The Supreme Court currently has a majority of conservative judges, and it’s the most conservative court since the New Deal Era. The Court made more conservative decisions this term than at any time since 1931, according to statistics compiled by professors Lee Epstein of Washington University in St. Louis and Keven Quinn of the University of Michigan. The recent decision to overturn Roe v. Wade has caused some to speculate that this may be the beginning of a movement to overturn other landmark liberal decisions like Obergfell v. Hodges. Jamal Greene is the Dwight Professor of Law at Columbia Law School and author of “How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart.” He joins WITHpod to discuss what methodology Supreme Court justices use to arrive at their decisions, whether there is political motivation and just how strictly they interpret the Constitution.
Note: This is a rough transcript — please excuse any typos.
Jamal Greene: I don’t know that I’m especially optimistic that there is a way out from this court. I think that a number of decisions that they’re making in Dobbs, the abortion case being right at the front of the line, are going to have devastating tragic consequences for people, for millions of people in America, and I think there will be a reaction to that. I don’t know what their reaction will look like or what it can achieve, but I don’t think they’ll get a free pass with the things that they’re doing.
Chris Hayes: Hello and welcome to “Why Is This Happening?” with me your host, Chris Hayes.
We are doing a special news here in WITHpod today because of the, I’ll just going to say, cataclysm of the last Supreme Court term, the term that just concluded a few weeks ago which I’ve seen a lot of like non-hyperbolic legal scholars call it like either the worst or most momentous term certainly in recent memory, possibly ever. I’ve even seen some people say it was incredibly reactionary court, and on a bunch of very high profile matters of both statutory interpretation and constitutional law, incredibly ambitious, far-reaching upending of what had been the status quo ex ante before the court.
The obvious example of that is the overturning of Roe v. Wade after 50 years, in a decision that completely assured any opportunities at half steps minimalism, incrementalism, respecting the reliance interests of people who’ve come of age in a Roe in America, very quite explicitly said, “We’re rejecting all of that. We’re not doing half steps. We’re not pairing here and there. We are fully overturning Roe. It cannot stand. It was terrible from the beginning.” Boom, done.
Similarly, though, not quite as radically as some of the reasoning in the Bruen case, which is a gun case, with Clarence Thomas writing the majority in that case, again, a very kind of like far-reaching and grandiose sort of vision of what the Constitution requires the court to do, this kind of unapologetic swag in the sort of words of the court and its bearing. I was thinking about like sometimes they refer to like pop songs as anthemic, which just means they’re big, like in your face. Like, these were very anthemic kinds of decisions from the court.
And there’s a whole bunch of other cases as well. And there’s been all sorts of quantitative analysis about how much this court has turned the law around, how it’s the most right-wing court since the Lochner era, which was during the New Deal. And I’m trying to get my hands around it. Obviously, I talked to Kate, my wife, all the time about this stuff. But one of the things I have trouble with is like what are we doing here? It seems to me that there’s like a prior question even to the question before the court about constitutional rights, what kind of democracy we have, to what it is the judges and justices do, what method they’re using, and whether they’re describing what they’re doing in good faith.
And if there were, I really start to lose my mind, because it really feels to me like the court isn’t just engaged in a project of reaction, but reaction combined with a sort of gaslighting, bad faith deception about what it’s doing. reaction that is cloaked in a rhetoric about methodological approach, and lead us like, “I’m not doing this because I’m a person who hates abortion, and thinks it’s the murder of a child. And I don’t want people to do it.” No, no.
This result is required by fidelity to the text of the Constitution, its original public meaning, the history and tradition that flows out of that. And in fact, we should go back and look at some 17th century writings on whether women can have abortions. But again, I’m not just doing this because I believe in this. No, no, no. No. This outcome, well, which I happen to believe in, is required by the methodology that we have to use.
I find this reasoning so insultingly disingenuous and drives me insane. So I wanted to talk about like what is happening from a methodological perspective with the court’s right-wing majority, and what it actually means. Like, what I really want to say in a conversation about is like, is this as in bad faith as it seems to me? And I thought a great person to talk to that about is Dwight Professor of Law at Columbia Law School, a constitutional scholar who wrote a fascinating book about the courts, the Constitution, our rights called “How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart.”
He’s co-chair of the Oversight Board, which is an independent body that reviews content moderation decisions on Facebook and Instagram. He has a million different plaudits and awards and the like. He clerked for the late Justice John Paul Stevens I think right before my wife Kate went into those chambers to clerk. Jamal Greene, it’s great to have you on the program.
Jamal Greene: Thanks for having me. Great to be here.
Chris Hayes: I want to do something super basic and maybe like build up, right. So rather than talking about the court, I just want to talk about what do judges do? How should I understand what a judge does? And let’s refine it a little bit. On matters of constitutional law, on an issue before the court, we’ll keep it in that place for now.
An issue becomes before a judge, and it might be a district court judge seeking an injunction of the travel ban, or it might be an appellate court judge who’s reviewing that, or it might be a Supreme Court justice on abortion, and they’re presented with arguments about whether something does or doesn’t essentially violate the Constitution. What does the judge do? How would you describe it to a layperson what they do?
Jamal Greene: So I think this is a harder question than you presented as because I think different people have different views about this, and I’m not even sure that justices on the Supreme Court have a coherent view about the answer to this question, right. So there is a traditional conception of what a judge does in constitutional cases that goes all the way back to Marbury versus Madison and the origins of judicial review in the United States. And that’s just a judge resolves disputes between parties, right. Like, you and I have a dispute about a piece of land or a contract, or whatever.
Chris Hayes: You put your garbage on my curb.
Jamal Greene: Yeah. Right. And someone has to resolve it, and so you go to a judge and they resolve it. Marbury versus Madison was a case that said constitutional judging is just that as applied to government and the Constitution. So William Marbury, this guy has a dispute with Tom Jefferson and Madison, and the court has to resolve it. And so when a court gets something to resolve, it has to look at what the sources of law are. Like in the contract dispute, what does the contract say? What does contract law say in our country?
