1 00:00:01,160 --> 00:00:04,519 Speaker 1: Welcome to The Laverne Cox Show, a production of Shondaland 2 00:00:04,600 --> 00:00:07,240 Speaker 1: Audio in partnership with iHeartRadio. 3 00:00:10,640 --> 00:00:15,720 Speaker 2: It's not that the Conservatives are winning, it's that they've won, 4 00:00:16,640 --> 00:00:20,680 Speaker 2: and now it's time for the new forces to get 5 00:00:20,720 --> 00:00:23,600 Speaker 2: back into the game. Right. We're not in an empire 6 00:00:23,640 --> 00:00:27,080 Speaker 2: strikes back situation. We're in an end of revenge of 7 00:00:27,080 --> 00:00:30,800 Speaker 2: the sifth situation where the young things have been slaughtered, 8 00:00:31,000 --> 00:00:33,400 Speaker 2: the empire is on top, and right now we need 9 00:00:33,440 --> 00:00:34,000 Speaker 2: a new hope. 10 00:00:34,080 --> 00:00:34,280 Speaker 3: Right. 11 00:00:46,640 --> 00:00:50,000 Speaker 1: Hello, everyone, and welcome to The Laverne Cox Show. I'm 12 00:00:50,080 --> 00:00:56,960 Speaker 1: Laverne Cox. Growing up in Mobile, Alabama with a mother 13 00:00:57,560 --> 00:01:01,200 Speaker 1: who grew up in the segregated South, the context of 14 00:01:01,320 --> 00:01:07,440 Speaker 1: racial apartheid. I was very aware abround versusport of Education, 15 00:01:08,000 --> 00:01:13,760 Speaker 1: this Supreme Court decision that desegregated schools, and so I 16 00:01:13,800 --> 00:01:17,600 Speaker 1: grew up with this thought of the Supreme Court as 17 00:01:17,880 --> 00:01:22,680 Speaker 1: this place, this space that could be potentially liberatory for 18 00:01:22,840 --> 00:01:27,479 Speaker 1: my people. And as i've sort of grown up and 19 00:01:28,640 --> 00:01:33,560 Speaker 1: taken on advocacy work as an openly trans woman of color, 20 00:01:34,160 --> 00:01:38,440 Speaker 1: the law and the court continue to be spaces of 21 00:01:38,840 --> 00:01:45,200 Speaker 1: fascination for me, spaces the possibility and spaces of potential 22 00:01:45,400 --> 00:01:51,120 Speaker 1: oppression and the withholding of rights. And now more than ever, 23 00:01:51,520 --> 00:01:56,160 Speaker 1: Americans are waking up to how important what happens at 24 00:01:56,160 --> 00:02:00,000 Speaker 1: the Supreme Court is in how we live our life 25 00:02:00,080 --> 00:02:08,880 Speaker 1: lives day today. So I am so excited about speaking 26 00:02:09,520 --> 00:02:14,399 Speaker 1: to our guest today because I've watched him on television 27 00:02:14,639 --> 00:02:18,120 Speaker 1: four years and he's made me laugh, and he's made 28 00:02:18,160 --> 00:02:23,040 Speaker 1: me think differently about the law, about the Supreme Court, 29 00:02:23,280 --> 00:02:30,520 Speaker 1: and he just has the best afro ever. And I'm 30 00:02:30,560 --> 00:02:33,160 Speaker 1: just really excited to talk to him today about his 31 00:02:33,280 --> 00:02:37,680 Speaker 1: book and the state of the law and the Supreme Court. 32 00:02:38,200 --> 00:02:42,680 Speaker 1: His name is Ellie Mistaal. Ellie Mastaal is a columnist 33 00:02:42,760 --> 00:02:46,320 Speaker 1: and justice correspondent for The Nation magazine. He's the author 34 00:02:46,360 --> 00:02:49,240 Speaker 1: of the New York Times bestseller Allow Me to Retort, 35 00:02:49,520 --> 00:02:52,480 Speaker 1: A Black Guy's Guide to the Constitution. He has a 36 00:02:52,520 --> 00:02:56,440 Speaker 1: frequent guest on MSNBC and SiriusXM and a board member 37 00:02:56,480 --> 00:03:01,080 Speaker 1: of Demand Justice, a liberal judicial advocacy group. Here's a 38 00:03:01,120 --> 00:03:04,760 Speaker 1: graduate of Harvard College and Harvard Law School and the 39 00:03:04,800 --> 00:03:08,960 Speaker 1: former executive editor of the legal website Above the Law. 40 00:03:09,760 --> 00:03:24,200 Speaker 1: Please enjoy my conversation with Ellie Pastal. My conversation with 41 00:03:24,200 --> 00:03:27,720 Speaker 1: Ellie Mistal was recorded on February twenty seventh, twenty twenty three. 42 00:03:28,919 --> 00:03:32,000 Speaker 1: Hello Ellie Mistal, Welcome to the podcast. How are you 43 00:03:32,040 --> 00:03:32,880 Speaker 1: feeling today? 44 00:03:33,600 --> 00:03:34,520 Speaker 2: I am good? How are you? 45 00:03:35,000 --> 00:03:38,040 Speaker 1: I'm great. I'm so excited about this. So first of all, 46 00:03:38,040 --> 00:03:39,400 Speaker 1: I want to say that my brother and I are 47 00:03:39,440 --> 00:03:42,840 Speaker 1: obsessed with you whenever you are on television or on 48 00:03:42,880 --> 00:03:45,280 Speaker 1: a podcast or on anything, and we like share it 49 00:03:45,320 --> 00:03:48,160 Speaker 1: and discuss. So there's so much to talk about. I 50 00:03:48,200 --> 00:03:50,200 Speaker 1: want to talk about your book. Allow me to retort 51 00:03:50,200 --> 00:03:53,360 Speaker 1: a Black Guy's Guide to the Constitution, And what's so 52 00:03:53,640 --> 00:03:57,040 Speaker 1: deep about the book for me is and wonderful about 53 00:03:57,040 --> 00:03:59,920 Speaker 1: the book is taking a look at the founding fall 54 00:04:00,080 --> 00:04:06,560 Speaker 1: there's that you refer to as colonizers, enslavers, and rapist. 55 00:04:06,600 --> 00:04:09,320 Speaker 1: Thank you. The Constitution was not written with us in 56 00:04:09,400 --> 00:04:13,320 Speaker 1: mind as black people, and not with women as full 57 00:04:13,440 --> 00:04:16,640 Speaker 1: citizens in mind. And you often say white men, straight 58 00:04:16,680 --> 00:04:19,760 Speaker 1: white men. Arguably, I actually feel like it's about landowners too. 59 00:04:19,839 --> 00:04:22,200 Speaker 1: Do you feel like there's that piece too with straight 60 00:04:22,200 --> 00:04:25,000 Speaker 1: white male landowners? Who does straight white men? That's a 61 00:04:25,080 --> 00:04:27,000 Speaker 1: question in the I mean, god, this the book is 62 00:04:27,000 --> 00:04:29,040 Speaker 1: so dense, but I think the biggest piece is like 63 00:04:29,600 --> 00:04:33,080 Speaker 1: the biggest question. I think you said the kryptonite of 64 00:04:33,360 --> 00:04:36,640 Speaker 1: conservatives in relationship to the Constitution, it's the fourteenth Amendment 65 00:04:36,760 --> 00:04:41,120 Speaker 1: and loving be Virginia. And so how do you see 66 00:04:41,240 --> 00:04:44,280 Speaker 1: your vision of the Constitution now that you lay out 67 00:04:44,279 --> 00:04:46,600 Speaker 1: in the book in relationship with some of the more 68 00:04:46,600 --> 00:04:48,719 Speaker 1: pressing questions before the Supreme Court. 69 00:04:49,000 --> 00:04:50,440 Speaker 2: Yeah, lots of questions. I want to say if I 70 00:04:50,440 --> 00:04:53,480 Speaker 2: can can kind of eat an elephant in sections right. 71 00:04:53,680 --> 00:04:55,640 Speaker 2: First of all, I slightly disagree with your premise, right, 72 00:04:55,680 --> 00:04:59,239 Speaker 2: because I'm not saying that the Constitution was written without 73 00:04:59,279 --> 00:05:02,080 Speaker 2: us in mind. Oh they had us in mind. Indeed, right, 74 00:05:04,200 --> 00:05:07,680 Speaker 2: it was written to oppress and enslave us. The Constitutions, 75 00:05:07,920 --> 00:05:14,840 Speaker 2: as originally promulgated, was an enslaver's document design directly to 76 00:05:15,200 --> 00:05:20,320 Speaker 2: propagate the unfair, evil and unequal system of slavery and 77 00:05:20,320 --> 00:05:22,960 Speaker 2: oppression in the society. And you see it all throughout 78 00:05:23,000 --> 00:05:26,640 Speaker 2: the document. They don't mention the word slave, but you 79 00:05:26,720 --> 00:05:29,880 Speaker 2: see slavery all throughout the document, and you see the 80 00:05:30,000 --> 00:05:33,240 Speaker 2: upholding of slavery and white supremacy all throughout the document, 81 00:05:33,560 --> 00:05:36,280 Speaker 2: even in the parts that haven't been changed. Right, you 82 00:05:36,360 --> 00:05:41,520 Speaker 2: cannot explain the structure of the United States Senate, where 83 00:05:41,760 --> 00:05:45,599 Speaker 2: land gets more voting rights than people. You cannot explain 84 00:05:46,040 --> 00:05:49,000 Speaker 2: why they thought that was a good idea without slavery 85 00:05:49,200 --> 00:05:52,840 Speaker 2: and the need for minority slave states to be able 86 00:05:53,080 --> 00:05:57,680 Speaker 2: to continue with slavery over the objection potentially in the 87 00:05:57,720 --> 00:06:00,719 Speaker 2: future of a majoritarian of the the country. 88 00:06:00,880 --> 00:06:03,520 Speaker 1: The way you break down the Second Amendment is crucial 89 00:06:03,680 --> 00:06:04,239 Speaker 1: in that piece. 90 00:06:04,320 --> 00:06:07,480 Speaker 2: Yet, right, you can't explain the Second Amendment without their 91 00:06:07,880 --> 00:06:14,279 Speaker 2: need to have not just numerical superiority, but military superiority 92 00:06:14,680 --> 00:06:17,919 Speaker 2: over the slaves. Right, you can't explain the modern police 93 00:06:18,080 --> 00:06:22,360 Speaker 2: without understanding that they can literally be traced to slave 94 00:06:22,400 --> 00:06:26,799 Speaker 2: patrols and the need for white Southerners to recapture their property. 95 00:06:27,480 --> 00:06:29,680 Speaker 2: And that is how I will segue into kind of 96 00:06:29,680 --> 00:06:32,160 Speaker 2: the second party. Your question, do I make a huge 97 00:06:32,200 --> 00:06:37,760 Speaker 2: distinction between the white, male, bourgeois, wealthy leaders of the 98 00:06:37,800 --> 00:06:41,640 Speaker 2: American Revolution and authors of the Constitution voices their poor 99 00:06:41,680 --> 00:06:45,480 Speaker 2: white cousins, And no, I don't, not really, because while 100 00:06:45,600 --> 00:06:49,400 Speaker 2: I agree that being poor and white in America has 101 00:06:49,440 --> 00:06:52,400 Speaker 2: never been a great thing, it's always been a better 102 00:06:52,400 --> 00:06:55,600 Speaker 2: thing than being black. It's always been a better thing 103 00:06:55,640 --> 00:07:00,440 Speaker 2: than being a woman. Based on our constitutional. 