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wait. AutoTrader. Hello,

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and welcome back to Strict Scutiny, your

0:48

podcast about the Supreme Court and the

0:50

legal culture that surrounds it. We're your

0:53

hosts. I'm Melissa Murray. I'm Kate Shaw.

0:55

And I'm Leah Litman. And today we are

0:58

your podcast about the Supreme Court's continued efforts

1:00

to read the 14th Amendment out of the

1:02

Constitution. The Supreme Court decided the presidential disqualification

1:04

case, so we are bringing you an actually

1:07

expedited emergency episode to explain what they did

1:09

and break it down. I think we should

1:11

also use this episode to officially launch the

1:14

It's Time for some Bad Decisions segment because

1:16

yikes, between the court's order in the January

1:19

6th criminal case and this decision, it's bad.

1:21

And I want to be clear, like by bad, I'm

1:23

not necessarily talking about the bottom line conclusion in this

1:26

case, allowing states to disqualify presidential officers

1:28

is complicated. But the reasoning in this

1:30

decision is bad. It's really bad. And

1:32

because I don't know, at least speaking

1:34

for myself, think law is a thing.

1:36

And you know, we're law professors, we

1:38

think that matters, in part because of

1:40

what it reveals, you know, is driving

1:42

the court if it's not the awful

1:44

institutionalist law professors and not the really

1:46

cool law professors. I was just so

1:48

strident there. Not the

1:51

cool law professors who were never really

1:53

buying into this whole institutionalist thing and

1:56

are jaded and cynical by nature. We're

1:58

so naive, you guys. So dumb. Ladies.

2:02

Strident, dumb lady brain. All right, so

2:05

let's bring all that to bear on

2:07

the opinion that the court issued this

2:09

morning. And the bottom line,

2:11

which Leah alluded to a minute ago, is

2:13

that the Supreme Court said that Colorado and

2:15

other states cannot disqualify Trump from the ballot

2:17

under Section 3 of the 14th Amendment. So

2:19

that narrow bottom line holding was 9-0. It

2:22

was unanimous. But the opinion is actually

2:24

more like 5-4 with respect to the

2:26

court's reasoning. And that reasoning, which

2:28

garnered just five votes, says that

2:30

the power to disqualify insurrectionists lies

2:33

only with Congress and

2:35

also that there are substantial limits on

2:37

the way Congress can disqualify insurrectionists. We'll

2:40

break down that opinion, which was a per

2:42

curiam opinion, meaning no identified author. We'll

2:45

also talk about a separate writing by Justice

2:47

Barrett. And then we will talk about a

2:49

separate concurrence by the court's three Democratic appointees.

2:51

Which really read like a dissenting opinion, had

2:53

real... I know, I can't say... ...concurrent. ...concurrent.

2:56

I did agree with the bottom line, but it was one of those

2:59

violent agreements about the bottom

3:01

line and disagreement about the reasoning in

3:03

the majority or in the per curiam

3:05

opinion. Well, let's talk about

3:07

that per curiam opinion. So it

3:09

holds, as we predicted coming out of

3:12

the oral argument, that states lack the

3:14

authority to enforce Section 3 of the

3:16

14th Amendment against federal officers, especially maybe

3:20

only, it's not entirely clear, when those

3:22

federal officers are also

3:24

presidential candidates. But then

3:26

it goes further to opine that history

3:28

and tradition and text and maybe all

3:30

of the things make clear that only

3:33

Congress can enforce Section 3 and only

3:35

by remedial legislation that the Supreme Court

3:37

deems congruent and proportional. Can I just...

3:40

That means... Wait, can I... Yeah.

3:42

This is a Section 3 opinion that I think I'm going to use

3:45

to teach Section 5 of the 14th Amendment now. Oh,

3:47

for sure, for sure. Because

3:49

it actually says legitimate things

3:51

about Section 5, namely that

3:54

Congress has the primary role

3:56

in enforcing the Reconstruction Amendment,

3:58

which is not something... The court

4:00

basically ever does in actual Section 5

4:02

cases. Anyway, so... But

4:04

of course, when it gives with one hand, it takes away

4:06

with the other in saying the court is going to superintend

4:09

Congress's exercise of that enforcement authority. This is

4:11

exactly like the Fifth Circuit's

4:13

reasoning in the CFPB case,

4:15

where they're like, Congress's authority

4:17

to make appropriations. It's so

4:19

exclusive. We court are going

4:21

to tell Congress how they

4:24

have to exercise that authority. And

4:26

here, the Supreme Court is saying

4:28

Congress's power under the Reconstruction amendments

4:30

is so authoritative, right? So primary.

4:33

We Supreme Court are going to tell

4:35

Congress how it gets to exercise that

4:37

power. Because it seems like

4:39

the court is effectively ruling out the

4:42

possibility and the permissibility of a majority

4:44

of congressional representatives refusing to seat someone

4:46

who's been elected to office if the

4:49

representatives believe that person is an insurrectionist.

4:51

That seems to be a key

4:53

dividing line between the five justices in the

4:55

per curiam opinion and the others. I

4:58

should note, I have seen some people suggest

5:00

the court didn't actually rule that out or

5:02

require Congress to act via legislation here. But

5:04

we'll go through the passages in the opinion

5:06

that at least I think are indicative of that

5:08

view. And I am not in

5:10

the business of saying that we told you so,

5:12

except when I am in the business of saying

5:14

that we told you so. And I

5:17

just want to say we did tell you so. And

5:20

because I'm someone who likes

5:22

receipts, I brought some today.

5:24

So let's roll some clips. And

5:26

Jason Murray took the lectern. Based

5:29

on the various colloquies between Murray and

5:31

the justices, we are pretty convinced that

5:33

the court is going to reverse the

5:35

Colorado Supreme Court on the grounds that

5:37

states cannot disqualify federal officials or perhaps

5:40

just the president absent congressional

5:42

authorization to do so. This

5:44

is a little different from any of the

5:46

arguments Mitchell made, though it's related to some

5:48

of them. So we're going to flesh that

5:50

out. And we should note that it's not

5:53

clear how exactly the court will justify this

5:55

new, air quotes rule that states

5:57

can't disqualify federal office holders absent

5:59

congressional authorization, but it does seem

6:01

like that is exactly the direction that

6:04

they're headed in. So

6:06

despite calling this,

6:08

I think I'm still pretty

6:10

triggered and offended by this

6:12

opinion. So it is

6:15

actually worse than we thought it was. Don't

6:17

you think? I agree. Like, Melissa, you

6:19

brought the receipts. The court did not

6:22

bring the receipts, the timeline, the screenshots,

6:24

or anything. I'm not

6:27

going to lie. Yeah.