In constitutional law, what does the law say? What does the Constitution say? The Constitution is just a piece of law as applied to a dispute between parties. And so the judge’s only job is to just resolve the dispute, however, in whatever way makes the most sense according to the law. We’ve come to a place where the Supreme Court understands its job in much more grandiose terms, that its job is to tell us what the Constitution means, which means that it’s got to interpret the phrases in the Constitution and tell us exactly what they mean, tell us what they mean for all time and resolve these disputes regardless of the particular facts they present.
I’m going to tell you if I’m Clarence Thomas, I’m going to tell you exactly what the Second Amendment means for everyone, not just resolve this dispute between these two parties. So it’s somewhere along that spectrum from judges just resolve disputes between parties and sometimes those disputes involve the government. And the judge’s job is to speak for the Constitution and speak for our rights in some deeper sense, tell us what liberty means, tell us what equality means.
Chris Hayes: That’s such a profound point even then, and very clarifying and useful, the difference between resolving dispute. So in the Bible, of course, Solomon, the dispute is who is the mother of the baby? They come before Solomon and it’s his job to say who. There are disputes that need someone to be like you, “This is how it goes.” And so Solomon, of course, takes up the sword and says, “I’m going to kill the baby,” that reveals who the real mom is. He resolves the dispute that way.
But it’s useful to think in those terms because he’s not, in some ways, revealing a factual truth, right, in his wisdom of drawing the sword. But the whole goal is to resolve that dispute in a just inequitable way. And I never actually think of judging that way anymore because I think, and this is something I want to get into with you, I think the propaganda of Scalia et al particularly, that the court’s job is to tell us the meaning of the Constitution is so successful, that I almost think that’s kind of the default understanding of everyone, even people who don’t buy into what Clarence Thomas or Samuel Alito say about.
Jamal Greene: I think that’s exactly right. And you use the example of Solomon, and Justice Scalia actually has an article where he talks about that example, and says, “That’s exactly what judges are not supposed to do in constitutional cases.” And he says, “They’re not supposed to do it because they sit atop a pyramid of other courts. They’re going to tell courts what the law is.” And if you’re sort of resolving disputes based on kind of whatever is just or something like that, or like balancing, you don’t give enough guidance to lower courts. That’s part of his point.
The problem is that it’s in the nature of a constitution that it has to enable us to govern ourselves. And if you say everything that applies to modern disputes was decided in 1788, or decided in 1868, and there’s nothing we can do about it, like almost literally nothing we can do about it, maybe you can amend the Constitution, but only by the terms that were put in place in the 18th century, then that denies us our self-governance.
And so that takes a very important piece of constitutional law away from us. And it’s not necessary, right? That’s not how most countries think about their constitutions. It’s a specific move intended to produce a specific set of outcomes.
Chris Hayes: It’s that part that I have a really hard time with. Because as I understand it, now we can talk a little bit about sort of originalism and textualism. But before we get to that, I mean, as I understand it, what I found so maddening about this entire enterprise from just a rhetorical standpoint, as a kind of like adjacent outsider, right? So I don’t have a law degree. Obviously, my wife is a very brilliant legal scholar and clerk on the court. And so I get osmotically through her, I get a certain amount.
But to me, it’s the construction of this notion by the Federalist Society and conservatives over the years that basically says the following. What you bad liberals do is you just substitute your own personal preferences, your policy preferences for the law and for what the Constitution says. And you read into the Constitution whatever you want people to have and your namby-pamby love for rights or whatever, except some rights, right? You don’t like the Second Amendment, yada, yada.
And that is unserious, it’s chaotic, and there’s something offensive about it because it’s not real. It’s not rock solid. We do this rock solid formalistic thing. We don’t just read in what we want. We go through this method. But then that just gives them what they want. And it just seems like it’s one thing to run roughshod over stuff. It’s another to lie to me about what you’re doing, and it makes me so angry to feel lied to
Jamal Greene: Well, I understand the impulse, and it does feel very results oriented. And I think ultimately, it is results oriented, right? So in the sense that when originalism became a thing, which is in the early 1980s basically, it’s basically the Federalist Society and people in the Reagan Justice Department, deriving a methodology in order to achieve a specific set of outcomes, one of which is overturning Roe versus Wade, one of which is eliminating prayer in public schools. And there is a prayer in public schools’ case on the docket list term, one of which has to do with busing and school integration. And there’s affirmative action right on the docket next year, right? And soy can draw the lineage.
That said, I hesitate to say that any specific person is consciously thinking, “Okay, here’s the outcome I want to achieve, and so let me monkey with the law in order to get there.” I think people engage in motivated reasoning, and I do that on the right and the left. It just happens to be that the right has a lot of power right now, and that’s what they’re doing.
Chris Hayes: Well, but to go back, I mean, when we’re talking about this sort of interesting, like, what’s the meaning of the Constitution versus resolving disputes, or kind of coming to some formal methodology that produces the right answer versus judging. Okay? Again, I’m sort of setting these up as opposites, but I think it’s useful.
I mean, Justice John Paul Stevens, I think, and also Justice Richard Posner who was someone else that Kate clerked for, who are different figures, ideologically. But I think united in this idea of like you can’t take the judging out of judging. And there’s this sort of derogation of that by the rhetoric of originalism and formalism. But that’s unserious to be like, well, there’s different competing interests on both sides and this is a tough call. We’re going to try to balance them as best we can.
And when you encounter a person in your life who’s good at that, you say they have good judgment and you want them to make important decisions. And there’s this idea that like that basic test, or that basic method of approaching these questions is like ludicrous or unserious.
Jamal Greene: Justice Stevens who really embraced the approach that you’re suggesting, of sort of case by case adjudication, judges for judges. My favorite anecdote of his, one of the litigants at the Supreme Court just keeps calling Justice O’Connor, “Judge O’Connor, Judge O’Connor.” And Chief Justice Rehnquist at that time corrects him and he says, “Litigator, counsel, actually it’s Justice O’Connor.” And Stevens jumps in and says, “Article 3 makes the same mistake. Don’t worry, counsel.” Because the Constitution calls them judges, right? It doesn’t call them justices, right?
