Melissa Murray Transcript
- So I'm Lawrence Douglas, I teach in the Department of Law, Jurisprudence and Social Thought. And I'm one of the instructors in the progress question mark, first year seminar cluster. And this evening's event is the final in our falls Point/Counterpoint Series which has been organized by Professor Nishi Shah, Professor Alexander George, and by myself. And it's been made possible by a very generous gift from the members of the 50th reunion, class of 1970, and we'd also like to thank everyone who's helped put these events together, especially the Office of Communication Conferences and Special Events at Amherst and the provost office. The Point/Counterpoint Series, name notwithstanding, is not meant really as a forum for scoring points in an adversarial debate, rather, the idea is to provide the Amherst community with a series of open conversations about topics of importance and controversy, and hopefully to model the kind of robust critical inquiry that lies at the heart of liberal arts education. In the past, we've brought to Amherst the likes of Harvard's historian, Jill Lepore, New York Times columnist, Ross Douthat, Yale Law professor, Stephen Carter, Pulitzer Prize winning author, Elizabeth Kolbert, and this semester, as many of you know already, we've been pleased to host Anthony Appiah, Adolph Reed and Geoffrey Stone, and now tonight we're delighted and honored to have Melissa Murray on campus for our concluding conversation. Professor Murray comes to us from NYU Law School where she's the Frederick I. and Grace Stokes Professor of Law. Educated at UVA and at the Yale Law School, Professor Murray clerked for Sonia Sotomayor, then on the second circuit, and before joining the faculty at NYU, Professor Murray taught at Berkeley Law School where she also acted for time as the interim dean of the school. She's won numerous Award, she has published widely in both legal journals and newspapers, she's made dozens of prominent media appearances, and is now widely regarded as one of the nation's most preeminent constitutional scholars, particularly in matters of reproductive rights and in the legal regulation of intimate associations. We'd be delighted to have Professor Murray with us at Amherst at any time, but we're particularly lucky to have her here tonight as tomorrow as many of you know, the Supreme Court will be hearing the oral arguments in the Dobbs v. Jackson's Women's Health Organization case, at issue being the constitutionality of a Mississippi statute that bans abortions after 15 weeks except in cases of medical emergencies and fetal abnormalities. So, with that said, please join me in welcoming Professor Murray to Amherst. And let me just mention at the outset that we will probably conduct a conversation for about 45 to 50 minutes and then hopefully open the floor up to questions. So we do hope that you will have be thinking about questions as you're listening to our exchange.
- Thank you for having me, it's really a delight to be here. This is my first time at Amherst, and I can say, I can tell it's a lot better than Williams. I haven't been to Williams either, but I've heard things. So thank you for having me and it's really been a delight to be with you all today with your faculty and of course with the students who have been incredibly incisive and fantastic so thank you.
- Yeah, well, it's a pleasure having you here. And just as a preliminary question is something I kind of often like asking speakers. So we have a number of students, many of them are first years, I wonder if you can kind of recall what it was like being a first semester student at UVA, and whether your career path was clear to you at the outset, did you know you're going to be a prominent scholar of constitutional law as an undergraduate?
- Yes, definitely.
- Yeah, okay, right.
- So my undergraduate experience began in 1993, obviously it's very different from how you all are starting college, I did not wear a mask. I have to say like right now that the whole act of being without a mask feels both dangerously thrilling and illicit, and also weird, I think we've been behind mask for so long. So that was one very big difference. I mean, we did not begin college in the midst of a global public health crisis. Although we did begin college in the middle of a massive economic downturn that made the prospect of a liberal arts education seem quite dicey. And I remember I went to college intending to be a history major. And in my very small town in Florida that was sort of like, why would anyone want to study history, especially when the prospect of a job seems so uncertain at the end of it, and why didn't I want to do something more practical like economics or business. And one of the things I learned and very much appreciated from my time at UVA, and UVA is a very different university or educational setting than Amherst, but it was one that prized a liberal arts education, and more importantly, the mission of undergraduate teaching even as a research university. And I had such fantastic instructors and such incredible mentorship and learned so much about what it meant to be a citizen in an intellectual community that by the time I graduated in 1997, the economic outlook was much rosier, people were hiring history majors to do all kinds of things including business, that was quite a shock to wind up at a corporation with a history degree. But what I learned there was just so fundamental and I think it's the bedrock of what you all are learning here at Amherst and in a program like this one, how to exchange ideas, how to be thoughtful listeners to other people, even when they don't share your perspectives, how to learn from each other in a way that is both thoughtful and incisive and probing and respectful. And I think more than anything, that is so necessary right now.
