When systems are failing, what do you triage first? That’s a question that keeps constitutional law superstar Melissa Murray awake at night. As a law professor at New York University, a former clerk for Supreme Court Justice Sonia Sotomayor and co-host of the “Strict Scrutiny” podcast, Melissa is well-versed in examining our legal system at the intersection of the social and political, and she knows that what is being broken will take a long time to rebuild. In this episode, Melissa joins Nicolle to talk about why Justice Sotomayor’s dissents from the bench send a message about protest amid a conservative supermajority on the High Court, the power of Black women voters, and how to put Humpty Dumpty back together again.
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Note: This is a rough transcript. Please excuse any typos.
Melissa Murray: A critical question that I ask myself over and over again is, you know, can you put Humpty Dumpty back together again? We are breaking a lot of things and mistakes are being made. And I don’t know if they can be fixed easily. It will likely take 20 years to undo what we’ve seen done in the space of six months.
Nicolle Wallace: Thank you everyone for joining us for The Best People Podcast. This week you’re in for a treat because our guest this week is someone who I will admit to being intimidated by. She’s a genius. She knows everything about everything. She seems to know everyone from her different twists and turns professionally. She hosts her own very, very successful podcast called Strict Scrutiny. When she talks, Jon Stewart doesn’t breathe because everything she says is so profound.
This is The Best People Podcast and this is Melissa Murray.
Thank you so much for doing this.
Melissa Murray: Thank you for having me. And that is the most generous introduction. I want you to tell my teenagers all of this because they don’t think I’m The Best People.
Nicolle Wallace: But this is why you’re so magical to me. I mean, being at MSNBC, we get to talk to some really smart, really insightful, really amazing people and broadcasters, which you are all those things. But when you do a long shift, which you just did with me, a daylong shift to shoot a promo, that’s when you get to know your colleagues at a more personal level. And we both sat down, I think it’s not insulting to describe both of us with sort of low tech IQ, but we were plugging in mics and ordering our sons, our kids’ lunch from DoorDash and Instacart and the dogs were barking. And it’s that side of you that I was, it’s like that section in People Magazine, stars are just like you.
Melissa Murray: Well, that’s Us, Us Magazine. Stars are just like us.
Nicolle Wallace: Sorry, sorry.
Melissa Murray: Yes, they are.
Nicolle Wallace: So I was so heartened when you sat on that set to learn that your kids sometimes find you mildly annoying as mine does. And you have like a real mom life as well. So thank you for doing this.
Melissa Murray: I’m super happy to do this.
Nicolle Wallace: Tell me about your pop culture genius, which seems to rival your legal acumen.
Melissa Murray: I love pop culture, I really, really do. So I think you know this, like my parents were Jamaican immigrants and there was a period in time when I actually went back to Jamaica and went to school for about a year and a half. And so I came back from Jamaica with this very thick Jamaican accent. So, you know, imagine being in a Florida elementary school saying, “What’s going on, man?” It’s horrible. Not a way to become a popular kid in a third grade in Port St. Lucie, Florida. And so I watched a ton of television to lose my accent. Like I literally just spent hours and hours after school watching old school MTV, watching sitcoms, trying to shed this accent. And I think that’s where my love of pop culture comes from. Like I watched “Entertainment Tonight,” all of those shows that were sort of precursors of “Access Hollywood.” I would just watch them for hours while doing my homework or doing whatever, all in this effort to lose my Jamaican accent so I would not be teased mercilessly on the playground.
Nicolle Wallace: You really become fluent in whatever you’re consuming.
Melissa Murray: Well, I became very fluent in MTV of a certain era.
Nicolle Wallace: The whole head fake, I think, is that all of this genius that you’ve amassed through your talent and through your career isn’t affecting everyone. And I wonder, I mean, I think one of the things that you’ve done is make the conversations about the Supreme Court accessible. And maybe if that had happened 20 years ago, people would vote like the choices made about who gets put on the Supreme Court. We wouldn’t be where we are. But I wonder if you can sort of lay over the fact that the Supreme Court is like a central political issue now in a way that it’s never been.
Melissa Murray: So I think it’s always been a central political issue, to your point. I think it’s now sort of becoming much more part of the discourse because we’re actually seeing in real time the ramifications of the court’s work with the overruling of Roe, these efforts to limit and restrict the scope of voting rights. The court’s presence is thick in a way that it was, I think more sub rosa, certainly during my childhood, but the court has always been a major player. And that’s the premise from which we started the podcast, that people really needed to talk about the court in the same way they talked about Congress, in the same way they talked about the president, and to follow it.
But it’s really hard to follow the court if you’re not trained as a lawyer, because they write in a vernacular that is very difficult to follow unless you have prior training. And so we viewed our role as podcasters, as translating for the masses, if you will, what the court was doing and making it accessible to people who had no legal training. And this was really important to me because I remember starting law school and no one in my family had ever been a lawyer. And I found myself in this classroom and the professor said something about res judicata, which is a really important concept in civil procedure, but I thought she said, “Ray judicata.” So I turned to my classmate who happened to be the son of the president of Yale and I said, who is Ray? Where did he come from? And I’m like flipping through the book, where is Ray? And he very kindly explained, it’s not a person, it’s a concept, it’s res judicata.
But I never forgot how disorienting that moment was and how dumb I felt and that it was an honest mistake. I just didn’t catch what she was saying. And the first day of law school, who would understand the concept of res judicata? No one should. And so I wanted to start every class with this premise in mind, like we have to explain. And indeed, I start every class just making clear that we can’t assume that everyone is on the same page. Everyone has to get to the same page eventually, but we can’t assume that they start there.