104 00:07:00,520 --> 00:07:03,279 Speaker 1: But isn't that a way isn't that a part of 105 00:07:03,320 --> 00:07:06,200 Speaker 1: the divide and conquer structure though of the United States, 106 00:07:06,240 --> 00:07:10,240 Speaker 1: to pit poor white folks against particularly black people. I'm 107 00:07:10,240 --> 00:07:13,040 Speaker 1: white and poor, but at least I'm not black, right Like, 108 00:07:13,160 --> 00:07:15,840 Speaker 1: isn't that a divide and conqueror strategy around class? 109 00:07:16,160 --> 00:07:18,640 Speaker 2: Except by what it call it? Divide? Okay, it's a 110 00:07:18,720 --> 00:07:22,480 Speaker 2: unify and conquer right. Yes, I obviously agree that black 111 00:07:22,480 --> 00:07:25,560 Speaker 2: people have always been put up as the thing that 112 00:07:25,680 --> 00:07:29,480 Speaker 2: poor whites, poor mediocre whites, could look down on, and 113 00:07:29,560 --> 00:07:32,720 Speaker 2: that ability to look down on somebody else makes those poor, 114 00:07:32,760 --> 00:07:36,440 Speaker 2: mediocre whites feel better about their poverty and mediocrity. It's 115 00:07:36,480 --> 00:07:38,920 Speaker 2: easy to feel good about yourself if you're not a slave, 116 00:07:39,040 --> 00:07:42,640 Speaker 2: right And that's not even a uniquely American. The Romans 117 00:07:42,680 --> 00:07:45,320 Speaker 2: had this right like, where it was important to have 118 00:07:45,400 --> 00:07:50,000 Speaker 2: an underclass to make the impoverished middle class feel a 119 00:07:50,000 --> 00:07:52,560 Speaker 2: little bit better about themselves. So it's not exactly a 120 00:07:52,600 --> 00:07:56,160 Speaker 2: divide and conquer strategy. It is a let's remember we're 121 00:07:56,160 --> 00:07:59,320 Speaker 2: all white, and that's why it's okay if I have 122 00:07:59,560 --> 00:08:01,400 Speaker 2: all this and you have so little, because at least 123 00:08:01,400 --> 00:08:04,320 Speaker 2: you hate that. But as a legal practice, as well. 124 00:08:05,240 --> 00:08:08,040 Speaker 2: My dad has had a lie that I used to love. Right, 125 00:08:09,680 --> 00:08:15,200 Speaker 2: if you hate me because I'm stupid, that's okay. Maybe 126 00:08:15,200 --> 00:08:19,200 Speaker 2: one day I will get myself educated. If you hate 127 00:08:19,200 --> 00:08:21,840 Speaker 2: me because I'm poor, that's okay. Maybe one day I 128 00:08:21,880 --> 00:08:25,119 Speaker 2: will be rich. But if you hate me because I'm black, 129 00:08:25,200 --> 00:08:27,440 Speaker 2: you can go f yourself because all I got to 130 00:08:27,440 --> 00:08:32,000 Speaker 2: do is stay black and die. When you put together 131 00:08:32,080 --> 00:08:36,280 Speaker 2: a structure that values rich people more than poor people, 132 00:08:36,679 --> 00:08:40,560 Speaker 2: that is problematic on many levels. But there are things 133 00:08:40,600 --> 00:08:43,400 Speaker 2: poor people can do to become rich one day. 134 00:08:44,200 --> 00:08:48,800 Speaker 1: And theory one would argue in practice though, that economic 135 00:08:48,880 --> 00:08:52,280 Speaker 1: mobility is like harder and harder to achieve with the 136 00:08:52,360 --> 00:08:55,240 Speaker 1: existing system. We haven't had a raise in the minimum wage. 137 00:08:55,440 --> 00:08:59,120 Speaker 1: Corporate power, the decimation of unions wage does not keep 138 00:08:59,120 --> 00:09:01,840 Speaker 1: me up with product. There could be an argument in 139 00:09:01,880 --> 00:09:05,120 Speaker 1: today's da and age, if working class people of all 140 00:09:05,200 --> 00:09:09,679 Speaker 1: races could come together then and rise up against corporate 141 00:09:09,720 --> 00:09:14,480 Speaker 1: power and oligarchs, that social mobility could be more possible now, 142 00:09:14,800 --> 00:09:18,840 Speaker 1: and that race becomes a way to continue to buy 143 00:09:18,920 --> 00:09:22,120 Speaker 1: working class people certainly differently than it did. You know, 144 00:09:22,160 --> 00:09:25,120 Speaker 1: within a function during slavery and during Jim Crow, would 145 00:09:25,160 --> 00:09:27,760 Speaker 1: you disagree with that. 146 00:09:27,800 --> 00:09:31,600 Speaker 2: True that upward economic mobility has always been a bit 147 00:09:31,640 --> 00:09:34,040 Speaker 2: of a myth in this country. It's always been less 148 00:09:34,080 --> 00:09:36,760 Speaker 2: good than the people at the top will sell it to. 149 00:09:37,240 --> 00:09:41,520 Speaker 2: And so I agree that social mobility, upward economic mobility 150 00:09:41,679 --> 00:09:46,960 Speaker 2: is difficult in this country, and that that difficulty then 151 00:09:47,120 --> 00:09:51,679 Speaker 2: leads to a whole suite of problems. But the wealthiest 152 00:09:51,720 --> 00:09:54,880 Speaker 2: black man in this world can get stopped for driving 153 00:09:54,920 --> 00:10:00,840 Speaker 2: while black. You can't buy yourself into fair and equal 154 00:10:00,880 --> 00:10:04,520 Speaker 2: treatment from the police in this country, no matter how 155 00:10:05,400 --> 00:10:09,560 Speaker 2: well you do on the social upward mobility allowed by 156 00:10:09,600 --> 00:10:15,280 Speaker 2: this country. Every wealthy black person living in a predominantly 157 00:10:15,360 --> 00:10:20,040 Speaker 2: white neighborhood knows that, should know that, or God forbid, 158 00:10:20,120 --> 00:10:24,360 Speaker 2: will learn that at some point. So the idea that 159 00:10:25,080 --> 00:10:29,280 Speaker 2: the problems, if you will, with our social structure, our 160 00:10:29,320 --> 00:10:33,360 Speaker 2: constitutional structure, our legal structure, our economic structure can all 161 00:10:33,400 --> 00:10:37,920 Speaker 2: be distilled to class is just not true experience. 162 00:10:38,040 --> 00:10:40,480 Speaker 1: No, no, no, no, no. I would never reduce it to class. 163 00:10:40,520 --> 00:10:41,839 Speaker 1: It would mean to be intersectional. 164 00:10:41,920 --> 00:10:42,120 Speaker 2: Right. 165 00:10:42,440 --> 00:10:45,800 Speaker 1: I'm not a class reductionist and I'm not suggesting that. 166 00:10:45,840 --> 00:10:48,440 Speaker 2: And the other thing I would say here is not 167 00:10:48,559 --> 00:10:53,760 Speaker 2: only do we have white supremacist legal structures embedded into 168 00:10:53,800 --> 00:10:57,280 Speaker 2: our systems, both at the constitutional level and the statutory level. 169 00:10:57,679 --> 00:10:59,600 Speaker 2: That's only part of the coin, right, The other part 170 00:10:59,640 --> 00:11:03,880 Speaker 2: of the coin that we have patriarchal structures embedded into 171 00:11:03,920 --> 00:11:06,880 Speaker 2: those documents as well. Is it worse being black or 172 00:11:06,880 --> 00:11:10,320 Speaker 2: a woman in the society? Hard to say, frankly, if 173 00:11:10,360 --> 00:11:14,360 Speaker 2: you write, because the gender bias in our legal structures 174 00:11:14,880 --> 00:11:17,600 Speaker 2: is so strong that not only are we sitting here 175 00:11:17,600 --> 00:11:21,080 Speaker 2: talking after the Supreme Court, over the objection of the 176 00:11:21,120 --> 00:11:26,360 Speaker 2: American people, revoked the bodily autonomy of women. 177 00:11:26,320 --> 00:11:28,640 Speaker 1: And other people who can get pregnant who don't identify 178 00:11:28,679 --> 00:11:29,280 Speaker 1: as women. 179 00:11:29,240 --> 00:11:34,040 Speaker 2: As women and pregnant people, what we also see is 180 00:11:35,080 --> 00:11:43,320 Speaker 2: numerous laws, structures, norms that disadvantage women and people who 181 00:11:43,360 --> 00:11:47,760 Speaker 2: identify as such. Right as writing recently about this awful 182 00:11:47,840 --> 00:11:52,000 Speaker 2: case coming out of the Fifth Circuit called Rahimi, where 183 00:11:52,400 --> 00:11:54,280 Speaker 2: there's a statute that says that if you have been 184 00:11:54,640 --> 00:11:57,080 Speaker 2: if you have a restraining order taken out against you 185 00:11:57,720 --> 00:12:02,120 Speaker 2: for domestic violence, that you lose your gun lights. And 186 00:12:02,360 --> 00:12:06,720 Speaker 2: this Raheemi case revoked that law, called that law an 187 00:12:06,800 --> 00:12:13,640 Speaker 2: unconstitutional impingement on the Second Amendment, thereby straight up putting 188 00:12:13,800 --> 00:12:18,319 Speaker 2: guns back into the hands of domestic abusers. And anybody 189 00:12:18,360 --> 00:12:21,200 Speaker 2: who knows anything about this topic knows that most women 190 00:12:21,360 --> 00:12:24,520 Speaker 2: are killed by intimate partners with a gun. Most trans 191 00:12:24,520 --> 00:12:30,080 Speaker 2: people are killed, not brutalized, not beaten, killed by intimate 192 00:12:30,160 --> 00:12:34,280 Speaker 2: partners who have a gun. Having a gun is the 193 00:12:34,400 --> 00:12:41,400 Speaker 2: most dangerous thing to non cispresenting males in the society 194 00:12:41,800 --> 00:12:47,520 Speaker 2: by far. And yet the Fifth Circuit Court of Appeals 195 00:12:48,640 --> 00:12:55,160 Speaker 2: overturned a federal law preventing domestic abusers from having weapons. So, like, 196 00:12:55,240 --> 00:12:58,400 Speaker 2: when I'm talking about the structure of our laws is 197 00:12:58,920 --> 00:13:02,680 Speaker 2: to uphold white supremacy, it is every bit as much 198 00:13:03,160 --> 00:13:07,240 Speaker 2: to uphold the patriarchy, however you want to define that. 199 00:13:07,360 --> 00:13:11,000 Speaker 1: And since normativity and heteronormativity as well, absolutely. 