6:29

So not surprising as a bottom

6:31

line outcome, but nevertheless disappointing in particular in

6:33

reasoning. And to go back to something that

6:35

we said a couple of minutes ago, even

6:37

when the court behaves in what really feel

6:39

like unprincipled ways, we continue to think it's

6:41

important to try to hold them to higher

6:43

standards. And so we're going

6:45

to walk through some of the acrobatics that the court performed

6:47

in order to first get Trump

6:50

back on or to remain on the

6:52

ballot, and second and more egregiously

6:54

in some ways to make it

6:56

harder to disqualify insurrectionists, including Trump, going

6:58

forward. So understanding

7:00

these inconsistencies and the court's pretty

7:02

incoherent rationales helps underscore a point

7:04

the Democratic appointees made in their

7:06

separate writing, which is that they

7:08

accused the court of, quote, deciding

7:10

novel constitutional questions to insulate this

7:12

court and petitioner from future controversy,

7:15

close quote. And the petitioner, to

7:17

be clear, is Donald Trump here.

7:19

To be clear, and to be

7:21

clear, the Democratic appointees are basically

7:23

saying that this court is

7:26

in the bag for Donald Trump. That's

7:28

the big charge. I mean, that concurrence

7:30

slash dissent was ready

7:33

and loaded for bear because they made

7:35

really clear that we all should take

7:37

note, especially on the heels of the

7:39

court's recent decision to grant certiorari in

7:41

the Trump immunity appeal related to the criminal

7:43

case arising out of January 6th that

7:46

jeopardizes the possibility of a trial before the election. That

7:49

we ought to understand everything the

7:51

court is doing as in service

7:53

of Donald Trump. Like, this is

7:55

the committee to reelect the president.

7:59

And they are creepy. Not

8:01

more than others. The

8:04

Democratic appointees also expressed concern about how,

8:06

quote, the majority shuts the door on

8:08

other potential means of federal enforcement, end

8:11

quote, of Section 3. Okay. So

8:13

as promised, we are going to walk through the problems with

8:15

the reasoning in this opinion. First, again,

8:18

as a kind of top line,

8:20

the court has, taking a phrase

8:22

from Sam Alito, basically shadow-banned and

8:24

content-moderated the 14th Amendment out of

8:26

the Constitution. Here's specifically Section 3

8:28

of the 14th Amendment, because the

8:30

court said federal office holders can

8:32

be disqualified from office if Congress

8:34

passes legislation under Section And

8:37

these are the passages that I had in mind when

8:40

I was saying it seems like

8:42

the per curiam kind of rules

8:44

out the possibility of other methods

8:46

of Congress disqualifying federal office holders.

8:48

So here's one, quote, the Constitution

8:50

empowers Congress to prescribe how these

8:52

determinations should be made. The relevant

8:55

provision is Section 5, which

8:57

enables Congress, subject of course, to

8:59

judicial review to pass appropriate

9:01

legislation to enforce the 14th Amendment,

9:03

end quote. The court also adds, quote, Congress's

9:06

Section 5 power is critical when it comes

9:08

to Section 3, end quote. I

9:10

should note that in a really

9:12

weird sentence, the court also says that

9:14

in the years following ratification, the House

9:16

and Senate exercised their unique powers under

9:19

Article 1 to adjudicate challenges contending that

9:21

certain prospective or sitting members could not

9:23

take or retain their seats due to

9:26

Section 3, end quote, which seems to

9:28

acknowledge that Congress may have sometimes done

9:30

this without authorizing legislation. But

9:33

those other passages in the per curiam opinion

9:36

led, I think, me as well as the joint

9:38

concurrence by the Democratic appointees, as well as the

9:40

Barrett concurrence, to say the majority decided that

9:42

federal legislation is necessary to enforce Section

9:44

3. And in

9:47

one of the more, I think, Orwellian passages of

9:49

the per curiam opinion, the court says that, quote,

9:51

the text of Section 3 reinforces these conclusions when

9:53

the text kind of says the opposite, like

9:55

the text does not reinforce that conclusion. The text of Section 3

9:58

contains a prohibition just like the text of Section 3 does. as

10:00

Section 1 does. Section 1 contains the prohibitions

10:02

on states denying equal protection and depriving people

10:04

of liberty without due process. And Section 1

10:07

is enforceable. That prohibition is enforceable even if

10:09

Congress doesn't enact statutes. And Section 3 does

10:12

nothing about affirmatively requiring congressional legislation.

10:14

To the extent that it

10:16

says anything about Congress, it suggests that

10:18

legislation isn't actually needed to enforce

10:21

Section 3. And yet, the

10:23

court uses language in Section 3 that

10:25

undermines its conclusion and insists that the

10:27

language actually supports its

10:29

conclusion. So the court says, quote,

10:32

its final sentence empowers Congress to

10:34

quote, remove any Section

10:36

3 disability by a two thirds vote

10:38

of each house. The text imposes no limits

10:40

on that power and Congress may

10:42

exercise it anytime as the respondents

10:44

can see, end quote. Melissa

10:47

just made a face that like I wish our listeners

10:49

could see. The

10:52

math ain't mathing. Exactly.

10:55

And to break down exactly how it's not

10:57

mathing, the argument that the PC

10:59

opinion offers just truly makes no sense. So, you

11:01

know, as we talked about in our previous coverage

11:04

of this case, and as Melissa just described, the

11:06

language in Section 3 says that Congress can remove

11:08

a disability by a two thirds vote. This,

11:10

to our mind, at

11:12

least makes it less likely, in

11:15

fact, virtually incoherent to claim that

11:17

Section 3's prohibition on insurrectionist holding

11:19

office has no teeth absent congressional

11:21

legislation. The provision that grants the

11:23

power to remove a disqualification by

11:26

a two thirds vote clearly contemplates

11:28

that disqualification already exists. Otherwise,

11:30

the two thirds vote to remove

11:32

the disqualification wouldn't be necessary. What

11:35

am I missing? No, you're not missing

11:37

anything. This is an example of what

11:39

I mean when I say the court

11:41

is no law, just vibes, right? They

11:43

took some superficial legal thing, the text

11:45

of Section 3, and just declared that

11:47

it means the exact opposite of what

11:49

it seems to logically mean, because if

11:51

Congress can only remove a disqualification by

11:54

two thirds vote of each house, why

11:56

would the amendment give a simple majority

11:58

of Congress the power to to block

12:00

disqualification at all, since a simple majority

12:02

could block the passage of legislation. Like,

12:05

that's why this is Orwellian. The

12:07

opinion is replete with references that

12:09

minimize Section 3, which I think

12:12

is really interesting as well. For

12:14

example, the majority says this, quote, it,

12:17

Section 3, was designed to help ensure

12:19

an enduring union by preventing former Confederates

12:21

from returning to power in the aftermath

12:24

of the Civil War, end quote.

