifies and that we are seeing repeated in other lower courts.

00:10:32 Speaker_03
and that this case provides an opportunity for the court to clarify that Bruin should not be interpreted in the way that respondent is suggesting.

00:10:39 Speaker_13
And the court later, in an 8-1 opinion by Chief Justice Roberts, basically did what she asked. So again, Pam, how unusual is that?

00:10:48 Speaker_13
Inviting an advocate to essentially sketch out the contours of the court's argument, which you then see in written form in the court's opinion.

00:10:56 Speaker_04
I mean, that's a little less rare, especially when the court is really, you know, in Rahimi, the court is really sort of saying to the general, look, we recognize that we've got to rule for the government here.

00:11:09 Speaker_04
Tell us a way to get there that will not make us look terrible. You know, because I thought Justice Thomas was right there. If you actually apply the method that he talked about in Bruin, Rahimi should win and nobody thinks Rahimi should win.

00:11:24 Speaker_05
Yeah, no, and that was something that General Prelugger managed to do artfully, which we'll kind of come back to later, which is tell the court, you messed up.

00:11:33 Speaker_05
You need to do something different without basically giving them the middle finger and saying, you dum-dums, right? Like, you really, really did not do well here.

00:11:42 Speaker_05
So one other kind of invitation to note, General Prelogger is good enough that Justice Kagan is willing to rope her into some of Justice Kagan's punchlines, which you can hear here in the tax case from last term, Moore versus United States.

00:11:56 Speaker_01
Justice Gorsuch said you were asking us to overrule 100 years of our precedent. Sounds bad. Are you?

00:12:05 Speaker_03
I am not asking the court to overrule any precedent in this case.

00:12:21 Speaker_05
OK, so the next series of clips we've lumped under one of our favorite themes, which is publicly owning the justice that hopefully General Prelogger will replace, Samuel Alito.

00:12:30 Speaker_05
So in Alliance for Hippocratic Medicine versus FDA, the medication abortion case, she flummoxed Justice Alito so much, she got him to admit that Article 3 is important.

00:12:41 Speaker_09
OK, is there anybody who can and get a judicial ruling on whether what FDA did was lawful, and maybe what they did was perfectly lawful. But shouldn't somebody be able to challenge that in court? Who, in your view?

00:12:56 Speaker_09
Who would have standing to bring that suit?

00:12:59 Speaker_03
I think that with respect to these regulatory changes, it's hard to identify anyone who would have standing to sue.

00:13:04 Speaker_03
But the Court has said time and again that the fact that no one would have standing doesn't provide a basis to depart from Article III principles. It said that in Raines, in Richardson, in Valley Ford, and in Clapper.

00:13:15 Speaker_03
And so I think it's clear that even if there is no alternative person here who could sue, that doesn't mean that the Court should dispense with the indispensable requirements of Article III. Okay.

00:13:23 Speaker_09
I understand that. And Article III is important.

00:13:26 Speaker_05
And of course, Article 3 ended up being the court's disposition of the case where the justices said the doctors, dentists, and whoever else did not have standing to bring their challenge. Pam, do you think Justice Alito realizes he

00:13:42 Speaker_05
is being owned or that she is getting the better of him in these moments? Because one thing that strikes me is like he keeps trying.

00:13:50 Speaker_04
Yeah, you know, I don't think Justice Alito knows what it means to say someone is being owned. But I think he does realize that she's not backing down. and that she's right.

00:14:01 Speaker_04
I mean, his frustration, you can kind of hear it, his frustration over, do you mean to tell me there's nobody that will allow me to get rid of Mephistopheles Stone? There's no way I can get there. I have to adhere to article three, the horror.

00:14:16 Speaker_13
It does feel like he doesn't quite know what's being done to him, but he is aware that something is happening.

00:14:22 Speaker_13
And some of our favorite fumbles are basically when she gets him to kind of flail about in the way she did in the argument in United States versus Texas, the one involving Texas SB8, the abortion bounty hunter law. So let's play that clip here.

00:14:36 Speaker_09
How can you say, how can you enjoin a judge from performing a lawful act, which is the adjudication of a case that is filed before the judge?

00:14:46 Speaker_03
Well, I want to be perfectly precise that in our case, the district court enjoined Texas and found that that injunction could properly reach the state court personnel who would be then exercising the state's authority.

00:14:58 Speaker_09
Well, Texas is an abstract entity, and an injunction has to apply to people.

00:15:05 Speaker_13
We loved this line and, you know, played it at length in the weeks after the oral argument. How do you think Texas took to this neg that it is, in fact, an abstract entity?

00:15:17 Speaker_04
Oh, I'm sure that it got them fighting mad, not since the Alamo. There's been such an outrage perpetrated.

00:15:26 Speaker_13
So that's obviously like a little bit like lighthearted, but what about, you know, sometimes the flummoxing that she seems to produce in Justice Alito is more substantive, right?

00:15:35 Speaker_13
When she gets him to make concessions, you know, he doesn't always stick to these concessions, but those seem like more kind of substantively important moments.

00:15:43 Speaker_13
So that sort of felt like it happened in Moyle versus United States, the case involving EMTALA, emergency medical care for individuals experiencing pregnancy emergencies. So let's play that clip now.

00:15:53 Speaker_09
Alito Not duties. How can you impose restrictions on what Idaho can criminalize simply because hospitals in Idaho have chosen to participate in Medicare? I don't understand how this squares with the whole theory of the spending clause.

00:16:08 Speaker_03
Well, I think that it squares with this Court's long line of precedence cited at page 4600. But the Court has recognized that.

00:16:13 Speaker_09
Alito I've looked at those cases. I haven't found any square discussion of this particular issue. But I'm interested in the theory. Can you just explain how it works in theory?

00:16:22 Speaker_03
Sure. So Spending Clause legislation is Federal law. It's passed by both houses of Congress. It's signed by the President. It qualifies as law within the meaning of the Supremacy Clause. Absolutely.

00:16:32 Speaker_09
Absolutely.

00:16:33 Speaker_03
And so I think the supremacy clause dictates the relevant principle here.

00:16:38 Speaker_05
So stepping back a bit from these clips, Pam, what is it that flummoxes him so much about General Prelogger's advocacy?

00:16:47 Speaker_04
So I think it's two things. I think it's a combination of the fact that she has this complete and total command of the facts and the record. And so you hear her say, well, on page 46 of our brief in the clip,

00:17:00 Speaker_04
And the fact that she doesn't back down, she sticks to her point, and she doesn't concede, you know, it's like that line of Frederick Douglass's about power concedes nothing without a demand, and she concedes nothing even with a demand, which kind of shows her power here.

00:17:19 Speaker_05
And part of what makes this also impressive is, as we kind of gestured to before, she isn't just kissing the justices' rings throughout the arguments.

00:17:27 Speaker_05
She maintains the same kind of presence and cool, and even a rapport at times when she is pushing back on the justices. So she had to take a stand with Justice Alito.

00:17:38 Speaker_05
So he couldn't get away with some things like trying to get a concession about who could challenge the availability of medication abortion in the medication abortion case, which you can hear here.

00:17:48 Speaker_09
Could you provide a more specific answer to the first question that Justice Thomas asked you? Is there anybody who could challenge in court the lawfulness of what the FDA did here?

00:18:01 Speaker_03
In this particular case, I think the answer is no.

00:18:04 Speaker_09
Well, that wasn't my question. Is there anybody who can do that? Let's start with the States that intervened below.

00:18:12 Speaker_09
Will you say in that litigation, fine, you can challenge it, and let's get to the merits of this issue, the lawfulness of what the FDA did?