- So maybe turning matters in a legal direction. I thought maybe we could talk a little bit about issues about the racist origins of some laws and about the kind of the residue of history in these laws and to kind of maybe think about, why is it of relevance that a law has its origins in let's say a racist history if for example now it is applied in a neutral fashion? I mean, should we be concerned with the background of these laws, and if you can maybe even provide examples of something in which that does play a role?
- So this I think is a question that has occupied me over the last year, in part because I think there is no law in the United States that is completely divorced from a racist history. We are a country I think that has struggled with the stain of slavery, with the taint of segregation, and with the residue of a racist past for some time, whether we want to confront that or not, I think that has been our history. And I think you would be very hard pressed to find a law in the United States or some institution in the United States that was completely divorced from those underpinnings. And so this is not to say that every law because it has these underpinnings is per se problematic or per se unprincipled in some way, but it is to say that unless you are willing to reckon with that, you actually can't get to the bottom of whether the law is worth salvaging, whether it has been cleansed or redeemed in some way. And so there really does need to be a confrontation, a reckoning with that past in order to assess in a clear eyed way what it looks like to maintain that law or to go forward with it. And so this is something that I think the Supreme Court is currently engaged with, a project with which they are currently engaged, whether they want to acknowledge it as a project or not. In the October term, 2019, the court took up a challenge to Louisiana's rule that allowed criminal convictions to proceed from non-unanimous jury verdicts. And this was very much an outlier among the states, only two states in the nation had this that allowed for the prospect of a conviction on a non-unanimous jury verdict, Louisiana and Oregon, and Oregon had repealed its policy just a year earlier in 2018. The court in this case, Ramos v. Louisiana, had to deal with some new history that had come to light in some of the amicus briefs before the court. They had already previously entertained a challenge to the non-unanimous jury rule in the 1970s in a case called Apodaca v. Oregon. In Apodaca, the court basically split in a very fractured decision, but ultimately said it was okay for states to have non-unanimous jury verdicts that would lead to conviction, states can make their own decisions about that. They were now revisiting it in 2019 and now with this additional historical evidence that made clear that the non-unanimous jury rule had its roots in the post-Civil War reconstruction era where Louisiana in an effort to enshrine in it state's constitution protections for white supremacy, and that's what they called it, it was explicitly labeled a constitution in defense of the rights of white men, so is very explicit about what it was trying to do. But what Louisiana wanted to do vis-a-vis the jury now that the jury could contain newly freed African Americans was to dilute the power on the juries of African Americans by basically making it possible to secure a conviction even if those African American jurors would not consent to the verdict. So you could have a verdict proceed in the absence of unanimity. And so the court in the Ramos case is presented with this flood of historical evidence that in fact this rule isn't some neutral rule, but rather is rooted in this effort to diminish the power of black jurors and to maintain the status of white jurors and indeed, white supremacy in the state. And the court wrestles with it, it is a six to three decision in which Justices Alito, Chief Justice Roberts, and Justice Kagan are dissenters, so an unusual sort of combination, Justice Kagan is on the more liberal wing of the court, Justice Alito is very much on the conservative