And justices imply like they’re these kind of people in robes and Rehnquist himself added stripes to his robe to make them seem more important than the Constitution necessarily contemplates. And you look at the abortion case from this term, and there’s an example of this. One that, by the way, the side I’m going to praise in a moment isn’t what I would do if I were a judge, but it counts as judging, right?
So Chief Justice Roberts in his concurring opinion, says, “Look, this is a dispute between Mississippi, the state of Mississippi and someone challenging its abortion laws. All I have to say is whether I think the Constitution requires the striking down of this law.” I think it does require the striking down of this law, he thinks it doesn’t, right? But the idea that the point is that there’s a dispute between litigants, and in a kind of case by case way, you make a judgement about what the Constitution might require. It’s definitely not what the majority is doing, right?
In the abortion case, or in any number of cases, they want to say, “We speak for the law.” And they want to attach it to a 100 or 200-year-old conception of what the law is, which of course, has predictable results.
Chris Hayes: And in fact, the case that most shows this, right, the idea that they are not adjudicating resolving a dispute is the EPA case in which there was literally no live dispute. Like, it was the reductio ad absurdum of this precise thing. And if you can talk us through why is this the case. They essentially took a case that doesn’t even meet the basic threshold for like a live controversy and injury that people were taught in constitutional law.
Jamal Greene: Yeah. No. That’s exactly right. And the EPA case is this case where the EPA, ultimately, at some point, it involved the Clean Power Plan which was enacted during the Obama administration and gave a bunch of power to the EPA to help set targets for carbon emissions. And Trump administration repeals this, and then the repeal of that is overturned by the D.C. Circuit. But the Biden administration said, “Actually, we’re not going to put it back in place. We’re just going to withdraw it. We’ll come up with a new rule.”
So there’s no rule, nothing. They’re not doing anything. And the court comes out and says 6-3, of course. The court says, well, maybe if you actually enacted something, you would do the wrong thing. And therefore, we’ve got to step in and say, “You can’t do that,” which is really the opposite of what the Marbury versus Madison tradition of what judges are about is there’s no controversy until there’s a controversy, unless you think your job is to just kind of step in and be the oracle for all of the American people. And that’s really problematic in a democracy.
Chris Hayes: There’s also something about the sort of valence of humility and activism that I think is also part of this, right? So this critique gets developed about judicial activism, right, that the Warren Court and liberal jurisprudence is insufficiently humbled before the democratic branches, that it’s judicial activism, the unelected judges. You hear this in right-wing critique all the time.
And I do feel like it flipped a bit, the valence of that critique as a source of frustration by liberals towards this conservative court, but also even from the courts liberal minority against their colleagues in several of these dissents, which basically say, “Hey, the mask is off about all these things you used to talk about, about activism and deference and humility.” You guys are just like going for it.
Jamal Greene: No. That’s exactly right. And I do think that there is a criticism and activism criticism that can be launched against certain decisions of the Warren Court, right? So I don’t think that’s an unfair criticism. But the conservative response to it, which was initially, “No, no, no, we need a methodology that enables us to be restrained.” And that’s where originalism and textualism came from.
And then once Republican appointed judges, started to gain more power and actually be in office, that stopped being about restraint and it started being about, “No, this is the one pure truth theory.” And even if it requires us to get rid of previously decided cases or cold generations of precedents, you’ve got to maintain that purity. Originalism came about as a response to wanting to say, “Look, we’re not really bound by these precedents of the Warren Court, and now it’s going to full bore. We don’t do any judicial restraint here. We just honor the Constitution in its purest form.”
And the strongest version of that is Neil Gorsuch is very much in that vein, Clarence Thomas is very much in that vein, and Justice Barrett and Justice Kavanaugh, I think, to slightly lesser degrees.
Chris Hayes: We’ll be right back after we take this quick break.
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Chris Hayes: Maybe this is a good point to talk about what originalism and textualism mean. And you’ve written about your admiration for Scalia in some ways, and in terms of his success as a kind of ideological entrepreneur in fashioning the originalism as a kind of default method and thing to be debated with even by people who are not at its adherence.
Jamal Greene: Yeah. So I wrote a piece in The Times right after Justice Scalia’s death in 2016. It was titled, “Liberal Love for Justice Scalia,” which is a little stronger than I would have put it myself. As you know, writers don’t write their headlines, right? But it was admiring of Justice Scalia’s ability to communicate with ordinary people about what he was doing, right.
So the liberals have been kind of bemoaning for a long time that, “Oh, Justice Scalia, when he talks about originalism, he’s so charismatic. He’s so witty. He’s so funny. People listen to him. It seems so basic, so straightforward.” We think we’re right, but we’re having trouble articulating it. I think it was Dahlia Lithwick who said, “Justice Scalia can throw off a quip, but Justice Breyer needs an hour on Charlie Rose to explain this methodology.” And there is something to that, right? We’re writing law review articles and saying we’re right.
And Justice Scalia can, in one sentence or one paragraph, offer what seems to be an attractive method, the attractive method being, “Look, when you have a document and you’re trying to figure out what it means, you look at what the people who wrote it, intended it to mean, or you look at what the people who adopted it, thought it meant at that time.” That’s how we think about contracts, right? That’s how we think about a will, if I will draft a will.
The problem is this is not a very good fit for constitutional law because we’re a self-governing people, right? I didn’t write a contract in the 18th century to be bound to, and neither did you, and neither do any of us. It’s a document that has to govern a pluralistic society which the society of the 18th century wasn’t a pluralistic society, over time that governs itself, right?
That’s the challenge. And that challenge has spectacularly failed by originalism. It’s a challenge for any methodology to figure out how do you govern yourself over time. How does the people govern itself over time? But originalism doubles down on the problem of these people actually don’t represent us in any meaningful way.
Chris Hayes: Say more about that. I hadn’t thought of it, conceived that there’s central problem that constitutional law is trying to solve as how the people governs itself over time.
Jamal Greene: Yeah. I think there is this idea. I talk to my students about this sometimes. You can think of the Constitution as like a puzzle that you have to solve. And the original drafters sort of created the puzzle, and our job is to figure out how to fit the puzzle together, looking for the right skeleton key and figure out the puzzle. Or you can think of the Constitution as a framework for governance, right? Something that we actually today need to make useful to us in some way.