00:18:25 Speaker_05
And she had to kind of do the same when Justice Alito tried to sneakily bring up the Comstock Act without referring to it as the Comstock Act.

00:18:32 Speaker_09
Shouldn't the FDA have at least considered the application of 18 U.S.C.

00:18:39 Speaker_03
So I think that the Comstock provisions don't fall within FDA's lane.

00:18:45 Speaker_13
So those are some exchanges with Sam Alito, but she actually doesn't just do this with Sam Alito. She did it with the chief justice in Rahimi versus United States as well, essentially like, no, no, no, don't put this, like your legal test on me.

00:18:57 Speaker_13
That's in this clip.

00:18:59 Speaker_07
Why did you use the term responsible if what you meant was dangerous? I mean, responsible presents all sorts of problems and dangerous is sort of a different set of considerations. I mean, if you thought

00:19:13 Speaker_07
that our prior precedents were talking about dangerous, it was a little confusing to all of a sudden find responsible being the operative term.

00:19:22 Speaker_03
Well, we relied on the same phrasing the court itself used when it first articulated this constitutional principle in Heller. And so I think we were trying to

00:19:30 Speaker_03
point out that the court itself has already recognized the category of regulation that's consistent with original meaning under the Second Amendment. And we just followed the court's leading using that phrase.

00:19:41 Speaker_13
Pam, what did you think about this exchange? I remember listening to it. And the goal of Chief Justice Roberts basically saying, how dare you use language and a formulation that we ourselves have used, I thought was really striking.

00:19:54 Speaker_13
What did you make of that exchange and the way that she handled it?

00:19:57 Speaker_04
Well, I mean, if you hear her tone, it's like a very calm tone. It's not what what the fuck. Right. She's not saying, don't you blame me? But she's making it really clear.

00:20:09 Speaker_04
You know, we've thought about your cases and we're trying to use your cases to make our point. So don't pretend that we're the ones with the problem. You're the ones with the problem.

00:20:22 Speaker_05
And she's done something like this also with Justice Gorsuch, which you can hear here in Loper Bright, just kind of correcting him with his survey of all the courts of appeals cases involving Chevron.

00:20:37 Speaker_03
So we don't think that this is a case about silence at all.

00:20:40 Speaker_08
General, yeah, that's really good. Again, we're back to the same question the Chief had of Mr. Clement. That's a really good statutory interpretation argument. Sounds like exactly the bread and butter of what we do every single day.

00:20:53 Speaker_08
And we can resolve that, right?

00:20:55 Speaker_08
We think that you could find that the statute is clear, but I think that... The fact that you think it's clear and Mr. Clement thinks it's clear, but a court below thought it was ambiguous, should tell us something, shouldn't it?

00:21:06 Speaker_03
No, I disagree with that. And I should say that I think actually, if you look at both what the D.C. Circuit and the First Circuit were doing in these cases, they recognize the force of the arguments.

00:21:15 Speaker_05
And she's had to do this with Neal more than a few times, but somehow always manages to do it nicely, like in Moore, the tax case, you know, in a clip that we had talked about where she held her ground with Justice Gorsuch when he insisted she had not made an argument that, in fact, the federal government had made.

00:21:34 Speaker_08
That argument, that this taxpayer had that kind of enjoyment, isn't in the briefs before us. And I'm just wondering, what do I do about that?

00:21:42 Speaker_03
Well, I think we did make that argument because we made the point that to the extent the Court goes down the road of recognizing some theory of constructive realization,

00:21:51 Speaker_03
then the MRT would fit within that same framework, because petitioners haven't identified any actual distinction between how those other tax contexts operate and how the MRT operates.

00:22:01 Speaker_08
Let's just say I don't see that argument. Then what do you want me to do? Am I supposed to vacate and remand for consideration of that question? Is it waived? What would you have me do?

00:22:14 Speaker_03
I certainly think that in our brief, we argued that here the taxpayers can properly be held accountable for the the corporation's income and that the Court could say that.

00:22:23 Speaker_08
I got that argument, General.

00:22:24 Speaker_03
Yes.

00:22:24 Speaker_08
I got the argument that either there's no realization or as a backup there's realization and fair attribution.

00:22:30 Speaker_08
But if I'm working within this Court's precedents, if I don't consider them wholly misguided, okay, if I'm not willing to overturn a hundred years worth of precedent, which you're asking us to do, and the question is, is it fair to say this taxpayer constructively or actually realize this income, should I vacate and remand?

00:22:49 Speaker_03
No, you should affirm because here we made the argument that there is the same level of control and exactly the same relationship as in subpart F. So we did make this argument, Justice Gorsuch.

00:23:01 Speaker_05
And then one of my personal favorites was in the SB8 case, United States versus Texas, when she turned Justice Gorsuch's words.

00:23:08 Speaker_05
back on him immediately and emphasizing, you know, the novelty of Texas's law, you know, when Justice Gorsuch was pressing her on the novelty or reported novelty of the lawsuit in the case.

00:23:20 Speaker_08
I'm asking you, counsel, are you aware of any other example of such an injunction?

00:23:26 Speaker_03
With that specific term, I can't cite one to you. Not in the history of the United States.

00:23:30 Speaker_08
You can't identify one for us, right?

00:23:33 Speaker_03
In the history of the United States, no state has done what Texas has done here.

00:23:36 Speaker_13
So this was a pretty amazing moment to my mind, not just in the kind of strength of that last line in the clip we just played, but in the way that Prelogger just, you know, uses this language that Gorsuch had just served her in the history of the United States and turned it precisely back on him.

00:23:54 Speaker_13
And I guess I'm curious, Pam, you've done this a lot. How hard is it to do this, to be as responsive in the moment as we see Prelogger being in her exchange with Gorsuch?

00:24:03 Speaker_04
It's really hard to do what she did there, which is to pull out words from the justices' own... sentence and flip them around. It's much easier if you're taking words he said in the past or words he said in an opinion.

00:24:16 Speaker_04
And you kind of heard that in the clip you ran earlier with Chief Justice Roberts about the word responsible in dealing with gun ownership. But in the moment, it's much harder to do because you're thinking about what your answer is going to be.

00:24:29 Speaker_04
You're thinking about what the next question is going to be. And so paying that kind of close attention to the precise language is just a it's a really major gift that she has.

00:24:40 Speaker_13
It's a high degree of difficulty and she is like executing perfectly.

00:24:44 Speaker_04
Like the Simone Biles. It's like those dives, you know, and now we're coming to the 3.7, an inverse reverse two and a half flip with four twists.

00:24:54 Speaker_05
She should have these moves named after her just like Simone Biles did, right?

00:24:57 Speaker_04
Yeah, exactly.

00:24:57 Speaker_05
Like this is the prelogger. Yeah. It's a new skill.

00:25:02 Speaker_13
Yeah. Okay, so that's Gorsuch. She's had to push back on other members of the Georgetown prep squad as well. So here she is again in relentless, but this time besting Kavanaugh's truly ridiculous framing of the case.

00:25:16 Speaker_00
Last question, which is, there was talk about democratically elected political branches, but I just want to get your agreement on something that I think you'll agree on, which it's the role of the judiciary historically under the constitution to police the line between the legislature and the executive to make sure

00:25:36 Speaker_00
that the executive is not operating as a king, not operating outside the bounds of the authority granted to them by the legislature. Do you agree that's a proper judicial role, I would assume?

00:25:48 Speaker_03
I, of course, agree with that, but I think Chevron is consistent with that. The court polices the executive at step one by ensuring that Congress's own choices are put into operation, and it further polices the executive at step two.

