Well, it was another consequential Supreme Court term. So, we had to have Chris’s wife Kate Shaw, along with the other co-hosts of the Strict Scrutiny podcast, Melissa Murray and Leah Litman back to break down some of the biggest SCOTUS decisions including Medina v. Planned Parenthood, U.S. v. Skrmetti, and Trump v. CASA. There’s a lot to discuss about the Court’s evolving ideology under Trump 2.0.
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Kate Shaw: It does feel like so many of their opinions this term and in recent terms, you know, retrofit around an outcome.
Leah Litman: My solution would be more trying to address the underlying structural issues that allow us to get to a point where a minority faction that is not committed to an antagonistic to the rule of law can get power.
Melissa Murray: I just think we have to step back like there’s a bigger fundamental problem, and the bigger fundamental problem is that we have never done the work in this country of actually wrestling with our deep-seated antipathy for a multi-racial, multi-faith, pluralistic democracy.
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Chris Hayes: Hello and welcome to “Why Is This Happening?” with me, your host, Chris Hayes. Well, June is in the rearview mirror. Summer is in full swing. It’s July and you know what that means. It means that we’ve just gone through the last week of the Supreme Court term, which also means a barrage of shocking appalling and deathless cynical decisions by these 6-3 conservative mega court majority.
This year was no exception. We got some real doozies down the stretch, and also I think a kind of increasing revelation of the core nature of the court, some signs and signals about what we can expect going forward, and some of the first big tests of whether this court would act in a muscular way to restrain the most anti-constitutional impulses of the Trump administration.
It has become something of an annual tradition here in these parts of “Why Is This Happening?” that we do a Supreme Court review with my favorite Supreme Court reviewers, the glamorous ladies of “Strict Scrutiny,” that includes Leah Litman, Melissa Murray, and of course my wife, Kate Shaw. Welcome back to the podcast for another, I don’t know how to say it, like, I’m so glad to see you and to talk to you. But, man, on live, it’s the end of term, a tough, tough run.
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Kate Shaw: One of the few enjoyable things about the end of June, Chris, is that we get to do this crossover episode with you. But, yeah, it’s bleak.
Melissa Murray: I love that Kate has to wait until the end of the Supreme Court term to have this conversation with you, Chris.
Leah Litman: Truly giving meaning to the conjugal pod.
Kate Shaw: No, we have them all the time.
Chris Hayes: Yes, there have been some offline conjugal pods happening in which we discuss all of these issues. Okay. So, obviously, there’s a lot that’s happened and I thought we could start just going. Again, we should make this point because I feel like it’s important from a sort of good faith perspective, that in some senses, almost thought logically, the most intentionally grabbing cases tend to be the most controversial. And the court’s defenders will always point to the fact, like, oh, you didn’t look at all these 20 decisions on the statutory interpretation of railroad law, where we came out 8-1 and we all get together and we’re not just making up things as we go along.
So, like, there is a category of stuff that doesn’t get a lot of attention. Maybe it’s not as controversial. It doesn’t tend to involve issues of the kind of social and political import. But then there’s the big ones, and the big ones are the ones that we’re going to focus on. I’m just carving that out to seed to people that say that, you know, the court does more than just decide these big controversies.
Leah Litman: I’m going to push back against that and say —
Chris Hayes: Please.
Leah Litman: — actually, there’s like a large category of highly technical procedural rulings that flew under the radar this year, that actually reveal some of the ideological nature of that’s court —
Chris Hayes: Oh, that’s interesting.
Leah Litman: — and whose interests they serve.
Melissa Murray: Yes.
Leah Litman: That we probably are not going to get to talk about today.
Chris Hayes: Say more about that.
Leah Litman: So for example, the court decided a set of cases about venue that is where parties get to file challenges. In the two cases, they involved challenges to EPA regulations and FDA, food and drug regulations. And what the Supreme Court basically did is they allowed tobacco companies to choose where they file their challenges to any FDA regulation, and that is all going to happen in the Wild, Wild West that is the Fifth Circuit.
And in a separate case about whether fuel producers could challenge an EPA regulation, Justice Jackson dissented and wrote separately about how that case and others was giving rise to a perception of this court favoring moneyed, corporate interest. So there are a bunch of procedural cases about who gets to file cases and where, who gets to enforce certain kinds of laws that flew under the radar, but are hugely impactful, and I think equally revealing about the court’s working ideology.
Chris Hayes: That’s a great point. And I would just say like, I’m a New Yorker. I’ve lived in Chicago, in D.C. But my favorite town in America is Amarillo, Texas. I don’t know why. I just —
Leah Litman: Everyone says.
Chris Hayes: There’s just something about Amarillo that I just love —
Melissa Murray (?): Yeah.
Chris Hayes: — when I’m in —
Leah Litman: That makes you want to file lawsuits there.
Chris Hayes: If I’m in the mood to file, I’ll —
Melissa Murray: It’s got big litigious energy. Yeah, it does. E-L-L-E. Yeah.
Chris Hayes: Well, here we are, of course, making a joke about the single district court jurisdiction in Amarillo, which is Matthew Kacsmaryk, who’s an incredibly right-wing judge. And if you file there, you know you get him. But to that point, Leah, like, that’s a great point. And in some ways it’s a little similar to the question here, Melissa, that we’re going to talk about when we’ll get to about this sort of technical question about national injunctions, which is sort of a technical question, but also has like deep, deep effects in terms of like —
Melissa Murray: Yeah.
Chris Hayes: — which power centers are going to win out.
Leah Litman: Yes.
Melissa Murray: Yeah. I mean, just to add some color to the cases Leah was talking about, one of the cases, R.J. Reynolds Vapor Company was a situation in which there is a statute that says that you can bring challenges to the FDA’s rulings, either in the D.C. Circuit where the FDA is housed, or alternatively, in the circuit where you, the corporation, have your principal place of business. And for R.J. Reynolds, that would’ve been the Fourth Circuit, except the Fourth Circuit had earlier issued a decision that had upheld some guidance from an agency and been really disfavorable to regulated industries.
So it wasn’t going to be a hospitable place for R.J. Reynolds to make the case for making vaping great again. And they would prefer to do this in another circuit, like the Fifth Circuit. And so, they decided to bootstrap their claims to a retailer and a gas station headquartered in Texas, in Mississippi, respectively. And the court was like, yeah, sounds good, sounds fine, and just proceeded.
I mean, it was pretty shocking. That was a Justice Barrett decision as well and she sort of portrayed it as no big deal. Like, you know, these things happen, but it’s only just happening now.