We actually have to take some ownership over it. We have to have some agency, or we’re not a democracy, right? If you say a bunch of people who are not a majority, by the way, a bunch of white men are going to get together and craft a document, tell us what all the rules are. The only way you can amend this document is if you’re basically unanimous, but we’re not unanimous. We’re just a minority of the population.
And then you wind that up, and that just goes and you actually can’t change the document because they’ve put in place rules that say you can’t change the document. That’s not a democracy, right? So what do you do with that? You either say we don’t live in a democracy, whatever, we just live by the 18th century old rules, which I don’t see how that’s any different from a monarchy or something else. Or you say, “Well, maybe there’s a way of thinking about this document that actually does give us an agency in the present, that actually does help us to understand not just how to make laws, but also how to constrain those laws, right, that there’s actually the Constitution grows with us as a people.
It is susceptible to that interpretation. Our constitution is not especially specific on the things we care about. It’s quite broad. And the framers from Jefferson to Madison to Hamilton over and over again, say, “This is going to evolve over time.” It’s the only way to think about it. But you’ve got a revolution in the judiciary right now, of people who are trying to persuade us that outcomes that are often profoundly undemocratic are required by this undemocratic way of understanding our Constitution.
And you can say if you tell me that’s the only way to understand the Constitution, then I’m going to tell you, this isn’t a constitution I can respect, right? I don’t think that’s the only way to understand the Constitution. But that’s got to be the terms for anyone who believes in self-government is that, to the degree it’s capable of revolution, we’ve got to lean into that evolution.
Chris Hayes: Right. I mean, again, to get back to this idea of judging, right, we’re trying to strike a balance between two imperatives that are in tension, right, which is self-governance. We want to be able to make decisions for ourselves. But we need some sort of thing that orders the means by which we do that over time. Otherwise, we’re just starting from scratch all the time. And those two things are in tension.
Jamal Greene: Absolutely.
Chris Hayes: Right? I want to change because we want to respond to things. But we also don’t want to just be like, well, every year when the ball drops, we’re going to come up with a new method of governing us together as a U.S. Like, clearly, we’re not going to do that either. And those two things are just going to be in tension that we’re going to have to resolve in dynamic, difficult ways. And that speaks a little bit, I think, to the difficulty of like articulating what’s on the other side of constitutional methodology from originalism because it does come back to this kind of like, to me, Stevens’ inflected pragmatism about how you synthesize and resolve inherent tensions between competing interests that both have good cases.
Jamal Greene: Well, one thing to recognize about this problem, which again is the problem of all constitutionalism.
Chris Hayes: Right. Not just us.
Jamal Greene: Not just the U.S., right? But the way to think about this problem is, look, we’ve had this problem for a long time. We haven’t had originalism forever. We’re not writing on a clean slate. We’ve got lots of judicial decisions. How did they make those decisions? How do we live with them? How did we get along over time? Well, sometimes we didn’t, right? But when we did, it’s incremental, right?
Judiciary usually doesn’t get too far out ahead of, or behind the polity, or it gets punished when it does. And it makes decisions incrementally. It abides by its previous decisions. So when lawyers talk about stare decisis, which is another way of talking about precedent and the importance of precedent, right? That’s a key part of self-governance, right? It’s not just some blearily technicality, right?
The way we’ve worked out abortion rights is in these fits and starts over this very complex, very controversial issue, over 50 years. And we’ve gone back and forth, and legislation is passed and it survives or it doesn’t survive. Judges are picked through a political process and they exercise their judgment and move the law one way or the other. Constitutional law is the lowest shifty that way, but it’s shifty because it’s responding to us because we’re shifty, because we all disagree with each other about these things.
Chris Hayes: Right.
Jamal Greene: But when one side of a long spectrum steps in and says, “No, actually, I’ve resolved it for you. I have decided no one has any abortion rights, period, end of story.” That is a response to the problem of constitutionalism that denies the problem, right? It just says, “No, we’re just going to ignore the problem. We’re just going to pay.” That’s what it was back then, and so that’s what it is now, no matter what happened since. And again, that’s a problem for self-governance which happens in lots of ways, not just people passing laws, but the judicial process is part of that process of self-governance.
Chris Hayes: Yeah. And you get these reductio ad absurdum moments to me, at least, where Alito is citing some 18th century British legal scholar, people that might quickly point out it was like also calling women witches. And it’s like, well, sure, yeah, that makes sense.
Jamal Greene: Not surprising.
Chris Hayes: Yeah, not surprising because the two things just don’t line up. But you guys have sort of concocted this methodology. There’s also the fact that there’s like a methodological irony here, which is that originalism itself is sort of constructed in the 1980s. So there’s sort of a historicism to it, the sort of fetishization of the final word of this particular moment, itself is a fairly recent fashioning.
Jamal Greene: Yeah. That’s the single strongest thing any judge has ever written against originalism was written by John Marshall in 1819, in McCulloch versus Maryland, a case about whether Congress had the power to create a national bank. And he says, “Look, the Constitution is not a code. It has to adapt to the various crises of human affairs, right. It has to evolve over time.” And he’s trying to say, “Look, don’t go back to the founding and tell me about whether you could craft a bank. Let’s look at our actual human experience with the things that the bank is trying to respond to, to decide whether this is something Congress gets to do.” That’s what we generally do in constitutional law. That’s what countries around the world that also have constitutions generally do with constitutional law. You don’t just wipe out all of your lived experience. And in the case of abortion rights, our experience with having rights for women is part of that lived experience, right? The first time the Supreme Court ever struck down a law for violating the equality rights of women was two years before Roe versus Wade.
This is not an era when there was a lot of women’s rights going on. So just to say that the law was just frozen, all of our rights were frozen at a time before women had rights is again an affront to self-governance. It’s offensive. It denies the pluralism that didn’t exist before our recent history. So it’s just problematic along any number of dimensions. And as you say, nothing about this as required, or it’s not conservative. It’s reactionary in the sense that it’s rejecting our traditions in order to go back to a kind of fantasy of several generations before.