12:27

No friends, sorry. It's

12:30

about insurrectionists, like just full

12:32

stop insurrectionists who could be

12:34

former Confederates but could also be other people

12:37

conspiring to overthrow the

12:39

government. It says insurrectionists.

12:42

This isn't textualism, it's just some other

12:44

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it's kbb.com. So

15:01

there are those issues with the court's reading of

15:04

the text of the 14th Amendment. And

15:06

another thing that I think is particularly galling about

15:08

the percureum opinion really gets to a point that

15:10

we talked about with Cheryl and Eiffel on a

15:12

recent episode. And Cheryl and Eiffel is someone who

15:14

actually knows some things about the 14th Amendment, unlike

15:17

the individuals who joined this percureum opinion. And

15:19

that issue is this. The court's decision

15:21

is especially egregious in light of what

15:23

this court has done with Section 5

15:26

and Congress's power to enact legislation to enforce the 14th

15:28

Amendment. This is something we were alluding to at the

15:31

outset of this episode. So the opinion

15:33

repeatedly invokes the centrality of Section 5,

15:35

that is the enforcement clause, to the

15:37

design of the 14th Amendment. There

15:39

have been a litany of cases,

15:41

however, in which the Supreme Court

15:43

has actually invalidated legislation that Congress

15:45

enacted under Section 5 of the

15:47

14th Amendment on the view that

15:50

Section 5 severely limits the

15:52

kinds of laws that Congress can enact

15:54

under Section 5. Do you see the

15:56

circularity here? So here are some examples.

15:59

In the Civil Rights cases. The court

16:01

in the 1880s struck down the first Civil Rights

16:03

Act of 1875 on the ground

16:07

that Section 5 only authorized Congress

16:09

to take steps to limit state

16:11

action, not private acts of discrimination.

16:13

Likewise, in City of Bernie v.

16:15

Flora, the more recent case, the

16:17

court struck down the Religious Freedom

16:19

Restoration Act as applied to the

16:21

states on the view that it

16:23

was not congruent and proportional

16:25

remedial legislation. In

16:27

Kimmel and Garrett, the court struck down

16:29

provisions of the ADA and the ADEA

16:32

as applied to the states on a

16:34

similar view. In United States v.

16:36

Morrison, it struck down Section 3981 of the Violence

16:38

Against Women Act

16:40

on the view that it applied to

16:42

private conduct as opposed to state option.

16:44

In Coleman, it struck down parts of

16:46

the FMLA as applied to the states.

16:48

In Allen v. Cooper, it did the

16:50

same thing in the context of the

16:52

Patent and Copyright Act. And in Shelby

16:54

County v. Holder, it concluded

16:57

that the VRA, though not a

16:59

Section 5 case, was not congruent

17:01

and proportional in the context of

17:04

remedying rampant voter discrimination. So

17:06

this court at every turn has

17:08

really tried to limit the force of

17:10

the Reconstruction Amendments and Congress's constitutionally

17:13

conferred authority to enforce

17:16

the requirements of the Reconstruction Amendments. And

17:19

in many of these cases, the court has said

17:21

that any legislation that Congress enacts under Section 5

17:23

must be congruent and proportional to a

17:25

pattern of constitutional violations. And the court

17:28

has said that this places more restrictions

17:30

on Congress's power to enact laws under

17:32

Section 5 than when Congress enacts

17:34

laws under other powers that are contained in

17:36

Article 1. This has led

17:38

them then to be incredibly trigger

17:40

happy when shooting down congressional legislation

17:42

that's authorized under Section 5 of

17:44

the Fourteenth Amendment and again, to

17:46

limit the force of the Fourteenth

17:48

Amendment and the other Reconstruction Amendments. But,

17:51

and now in the disqualification

17:53

case, the Supreme Court comes

17:55

along and says, because Congress

17:57

has not enacted legislation, That

18:00

means Section 3 is unenforceable. They

18:02

are acting as if Congress's failure

18:04

to adopt legislation is entitled to

18:06

more respect and more deference from

18:09

the court than when Congress actually

18:11

does enact legislation. Pick a lane.

18:13

Pick a lane. Right. And

18:17

this turns the 14th Amendment, in my

18:19

view, into a Schrodinger's Amendment of congressional

18:21

power that exists but also doesn't really

18:23

exist. The court is saying the substantive

18:25

provisions of Section 3 are unenforceable and

18:27

effectively not the law because Congress hasn't

18:29

done anything. But in all the previous

18:31

cases, the court has denied Congress's power

18:33

to enforce the amendments, making the 14th

18:35

Amendment less robust when Congress actually does

18:37

something. Another thing that the

18:40

opinion made me think about was the possibility

18:42

that the Reconstruction Amendment in general contain some

18:44

sort of SCOTUS supremacy principle, which is that

18:46

the court gets to strike down congressional legislation

18:48

to enforce the amendments, in all

18:50

the cases that Melissa was just talking about, but

18:52

also can say that Congress's failure to

18:55

enact legislation means that other provisions are

18:57

unenforceable and that the Supreme Court won't

18:59

decide whether someone is barred from office

19:01

under Section 3 absent congressional action. And

19:04

this is all very difficult to square with the

19:06

history of the Reconstruction Amendments because Congress,

19:08

when enacting those amendments, was very, very skeptical,

19:10

and rightly so, of the Supreme Court and

19:12

pretty clearly would never have wanted the Supreme

19:15

Court to have this kind of authority. And

19:18

I want to give a concrete example, which

19:20

the court had the audacity to include in

19:22

their opinion in this case of

19:25

the hypocrisy and how the court treats

19:27

actual legislation enacted under Section 5 compared

19:29

to the absence of legislation. So they

19:31

cite legislative history of the 14th Amendment,

19:33

which Neil Gorsuch is apparently now fine

19:36

with, quoting a senator

19:38

about Congress's role in enforcing the

19:40

amendment. And then the

19:42

court notes that, quote, the enforcement

19:45

mechanism, the Senator Champion, was later

19:47

enacted as part of the Enforcement Act of 1870,

19:50

end quote. The opinion also mentions this a

19:52

second time. Quote, instead, it is Congress that

19:54

has long given effect to Section 3. Shortly

19:57

after ratification of the amendment, Congress enacted the Amendment.

20:00

of the Enforcement Act of 1870." Well,

20:03

guess what the Supreme Court did with the Enforcement

20:05

Act of 1870? The

20:11

court effectively took the teeth out of

20:13

and nullified the force of the Enforcement

20:15

Act by reading it so narrowly they

20:17

read it to be toothless against the

20:19

threats of racial violence from the KKK.