Chris Hayes: So let’s talk about the big cases, and then we’ll sort of talk about the themes and then maybe a little bit about how we all process emotionally and spiritually the court, I’m serious, which I actually think ends up being kind of the most important part of this in some ways, because we can’t control what the court does and we can only control what we do. So I guess the big three I’m going to throw out there that I think, like the Planned Parenthood case. Well, it’s so technical (ph). I’ll let you guys describe it. The Skrmetti case, which is about trans healthcare; and then the birthright citizenship, seemed like the biggest of the three.
I don’t know, Kate, if you want to do the Planned Parenthood one —
Kate Shaw: Sure.
Chris Hayes: — which I’ve heard you explain now very helpfully because it truly is like a very technical decision, but also not that complicated when you come back around to the other side of the understanding.
Kate Shaw: Yeah. I think you’re right, it’s both technical and the kind of core is simple and accessible. So there’s a federal law that gives Medicaid recipients, people who are eligible for government subsidized healthcare under Medicaid because they are income eligible. There’s a federal law that gives Medicaid recipients, the ability to choose providers who are going to give them healthcare.
And South Carolina has pretty clearly violated that federal law by essentially denying the ability to see Planned Parenthood providers, to individuals who receive Medicaid. So it’s basically cut Planned Parenthood out of the Medicaid program in pretty clear violation of a federal law.
Chris Hayes: Just one second. So just to be clear though, the law says if you’re on Medicaid, anyone that accepts Medicaid, you can see, right?
Kate Shaw: Yeah.
Chris Hayes: It doesn’t force anyone to take Medicaid.
Kate Shaw: No.
Chris Hayes: But if there’s a provider who takes Medicaid, then the law says you can choose any of the providers on this menu of people that take Medicaid.
Kate Shaw: Exactly. And Planned Parenthood is a major provider of various family planning services, and a lot of people get their care there. And South Carolina is deeply hostile to Planned Parenthood, so has said, although Planned Parenthood stands ready and willing to accept Medicaid for the services it provides, it cannot do that.
The question in this case was, well, who can enforce this provision of federal law that gives Medicaid beneficiaries the right to get care from the providers that they choose. And the Supreme Court in this case basically said, no one can enforce this federal law, or maybe the federal government can, but we all know under a Trump administration —
Chris Hayes: Right.
Kate Shaw: — the federal government won’t do that. So there’s, you know, sort of three different kind of sources of law here. There’s the federal Medicaid statute. There’s the spending clause, a constitutional provision under which Congress actually enacted this federal law. And then there’s this Reconstruction Statute Section 1983, which is a key enforcer of rights under both statutes and the Constitution.
And the Supreme Court basically disallowed private individuals who are injured by this law-breaking by South Carolina, disallowed them from filing lawsuits with a fairly technical explanation that sort of had to do with a constitutional basis, the spending clause on which Congress passed this federal healthcare law. And the court essentially announced a new rule that is going to make it very, very difficult for plaintiffs, even if they’re injured, to use Section 1983 to enforce federal rights.
Chris Hayes: So section 1983 is a Reconstruction-era provision of the U.S. federal law that gives individuals the ability to sue the government if their rights have been violated? Is that right?
Kate Shaw: Exactly.
Chris Hayes: And so this basically cabins your ability to do that based on whether the law is deriving from the spending clause? Is that what it is?
Kate Shaw: Basically. But it also, I think, bodes very ill for just how broadly the court will allow Section 1983 to be used to enforce rights in general.
Chris Hayes: Yeah. Melissa, I mean, what did you want to say? Go ahead.
Melissa Murray: Well, I also think this is really consequential because we are in a moment where the court has over the last two decades, really narrow the heads of congressional authority, under which Congress can pass statutes. So it’s really narrowed the commerce clause, made it very difficult to use the necessary and proper clause.
So a lot of legislating to the extent it happens now, happens under the auspices of the spending —
Chris Hayes: Right.
Melissa Murray: — clause. And essentially, what this new decision does is limit the scope of private enforcement of rights conferred under spending clause statutes and makes it harder for individual litigants to enforce their rights, using the civil rights statutes, because these statutes, the court says, are really more like contracts, which is not really the case.
Chris Hayes: So Leah, I mean, it seems to me that here it’s weird, right? Because basically they’re striking your remedy, but they’re not really arguing whether it violates the law. Like, it does clearly violate the law, right? And yet it never gets touched because they’ve come up with this means that you can never get the remedy for the law’s violation.
Leah Litman: Yeah. I mean, I think this too is a pattern of the Roberts Court, you know, instead of narrowing —
Chris Hayes: Right.
Leah Litman: — the reach of rights, they just eliminate possible remedies to enforce that right —
Chris Hayes: Right.
Melissa Murray: — and thereby make the right meaningless. So, you know, last term, for example, they said states can enforce Section 3 of the 14th Amendment to actually disqualify Donald Trump based on his participation in January 6th and the “Stop the Steal” movement. They have narrowed the reach of the exclusionary rule under which the government is not supposed to be able to introduce evidence that is obtained in violation of the Fourth Amendment.
They have also narrowed the reach of damages suits you can get against state and federal officials by saying qualified immunity is a thing and a very big thing. None of those decisions, you know, technically altered the scope of the underlying rights. They just make those rights impossible to enforce, and therefore not real in practice by eliminating ways to enforce them.
Chris Hayes: Was there something about this? I mean, this decision I feel like was, again, to the point I was making to Kate earlier of like, if you just gave me the four sentence version as just a political observer and be like, I have a pretty good idea how this is going to come out. I mean, they’ll figure out their rationale. But, like, are they going to let South Carolina ban Medicaid recipients of Planned Parenthood? Probably. Was there anything, Kate, in this, that was like surprising or jumped, you know what I mean, that felt particularly devious or subverting of expectations?
Kate Shaw: No. I mean, I think you’re right that it does feel like so many of their opinions this term and in recent terms, you know, retrofit around an outcome. So, you know, there was a case basically mounting a very similar claim about kind of how difficult it should be to enforce rights if the statutes creating those rights were passed under the spending clause, and the court a couple of terms ago in a case called Talevski, rejected that argument that, as Melissa was saying, like the argument is that, you know, spending clause laws are more like contracts than laws. And if that doesn’t really make sense, I still can’t quite get my head around it either, and yet the court essentially embraced this logic.
And so, in some ways, the goal of the court to, after having 7-2 rejected an identical argument two terms ago, fully embracing it by trying to draw this completely spurious distinction between the nursing home law at issue in that earlier case, Talevski, and the Medicaid provision at issue in this case. But, I mean, it was a facially preposterous distinction for the court to try to draw. And so, I guess that was one of the more shocking things about the opinion.