Chris Hayes: Also, to me, the other thing that gets me as someone who’s very, very interested in reconstruction and very invested in that period of history and learning about it, and you have written about this yourself in some scholarly realms, is that when people talk about the founding fathers, there’s really two founding moments of American constitutional democracy.
And the second founding, which happens after the Civil War and the 13th, 14th and 15th amendments creates a nuance for something like the nation in a way that like the founders, who we never talked about as founders, literally no American school child can tell you who wrote the 14th Amendment, even though it’s the key texts that produces modern multiracial democracy. And those founders knew very well they were engaged in a fairly radical project of producing multiracial democracy. And it seems like somehow the Conservatives don’t have the same fetishization of them, or like that founding era, as they do have the original one.
Jamal Greene: Well, I’ll tell you the deepest irony about this, which is that the principal drafter of the 14th Amendment, John Bingham, he grew up in Ohio. He grew up in a town called Cadiz, Ohio. And if you go to Cadiz, Ohio, there’s a statue of John Bingham outside the courthouse there.
And Cadiz also happens to be the hometown of Clark Gable, and the Historical Society there told me when I talked to them, that everyone thinks that the statue is a statue of Clark Gable, that Clark Gable was memorialized there, which is really ironic given that Bingham’s 14th Amendment is kind of thrown on the trash heap by Redeemers, who are trying to reclaim the South for white Southerners. And that then leads into Jim Crow and 100 years of repudiation of the 14th Amendment. And Clark Gable’s most iconic role is as Rhett Butler in “Gone with the Wind.” And “Gone with the Wind” is like the classic Redeemer narrative.
Chris Hayes: That’s incredible.
Jamal Greene: So it’s really ironic. But you’re right, we don’t know who those heroes are. We don’t valorize them. We don’t recognize even basic things like the fact that most of the things we argue about, including gun rights in states, including abortion rights in states, including affirmative action in state and local government.
We’re interpreting the 14th Amendment. We’re not directly interpreting our Bill of Rights, and that’s really broad language that is subject to different interpretations by different populations over time. So this idea that there’s a bunch of specifically written down rights in the Constitution, and that’s what we’ve got to adhere to. No one is arguing about any of that, right? That’s not what this is about. It’s a way of deflecting from the text that actually matters to these controversies, to some other texts that actually, even in a formal sense, doesn’t matter to these controversies.
Chris Hayes: Yeah. Say more about that because I think most people don’t know this, right. So quick history on the 14th Amendment, when it’s created and when it’s ratified, and what it does?
Jamal Greene: Yeah. The 14th Amendment is ratified in 1868 right after the Civil War. It was put in place in order to produce a kind of civil equality for recently emancipated slave population. But it’s written quite broadly and the first section to the 14th Amendment, which is the one that people pay the most attention to, talks about the privileges or immunities of citizens of the United States. It talks about the right of due process. It talks about the right of equal protection. It talks about the right of citizenship and says everyone born or naturalized in the United States is a citizen. So these are really kind of soaring moral principles that the framers of the 14th Amendment were trying to put in place.
And the other thing the 14th Amendment accomplishes is it applies the Bill of Rights to states. So when we’re thinking about how the Bill of Rights and how the rights protected by the Bill of Rights apply to state governments, and not just to the federal government, we’re actually looking to the text of the 14th Amendment, not looking directly at the Bill of Rights. So —
Chris Hayes: Yeah. I’d just pause there because I think just so people may know this, right. So when you think about the Bill of Rights, it says Congress shall make no law infringing on X right? So that’s Congress, right? So until the 14th Amendment, my understanding is I don’t know, could like the state of Alabama, I mean, it depends on the Alabama State Constitution, but say, like, we have a state religion in Alabama. It’s Christianity, or it’s Episcopalianism, whatever. That was incorporated in the First Amendment.
Jamal Greene: Well, a bunch of states did have state religions prior to the Civil War, right? Massachusetts and Connecticut did until well into the 19th century. And that wouldn’t have been viewed as violating the First Amendment because the First Amendment applied to the federal government and not to states. And that doesn’t change.
Really, it doesn’t change until well into the 20th century, when scholars of the 14th Amendment, which had been largely ignored, at least in this in this way, go back and recognize the 14th Amendment as applying the Bill of Rights to the state. So it actually doesn’t happen until fairly recent history. Again, all the controversies, affirmative action, and abortion and even gun control, at least, as applied to state governments, controversies over birth control or over same sex marriage. These are all 14th Amendment-related controversies.
So they have nothing to do with Madison, nothing to do with the Federalist Papers, nothing to do with the Philadelphia Constitutional Convention, or Hamilton, or Jefferson, or Washington, or any of those people. They have to do with the Reconstruction Republicans, who were a pretty radical bunch for their time, but who are not memorialized in nearly the same way within our kind of public reverence for the Constitution.
Chris Hayes: Yeah. This is a thing that also drives me nuts. And just to be clear for folks, like the question presented in Dobbs, right, basically, can Mississippi pass this law? And does the federal constitution guarantee essentially a right for women to have reproductive agency to terminate a pregnancy? And the question of that right being guaranteed is a question of what rights the 14th Amendment guarantees, right, that would bar a state from infringing on them.
But it’s squarely the 14th Amendment, like that is the textual part of the Constitution. That whole debate Roe, the jurisprudence before and after it, Dobbs, all flows through a question about that amendment,
Jamal Greene: And I’ll go further than that and say that amendment is framed in highly abstract terms, right? So if I tell you the Constitution requires equality, right, if I put that into a constitution, I probably don’t mean the Constitution requires you to do everything that I currently think is equal. It’s a moral principle. It’s one that especially in Constitution —
Chris Hayes: Right.
Jamal Greene: — which is for self-governing people, you have to work that out over time. It requires judgment. It requires some reference to changing standards. So at that time the 14th Amendment was also written just by white men, women couldn’t vote, African Americans couldn’t vote in most U.S. states at that time, right? So this is also a kind of retrograde sense of representation, but it’s written in a broad way.