20:22

That was the case, Cruickshank v. United States,

20:24

which we talked about on our episode with

20:27

Sherilyn, that case involved the Enforcement Act of

20:29

1870. The case reinvigorated

20:31

the Klan and helped facilitate the end

20:33

of Reconstruction because the opinion said that

20:35

a white militia attacking black freedmen at

20:37

a courthouse surrounding the contested election in

20:39

Louisiana was not something that

20:41

could be prosecuted under the Enforcement Act

20:43

because, again, they would not give Congress

20:45

the actual authority. They wouldn't let Congress

20:47

actually enforce the Reconstruction Amendment. So the

20:49

Supreme Court has hamstrung Congress from enforcing

20:51

the amendments. At the same time, it

20:53

is now insisting that it must be

20:56

Congress who enforces the amendment. And it's

20:58

just, in my view, completely shameless. But

21:00

on brand. Yes. Yes. Shameless

21:04

and on brand. The bar, as you say, is in hell.

21:07

Correct. So

21:10

I think this is as good a moment as any

21:12

to bring up the joint

21:14

opinion concurring in the judgment, but

21:16

essentially dissenting from everything else that

21:19

the Democratic appointees wrote. Here's

21:21

one of the lines that I wanted to quote. Quote,

21:24

in a case involving no federal

21:26

action whatsoever, the court opines on

21:28

how federal enforcement of Section 3

21:31

must proceed. Congress, the majority

21:33

says, must enact legislation under Section

21:35

5. These musings

21:37

are as inadequately supported as they

21:39

are gratuitous. End quote. I

21:42

love zero fucks Elena Kagan. I

21:45

know. I know. Also zero

21:47

fucks Katonji Brown Jackson and zero fucks Sonia Sotomayor.

21:49

All of it. I

21:51

love it all. My one note is that

21:53

they maybe should have captioned the opinion concurring

21:55

in the judgment, comma, but also dissenting from

21:58

all of the bullshit. Oh, that would have been. great.

22:00

Let's get that. Let's make that happen. Let's

22:03

make Supreme Court defense great again. Another

22:08

thing that struck me in reading all

22:10

of these opinions is that the

22:12

court is selectively toggling back and

22:14

forth between whittling down congressional legislation

22:17

and ramping up the absence of

22:19

legislation. And it all reminds me

22:21

of Pam Carlin's terrific 2012 Harvard

22:24

Law Review forward democracy and

22:26

disdain. And that forward began with

22:29

the line, quote, sometimes the justices

22:31

seem barely able to hide their disdain

22:33

for the other branches of government, end

22:35

quote. And there Carlin argued that the

22:37

current court combines a very robust view

22:39

of its interpretive supremacy with a

22:41

strikingly restrictive view of Congress's

22:44

enumerated powers. And she

22:46

continues, the Roberts Court's approach reflects

22:48

a combination of institutional distrust. The

22:50

court is better at determining

22:52

constitutional meaning and substantive distrust.

22:54

Congressional power must be held

22:56

in check, end quote. Basically, when

22:59

the court is talking about Congress, it

23:01

is reliably using Congress as a punching

23:03

bag. And in doing so, it arrogates

23:05

power to the court at the expense

23:07

of Congress, which we've seen over and

23:09

over and over again. This is a

23:11

recurring theme. We see this in the

23:14

administrative law cases. And now we're seeing

23:16

it here only the stakes

23:18

could not be higher because it's

23:20

not just whittling away Congress's power

23:22

and arrogating power to the court. It's arrogating power

23:24

to the court so that it can serve this

23:27

prospective presidential campaign. So

23:30

the court purports to basically center Congress as the

23:32

key actor here. But in all of these

23:34

ways, as you just mentioned, Melissa, the court

23:36

is really centering itself. And so let's talk

23:38

a little bit about how. So the

23:41

court basically says, in the percureum opinion, disqualification

23:44

by Congress has to

23:46

be the primary method or the sole

23:48

method of enforcing the 14th Amendment. But

23:51

that disqualification, according to the court, has

23:53

to happen in very particular ways. So

23:55

how specifically does the court

23:58

seem to think this disqualification? by

24:00

Congress has to happen. So one,

24:02

by legislation and legislation

24:04

that in the court's estimation is

24:07

sufficiently remedial under Section 5 that

24:09

it would satisfy the court's congruence

24:11

and proportionality test. So it would

24:13

enforce Section 3 as the

24:15

court understands Section 3. But

24:18

then there are also all these questions

24:20

that Leah alluded to a couple of

24:22

minutes ago about whether the court's reasoning

24:24

here actually upsets long settled practice in

24:26

which Congress gets to determine the qualifications

24:28

of its own members. So there is

24:30

historical practice of Congress refusing to

24:32

seat insurrectionists, including in an episode of

24:34

the court sites involving John Christie. There

24:36

was no legislation in that exclusion. Does

24:39

the court seem to think that

24:41

in the future an actual bill passed by both

24:43

houses and signed by the president will be required

24:45

before that? I think the same questions arise

24:47

with respect to expulsion of a member, which

24:49

under the Constitution each house can do with

24:51

a 2-thirds vote. That happened with New York

24:53

Representative George Santos just a couple of months

24:56

ago. Does the court here also

24:58

say that if a sitting member engaged in insurrection,

25:00

there would first need to be legislation before a

25:02

house could expel that member for insurrection? And the

25:04

last thing I think the court leaves somewhat

25:06

unclear is whether Congress, in the joint session

25:09

of Congress that was the target of the

25:11

January 6th attack, whether Congress

25:13

could potentially disqualify an insurrectionist as

25:15

part of its counting function, I

25:18

think no under the court's reasoning. So these

25:20

are all ways that Congress is actually constrained

25:22

even as the court is at pain to

25:24

suggest that Congress is in the driver's seat.

25:27

Even if Congress enacted legislation, it is possible

25:30

that this court would say the legislation was

25:32

not sufficiently remedial, as Kate was alluding to.

25:34

So imagine if Congress enacted the law disqualifying

25:36

Trump on the ground that they thought Trump

25:38

was an insurrectionist. My guess is there are

25:40

at least two votes on

25:42

this court to strike down that legislation on

25:45

the ground that it wouldn't be consistent with

25:47

this Supreme Court's understanding of Section 3 and

25:49

therefore would not be remedial. There's also some

25:51

discussion about the actual events that are at

25:54

the heart of the case. This

25:56

is the most the five justices who joined the

25:58

percarium opinion were willing to see. say about

26:00

the events of January 6,

26:03

2021, quote, these voters whom

26:05

we refer to as the respondents contend

26:07

that after former President Trump's defeat in

26:09

the 2020 presidential election, he disrupted the

26:12

peaceful transfer of power by intentionally organizing

26:14

and inciting the crowd that breached the

26:16

Capitol as Congress meant to certify the

26:18

election results on January 6, 2021, end

26:21

quote. That's

26:24

it. And again, I

26:26

think you have to read that in

26:28

conjunction with its grant of certiorari, where

26:30

it seems to credit the idea that

26:32

maybe there is some room

26:36

for disagreement about whether or not

26:38

Donald Trump's actions were allegedly in

26:40

the scope of his office or not. That's

26:42

their language, not mine. But

26:45

again, it just seems like they are really

26:47

going out of their way to sort of

26:49

limit the discussion of what happened on January

26:51

6 and to minimize

26:54

its importance going forward both

26:56

in this election and generally

26:58

as a matter of constitutional law, which

27:01

leads it to the three democratically

27:03

appointed justices in their concurrent dissent

27:05

to actually describe what is in

27:07

fact at stake. And they do. And

27:10

we'll turn to that writing in just a minute, but maybe

27:12

like a couple more beats on the procuring opinion first. And

27:14

one is that there are these other kind of

27:16

dubious attempts at support that the opinion offers.

