Strict Scrutiny

First of all, I think it's an understatement to say this book is irreverent. It is irreverent. It is snarky. It's sometimes profane, but it is the most compelling account of what is actually wrong with the system, the justice system, the judicial system and the way in which law works to limit rather than to enhance rights.

I try not to lose that sense of just talking to being in conversation with regular people in terms of why the book and why now look we are at a time of unprecedented conservative takeover of the third branch of government.

I have a whole chapter on this in the book. I think one of the cleanest ways to see originalism's intellectual bankruptcy is through a discussion of the 8th Amendment.

I'm a 14th amendment person, right? Like just like for me, the Constitution is the 14th amendment and some suggestions.

No Carol Anderson and I did a talk here at the Commonwealth Club a couple of months ago in her book The Second Race and Guns and a Fatally Unequal America really details it and it's magnificent so for all of those who are in the audience it was a really terrific conversation and Carol Anderson explains this as well but she sort of makes an originalist argument about The Second Amendment.

She's the author of the extraordinary book The Turnaway Study, 10 Years, 1000 Women and the Consequences of Having or Being Denied on Abortion.

And in fact, both groups improve over time. And emotionally, Kennedy was just wrong about the increase in depression over time. That is not an increase in regret.

The book is The Turnaway Study. It is an amazing combination of rigorous study design and execution woven together as Diana's last comment made clear with these really powerful narratives of the women in the study so it centers women and their lives in a way that the discourse on abortion does way, way too rarely.

And let me just say it was moving and you know what else is like an amazing testament to Breyer's men's genus is the last couple of paragraphs of Leah's epic review of Justice Breyer's book which basically says like the book is pretty terrible and yet Justice Breyer is still an unbelievable man.

It was a great book really. Thank you. And it was it was a Justice Briar if you want to come on the podcast I'll discuss it with you.

Justice on the Brink, which considers the way in which the change composition of the Roberts Court has affected the court's jurisprudence in this particular age.

a number of critics praised your amazing facility with the case law, your ability to make the case law accessible to lay readers, and all of that is true.

my book starts out with the image of Amy Barrett and Donald Trump up there on the Truman balcony and that night in October after she was confirmed you know he had Trump had nominated her before Ruth Ginsburg was even buried I mean the shocking speed of it the kind of inevitability of it.

Her other books include Becoming Justice Blackman, The Burger Court and the Rise of the Judicial Right, and Before Roe v. Wade, Voices that Shape the Devortion Debate Before the Supreme Court's Ruling.

They include a book called anti racist baby now this is a book that is taught at Georgetown day school to students in pre K through second grade so four through seven years old.

It's this book anti racist baby by Ebert and Kendi that is apparently at Georgetown Day in their library and Georgetown Day is a school where judge Jackson's children have attended.

I will just flag one her 2010 article, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law, which is essential reading for anyone interested in sex, gender, and the law.

So basically in Bostock, the court said if you look at the words of the statute, if you look at the words of Title VII, that leads you ineluctably to the conclusion that the sex provision covers discrimination on the basis of sexual orientation and gender identity.

One of the key aims that the article has is to give a name to this phenomenon that people have noted, which is there are these purportedly neutral or many times even unacknowledged but often outcome determinative choices courts are making that have a veneer of methodological feel to them. But I think are actually being determined by substantive judgments.

Textualism promises that arguments involving matters of deep moral and political significance to the American people can be transformed into and resolved through value free arguments over technical methodological questions. But that is not possible and pretending otherwise is not democracy enhancing in fact it is the big lie in the judicial realm for the coming generation that judicial elites trained in the practice of textualism and originalism can unlock the one true and eternal meaning of our deepest legal commitments unburdened by history, politics, social change and the substantive constitutional values.

So the authors of the piece. This isn't like new reporting that they are breaking but they pull from this 2007 biography of Thomas this little piece of reporting which is so Kevin Meridah and Michael Fletcher wrote a biography of Clarence Thomas in 2007 and in reporting that book they interviewed a young Katanji Brown Jackson

And as she told the authors of the 2007 book, she remembered sitting across from Thomas at lunch and thinking, I don't understand you, you sound like my parents, you sound like people I grew up with. But the lessons he tended to draw from the experiences of the segregated South seemed to be different than those of everybody I know.

Oh my God. And when I was going back through old copies of the Yale Daily News to get a sense of what the life was like on campus in 1982, 34 when Kavanaugh was an undergraduate there, you would run across familiar names, writing opinions, op-eds for the Yale Daily News. Not Brett Kavanaugh.

He spent months, particularly last fall on the speaking circuit around the publication of his book, The Authority of the Court and the Paral of Politics, basically insisting to the public against all mounting evidence that the court was basically apolitical

He said something about how the court's recent radical rulings weren't great for the sales of his book that insisted the court was a nonpartisan and neutral institution.

I interviewed Noah Feldman for the piece and I had also I also had talked to Rich Lazarus both from Harvard but Noah Feldman wrote the book Scorpions about the 1940s court and how much these people detested each other is nothing like this they were quantum leaps ahead of what this is they were referred to as nine Scorpions in a bottle because they couldn't get along

It's in Justice Scalia's book. For my own marital situation, I just want to clarify that there is only one love of Chris Hayes' life and it's not me.

my old boss, Justice Stevens, he wrote in his last book that the court, he called the court by the name not of the Chief Justice, but of the most recent addition to the court. Justice kind of transforms the court. So this is the Barrett Court, right?

Professor Codrington's co-authored book came out in fall 2021, and it's about constitutional law, democracy, and change.

And we now look like we had this sort of project and ultimately we still had two nagging questions driving us. One was why don't we think about amending the Constitution anymore? And the other was how do prior generations think about amending the Constitution? How did they achieve them?

So that is this book about the history of constitutional amendments that distills some lessons from the past and gives us sort of look at a possible future if we would take a page from the playbook of the series of generations that amended the Constitution.

The fact of the matter is 40% of the Constitution came after the original document was read and in that 40% of the Constitution are some of the most important principles and values that we think about when we talk about the Constitution today.

definitely encourage everyone to check it out it's a very enjoyable read and easy read so perfect for holidays between the semester over the summer or as you are traveling

Among them is Jocelyn Nicole Johnson's My Montage Shallow. And if you've been listening to this pod for a while, you'll know that as an undergraduate at the University of Virginia, Wahoo Wah, I was also a tour guide at Montage Shallow.

But the short stories are fantastic. One of them, Control Negro was cited by Roxanne Gay in her collection of the best short stories of 2020, I believe.

But the centerpiece of the collection is the novella My Monticello, which offers a dystopian walking dead style narrative about a white supremacist takeover of Charlottesville, Virginia, which prompts this motley crew of neighbors to take refuge at Montage Shallow, the home of Thomas Jefferson.

Also highly recommend Pat Barker's The Silence of the Girls and the Women of Troy, which are both feminist retellings of various chapters of the Iliad.

And then there's also a beautiful companion for the children in your life born on the water.

Here's a book that maybe isn't super hard reading, but is extremely entertaining. And that would be Sarah Cooper's book, How to Be Successful Without Hurting Men's Feelings.

Someone gifted me this book and it has sparked joy every time I have opened it.

The book is called Allow Me to Retort, a Black Guy's Guide to the Constitution. And if the book is anything like Ellie's searing commentary in The Nation, it is going to be a rollicking ride through constitutional law.