wing, Chief Justice Roberts is in the middle, even though the middle is really to the right at this point. And then you had six other justices, including Justice Thomas, Justice Gorsuch, Justice Sotomayor, Justice Ginsburg, Justice Breyer, so very odd melange of different ideological perspectives coming out to say that because of the racist roots that the Apodaca court in 1973 had not considered, the court now was in a better position to understand the full history of the non-unanimous jury rule, and indeed, to reconsider it, reconsider Apodaca and overrule ultimately. What was left out of this discussion was that in the intervening period between the postbellum constitution of Louisiana and 2019, was 1978, I believe, where Louisiana takes up the question of the non-unanimous jury rule, recognizes that it has some problematic roots, but says it's going to go forward and maintain it anyway because of what is essentially a non-racial racially-neutral policy rationale. And the court doesn't really wrestle with that. What happens if you have this kind of intervening moment where race is sort of swept away? And I think from the Ramos decision, you might get the impression that race is indelible, race is indelible, and maybe it can't ever be washed away. And there was a similar kind of question in another case from that term, this one was not about race per se, but about anti-Catholic fervor. So this case was called Espinoza v. Montana Department of Revenue, and it was a question about whether states could provide assistance to secular schools, and if they did, did they also have to provide it to non-secular religious schools. And in Montana and a number of other western states, for a very long time, there have been what are known as Blaine amendments. And these amendments basically write into the state constitution a prohibition on the use of public funds for religious purposes, including religious schooling. And those Blaine amendments are rooted in anti-Catholic fervor from the early 1900s. And so in oral arguments, Justice Kavanaugh, who is a very staunch Catholic, raised this, like aren't these Blaine amendments all rooted in anti-Catholic fervor and that has to be wrestled with. What did not come up was the fact that in the 1980s, Montana and many other states, again, reiterate their commitment to secular public fund usage and not allowing public funds to be used for religious purposes, but do not link it in any way to anti-Catholic fervor, and in fact, it is done with the blessing of Catholics in the states. And so you have this kind of intervening moment, and the question is, can it supersede what has come before to sort of wipe the slate clean. And the Espinoza case is not as clear about this as the Ramos case is, but I think you get the impression from the court that racist roots or nativist roots are something that you can't ever overcome. And if that's the case, that is I think, deeply, deeply problematic for thinking about what we do as a society when we do confront the residue of our past because I think it is the case that most of our laws are going to have some kind of problematic backstory. There's all of this discussion now about the police force and being linked to the slave patrols of the antebellum period. The second amendment according to Professor Carol Anderson at Emory University has its roots not in the enfranchising of citizens with the right to bear arms, but rather with emboldening militias to put down slave rebellions. So there's just so much in our country that is inextricably intertwined with the residue of slavery and race that unless we can figure out what it means to scrub that clean, we're going to have few laws that aren't problematic. So that's a very long winded way to say that.
- [Lawrence] No, its a, oh, did you want to follow up?
- Yeah, I guess I'm still not, maybe you could just say a bit more about, like it doesn't seem like conceptually the roots of a law would be indelible, would always carry them with it. Why did the court decide in these two cases that residue was still there and therefore made the laws unconstitutional?