27:19

So there is this jam that is worth quoting, and

27:22

that is, quote, nor have the

27:24

respondents identified any tradition of state enforcement

27:26

of Section 3 against federal officeholders or

27:28

candidates in the years following ratification of

27:30

the 14th Amendment. Such a

27:32

lack of historical precedent is generally a telling

27:34

indication of a severe constitutional problem with

27:36

the asserted power. And

27:38

I just have to ask, is that really what

27:40

is the telling indication of, or might it also

27:42

have something to do with the happy fact that

27:45

until recently we just haven't had presidents to

27:47

interfere with the peaceful transition of power

27:50

and thus there just hasn't been reason to

27:52

invoke this provision? Might that be why we don't

27:54

have a documented history of the sort the court

27:56

seems to be looking for? I think you're asking,

27:58

Kate, whether this opinion is willfully... blind or

28:00

deliberately obtuse. I'm going to say both.

28:03

It's also completely clueless and

28:05

perhaps even deliberately obtuse about

28:08

the highly federalized nature of federal elections

28:10

already. So the court makes a lot

28:13

of the fact that it

28:15

would never allow a quote unquote patchwork

28:17

of ballots that would result from state

28:19

enforcement. Doing so would quote unquote sever

28:21

the direct link that the framers found so

28:23

critical between the national government and the people of

28:25

the United States. End quote. Now we predicted

28:28

that they would never count nince this idea

28:30

of a patchwork of ballots. But this

28:33

reasoning is frankly just

28:35

absolutely bonkers because we

28:37

already give the states enormous leeway in running

28:39

elections. And you know all they have to

28:41

say is like for this election for the

28:44

ballot like it's really important that we have

28:46

like the same candidates beyond the ballot whatever.

28:48

But the idea that we're just going to

28:50

base this in the view that all elections

28:52

have to be sort of nationally governed and

28:54

uniform. They themselves don't even

28:56

do that because they are constantly allowing

28:59

and crediting suppressive voter laws that

29:01

make it difficult for certain groups

29:03

in one state to exercise the

29:05

ballot whereas it's perfectly fine for

29:07

those groups in another state. So

29:09

we already have a patchwork of

29:11

electoral policies throughout the country and

29:13

we already give the states enormous

29:15

leeway in how they run their

29:17

elections including elections for federal office.

29:20

So it is a

29:22

little late to be stating

29:24

that there is a broad

29:26

constitutional infirmity about the prospect

29:28

of patchwork election policies. We

29:30

already have that. Like there is

29:32

a reason I think to be concerned

29:34

in this instance but across the board

29:36

this court has already blessed the prospect

29:39

of numerous voting laws that are a

29:41

patchwork all across the country. So

29:43

in addition to waking up to some

29:45

of the concerns with the federalized system

29:47

of elections something else dawned on the

29:49

court in this opinion which is that

29:51

maybe multi-factor legal tests are okay because

29:53

for a bunch of people who gave

29:55

Justice Breyer endless amounts of shit for

29:57

adopting multi-factor legal tests. All

30:00

of a sudden they seem just fine with them.

30:02

You know, the opinion says, quote, it is a

30:04

combination of all of these reasons set forth in

30:06

this opinion that resolves this case. In our view,

30:09

each of these reasons is necessary to provide a

30:11

complete explanation for the judgment the court unanimously reaches,

30:13

end quote. You know who thought

30:15

this decision was well-reasoned, though? Donald

30:18

Trump. And he knows something about

30:20

the law. So let's play his reaction here.

30:22

Very important decision. We're very well crafted. And

30:25

I think it will go a long way

30:28

toward bringing our country together, which our country

30:30

needs. And

30:32

they work long. They

30:34

work hard. And frankly, they work very

30:36

quickly on something that

30:39

will be spoken about 100

30:41

years from now and 200 years from now. Extremely

30:44

important. And then in another statement,

30:46

you know, he capitalized and emphasized on the fact

30:48

that the court seemed to be together

30:51

on this issue as far as the bottom line

30:53

results. So we'll play that here as well. So

30:55

just to finish, I have great respect for the

30:58

Supreme Court. And I want

31:00

to just thank them for working

31:03

so quickly and so diligently

31:05

and so brilliantly. And

31:08

again, this is a unifying factor. Everybody

31:11

and I was together and they can go after me as

31:14

a politician. They can go after me with votes,

31:17

but they're not going to go after me

31:20

with that kind of lawsuit that

31:22

takes somebody out of a race. Who's leading in

31:24

this case, but even if

31:26

the person wasn't leading. And

31:29

I want to thank you all for being here. Tell me

31:31

you didn't read the concurrences without telling me you didn't

31:33

read the concurrences. Right.

31:36

Exactly. Exactly. And speaking

31:38

of the concurrences, we are now going to go

31:40

on to discuss the separate writing by Justice Barrett.

31:43

This is in part a concurring opinion and

31:45

in part a concurrence in the judgment. What

31:47

that means is she did not join some

31:49

of the reasoning in the

31:51

per curiam opinion. Specifically, she did not

31:53

join the parts of the opinion that

31:56

seem to in various passages

31:58

require congressional legislation. to authorize disqualification.

32:00

I mean, the TLDR of this

32:02

opinion is, I'm a cool girl,

32:05

pick me fellas, right? That's

32:07

all. What else?

32:10

What else was there to say about that? Basically,

32:12

she says in this opinion, like

32:14

the other ladies on this court, I

32:16

agree that this percarium opinion is getting way

32:19

ahead of itself. We

32:21

could just decide here that the states

32:23

can't enforce section 3 against a presidential

32:25

candidate. But instead of actually joining the

32:27

other women on the court in

32:29

a show of solidarity and maybe explaining

32:32

why this court is completely high on

32:34

its own supply, I will

32:37

instead bash my fellow sisters and

32:41

big up Brodus because feminism.

