Strict Scrutiny

In the book, you write that an amendment could help address election subversion and you discuss efforts to overturn the results of the 2020 election, which obviously gave rise to the disqualification proceedings that we were talking about.

And you give two examples of how this might play out. You note litigation over North Dakota's voter identification law, which required residential addresses and disadvantaged native voters and suggests that litigation might have gone differently with a constitutional or immune system.

And part of your justification for this constitutional amendment is that it would reduce litigation and polarization over voting.

Now, at the end of the book, I say this Supreme Court have to face an unambiguous right to vote in the Constitution.

Is there an audio book, Rick?

There is a ton written on FDR's battles with the Supreme Court in the 1930s and the failed court packing plan in 1937 and the what is perceived to be the switch in time that saved nine where one justice changed his vote to allow New Deal programs to be upheld.

And then also think they'll be really interested to see how different the career trajectories of the justices were. Like now we're very used to people going to the court from a career on the bench, but FDR's wartime court was sort of singular in the diversity of the experiences that the justices brought to the bench when they became justices.

So could you talk a little bit about the coziness of FDR and his official family, part of his personal family. It's really very, very striking.

And maybe it's helpful to just get out on the table the players during this period, the justices during the war.

And it's very well documented that the reason FDR did that primarily had to do with the war, because FDR was single-mindedly concerned with preparing the country for the war, which he thought was inevitable.

This is all to say that this case presented what someone like Derrick Bell might call interest Convergence, which is to say that it provided the courts conservatives with an opportunity to own the Biden administration while also vindicated.

Is that what Derrick Bell meant by interest Convergence?

I never want to get so woo-woo about like saying a deep breath in that it doesn't actually even my belief in that it's important to step back from panic and like it to use your word the nightmare situation I never want us to be cavalier about sometimes we need to be in a fight position we need to be ready that said there is so much value like any any great strategist will tell you like you just said to have a moment where you pause and give kind of um a nebulous space where you don't have to know the idea you don't have to you aren't grasping for the for the answer but that kind of open space to where the strategy the answer the solution arises organically like that is again that's so valuable and it's it's definitely harder to do when you're the one who's more like when it's an existential question however recognizing that it's possible just knowing that it is within our capacity especially when you know we have a you know a moment in the day say after exercise or in the morning when you're brushing your teeth to just say like like the title of the first the intro chapter is called you'll be okay and that that is a big statement again not to be cavalier but that ultimately realizing like we do have a lot of power within we do have a lot of power as a community and that to me alone gives me a lot of um peace and calm it doesn't fix everything and and Turning Inward is not meant to be a panacea it is however an opportunity to just do it a little bit better to maybe just navigate it a little bit more intelligently and mindfully

I appreciate this idea because I do think there are times when you know our students talk to us about this like everything feels really overwhelming it can be very difficult to understand how one person can make an intervention that is meaningful against what feels like just a rising tide of crap and you know Turning Inward recognizing that you can only manage yourself in this situation and and do what you do I think is incredibly liberating I mean it doesn't have to be disempowering I actually can be incredibly empowering to sort of I can get my side of the street correct and figure out how to work with other people who are also trying to get their side of the street correct and maybe together we can clean up a lot of different streets and you know I thought that was a very powerful part of the book like you're responsible for yourself but all of those people responsible for themselves working in concert can actually be quite forceful

I also love until you said that most I hadn't had this thought but the book has this like wonderfully capacious approach to meditation like it is not you don't have to have a special mat you don't have to sit in a full lotus position you don't have to try to think about it's like there are many no it or could be for us doing for turning and bow nine I'm doing exactly listening to it can be a form of meditation why doesn't my peloton dot show about every time I show up in this room where's my red dot wait so many times make that happen to get out the club we need I love that yeah I listen I think I love all of that and and not to blow smoke but that is what you do that's what you do for me you know I remember Kate when you were on uh as recline show I believe and and you do it on this you all three do it on this podcast all the time the decision and the clarity that you all bring to these incredibly complex topics for people like myself you're absolutely doing what meditation is meant to do it's you know allowing us a gateway to a feel a little bit better because we're human beings love to feel a little bit of control a little bit of orientation so absolutely your you are doing that and how do you maybe do it a little bit more how does anyone do it a little bit more Kate to your point I think for me it's as simple as say say you scrolling through Instagram takes you out of your head and that's what you need to escape or a glass of wine or a running on a treadmill doing a peloton yoga class I think if someone says look I am doing this for the purpose of feeling better I'm doing this intentionally to get out of my head so that when I finish perly is point earlier so that I'm assuming that my ideas are going to be a little bit more crystalline and useful have utility when I get done then it is absolutely meditation