Nicolle Wallace: Do you think we’re getting closer to a point where people feel more invested in the debates, the legal debates? I feel like they shape everything about our politics, but I’m still not sure that they drive people’s passions.
Melissa Murray: So I think one of the things about the court is that they’re so sequestered from public life and they’re not necessarily personalities in the way that Ted Cruz is a personality. So it’s hard to sort of track and follow them, but the work that they’re doing is worth following and following closely. And one of the things that we do on the podcast is we read everything so you don’t have to, and we can sort of pull together what the whole landscape looks like. Whereas I think a lot of times on mainstream media, including MSNBC, we focus on these isolated cases. And those are important in the moment, but the really scary picture comes into focus when you start putting all of those siloed events together and you’re like, oh, wow, this is where we’re going.
And so that’s one of the things that we’re trying to do. It’s not just that they overruled Roe versus Wade. It’s not just that they are hollowing out the Voting Rights Act. It’s not just that they are essentially enabling a president who is exercising the most muscular vision of executive power that we’ve ever seen. They’re doing it all at the same time. And for the purpose of advancing an agenda that heretofore we’ve never really seen in American life.
Nicolle Wallace: Do you have a theory on why?
Melissa Murray: I do. So one of the things that’s so interesting about this court is, you know, they do actually speak off the record. Like Justice Alito goes to these conferences in foreign cities like Rome and he gives these talks. And he gave a really interesting talk a few years ago in Rome for, I think it was an event sponsored by some center at Notre Dame University, where he really kind of railed against what I think modern conservatism would call the woke agenda. And if you think about what the woke agenda is, as I understood him talking about it, it was kind of like modernity was the woke agenda. Like a modern society, an inclusive, multiracial, multi-faith society in which women, people of color are all participating as equal citizens. And this is, I think, a very big change from what came before. And what he was railing against was really this idea that society had moved ahead and left traditionalists, whether it’s religious traditionalists, gender traditionalists, marriage traditionalists, in its wake. That’s what he’s yearning for. And that’s what they’re trying to move back to.
And one of the things that’s actually really interesting about it is in getting to that modernity, that multi-faith, multi-ethnic, multiracial democracy that we now inhabit, the Supreme Court was a major player. The Warren Court of the 1950s and 1960s was absolutely imperative in shaping the society we have now. And a lot of what we’re seeing from this court really is a backlash to what the Warren Court did. You know, upholding integration, enforcing voting rights, and upholding laws that affirm the vote for people of color. That’s what they’re railing against. And the interesting thing to me is that they’re actually using the language of civil rights to effectively roll back the civil rights movement.
So when they speak now of a woke mob, they’re arguing that this woke mob is a majority that is persecuting a minority group. And the minority is actually the Christian evangelicals, the Catholics, the men who have been left behind by these social and legal movements that have pushed us forward toward a more integrated society.
So there’s a kind of weird head flip that’s happening where the folks that we in the past would have understood as composing the majority are now being viewed, at least through the conservative lens, as the real minorities who are beleaguered and besieged and who need the court’s protection more so than the women and the gays and the people of color who from 1954 to around, I guess, 2000, were the ones that the court often stepped in to protect.
Nicolle Wallace: I mean, what’s so crazy about that? So Alito is George W. Bush’s distant second choice after Harriet Meyers doesn’t work out.
Melissa Murray: Yes, yes.
Nicolle Wallace: I was there.
Melissa Murray: I remember.
Nicolle Wallace: I did not work with Mr. Alito. I did work with Harriet Meyers, an extraordinary chapter. But I wonder how much of that you think is a view, like an ideology, and how much of it is that Alito has a chip on his shoulder and is a bitter guy.
Melissa Murray: Two things can be true at once, so there’s that. George W. Bush was really interesting because I think we think of him as conservative, but he’s not conservative in the way we understand conservatism today. And Harriet Meyers is a perfect example of that. He nominated her to fill Sandra Day O’Connor’s seat when O’Connor stepped down in 2005 to take care of her husband, and she was not well-known in Washington. He thought it’d be a good idea to have a woman replace another woman, weird idea. And she was there, and he trusted her, and he knew her. She was his personal counsel. And she just wasn’t known by the conservative legal movement, the mainstays in Washington, D.C. And they went after her, and they won.
I mean, they literally took her down. They assailed her credentials. She had not gone to Harvard. She had not gone to Yale. I mean, this is so funny now when you think about it in the context of what we’re doing with universities and the way we talk about elitism, but she didn’t have elite credentials. She went to SMU. She was a Texas lawyer, and they hated her for it. And basically, she got the message. She was very astute, withdrew her name, and Samuel Alito, someone who had gone to Princeton and Yale Law School and was deeply embedded in the conservative legal movement, got the nod. And this was someone who had been on the Third Circuit, the intermediate appellate court that deals with Pennsylvania, New Jersey, those sort of mid-Atlantic states. He had been on that court when a challenge to a Pennsylvania abortion law had come through, what would become the Planned Parenthood versus Casey case that the Supreme Court took up in 1992 where they reaffirmed Roe versus Wade.
But when it was at the Third Circuit, Alito was a vote to just kick it out. He wanted to overrule Roe. He wanted to uphold the Pennsylvania abortion law, all of it, and he especially wanted to do it on the grounds that married women should not be able to have abortions without first seeking their husband’s consent. This was one of the provisions that he upheld. And it just sailed through, very few questions about.