32:44

These bitches have turned the temperature up, way up,

32:47

and I will not have it. I will not have

32:49

it. Amy Barrett, out. That's

32:52

the opinion. That sounds like an overstatement. Melissa

32:55

just did a very faithful pair of phrase of

32:58

exactly what Amy Coney Barrett wrote. So I'm actually going

33:00

to quote it here, and you'll see how similar it

33:02

is. So she basically says, after noting that, again, she

33:05

would have decided the case just by narrowly holding that

33:08

Colorado couldn't disqualify Trump, quote, the majority's choice of

33:10

a different path leaves the

33:12

remaining justices with a choice of how to respond. In

33:15

my judgment, this is not the time

33:17

to amplify disagreement with stridency. The

33:19

court has- You harpies. That

33:22

was implicit, but definitely there. And she goes

33:24

on, The court has settled a politically charged

33:26

issue in the volatile season of a presidential election.

33:29

Particularly in this circumstance, writings on

33:32

this court should turn the national temperature

33:34

down, not up. For present

33:36

purposes, our differences are far less important than

33:38

our unanimity. All nine justices

33:40

agree on the outcome of this case. That is

33:42

the message Americans should take on. Wait, time

33:44

the fuck out. How

33:46

is it that she agrees that Brodus

33:49

is the problem, but she's beating up

33:51

on the other women? This

33:54

is so on brand, both

33:56

for her and for the political context

33:58

in which she was- appointed. Here you

34:01

have Justice Ginsburg's replacement calling her now

34:03

three female colleagues strident and it exemplifies

34:05

the hollowness of the brand of identity

34:07

politics that the Republicans traffic in where

34:10

feminism means just appointing women to the

34:12

Supreme Court who will lecture the other

34:14

harpies about being overly strident in their

34:16

efforts to warn democracy about what this

34:19

court is doing. She's weaponizing her gender

34:21

and her presence on the court against

34:23

her female colleagues who are attempting to

34:25

inform the public about what the court

34:28

has done and nothing, there are very

34:30

few things that annoy me more than women

34:33

giving cover to regressive

34:35

gender politics and dynamics which

34:38

she seems to just twirl

34:40

in like that is her netier

34:43

if you will. And also girl like

34:46

if you think this opinion is strident,

34:48

have you read anything by the Justice

34:50

you clerked for Antonin Scalia who literally

34:52

said he would quote hide his head

34:54

in a bag rather than join a

34:56

majority opinion of the court or for

34:58

that matter any man that he can't

35:01

be okay okay you can only be

35:03

excited if you have ovaries but you know

35:05

who else isn't stride it Neil Gorsuch is

35:07

called legislation or Sam Alito who in Fulton wrote

35:09

a concurrence where he said the court has emitted

35:11

a wisp of a decision that leads religious liberty

35:14

in a confused and vulnerable state those who count

35:16

on this court to stand up for the First

35:18

Amendment to every right to be disappointed as am

35:20

I and that's a sharp

35:23

wit a sharp punch that's not trying to say

35:25

no totally different Sam Alito famous for his sharp

35:27

wit okay that meant that was

35:29

really targeted Scalia yeah I don't know what

35:31

to say yeah um not Alito I I

35:33

did want to say that this writing confirms

35:38

something I have ascribed

35:40

to Justice Barrett before and that is

35:42

her very strong Justice Strollaurus Umbridge vibes

35:44

like the real danger is not that

35:46

Voldemort might be about to return but

35:49

that people are getting worked up about

35:51

the facts that Voldemort might return and

35:53

are trying to guard against Voldemort's return

35:55

she's literally saying like you must be

35:57

civilized and speak in a civil tone,

36:00

when the coup starts ladies, the insurrection must

36:02

be met with civility. This is a

36:04

big whizzing gamut energy, I have to

36:06

say. It

36:10

has please don't say we're

36:12

mad, right, elements to it. Like I'm

36:14

not mad. Please don't put in the

36:16

newspaper that I got mad kind of

36:18

undercurrents. And it is consistent with what

36:20

I think of as a pattern now

36:22

of her showing flashes of these

36:25

bros are crazy. I'm not one of these

36:27

scotus bros, brodis scotis, but at the same

36:29

time failing to actually meaningfully materially distinguish herself

36:32

from them because she's right, of course, that

36:34

the percurean went further than necessary. But then

36:36

she turns around and tries to shame her

36:38

three female colleagues who explain why the court

36:41

shouldn't have done more than necessary to resolve the case.

36:44

Ladies when our overlords speak, you're

36:46

supposed to be decorous and civil.

36:48

Smile, smile more. Smile more. Myal

36:51

more. Sonya, Elena and Katanji, smile

36:53

more. And

36:55

even though I think she wants to be

36:57

saying that this case is evidence that the

36:59

court is great and totally about the law,

37:01

the thing she emphasizes is the fact that the

37:04

justices agree, quote, on the outcome, like not

37:06

on the law or the legal reasoning. Apparently

37:08

outcomes are what matters now, like who knew? And

37:10

the end of the majority per curium opinion has

37:13

some of this too. Yeah, the end of

37:15

the majority opinion says, quote, all nine members

37:17

of the court agree with that result, end

37:19

quote, like leaving aside the fact that there

37:21

are some major disagreements, like they're all in

37:23

agreement. And I think

37:26

with that in mind, for some actual

37:28

reason, unclear to anyone else on the

37:30

court, justices Sotomayor, Kagan and Jackson issued

37:32

a joint concurrence that concurred in the

37:35

judgment, but basically dissented from all of

37:37

the other quote, unquote, like

37:40

that's the legal term, which

37:42

is to say that this writing is joint in

37:44

the sense that it doesn't identify

37:47

a single author. And

37:49

it's a concurrence in the judgment because

37:51

they refuse to join any other parts

37:53

of the per curium opinion. So to

37:55

our mind, this is really a dissent

37:57

and I'm a treat it like a dissent.

38:00

So I wanted to note one

38:02

thing about this, which is Mark Joseph

38:04

Stern of Slate, who is fantastic, noted

38:06

that if you double-click on the opinion

38:08

where it says JJ at the top

38:11

and copy-paste it or control-F, the

38:14

line actually reads, Sotomayor

38:16

J, concurring in part

38:18

and dissenting in part. And

38:21

if you do a control-F search for

38:23

that, exactly, it highlights the same line.

38:25

It appears in the metadata. So that

38:29

provides some important legislative history

38:31

about how this began and

38:33

took shape. That's fascinating. Yeah, I

38:35

also wonder if Barrett was trying to get them,

38:37

like whether you sort of see the

38:40

results of some protracted negotiation on their

38:42

side of the nine that they then

38:44

did. The knitting circle? Things

38:46

really broke down in their efforts to

38:49

pull together. Apparently. Someone got

38:51

shivved with the knitting needle. Yeah.