I feel so blessed with like my mom used to my grandfather passed away before I was born he and my grandmother were both actually pilots in the 1950s and they were in a plane crash before I was born and um my mom actually had an 11 year old sister to raise and she spoke about my grandfather in such glowing terms of that at his at his funeral the janitor and the mayor were both there and and she always said and says to this day you know that humility is one of the highest virtues that we can attain or we can possess and you know it's not my place to say that that's not gonna happen with some people on the court but I do believe that there is a strong link between humility and beginner's mind I bet all the justices especially if you said to them you know in a private or you know kind of saves base if you will like humble in the face of history humble in the face of the constitution and what is it that they see themselves in service of that is they're willing to say you know what I don't know everything I do want to I do want to have a beginner's mind if it makes America if it makes this country that we all love a better place a more perfect union some avenue with that to get to beginner's mind so it's not just this kind of axiomatic thing that they'll dismiss

And in some way you know the breathing exercises that were sprinkled throughout the book reminded me of what has been my absolute favorite fiction read recently and that's the court of silver flames I don't know if any of our listeners or you have read but they're the warrior nesta archer on learns breathing exercises to become one of the fiercest kind of warriors ever and so yeah I just I I really appreciated that kind of balance

So again I think just thinking about what is an expedient and practical because I mean just as a practical matter I don't think there is any way that this court is going to allow the Colorado decision to stand because it would create a patchwork closure before the election and like they just don't want that. Predictively 100 percent. I also think in dear this is not my own thought but this is something that I'm cribbing from Darryl Miller of Duke Law School. This is kind of like a ticket to ride like this one good for one trip only like this issue is it Bush versus Gore. Well I mean I don't know that this question's going to come up over and over and over again and the future it seems like very specific very idiosyncratic for this particular candidate and you know the way you decide it for this particular candidate will have real repercussions for the incentives that other people have to use this provision going forward and I think they just want to cut it off at the knees. But also the enabling the enabling of the Dilea's point the enabling legislation as a basis for like taking an off ramp. Does that call into question like the actual possibility of other provisions the constitutions including of the four to the amendment? Like maybe it all requires enabling legislation. I mean that's a two-first right? Two-first! Where is the problem? Yeah yeah. I agree like with the predictive claim Melissa that that seems very likely and I also agree with Leon I think you agree to Melissa that it's a I don't think that's a good argument. So I find this all really hard not because that argument is hard or really on the merits like honestly I think that if you take the constitution seriously and that means like its words in context, its values, the consequences of different potential rulings like Trump should be ineligible like actually don't think it's hard on the merits but I do think the kind of question of sort of constitutional politics are hard. I don't know what the court should do here. I just like I know how bothered I am by some of the arguments that I have heard made and there is this kind of general chorus that has been I think kind of bipartisan cross ideological which is just like the Supreme Court must decide this and practical. Practically exactly. It's like the uniformity argument is powerful that makes sense like a patchwork where ballots look totally different from the perspective of the major party candidate across the country seems intolerable. On the other hand right it just is so uncritically accepting of this notion that only the Supreme Court can decide the most important questions in our democracy. That's something that I feel like we have been working very hard to resist in the podcast and elsewhere for a long time and so like that as the kind of precondition to all those arguments that the court must swoop in, I think revives this notion of the Supreme Court as the ultimate and only eruditor of the meaning of the constitution and even if that might practically be the case here like I don't want to uncritically accept that and so I think a lot of people no matter what they think the right answer is like all seem to agree that the court has to answer the question and I am really troubled by that assumption. Yes, I mean like me too because like ordinary politics are also happening right? Like people tried to convince the Republican Party to let Trump go with the January 6 hearings and opportunities to disavow Trump and they are still happening now and like I'm also concerned about giving the court and courts outside's role in our democracy but at least some of these cases like May and eros in the context of another institution and official concluding Trump is disqualified so courts like hypothetically could say our roles just to decide whether that determination falls within the bounds of some zone of reasonfulness of like constitutional democracy but of course that's not what they're going to do but I don't really hear you. Another sort of strain of commentary that has also just like driven me bonkers is this suggestion that you know people invoking the 14th Amendment Section 3 are like doing this in some sort of you know in the hopes that it will serve as this Deus Ex machina and like it'll be this easy out that will let us avoid the messy and difficult work of like politics and democracy and like that is I think wildly unfounded in part because of what you just alluded to like the messy and hard work of politics and electoral democracy happened in 2020 it resulted in the resounding defeat of an incumbent which is not a super common event historically and that defeated incumbent attempted to cling to power using multiple lawless means in ways that should disqualify him from future office holding like that's the argument I think it's a sound one and so if this is not about avoiding politics this is about you know meeting out constitutional consequences for an effort to completely usurp politics and democracy so I think that is that argument gets basically exactly backwards. Yeah and if I could just say one thing about Griffins case which is the case Melissa that you noted that the justice is like might rely on to say that enabling legislation is required to enforce Section 3 that was as you said a case that a Supreme Court Justice sitting as a circuit judge decided but the case is pretty thin because a specific issue in the case was basically whether to invalidate all of the acts of these provisional governments set up in the former Confederacy and that's a very different question than deciding X-ANT whether someone is qualified to run for office versus whether you are going to say actually this government that's been doing all of these things to set things up in the wake of the civil war we're actually going to say everything they did is unlawful right there are doctrines like de facto officer and whatnot that basically say even if someone e is might be like a legally appointed or whatnot you still can invalidate everything they do so the idea that that case resolves it also like is not exactly the firm support the Supreme Court might suggest it is. And that's the last part is I think really important because I think a lot of the people who have been harping on and on about Griffins case are taking a very unnewanced view of it and I think the courts likely to parot back that very unnewanced view.