00:26:01 Speaker_03
As the court said in Kaiser, Reasonableness is a test that agencies can fail, and so there's work to be done there, too, to make sure the agency doesn't transgress some outer boundary line that Congress set.

00:26:11 Speaker_05
So I did want to stay on the Georgetown prep beat for a second and maybe go back to the other member of the Georgetown prep squad, Neil Gorsuch, because one thing that I kind of picked up in listening to so many of these arguments is what sounds like Gorsuch's weird paternalism toward her.

00:26:30 Speaker_05
So I just want to play up a montage of clips. They will be from Rahimi, the Second Amendment case, Department of Education versus Brown, one of the student debt cancellation cases, so you can kind of hear what I'm talking about.

00:26:44 Speaker_03
So I agree that this is a facial challenge and the court could confine its analysis to C1. I guess I would make just two responses to that. One is to say that I think it's going to be difficult for the court to avoid the C2 issue.

00:26:55 Speaker_03
We ourselves have a pending petition where the Fifth Circuit has invalidated an application of the statute in a C2 context. Unless you want to see me here again next term on this issue.

00:27:05 Speaker_08
Always delighted to see you, General.

00:27:07 Speaker_03
The issue has been fully briefed, and we think it's an important part of the statute.

00:27:11 Speaker_08
General, I appreciate your standing arguments, and they've been laid out very clearly here. An interesting feature of this particular case, as you well know, is that the Court entered a universal decree. We've chatted about this in prior cases.

00:27:27 Speaker_03
We have indeed, Justice Gorsuch.

00:27:29 Speaker_08
And I just wanted to give you another chance to talk about universal vacature with some of my friends here, if you want it. And if you don't, that's fine.

00:27:41 Speaker_05
I will always take that opportunity. Pam, I have to ask again, since you are at the court, so often, is Justice Gorsuch always this way? Or is it something coming out in response to her advocacy that's affecting his affect?

00:27:59 Speaker_05
Because other times, I feel like he's got a meaner streak or tries to have a meaner streak with advocates, but not really here.

00:28:07 Speaker_04
Yeah, I mean, he really has backed down on her from his usual thing, which is if he's not getting the answer he wants, he claims you're not answering the question.

00:28:16 Speaker_04
You know, if he says to you, should you lose the case and you say no, he says you're not answering the question because he wants you to say, well, of course.

00:28:23 Speaker_04
And with her, I think he really kind of recognizes that she's in full command of what she's doing. And it's it doesn't go well to act as if she's not answering the question or she's not responding correctly.

00:28:36 Speaker_13
It's true that kind of you're not answering line that he pulls out constantly. I'm trying to recall if he's used it on her it's very infrequently and I'm not I certainly doesn't use it with her ever.

00:28:46 Speaker_13
He has to concede she is answering and if he is get you know if she's winning the exchanges with him. he sort of grudgingly concedes that and moves on. It's really something to see.

00:28:57 Speaker_13
So we finally wanted to play kind of a grab bag that is just a highlight reel of some of our favorite moments. And we've previously mentioned her opening and closing arguments in Dobbs versus Jackson Women's Health Organization.

00:29:10 Speaker_13
So let's play that opening again here.

00:29:12 Speaker_03
The court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society. The court should not overrule this central component of women's liberty.

00:29:27 Speaker_05
I mentioned, in our term recap, this as both a rose and a thorn.

00:29:31 Speaker_05
And I'm going to play it here as well, which is the exchanges with Justice Alito in the MTALA case, Moyle versus United States, where General Prelogger finished her points with the appropriate, in my mind, level of righteous indignation as Justice Alito attempted to forge ahead in his efforts to justify and minimize the prospect of denying emergency care to pregnant patients.

00:29:53 Speaker_05
This is going to be a long one, but just hear it out. But in a circumstance.

00:29:58 Speaker_09
Alito You go so far as to say that the statute is clear in your favor. I don't know how you can say that in light of those provisions that I've just read to you.

00:30:06 Speaker_03
The statute did nothing to displace the woman herself as an individual with an emergency medical condition when her life is in danger, when her health is in danger.

00:30:14 Speaker_03
That stabilization obligation equally runs to her and makes clear that the hospital has to give her necessary stabilizing treatment.

00:30:21 Speaker_03
And in many of the cases you're thinking about, there is no possible way to stabilize the unborn child because the fetus is sufficiently before viability that it's inevitable that the pregnancy is going to be lost.

00:30:31 Speaker_03
But Idaho would deny women treatment in that circumstance, even though it's senseless.

00:30:36 Speaker_09
Doesn't what I've read to you show that the statute imposes on the hospital a duty to the woman, certainly, and also a duty to the child. And it doesn't tell the hospital how it is to adjudicate conflicts between those interests.

00:30:54 Speaker_09
And it leaves that to State law. Now, maybe a lot, most of your argument today has been dedicated to the proposition that the Idaho law is a bad law, and that may well be the case.

00:31:05 Speaker_09
But what you're asking us to do is to construe this statute that was enacted back during the Reagan administration and signed by President Reagan to mean that there's an obligation under certain circumstances to perform an abortion even if doing that is a violation of state law.

00:31:22 Speaker_03
If Congress had wanted to displace protections for pregnant women who are in danger of losing their own lives or their health, then it could have redefined the statute so that the fetus itself is an individual with an emergency medical condition.

00:31:34 Speaker_03
But that's not how Congress structured this. Instead, it put the protection in to expand protection for the pregnant woman. The duties still run to her.

00:31:41 Speaker_03
And in a situation where her own life and health is gravely endangered, then in that situation, I'm told, it is clear. It says the hospital has to offer her stabilizing treatment. She doesn't have to accept it.

00:31:51 Speaker_03
These are tragic circumstances and many women want to do whatever they can to save that pregnancy, but the statute protects her and gives her that choice.

00:32:00 Speaker_09
It indisputably protects the interests of the unborn child. So it's inconsistent with the definition in the Dictionary Act.

00:32:08 Speaker_03
No, not at all. The duty runs to the individual with the emergency medical condition. The statute makes clear that's the pregnant woman.

00:32:14 Speaker_03
And of course, Congress wanted to be able to protect her in situations where she's suffering some kind of emergency and her own health isn't at risk, but the fetus might die.

00:32:22 Speaker_03
That includes common things like a prolapse of the umbilical cord into the cervix where the fetus is in grave distress, but the woman is not at all affected. Hospitals otherwise wouldn't have an obligation to treat her and Congress wanted to fix that.

00:32:34 Speaker_03
But to suggest that in doing so, Congress suggested that the woman herself isn't an individual, that she doesn't deserve stabilization, I think that that is an erroneous reading of this statute.

00:32:43 Speaker_09
Alito Nobody's suggesting that a woman is not an individual when she doesn't – she doesn't deserve stabilization. Nobody's suggesting that.

00:32:51 Speaker_03
Harrington Well, I think the premise of the question would be that the State of Idaho can declare that she cannot get the stabilizing treatment even if she's about to die. That is their theory of this case and this statute, and it's wrong.

00:33:01 Speaker_13
Kagan Long, but with incredible payoff at the end. That was such a powerful exchange and it was such a powerful ending.

00:33:07 Speaker_13
And I feel like I heard from people in the courtroom as though they could sort of see the force of her reasoning, sort of like knock Justice Alito back in his seat a little bit at the end of that exchange.

00:33:16 Speaker_13
I was not present, but this is what I heard from others. Okay, so last but not least, we had to come back to her exchange with Justice Alito in NFIB versus OSHA.