So if you’ve got a choice, do I read this broad thing in a broad way, the one that makes reference to how we understand rights today, or do I read it in a way that’s simply bound to the minority group that decided to put it in place in the 19th century? There’s lots of good reasons to say democracy requires that we make some reference to who we are today. That doesn’t mean you just give carte blanche to legislatures to do whatever they want. But that does mean that the values that we’ve read, as being the values of the Constitution, have to be in some dialogue with who the American people have been since 1868.
Chris Hayes: And the other thing about the 14th Amendment that I keep coming back to you, because when you talk about this profound question about how the people govern itself over time, when people itself changes the definition of what it is, their aspirations, their collective vision of their own collective identity, their moral considerations of equality, how do we do that, right?
Originalists will say, “Well, look, hey, guys, we got an amendment process and there’s been a bunch of amendments. You want the ladies to vote, go out there.” And they did it with the 19th. And the thing that I always come back to is the part of the Constitution that makes multiracial democracy in the modern sense really viable is the 14th Amendment. And it didn’t happen through like the formal amendment process. It happened on the graves of 600,000 people with a gun pointed to the heads of the defeated Confederacy and told “Ratify these amendments or you’re not getting back in the union.” And that’s the only reason we have it. It didn’t happen through like normal politics.
Jamal Greene: Yeah. No. And of course, it didn’t happen through normal politics —
Chris Hayes: Right.
Jamal Greene: — as half the country just tried to kill the other half in order to just secede from the Union over white supremacy, right? That’s what they’re trying to defend. They’re not just going to sign up on the dotted line without some coercion.
Chris Hayes: Right.
Jamal Greene: That’s how you protect the rights of vulnerable people. Sometimes I think about the Equal Rights Amendment along these lines. So when someone says, “Amend the Constitution,” the Equal Rights Amendment is passed with basically 90% majorities in both houses of Congress. It’s approved by President Nixon, so not some kind of progressive, and gets ratified by 35 states, representing more than 80% of the U.S. population, right?
So there is no way of describing the Equal Rights Amendment as having not been popularly ratified by the American people. It was overwhelmingly ratified. And in fact, more ratified than perhaps any actually consequential amendment has ever been ratified because people could actually vote and participate in meaningful ways.
Chris Hayes: Right.
Jamal Greene: So if you tell me, “No, that’s not in the Constitution, that that’s not something we should really pay any attention to,” but we should pay a lot of attention to the Second Amendment, let’s say, which is put into the Constitution solely by white men in the 18th century when people were using muskets, and there’s no serious standing army, and there’s no police forces, and so forth. I don’t know what to make of that. I don’t know what to do with that.
And I’m not saying that, therefore, it means the Equal Rights Amendment is the Constitution and the Second Amendment isn’t. But we have some options for how we think about constitutional interpretation. And some of those options are consistent with the fact that we are a different people now than we were in the 18th century, and some are not. And the idea that this comes down in some way to the popular sovereignty of Americans in the 18th century, that’s just bogus.
Chris Hayes: Yeah, it’s a crazy notion. It’s almost self-evidently ludicrous. I mean, obviously, I’m biased. But it’s just like the feeling that I have at the end of this term is a sort of claustrophobia feeling, right? Because it’s like the claustrophobia of the methodological adherence of the majority, which is like, “Well, sorry, let’s see, trans rights? Let’s go. Now, what do we got in 1788 on trans rights? I’m sorry, not a lot.” Like, okay, well, we know what else we’re talking to, right?
Like, you created this methodology that’s going to be, by design, like completely unresponsive to the dynamic and changing nature of our popular understanding of rights and equality, and all these things, A. And then, B, the 6-3 majority with lifetime tenure, I feel like I’m in a room with the walls closing in. And I’m not someone whose body is on the line. I mean, politically, I’m not someone who just had their literal reproductive autonomy taken away.
Jamal Greene: Well, you’re interested in the bad faith question. We’ll really see next term when the court takes up affirmative action, where originalism goes with that issue because the people who drafted the 14th Amendment, that generation engaged in race-based affirmative action themselves. They would have thought it completely bonkers to say that a state can’t engage in trying to help out marginalized minority groups. They wouldn’t even know what to make or how to make sense of it as something that a state was attempting to do.
So we will see if originalism disappears, the conservative majority tends to talk about the Constitution as, quote, “colorblind.” But that’s not a that’s not an originalist notion. The 14th Amendment doesn’t even mentioned race. So at least Subsection 1 doesn’t mention race. So it’s not a textualist view. It’s not an originalist view. It’s a modern conservative view. They’re entitled to that view, if that’s the view they have. But to associate it with some formal understanding of the constitution will appear to be bad faith and we’ll see what happens.
Chris Hayes: We’ll be right back after we take this quick break.
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Chris Hayes: How do you think about the way out of this? I mean, you’re someone who has devoted your life to the law and the Constitution. Specifically, you’re a constitutional scholar and theorist. You clerked on the court. I feel like people in your line of work and Kate, similarly, I mean, it’s like you can’t think it’s all just will to power, with post hoc justification, the way that I’m sometimes tempted to, right? Because then what are you doing? But like, how do you think about the state of constitutional law and the way out of this current situation we’re in with this court?
Jamal Greene: Well, I don’t know that I’m especially optimistic that there is a way out from this court. I think that a number of decisions that they’re making, Dobbs, the abortion case being right at the front of the line, are going to have devastating tragic consequences for millions of people in America. And I think there will be a reaction to that, I don’t know what their reaction will look like or what it can achieve. But I don’t think they’ll get a free pass with the things that they’re doing, at least in the medium term, maybe in the short term, but maybe not the medium term.
As I think more deeply, can someone who teaches constitutional law really think it’s just power or something like that? I do think that most judges, most lawyers are socialized to a certain understanding of their role. I don’t think originalism is the dominant methodology among lawyers and judges in America. I think that it is the dominant methodology among the ones who have power at the moment.