38:55

We'll never do that again. But that's

38:57

fascinating. I hadn't seen that Stern catch. It's

38:59

really, really interesting. Okay. So

39:01

whatever it is, partial concurrence, partial dissent,

39:04

concurrence in the judgment, it starts with

39:06

a bang. And that bang is

39:08

that it cites the Chief Justice's concurrence in

39:10

Dobbs, the case, of course, that

39:12

overruled Roe, but where

39:14

the Chief Justice would have proceeded more

39:17

incrementally than his far more venturesome colleagues.

39:20

And here's the quote, if it is not necessary

39:22

to decide more to dispose of a

39:24

case, then it is necessary not to

39:26

decide more. So

39:28

wherefore that humility and

39:30

minimalism, John Roberts, seems to be the

39:32

question, the rhetorical question,

39:35

at least, that the concurrs begin with.

39:37

I think we were also exercised about the

39:40

majority opinion and dots that we really skipped

39:42

over, the Chief Justice's concurrence, in part because

39:44

it was so completely pointless. But that

39:47

what you just read, if it is not necessary

39:49

to decide more to dispose of a case, then

39:51

it is necessary not to decide more. That is

39:53

so like the way to stop discriminating on the

39:55

basis of the case. Exactly. Does

39:57

this guy have another lane? That's

40:00

a way on earth. He has a template

40:02

and he just like inserts right like, what's

40:05

your grievance? Like insert here. So that's

40:09

how the three justices,

40:12

Kagan, Sotomayor, and

40:14

Jackson start off. And let me

40:16

just say the tea continues

40:18

to steep and get hot. So the

40:21

next thing they do, like I think it's

40:23

like actually the next paragraph is they call

40:26

Donald Trump, not explicitly, but it

40:28

is very definitely implied a quote

40:31

unquote, oath breaking insurrectionists.

40:34

And there is no allegedly or anything

40:37

like that. They're just like, oh, it's

40:39

breaking insurrectionists. And to which

40:41

I say maybe accurate dot GIF.

40:44

Here's the exact quote, quote,

40:46

in this case, the court must decide

40:48

whether Colorado may keep a presidential candidate

40:51

off the ballot on the ground that

40:53

he is an oath breaking insurrectionist and

40:55

thus disqualified from holding federal office under

40:57

section three of the 14th amendment. Ladies,

41:01

I should be clear that that emphasis that Melissa

41:03

added to the passage is also evident in the

41:05

metadata. And then here comes Professor Katonji Brown Jackson

41:07

with her PhD dissertation on

41:15

the reconstruction amendments, noting that quote,

41:17

the contrary conclusion that a handful

41:19

of officials in a few states

41:22

could decide the nation's next president

41:24

would be especially surprising with respect

41:26

to section three, the reconstruction amendments

41:28

were specifically designed as an expansion

41:30

of federal power and an intrusion

41:32

on state sovereignty. Section three marked

41:34

the first time the constitution placed

41:36

substantive limits on a state's authority

41:39

to choose its own officials. I

41:41

just want to say like that. And she goes on

41:44

to say like that by itself is how we should

41:46

decide this case. But I love that she's sort of

41:48

sticking it in there like I am going to educate

41:50

this entire populace about the reconstruction amendments

41:52

at every possible turn I have

41:55

every possible chance I can get.

41:57

It is also worth noting that this opinion contains the

42:00

only reference to the importance of Section

42:02

3 in all of the

42:04

writings that were issued on this case. The

42:07

Joint Concurs to Centers say, quote,

42:09

Section 3 serves an important, though

42:12

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43:20

slash podcast free Just

43:30

kind of taking through the different

43:33

elements to this joint writing. The

43:35

closing section of this joint concurrence

43:37

in the judgment slash dissent includes

43:40

them calling this opinion in Trump

43:42

versus Anderson, basically Bush versus Gore 2.0.

43:45

So they write, quote, what it does

43:48

today, the court should have left undone

43:50

and quote and that is quoting Bush

43:52

versus Gore, Justice Breyer's dissenting opinion, that

43:54

is the opening passage to their concluding

43:56

section. And the separate writing also notes that

43:58

in addition to the hurdles

44:00

that the opinion erects to congressional

44:02

enforcement of Section 3, it also

44:04

disables courts from enforcing Section 3,

44:07

both, you know, as to ballot

44:09

access specifically as in this case, but it

44:11

also offers this kind of I found chilling example,

44:13

which is the writing explains

44:16

that the decision, quote, forecloses judicial

44:18

enforcement of Section 3, such as might

44:20

occur when a party is prosecuted by

44:22

an insurrectionist and raises a defense on

44:24

that score. So you know,

44:26

impossible to know who they might have in

44:29

mind as an insurrectionist who somehow ascends to

44:31

high office and then deploys

44:33

a prosecutorial apparatus to

44:35

target enemies. You might

44:38

think that under those, you know, just

44:40

complete no idea, no one's brings to mind. But

44:42

it's still a very dystopic vision. And one in

44:44

which a court would be it seems disabled

44:47

from considering an argument that the insurrectionist

44:49

actually is without constitutional authority to hold

44:51

the office that has unleashed

44:54

the prosecution. So I don't think

44:56

that was a trivial or incidental

44:58

example that the concurring opinion, you

45:00

know, trotted out in terms of what the consequences of this

45:03

ruling might be. On that note, Well,

45:08

I mean, we expected it, but we didn't expect this. Yeah,

45:11

again, like expected the result and the kind

45:13

of hollowness of the reasoning, but they went

45:15

further than they had to and that they

45:18

had telegraphed that argument. In terms

45:20

of maybe final thoughts, we want to offer any before we

45:22

wrap. I mean, one, just because we haven't said this, it

45:25

was pretty quick. The opinion, it could

45:27

have been quicker. I actually suspect that the

45:29

debates among the lady given the shitty reasoning,

45:31

it definitely could have been quicker. Right. Like

45:33

for a Supreme Court opinion, you know, that's pretty short.

45:36

That's 20 with and that's all the opinions combined. Yeah.