Melissa Murray: The real distinction was that nursing homes don’t provide abortions and —
Chris Hayes: Right.
Melissa Murray: — Planned Parenthood does.
Chris Hayes: Although the crazy thing here, just to remind everyone, South Carolina has a six-week ban in effect. Planned Parenthood —
Melissa Murray: Yeah.
Chris Hayes: — isn’t doing essentially any abortions. So that’s not even the issue, just so everyone —
Melissa Murray: No, this is for other states. Like, this decision will now embolden other states —
Chris Hayes: Right.
Melissa Murray: — to do exactly what South Carolina did.
Leah Litman: Well, and also it allows states to boot providers from the program for reasons other than abortion. So —
Chris Hayes: Right.
Leah Litman: — you know, you’re not going to be able to enforce this law if a state boots a provider because they deem to provide care for the LGBT community. And —
Chris Hayes: Right.
Leah Litman: — the Supreme Court has just rendered the federal law that prohibits that unenforceable.
Chris Hayes: That’s a great point, which brings us to the Trans Healthcare Decisions Committee, which was a challenge to a Tennessee law, if I’m not mistaken. Do you want to do that one, Leah?
Leah Litman: Sure. So the Tennessee law restricted the ability to provide certain types of medical treatment, hormones and puberty blockers, as ways to treat gender dysphoria in minors. So the question in the case was whether that law should be subject to more rigorous judicial scrutiny because it discriminated either on the basis of sex or on the basis of gender identity against the trans community.
The Supreme Court rejected both theories and upheld the law. I think here too, based on very specious reasoning, insisting this law doesn’t discriminate on the basis of sex, even though it mentions sex 19 times and even though it says the purpose of the law is to make people appreciate their sex, because the law is about a medical procedure applied to minors, whatever, right? These things do not follow, but that’s what they said.
And then second, they said it doesn’t even discriminate on the basis of gender identity or against trans kids because both trans and cis kids can still access hormones and puberty blockers for reasons other than treating gender dysphoria. This logic just collapses on itself because as Justice Sotomayor pointed out, this means, you know, a trans girl cannot get hormones to block the development of facial hair.
Chris Hayes: Right.
Leah Litman: So it does discriminate on the basis of gender identity. The Supreme Court insisted it did not. And we can talk about the reasoning and the decision, but it just opens up a whole can of worms as far as licensing states to engage in more sex discrimination and more discrimination against the trans community.
Chris Hayes: What are the sort of constitutional rights? Like, the thing that I found so maddening about this is I feel like I have a right. I don’t know when it derives to, like, give my kid the care, as a parent, that I think they should get, right? So whatever that is across a wide spectrum of things, if you told me that if my kid were severely depressed, acutely depressed, and there was medication that doctors in consultation with, you know, Kate and I decided would alleviate that depression, and it was an approved, right? It was safe and effective. So we knew that. There’s not a question about that.
Like, by what authority can a government tell me, I can’t do that? I guess, it’s like sort of my first principles question here. And I guess the answer is the state can, right? I mean, Melissa?
Melissa Murray: Sort of. So since at least the 1920s, the court has recognized an unenumerated though fundamental right of parents to make decisions on behalf of their children and to raise them in the manner of their choosing. And the court has been very clear. There’s a 1944 case called Prince that makes clear that that right is not unfettered. So as a parent, you can’t do anything to your children.
Chris Hayes: Clearly.
Melissa Murray: That’s why we have child welfare laws and whatnot. But there’s a pretty wide range for parents. And typically, the sort of paradigmatic example is that parents can make decisions about medical treatment for their children, and we’ve seen this over the last five years, with increasing frequency with parents saying, I don’t want my child to wear a mask in school because I have these objections, like whether it’s speech development or whatever. I don’t want my child to be subject to the COVID vaccination because I have concerns about its development, whatever.
And we’ve basically seen municipalities, states say, yeah, like, you’ve got to kind of defer to the parents’ wishes in those cases and parents’ rights are pretty strong, which is why this particular case was so striking. To be very clear, in this case, Skrmetti, the underlying fundamental rights question wasn’t at issue before the court. It had been below in the appellate court, and there, the appellate judge said that, you know, who cares about parents’ rights? Like, the state gets to do this, which was a kind of shocking outcome. It never was appealed to the Supreme Court. They really focused on this question of sex equality. So it’s out there in the distance.
Chris Hayes: That’s interesting.
Melissa Murray: It’s just, I think —
Chris Hayes: It’s not taken up. So the court —
Melissa Murray: It’s not taken up.
Chris Hayes: The challenge was on equal protection and sex discrimination.
Melissa Murray: Only equal protection and sex discrimination. So it’s out there. To be clear, it might be a winning argument in this context, but it cuts in a lot of different ways because, again, parental rights has been sort of adopted by Moms for Liberty to —
Chris Hayes: Right.
Melissa Murray: — stop a lot of different things that we might find important, progressive. And indeed, in a case this term Mahmoud versus Taylor, under sort of a blended parental rights, religion kind of logic, the court said that parents have a right to opt their children out of school curricula that they find to be in conflict with their religious beliefs.
Chris Hayes: Yeah. And one thing we’ve learned about this court is they have no trouble like gerrymandering their principles around these things to come up with some, here to
Melissa Murray: Gerrymandering (ph).
Chris Hayes: Yes, gerrymandering (ph). Exactly.
Melissa Murray: Yes.
Chris Hayes: So it’s not like they would just swallow it and be like, well, which I feel like courts in the past did a fair amount. Like, there would be these sort of like the Bong Hits 4 Jesus case or, you know, the peyote case. That’s the one —
Kate Shaw: Smith. Yeah.
Leah Litman: Smith.
Chris Hayes: Smith. Right.
Leah Litman: That’s been abandoned, though, Chris. We may never see that.
Chris Hayes: No. I know it has. Right. But, I mean, maybe I’m wrong about this, but I do feel like there was a little bit more of what’s good for the goose is good for the gander. And we’ll kind of take the hit on the facts and issue in this case, because what they do more broadly, we kind of like the direction of. Whereas, this court seems more willing to just be like, we’re just going to carve around what we want to end up with, and we’re not even going to swallow the implications of what that might be in some set of facts or some controversy that we actually want to be on the other side of. Is that fair to say, Kate?
Kate Shaw: I think so. I mean, I think that, you know, if the court were proceeding in a consistent and principled fashion, the logic of Mahmoud, which Melissa was just describing, you know, these parents are just essentially asserting they have a religious liberty, slash, I think parental right to opt their children out of, I think, whatever materials they might find inconsistent with the religious instruction that they are providing to their children and the values they’re seeking to inculcate.