I think it all sort of speaks to a kind of interest in traditionalism, like for whatever reason, he talked about this in his speeches, like, you know, what’s wrong with the way things were? What’s wrong with religion being sort of a centerpiece of civil society? In fact, we have lost something now that we are more secular in our own outlooks. And I don’t know if he is necessarily the most ideological of the justices, I actually think the person who is most clearly ideologically pure and where they are going is either Justice Barrett or Justice Thomas. But I do think he is really outcome determinative and the outcome is whatever traditionalists would want.
Nicolle Wallace: You testified against Brett Kavanaugh. But importantly, you warned very clearly and very bluntly about his views on abortion.
(Begin Clip)
Melissa Murray: Judge Kavanaugh voted to block a young immigrant woman from receiving abortion care and insisted that she remain pregnant against her wishes weeks after she had made her decision and after she had completed all of the state-imposed requirements. Despite his claims during this confirmation hearings that he was respecting Supreme Court precedent on minors and abortion, in fact, his dissent shows the opposite. To be clear, Roe versus Wade is not a decision invented by activist judges. It is part of a century’s worth of jurisprudence that protects an entire constellation of rights, rights relating to family, marriage, parenthood, contraception, and personal autonomy and intimate life.
A vote against Roe, whether to overrule it as a formal matter or gut it through instrumental cuts, puts all of those rights in jeopardy. And make no mistake about it, a vote for Judge Kavanaugh is a vote against Roe.
(End Clip)
Melissa Murray: So I should first say, when I testified in 2018, I’d actually met Brett Kavanaugh. I’d had lunch with Brett Kavanaugh. And so I was on this podium, I guess, with all of these speakers, including someone who had been a professor of mine when I had been in law school, and people who had clerked for Judge Kavanaugh, Ted Olson, who became a friend, was also there vouching for Brett Kavanaugh. And they all said to a person, this is a really nice guy. He’s a really nice guy. And that checked out. I’d had lunch with him. He was lovely. He really was. Nice, personable, whatever. But it kind of didn’t matter that he was nice. And I was sitting there listening to all of these people sing his praises and vouch for him. And they all were just like, he’s a nice guy. And I’m like, who cares if he’s a nice guy? Everyone’s rights are on the line. Yeah, he’s a nice guy. I’d have lunch with him again. That doesn’t mean I want him on the Supreme Court, because here’s what’s at stake, and here’s what he said. And the record is really clear. And I was trying to reach the people like Susan Collins and Lisa Murkowski, whose votes were really going to be pivotal. Women who I think cared about reproductive rights or at least maintaining the status quo. And to be clear, the status quo in 2018 wasn’t like abortion for everyone. It was very difficult to get an abortion. It just existed as a constitutional right. And it was very clear to me that if he were on the court, he would be a very reliable vote to overrule Roe.
And so I said that. And people said that I was being hyperbolic, that I was crazy, all of this. And again, I come back to believe black women because I was right. And I take no pleasure in being right. This is not like having a fight with my husband where I’m like, I am right. Like I was right, and it’s been terrible for so many women who have to deal with a world in which this critical aspect of healthcare is absolutely unavailable. And we can politicize this all we want, but the bottom line is you have a miscarriage, you need an abortion. If you want to have kids again, if you want to be able to recover and have a successful subsequent pregnancy, you need to be able to have an abortion. And right now that is absolutely, it’s just, it’s so difficult to get the clearance that you need in order to get the healthcare that you need because of what the court has done.
Nicolle Wallace: I mean, I had kids late, I did IVF, all sorts of things go wrong in the early months. And so I’m acutely aware of all those risks.
Melissa Murray: I had a miscarriage and like, I mean, so many women, we don’t talk about it, but they say that one in three women have miscarriages. I mean, think about that. Like this could pop up in your life, like whether you’re seeking an abortion or you just have to have one, this is real life.
Nicolle Wallace: So how did the side that was for women not dying while pregnant lose?
Melissa Murray: You know, one, I think it wasn’t as obvious. I mean, this goes back to my point about we don’t talk about miscarriage at all. I think if we had more of a robust discussion about what the risks of carrying a pregnancy to term really are, how frequently people suffer pregnancy loss, we might’ve been on a different footing. I’m not simply talking about women’s choice, although that is vitally important in women’s autonomy, but they’re actually just real consequences here in terms of women’s health and what you need in exigent circumstances. And because there’s been such a culture of shame and silence around pregnancy loss, around how you get pregnant, like I think it’s only recently that we really talked, frankly, about how many people require assisted reproductive technology in order to start their families.
Because we don’t have those kinds of conversations, because we assume everyone is having children, quote-unquote, “naturally” and all pregnancies end well, we just missed an essential aspect of this debate that I think would have swayed a lot of people, or at least underscored the idea that a right to this healthcare was absolutely essential, certainly in these exigent circumstances, but just generally as a question of human dignity. Imagine like literally being on death’s door and being told like, you’ve got to wait until Ted Cruz says it’s okay.
Nicolle Wallace: Right, or until you’re septic.
I mean, sepsis is fatal, and that is one of the medical benchmarks you have to reach before you can get healthcare. I mean, I led with conversations about abortion and brave women like Amanda Zyrowski, who almost died. She became septic before she got healthcare, more days than I didn’t ahead of the November elections. And those conversations have largely receded. I mean, where are we going to be as a country and as women in four years?