00:33:26 Speaker_13
That's the one that led him to loudly insist that he was not saying what he was saying about vaccines. So let's remind folks of that clip here.

00:33:35 Speaker_09
All right. So it's different in that respect. And here's another respect in which it may be different. And I don't want to be misunderstood in making this point, because I'm not saying the vaccines are unsafe. The FDA has approved them.

00:33:47 Speaker_09
It's found that they're safe. It's said that the benefits greatly outweigh the risks. I'm not contesting that in any way. I don't want to be misunderstood. I'm sure I will be misunderstood. I just want to emphasize I'm not making that point.

00:34:00 Speaker_09
But is it not the case that these vaccines And every other vaccine of which I'm aware, and many other medications, have benefits and they also have risks.

00:34:10 Speaker_09
And that some people who are vaccinated and some people who take medication that is highly beneficial will suffer adverse consequences. Is that not true of these vaccines? And if that is true, is that true?

00:34:25 Speaker_03
That can be true, but of course, there is far, far greater risk from being vaccinated by orders of magnitude. Right.

00:34:32 Speaker_09
There is some risk. Do you dispute that?

00:34:35 Speaker_03
There can be a very minimal risk with respect to some individuals. But again, I would emphasize that I think that there would be no basis to think that these FDA approved and authorized vaccines are not safe and effective.

00:34:47 Speaker_09
No, I'm not making that point. I tried to make it as clear as I could. I'm not making that point. I'm not making that point. I'm not making that point.

00:34:55 Speaker_05
So obviously that clip could have been played in the Alito segment, but I wanted to save it for toward the end of the episode. But Pam, I feel like those were just some of our favorites.

00:35:05 Speaker_05
I'd love to ask you whether you have any particular ones that come to mind.

00:35:10 Speaker_04
Yeah. So I actually have two, and you can pick which one you want to talk about. One of them was, again, from Moyle, where Justice Alito is asking her about, well, are you saying that you can abort a viable fetus?

00:35:24 Speaker_04
And she basically gives him, so you weren't paying attention in ninth grade reproductive health class, where she explains, well, if the fetus is viable, normally the way you would handle a medical emergency is you would deliver the viable fetus, which would then be a baby, and you would take care of the woman.

00:35:40 Speaker_04
And that seemed to surprise him.

00:35:43 Speaker_04
But the clip that I actually hearken back to so much because it says something so important about her and her understanding of her role in the world and like comes from the SFFA case, the affirmative action cases, where she's talking about how do you understand when there's been discrimination?

00:35:59 Speaker_04
And she points to the Supreme Court bar and she says this, she says, and I think it would be reasonable for a woman to look at that, which is the number of lawyers who are women who argued in that sitting.

00:36:11 Speaker_04
and wonder, is that a path that's open to me to be a Supreme Court advocate? Are private clients willing to hire women to argue their Supreme Court cases?

00:36:20 Speaker_04
When there is that kind of gross disparity in representation, it can matter and it's common sense. And that's her saying something probably as personal as she's ever going to say in the courtroom. And boy, was that a powerful moment.

00:36:34 Speaker_05
Yeah, so it reminds me of the moment from an argument of another former Solicitor General, Seth Waxman, where in the FCC versus Fox, he is gesturing toward the kind of artwork in the Supreme Court room, where he suggests maybe that would be obscene under some of the FCC's standards.

00:36:51 Speaker_05
But in that case, it felt like, well, everyone could have a good laugh, because of course, the justices did not themselves create the artwork. Whereas here, as you're saying, General Prelogger is asking the justices

00:37:04 Speaker_05
to look kind of at themselves because, of course, as participants in the system of who gets to argue and how the Supreme Court works, they are helping to generate the extreme disparities, the extreme gender disparities in who gets to argue.

00:37:17 Speaker_05
And yet she somehow managed to pull it off without making it seem accusatory or whatnot. And it was super powerful.

00:37:25 Speaker_04
Yeah, and look at the cases where they actually determine that directly, the ones where they appoint somebody to argue in favor of the judgment below. They are disproportionately appointing men.

00:37:37 Speaker_13
And yeah, I wrote a paper about this a few years ago that actually catalogs each of these appointments. And I've tracked it since.

00:37:43 Speaker_13
And it is just wild that they have this tiny little opportunity to diversify in a small but meaningful way the advocates who appear before them. And it is men. It is white men. It is their former law clerks.

00:37:55 Speaker_13
And often, it's the first opportunity to argue that one of these youngish former law clerks gets. That's, of course, how John Roberts got his first oral argument when he was appointed.

00:38:04 Speaker_13
as, you know, a young-ish former law clerk to Chief Justice Rehnquist. But I think they hate being treated as, being reminded that they exist within, not apart from, our system of law and government.

00:38:16 Speaker_13
And I actually think that despite how kind of gracious and light touch she was, it was something that, you know, it might have antagonized them and she, I think, must have realized that. And I think she decided to make the calculated risk.

00:38:29 Speaker_13
And I'm really glad she did. And I also think there is you know, a public-facing function to some of these choices.

00:38:36 Speaker_13
And that's why I think it's really useful, you know, on a podcast like this to just kind of aggregate all these powerful moments because she's talking to the justices, but, and it's in a very technical kind of framework a lot of the time, but there are these moments where it does feel like she's speaking in what could be a more public-facing register.

00:38:51 Speaker_13
And I think it's important to try to bring some of that to the public. So I do think it's worth actually sitting down and listening to these moments because, again, I think her audience is nine.

00:39:00 Speaker_13
I think that's how she thinks about what she's getting up to do. But I think that there are ways where, you know, in which we can sort of help bring some of that to an audience that is much more than nine.

00:39:11 Speaker_05
So Pam, you know, we'd love to kind of hear any additional thoughts you have either about General Prelogger, you know, what makes her advocacy so, I don't know, amazing where, you know, when she's doing an argument on Twitter, it feels like all of law Twitter is heaping praise on her.

00:39:25 Speaker_05
Kind of what sticks out to you about her?

00:39:28 Speaker_04
Well, I think it's a combination of the fact that she's a terrific oral advocate and she is also running a terrific office.

00:39:37 Speaker_04
She has argued probably a higher percentage of the cases the SG's office argues than a lot of recent solicitors general, but she's running a team as well. And they're doing an excellent job for an administration that's facing a very hostile court.

00:39:54 Speaker_04
Yes, indeed.

00:39:56 Speaker_13
You know, Pam, that last answer made me wonder about something. And I'm curious if you have any thoughts. And you argue there all the time. And this may be something that you thought about, too.

00:40:03 Speaker_13
But I had a conversation with a law professor, like maybe a year ago, about an amicus brief in a case. And this is a law professor who I was surprised to get this reaction from. But the professor said, I'm not going to sign an amicus brief.

00:40:15 Speaker_13
And I actually no longer think the court is an institution that one can reason with in an amicus brief. And I kind of don't want to credit them as such by even putting my name to a brief.

00:40:23 Speaker_13
And again, this is someone who used to sign briefs, not every law professor does.

00:40:26 Speaker_13
Prelogger approaches every argument like she is, you know, engaging in a good faith exchange of ideas about the law with open-minded people who are discharging their duties in, you know, some recognizably judicial fashion.

00:40:39 Speaker_13
And there are all kinds of ways in which those of us with the luxury to just comment from afar about the court feel as though that's no longer the institution that many of these justices are actually a part of.

00:40:50 Speaker_13
And I wonder whether that is something difficult to struggle with if you're somebody who's an advocate before the court, whether part of the private bar or the solicitor general.