And I look at someone like Sandra Day O’Connor, she made lots of decisions that I completely disagreed with. And she was part of a political party that I’m not a member of, right. But her understanding of her role was, “I’ve got to be in some conversation with the world around me. And my role is different than a legislature. It’s different than political actors. I have to make reference to the cases of the court. I’ve got to make reference to judicial doctrine and legal doctrine. I’m not just a politician, but the way in which I do that has to be somewhat incremental. It has to show that the various important commitments on either side of these issues are commitments that matter, that count, that I care about in some way, that I’m grappling with in some way.”
And as long as the court does something like that, it doesn’t attract so much attention that people get interested at the end of June every year. And it kind of allows politics to play out, which is how you live in a pluralistic society. The way the current majority is acting is a kind of my way or the highway approach that says, “There’s actually nothing that you can do that I will listen to, or have any reason to listen to because I’m taking my directions from the 19th century, or at least my conception of the 19th century, and not from the American people.”
Chris Hayes: Yeah. And I think there’s this other question, you just touched on it, that to me is what I’ve really been wrestling with, this is a very sort of abstract question so I’ll try to articulate it, which is, what is the law and why is the law binding on people in a society that we say adheres to the rule of law?
And I’ve been thinking about it a lot with like the testimony of like Rusty Bowers, the Speaker of the House in Arizona State House, who gave his testimony for the January 6th committee where he’s basically presented with a ludicrous but like perhaps facially defensible, legal argument to essentially overturn democracy in the state of Arizona. And he doesn’t do it because it’s wrong. And at some level, he is socialized enough. Like, he talks about his faith very clearly. He’s a Mormon. And he’s practicing and believing in pious man by all accounts, and he says it would be breaking faith with his God and his belief structure to do this.
But in in broader, when you take Rusty Bowers and you look around, you say, “Why didn’t the coup happen, right?” The people who were fomenting the coup were often making legal arguments that were preposterous, but recognizably phrased as legal arguments, particularly in the case of John Eastman, who had clerked for Clarence Thomas, and had some kind of legitimacy, right, as a speaker of law, or an arguer in law.
And ultimately, what happens is the sociology is what holds. Like, the people making decisions believe enough in the basic precepts of American democracy to say, “This is ludicrous, and we’re not going to do it,” but only because those 18 people adhered to it. And when I look at the court, I think, like, what happens if that goes away? That’s what the law is. It’s the socialized practices of the people who have law degrees and have power, and what they think is and isn’t beyond the pale.
Jamal Greene: Yes, I think anyone who teaches constitutional law, the moment when students recognize what the House of Cards looks like, upon which this is all built, there’s so many just legal norms and norms of political behavior that we adhere to because there’s kind of a tacit agreement that if we don’t adhere to them, the country will fall apart. That I think that was kind of Trump’s superpower in some ways, is to not care about those things at all. And if enough people want political power, then they’ll get behind that.
And also think that you don’t care about the legal norm and it’s enough to make a kind of preposterous formality. You’re seeing this really with the so-called “independent state legislature doctrine.” This is a thing that’s going to show up next year at the Supreme Court, where the claim is that legislatures, when they construct congressional districts, are not bound by judicial interpretations of their state constitutions and/or maybe not bound by the governor when the governor chooses to veto the statute.
So whoever controls the legislature can just do whatever they want when it comes to districting, no matter what the state constitution says, no matter what the federal constitution says, because the federal constitution has been read to say very little about this by the Supreme Court. So we’re not that far away, potentially, from seeing incredibly rogue state legislatures, constructing districts, whoever they want, maybe selecting electors, presidential electors, however they want, with really no state or federal constraints.
And the kind of constraint that prevents a state legislature from going rogue and ignoring the will of its population, that’s a norm. It’s a strong deeply felt political norm and legal norm, right, in the sense that they should be bound by the law. But if I’m given the power to decide, then anything I decide is right. That’s the kind of ignoring norms view that leads to political disintegration. And that’s something we really should genuinely be worried about.
Chris Hayes: Yeah. This political disintegration has been front of mind for me because, again, to go back to American history, so you’re starting to see these states, there’s this, I think, incredibly disingenuous argument that opponents of Roe would make and said, “This has really raised the temperature on this issue because it’s been taken out of the state legislatures and taken away from the people, and put in the courts. And if you put it back into the democratic arenas and states, then we can have the laboratories of democracy sort of sort out their different conceptions. And the people of Alabama will want different things. The people of Massachusetts without the big boot of the federal government telling them blah, blah, blah.
And what we’re seeing now instead is you’re going to start to see movements to try to prosecute who cross state lines, to criminalize movement crossing lines. You’re going to have a question about drugs the FDA say are safe and effective, that’s purchased by Americans, and whether they can be shipped across state lines. And all of a sudden, you start to get this, like, real specter of like disunion in a deep sense.
And again, I’m not going to compare it like the Fugitive Slave Act and this prior vision of disunion which is a completely separate set of issues that have no analog in modern life, I don’t think. But like, I don’t think it’s good for the country if we start having fights about this stuff. Like, are you going to go prosecute the woman who cross state lines for this abortion? Are you going to bar federally approved drugs? Like, that starts to feel like a kind of unraveling to me.
Jamal Greene: Yeah. The analogy to the Fugitive Slave Act, I think one has to be careful because you don’t want to look like comparing someone who opposes abortion rights to someone who’s in favor of slavery, or something like that. And I wouldn’t make that comparison.
But the way in which they are the same and the lesson of the antebellum period is that when you have these questions of great moral urgency, about which Americans are deeply divided, that you can’t have these sort of state by state absolutist solutions, because that is the road to disunion. People view this in existential terms, right, like whether you can decide, whether you have the power to decide whether to become a parent or not is the most important decision people make in their lives, right? So people will view these questions in existential terms.
And people on the other side, right, who believe that human life is at stake, and people are murdering potential babies, also see this in existential terms. And there’s no way around, we’ve got to come to a place where we are essentially negotiating about this. As a country, as a nation, the court came to that through Roe versus Wade and the subsequent decision, the case called Planned Parenthood versus Casey in the 1990s. The court has come to that, it’s what the courts have been kind of trying to do is basically negotiate over it.
There are better ways I think of negotiating over it and handing it necessarily to courts in every instance. I think I actually am someone who thinks that national legislation, if it was genuinely bipartisan and actually involved genuine negotiation, and wasn’t just rammed through by someone, is actually a good idea on this kind of issue.