Melissa Murray: So these are important questions. I mean, I think part of the difficulties of this moment is that there’s just so much in the zone. Like they have literally flooded the zone, and there are so many assaults on institutions that we thought were sacrosanct that it’s hard to kind of triage and figure out what to address first. I mean, it’s like all systems are failing. And so I think it’s a question of like break glass first, or like maybe we focus on the democracy enhancing institutions, because if we have a viable democracy, we can maybe address some of these other questions. And we saw that in the last election.
In the absence of a constitutional right to abortion and kicking all of this to the states, you see people in different states, including red states, taking affirmative steps to use direct democracy where it is available to secure reproductive rights for themselves. And to be clear, it’s not a panacea. Direct democracy mechanisms don’t exist in every jurisdiction, but where they did exist, even in places like Missouri, people were like, yeah, I want to be able to have an abortion if I need one. And I don’t want my legislature or my governor telling me that I can’t do that.
And we know that it works because we saw immediately all of these conservative elements trying to shut down direct democracy by making it harder for the people to make their voices heard.
Nicolle Wallace: In Ohio and measures passed in Kansas.
Melissa Murray: Right.
Nicolle Wallace: We’re gonna take a quick break right here. We’ll have much, much more with NYU law professor and my MSNBC colleague and friend, Melissa Murray on the other side, don’t go anywhere.
(BREAK)
Nicolle Wallace: When you talk about covering this moment as a triage exercise, I mean, that’s exactly what we endeavor to do. And I’m not always crystal clear on what that means. I mean, what institution do you, as the fire engulfs the house, what are you grabbing on your way out? What are you grabbing of our democracy and has it already burned?
Melissa Murray: So I think a critical question that I ask myself over and over again is, can you put Humpty Dumpty back together again? We are breaking a lot of things. Not we personally, but like the country, things are being broken and mistakes are being made. And I don’t know if they can be fixed easily. It will likely take 20 years to undo what we’ve seen done in the space of six months.
But to me, the institutions, like making sure that due process exists, making sure that people understand what due process is. I mean, there’s so many times when we talk about due process and the rendition of these Venezuelans to El Salvador without due process. And people in the comments are like, due process is only for citizens. Not quite, right? I mean, like, so there is also a basic education that needs to happen that hasn’t been happening. And in the media, you kind of have to fill in those gaps. Like, okay, yes, non-citizens don’t have all of the same rights as citizens, but they’re not completely devoid of rights. And in fact, they may actually have rights of due process that we must respect.
And if we don’t respect it for them, it means it’s much easier not to respect those rights for the rest of us. And we’re on a slippery slope. And getting people to understand that, I think, has been really complicated. You know, one of the things that I have been beating my chest about since the last election is how few people in this country really understand just basic civics, like who does what in a democracy. I mean, if you go online, like, there are all these people who think the president can do everything. And it’s like, no, like, it’s the whole reason why–
Nicolle Wallace: Including Speaker Johnson. Yeah, I mean, that’s the problem, right? Like, part of the problem, I mean, I think people think that presidents can set tariffs and can cancel congressionally-approved spending and can kill departments because the Republicans let him. Melissa Murray: And they just don’t know. I mean, even figuring out the basic lines of who’s responsible for what, most Americans don’t know that. And so that’s not surprising to me. I mean, this is the generation, I think, that grew up post-No Child Left Behind, where we really started divesting ourselves of sort of things that were luxuries, like PE and music and civics. And now we’re really, I think, paying the consequences of those divestments. And they think the president can do anything, and Speaker Johnson thinks the president can do everything. And I’m going to tell you my little Speaker Johnson story. I testified.
Nicolle Wallace: Tell me.
Melissa Murray: I testified before a House Subcommittee on the Constitution and Civil Rights. This was probably in 2018, 2019 or something. And I testified with Busy Philipps and some other, like a really amazing doctor from Alabama, Yashica Robinson, and some other folks. And afterwards, Speaker Johnson, he was fine. He was perfectly respectful, and it went well, whatever. Afterwards, he comes down from the dais and starts shaking everyone’s hand. And he gets to me, he’s like, wow, you really know your stuff. And you’re so articulate. And I was like, I’m a law professor. I would hope so. So I was like, no one’s told you that you shouldn’t say that, that you shouldn’t say that.
Nicolle Wallace: What’s so bad is that even when they’re trying to be good, they’re so bad. I mean, how is that mistake still being made? And let me ask you about your comment about black women. I mean, I think that over the last 20 years, black women are the most informed voters in our country, full stop. That’s it, that’s where we are. And black women are the voters who understand the tie between democracy ending and electing Republicans. I mean, black women are the voters who, they lifted Joe Biden, I think, as a failing, I think he’d lost like three or four primaries. And black women understood that Joe Biden could talk to the whole country, could save the country from the, I mean, black women are just a bulwark of democracy, but the most informed voters. What is your theory on why that is? And how do we spread that around?
Melissa Murray: So I think one of the reasons for it is that black women have a lot to lose. I mean, it’s just that clear. I mean, as women, as people of color, when democracy slides, you feel it, and you feel it on multiple fronts, not just as people of color, but as people of color who are also women. And people who may be the most acute victims of the gender gap in terms of wages, I mean, like you feel that.
So if someone’s running on a platform of tariffs for everyone, you recognize immediately, okay, that’s going to impact my bottom line. And my bottom line is already smaller than other people’s because there’s this persistent wage gap for gender. And then it’s even more profound for women of color and for black women. So, I mean, I think when you think about all of the ways in which you have these different axes of identity that are shaping your existence, like you understand how much a single thing can impact you and your family in really profound ways. Black women are often the matriarchs of their family, not just for their children, but often for their children’s children. So there is sort of a generational sense of responsibility that I think can be weighing in a lot of ways.