200 00:13:10,559 --> 00:13:13,400 Speaker 2: And these are structural problems that we're not close to 201 00:13:13,440 --> 00:13:14,040 Speaker 2: dealing with. 202 00:13:14,360 --> 00:13:17,400 Speaker 1: Yeah, you suggest you know that in your book too, 203 00:13:17,440 --> 00:13:20,800 Speaker 1: that after apartheid was overturned in South Africa, they rewrote 204 00:13:20,800 --> 00:13:23,320 Speaker 1: the constitution there and that that didn't happen here after 205 00:13:23,520 --> 00:13:27,040 Speaker 1: our civil war, And what a concept to you know, 206 00:13:27,720 --> 00:13:29,160 Speaker 1: rewrite the entire thing. 207 00:13:29,720 --> 00:13:34,080 Speaker 2: I tend to not be a constitutional conventionalist because I 208 00:13:34,120 --> 00:13:35,920 Speaker 2: think that with our current and this is where I 209 00:13:36,080 --> 00:13:39,040 Speaker 2: do become a bit of a classist. I think our 210 00:13:39,160 --> 00:13:45,040 Speaker 2: current political structure, with the overrepresentation of moneyed interest, would 211 00:13:45,520 --> 00:13:49,000 Speaker 2: result in a new constitution having just as many problems 212 00:13:49,080 --> 00:13:51,240 Speaker 2: as the current one. So I don't actually think that 213 00:13:51,480 --> 00:13:54,480 Speaker 2: in our current post citizens United world, I actually don't 214 00:13:54,480 --> 00:13:56,520 Speaker 2: think a new constitution conventional would help all that much. 215 00:13:56,679 --> 00:13:56,880 Speaker 1: Yeah. 216 00:13:56,920 --> 00:14:01,600 Speaker 2: But my answer then is the fourth teenth Amendment, Because 217 00:14:01,640 --> 00:14:04,960 Speaker 2: the fourteenth Amendment is the first and only place in 218 00:14:05,000 --> 00:14:08,400 Speaker 2: the Constitution where it says all men are created equal, 219 00:14:08,840 --> 00:14:11,040 Speaker 2: and then we can interpret that to be all people 220 00:14:11,040 --> 00:14:14,800 Speaker 2: are created equal. First time anybody said that, and that's 221 00:14:15,120 --> 00:14:19,040 Speaker 2: the solution to me. Right. So from my perspective, every 222 00:14:19,600 --> 00:14:23,640 Speaker 2: single law, statute, ordinance out care we're talking about a 223 00:14:23,760 --> 00:14:28,080 Speaker 2: zoning provision in the rural South or a banking provision 224 00:14:28,320 --> 00:14:33,600 Speaker 2: in Manhattan, every single thing must pass the acid test 225 00:14:34,000 --> 00:14:37,960 Speaker 2: that is the fourteenth Amendment. Are we treating people equally 226 00:14:38,640 --> 00:14:43,520 Speaker 2: and are people entitled to substantive fairness? Which is my 227 00:14:44,000 --> 00:14:46,880 Speaker 2: kind of non lawyer explanation for the concept of substantive 228 00:14:46,920 --> 00:14:50,880 Speaker 2: due process. Are people being treated equally and fairly? If so, 229 00:14:51,600 --> 00:14:53,440 Speaker 2: then we can talk about this law about whether or 230 00:14:53,440 --> 00:14:55,120 Speaker 2: not it's good or bad for society, and we can 231 00:14:55,680 --> 00:14:59,920 Speaker 2: if not, goodbye law, goodbye ordinance. Because if you can 232 00:15:00,080 --> 00:15:03,520 Speaker 2: cannot pass the acid tests of the fourteenth Amendment, you 233 00:15:03,560 --> 00:15:07,120 Speaker 2: are illegitimate on its space. Because the Fourteenth Amendment is 234 00:15:07,200 --> 00:15:12,480 Speaker 2: the only thing that says the white supremacist, white patriarchical 235 00:15:12,480 --> 00:15:17,160 Speaker 2: structure of the original Constitution is null and void. It's 236 00:15:17,200 --> 00:15:18,400 Speaker 2: the fourteenth Amendment that does that. 237 00:15:22,680 --> 00:15:24,360 Speaker 1: This is a good time to take a little break. 238 00:15:24,520 --> 00:15:36,560 Speaker 1: We'll be right back, though, Let's get back to our chat. 239 00:15:41,040 --> 00:15:44,760 Speaker 1: In your book, you contend that since then, conservative leaning 240 00:15:44,800 --> 00:15:47,680 Speaker 1: people have been doing everything they can to undo the 241 00:15:48,160 --> 00:15:51,920 Speaker 1: Fourteenth Amendment. There are reconstruction amendments as their call, and 242 00:15:51,960 --> 00:15:54,920 Speaker 1: specifically the fourteenth Amendment. And that is deep when you 243 00:15:54,920 --> 00:15:58,400 Speaker 1: think about Thomas's concurrent decision went with the Dobs case 244 00:15:58,480 --> 00:16:00,960 Speaker 1: last year, where he said, we need to now any 245 00:16:01,000 --> 00:16:04,280 Speaker 1: substance of due process the way we need to revisit 246 00:16:04,320 --> 00:16:10,160 Speaker 1: except loving versus virtain. You're interestingly enough, oh, clarience Thomas. 247 00:16:10,440 --> 00:16:14,200 Speaker 1: So it's interesting that like that's where he wanted to go. 248 00:16:14,360 --> 00:16:18,120 Speaker 1: He wanted to go directly to the Fourteenth Amendmen looking 249 00:16:18,120 --> 00:16:20,560 Speaker 1: at Lawrence v. Texas, looking at marriage equality, looking at 250 00:16:20,600 --> 00:16:24,640 Speaker 1: contraception very much supports where you're talking about around fourteen Mienden, 251 00:16:24,680 --> 00:16:27,080 Speaker 1: and I'm trying to, you know, do away with that 252 00:16:27,240 --> 00:16:28,880 Speaker 1: and sort of roll the clock. 253 00:16:28,680 --> 00:16:31,640 Speaker 2: Back, because the twentieth century relies on the fourteenth Amendment, 254 00:16:32,120 --> 00:16:35,640 Speaker 2: which means the twenty first century relies on the fourteenth Amendment, 255 00:16:35,880 --> 00:16:39,479 Speaker 2: which means everything that we think of as modern relies 256 00:16:39,720 --> 00:16:42,840 Speaker 2: on the fourteenth Amendment. And if you pierce it, if 257 00:16:42,880 --> 00:16:47,000 Speaker 2: you take it away, then you can truly roll back 258 00:16:47,160 --> 00:16:51,920 Speaker 2: the country at a legal level to circa eighteen fifteen, 259 00:16:52,600 --> 00:16:54,560 Speaker 2: which by the way, is the year that the Leado 260 00:16:54,640 --> 00:16:58,160 Speaker 2: went to directly in his majority opinion in Dobs right, Like, 261 00:16:58,240 --> 00:17:02,960 Speaker 2: that's that's how far back we go once we pierce 262 00:17:03,160 --> 00:17:06,160 Speaker 2: the fourteenth Amendment. And that's why the Conservatives are so 263 00:17:06,240 --> 00:17:09,439 Speaker 2: interested in doing that, because if you go back to 264 00:17:09,480 --> 00:17:13,800 Speaker 2: eighteen fifty, who was on top, yea white land holding 265 00:17:14,080 --> 00:17:17,159 Speaker 2: males were on top. If you go back to eighteen fifty, 266 00:17:17,800 --> 00:17:20,840 Speaker 2: and it's the fourteenth Amendment and the progress of the 267 00:17:20,880 --> 00:17:24,879 Speaker 2: twentieth and twenty first century that took their toys and 268 00:17:25,040 --> 00:17:28,320 Speaker 2: shared them more equitably around the country, and they've never 269 00:17:28,320 --> 00:17:31,800 Speaker 2: gotten over it. They have to roll back a robust 270 00:17:32,320 --> 00:17:35,840 Speaker 2: interpretation of the fourteenth Amendment. You know, when I was 271 00:17:36,200 --> 00:17:38,200 Speaker 2: logging on, I was looking at our notes for the 272 00:17:38,240 --> 00:17:41,600 Speaker 2: show Laverne, and you said, you know, the tragedy of 273 00:17:41,640 --> 00:17:44,439 Speaker 2: the Supreme Court, And it occurred to me that, like, 274 00:17:45,640 --> 00:17:47,920 Speaker 2: these people do not think that what they're doing is 275 00:17:47,960 --> 00:17:52,680 Speaker 2: a tragedy. These people have been working at this tirelessly 276 00:17:52,800 --> 00:17:56,919 Speaker 2: for fifty years. This is the capstone. This was the 277 00:17:56,960 --> 00:18:00,359 Speaker 2: whole game, and they're getting it. It's not that the 278 00:18:00,400 --> 00:18:06,200 Speaker 2: Conservatives are winning, it's that they've won. Yeah, and now 279 00:18:06,359 --> 00:18:10,560 Speaker 2: it's time for the new forces to get back into 280 00:18:10,600 --> 00:18:14,200 Speaker 2: the game. Right We're not in an empire strikes back situation. 281 00:18:14,520 --> 00:18:17,840 Speaker 2: We're in an end of Revenge of the Sith situation 282 00:18:18,520 --> 00:18:22,200 Speaker 2: where the younglings have been slaughtered, the empire is on top, 283 00:18:22,320 --> 00:18:24,800 Speaker 2: and right now we need a new hope, right because 284 00:18:24,800 --> 00:18:26,359 Speaker 2: we're not in the game right now. 285 00:18:26,880 --> 00:18:30,680 Speaker 1: That's so beautifully put Brooke, my producer before this conversation, 286 00:18:30,760 --> 00:18:32,520 Speaker 1: is like, what this is? Like, what in the world 287 00:18:32,520 --> 00:18:36,200 Speaker 1: do we do? It seems so utterly hopeless right now. 288 00:18:36,200 --> 00:18:39,480 Speaker 1: But before we get into a new hope, you mentioned 289 00:18:39,520 --> 00:18:42,840 Speaker 1: briefly in the fourteenth Amendment. You're talking about banking regulations. 