00:40:58 Speaker_13
So any thoughts or reactions to sort of what the increasingly maximalist and precedent-smashing behavior of the Supreme Court, what that means for the advocates who have to appear day in and day out before it and treat it like it's a normal court?

00:41:14 Speaker_04
It's a good question to ask.

00:41:16 Speaker_04
And the reason it's a good question is that if you're going to go up there and advocate for clients, and she's arguing for the most important client in some way, the people of the United States of America, you have to treat the cases as if there's a possibility of winning them.

00:41:32 Speaker_04
And she has managed to pull out some cases you know, that might've been very hard.

00:41:37 Speaker_04
I think Moyle is a perfect example of that, you know, using doctrines like standing and the like to, you know, to win cases or conceding as she did there, the conscience stuff, because she knows they're gonna give a conscience exemption that's wide enough to drive a truck through no matter what she does.

00:41:55 Speaker_04
So give that to them and then get them to see that the case is now actually a much harder case. And, you know, you can still win some cases that matter a lot to the causes and the people you care about.

00:42:10 Speaker_04
But it is hard sometimes when you read some of their opinions. I mean, you know, she was not in, for obvious reasons, Trump against United States. But you read Trump against United States, and it's hard to treat that as law in the way that

00:42:24 Speaker_04
in the way that we think about things. Or you read some of the other cases that the court decides and you think, this is just sheer, we do it because we can. It's Leah's old line about it's the YOLO court. And that's hard.

00:42:38 Speaker_04
And I think one of the things is, you know, she gets up there and argues some of the cases that she knows the government is going to lose, right? I mean, she knew the government was going to lose Loper Bright and Relentless. How did she know?

00:42:50 Speaker_04
Because they granted cert in Loper Bright where only eight justices were sitting. So you know that there are five to get rid of Chevron. But she gets up there and does her best.

00:43:00 Speaker_04
And I think by doing her best and treating the court there as if it's really a court, she builds up capital that allows her in the cases that are closer to being winnable to win those cases. And that's what you have to do.

00:43:13 Speaker_05
Yeah, I think that that, you know, what you're describing is a really tough and tricky balance because, you know, obviously it requires making concessions, it requires having some outlook, but I at least have never felt like in the last four years kind of watching her as an advocate that she has gratuitously thrown causes or people under the bus in the name of building

00:43:38 Speaker_05
credibility. You know, obviously, her office has taken some positions that like, I don't agree with, right, and some like immigration cases or whatnot.

00:43:46 Speaker_05
But I did not feel that again, she was doing so, you know, again, as sort of like a performative act of, you know, watch me do something so I can try to eke out a win, you know, in another corner. And I think that that's admirable.

00:44:01 Speaker_04
No, I think that's right. I mean, in a lot of the cases that you or I don't like the result that the government does, those are the kinds of cases where the interests of the executive branch are not our interests.

00:44:14 Speaker_04
And she is up there arguing not for herself. She's up there arguing for the executive branch of the federal government.

00:44:22 Speaker_05
So we wanted to leave you with General Prelogger, in her own words, talking about her as General Prelogger and doing her job. This is from the Ninth Circuit Judicial Conference, where she was one of the featured speakers.

00:44:32 Speaker_03
It's true that my client is the entire federal government and all of its agencies and officers. But really, it's more than that. Ours is a government by the people, of the people, and for the people.

00:44:44 Speaker_03
And so as former Solicitor General Frederick Lehman once said, the United States wins its point whenever justice is done its citizens in the courts.

00:44:54 Speaker_03
Those words reflect that getting the law right and ensuring justice is done matters more than scoring a technical win for the government in any particular case. And I want to pause on this point because it's especially important.

00:45:07 Speaker_03
It's so important, in fact, that General Lehman's quote is inscribed along the molding of the antechamber leading into the AG's office just down the hall from my own office.

00:45:16 Speaker_03
It is the mission and the responsibility of the Department of Justice to promote justice and the rule of law, not to win at all costs.

00:45:25 Speaker_05
Pam, thank you so much for taking time out of what is one of the busiest schedules I am aware of exists to talk with us about General Prelogar and to join the show. We really appreciate it.

00:45:36 Speaker_04
Thanks for having me. As you know, I'm such a fan of the show that getting to be on it is Well, for me, it's just as good as getting to argue in front of a court that's going to rule against my clients.

00:45:46 Speaker_05
Wow.

00:45:47 Speaker_04
Wow. What high praise.

00:45:50 Speaker_05
What praise.

00:45:51 Speaker_13
Well, we are huge fans of yours, and we would rule in favor of your clients in every single case, Pam, so if that's any consolation. Seriously, thank you so much. It was terrific to have you.

00:46:00 Speaker_05
Thank you. And when we come back, Melissa will be with us, and we'll return to our regularly scheduled programming, Shitting on Originalism.

00:46:18 Speaker_13
With us today is Madiba K. Denny, an attorney, a columnist, and a commentator.

00:46:22 Speaker_13
She wears many hats, but most importantly for our discussion today, she is the author of an excellent debut book titled The Originalism Trap, How Extremists Stole the Constitution and How We the People Can Take It Back.

00:46:33 Speaker_13
Madiba, welcome to Strict Scrutiny. Thank you so much for having me.

00:46:37 Speaker_02
Well, we're going to dive right in. I love explaining to people who ask me what originalism is by telling them that originalism is the world's best lawyer joke. It's literally a scam that people have come to hear so often that it's become naturalized.

00:46:53 Speaker_02
It's an actual method of constitutional interpretation. Obviously, as you suggest in your book, there is more to originalism than that. In fact, it seems like originalism was cooked up in a meth lab of conservative grievance in the 1980s.

00:47:09 Speaker_02
So you talk about this, you talk about the many cases that have had appalling outcomes because of the influence of originalism. But what specifically prompted you to write this book and to take down originalism in quite such a fantastic fashion?

00:47:25 Speaker_11
Well, thank you so much, first of all. Second, as for what was the final impetus, like you said, it's kind of a lawyer joke. I feel like a lot of us have known for a while that originalism is trash. But what really gave me the...

00:47:39 Speaker_11
What really gave me the impetus that sort of pushed me over the edge and like, okay, I need to say something about this at length and for a hopefully mass audience was when the Dobbs decision was leaked.

00:47:53 Speaker_11
I remember reading that draft when it came out. and just thinking, wow, they are really going to use this notion that we can't have rights now that we didn't have then to chain women to the past and revoke our constitutional rights.

00:48:12 Speaker_05
So it's so funny that that was your reaction because Neil Gorsuch read the draft and 10 minutes later he was like, this is fucking amazing. You're doing amazing, sweetie. Sam Alito, join me in full.

00:48:25 Speaker_11
Right, I was like, I've taken longer to decide what to order for lunch than it took Neil Gorsuch to sign on to that opinion.

00:48:31 Speaker_11
But yeah, it was just so outrageous and so transparent that by linking constitutional interpretation to your imagined version of the 1800s or what have you, you are by definition going to re-enshrining all of the biases of that era.

00:48:49 Speaker_11
And seeing that the court was really just going to go for it in this really egregious way, I was like, OK, enough is enough. Gloves are coming off.

00:48:58 Speaker_05
I love this for you and for them. As you discuss in the book, originalism has changed over the course of its popular usage. Justice Scalia somewhat famously said, I'm an originalist, not a nut, about Justice Thomas.

00:49:12 Speaker_05
And even more academic theories of originalism changed from original intent to original public meaning to original methods to original contours to whatever. So how do you define originalism for this project?

00:49:26 Speaker_05
And do you count all of the, quote, originalists as originalists?