And so it’s not that black women aren’t idealistic. It’s not that black women don’t have aspirations for a better kind of politics, better candidates. They’re just really, really pragmatic. Right? You know, after the Joe Biden debate where we were all talking about like, oh my God, what was that? What’s going to happen in real time? When we talked to black women, they were like, yeah, it was the worst debate I ever saw. I’m like, okay, are you still riding with Biden? Yup, sure am. Why? Like, it was a terrible debate. Because I know what the other guy’s going to do. And I know what the other guy’s going to mean for me and my family. And they were just unequivocal about it. Terrible debate performance, I’m with him.
And then when Biden withdrew and Kamala Harris stepped up, they were like, okay. And to be really clear, we thought that there would be this amazing affinity with Kamala Harris. We raised it right after the debate. We asked this group of women in Bluebell, Pennsylvania, you know, if they overlooked Vice President Harris, if they selected a new nominee to run in Biden’s place, would you be angry? Would you leave the Democratic Party? And they’re like, we love Kamala. She’s been a trailblazer, a role model, but this is go time. And we’re not going to withdraw from this moment because of some sense of peak. Like, we would be mad. We would remember, but we would vote. And we’d vote for whoever that random person that they picked in her stead. And when she was the nominee, they came out for her. They supported her. I mean, that win with Black Women Call where all of that money was raised, that was, I think, about her, but also about it’s go time. This is our last best chance.
Nicolle Wallace: I feel like part of the reason she’s on the sidelines now is because the whole framing of what went wrong is about her failures. And I just, I don’t think that’s very useful. And so I wonder what went right.
Melissa Murray: So I think she was really great at connecting with people. Like when you saw her out on the campaign trail, it really was joyful warrior. I mean, she was dancing, she was up. She made it look fun, and it hadn’t looked fun for a really long time. Like, to be really honest, it had not looked like fun. I was at the convention. The convention was fun. People were excited and energized about her.
You know, I think that there are porters in the Democratic Party that really are pushing for a politics of purity. They want a kind of idealistic candidate, and I understand the impulse for that. But again, I feel like I’m just a very pragmatic person and I want democracy before I want perfection. And I really believe like you cannot let the great be the enemy of the good. And I think she just is, I think, the victim, I use that word advisedly, of a culture in which we don’t necessarily assume that certain people are going to be authority figures. I mean, full stop. Like you really have to–
Nicolle Wallace: Is that about gender or race or all of it?
Melissa Murray: Or both. I mean, like, I’ll just speak from my own experience. Black women are a minority, a very clear minority in legal academia, and even more so at the quote unquote elite schools. So I’ve almost always been a first, like one of the first in the places where I’ve worked, and in many places where I’ve gone into classrooms, I’m the first woman of color that my students have ever had as an instructor in their entire history of schooling, elementary school, middle school, high school, college, like they’ve never had someone who looks like me at the front of the classroom.
Nicolle Wallace: That’s incredible.
Melissa Murray: It’s not uncommon. It’s not uncommon. And it’s certainly not uncommon in higher education. Although I think conservatives would like you to think like there’s nothing but black women running colleges right now. Trust me, it’s not the case.
And I think when there’s such a lack of representation, it’s hard to kind of imagine, like what does it look like to have someone be that authority figure for you? I mean, there were a couple of times, certainly when I was younger, where students were, wait a minute, I got to listen to you? And I’m like, yep, you got to listen to me. And like, I’m the authority figure in the situation. So there is kind of a gap, I think, that you have to bridge. And the way that you bridge it is just performing, over-performing over time. And she didn’t have that luxury.
Nicolle Wallace: Do you feel that that’s the standard you’re held to, performing and over-performing? I mean, is that your–
Melissa Murray: Yes, yes, yes.
Nicolle Wallace: What is that like?
Melissa Murray: I mean, it is what it is.
I know that I don’t have the luxury of going off half-cocked. Like I really think about and prepare, maybe over-prepare. Certainly in the beginning of my career, I over-prepared. The model for tenure in the academy, at least the legal academy, is your scholarship, your teaching, and then your service. And when I started my career at Berkeley, I knew I was going to have to be like the Jennifer Lopez of law teaching. Like I was going to have to be a triple threat, like great teacher, great scholar, and a generous and dedicated institutional servant. And it almost wore me down. I mean, like I did so much administrative work at Berkeley. At one point, I became the interim dean of the law school at Berkeley, because I’ll step up, I’ll do it.
Nicolle Wallace: Yeah, I’ll do it.
Melissa Murray: Yeah, and I think that’s how you amass the kind of institutional capital so that you are seen as an authority figure. But boy, does it take a toll on you. I was pregnant with my daughter right at the beginning of my career. And I just remember thinking like, she’s such a good baby, I’m here on this maternity leave, and I’ve got to do work, because I’ve got to get tenure. I’ve got to write this article. And I regret that. I regret kind of missing the best parts of her babyhood and not being fully present for the best parts of her babyhood, because I was just really worried about being understood as a really great and dedicated scholar who was racking up these accomplishments so that I would get tenure.
And I eventually got tenure, and I came home and was like, told my husband, you may impregnate me again. Like, and we had our cliched post-tenure baby. But that was the moment where I thought I would enjoy his babyhood. And then he turned out to be incredibly colicky, and it was hard, and not really as much fun.
Nicolle Wallace: Can I go back to work?