So, you know, you listed the top 3 opinions this term. I think that’s a good list, but I would also probably include Mahmoud in the top tier. But if the court were, in a principled way, to apply the logic of Mahmoud, then I think that if a Skrmetti case came back to the court, but focused on the parental rights rather than the equal protection argument, the court would have to rule for the parents. And yet I don’t think even I would venture any kind of wager —
Chris Hayes: Right.
Kate Shaw: — that the court would do that. They would find some basis on which to distinguish, because they are just much more sympathetic to and receptive to religious liberty claims in whatever context. And they genuinely, I think, value the claims of parents in this context, right, opting out of LGBT story books in elementary schools, more than they value the right of parents —
Chris Hayes: Right.
Kate Shaw: — to direct the medical care of their children at least in this case.
Chris Hayes: In this case.
Kate Shaw: To your point, if we’re talking about an opt-out of a vaccine or a mask mandate, I suspect the court would be receptive.
Chris Hayes: Right.
Kate Shaw: You know, it is wildly difficult to talk about legal doctrine in this moment, where it feels as though like the ground has sort of collapsed underneath us. And —
Chris Hayes: Yeah.
Kate Shaw: — I think that both in our discussions with each other and our efforts to teach I think in the classroom, like it’s just a court that is acting in an increasingly lawless, to quote Leah, fashion. And so, I think we know how the next couple of cases are likely to come out, and it’s in a way that aligns with the justices’ substantive values and not principled legal doctrine or distinctions.
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Chris Hayes: More of our conversation after this quick break.
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Chris Hayes: So the last big one and the one that I think, you know, has gotten the most attention was the case which is known as CASA, which was a case about the permissibility of nationwide injunctions, which is a single district judge saying, this has to be not enforced for the entire country while we work out, you know, the appellate process and we come to some determination. And the executive order at issue was one that says that it got rid of birthright citizenship just by the stroke of a Sharpie. Melissa, you want to give the rundown of this case?
Melissa Murray: Sure. So as you know, on his first day in office, President Trump issued an executive order purporting to rescind birthright citizenship on the view that the 14th Amendment’s first section does not actually confer birthright citizenship to those who are born to non-citizens in the United States, or those who are here on some kind of temporary status, although they’re lawfully here.
And this was challenged, and as you suggested, there are district courts, we talked about this at the top, where people bring cases maybe because they expect to get a certain result, sometimes just because they’re bringing a case in a particular district. And often, if the remedy is one that is necessary because the underlying issue affects a broad spectrum of people beyond the initial litigants who have brought the case to the court, the judge is authorized to issue what is known as a nationwide injunction or a universal injunction that binds not just the parties before the court, but all of parties, which is to say in the context of the EO rescinding birthright citizenship. When the judge in the Western District of Washington said that this was patently unconstitutional, it enjoined the administration from enforcing it, not just with regard to those litigants before him, but across the country with all litigants.
And again, there were other cases that have addressed this question. So it wasn’t just that this one nationwide injunction stopped the Trump administration. There were lots of different judges who also thought this was patently unconstitutional and also issued nationwide injunctions.
The question of the nationwide injunction has bedeviled presidents of both stripes, from Barack Obama to the first Trump administration, Biden, the second Trump administration. In fact, the Biden administration twice asked the Supreme Court to take up the question of whether district court judges have the authority to issue nationwide injunctions and —
Chris Hayes: And they didn’t do it.
Melissa Murray: No, not ready, not ready to get through them.
Chris Hayes: Wait. Just so I’m clear, individual district judges gave universal injunctions for actions the Biden administration —
Melissa Murray: Like student loan relief is —
Chris Hayes: Right, which just —
Melissa Murray: — a paradigmatic example.
Chris Hayes: — stop for everyone in the nation. The Biden administration went to the court and they were like, we think this might be procedurally suspect. Would you take it up? And the court was like, no, and just left that injunction in place.
Melissa Murray: Yeah, left it in place, refused to sort of take up the injunction. And then, weirdly, five months —
Chris Hayes: Interesting.
Melissa Murray: — into the Trump administration, the Trump administration faced with a slew of nationwide injunctions because they’re issuing a slew of executive orders. The lawfulness and constitutionality of many of them are deeply, deeply in question, if not, obviously wrong. They get a bunch of nationwide injunctions and they have a real problem with it. They go to the court with this particular place, but notably, they don’t ask the court to take up the substantive question of whether an EO can rescind birthright citizenship. They just ask the court to address this question of whether a district court judge has the authority to issue a nationwide injunction, stopping the administration from doing something that is patently unlawful or unconstitutional.
And the court’s like, I think now’s the time. I think now’s a good time to take this up, five months into the Trump administration. And we got a decision. It is a 6 to 3 traditional ideological fracture, with all of the Republican nominees on one side and all of the Democratic nominees on the other side. It’s written by Justice Barrett. I think that is actually significant because this is typically the kind of decision that I think the chief justice might have reserved for himself, so why such a junior justice got this? I think it’s an open question and we can speculate about that.
But in it, she goes to this sort of like winding, incomplete, selective itinerate history in which she concludes that because James Madison would not have known the nationwide injunction at the framing, it obviously must be wrong and has to be narrowed in particular ways. And so, she says that there’s only a limited subset of situations where a nationwide injunction might be permissible, in circumstances where it is needed to provide complete relief to the litigant before the court. Otherwise, they’re off the table.
And if there are situations where you need to stop the administration from doing something unlawful, there are other avenues. And she specifically notes the availability of class action lawsuits. She does not note that the court has, over the last 20 years, really narrowed —
Chris Hayes: Right.
Melissa Murray: — the circumstances under which classes and class actions can be certified. But, you know, I’m sure that’s an oversight. And then she also notes that the Administrative Procedures Act is also available as a way to limit executive action. Although she does not mention that it’s very limited. What sorts of executive actions might be addressed using the Administrative Procedures Act? So I’d say as an opinion, probably a C, C plus.
Chris Hayes: Well, I mean, I think one of the things that, you know, to get back to this point, Leah, though, we were just making, like, you can imagine a universe in which a conservative majority with an interest in reigning in lower courts and maximizing executive power as sort of fundamental principles that in the aggregate, were red down to their kind of political and ideological benefit, could have in a very kind of wily way, like taken up the Biden DOJ on this question. And then offered this, like, victory to Biden that would have sort of deviously got it, maybe sort of comported in the long run with more muscular executive authority, and then would’ve like paved the way for Trump to do all this stuff.