00:49:31 Speaker_11
Yeah, something I say in the book is that I think those various versions are kind of just splitting centuries-old hairs, that all versions of originalism can be boiled down to a central thesis, that all of the variations still have this thing in common, which is the idea that the meaning of the Constitution is fixed in time.

00:49:53 Speaker_11
They say it was frozen at the moment of enactment. So yes, some might say, oh, we'll look at the intent of the people who wrote it. Like, they don't really do that so much anymore.

00:50:02 Speaker_11
And others say, we look at the original public meeting saying, how would Johnny Slaveholder have understood it when it was written? But regardless, they're saying we're time traveling.

00:50:14 Speaker_11
We're going back to whose views were valued in the 1800s and saying that that understanding remains the governing authority now.

00:50:24 Speaker_11
So I think that's the way you can sort of consistently understand what originalism is, despite the various academic nitpickings here and there about what particular flavor of originalism they feel like using.

00:50:36 Speaker_02
Well, let's dive into the conservative meth lab from which originalism sprang, fully formed from the head of Antonin Scalia and his minions. The first chapter of your book, called Heist, talks about the history of originalism and its takeover

00:50:52 Speaker_02
slash capture of the Supreme Court. In that chapter, you make a few arguments about the birth of originalism. So spell it out for us. When and why do you think originalism actually got started?

00:51:05 Speaker_02
What is the animating principle behind this theory of constitutional interpretation?

00:51:11 Speaker_11
That's a great question. And I think part of what makes that question so good is because there's a lot of misinformation around it. I think a lot of people typically pinpoint the origin story of originalism with Bork.

00:51:25 Speaker_11
He's sort of seen as the father of originalism. He wrote this big paper about how this is the only way to have neutral principles to understand what the Constitution means.

00:51:37 Speaker_11
But I think we actually have to go back a bit before that and look at the backdrop against which that developed.

00:51:43 Speaker_11
And the backdrop of it really comes out of Brown v. Board, because in Brown, the court said, while the arguments were being made, they said, hey, various parties in this case, and intervening parties,

00:51:57 Speaker_11
uh can you tell us what the reconstruction framers thought about how the 14th amendment could apply to to segregated schools and they got different answers which i think should already tell you something about originalism's claim to have a single true answer they got different answers uh some saying

00:52:18 Speaker_11
Well, the purpose of the Reconstruction Amendments was to foster racial equality, so you can't have segregated schools.

00:52:26 Speaker_11
While others were saying the people who wrote the 14th Amendment didn't have any intention of removing the power of states to segregate schools if they so desired. So they're having this argument about it.

00:52:38 Speaker_11
And the Supreme Court took in all that information and said, actually, you know what? We don't need that. That should not be our guiding influence. We shouldn't look at whatever we think the original understanding may have been.

00:52:55 Speaker_11
Clearly, there's disagreements about what it was, but also, even so, we shouldn't be tied to just that. We need to look at the underlying principles. We need to look at the role of education currently in our society,

00:53:06 Speaker_11
and think about how these core underlying things like equality and dignity and freedom, how they map onto our world today. That was what the court said in Brown, and that led the court to say that segregated schools were unconstitutional.

00:53:23 Speaker_11
And the conservatives freaked out about this. It took a great deal of offense. And Congress members put out a statement called the Declaration of Constitutional Principles, which we now know more commonly as the Southern Manifesto.

00:53:40 Speaker_11
And in that, they put forth a bunch of constitutional arguments to say that Brown was legally unsound, that the Supreme Court got it wrong. And a fundamental part of their argument was that the court exceeded its authority.

00:53:56 Speaker_11
It did something it did not and should not have the power to do by deviating from the original understanding. And this is actually something that the pro-segregationists argued in Brown as well.

00:54:07 Speaker_11
They were saying, you know, it's not just that the framers thought this, but if the framers thought this, you have to say so as well. It's not just that history could be a factor, but this is the only factor that matters. So that is the critical

00:54:22 Speaker_11
backdrop. That's how we then get this professionalization of these types of arguments to say, oh, the one legitimate way to decide what the law means, what the Constitution means, is to look at what it meant then.

00:54:36 Speaker_11
All of that arises from a backlash to the civil rights movement.

00:54:40 Speaker_13
Okay, so this history is really illuminating and as, you know, the title makes clear and as our discussion so far has made clear, the book is in part an extended critique of both the origins and the contemporary practice of what calls itself originalism on today's Supreme Court.

00:54:55 Speaker_13
But the book, we should say, is not just an exercise in critique or a tearing down exercise. It also offers up an alternative, which you term inclusive constitutionalism.

00:55:06 Speaker_13
And that's a mode of interpretation that is grounded in the values of the Reconstruction Amendments. So for our listeners, can you tell us about inclusive constitutionalism?

00:55:15 Speaker_11
So by inclusive constitutionalism, I mean the idea that the Constitution includes everyone, and the purpose of our constitutional interpretation is to make the promise of the Reconstruction Amendments real.

00:55:27 Speaker_11
These promises have been unfulfilled since they were written on paper, basically. And I think that originalism very intentionally obscures and downplays the liberatory commands of the Reconstruction Amendments.

00:55:43 Speaker_11
And so when we are interpreting any part of the Constitution, we should be doing so with the frame of the Reconstruction Amendments in mind. We should be understanding that these amendments transformed the whole document.

00:55:56 Speaker_11
It basically repurposed the Constitution. saying this is no longer just the enslavers document that's really concerned with property rights. We are now also like we're putting forth this concern with the rights of marginalized people.

00:56:11 Speaker_11
We're trying to expand the polity. We're trying to expand and protect rights for everybody who had been excluded. Saying that's the real purpose of the reconstruction.

00:56:22 Speaker_11
And that is how people understood and acted on these amendments, trying to flesh out their goals, always fighting to make them broader and more inclusive over time, and saying, like, that's the right idea. It is

00:56:38 Speaker_11
incorrect and misguided and flawed for us to think we actually need to be turning back time and constraining rights when actually the whole point is making a freer, more democratic, more egalitarian and just society.

00:56:51 Speaker_11
So that's what inclusive constitutionalism says. It says that we need to be interpreting the constitution in order to make an egalitarian democratic society that works for everyone.

00:57:01 Speaker_02
So The court's decision in Brown was assailed as living constitutionalism. The court was proceeding on vibes and their own personal policy preferences in favor of desegregation rather than on the actual terms of the Constitution.

00:57:16 Speaker_02
What you just said about inclusive constitutionalism seems a little bit different from what we understand to be living constitutionalism. Can you maybe tease out for us what the differences are?

00:57:28 Speaker_02
Because you're talking about broad principles in the way of living constitutionalism, but it seems meaningfully different from the critiques of living constitutionalism.

00:57:35 Speaker_11
Right. I think that the living constitutionalism idea left itself open to a lot of that vibes based critique by basically saying that, of course, the meaning of the constitution changes without actually asserting how it should change.

00:57:51 Speaker_11
So that's the that's the gap that I'm trying to fill with inclusive constitutionalism saying, yes, of course, it changes. And this is the way in which it should change.

00:57:59 Speaker_11
it should be changing in order to have this freer society that includes and works for everyone, that like all persons can be treated with dignity and like act on their rights.

00:58:11 Speaker_11
Because I think the weakness of the living constitutionalism idea is because if you just say the meaning of the constitution changes, then the follow-up question is like, changes how? Like changes to what?

00:58:23 Speaker_11
Like, are you saying that it can mean anything?