290 00:18:42,880 --> 00:18:45,800 Speaker 1: I think it was the slaughter house case in the 291 00:18:45,800 --> 00:18:51,240 Speaker 1: eighteen hundreds that could have looked at monopolies and could 292 00:18:51,280 --> 00:18:55,040 Speaker 1: have looked at the fourteenth Amendment as a way to 293 00:18:55,200 --> 00:18:58,600 Speaker 1: kind of regulate monopolies. Am I interpreting that correctly? Because 294 00:18:58,600 --> 00:19:00,679 Speaker 1: I was just thinking about like corp rule now and 295 00:19:00,720 --> 00:19:03,119 Speaker 1: how it's just kind of like taken over everything. And 296 00:19:03,240 --> 00:19:05,439 Speaker 1: there seems to be an argument that you make in 297 00:19:05,480 --> 00:19:08,040 Speaker 1: your book that there could have been away with the 298 00:19:08,080 --> 00:19:10,399 Speaker 1: fourteenth Amendment to tell people about that, and what is 299 00:19:10,440 --> 00:19:13,119 Speaker 1: it the flutterhouse cases or something, Yes. 300 00:19:12,880 --> 00:19:15,720 Speaker 2: The slaughterhouse cases are. It's one of my favorite case. 301 00:19:15,920 --> 00:19:17,960 Speaker 2: So the slaughter house cases is actually just one case 302 00:19:18,000 --> 00:19:21,760 Speaker 2: because people in the eighteen hundreds name things weird, but 303 00:19:22,080 --> 00:19:25,760 Speaker 2: it had to do with slaughterhouses. Right. It turns out that, 304 00:19:25,920 --> 00:19:29,480 Speaker 2: you know, there was a group of butchers in Louisiana. 305 00:19:30,119 --> 00:19:33,520 Speaker 2: The state of Louisiana granted a monopoly to one butcher. 306 00:19:33,800 --> 00:19:35,760 Speaker 2: They said it was health and safety concerns. Really it 307 00:19:35,800 --> 00:19:38,080 Speaker 2: was just the old you scratch my back out, scratch 308 00:19:38,119 --> 00:19:39,160 Speaker 2: yours this one. 309 00:19:39,000 --> 00:19:41,760 Speaker 1: Butcher before anti trust laws too, Before. 310 00:19:41,560 --> 00:19:44,560 Speaker 2: Anti trust laws, this butcher was granted a monopoly to 311 00:19:44,600 --> 00:19:49,280 Speaker 2: basically run all the butcher shops slaughter houses in New 312 00:19:49,359 --> 00:19:51,639 Speaker 2: Orleans south of like a line, right, So if you 313 00:19:51,720 --> 00:19:54,400 Speaker 2: wanted to be a butcher in New Orleans, you had 314 00:19:54,440 --> 00:19:56,879 Speaker 2: to work for the one butcher that had the whole monopoly. 315 00:19:57,320 --> 00:20:04,240 Speaker 2: And people sued the state under the thirteenth Amendment. White 316 00:20:04,480 --> 00:20:09,600 Speaker 2: people sued the state under the thirteenth Amendment. This was 317 00:20:09,680 --> 00:20:12,480 Speaker 2: the first lawsuit under the thirteenth Amendment. 318 00:20:13,000 --> 00:20:15,280 Speaker 3: What year with this? This is eighteen eighty three or 319 00:20:15,320 --> 00:20:19,480 Speaker 3: so eighteen sixty somewhere, and I think it's eighteen sixty eight, 320 00:20:19,520 --> 00:20:23,399 Speaker 3: but like, don't quote me on it. And the White 321 00:20:23,520 --> 00:20:27,160 Speaker 3: argument was that by granting this monopoly to this one butcher, 322 00:20:27,560 --> 00:20:33,680 Speaker 3: they functionally enslaved all of the other butchers into economic 323 00:20:33,760 --> 00:20:37,320 Speaker 3: slavery because they had to work for this one butcher. 324 00:20:37,520 --> 00:20:41,879 Speaker 1: That phrase economic slavery is so interesting thinking about that 325 00:20:42,000 --> 00:20:44,119 Speaker 1: right now in this current United States. But go on, 326 00:20:44,200 --> 00:20:45,640 Speaker 1: I just want to like put a pin in that. 327 00:20:46,040 --> 00:20:48,920 Speaker 2: And there were people who wrote the thirteenth Amendment, who 328 00:20:48,920 --> 00:20:52,240 Speaker 2: were part of ratifying the Thirteenthmendment. So according to the originalists, 329 00:20:52,280 --> 00:20:55,040 Speaker 2: you know, these were some of the original authors of 330 00:20:55,119 --> 00:20:57,160 Speaker 2: the thing who were like, yeah, that's a good lawsuit 331 00:20:57,200 --> 00:21:00,480 Speaker 2: that totally works. But the Supreme Court set no. Court 332 00:21:00,520 --> 00:21:02,120 Speaker 2: I think it was unanimous, it might have been seven 333 00:21:02,119 --> 00:21:05,480 Speaker 2: to one, said that the Thirteenth Amendment only applied to 334 00:21:05,600 --> 00:21:09,359 Speaker 2: and I'm quoting them, not me, the slave race. I 335 00:21:09,440 --> 00:21:14,399 Speaker 2: think he was talking about me and me, and thus 336 00:21:14,560 --> 00:21:17,080 Speaker 2: white people cannot use it, and certainly white people cannot 337 00:21:17,160 --> 00:21:22,280 Speaker 2: use it for their economic grievances. Right so, right there 338 00:21:22,320 --> 00:21:25,879 Speaker 2: at the beginning of the Thirteenth Amendment, jurisperience. You know, 339 00:21:25,920 --> 00:21:30,160 Speaker 2: at the beginning of reconstruction, we have a theory that 340 00:21:30,320 --> 00:21:33,880 Speaker 2: would have made the Thirteenth Amendment so much more robust, 341 00:21:33,920 --> 00:21:37,639 Speaker 2: so much more interesting, so much more valuable to the 342 00:21:37,720 --> 00:21:40,879 Speaker 2: kind of economic oppression that we've now just grown accustomed to. 343 00:21:41,720 --> 00:21:44,840 Speaker 2: But it's the Supreme Court that said no, not the authors, 344 00:21:45,359 --> 00:21:47,920 Speaker 2: not the legislators, not the people who ratified the thing. 345 00:21:48,240 --> 00:21:50,359 Speaker 2: But the Supreme Court has said no, no, no, this 346 00:21:50,520 --> 00:21:51,720 Speaker 2: is only about slavery. 347 00:21:51,880 --> 00:21:53,040 Speaker 1: What do you think that was about? Do you think 348 00:21:53,080 --> 00:21:55,760 Speaker 1: that was about monopolies? I mean, why wouldn't they want 349 00:21:55,840 --> 00:21:58,040 Speaker 1: to extend? What do you think that was about? 350 00:21:58,440 --> 00:22:05,000 Speaker 2: Because conservatives have always been against the Reconstruction amendments. They've 351 00:22:05,160 --> 00:22:09,480 Speaker 2: always wanted to limit the scope and effectiveness of the 352 00:22:09,520 --> 00:22:13,080 Speaker 2: reconstruction amendments. Right, So thirteenth Amendment boom right out the gate, 353 00:22:13,240 --> 00:22:16,399 Speaker 2: can only apply to the slave race. Fourteenth Amendment. Fourteenth 354 00:22:16,440 --> 00:22:20,080 Speaker 2: Amendment did nothing to stop segregation, according to the conservatives 355 00:22:20,119 --> 00:22:22,879 Speaker 2: who were trying to hobble those amendments. And then obviously 356 00:22:22,960 --> 00:22:26,520 Speaker 2: the fifteenth Amendment, the fifteenth Amendment, the one that grants 357 00:22:26,600 --> 00:22:29,960 Speaker 2: voting rights to people regardless of the place. Conservatives pretended 358 00:22:30,000 --> 00:22:33,920 Speaker 2: that even exist. Conservatives for one hundred years pretended that 359 00:22:33,920 --> 00:22:37,760 Speaker 2: that wasn't even a thing. Right. So, again, the conservative 360 00:22:37,800 --> 00:22:43,760 Speaker 2: project has always been then and now to limit the 361 00:22:43,920 --> 00:22:50,600 Speaker 2: effectiveness of the rules that could make this country more fair. 362 00:22:50,680 --> 00:22:53,400 Speaker 1: Equal and just that's so deep. 363 00:22:53,440 --> 00:22:57,560 Speaker 2: That's how they always have rolled. We need better tools 364 00:22:57,600 --> 00:23:03,080 Speaker 2: and a better commitment to fighting what they've always done. Yeah, 365 00:23:03,119 --> 00:23:04,760 Speaker 2: and this is where liberals often fail. 366 00:23:04,880 --> 00:23:06,119 Speaker 1: I want to get to some of that later. But 367 00:23:06,200 --> 00:23:08,840 Speaker 1: you make a point in your book that we talked 368 00:23:08,880 --> 00:23:11,800 Speaker 1: about protected classes. What is it? Reverse racism is not 369 00:23:11,840 --> 00:23:15,360 Speaker 1: a thing why people aren't a protected class? But gay 370 00:23:15,359 --> 00:23:17,399 Speaker 1: and lesbi and people are not a protected class. But 371 00:23:17,480 --> 00:23:19,880 Speaker 1: then I think about the Bostock case that was decided 372 00:23:19,880 --> 00:23:21,760 Speaker 1: in twenty twenty. I was the first time I went 373 00:23:21,800 --> 00:23:23,840 Speaker 1: to the Supreme Court for the oral arguments in that case. 374 00:23:24,119 --> 00:23:26,520 Speaker 1: That case decided that, based on the Civil Rights Act 375 00:23:26,520 --> 00:23:29,200 Speaker 1: of nineteen sixty four, that it is illegal to fire 376 00:23:29,320 --> 00:23:33,000 Speaker 1: someone from their job for being gay, lesbian, or trans. 377 00:23:33,240 --> 00:23:37,680 Speaker 1: And the ACLU who brought the case used a textualist argument. 