- So I think with regard to Espinoza, the case that is about religious freedom, one way to explain that decision is less about racial cleansing or religious cleansing and more about the expansion of free exercise rights, right? So there has been I think a quite consistent project within the court and within the conservative legal movement to expand the scope of free exercise rights. There's a case called Trinity Lutheran v. Comer from I think around 2017. This was the case about whether a state program that allowed for the resurfacing of playgrounds could be extended to churches in addition to other secular sites. And the court said, yes, if you make it available to secular sites, you have to make it available to religious sites. It's not funding religion, its funding playgrounds. And Justice Breyer writes this, like no, it's just about the playground. Misses the point that in all of these debates, money is fungible. So if you're taking money and it's not being used for religion, that's fine, but the fact that the money is going to the playground means that the church has money to do something else with regard to religion because some other aspect of its operation is being subsidized by the state. And so it's not quite as clean I think as the Court would have liked. Espinoza is the follow on from Trinity Lutheran and now sort of expanding the idea, if the state makes certain funds available for secular schooling, then it has to make that available for religious schooling. And now there is a case before the court this term, it's going to be heard in the second week of the December sitting called Carson v. Makin. And it's about whether Maine which basically has a number of programs whereby its public school students actually get state subsidies to attend private schools because there are so few public schools in Maine given how rural parts of the state are. Whether those subsidies can also be extended to sectarian institutions or whether it has to be just for institutions that are non-religious. And that's going to extend that further. So I think one way to sort of understand what happened in Espinoza is about the expansion of religious freedom and the recognition of religious rights. Ramos I think is just a lot harder. And then I think what explains Ramos is the interest in remedying a racial injustice, and the racial injustice here was obvious and indelible, at least to the court and plain on the face of the law. How the Apodaca court failed to appreciate it is a mystery because it's out in public, anyone can find it. And it was known in the 1970s, it was just never presented to the court and never discussed. But it seemed like in much the same way, the court in the travel ban case wanted to use that moment as an opportunity to repudiate Korematsu v. United States, the case that upheld the internment of the Nisei and another Japanese Americans, that there is a moment or an interest in racial reckoning in this country, and it may be a deep interest, it may be more shallow, it may be superficial, who knows, but I think that's what explains part of the way of Ramos. It is worth noting that in the next term, in October term 2020, there is another case called Edwards v. Vannoy that basically dealt with the fallout from Ramos, like once you have these non-unanimous jury convictions, what other procedural remedies and who can challenge their convictions, And the court decided that in a much more narrow way to basically limit the force of any remedial efforts for those who had previously been convicted by non-unanimous juries.
- This is just a small follow up of the Ramos. So wasn't the case, was it really the case that the history was so familiar because I thought it was the case that it might have been the petitioner himself who did a lot of the research that about the racist origins of the non-unanimous jury part of the Louisiana constitution.
- You're definitely right. I said it was obvious, I did not say it was familiar.
- Okay, okay, right, right.
- Two very different things. The fact that the petitioner who was imprisoned at the time, he was doing this research could find it despite the impediments of being incarcerated suggest that other people with the amenities available in universities or in law firms or whatnot could find it too, no one went looking for it, but was hiding in plain sight. Louisiana wasn't hiding the archives of its constitutional convention, it was there, someone just had to go and look for it. And it was available when Apodaca was being litigated in the 1970s. And so this wasn't some history that had to be unearthed, it was just there waiting to be found. So not familiar, but obvious non the less.
- And again, maybe we don't want to spend too much time on this one thing, but I wonder how much the racist past really played such a huge role in the decision by the court. That is, as you yourself said, it seemed like the Apodaca decision was such an outlier in certain respects that it sort of made life a little bit easier for the Supreme Court to say, A, this practice of having non-unanimous jury verdicts is a complete outlier, it's not permitted in the federal context, it rarely can happen in a state context, and plus, we got this kind of added on benefit that if you look at the history, the history looks pretty awful. So I just wonder if the history was just kind of an add on rather than anything that was really well that.
- Well, sure, it was an add on, but it was a necessary add on, right? Because they are overruling Apodaca, right? And so it's not enough to overrule something because it is an outlier, lots of things are outliers, and they nonetheless under stare decisis may require deference to some degree. And so there are a series of factors that the court considers when deciding to overrule one of its prior precedents and these are laid out in a number of cases, one of which is Planned Parenthood v. Casey, a precedent not just on abortion but a precedent on precedent. And of these factors that Casey outlines that warrant a court taking the extraordinary step of overruling a past precedent is the idea that there are new facts or new factual circumstances that require reconsideration. And so, again, this obvious history that was unfamiliar to everyone becomes I think part of that basis. It helps that Apodaca is an outlier, And we've seen the Roberts Court overrule past precedents on the grounds that it has somehow become out of step or misaligned with other jurisprudential doctrines, but what really tips the balance in favor in the Ramos case is I think this question of race and the prospect of redressing a racial harm. And the justices talk about this and talk about the impact of that history on the African American community in Louisiana and African American defendants in particular.