00:58:26 Speaker_11
And I mean, realistically, yeah, we have seen that over all of constitutional history, not just with people who would consider themselves living constitutionless, but with originalists, they be making the constitution mean any old thing that they want to.

00:58:44 Speaker_11
But I am trying to provide a principled statement of how it should change. So it's not just whichever way the wind blows saying this is the way we should be doing things.

00:58:56 Speaker_05
I think that's also a way of differentiating your theory of inclusive constitutionalism from popular constitutionalism, which is the theory that maintains the Constitution should proceed and be interpreted according to popular majorities.

00:59:08 Speaker_05
But of course, the pushback to that was, well, what if a majority of the country, let's say, embraces the Stop the Steal movement or January 6? Are you saying it should change there? And not like that.

00:59:20 Speaker_05
But in the spirit of putting forward an alternative to originalism, I guess I would love to hear your views on how important you think it is that opponents of originalism name and claim an alternative to originalism.

00:59:33 Speaker_05
So part of this question is, does it take a theory to beat a theory? But another part of the question is, I think some people thought a virtue of originalism was maybe it's stupid, maybe it's wrong, maybe it's trash, as you say.

00:59:47 Speaker_05
But it can be explained in like five words, right? So it becomes like a buzzword or almost a meme that people can just use in confirmation hearings or public statements. And it sounds like something, even if it's nothing.

01:00:01 Speaker_05
But I guess, what are your thoughts on the need for alternative theory and an alternative theory that might sound something like originalism in that respect?

01:00:10 Speaker_11
Yeah. Originalism's main value is as a branding exercise and a mobilizing vehicle. It let them say something with the air of legitimacy while cranking out conservative policies. And I heard you saying about that. Does it take a theory to be the theory?

01:00:29 Speaker_11
I want to share for the readers, you know, you have your, you have your Scalia. I don't have to be, it doesn't have to be the best theory. It needs to be better than their alternatives. And believe me, like, that's not, that's not hard.

01:00:44 Speaker_11
And then you have Professor Erwin Chemerinsky, who came out with his great book titled, Worse Than Nothing. saying that originalism is in fact worse than having no theory at all. But I do think there is actually another way. You can have a theory.

01:01:01 Speaker_11
And I think there is value to that in that sort of mobilizing way as well. And then I think that People want to know what judges should be doing beyond not that.

01:01:14 Speaker_11
I think they can look at the originalist court and recognize this as a far-right conservative hellscape, but still want to know, you know, like, okay, well, what should we be doing then?

01:01:26 Speaker_11
So I think it is valuable then to be able to say this is the thing we should be doing, to be able to say inclusive constitutionalism.

01:01:32 Speaker_11
it can be helpful and motivating in that way as well and help you connect with people, connect with other advocates, connect with people who could be brought on board to support the goals of progressive advocates if they're not actively advocating themselves.

01:01:51 Speaker_11
Because the idea of the Constitution means a lot to a lot of Americans. And I think that originalists shouldn't get to lay claim to having the one true idea of the Constitution, especially when that idea is so bogus and harmful.

01:02:06 Speaker_11
I think there's merit to saying there is an inclusive understanding of the Constitution. This is based in the Constitution itself, like in the Reconstruction Amendments, that can help us get to a more just future.

01:02:18 Speaker_11
And this is something that we can all get on board with and work towards.

01:02:21 Speaker_02
To that point, Madiba, what would you make of the liberals and liberal scholars who advocate repurposing originalism for more progressive ends?

01:02:32 Speaker_02
There are lots of outfits that are really in the business of showing that originalism doesn't have to lead necessarily to conservative outcomes, but could actually lead to progressive possibilities.

01:02:42 Speaker_02
Is it OK to reclaim originalism, or is there a flaw in that as well?

01:02:47 Speaker_11
I do think it's flawed. I understand it, but I think it's flawed.

01:02:52 Speaker_11
I think that it's valuable insofar as you're making the point that originalists are lying to you all the time, to say that they're claiming to be dependent on history, but this isn't even a good understanding of history.

01:03:05 Speaker_11
I think that that has some value to it, just to let people know this is nonsense. But as a matter of being an actual guiding principle and of convincing people about how you should understand the Constitution.

01:03:19 Speaker_11
I don't think doing originalism but from the left is actually that valuable. I think it's still conceding the premise that the way we should be understanding the Constitution is by linking it to some imagined version of the past.

01:03:34 Speaker_11
And I also think that it definitionally kind of sets you up for failure, too, because I don't want something that we've had before. I want better. I want us to have that more democratic society.

01:03:46 Speaker_11
And the understanding of the 14th Amendment, like even the 14th Amendment, which I love, which Imani Gandhi referred to as the black ass amendments, which I found delightful and amusing, like these are the sort of

01:04:01 Speaker_11
baseline racial justice amendments, but even they, when they were first written, weren't as expansive as they are now. Like, it didn't apply to women, for example.

01:04:15 Speaker_11
And that's something that Scalia said outright in front of people, where folks could hear him, was like, oh yeah, no one ever thought that the 14th Amendment applied to women. Like, that's not actually what it means.

01:04:28 Speaker_11
So I think if you want to do originalism, but make it leftist, you're, that's a dangerous, you're walking into the originalism trap that way.

01:04:36 Speaker_11
So we are best served by crafting a whole new method of interpretation distinct from their artificial constraints.

01:04:45 Speaker_13
So we've been talking, you know, kind of broadly about, you know, methods of interpretation.

01:04:48 Speaker_13
And something that you do in the book that I think is really useful is not just to sketch out in broad terms your vision of inclusive constitutionalism, but also to walk through what an inclusive constitutionalist approach to some of the court's recent cases would look like.

01:05:01 Speaker_13
So that includes abominations like Dobbs, which we've already talked about, cases like Bruin, the gun case, which we've talked about a lot on the podcast, but also cases even where you agree with the outcome the court reaches.

01:05:12 Speaker_13
So a good example there, I think, is Department of Commerce versus New York, which is the case about the Trump administration's attempt to add a citizenship question to the 2020 census.

01:05:20 Speaker_13
So for folks who haven't read the book, can you just walk through what, on your view, an inclusive constitutionalist approach to that case might have looked like?

01:05:29 Speaker_11
Yeah, well, I think that, so the census clause of the Constitution says that we need to count all persons residing in the country for apportionment purposes.

01:05:40 Speaker_11
And the Trump administration was putting forth this novel idea and claiming that it was in fact historical and originalist, even though this is not the way things have ever been done in the entire multi-century history of the census.

01:05:54 Speaker_11
I got a lot of feelings about this. They're saying that, actually only legal citizens should be counted.

01:06:02 Speaker_11
And I think that this is plainly at odds with the way the Constitution should be understood through an inclusive constitutionalist lens, because they are declaring that some people are less than people, like quite literally, a la the Three-Fifths Compromise.

01:06:20 Speaker_11
It's basically rebooting that. and it is wiping some people out of the countries, out of the population base, and then compromising the allocation of political and financial power that comes as a result.

01:06:38 Speaker_11
It very deliberately is trying to oppress marginalized people by excluding them from the population so as to exclude them from political power and economic benefits.

01:06:51 Speaker_11
And this is just blatantly at odds with everything the Reconstruction amendments are supposed to do. They're supposed to put a stop to stuff like that. Like that was the whole grand idea.

01:07:01 Speaker_11
So I think that was a really clear example of how an inclusive constitutionalist understanding could work, even if, as you said, the court got to the right conclusion. I think they got to the right conclusion for the wrong reasons.

01:07:17 Speaker_11
In the census case, basically, John Roberts decided it based off of saying the Trump administration was clearly lying.