378 00:23:37,720 --> 00:23:41,560 Speaker 1: They said, by the plain language of the Civil Rights 379 00:23:41,560 --> 00:23:45,560 Speaker 1: Act of nineteen sixty four that this is discrimination based 380 00:23:45,600 --> 00:23:48,520 Speaker 1: on sex, and there was some precedent with the Price Waterhouse, 381 00:23:48,880 --> 00:23:52,600 Speaker 1: the Waterhouse versus Something case. I always forget sex stereotypes 382 00:23:52,800 --> 00:23:56,479 Speaker 1: historically in terms of precedent, were used as a violation 383 00:23:56,520 --> 00:24:01,000 Speaker 1: of sex discrimination. So there's a slew of anti trans 384 00:24:01,119 --> 00:24:05,080 Speaker 1: legislation that's being introduced, impacts and stay legislatures all over 385 00:24:05,119 --> 00:24:07,240 Speaker 1: the country right now that would seem to be a 386 00:24:07,320 --> 00:24:10,560 Speaker 1: violation because we have a Supreme Court decision saying that 387 00:24:10,640 --> 00:24:15,480 Speaker 1: like sex discrimination includes gay, lesbian, and trans people. What 388 00:24:15,520 --> 00:24:17,720 Speaker 1: are your thoughts about like the law. I mean, obviously 389 00:24:17,760 --> 00:24:19,320 Speaker 1: you also make the case in your book that they 390 00:24:19,359 --> 00:24:21,760 Speaker 1: make the law whatever they wanted to make it. But 391 00:24:21,920 --> 00:24:25,840 Speaker 1: what would you say to where we are now with 392 00:24:25,920 --> 00:24:29,560 Speaker 1: anti LGBTQ laws in relationship to both stoc. 393 00:24:30,480 --> 00:24:33,040 Speaker 2: Yeah. So there are a couple of different ways of 394 00:24:33,119 --> 00:24:37,000 Speaker 2: analyzing boss Stock, and one is your wife what you 395 00:24:37,040 --> 00:24:40,359 Speaker 2: just said as a I would say standard legal way 396 00:24:40,440 --> 00:24:43,639 Speaker 2: of understanding what happened in boss Stock, that there is 397 00:24:43,680 --> 00:24:47,280 Speaker 2: an argument that according to nineteen sixty four Civil Rights Act, 398 00:24:47,480 --> 00:24:51,240 Speaker 2: you can't fire people because of sex, that sexual presentation 399 00:24:52,040 --> 00:24:54,960 Speaker 2: is an offshoot of sex, and so you must let 400 00:24:55,000 --> 00:24:58,959 Speaker 2: that go. The other way of analyzing boss Stock is 401 00:24:58,960 --> 00:25:02,119 Speaker 2: that this is where you got Neil Gorsich, because Neil 402 00:25:02,160 --> 00:25:06,320 Speaker 2: Gorsich likes to be known as a textualists and likes 403 00:25:06,359 --> 00:25:08,840 Speaker 2: to be known as an originalist, and those two things 404 00:25:08,840 --> 00:25:14,320 Speaker 2: are separate. Textualism is basically a theory of interpretation that 405 00:25:14,359 --> 00:25:16,520 Speaker 2: I can get behind, where it says you kind of 406 00:25:16,560 --> 00:25:19,040 Speaker 2: read the text closely and try to understand what the 407 00:25:19,040 --> 00:25:24,080 Speaker 2: words mean. Originalism comes in when textualism fails, right when 408 00:25:24,359 --> 00:25:27,320 Speaker 2: the words are too ambiguous. Now you have to find 409 00:25:27,440 --> 00:25:30,199 Speaker 2: some way of what those words intended to mean. And 410 00:25:30,240 --> 00:25:31,919 Speaker 2: then you go and then the originals say, and then 411 00:25:31,960 --> 00:25:34,840 Speaker 2: we have to look at Thomas Jefferson what he wrote 412 00:25:34,840 --> 00:25:37,920 Speaker 2: to James Madison. But I have Myuiji Bordon Thomas says 413 00:25:37,960 --> 00:25:40,919 Speaker 2: he doesn't like black people know, more like that's what 414 00:25:41,000 --> 00:25:43,399 Speaker 2: the originalists go to, and I say, miss me with 415 00:25:43,600 --> 00:25:48,399 Speaker 2: all that. But Gorsicic, who believes in both, was convinced 416 00:25:48,480 --> 00:25:52,159 Speaker 2: in Boss Doc of this textualist argument. That's why the 417 00:25:52,200 --> 00:25:57,520 Speaker 2: ACLU made the argument because they were going directly for Gorsach. 418 00:25:58,600 --> 00:26:03,680 Speaker 2: What's different between now and that Ruth Bader ginsburg'stide. Yeah, 419 00:26:03,920 --> 00:26:08,240 Speaker 2: bostuck a six to three with Ginsburg in the majority. 420 00:26:08,400 --> 00:26:13,240 Speaker 2: Right now, you've got Amy Cony Barrett standing in for Ginsburg. 421 00:26:13,359 --> 00:26:17,359 Speaker 2: Does she agree with that analysis? Does she agree with 422 00:26:17,480 --> 00:26:21,600 Speaker 2: the fundamental rights and equality of the LGBTQ community. I 423 00:26:21,640 --> 00:26:25,800 Speaker 2: don't think so. Right So, now, even if you hold 424 00:26:25,880 --> 00:26:28,199 Speaker 2: gorsic now, you gotta hold one of the others. You 425 00:26:28,240 --> 00:26:32,440 Speaker 2: gotta hold Roberts, you gotta hold Kavanaugh, And these are 426 00:26:32,520 --> 00:26:38,880 Speaker 2: difficult people to hold through all of the other outcrops 427 00:26:38,920 --> 00:26:43,119 Speaker 2: of the LGBTQ rights fight as it is now to 428 00:26:43,119 --> 00:26:45,400 Speaker 2: say nothing in the fact that this was a one 429 00:26:45,440 --> 00:26:49,240 Speaker 2: off from Gorsach. Gorsiches know Anthony Kennedy when it comes 430 00:26:49,359 --> 00:26:53,120 Speaker 2: to LGBTQ rights, because remember, Anthony Kennedy got there through 431 00:26:53,280 --> 00:26:56,480 Speaker 2: his hyper understanding of the First Amendment. One of the 432 00:26:56,520 --> 00:26:58,119 Speaker 2: things I like to say is that none of these 433 00:26:58,160 --> 00:27:01,840 Speaker 2: Supreme Court justices are moderate. They're all extremists in their 434 00:27:01,880 --> 00:27:06,000 Speaker 2: own way. Anthony Kennedy's extremism happened to be around the 435 00:27:06,000 --> 00:27:08,920 Speaker 2: First Amendment, which happened to be helpful for a lot 436 00:27:08,920 --> 00:27:13,520 Speaker 2: of LGBTQ issues. Corsiag's extremism is not that way. His 437 00:27:13,600 --> 00:27:16,879 Speaker 2: extremism is with textualism and originalism. And so why you 438 00:27:16,880 --> 00:27:19,880 Speaker 2: can get them on one issue, you might not hold 439 00:27:19,920 --> 00:27:22,080 Speaker 2: them on the other issue. But here's the key thing 440 00:27:22,119 --> 00:27:24,720 Speaker 2: in terms of how I think about this. Notice how 441 00:27:24,760 --> 00:27:27,920 Speaker 2: I'm talking about this case very differently than most legal 442 00:27:27,920 --> 00:27:30,040 Speaker 2: scholars would talk about. In this case, I'm talking about 443 00:27:30,040 --> 00:27:34,200 Speaker 2: the personalities. I'm talking about the motivations of the people 444 00:27:34,320 --> 00:27:38,480 Speaker 2: who decide, because it is their personalities, their motivations, their 445 00:27:38,600 --> 00:27:43,600 Speaker 2: corps that actually determine what laws we have or don't 446 00:27:43,640 --> 00:27:48,280 Speaker 2: have in this country, way more than any legal hoity 447 00:27:48,359 --> 00:27:52,440 Speaker 2: toity scholarly argument that you can make, because these people 448 00:27:52,440 --> 00:27:55,560 Speaker 2: don't care about your arguments. This Supreme Court is so 449 00:27:55,760 --> 00:28:02,120 Speaker 2: extremist and so pompous. They I think so highly of themselves, 450 00:28:02,359 --> 00:28:06,119 Speaker 2: and they think so highly of their ability to reshape 451 00:28:06,119 --> 00:28:10,119 Speaker 2: society in the ways that they want. That they've made extreme, 452 00:28:10,680 --> 00:28:16,200 Speaker 2: wild decisions, completely reshaping our world. They care about their 453 00:28:16,240 --> 00:28:21,160 Speaker 2: own ideological positions and keeping those positions to the best 454 00:28:21,240 --> 00:28:24,120 Speaker 2: of their ability, not just in the instant case before them, 455 00:28:24,359 --> 00:28:28,080 Speaker 2: but for future cases. Right, Gorsic loves pointing out Bostoc 456 00:28:28,080 --> 00:28:31,600 Speaker 2: because he says, hey, I'm not a horrible bigot, I'm 457 00:28:31,640 --> 00:28:34,520 Speaker 2: just a textualist. Right, Bosstoc them becomes part of Gorsic 458 00:28:34,680 --> 00:28:39,000 Speaker 2: just beer to give him credibility when he does all 459 00:28:39,040 --> 00:28:43,400 Speaker 2: these other horrible textualist things like revoking the right to choose. Right, So, 460 00:28:43,720 --> 00:28:47,760 Speaker 2: when I think about the future of anybody's rights, I 461 00:28:47,840 --> 00:28:51,040 Speaker 2: think about the personalities of the justices in play and 462 00:28:51,040 --> 00:28:53,600 Speaker 2: what we know about their ideologies, And when I look 463 00:28:53,600 --> 00:28:56,800 Speaker 2: at that, it is a rough road ahead, not just 464 00:28:56,880 --> 00:29:01,560 Speaker 2: for LGBTWOQ rights generally, which it is, but for trans 465 00:29:01,640 --> 00:29:07,840 Speaker 2: rights specifically, because personality and ideologically, these conservatives are all 466 00:29:07,960 --> 00:29:13,080 Speaker 2: about creating a safe zones for each state to be 467 00:29:13,200 --> 00:29:15,520 Speaker 2: bigoted in whatever way that state wants. 468 00:29:16,120 --> 00:29:19,120 Speaker 1: And there's also religious fundamentalism. And what was really key 469 00:29:19,160 --> 00:29:21,520 Speaker 1: to me when I during the oral arguments is that 470 00:29:21,560 --> 00:29:25,360 Speaker 1: the issue of bathrooms came up, and the attorneys arguing 471 00:29:25,400 --> 00:29:28,120 Speaker 1: for the slu and for Amy Stevens was like, well, 472 00:29:28,160 --> 00:29:30,520 Speaker 1: this is not about bathrooms. This is just about whether 473 00:29:30,560 --> 00:29:33,040 Speaker 1: you can be fired or not. So they were very 474 00:29:33,680 --> 00:29:37,680 Speaker 1: narrow in their arguments, and this was a very narrow decision. 475 00:29:40,640 --> 00:29:52,880 Speaker 1: Now feels like a great time for a short break. Alright, 476 00:29:53,160 --> 00:29:57,240 Speaker 1: let's get back to it. There's another case before the 477 00:29:57,280 --> 00:29:59,960 Speaker 1: Supreme Court this session. I think it's three or three 478 00:30:00,120 --> 00:30:02,120 Speaker 1: Creative versus three or three creative. 479 00:30:02,480 --> 00:30:03,960 Speaker 2: Yeah, and that's goddamn case. 480 00:30:04,080 --> 00:30:07,000 Speaker 1: I know. Right. You make an interesting point in your 481 00:30:07,040 --> 00:30:09,600 Speaker 1: book about the cake shop because they've made the argument 482 00:30:09,640 --> 00:30:12,560 Speaker 1: based on religious freedom, and you said it actually would 483 00:30:12,560 --> 00:30:14,880 Speaker 1: have been more effective if they used it around the 484 00:30:14,880 --> 00:30:17,680 Speaker 1: First Amendment. And that's actually what's happening in three or 485 00:30:17,760 --> 00:30:20,800 Speaker 1: three created. Do you just have any thoughts on that? 486 00:30:20,840 --> 00:30:23,120 Speaker 1: I was, Did they read your book? 487 00:30:23,520 --> 00:30:27,440 Speaker 2: Okay, so let's start here. The common argument that allows 488 00:30:27,480 --> 00:30:31,440 Speaker 2: for bigotry is that my God demands that I'm bigging 489 00:30:31,560 --> 00:30:35,680 Speaker 2: in today. And for some reason, the religious crystal fascists 490 00:30:35,720 --> 00:30:37,960 Speaker 2: on the Supreme Court are just like, that's a good argument. 