Chris Hayes: Yeah.
Jamal Greene: But we don’t get there by just saying, carte blanche, just as any other important right to people, we don’t just say because laboratories of democracy, et cetera, et cetera, “If someone wants to segregate their schools, go ahead, different strokes for different folks.” We don’t say that with rights that we think are really important and for good reason.
Chris Hayes: I want to close on this and I wonder if you’ll bristle at this thought experiment, but I’ll try anyway. There’s a guy that most Americans don’t know whose name is Leonard Leo. He is probably one of the most powerful private citizens of America, even though no one knows who he is. And he is a kind of key sort of convener at the Federalist Society, who was put in charge by the Trump administration of essentially kind of creating the pipeline for their judicial nominees, particularly the Supreme Court nominees, and producing a kind of pipeline that would get people onto the court that he and I think co-believers in his ideological vision could trust, okay, to interpret the Constitution and to judge in the way that they felt was the right way, which is the kind of originalist way that we’ve been describing.
If you had that role and I don’t mean this in a political or ideological sense, but if like Jamal Greene was the person who was going to kind of oversee the pipeline of the next generation of judges and justices who are going to be tasked with the very fraught and difficult work of interpreting the Constitution in a growing and multiracial society, pluralistic society, like, what would you look for? What would be the intellectual habits or the types of thought or character traits that you would want?
Jamal Greene: So I would look for the usual obvious things like intelligence and good judgment. But I think the piece of this that I’ll add, maybe the character trait that may be less obvious is empathy, which is something that President Obama got in trouble with since he said that he was looking for empathetic judges, and people thought he meant he was looking for lawless judges who don’t care about the law. Obviously, that’s not what I mean. That’s not what he meant either.
By empathy, the ability to see arguments from someone else’s perspective, the ability to stand in the shoes of another, I think that’s really important for giving justice to people, right, so the people who appear before you, to understand the position that they’re in. But I think it’s also really important to understand the position of your adversary and understand it from their perspective, because I don’t think that in the long term, one can have a good Supreme Court, or one that has any legitimacy unless everyone us talking the same language.
You reach positions by getting that fifth or sixth or seventh vote, not by being a heroic dissenter. So I think you need sort of both sides of empathy. I want someone who shares my ideological predisposition, because I think these are political appointees and they should be in contact with politics, broadly speaking. But I want them to understand the other perspective as well because I want them to be able to speak to, to listen to, to hear from, to be heard by those other people as well, because I think I don’t see this as something that is sustainable as perpetual war.
Chris Hayes: Yeah. I mean, as a sort of final note here, I mean, the thing I think about a lot, and I’ve tried to explain this to, or tried to talk about this with people who share my views on abortion rights and liberals is from the sort of anti-abortion perspective, right, their experience was a kind of constant bait and switch portrayal, particularly in three Republican nominees, in Sandra Day O’Connor, Justice David Souter, and Anthony Kennedy, all of whom would fine for abortion rights during their career, particularly on the question of Roe, right?
And I say to people all the time, sort of my horror was like on the other side of Dobbs, like imagine how much you would lose your mind if, like, an Obama appointee had been like, “Yeah, yeah, we should reverse Roe.” And like, there were a lot of people that felt that way after Casey, and there were a lot of people who felt that way through the years on some other issues as well, I think particularly with Souter.
What my understanding of what happened and the reason I raised Leonard Leo is they then thought the way to correct for that was basically to cultivate a methodology instead of character traits that would insulate people from the kind of contact with the given take that you’re talking about, that, to me, is necessary for good judging because they were so scared they would be betrayed again. And so, they created this sort of pipeline of cultivation, and this sort of ideological hothouse precisely to ensure against that happening again, and they were successful. But in so doing, it produced a method of, quote unquote, “judging” that is, in some fundamental sense, zealous and inimical to the pragmatism of real judging.
Jamal Greene: Yeah, that was the strategy. And I think maybe it’s my naiveness, naivete, I don’t know if I’d say optimism because I’m not that optimistic. But maybe it’s a bit naive to say we’ve got to claw that back in the way forward, if not to emulate that. Part of my worry and this gets into like the debates over court packing and so forth. The left should play hardball in the same way that the right does.
I’m very wary of kind of doubling down on the notion that the way we solve our political and social problems is to hand them to a court that is most sympathetic to our views. I think that’s just not a sustainable way of mode of self-governance. I think we need to reduce the power of the court in any number of ways. And that’s where I would focus, and that’s part of where I say empathy is. I want a court that’s going to leave more things to politics, not take politics over.
Chris Hayes: Jamal Greene is the Dwight Professor of Law at Columbia Law School. He’s author of “How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart,” a book that sort of makes that lengthy in some ways, the argument that he just said there at the end of the podcast. He’s also co-chair of the Oversight Board, an independent body that reviews content moderation decisions on Facebook and Instagram. He’s a really brilliant and special thinker and scholar, and it was a great pleasure to have you on, Jamal. Thank you.
Jamal Greene: Great to be here.
Chris Hayes: Once again, great, great thanks to Professor Jamal Greene. That was really clarifying. I’d love to hear your thoughts on this. I know people have lots of them on the Supreme Court right now. Tweet us with the hashtag #WITHpod, email WITHpod@gmail.com. And be sure to follow us on TikTok by searching for WITHpod.
“Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway and Brendan O’Melia, engineered by Bob Mallory, and features music by Eddie Cooper. If you are a very observant WITHpod listener, you know there’s a certain name that I didn’t just say there, the one and only Tiffany Champion who has departed sadly and unfortunately, which is breaking my heart. She will forever be part of the WITHpod family, but she is moving on to some other things. You can see more of our work, including links to things we mentioned here, by going to nbcnews.com/whyisthishappening.
Tweet us with the hashtag #WITHpod, email WITHpod@gmail.com. Follow us on TikTok by searching for WITHpod. “Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway and Brendan O’Melia, engineered by Bob Mallory and features music by Eddie Cooper. You can see more of our work, including links to things we mentioned here, by going to nbcnews.com/whyisthishappening.