But it’s the cynicism at issue because that would be interesting. You know, it maybe sort of a Jesus Amen, but it’s the fact that, like, of all the things to just lie around, now every hospital in America is going to have to figure out some procedure to deal with a mom who’s 28 weeks pregnant going into early labor, showing up the emergency room, screaming in pain and worry about her child. And they’re going to be like, can we see your papers?
Leah Litman: So not to fight the premise, but I actually don’t think that a decision during the Biden administration would have had the same effect or end.
Chris Hayes: Yeah. Right.
Leah Litman: I think the context in which the court issued the decision changes it significantly, one, because they issued this decision amidst the administration’s war on the lower courts, right?
Chris Hayes: Right.
Leah Litman: Their defiance of multiple court orders. They’re attacking the legitimacy of federal courts, enforcing the law against the executive branch. You know, the spike in threats against the lower federal court judges that have been emboldened and enabled by the administration attacking them. And so even if the Supreme Court’s CASA decision didn’t say, oh, yeah, the Trump administration is right to attack lower court judges, it does signal some sort of loose, you know, at least ambivalence about what the Trump administration is doing vis-a-vis lower court judges, and gives the Trump administration a win in its war against a lower court —
Chris Hayes: Yeah. That’s a great point.
Leah Litman: — and some, you know, legalistic cover for them saying the lower courts are indeed doing something wrong. You add to that that they didn’t have to take the issue in this case. They could have opted for another Trump case in which there is a nationwide injunction. And instead, by issuing it, they are allowing the federal government to begin the process of figuring out how to implement this wildly unlawful order.
And again, had they issued it during the Biden administration, then plaintiffs challenging this order would have known how to proceed in advance —
Chris Hayes: Right.
Leah Litman: — in order to stop it from going into effect absolutely anywhere. You add to that that they opted not to decide the merits, even though the technical legal standard for obtaining discretionary relief includes a likelihood of success on the merits. And they just say, yeah, we’re not going to deal with that.
Chris Hayes: This is the thing that Kate and I talked a little bit about this and I don’t have like a good technical way of talking about this, so I’ll just sort of speak in my own sort of like hunch-driven instinctual way. But there seems to be something profound about the way that time and the court’s work, and pacing and the court’s work, which is like in the long run, we’re all dead, right? So what —
Leah Litman: Thanks, Joanie (ph).
Chris Hayes: — you do with time matters a lot. And certain bells can’t be unrung. No one can move backwards through time. And so, as much as merits rulings matter, in a lot of places, what matters is the pace that things happen, the order things happen. And we saw this where it’s like on student loans, they move very quickly. When they want to rush, they can rush. On Donald Trump’s, you know, legal issues, they move very slowly. They said they were moving fast, but they could move much faster if they want to.
Kate Shaw: No. They moved fast in his challenge to his exclusion from the Colorado ballots.
Melissa Murray: Disqualification. Yeah. Right.
Kate Shaw: So they moved.
Chris Hayes: Yeah.
Kate Shaw: The contrast between that. That was weeks. And then, of course, six-plus months —
Chris Hayes: Yes.
Kate Shaw: — of slow walking his argument that Jack Smith cannot proceed with the prosecution because he’s absolutely immune. So the contrast was right there in the same term.
Chris Hayes: That’s a great point. And it just seems, Kate, like one of those more sort of manipulation of time and urgency —
Kate Shaw: Yeah.
Chris Hayes: — where to not reach the question here and to allow the possibility of implementation or even patchwork implementation —
Kate Shaw: Yeah.
Chris Hayes: — where we’re going to create a new subcategory of literal second class non-citizens —
Kate Shaw: Yeah.
Chris Hayes: — for the first time since Reconstruction, quite frankly, and not feel any urgency. Like, you had a great line in the excellent New York Times op-ed you just published today. You’re basically like, look, I think if a Democratic president on day one said like all firearms are now illegal, or signed an executive order banning religious worship, like they would get to the merits pretty quick up at the Supreme Court.
Kate Shaw: Yeah. I think they’re making and concealing discretionary choices all the time.
Chris Hayes: Yes.
Kate Shaw: So we were talking just now about using this of all vehicles to announce essentially the impermissibility of nationwide injunction. So that’s a choice. It’s a choice not to reach the merits, and essentially to jet off wherever they’re going to spend their summers and allow the lower courts to clean up their mess by seeking to parse what I think is actually a wildly sloppy opinion by Justice Barrett. So time says there is no sufficiently close historical analog between today’s nationwide injunctions and any kind of relief issued by the High Court of Chancery in England in 1789. Literally, that’s the logic, so categorically impermissible.
But at other places, the opinion says actually some narrow category of nationwide injunctions can be issued where necessary to provide complete relief. I think the opinion sort of talks out of both sides of its mouth about this Administrative Procedure Act issue, which I think the court holds out as another possible route to challenge executive lawlessness. But it’s very possible that a year or two from now, when faced with that question directly, the court will say, oh, you know what, that’s actually also not available for injured kingdom (ph).
Chris Hayes: Right. Totally.
Kate Shaw: So a little bit back to our Section 1983 conversation. And maybe just two other things to add to Leah’s and Melissa’s description of the case. I mean, sort of back to Matthew Kacsmaryk in this single judge division in Amarillo, Texas. You know, you’d think from the way Justice Barrett talks about this like spike in injunctions in the first hundred days of the Trump administration, as though, you know, it is just kind of course acting in a pretty lawless fashion, but not only is the kind of response by the district courts. I think a correct effort to kind of keep some balance in the separation of powers in the face of this wild overreach by the President, but also none of the nationwide injunctions at issue in this case were issued by these judges sitting in single judge divisions. So, you know, they’re not even the result of this.
Chris Hayes: Right.
Kate Shaw: I think genuinely troubling practice that we have seen, I mean, we of course have been critical of lots of things Kacsmaryk has done in some of these lawless orders that he has issued. But actually to the extent that you can critique some aspects of, you know, judicial district court practice with respect to nationwide injunctions, none of those kind of pathological behaviors are even at issue here.
And so, there’s this hand waving like, oh, injunctions are a problem and we must intercede here. And there’s just this opinion, isn’t even plausibly responsive to the abuses of nationwide injunctions that I think we have seen in recent years, although I think emphatically not in the first five months of the Trump administration.
Chris Hayes: You know, one of the other maddening aspects of this, again, sort of from an outsider, but also I’m just sort of giving a “Strict Scrutiny” take back to you guys because that’s where I get a lot of my legal takes, is just the kind of methodological Calvinball here, where it’s like, you know, Kate pointed out in the op-ed that when it was the immunity decision where there was essentially no historical or textual foundation for this newly enunciated principle, it’s very clearly anathema to the founders. It’s not anywhere in the Constitution.