491 00:30:38,080 --> 00:30:41,640 Speaker 2: It's a terrible argument. The religious argument should never be 492 00:30:42,000 --> 00:30:45,520 Speaker 2: the argument that allows a person in the public sphere, 493 00:30:45,840 --> 00:30:49,760 Speaker 2: in the public space to be bigoted against other people. 494 00:30:50,080 --> 00:30:55,360 Speaker 2: That's the worst argument. The better argument is this First 495 00:30:55,440 --> 00:30:59,120 Speaker 2: Amendment argument. Right, we all understand that part of what 496 00:30:59,200 --> 00:31:01,840 Speaker 2: the First Amendment is it just that it allows you 497 00:31:01,880 --> 00:31:05,640 Speaker 2: to say whatever you want within reason. It allows you 498 00:31:05,680 --> 00:31:08,560 Speaker 2: to not say whatever you want without government punishment. Right, 499 00:31:08,600 --> 00:31:12,360 Speaker 2: you can't make me a journalist write a nice article 500 00:31:12,360 --> 00:31:15,200 Speaker 2: about Donald Trump, don't do it. You have to goolog 501 00:31:15,240 --> 00:31:18,560 Speaker 2: my ass before that happens. Right, And we all understand 502 00:31:18,560 --> 00:31:20,480 Speaker 2: that I have that right to not do it under 503 00:31:20,520 --> 00:31:23,880 Speaker 2: the First Amendment. And so when it comes to the 504 00:31:24,440 --> 00:31:30,400 Speaker 2: bigotry that anti LGBTQ people want to enforce on the world, 505 00:31:31,040 --> 00:31:34,800 Speaker 2: a better argument for them is, well, you can't make 506 00:31:34,840 --> 00:31:38,320 Speaker 2: me say good luck gay people, right, because that would 507 00:31:38,400 --> 00:31:41,200 Speaker 2: be that's a violation of my First Amendment rights. Right. 508 00:31:41,200 --> 00:31:43,520 Speaker 1: Then, Shapiro would say, you can't make me use the 509 00:31:43,600 --> 00:31:46,560 Speaker 1: correct pronouns of someone, right, can't. 510 00:31:46,360 --> 00:31:48,760 Speaker 2: Make me use a pronoun And if you're writing your 511 00:31:48,800 --> 00:31:53,320 Speaker 2: own blog or whatever Shapiro does for a living, it's fine. 512 00:31:54,120 --> 00:31:57,240 Speaker 2: There is a sphere in which that is a good argument. 513 00:31:57,800 --> 00:32:03,320 Speaker 2: That argument, to me, loses its allure once you once 514 00:32:03,360 --> 00:32:06,960 Speaker 2: again get into the public space. And that is what 515 00:32:07,000 --> 00:32:09,200 Speaker 2: three h three creative is. It's a case about a 516 00:32:09,240 --> 00:32:14,719 Speaker 2: woman who wants to doesn't actually have one yet wants 517 00:32:14,760 --> 00:32:19,640 Speaker 2: to run a marriage website, an invitation website. 518 00:32:19,320 --> 00:32:20,600 Speaker 1: Where she creates invitation. 519 00:32:21,000 --> 00:32:25,000 Speaker 2: She wants to say that she will not serve people 520 00:32:25,400 --> 00:32:27,480 Speaker 2: who are getting married to people of the same sex, 521 00:32:27,480 --> 00:32:31,080 Speaker 2: which is a weird kink to have in your life. 522 00:32:31,120 --> 00:32:33,400 Speaker 2: I don't want kingshame anybody. But if you're this person, 523 00:32:33,400 --> 00:32:35,680 Speaker 2: I just need to have a business and no gay people. 524 00:32:35,920 --> 00:32:38,040 Speaker 2: You can't cut like. I don't know what makes you 525 00:32:38,080 --> 00:32:41,000 Speaker 2: want to do that, but okay, fine. The problem is 526 00:32:41,040 --> 00:32:43,360 Speaker 2: that she wants to have this business in public, and 527 00:32:43,400 --> 00:32:46,960 Speaker 2: in a free and fair society, people have the right 528 00:32:47,120 --> 00:32:53,480 Speaker 2: to access services that are generally available to the public. 529 00:32:53,560 --> 00:32:57,280 Speaker 2: And that's where your free speech argument doesn't really work. 530 00:32:57,440 --> 00:33:01,600 Speaker 2: I can't or shouldn't be able to have a business 531 00:33:01,880 --> 00:33:03,760 Speaker 2: where I say I don't want to serve white people. 532 00:33:04,880 --> 00:33:06,880 Speaker 2: I might not like to serve white people, I might 533 00:33:06,880 --> 00:33:08,800 Speaker 2: not want to, and that might not be my preference. 534 00:33:09,120 --> 00:33:11,360 Speaker 2: But if a white man comes in with American money, 535 00:33:11,360 --> 00:33:14,680 Speaker 2: if I'm a mechanic, a white man comes in with 536 00:33:14,720 --> 00:33:16,640 Speaker 2: his no yacht. I guess that's what they have, right. 537 00:33:17,320 --> 00:33:21,440 Speaker 1: That's not intersectional, Elie. They're not all rich people, aren't. 538 00:33:22,640 --> 00:33:23,240 Speaker 1: My God. 539 00:33:24,760 --> 00:33:28,000 Speaker 2: Comes in with like hard American currency. I can't say, huh, 540 00:33:28,160 --> 00:33:30,760 Speaker 2: I don't serve white people. I don't lack your con 541 00:33:30,920 --> 00:33:34,760 Speaker 2: am My established can't say that that's racist and illegal 542 00:33:34,800 --> 00:33:38,240 Speaker 2: and violates various anti discrimination laws. And so this is 543 00:33:38,280 --> 00:33:40,080 Speaker 2: what this one wants to do. She wants to be 544 00:33:40,200 --> 00:33:43,320 Speaker 2: in the public sphere and have this business. 545 00:33:43,400 --> 00:33:44,920 Speaker 1: And it looks like she might win based on the 546 00:33:45,040 --> 00:33:47,080 Speaker 1: oral arguments, so that she might win, of course. 547 00:33:46,920 --> 00:33:50,160 Speaker 2: Because this Supreme Court is six to three with conservative fascists. 548 00:33:50,160 --> 00:33:52,200 Speaker 2: But I just want to point out there are other 549 00:33:52,320 --> 00:33:55,640 Speaker 2: businesses or other pursuits you can have, or I would 550 00:33:55,720 --> 00:33:58,880 Speaker 2: support that kind of First Amendment argument. Right. If you're 551 00:33:58,880 --> 00:34:04,280 Speaker 2: a sculptor, you want to say I don't sculpt Republicans, 552 00:34:05,000 --> 00:34:07,200 Speaker 2: I'm like calling bad self. You can't make me sculpt 553 00:34:07,280 --> 00:34:09,960 Speaker 2: no Republican. I wouldn't, right. And if you want to say, well, 554 00:34:10,000 --> 00:34:13,440 Speaker 2: I don't sculpt no Democrats, I'm like, great fun your sculptor. 555 00:34:13,480 --> 00:34:17,680 Speaker 2: It's artistic. I understand that running a marriage registry is 556 00:34:17,800 --> 00:34:21,480 Speaker 2: not artistic in that way. Right, running a cake shop 557 00:34:21,600 --> 00:34:24,799 Speaker 2: is not artistic in that way. Don't go, don't tell 558 00:34:24,840 --> 00:34:25,400 Speaker 2: me about. 559 00:34:25,400 --> 00:34:27,120 Speaker 1: That's what the planet is argued that in the alliance 560 00:34:27,200 --> 00:34:29,760 Speaker 1: defending freedom like this, you know, gives them the language 561 00:34:29,800 --> 00:34:31,360 Speaker 1: to argue that. And we're running out of time, and 562 00:34:31,400 --> 00:34:32,719 Speaker 1: so as we run out of time, I want to 563 00:34:32,760 --> 00:34:34,919 Speaker 1: talk about the new hope. What is the new hope? 564 00:34:34,960 --> 00:34:38,480 Speaker 1: I heard you talk about expanding the courts. What in 565 00:34:38,600 --> 00:34:41,800 Speaker 1: the world can we do with the mess that is 566 00:34:42,600 --> 00:34:45,400 Speaker 1: our legal system right now, our political system right now? 567 00:34:45,960 --> 00:34:47,719 Speaker 2: Number one out of the gate. I'm for expanding the courts, 568 00:34:47,719 --> 00:34:49,399 Speaker 2: and I'm for expanding the courts by a huge number. 569 00:34:49,480 --> 00:34:52,759 Speaker 2: Right now in Congress, the bill that Democrats won't pass 570 00:34:53,280 --> 00:34:56,399 Speaker 2: is plus four, and I get plus four. Plus four 571 00:34:56,400 --> 00:34:58,359 Speaker 2: will be better than where we have now. I want 572 00:34:58,400 --> 00:35:01,799 Speaker 2: plus ten. I want plus two. I want to quote 573 00:35:01,880 --> 00:35:04,319 Speaker 2: Hermit the Frog and mupp A State Manhattan. I want 574 00:35:04,400 --> 00:35:06,359 Speaker 2: more dogs and bears and cats and chickens and things. 575 00:35:06,480 --> 00:35:10,120 Speaker 2: I want you in the show, right because I believe 576 00:35:10,640 --> 00:35:13,960 Speaker 2: that when you have a larger body of people, what 577 00:35:14,120 --> 00:35:17,759 Speaker 2: you get is more moderate decisions. And we see that 578 00:35:17,880 --> 00:35:19,520 Speaker 2: all the time in our real life. Right when you 579 00:35:19,680 --> 00:35:22,440 Speaker 2: have to get this is the analogy I've made. When 580 00:35:22,440 --> 00:35:24,800 Speaker 2: you have to get five of your friends to go 581 00:35:24,960 --> 00:35:27,520 Speaker 2: out for dinner and drinks, you might end up in 582 00:35:27,600 --> 00:35:30,359 Speaker 2: some places. Right you just gotta get five of your boys, 583 00:35:30,400 --> 00:35:32,160 Speaker 2: you might end up in like thunder down under, you 584 00:35:32,239 --> 00:35:35,040 Speaker 2: might end right if you've got to get twenty or 585 00:35:35,280 --> 00:35:37,760 Speaker 2: thirty of your friends at like a family of reunion 586 00:35:38,120 --> 00:35:40,320 Speaker 2: to go out to dinner, you're gonna go to Applebee's, 587 00:35:41,200 --> 00:35:42,719 Speaker 2: You're gonna go to the Olive Gard, You're gonna go 588 00:35:42,840 --> 00:35:45,719 Speaker 2: someplace that is good for all time zones. And so 589 00:35:45,960 --> 00:35:49,640 Speaker 2: more justices lead to more moderate decisions, which is what 590 00:35:49,800 --> 00:35:53,320 Speaker 2: they should be doing because they're run elected and nobody 591 00:35:53,480 --> 00:35:56,239 Speaker 2: voted for them to make these decisions about the rest 592 00:35:56,280 --> 00:35:56,840 Speaker 2: of our lives. 