45:39

Yeah. You know, so it's whatever,

45:41

you know, three and a half weeks for, you

45:43

know, that is relatively quick, maybe, you know, more

45:45

protracted because of these discussions about how the separate

45:47

writings would be characterized and who would sort of

45:50

join forces and how. But

45:53

I Also just think that that's an important lesson

45:55

for the immunity argument, which is like it was

45:57

not an accident that the Supreme Court issued this

45:59

opinion on Monday. The for Super Tuesday because

46:01

it understood that there were imperative to get

46:03

the opinion out before the election. Even though

46:05

you know Colorado's a vote by mail state

46:07

and most people have already voted, the ballot

46:09

had Trump's name on it so. But

46:11

at least you know atmospherically, it was really important

46:13

for them not to continue to sit on this

46:16

after Super Tuesday and they got it. And they

46:18

moved. Expedition Like the immunity to set in. Who

46:20

really needs to do right? exactly? This is this

46:22

year because there's not a date? certain? I don't

46:24

know exactly. What how to force their appreciation

46:27

of the urgency in the absence of

46:29

a date certain likes to bush because

46:31

the reality. Urgency T exactly know the

46:33

timeline judge touch and established they

46:35

can count play. It's not that

46:37

he lied or any like the

46:39

know what's going on. This is

46:41

purpose Fall we'll we'll see. Once the

46:43

argument happens, I'm just saying that like the

46:45

message from all quarters to them, has to

46:47

be that it is every bit as important

46:50

in many ways more important because again, the

46:52

voting was already happening in Colorado. The court

46:54

still has the power to control whether we

46:56

ever see a trial, which if they care

46:58

a great deal about America's voters been able

47:00

to participate. In a nationwide election to So

47:03

Blackout Chief Executive. Which the boundaries and on display

47:05

here Though that said council in favor of letting their

47:07

be a trial and a verdict and some other very

47:09

logic here seems to my mind to council in favor

47:11

of speed and and that I just think is an

47:14

important message. Not that I'm saying they will hear it

47:16

but that it's at least worth voice. Oh yes. I

47:18

agree to play offer another masterclass as

47:20

my favorite. Pollyanna. Mouth of have to,

47:23

I'm in. A. Comeback that like do you all

47:25

that those rumors are under. Speak or about

47:27

how Sandra Day O'connor was allegedly at some

47:29

dinner party and when she found out by

47:31

either it's can confirm the ah yes or

47:33

it was it can for I in and

47:36

the and Yeah attacks she expressed dismay because

47:38

she'd been planning to resign or retire from

47:40

the court and this is Al Gore winning.

47:42

What has thwarted her plans. Given

47:46

serious consideration to the fact that like.

47:48

The or at least two justice

47:50

as yep who may have real

47:53

real interest in seeing Donald Trump

47:55

be. Elected on line. Someone.

47:57

His wife. As. apparently very

48:01

close, at least, like has

48:03

text messages that are insurrectionist adjacent. So

48:05

that might be an issue. But just

48:07

as a general matter, there

48:10

are two Septuagarian justices who might

48:12

want to step down under a

48:14

Republican president and have their

48:16

replacements be movement conservatives just like

48:19

them. And for that reason, maybe

48:21

they're just not that inclined to throw

48:24

a wrench in the works that subjects

48:26

their preferred candidate to a criminal trial

48:28

where he might be found guilty and

48:30

be wearing an orange jumpsuit on

48:33

January 20th. And all the Fifth Circuit judges

48:35

who have been performing endless antics in order

48:37

to audition for this role, you haven't done

48:39

enough. Do more, sirs, do

48:41

more. I mean, it's truly dystopian.

48:44

I mean, Kate, I

48:46

don't think this is a court that is going to

48:48

be built for speed. I think it's built for something

48:51

else. Well, those two obviously are a lost cause in

48:53

every way. I think the Chief Justice too. I

48:55

mean, he's in his sixties. Also, don't you

48:57

think the Chief Justice wrote this? I

49:00

mean, I thought the Dobbs opinion, the Dobbs quote

49:02

at the beginning. I think he wrote the PC

49:04

and Kagan wrote the concurrency, whatever it is. Yeah.

49:07

Do you disagree with it? Although the metadata suggests that Justice

49:09

Sotomayor, my guess is Justice Sotomayor

49:13

wrote the initial draft

49:15

and then Kagan punched it in

49:17

and Justice Jackson. Yeah.

49:20

Justice Kagan added a star footnote that

49:22

was like, fuck you clowns. And Justice

49:24

Sotomayor and Jackson were like, how about

49:26

we edit this to say, you know,

49:28

like the court went further than it

49:31

needed to and was

49:33

like gratuitous. Anyways, that's how I

49:35

imagine it. I thought it was really snarky. I

49:37

thought it was like super snarky. Oh, and they're also, can

49:39

I just say, like, can we talk a little bit about Twitter

49:41

for a minute? So I wrote that I

49:43

thought the dissent slash concurrence was

49:45

snarky and someone was like, I wish they

49:48

would stop doing snark and save our democracy.

49:50

And I'm like, excuse

49:52

me, ma'am, can you count like

49:55

three people like, you know how we could save

49:57

our democracy by like actually doing a lot to

49:59

get. people out and voting and putting the

50:01

court on the ballot and recognizing that this court

50:03

is not an inevitability. This is something we got

50:06

because people stopped at home in 2016 and

50:09

Donald Trump got elected. Yeah, you're saying decorum

50:11

is not going to get us there, Melissa. I

50:13

mean, obviously, but I mean, like, I really

50:15

almost like civility and whining about Joe Biden's

50:17

age. Seriously,

50:20

it's only because I had to log

50:22

on to meet you guys. I didn't write back like, what

50:24

are you talking about? Do you know how to count? Do

50:27

you know how government works? Like, what are three people in

50:29

the minority going to do to save democracy? Like, get

50:31

three of your friends and go to the polls and then

50:33

get three of their friends and take them to the polls

50:35

and like, get a bunch of college kids and go to

50:37

the polls. That's where this opinion

50:40

leaves us. I mean, it does, which again,

50:42

is not to say like, the court, I

50:44

think, obviously, attention is going to shift to

50:46

the immunity case. And that case is not

50:48

disconnected from, you know, actual electoral democracy. It's

50:50

deeply, deeply connected. But given the

50:52

track record of this court, like, there's no reason

50:54

to be confident, which is not a reason not

50:56

to urge, but it is a reason not to

50:58

put all eggs or really any eggs in that

51:00

basket. And instead to assume that

51:02

the only if the eggs are extra uterine

51:04

children, put

51:08

those in a Dropbox and

51:10

go through the HIV lane, the 14th Amendment, the court put it

51:15

in a Dropbox and left it at a fire

51:17

station. So there

51:19

we are. Another banger from the

51:21

nation's highest court, only the best for

51:24

us. Nine greatest legal minds

51:26

in the country. It's only Monday. All

51:30

right. That was grim. Let's,

51:32

let's end this. Let's end it. Okay.

51:34

I'm calling it time of

51:37

death democracy 206. Okay. Strict

51:42

Girtney is a cricket media production hosted and

51:44

executive produced by Leah Littman, named Melissa Murray

51:46

and Kate Shaw. It's produced and edited by

51:48

Melody Raul. But today we have sitting in

51:50

the producer's seat one Bill Pollock. Thank you,

51:53

Bill, for subbing in for Melody. We

51:55

get audio support from Kyle Seglen and Charlotte

51:57

Landis with music by Eddie Cooper and production

51:59

support from Madeline Harringer and Ari Schwartz. And

52:01

if you haven't already, be sure to subscribe to

52:03

Strict Security and your favorite podcast app so you

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never miss an episode. And if you want to

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help other people find the show, please rate and

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52:29

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52:32

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