- And since you raised this question about stare decisis, I wonder if we could just talk a little bit about that and maybe just we can explain to the students what you mean by stare decisis and the role that might play in the Dobbs case that we're going to hear the oral arguments tomorrow.
- In that article you had us read, you had this really striking moment where you said sort of somewhat maybe purposely paradoxically that stare decisis is both the reason that Roe can't be overturned.
- And why it must.
- And why it must.
- Yeah.
- Yeah.
- No, that was a good line, it was a great line.
- It was.
- So stare decisis is Latin for let the decision stand or let that which is settled not be disturbed. And the idea is basically that the court, though it may have a change in composition is bound by its past decisions. This is sort of a bedrock principle of the Anglo-American legal tradition, the idea that we don't make sweeping shifts in jurisprudence, that we defer to that which has been decided before, and if there are changes to be made, they're incremental, they're based on distinctions in terms of facts as opposed to sweeping shifts in how we understand this particular principle of law. Not everyone on the court believes that stare decisis should command, especially if it involves a decision that that particular member believes is wrong, wrongly decided. And so Justice Thomas in October term 2019, this is a very memorable term for the court, wrote in a concurrence in an opinion called Gamble v. United States, this is a case about whether or not double jeopardy prohibited a state charge and a federal charge in this criminal case. But Justice Thomas took this opportunity to sort of opine on in his view what stare decisis required. And he said, we are federal courts in an age of written constitutions and written statutes and that means we aren't like courts of the common law tradition in the same way that the Anglo-American tradition would have us view it. We are bound by text and that means because the constitution takes priority over any kind of tax and indeed over any decision that we might make, we have a duty as federal courts where we are presented with a decision that is "egregiously wrong" or "demonstrably erroneous", our duty is not to follow it, right? And not a surprise, what decisions he thinks are egregiously wrong or demonstrably erroneous, he said many times that the entire line of right to privacy cases from Griswold v. Connecticut which allowed for contraceptive use among married couples to 1973's Roe v. Wade which allows a pregnant person to terminate a pregnancy, all the way down to Lawrence v. Texas which decriminalize the same sex sodomy, to Obergefell v. Hodges which legalizes gay marriage. All of those are egregiously wrong and demonstrably erroneous because they are untethered from constitutional text, those protections are not explicitly enumerated in the constitution. Should be noted, lots of things are not explicitly enumerated in the constitution, including executive privilege which Justice Thomas does like a lot. So, he's sort of laid out this scenario where if a decision is demonstrably erroneous, we don't have to follow it, right? So that's his view of it. In other precedents, like Casey, for example, there's this sort of set of factors that you have to think about and really think seriously about before you can overrule a past precedent, has it proven to be unworkable over time? Are there new factual circumstances that make you think about the issue in a different way? Is it a situation where it's just completely out of line with other precedents on a similar subject? And when only when you sort of satisfied yourself that there's no other way that you have to overrule it, then you're able to go forward and do that, but that's under that Casey calculus. So, this adherence to stare decisis is supposed to provide a kind of predictability on which the public can rely, like this idea that if something is enshrined in a prior precedent and protected, it will continue to be protected and you can count on it going forward, and that your rights don't change because the court changes, right? And that's sort of been the bedrock principle and the court has only overruled itself explicitly in a sort of handful of times, many times in order to redress a past racial injustice like in Brown v. Board of Education, for example, or Korematsu. More often what happens is there sort of a sub rosa, overruling where you don't actually have a formal declaration, like this decision is wrong and is now overruled, but rather, you chip away at it incrementally, and that's actually what's been happening to Roe v. Wade certainly since 1992 forward. Sort of a subtle chipping away of the doctrine, limiting it, trimming it back, allowing the states more authority to regulate abortion, limiting the opportunities for individuals to seek abortions. And so it's never been an explicit overruling, but I think it has been a functional limiting in curbing of abortion rights over time. And this goes to your point, the question of Roe v. Wade is I think the central question of the conservative legal movement, it is the animating principle that has spurred it on over the last 40 years and that is driven it forward. And that is largely because of stare decisis, stare decisis, this whole idea of adherence to precedent means that you can't simply overrule Roe because you now have a conservative court. But the fact that Roe survives and is reiterated and reaffirmed in these subsequent decisions like Casey, like Gonzales v. Carhart, like June Medical Services means that even if it is chipped away at, it hasn't been formally overruled and it still stands as a precedent, which means there is still a right to an abortion. And that's the problem, that's the rub. And so when I say, I mean, it's almost like this ouroboros, the sort of mythical creature that eats its own tail, like it's a continuous circle where the impulse is to get rid of it, but you can't because it must stand, and because it must stand, you must get rid of it, right?