593 00:35:56,960 --> 00:35:59,200 Speaker 1: But what about I mean, we know about corporate corruption 594 00:35:59,280 --> 00:36:02,040 Speaker 1: about a politics, there's also a lot of evidence of 595 00:36:02,080 --> 00:36:05,400 Speaker 1: corporate corruption of our Supreme Court right like right now, 596 00:36:05,480 --> 00:36:08,520 Speaker 1: all these stories we've been coming out about them kind 597 00:36:08,560 --> 00:36:11,440 Speaker 1: of being bribed for their special causes and whatnot, and 598 00:36:11,480 --> 00:36:15,000 Speaker 1: they're unelected and they're there forever there's a case that 599 00:36:15,200 --> 00:36:18,400 Speaker 1: even like large bodies can be corrupted by money and 600 00:36:18,760 --> 00:36:23,320 Speaker 1: corporate power. Right, term limits, I love term moments. 601 00:36:23,360 --> 00:36:24,719 Speaker 2: I think they're a great idea. I don't think that 602 00:36:24,719 --> 00:36:27,480 Speaker 2: you can do term moments without a constitutional amendment. And 603 00:36:28,320 --> 00:36:31,520 Speaker 2: more to my point, even my idea for doing term 604 00:36:31,600 --> 00:36:34,400 Speaker 2: limits without a constitutional amendment, I then have to go 605 00:36:34,480 --> 00:36:36,320 Speaker 2: to this conservative Supreme Court and be like, do you 606 00:36:36,440 --> 00:36:39,040 Speaker 2: like my term limits idea? And then they say no, 607 00:36:39,400 --> 00:36:42,080 Speaker 2: get out of my courtroom. Yeah, term limits great, but 608 00:36:42,239 --> 00:36:44,920 Speaker 2: absent constitutional amendment doesn't get me where I want to go. 609 00:36:45,200 --> 00:36:48,799 Speaker 2: In terms of the corruption, there's a lot of unethical 610 00:36:48,880 --> 00:36:52,400 Speaker 2: behavior by the Supreme Court that is corrupt, but I 611 00:36:52,440 --> 00:36:55,080 Speaker 2: don't think it's corruption and that kind of like direct 612 00:36:55,320 --> 00:36:58,520 Speaker 2: Here's an envelope full of cash, vote my way, Sam, 613 00:36:59,040 --> 00:37:02,200 Speaker 2: Sam wants to vot that way anyway. I think the 614 00:37:02,320 --> 00:37:07,400 Speaker 2: corruption and the impropriety is more that Sam decides how 615 00:37:07,480 --> 00:37:10,360 Speaker 2: he's going to vote after talking with all of his 616 00:37:10,600 --> 00:37:14,400 Speaker 2: conservative friends, and the corruption then becomes why do his 617 00:37:14,560 --> 00:37:16,480 Speaker 2: conservative friends get to talk to him for an hour 618 00:37:16,520 --> 00:37:20,880 Speaker 2: at dinner? And I don't think about oral arguments. All 619 00:37:20,960 --> 00:37:24,239 Speaker 2: that is supposedly is an hour. So think about how 620 00:37:24,440 --> 00:37:27,000 Speaker 2: valuable it is to have an hour of one of 621 00:37:27,080 --> 00:37:31,080 Speaker 2: these people's time just to argue your case in front 622 00:37:31,120 --> 00:37:34,759 Speaker 2: of them, Right, conservatives have a whole machine to make 623 00:37:34,800 --> 00:37:37,920 Speaker 2: that influence happen. That's the corruption we have to deal with. 624 00:37:38,200 --> 00:37:40,120 Speaker 2: And I'm more worried about that than kind of the 625 00:37:40,200 --> 00:37:42,960 Speaker 2: straight up like bribing people for votes. I don't think 626 00:37:43,000 --> 00:37:43,560 Speaker 2: that that's. 627 00:37:43,800 --> 00:37:48,040 Speaker 1: Speaking of that though. Where is the leftist machine? Where's 628 00:37:48,080 --> 00:37:51,800 Speaker 1: the leftist federalist society, the leftist machine that like funnels 629 00:37:52,280 --> 00:37:55,279 Speaker 1: more progressive judges? Like, is there a movement to like 630 00:37:55,480 --> 00:37:56,080 Speaker 1: have that happen? 631 00:37:56,200 --> 00:37:56,640 Speaker 2: Where is that? 632 00:37:56,840 --> 00:37:59,319 Speaker 1: That feels like a really crucial part of the piece 633 00:37:59,400 --> 00:37:59,920 Speaker 1: that's missing. 634 00:38:00,640 --> 00:38:03,239 Speaker 2: There are movements like the ACS does some of this work. 635 00:38:03,520 --> 00:38:05,400 Speaker 2: The Alliance for Justice does some of this work. A 636 00:38:05,480 --> 00:38:07,960 Speaker 2: Demand Justice. I'm actually a board member there. We do 637 00:38:08,080 --> 00:38:10,760 Speaker 2: some of this work. But like, here's the real answer, Levern. 638 00:38:11,680 --> 00:38:15,800 Speaker 2: The reason why the right wing has this federal society 639 00:38:15,880 --> 00:38:19,360 Speaker 2: system is because all of the right wing constituency groups 640 00:38:19,520 --> 00:38:23,520 Speaker 2: buy in to the federal society and seed they're judge 641 00:38:23,600 --> 00:38:27,239 Speaker 2: making appointments to the federal society. So the NRI says, oh, 642 00:38:27,400 --> 00:38:29,960 Speaker 2: just ask the federal society. Right, the banking industry, just 643 00:38:30,040 --> 00:38:33,319 Speaker 2: ask the federal society. Try doing that. On the democratic end, 644 00:38:33,440 --> 00:38:37,160 Speaker 2: Let me and my friends and demand justice beyond. Hello, DACP, 645 00:38:37,400 --> 00:38:40,680 Speaker 2: don't worry. We're gonna pick all the judges and uh, 646 00:38:40,880 --> 00:38:43,880 Speaker 2: you're gonna be cool with that, right, Hey, lamb illegal, 647 00:38:44,400 --> 00:38:47,640 Speaker 2: We're gonna pick all the judges and you guys, hey, 648 00:38:47,760 --> 00:38:48,600 Speaker 2: teachers like you. 649 00:38:49,120 --> 00:38:51,880 Speaker 1: It's a way more heterodox constituency. 650 00:38:52,120 --> 00:38:56,319 Speaker 2: There is no tricking way right with the big tent 651 00:38:56,400 --> 00:38:59,080 Speaker 2: that is the left. There's no freaking way that we 652 00:38:59,280 --> 00:39:03,360 Speaker 2: can get all of our constituent groups to just seed 653 00:39:03,760 --> 00:39:07,520 Speaker 2: this immense power. That's what's happened on the right. They've 654 00:39:07,640 --> 00:39:12,200 Speaker 2: seeded their entire judicial making apparatus to five guys with 655 00:39:12,280 --> 00:39:16,000 Speaker 2: a billion dollars, and there's a lot that that kind 656 00:39:16,040 --> 00:39:20,880 Speaker 2: of I say, authoritarian way of picking justices. That's a 657 00:39:20,960 --> 00:39:24,800 Speaker 2: very efficient system that the left just can't replicate because 658 00:39:24,840 --> 00:39:27,759 Speaker 2: of how we are organized. That's not necessarily a bad thing, 659 00:39:28,040 --> 00:39:29,600 Speaker 2: but it is one of the reasons why this is 660 00:39:29,640 --> 00:39:30,560 Speaker 2: an asymmetric war. 661 00:39:31,120 --> 00:39:32,920 Speaker 1: Thank you so much for that, because I've been thinking 662 00:39:32,920 --> 00:39:39,160 Speaker 1: about that for years. Okay, we have to end, and 663 00:39:39,200 --> 00:39:41,960 Speaker 1: I like to end to be continuary. I like to 664 00:39:42,080 --> 00:39:44,440 Speaker 1: end every podcast with the question that comes from my 665 00:39:44,560 --> 00:39:47,920 Speaker 1: trauma and facilia therapy, and the question is what right 666 00:39:48,280 --> 00:39:51,000 Speaker 1: this shit is traumatizing, And the question is what else 667 00:39:51,160 --> 00:39:53,840 Speaker 1: is true? When things are, when the courts are, you know, 668 00:39:54,400 --> 00:39:56,760 Speaker 1: doing their thing, and when the world is on fire. 669 00:39:57,480 --> 00:40:00,359 Speaker 1: That is true, But there's something else also so true 670 00:40:00,400 --> 00:40:02,920 Speaker 1: that can get us through. So for you today, Ellie Musdal, 671 00:40:03,120 --> 00:40:04,759 Speaker 1: what else is true? 672 00:40:06,560 --> 00:40:12,040 Speaker 2: Let's go with this. Biggest mistake Germany made in World 673 00:40:12,080 --> 00:40:17,120 Speaker 2: War Two was declaring war on the Americans because we 674 00:40:17,200 --> 00:40:21,000 Speaker 2: were asleep, we were not into that war. Then the 675 00:40:21,120 --> 00:40:23,960 Speaker 2: Japanese bomb Pearl Harbor, and all of a sudden, we're like, 676 00:40:23,960 --> 00:40:26,560 Speaker 2: wait a minute, we can't stay on the shell. We 677 00:40:26,719 --> 00:40:29,319 Speaker 2: gotta get out there and find that. Germany declares words 678 00:40:29,360 --> 00:40:31,840 Speaker 2: like oh, we're gonna go to Europe right, kind of 679 00:40:31,920 --> 00:40:33,240 Speaker 2: wakes the sleeping giant. 680 00:40:34,320 --> 00:40:34,560 Speaker 3: To me. 681 00:40:35,239 --> 00:40:38,480 Speaker 2: I hope that is Dobbs, because people like me have 682 00:40:38,600 --> 00:40:41,319 Speaker 2: been screaming for years. We got to watch the Supreme Court. 683 00:40:41,400 --> 00:40:43,799 Speaker 2: What they're doing is wrong, what they're doing is evil. 684 00:40:43,840 --> 00:40:46,799 Speaker 2: They will take things away, And I can only hope 685 00:40:46,840 --> 00:40:49,440 Speaker 2: that Dobbs is that like Pearl Harbor moment, that is 686 00:40:49,560 --> 00:40:53,120 Speaker 2: that declaration of war moment where people that are not me, 687 00:40:53,640 --> 00:40:56,959 Speaker 2: people that are not steeped in this internescing legal world, 688 00:40:57,080 --> 00:40:59,799 Speaker 2: are like wait a minute, this Supreme Court is out here. 689 00:41:00,920 --> 00:41:04,480 Speaker 2: We gotta do something. And the results of the midterm elections. 