01:07:27 Speaker_11
And so saying this is an Administrative Procedure Act issue because you're supposed to be honest about the reasons why administrative agencies are making decisions.

01:07:35 Speaker_11
And so, like, this man is really sitting here and saying, I can excuse racism, but I draw the line in Administrative Procedure Act violations. It's like, be serious.

01:07:44 Speaker_11
You are missing an opportunity to say something much more important about the role of the Constitution in protecting everyone and how we all have a right to be counted.

01:07:55 Speaker_11
The census is quite literally about who counts in America, and it's at odds with the Reconstruction Amendments, as they should be properly understood, to ignore that.

01:08:04 Speaker_05
So in addition to the book's focus on interpretation, you do also discuss court reforms, including court expansion, term limits, and other meaningful reforms that could limit the court's power and promote democracy, including some of the ones that President Joe Biden has

01:08:19 Speaker_05
recently come around to. So what is your vision for the structure of the Supreme Court? You know, how many justices would serve or how long would they serve? Would there be any changes to the appointment process or the court's authority?

01:08:32 Speaker_05
What does an inclusive constitutionalist court look like?

01:08:35 Speaker_11
Yeah, well, there should absolutely be a bigger court. That's just easy peasy, no brainer. There should be a bigger court.

01:08:45 Speaker_11
There's no reason why a country of this size should be governed by this itty bitty handful of Yale law grads, basically, who get to rule forever.

01:08:57 Speaker_11
uh so we we need a bigger court we need a more diverse court uh and i do think it makes a lot of sense as well to regularize when appointments happen in addition to uh create the creation of term limits because it is absurd that the direction of the country can depend on like

01:09:20 Speaker_11
whether one little old lady who's like a repeat cancer survivor can keep on living. That's not how a government should function, that the weight is on this tiny little old lady's back.

01:09:35 Speaker_11
We need to have another way of doing things rather than depending on when the Grim Reaper comes to knock in. So I think that regularizing appointments makes a lot more sense. And term limits also makes a lot of sense.

01:09:51 Speaker_11
So again, that's the only role in America's government where you have someone get to rule forever for the rest of their natural lives. It's really absurd.

01:10:04 Speaker_11
I think we should also, this hasn't been as big as a part of the public discussion as, say, court expansion or term limits has, but I think in addition to limiting the power of any individual justice, as I think term limits and court expansion do, we also need to look at limiting the power of the court as a whole.

01:10:24 Speaker_11
because the court has been amassing more and more power for itself and using this to obstruct anything even approaching progressive policymaking.

01:10:36 Speaker_11
And so I think that this could look a bunch of different ways, whether limiting the jurisdiction the court has.

01:10:42 Speaker_11
My hot take is that the court just should not have the ability to review any statute enacted under the authority of the reconstruction amendments. They're saying if it's a Reconstruction Amendment based law, the court just has to mind its business.

01:10:58 Speaker_11
It can apply it and does not get to strike it down as it did with Section 5 of the Voting Rights Act, for example. I think you can also look at making easier mechanisms for Congress to respond to court decisions.

01:11:13 Speaker_11
like maybe some sort of mechanism where if the court makes a decision on a law passed by Congress, it sort of goes right back to Congress for a quick yay or nay vote.

01:11:24 Speaker_11
I think some mechanism like that would make it easier to respond to the court's decisions quickly in real time than just this feeling that I think a lot of people have of being stuck with whatever nonsense the court does.

01:11:40 Speaker_11
So I have I have a lot of thoughts on on ways that the courts could be structurally reformed. But I do think that disempowering reforms for the court as a whole should be considered in addition to these ones that are more about individual justices.

01:11:57 Speaker_02
Well, speaking of the nonsense that the court does, your last chapter talks about what we the people that is lay people and lawyers can do to take back the Constitution.

01:12:08 Speaker_02
And it's a really important intervention, especially as we go into October term 2024, where the court will hear yet another slew of cases that imperil really critical liberties. There's a case concerning gender-affirming care for minors on the docket.

01:12:24 Speaker_02
There will be a challenge to the ATF's regulation of ghost guns.

01:12:27 Speaker_02
How can inclusive constitutionalists wield the public outrage over the court and its recent originalism forward decisions and direct that energy toward influencing more just outcomes in the upcoming term? So what can listeners do? What can readers do?

01:12:46 Speaker_02
Are there any other recommendations besides just getting mad and drinking ourselves into a blind stupor?

01:12:53 Speaker_11
Yeah, you know, no shade towards anger and drinking, two things I enjoy. However, we've got to do a bit more than that as well. And I try to put forth a couple different strategies in the book.

01:13:07 Speaker_11
I also want to be clear that this is not an exhaustive list of strategies by any means. I think that we always have room for more creative responses to the various like assaults on our rights and assaults on reasoning that the court is doing.

01:13:22 Speaker_11
but some that I try to put forth are constitutionalizing your arguments. Like I think that sometimes we are like leaving power on the table by not saying actually like the constitution requires this or the constitution does not permit that.

01:13:39 Speaker_11
Whereas this was something the right wing had done even after Roe was decided, conservatives never stopped saying that abortion is unconstitutional. And they worked and kept saying that until more people started believing it.

01:13:56 Speaker_11
And so I think that we should make sure to seize that sort of discourse shaping power as well and just declaring things that we think should be constitutional are. Basically, it's like a legal version of fake it till you make it.

01:14:13 Speaker_05
Or if you build it, they will come.

01:14:14 Speaker_11
Right, right, exactly. There's a lot of power in acting out your constitutional vision as well. I described this in the book with a story about the Montgomery bus boycott, basically saying how thousands of black southerners said, we think

01:14:31 Speaker_11
that segregated buses are unlawful, and therefore we are not giving the segregated bus system our money, we're not riding the bus, and created a lot of pressure on the city, which was being deprived of those bus fares, to re-evaluate how it was thinking about the law.

01:14:50 Speaker_11
And so I think that, yeah, any opportunity we have to build that kind of collective power and apply pressure on any sort of legal body, whether they be congresspeople or courts or what have you, like any such opportunity is good.

01:15:07 Speaker_11
Also, again, just like acting as if your vision of the Constitution is already correct. I think that we saw people do this before Roe was the law of the land, how there were sometimes these like

01:15:21 Speaker_11
uh like underground basically like abortion networks uh to provide people care anyway and we are and we're seeing that now as well as some folks are like dedicating themselves to making sure that people can still get abortion care regardless of what the court in their state says i think that's really important to keep doing that

01:15:40 Speaker_13
And not just the doing it, but you're saying both the doing it, critically important, but also doing it and using a constitutional register to talk about the imperative of providing people with autonomy and access to health care.

01:15:51 Speaker_13
And those things are constitutional values. They align with our vision of the Constitution. So it's sort of the theory and the praxis kind of come together. So unfortunately, we have to leave it there. Thank you so much for joining us.

01:16:03 Speaker_13
The book, once again, is The Originalism Trap, How Extremists Stole the Constitution and How We the People Can Take It Back. It's available at bookshop.org as an audio book read by the author and wherever you get your books.

01:16:14 Speaker_13
Once again, Madiba, thank you so much for the wonderful book and for taking the time to be with us today.

01:16:18 Speaker_11
Yes, thank you for having me.

01:16:21 Speaker_02
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01:17:11 Speaker_02
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01:17:17 Speaker_02
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01:17:38 Speaker_02
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01:17:52 Speaker_13
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01:18:02 Speaker_13
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01:18:11 Speaker_13
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01:18:22 Speaker_13
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