- Yeah, so I wonder if by the standards that are established in Casey for a reason to overturn a precedent, that's a new factual circumstances, I wonder if there are maybe a couple of new things that need to be considered with regards to Roe. And maybe one of them is I think this is something that appeared in the papers maybe two weeks ago about a birth in Alabama in which I guess a premature baby of 19 weeks, it was in 19 or 21 weeks, survived. And which may be cast some questions about the factual predicate of having viability as a standard. And then I perhaps maybe the other one is something that some of you were here this morning in the conversation, knowing that Justice Thomas has been concerned about using the abortion right for trait selection. And I wonder if you could maybe talk about both of those things.
- Sure. So, to be clear, I am not a physician, I have never gone to medical school, I've never taken the MCAT, I hate math, that's why I went to law school. It is my understanding based on physicians with whom I have consulted about this that while it is true that there are occasionally these outliers, for the most part, fetuses that are born and then survive outside of the womb at early periods in pregnancy, 19 weeks, are really outliers, and they require considerable medical intervention in order to survive and they have really difficult circumstances ahead of them on like lots of issues going forward that will require continued medical intervention. So, this idea that you will have a miracle baby born at 10 weeks that will survive in the way that you expect a child that is born at full gestation at 40 weeks I think is something of a misnomer and I think the medical community would attest to that. Viability has long been the marker in the court's abortion jurisprudence, and the idea is as articulated in Roe and reiterated in Casey, that viability, this point in pregnancy where the fetus can exist and live independently of the womb, is a period that's marked at about 23 or 24 weeks of pregnancy so sort of look somewhere a little bit ahead of the middle of pregnancy. And during up until viability, the state cannot ban abortion, can do a lot to restrict it, it can require you to consult with a physician, it can require you to have a waiting period, it require you to go back three different times before you actually get an abortion, but it can't ban it outright, right? And that's been a rule since 1973. And so one of the questions in overruling Roe or even tinkering with Roe to remove viability as a salient marker is whether the facts have changed, like medical technology has changed, to warrant a change in the jurisprudence. And I think the pro-life movement, the anti-choice movement says that, yes, that has changed, medical technology has advanced such that viability isn't a salient marker anymore. I think that's incredibly contested and so that can be contested. I think what is less contestable and perhaps more interesting is over the last 10 years, we as a society have become more interested in sort of interrogating and maybe examining the racial injustices in our midst, right? And the events of the summer of 2020 I think are exemplary of this. The protests that took place, the interest in a kind of racial reckoning, the debate over reparations, the 1619 project, there's tremendous interest in this question of remedying past injustices and perhaps getting to some kind of healing on the question of race. And that enters the conversation at an interesting point in the debate over abortion. And I think one of the unsung geniuses of the Supreme Court who really does not get the credit I think he deserves for really being an intellectual midwife, no pun intended, of conservative legal movement is Clarence Thomas. And Justice Thomas is one of the court's most prolific and incisive interlocutors of questions of race, he frequently raises questions of race, even in cases where race is not salient at all. So Kelo v. New London, a case about redevelopment and property rights. The argument in favor of the town that wants to redevelop is that this redevelopment is going to be great for blighted communities in New London. Justice Thomas steps and say, you know who it's not going to be good for, black people in New London, these are the marginalized communities that always get shut out of redevelopment. And it actually gets a lot of legs and that becomes the new rejoinder to economic redevelopment. On guns in McDonald v. City of Chicago. The gun control argument is that communities of color, marginalized communities are the ones that are most scarred by gun violence. Enter Justice Thomas to talk about this history of postbellum racial violence in which black people who are unarmed because the state will not let them bear arms are subjected to incredible racial violence at the hands of the Klu Klux Klan, the Knights of the White Camelias, on and on and on. He invokes Emmett Till, the Chicago