690 00:41:05,280 --> 00:41:07,760 Speaker 2: I might not be wrong about that, because it seems 691 00:41:07,920 --> 00:41:12,440 Speaker 2: like finally the sleeping giant that is the emerging majority 692 00:41:12,520 --> 00:41:17,680 Speaker 2: of America that is not white cis heterosexual male men. 693 00:41:18,200 --> 00:41:20,520 Speaker 2: Seems like people are starting to wake up for the 694 00:41:20,800 --> 00:41:24,560 Speaker 2: danger and the threat posed by the Supreme Court. And 695 00:41:24,680 --> 00:41:26,600 Speaker 2: if we wake up to it and we fight it, 696 00:41:27,080 --> 00:41:29,400 Speaker 2: we are destined to win that because there's more of 697 00:41:29,480 --> 00:41:34,279 Speaker 2: us than there are of them, and they're very old. 698 00:41:34,800 --> 00:41:36,919 Speaker 1: I love that. I love that we gotta we gotta 699 00:41:36,960 --> 00:41:40,080 Speaker 1: wake up, we gotta organize, and they are wiland, They're wilind. 700 00:41:40,760 --> 00:41:44,319 Speaker 1: Oh my god, it's in thinge Ellen mus Dah, thank 701 00:41:44,400 --> 00:41:48,520 Speaker 1: you so much. You are a treasure. You are fantastic. 702 00:41:48,760 --> 00:41:51,160 Speaker 1: I keep waiting for you to have your own shown anthemyc. 703 00:41:51,360 --> 00:41:53,080 Speaker 1: But it might be too much for them. 704 00:41:55,480 --> 00:41:56,640 Speaker 2: I don't think they want that smoke. 705 00:42:07,640 --> 00:42:11,960 Speaker 1: I love Ellie Mastaal so much. He's such a great 706 00:42:12,040 --> 00:42:16,960 Speaker 1: legal mind, and he's able to make the law, the 707 00:42:17,080 --> 00:42:20,640 Speaker 1: constitution just very clear and make the stakes really clear. 708 00:42:20,800 --> 00:42:24,360 Speaker 1: And I love that. I love the Star Wars reference. 709 00:42:24,520 --> 00:42:28,919 Speaker 1: I love quoting Kermit the Frog. That's definitely a first 710 00:42:28,960 --> 00:42:31,960 Speaker 1: on this podcast and the first season of the Laverne 711 00:42:32,000 --> 00:42:35,440 Speaker 1: Costs Show. When I spoke to Richard Rosstein about his 712 00:42:35,600 --> 00:42:39,480 Speaker 1: book The Color Blaw and the History of Housing discrimination, 713 00:42:39,719 --> 00:42:44,359 Speaker 1: he suggested that we need a mass movement for people 714 00:42:44,440 --> 00:42:46,879 Speaker 1: to rise up. But what does it mean to really 715 00:42:46,960 --> 00:42:51,439 Speaker 1: be organized as masses of people whose rights are being 716 00:42:51,600 --> 00:42:54,360 Speaker 1: taken away? What does that look like? Who are the 717 00:42:54,440 --> 00:42:57,359 Speaker 1: folks who can mobilize us, how we mobilize each other, 718 00:42:57,600 --> 00:43:05,280 Speaker 1: mobilize ourselves into action and organization that can actually create change. 719 00:43:05,719 --> 00:43:09,080 Speaker 1: I think that those are the questions that we have 720 00:43:09,239 --> 00:43:11,959 Speaker 1: to continually ask ourselves as we try to take action 721 00:43:12,360 --> 00:43:17,000 Speaker 1: to make sure everyone in this country has civil rights. 722 00:43:17,719 --> 00:43:28,160 Speaker 1: As we said to be continued. Since my conversation with 723 00:43:28,280 --> 00:43:32,400 Speaker 1: Ellie Mastahal, the Supreme Court has handed down its decisions 724 00:43:32,600 --> 00:43:36,360 Speaker 1: for the year. Amongst them, the Supreme Court sided with 725 00:43:36,480 --> 00:43:42,960 Speaker 1: three or three Creative basically legalizing discrimination against the LGBTQ 726 00:43:43,160 --> 00:43:47,560 Speaker 1: plus community on the basis of free speech, and the 727 00:43:47,640 --> 00:43:53,480 Speaker 1: Supreme Court overturned affirmative action for colleges and universities. On 728 00:43:53,600 --> 00:43:56,560 Speaker 1: the day the affirmative action decision was released, Eli shared 729 00:43:56,640 --> 00:44:00,360 Speaker 1: his perspective on MSNBC's The Medi Hassan Show. Here's some 730 00:44:00,440 --> 00:44:01,279 Speaker 1: of what he had to say. 731 00:44:02,200 --> 00:44:04,000 Speaker 2: We have evidence for how this is going to play 732 00:44:04,000 --> 00:44:07,400 Speaker 2: out in California, in Michigan and other states that have 733 00:44:07,480 --> 00:44:10,640 Speaker 2: banned affirmative action, and we see that diversity goes into 734 00:44:10,680 --> 00:44:14,560 Speaker 2: the tank. And that's what Roberts wants. That's what these 735 00:44:14,920 --> 00:44:19,920 Speaker 2: six conservative wants. They don't care about the diversity. They 736 00:44:19,960 --> 00:44:25,759 Speaker 2: don't care about the Fourteenth Amendments, racially ameliated riv programs, 737 00:44:25,880 --> 00:44:29,200 Speaker 2: right like people need to understand affirmative action. The first 738 00:44:29,200 --> 00:44:32,759 Speaker 2: time that happened in American history was during reconstruction. 739 00:44:34,480 --> 00:44:40,560 Speaker 1: Oh. I think it's important to note, in the context 740 00:44:40,600 --> 00:44:43,440 Speaker 1: of my conversation with Ellie Mistall, that this should not 741 00:44:43,600 --> 00:44:49,000 Speaker 1: be surprising considering this court. Ellie reminded us that the 742 00:44:49,280 --> 00:44:54,840 Speaker 1: makeup of this court, he feels, will overdetermine the nature 743 00:44:54,960 --> 00:44:59,120 Speaker 1: of these kinds of decisions, and so much of what 744 00:44:59,360 --> 00:45:01,400 Speaker 1: Elle writs to in his book and what we talked 745 00:45:01,400 --> 00:45:08,200 Speaker 1: about in our conversation around the Fourteenth Amendment feels reflective 746 00:45:08,400 --> 00:45:14,480 Speaker 1: of these decisions that roll back progress in this country, 747 00:45:14,520 --> 00:45:19,000 Speaker 1: that roll back the civil rights of citizens of this country. 748 00:45:20,080 --> 00:45:26,800 Speaker 1: And Ellie said that he hoped Dobbs would be the 749 00:45:26,840 --> 00:45:32,840 Speaker 1: decision that awakened the sleeping giant, and he had hoped 750 00:45:32,840 --> 00:45:35,000 Speaker 1: that the midterms had done that. And I don't know 751 00:45:35,719 --> 00:45:38,600 Speaker 1: if the sleeping giant has been awakened. I'm not sure 752 00:45:38,640 --> 00:45:44,759 Speaker 1: about that. I know that in this moment, I'm pissed off. 753 00:45:45,040 --> 00:45:52,400 Speaker 1: I'm angry. As much as I love being an American, 754 00:45:52,480 --> 00:45:57,080 Speaker 1: it's also embarrassing. It's embarrassing to be an American in 755 00:45:57,200 --> 00:46:00,520 Speaker 1: these moments when the human rights of so many people 756 00:46:01,239 --> 00:46:08,640 Speaker 1: are being taken away. It's embarrassing, it's enraging, it's angering. Yeah, 757 00:46:09,000 --> 00:46:12,319 Speaker 1: I mean yeah, I'm like, Fuck the Supreme Court. That's 758 00:46:12,360 --> 00:46:14,680 Speaker 1: really where I'm at right now. Fuck the Supreme Court. 759 00:46:15,480 --> 00:46:18,040 Speaker 1: And you know, I always like to try to be 760 00:46:18,160 --> 00:46:22,520 Speaker 1: loving and mgnanimous, and I don't know, I just feel 761 00:46:22,560 --> 00:46:25,080 Speaker 1: like we're past that. I feel like we've reached a 762 00:46:25,200 --> 00:46:30,920 Speaker 1: point where the Supreme Court where state legislators which have banned, 763 00:46:31,040 --> 00:46:33,200 Speaker 1: you know, twenty states, a band, gender firm, and care. 764 00:46:33,800 --> 00:46:36,279 Speaker 1: I feel like we're at a point where a lot 765 00:46:36,360 --> 00:46:40,320 Speaker 1: of politicians and judges they're saying fuck you to me 766 00:46:40,840 --> 00:46:44,680 Speaker 1: and my rights and my right to exist and the 767 00:46:44,800 --> 00:46:47,680 Speaker 1: rights of so many of my fellow citizens to exist. 768 00:46:48,280 --> 00:46:50,759 Speaker 1: Like they're saying fuck you to me. They are, and 769 00:46:50,840 --> 00:46:54,160 Speaker 1: they're saying fuck you to anyone who has the capacity 770 00:46:54,200 --> 00:46:57,040 Speaker 1: to get pregnant. They're saying fuck you to anybody who 771 00:46:57,640 --> 00:47:00,640 Speaker 1: maybe does not have a legacy admission and wants to 772 00:47:00,680 --> 00:47:02,719 Speaker 1: go to college, saying fuck you to a lot of people. 773 00:47:02,719 --> 00:47:04,800 Speaker 1: They're saying fuck you to people who were going to 774 00:47:04,880 --> 00:47:07,960 Speaker 1: get their student loans forgiven. They're saying fuck you to 775 00:47:08,080 --> 00:47:10,600 Speaker 1: people who want to unionize they want. They're saying fuck 776 00:47:10,600 --> 00:47:13,000 Speaker 1: you to people want to fair wage. Then, so I'm like, 777 00:47:13,120 --> 00:47:17,120 Speaker 1: fuck you back. That's that. I'm fuck you too, fuck 778 00:47:17,200 --> 00:47:27,000 Speaker 1: you too. Thank you for listening to The Laverne Cox Show. 779 00:47:27,400 --> 00:47:30,320 Speaker 1: Please rate, review, subscribe, and share with everyone you know. 780 00:47:30,840 --> 00:47:33,000 Speaker 1: You can find me on Instagram, Twitter, and TikTok at 781 00:47:33,080 --> 00:47:36,719 Speaker 1: Laverne Cox and on Facebook at Laverne Cox for Real. 782 00:47:38,000 --> 00:47:45,520 Speaker 1: Until next time, stay in the love. The Laverne Cox 783 00:47:45,600 --> 00:47:49,440 Speaker 1: Show is a production of Shondaland Audio in partnership with iHeartRadio. 784 00:47:49,920 --> 00:47:53,680 Speaker 1: For more podcasts from Shondaland Audio, visit the iHeartRadio app, 785 00:47:54,040 --> 00:47:57,320 Speaker 1: Apple podcast, or wherever you listen to your favorite shows.