Melissa Murray: I mean, so, you know, those are the, like, it takes a toll, this sense that you have to be, you do have to be better. I mean, this is the thing I think is just, like, the whole DEI thing is so maddening to me. When they talk about, like, you know, Joe Biden said he was going to pick a Black woman for the Supreme Court, which meant he couldn’t think about anyone. It’s like, was anyone looking for, like, the last 150 years where we never even thought about a bigger pool where it was always going to be a white guy who was picked? And, like, so this one time, and the person who gets picked is a double Harvard graduate who’s been a judge at two different levels of the federal judiciary, and a member of the Sentencing Commission, and a public defender, and you’re talking about her credentials?
I mean, like, there it is right there. You do have to be twice as good.
Nicolle Wallace: What does your brain do when someone says, oh, but you have it all, you know, you’re married and you have your kid.
Melissa Murray: No one has said that to me. No one has said that. Why would they say that?
Nicolle Wallace: Well, I mean, because it’s all you know, so I’m not going to ask you how, but what do you hear?
Melissa Murray: Oh, I know how, like, how I’ve been, how have I been married successfully for this long?
Nicolle Wallace: And with kids, and with the career, and with the, you know, successful, with everything you touch turns to gold, how?
Melissa Murray: None of our kids did travel sports. That was the secret.
Nicolle Wallace: Oh, I didn’t know that. No one told me that.
Melissa Murray: That’s where you fall down. The travel sports will kill you.
Nicolle Wallace: Oh, I’m screwed. I mean, that’s all we do.
Melissa Murray: It’s really, really hard. I think one of the things that has been so striking to me is that my husband, who has his own big job, we’ve really had to renegotiate just sort of the gender scripts in our household. Like the idea that my husband does as much as he does, I think really perplexes his mother. Like this is not how her household ran. And I think the willingness to embrace setting your own agenda, writing new scripts for yourself, and your partner has really been the success. And like, I give all of the credit to my husband because I don’t think either of us were raised in this way. Like my parents had a very traditional marriage. My father was the breadwinner, he was in the lead. And I think it was the same for my husband. I think we are trying to be more egalitarian about this. And it doesn’t always work out to be equal, but I think we really try. And I think that’s been huge to model for our children, but it’s not what we knew.
So we’ve had to relearn things.
Nicolle Wallace: How much more do you feel like you’re climbing, climbing? I mean, do you ever see a time when you rest, when you exhale?
Melissa Murray: I just got back from vacation and I did exhale on vacation. I did, I did. We went to Dubrovnik and Rome and it was amazing. Just like sitting and just exhaling and being with your family. And it’s great. And honestly, I wish I did that more often. I wish I just like made time to sit and read, read crap books, not just tabloids, but like actually long books and not Supreme Court opinions. That was really lovely. And I’m glad that I did it.
But I think if you’re a person who’s ambitious or you’re a person who thinks there’s something in the world to be solved, it’s really hard to dial it down and sit it out. Like, I think you’re always wondering about what could have happened, what could have been. And I also think there’s something weird about not being part of the action in that way, not being able to have a say, like if you’re opinionated and you want to have your voice heard. Like, I think that can be really hard. And so for me not to be sort of moving and striving, like would be for me to be a different person, I think.
Nicolle Wallace: Yeah, I think there’s something about this moment too that makes the work the outlet, right?
Melissa Murray: Yeah, yeah.
Nicolle Wallace: Like the work is not the thing that you decompress from, the work is the way you grieve what’s been–
Melissa Murray: It’s cathartic.
Nicolle Wallace: Right, and it’s how you grieve what has been lost in terms of freedoms. And it’s how you enjoy what we still have and to have this conversation. With all of our criticisms of everything that’s happening. I mean, someone that is doing that with such seeming to me a mind to history is Justice Sotomayor.
Well, first of all, the decision to read her dissents from the bench, what is that about in your view? Because you know her, you clerked for her.
Melissa Murray: So it’s unusual for a justice to read a dissent from the bench. They typically do it when they feel especially exercised about the outcome in a case and they feel especially invested in what they’ve written in the dissent. And I think the most recent dissent that Justice Sotomayor read from the bench, which was in the birthright citizenship case, which is really the nationwide injunction case, she read, I think almost in full, but I think she is doing that because she’s engaged in what I would call demosprudence, not just jurisprudence. And demosprudence is about not just talking to your colleagues, that’s jurisprudence, and demosprudence is about not just talking to your colleagues, that’s jurisprudence, not just talking to other courts, that’s jurisprudence, but taking to the people outside of the court, that’s demosprudence, really trying to make salient for them what the issues are.
She’s done it before in the oral argument and the oral argument in Dobbs, the case that overruled Roe, she asked that very provocative question, like, will this institution be able to withstand the stench of the public knowing that this is just political, that we weren’t going to overrule Roe until Amy Coney Barrett showed up. Like, I mean, that was basically the subtext and it was a creed de corps to the public. It wasn’t for her colleagues, she’d given up on them. It was for everyone else. And I think with the birthright citizenship case.
(Begin Clip)
Sonia Sotomayor: The argument here is that the president is violating not just one, but by my count, four established Supreme Court presidents.
(End Clip)
Melissa Murray: When she read that dissent from the bench, she wanted us to understand, like, this seems like a wonky anodyne issue about whether or not district courts can issue these universal injunctions. Guess what? This is our last line of defense against a president that is blowing through every barrier that the constitution erects. And what are we going to do about it? Like, we are kneecapping the courts and we’re the only thing left. Congress is on the bench. We are the only things left.