In fact, they textually confer immunity in specific instances because they know what the concept is. They can decide to give it to people. They don’t confer this immunity. There’s no historical really antecedent to it. And so that ends up being this purely set of practical questions about bold action for an executive. And what’s going to happen practically if he makes a decision, he has to worry about getting prosecuted by every Tom, Dick and Harry.
But in this case, all the practical discussions are completely shunted aside and we got to look at this 1789 law. And so, I don’t know, I guess my question to you, Leah, is like what do we do with this? You know, you sort of use this phrase, no law, just vibes, and you write about that at length in your book. Like, you know, how seriously, I guess, do we take any of the methodological arguments? That’s the thing, if none of them have any entailments past the case, if it never leads to them being forced to come to conclusions, they want to resist ideologically, culturally or politically, then it really feels like we’re not doing anything remotely like law here.
Leah Litman: I mean, they’re just bullshit. I think, seriously, at this point, you know, I would add the disqualification case. There’s no historical evidence for the idea that the radical reconstructionists wanted Section 3 of the 14th Amendment, which disqualified insurrectionists to be virtually unenforceable. The idea is just laughable on its face.
And honestly, even in the opinions where they purport to be invoking history and tradition, sometimes there isn’t even a whiff of a mention of history and tradition. So like in Neil Gorsuch’s opinion in Kennedy versus Bremerton School District, he’s like, oh, yeah, the test is history and tradition. I didn’t see any history in that opinion. He’s just storytelling.
And you know, we’ve already talked about the CASA opinion, you know, that purports to be originalists. But then it throws out, oh, by the way, there’s also this exception for maybe cases brought by states. Okay, like, where’s that in 1798? Didn’t see that there.
And then you have this separate writing by Justice Kavanaugh, you know, which is anti-formalist and maintains, who cares about the different legal standards for different kinds of relief, even though they emanate from different statutes? They’re all the same thing to me. You know, it’s just all over the place. They have no serious methodological commitments.
Kate Shaw: Can I say one more thing? Also back to the majority opinion by Justice Barrett, so there’s this long disposition about the impermissibility of this kind of universal relief because there’s nothing like it in 1789. And then at the end of the opinion, there’s a little bit of like, but don’t worry because this court stands ready actually to provide answers to pressing legal questions, and everyone will abide by our rulings. And the citation provided for that claim is a concession at the oral argument —
Leah Litman: Yes.
Kate Shaw: — by Trump’s solicitor general. That’s the whole authority. And —
Chris Hayes: Right, where he says, yes, right?
Kate Shaw: Yeah. Well, we’ll listen to you. We’ll listen to you.
Chris Hayes: Right.
Kate Shaw: So we will be heated citing to an exchange, an oral argument. I mean, what in her conception of the role of the Supreme Court actually mandates that compliance beyond the concession is never specified. And in some ways, it’s so kind of debasing and humiliating I think for the Supreme Court to say, we will be listened to, and we know because —
Chris Hayes: Right.
Kate Shaw: — you told us that we would.
Chris Hayes: Right.
Kate Shaw: But without any other, you know, kind of —
Melissa Murray: Kind of Marbury versus Madison was right there. It’s right there.
Kate Shaw (?): It’s not in the footnote.
Melissa Murray: Plain and cited (ph).
Leah Litman: And she brought up Cooper versus Aaron at oral argument. She didn’t even drop that in there.
Kate Shaw: And it’s not in the majority opinion, which I think is really striking.
Melissa Murray: So I think there’s another thing going on here too that’s worth calling attention to, and it’s part, I think, of an ongoing theme with this court, and that is the arrogation of power to the court itself. And over the last couple of terms, we’ve seen them strip power from other institutions, notably administrative agencies and parts of the executive, parts of Congress. If you think about all of those cases where they sort of narrow the range of authority that Congress can use to pass laws.
But in this particular case, they turn the lens on the judiciary itself. So the court actually takes power away from the lower courts and then says very explicitly, like, we are the last resort. We have all the answers. They’re going to listen to us. And as Kate says, not exactly clear what support there is for that proposition, but, you know, it’s said. And then you have —
Leah Litman: But Kavanaugh really wanted his, I’m the king of the world, Leo moment, right?
Melissa Murray: Yes.
Leah Litman: Like, that was that concurrence.
Melissa Murray: So Justice Kavanaugh writes a concurrence in which, you know, he makes very clear like the buck stops with us. So Justice Barrett is crying (ph) in her exchange with Justice Jackson, the prospect of an imperial judiciary by which she means lower court judges doing the law. And then she writes this opinion that basically makes the Supreme Court the imperial judiciary.
Chris Hayes: Right. Yeah. That’s such a good point. And so, like, it just messes with the structure of the entire judiciary, it seems to me. Because there’s three levels of the federal judiciary, two of them have to do something recognizably like law and one doesn’t, which has always been the case and has always been an interesting tension. Like, you know, the court has had a lot of horrible decisions in its history, and at some level, has been doing politics as much as law for as long as it’s existed. I would say Marbury versus Madison being an incredible example, where it just agates to itself out of thin air, out of nothing, final say on constitutional matters.
Leah Litman: That’s why it would’ve been a good cite.
Chris Hayes: Right, which is like the original like hubris and imperialism of this institution in many ways. You know, there’s a lot of liberal democracies that don’t have this form of judicial review. It’s not like it’s essential to a functioning liberal democracy. So it’s always been doing in some degree. And also with this weird thing they’ve done with like pacing in the shadow docket, where like the district courts have to deal with emergency filings all the time because things are happening and bells can’t be unrung.
But, now, they can’t reliably apply any kind of precedent or any kind of relief, or really find anything without the Supreme Court coming in and be like, you idiots, you stupid fools, why did you do that? Which is how they seemed to react towards these district courts, like these like wayward children or these like insanely cosseted, narcissistic, monomaniacs who don’t have like the temper (ph) —
Kate Shaw: It’s only slightly better than how the President talks about district court.
Chris Hayes: Yes. It’s the same idea.
Melissa Murray: Only slightly since Justice Alito at oral argument, basically explicitly accused district courts of having a God complex —
Chris Hayes: Yes.
Melissa Murray: — and never thinking they are wrong.
Chris Hayes: Yes, because they don’t have to work with their colleagues, right?
Melissa Murray: Yeah.
Chris Hayes: Wasn’t that his line?
Kate Shaw: Yeah.
Melissa Murray: Yes.
Chris Hayes: But, like, they don’t have to do the hard work of collaboration, which is a very hilarious thing for Alito to say. Okay. So I mean, look, most of the listeners, and I think, you know, the four of us, and I think, you know, millions of Americans sort of have come to this same conclusion, right? There’s something corrosive and toxic, profoundly cynical about what the court is doing. This reverse engineering around the particulars of your, you know, power politics, ideology around whatever particular controversy arises. Heads, you win; tails, you lose kind of thing over and over and over again.