She did a site a book that she does seem to understand and that is Robert Borks The Tempting Of America that factored into Justice Bradley's dissent and Chief Justice Ziegler's dissent for her part not much better she noted that she was vociferously dissenting which I think is like the strenuously object equivalent for judicial dissence and yeah that's that's gives you a little taste of what was going on in the Wisconsin Supreme Court but the Wisconsin Supreme Court told the legislature you can submit new proposed maps we're not going to allow a partisan gerrymander because we court have to maintain political neutrality and the court said because timings of the essence given the forthcoming election we will proceed with considering our own remedial maps in the event you fuck this up and don't give us anything workable.

Writing a Trojan horse name contiguity the majority breaches the lines of demarcation separating the judiciary from the political branches in order to transfer power from one political party to another bracket just the horrific writing girl read the fucking Iliad like read the fucking Iliad do you know how a Trojan horse works you can't write a Trojan horse it doesn't work if you do the whole point is that you hide in it so as not to appear details the fourth sentence of the opening paragraph explains that quote these handmaidens of the democratic party trampled the rule of law just honor the institution of the judiciary and undermine democracy end quote

Well, you mentioned the Taylor Swift song. Yes, she wrote a song about love story, but she also has another song called Bad Blood. I mean, wasn't Friar Lawrence aware of the fact that we were in this situation?

I love Marissa Meltzer I think she's amazing.

I haven't read it I should read it this year.

It's about the rise of the Glossier empire it's really good.

Abram Ferghese's The Covenant of Water

I haven't read that it's really good.

I love love that okay and I love the Amazon Prime series and also I love the Daisy Jones and the Six album is a banger for a fake band like they sound

It is a full media experience it is amazing it's absolutely if they came and played a concert I would go I don't care that they're a made-up band I bought a t-shirt I will go I think it's

Rebecca Mackay's I Have Some Questions for You