Nicolle Wallace: We’ll be right back with much more of my conversation with Melissa Murray on the other side. Stay here.
(BREAK)
Nicolle Wallace: Another instance where she seemed to be speaking to, this is all Miami annoys now. That’s my dog.
Melissa, my dog is answering your dog about 30 minutes too late.
Melissa Murray: Well, did you just hear Cole? Cole’s like, yes, I completely agree. He always wants to get in. Sometimes he comes on Ari’s show and sort of sits in the background and tries to get in the shot. He’s very funny.
Nicolle Wallace: Mine are so bad. Mine used to come down to the basement studio during COVID when there was thunder. And so I always knew what the weather was in the basement, but this is about the food orders and the front door.
I want to play Justice Sotomayor’s dissent from immunity because I think it was really the moment that I realized how screwed we are as a country, that it was as bad as I thought it was.
(Begin Clip)
Sonia Sotomayor: Today’s decision to grant former presidents criminal immunity reshapes the institution of the presidency. It makes a mockery of the principle, foundation to our constitution and system of government, that no man is above the law. Never in the history of our republic has a president had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law.
Moving forward, however, all former presidents will be clothed in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide by will not provide a backstop. With fear for our democracy, I along with Justices Kagan and Jackson dissent.
(End Clip)
Nicolle Wallace: Just talk us through what you felt when you heard that.
Melissa Murray: She’s right. I mean, with fear for our democracy, I dissent. We all should be dissenting with fear for our democracy. I mean, I think that decision, the immunity decision, was the harbinger of everything that has followed. The way that the court, I mean, we’ve forgotten about this ‘cause everything just feels like time has accelerated, but we forgot about the fact that the Supreme Court dug their heels in and waited until the very last moment to decide this question, preventing the election interference trial from happening, and then wrote a decision that essentially hamstrung all of the other efforts to hold the president accountable, or at least to surface questions of accountability to the public.
They were instrumental in that, and it’s almost like we’ve forgotten it, and then they wrote this decision, which has essentially emboldened this president, and now they are writing new decisions, actually not writing new decisions in some cases, just like announcing that they’re going to allow this president to continue doing what he’s doing, even though litigation to determine the permissibility of those actions is actively ongoing. If it turns out it’s wrong, we’ll fix it later. I mean, it’s just bonkers, and I think she has constantly said that, like, this isn’t normal. What they’re doing, what my colleagues are doing isn’t normal, and what this administration is doing, none of it is normal, and I think she’s speaking truth to power, and I think it’s hard for her to do that because one of the things I think is really interesting about Justice Sotomayor is that she very much believes in being friends with her colleagues even when she doesn’t believe what they believe. She wants to be a good colleague, a collegial colleague, and I really do think this moment strains the bounds of collegiality.
I mean, there’s so many times when we ask these justices, like, are you friends with your colleagues? Like, what about Justice Scalia and Justice Ginsburg being friends? And part of me is like, why the F do I care if they’re friends? I don’t actually care if they’re friends if the court isn’t standing up for the Constitution. It doesn’t matter to me.
Like, you know, they’re getting beers. Like, we destroyed the Constitution, now we’re getting a beer together because, you know, the lion and the lamb can lay down together. It doesn’t matter, and so I think she’s kind of at the point where I want to be collegial, but there are bigger things. There are bigger values at stake.
Nicolle Wallace: Do you think she feels even more than what she says in her dissent?
Melissa Murray: Yes, yes.
Nicolle Wallace: I mean, because to be a part of the institution and to be in the minority and to be held to all these standards that you’re talking about, where collegiality is noted and seemingly reprimanded by the super majority, the conservatives, what do you think that’s like for her and the other liberal justices personally?
Melissa Murray: So I think she has a very different view than, say, a Justice Jackson, right? So she came onto the court, Justice Sotomayor, in 2009, and it was a five to four bare conservative majority, and there was always the prospect that there would be more retirements. So I think she joined the court with the assumption that maybe it’ll be some tough sledding for a while, but it won’t be forever. And I think in 2016, when Justice Scalia unexpectedly passed away, that they really saw, okay, this could be the moment where we have a six-three liberal super majority. And to be clear, it wasn’t going to be a really aggressive, progressive agenda. But I think they were going to hopefully shore up some protections for certain things, but I don’t think it was nearly- I don’t think what they envisioned was nearly as robust as what the conservative super majority has envisioned and indeed what they have done.
I think for Justice Jackson, it’s a completely different scenario joining the court, understanding there is a six to three conservative super majority. You aren’t changing that, and you’re going to be in the wilderness for a long time. And I think you can see a real difference in the way that they are writing opinions. I think Justice Sotomayor is still trying to be collegial, still trying to play the game. So I think Justice Jackson has a completely different mindset, and she came onto the court when it’s a six to three conservative super majority. I also think the fact that she is a D.C. native, if you will, a denizen of D.C., when she came to the court, she didn’t need to make friends. She had friends, right? So I think there’s just a completely different posture to the court as an environment than what Justice Sotomayor came in where she was coming from New York, she didn’t really know D.C. very well. And collegiality has always mattered to her.
I think Justice Jackson sees a very long trajectory in which she’s clawing her way out of this minority and trying to shore up things in the face of a tally that doesn’t work for her in a lot of ways. And it’s just really different.
Nicolle Wallace: Right, right. When people ask you sort of where will we be, not just with the court, but in our politics at the end of the Trump second term, where does your head go?