I guess one question is, Melissa, and this is like asking for speculation, but like I do wonder how much power politics come to play in this in terms of how Roberts and people in the court are thinking about the question that Amy Coney Barrett cited, which is the court’s power is kind of its projection of power. It doesn’t have an army. You know, it doesn’t have an enforcement mechanism. Like, is there fear that Trump will run over them? And is there a desire to kind of like, you know, create some sort of accommodationist understanding with him so that you don’t end up with the ultimate time where you tell him to do something and he says, screw you?
Melissa Murray: I’m just thinking of all those TikTok videos about red pandas that like make themselves look really big when faced with a threat. Like, that’s basically what the court, I think, is trying to do.
Chris Hayes: Yes. Yeah.
Leah Litman: The Supreme Court does not get to be equated to red pandas which are adorable.
Melissa Murray: So cute.
Kate Shaw: Adorable.
Chris Hayes: Yes. Except when threatened.
Kate Shaw: This is not adorable court. These are trash raccoons. Wait, no, raccoons are trash pandas, right?
Chris Hayes: Right.
Leah Litman: Yeah.
Kate Shaw: Yeah. Okay. Never mind.
Melissa Murray: I think that question, will this administration heed the court’s pronouncements has been the overarching existential question that has loomed over this entire term, even if it hasn’t been articulated explicitly. I think it explains the courts sort of hedging in that case with Judge Xinis, where there are like, you know, you have to facilitate and, you know, like, the government has to facilitate the return. There’s all this sort of very careful parsing of language, because I think at their court, the justices know there’s nothing that will keep this administration in line with the court if they don’t want to be. And I think we all know that at some level, and I’m pretty sure they know that.
And this is going to come to a head. I don’t know if it’s this term —
Chris Hayes: Yes.
Melissa Murray: — or next term. And I say this term because this term is going to go well into the summer as the shadow docket continues to be active. But that’s the ultimate question. This court is not like Congress; it doesn’t have the power of the purse. It’s not like the executive; it doesn’t have an army. It only has the goodwill that the political branches have for it. It only has the goodwill of the people who believe that they’re doing actual law, not just their personal predilections.
And I think on both sides of the ledger, you have an executive that is in big DGAF mode and a public that is becoming increasingly skeptical —
Chris Hayes: Yeah.
Melissa Murray: — that the court is on the level.
Kate Shaw: Can I just say something about Abrego Garcia —
Chris Hayes: Yeah.
Kate Shaw: — which Melissa was just talking about? I actually think that there is a glimmer of hope in Abrego Garcia and the saga. Obviously —
Chris Hayes: Yeah.
Kate Shaw: — having been returned to face possibly trumped-up federal criminal charges is not a situation that, like, is a great development for anyone. But the fact that the administration represented, repeatedly Trump personally did, Homeland Security Secretary Noem did, Press Secretary Karoline Leavitt did, he’s never coming back. He’s never coming back full stop because he had been sent, in error, to CECOT in El Salvador. And he was then returned. I think actually it’s attributable to the sustained kind of press and public attention on the Abrego Garcia story.
Leah Litman: But not the court.
Kate Shaw: So, right. So this, in a way, I think suggests that actually in the Trump court standoff, there are other players that are really important.
Chris Hayes: Yeah.
Kate Shaw: And the press and the public are hugely important. And I think the Supreme Court massively misplayed this end of term, if it’s thought that somehow, you know, disempowering lower courts sort of weakly holding out this vision of its own authority would buy it some goodwill with the administration. I think that all it did was make the judiciary look wildly powerless in the face of an administration that had a little bit indicated sometimes willingness to abide by court orders, and not always. And so, I do think that the court dealt itself and the judiciary and the rule of law, a massive blow in the calculation it appears to have made here.
Chris Hayes: So that relates to something I’ve been thinking about a lot, which is how to repair this. And you know, there’s this sort of narrow question of Supreme Court reform and that. But I actually mean it in a broader sense of like the rule of law, law as practice, law as coercion without force, and law as a sort of plausibly functional set of neutral rules that all parties in a society have to submit to.
Now, that’s always honored in the breach and obviously America has two-tiered, many tiered justice system, and you get as much due process as you can afford for instance. And that’s been true long before Donald Trump and he experienced that as litigant himself many, many times. But that seems very torn up to me. And so here’s the thing I’ve been thinking about. There’s two ways I think of what would you do? Let’s say Donald Trump loses, you know, he leaves and Vance runs, or whatever happens in 2028. The country is in a terrible place and it’s a kind of end of George W. Bush kind of mass repudiation.
Let’s say Trump leaves in the 20% approval rating and there’s a big Democratic victory. And it’s on the scale, let’s just say for a moment of Barack Obama in 2008. Huge congressional majorities, new Democratic president. Okay. So now the White House counsel reaches out to the three of you and says, the President of the United States has been big fan of your podcast. He agrees with you about the Supreme Court and about —
Leah Litman: She. This would be a she.
Kate Shaw: This is a woman.
Chris Hayes: Not in our lifetime, Leah. Kept that (inaudible).
Leah Litman: Not in our lifetime that men will listen to our podcast, or that there would be a woman president?
Chris Hayes: Well, I would love for it to be a woman president. So let’s go with she since we’re creating a beautiful vision in the future.
Kate Shaw: We like this fun fact. Let’s keep going.
Melissa Murray: Exactly.
(Music Playing)
Chris Hayes: Okay. We’ll be right back after we take this quick break.
(Announcements)
Chris Hayes: So the president is a big fan of the podcast and she wants to repair what’s been both in terms of how to think about the court, but also to think about how to wield power and the law from the executive, also to think about the DOJ’s litigation stand. So here’s the sort ofnub of it. It’s like, I have this feeling that you cannot unilaterally reassert procedural neutrality in the face of foe who is not committed to it, because it works on consensus. All you can reassert is a form of kind of deterrence. So right now, they’re doing lots of things that seem to me, stupid if you think the other side is going to do the same thing to you, but they don’t think that’s going to happen.
And so, part of me thinks the only way to kind of refound the rule of law is to be ruthless and aggressive in equal measure, in such a fashion that produces a kind of iterative deterrent effect. So you impound, on day one, all of the new ICE founding. It’s done.