boy whose murder and lynching set off the civil rights movement of the 1950s. And again, he's sort of injecting rates, like you gun control advocates talk about how this is good for black communities, let me show you why the Second Amendment is actually good for black communities. So, he's incredibly prolific on this and incredibly effective, I think, and he's now brought the same kind of logic, I think, to the abortion movement by focusing on these abortion restrictions that prohibit abortion if it is undertaken for purposes of sex selection, race selection, or because of the diagnosis of a fetal anomaly. And his argument essentially is that these laws function as anti-discrimination measures for the fetus. And because they function as anti-discrimination measures for the fetus, they're really outside of the scope of Roe and Casey which were focused on laws that were about maternal health or promoting the potentiality of life, but not about this question of racial discrimination. So they're outside of these cases, and in the short term, they should be defended. But there's also I think a long term strategy built into this, not just a short term defense of trade selection laws, but this longer term strategy that is about re-characterizing and reframing abortion not as an issue of gender autonomy or gender justice, but rather as a question of racial injustice. And he does this by grafting the history of abortion to the history of the eugenics movement and the birth control movement and arguing that just like Margaret Sanger in Planned Parenthood sighted, birth control clinics in black community for the eugenic purpose of limiting black reproduction, that is a contested historical narrative, but given that, you can see the same kind of potential with abortion, abortion can become a tool of eugenics and can be used to deracinate entire communities. And for that reason, the state should be authorized outside of Roe and Casey to take steps to prevent that from happening. And so it's a reframing I think of abortion so that it is a tool of genocide and not a tool of women's liberation. And again, I think it's an incredibly canny, sophisticated and subtle move.
- And in certain ways, did you want to? I was just going to say it seems persuasive on some level.
- Yes.
- And I think this is maybe a question that I think you had asked earlier today about, do you remember what you had asked? Yeah, but whether it's an immoral thing. And maybe there is a, I mean, I think many of us would feel kind of queasy about laws or about using abortion as a way of sex selection and might feel supportive of laws that prohibit that.
- Yeah, again, I think it raises a number of real ethical quandaries. It is worth noting that on the ground, in the United States, abortion for purposes of sex selection rarely happens and abortion because of race selection is more likely to happen in situations where there interracial relationships where parents or extended family members do not approve of the relationship and then put a lot of pressure on the individual to terminate in those conditions. This is not what Justice Thomas imagines, like he's sort of focused on the fact that there is a disproportionate incidence of abortion among African American women and sort of links this to the idea that like that's the evidence that this can be used for eugenic or deracinatory purposes. Again, I'm not sure that this is what happens on the ground, I do think in the short term, what happens is that women of color, Asian women, because sex selection is often associated with Asian cultures, and African American women are more strenuously surveilled and policed during their pregnancies and asked to explain why they are seeking an abortion because of these roles. So there's a way in which, I'm not sure it actually cashes out to stopping abortions because of sex selection or race selection 'cause I'm not sure how big of a problem that is. I do think it has this ancillary effect of exposing certain populations to more strenuous surveillance during pregnancy. I think where the ethical quandary is perhaps most pronounced and profound is in the context of disability because I think that's right, right? I think there are individuals who when faced with the prospect of a genetic abnormality in the fetus do consider terminating because that is a difficult life ahead for the child perhaps, maybe it's a difficult life for the family, maybe it's something the family can't take on. And I think that is a much harder question in large part because we are a society where we don't necessarily have a robust social safety net for families, especially families who are living with individuals with disabilities, right? And I told the story in your class today, there's this really sort of visceral anecdote about a woman who despite prenatal testing never learns that she has a fetus with Down syndrome and she gives, birth baby has Down syndrome. As soon as she is