Melissa Murray: I think I always, like what prompts the question, where will we be? I think the question is prompted by this profound sense of we’ve never been in any place like this before. And I think you have to acknowledge how unprecedented this moment feels for so many people. It just feels profoundly broken.
Nicolle Wallace: And whenever I come on your show, I’m always one to like, the court helped with this. And it’s true, the court did help with this. Blessing partisan gerrymandering, saying that there’s no role for the federal courts to play in policing partisan gerrymandering has emboldened state legislatures to continue to do it. And we’re seeing the effects of this right now in Texas. So Texas has decided that outside of a census year, they’re just going to redraw their district maps so that Donald Trump can get an additional five seats and maybe the Republicans won’t lose the House. I mean, in fact, they definitely won’t lose the House if this happens.
Melissa Murray: To rig the midterms.
Nicolle Wallace: Yeah, they’re doing this to rig the midterms. And the court has assisted with this because there’s no role for federal courts to play in this process. And it’s all at the state level. I mean, and I said in 2019, when the court issued that decision in Rucho versus Common Cause, telling the states that they’re the ones to police gerrymandering is literally like asking a burglar to police the burglary. Like, they’re the ones doing it. Like, they have no incentives to fix this. And they’re not. And Texas will just be the first domino to fall. Like, if this succeeds, we’re going to see it in every other red state and some of the purple states. It’s going to be a profound race to the bottom, and it’s going to be terrible for democracy because gerrymandering at bottom is a distortion of the people’s voices. Like, this is how you don’t get heard.
Melissa Murray: And the Supreme Court’s going to assist with that because the case that they were supposed to decide this term, Louisiana versus Callais, which is about to come to the voting rights act, whether you can consider race in redrawing district maps in order to accommodate minority voters and ensure that their voices are heard, the court, I think, is likely to determine that considering race in the context of the Voting Rights Act a law that was drafted in 1965 to address disparities, racial disparities in voting, is unconstitutional. I’m 100% sure the court is going to do that. And it’s not just going to be gerrymandering, it’s gonna be gerrymandering on top of this landscape where the Voting Rights Act is literally going to be a nullity and you can’t combat it anymore. You can’t combat these efforts to suppress the votes of various groups that have been underrepresented.
So all of this is happening, and there is no end in sight, and it’s not normal. I think people asking that question is because it’s not normal. And I don’t have a great answer. I don’t know where we’re going to be in 20 years. I mean, I honestly don’t know if we’re going to have midterm elections. Like I don’t–
Nicolle Wallace: In two years?
Melissa Murray: I don’t think it’s a foregone conclusion. I mean, all you got to do is come up with some national emergency, send in the National Guard, suspend the midterms.
Nicolle Wallace: If we are heading in that direction, and there’s plenty of evidence that we are, what is the political answer then? I mean, what is the political response if that’s the legal landscape?
Melissa Murray: So if the landscape is distorted, you do have to overperform. And that was the issue, I think, in the last election where turnout was more muted for a variety of different reasons. In a situation where the landscape is artificially distorted, you must overperform. You’ve got to turn out more and more voters in order to make up for the distortion. And I think Democrats have to figure out how to do that, how to energize voters, how to get people who haven’t voted to show up and vote. I mean, you were around for Barack Obama’s campaign. Like that was so electrifying in a lot of ways. I almost wonder if it didn’t sort of spoil people because it was so electrifying. So many people who had never participated in politics came out and participated in that election.
And then I think Barack Obama found out, I think the people found out that as president, you’re sort of bounded by a structure and the president’s not a king or is not supposed to be. You can’t do everything that you want. And there’s a kind of limit to what you might hope for, what you might aspire to. And I think people got jaded because it didn’t end in the way they thought it would. They thought it was going to be amazing on all of these different levels. I think for black people, especially, black president’s going to be great for us and better, but maybe not as good as a lot of people wanted. And I think those kinds of effects dull the interest in politics and just make it harder to get people energized.
I think some of this too is really just local politics. I live in New York City and I’ve said this over and over again. People have talked about New York’s drift to the right, especially in some of these outer boroughs. I think people want to see that progressive governance works in a way that makes their lives better in a material and tangible way. And with that in mind, I think the person who manages to free the shampoo from the CVS is going to be the mayor of New York City.
I mean, truly, like if you can figure out how to get CVS to stop locking up everything. So when you go in to buy a bottle of shampoo, it doesn’t take 30 minutes. That person’s going to be the mayor of New York City.
Nicolle Wallace: Well, if you need allergy medicine, razors, and fancy shampoo, you’ve got to have a free hour. That’s just what I used to live above a drug store and order all those things from Amazon because it took me–
Melissa Murray: It takes forever.
Nicolle Wallace: It takes forever and it’s never the same person who can unlock all three. Free the shampoo. You’re the best. Thank you so much for doing this.
Melissa Murray: Thank you for having me.
Nicolle Wallace: I loved it. Thank you.
Thank you so much for listening to The Best People. Be sure to subscribe to MSNBC Premium on Apple Podcasts to get this and other MSNBC podcasts ad-free. As a subscriber, you also get early access and exclusive bonus content, like my recent conversation with novelist Daniel Silva.
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The Best People is produced by Vicki Vergolina and senior producer Lisa Ferri, with additional support from Ranna Shahbazi. Our audio engineer is Bob Mallory and Bryson Barnes is the head of audio production. Pat Burkey is the senior executive producer of Deadline White House. Brad Gold is the executive producer of Content Strategy. Aisha Turner is the executive producer of audio and Madeleine Haeringer is senior VP in charge of audio, digital and long form.