You sign an executive order saying, you know, in deference to the history tradition of this country in which the Supreme Court only had a building since 1931, we’re taking your building back. You guys can go. You guys can Zoom to work. You can ride around. You know, you use the law in the same sort of fashion Trump has, back at them in every creative envelope pushing way you can, to sort of call the question and to try to produce out of that, some new settlement that can be better and actually have the consensus of all parties in a way that the current settlement doesn’t seem to have. How do you think about this, Leah?
Leah Litman: So I am sympathetic to some of what you are suggesting, like unilateral disarmament, unilateral enforcement of norms is unsustainable. I guess my solution would be more trying to address the underlying structural issues that allow us to get to a point where a minority faction that is not committed to an antagonistic to the rule of law can get power. And so, in my vision, this would mean reforming the Senate, reforming the electoral college, reforming the courts, to create a system where it is not possible to win the presidency if you don’t win the popular vote.
Chris Hayes: Yeah.
Leah Litman: Where it is not possible to have a majority in the Senate if you don’t represent a majority of the American people, where it’s not possible to have the gerrymander districts that allow these extreme ideologues, right —
Chris Hayes: Right.
Leah Litman: — to gain control of Congress, even though, again, they don’t represent a majority of the American people. And I think those reforms, combined with holding the people who have attempted to destroy the rule of law accountable, I think those would be the two principles that I would want to see. Because I do think that one of the main problems of the last five to six years is letting the people who attacked our government and tried to overthrow it, get off scot-free, right? Like, this is one of the lessons of history. When you do that, they come back to power and they do it worse the second time.
So I think a combination of accountability and a combination of democratizing institutions so that they are less susceptible to capture would probably be my preferred outcome and how I think about it. But I do think that there will have to be creative, aggressive uses of the law in order to address some of what has been lost.
Chris Hayes: Yeah.
Kate Shaw: So I like that. Let me just add a couple of things. I mean, I think if we’re talking about the near term and this Supreme Court is intact, much of what Leah is describing legislatively could potentially run into the buzz saw of this court, suggesting that, you know, those kinds of innovations are fundamentally incompatible with its ossified vision of the Constitution. So I do think that court expansion probably needs to be part of that package of democratic reforms, because in the short term, there’s just no guarantee that a majority of this court would even allow any of that to take effect.
So assuming we are also going to do court expansion and add, say, five new justices, I think that you also need legislatively to sort of increase or create new pockets of independence and checks on the president within the government. So, you know, actually creating a new sort of cadre of whether they’re inspectors general, you know, independent prosecutors. I mean, you know, you would need a Supreme Court that would be sympathetic to that.
And this court has made clear that they think that is antithetical to this vision of the presidency, that I think is a textual and a historical, and wildly dangerous. But you need a court willing to allow Congress to adapt and innovate in the forms of government power that it creates and, you know, will actually serve the needs of 2029 or —
Chris Hayes: Yeah.
Kate Shaw: — whenever this sort of world comes into play. So I think that I do really like seizing the building of the Supreme Court. But if we’re adding five more justices, I feel like maybe they need office space.
Leah Litman: Sam Alito still has to sit in the basement —
Kate Shaw: Okay.
Leah Litman: — but the other ones can get the top.
Chris Hayes: Well, the reason I say all this though, like I agree with both of you. And Leah, I totally agree about that suite of reforms and, yeah, like the sort of —
Kate Shaw: Campaign finance we also didn’t say, but that should also —
Leah Litman: Yeah.
Kate Shaw: — be part of it as well.
Chris Hayes: Yeah. Like, democracy is good and we should have more of it —
Kate Shaw: Yeah.
Chris Hayes: — as a kind of principle here. But I think just like in the narrow sense of like, let’s say, Melissa, like, you just have the power that you do have now. Basically, my read on this court right now is that they’re going to absolutely sabotage a Democratic president with large congressional majorities if that were to happen.
And so, I guess part of the question is like, okay, court reform is one thing, like just put five more seats on. But it also seems to me like you got to find some way in pure power politics terms, in pure institutional struggle terms, to make these people spooked. And I don’t mean that, obviously, in like a physical sense or anything like that. I don’t want them to feel spooked, you know, worries about their safety. I just mean like in terms of their institutional power, they got to be worried a little bit or your toast.
Melissa Murray: So I don’t disagree with anything that Leah and Kate have said. I just think we have to step back. Like, there’s a bigger fundamental problem, and the bigger fundamental problem is that we have never done the work in this country of actually wrestling with our deep-seated antipathy for a multiracial, multi-faith, pluralistic democracy.
Chris Hayes: Yeah.
Melissa Murray: And in the way that South Africa had to sort of wrestle with its past, I think we have to do that work. That’s not necessarily work for the court, but I do think that work engenders a wholesale reevaluation of institutions of who holds power and what it means to remedy a past, and what role institutions play in that. And I just don’t think we’ve ever done anything like that. I don’t think South Africa necessarily did it perfectly, but I think they initiated it and tried to go down that path.
But I mean, I actually think if this comes to a conclusion and is resolved in a way that I would like to see, which is, you know, a different political order and power, I think we actually have to have a kind of reassessment of what happened here, how it happened and what the root causes of it really were. And the role of institutions in facilitating it, and that is a very clear assessment of the court’s role in this too.
Chris Hayes: Yeah. And I really like that way of thinking too and I agree with that. And I think to the extent there’s anything hopeful here is that, like, there’s the kind of two constitutional founding’s of the country; the original writing of it and then the Reconstruction amendments, which not coincidentally are under assault by this court. That is not just an accident.
But then there are also other constitutional orders that get instantiated at different periods of time, whether it’s Andrew Jackson or the New Deal or, you know, the sort of modern administrative state or the post-Watergate reforms that, like, it does seem to me like there’s an opportunity for the founding of some new order post this.
If we survive, that is exciting in the sense that it feels like you could start to think through at a level of sort of scope and grandiosity and depth that Melissa you’re talking about, like the post Reconstruction amendments, right? Like, something on that order of what you want the constitutional order of a future of a genuinely pluralistic, multiracial democracy to look like. That is an exciting thing to think about, you know, if we can make it through this nightmare.
(Music Playing)
Chris Hayes: “Strict Scrutiny” is available wherever you get your podcasts. The hosts are Melissa Murray, Leah Litman, and my wife, Kate Shaw. It’s always wonderful to talk to you, ladies. Thank you so much.
Kate Shaw: Thank you so much for having us.
Leah Litman: See you next year.
(Music Playing)
Chris Hayes: You can always email us, withpod@gmail.com. You can get in touch with us using the hashtag #WITHpod. Follow us on TikTok by searching for WITHpod. You can follow me on Threads, Bluesky and what used to be called Twitter, with the handle, chrislhayes. Be sure to hear new episodes every Tuesday.
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