able to, like literally seven weeks after she's delivered this child, she's trying to get pregnant again. Why? Because she knows when she and her husband are gone, there has to be someone who's able to take care of this family member with Down syndrome and so she wants a sibling who will be there to be able to take care of the child when she and her husband are no longer there. I mean, having a baby in order to provide a caretaker because we don't actually have a system of support for that. And so I think it's a real ethical quandary like, and I think it's meant to be an ethical quandary, these are laws that I think are meant purposely to divide the progressive community, like is it feminist to oppose a law that would prohibit the termination of a pregnancy because of sex selection? What could be more feminist than prohibiting that? Is it, are you seeking racial justice to oppose a law that would prevent abortion from being used in a situation where you're terminating because of the race of the child to be born? Harder to say. I mean, again, if you're someone who supports the disabilities community, can you say that this is wrong? I mean, and I think that's exactly the kind of quandary it is designed to provoke, and indeed, to divide these communities and these constituencies from the larger pro-choice community.
- Okay, follow up. So I thought maybe earlier in the morning session, you were sort of suggesting with moral issues like this which these might be very morally problematic decisions. Even if they are, there's this separate question whether the state should be, right, adjudicating these issues, taking sides on these Beck's moral questions. And I thought you're sort of implying that maybe it shouldn't be?
- Well, no, I'm fully there. So I think you presented your question in a slightly different way tonight than you did earlier in the day. So I took your question earlier in the day to be about broadly, like to what extent can the state legislate morality. To which I would say, the court has been clear about this, I think the constitution is clear about this, that there are limits to what the state can do, right? There are limits to what the federal government can do, there are limits to what the state government can do, and that there are some area of repose, some zone of seclusion, that individuals retained for themselves, right? This is I think incumbent in the fifth amendment's protections against self incrimination, the idea that the state can't force you to tell on yourself, I think it's incumbent in the third amendment's protection against the quartering of soldiers in your home, the state can't force you to take its personnel into your home. And in the same way, there's some space for you to make the choices that you need, to make choices that are so integral to the formation of the self and personhood that according to Justice Kennedy, they could not be made appropriately if made under the compulsion of the state. And so yes, you may find this to be a moral quandary, the question is, can the seat tells you it's a moral quandary? And I think that is a harder question. So, this operates on a number of levels, like, is it meant to be a moral quandary? Of course it is. Is that moral quandary meant to divide a broad coalition of progressive constituencies? Undoubtedly. Should it? I don't know that the state should be in the business of legislating a particular moral outlook. I mean, I think it's safe to say, if you are opposed to abortion, you should not have one. I mean, and I think there are a lot of people who call themselves pro-choice who would not undertake an abortion, but they believe firmly that this is not a decision in which the state should intervene. And I'm kind of there with that. And I think it's hard to divorce this from the social and cultural construction of gender. And so just, again, this is a roomful of college freshmen, maybe you haven't thought about what it means to be a parent, but I can tell you in no uncertain terms, the most fundamental choice I ever made as an adult was the decision to become a mother. And I don't say to become a parent, I mean, to become a mother because I think there's something socially and culturally distinct about motherhood as opposed to parenthood at large, just a completely different set of responsibilities and expectations. And motherhood has enriched my life in ways both profound and banal, it is also narrowed my ambitions, limited my choices in a lot of ways. And if that were forced upon me, if I were compelled to take that on as opposed to when I took it on willingly, wholeheartedly and full throatedly, I think I would be a very different person. And that's what I think is at stake tomorrow when the court takes this up, like that is a decision that you have to make for yourself, and not everyone is in a position to make the decision I made. And what I feel about abortion doesn't matter, what I feel about whether the state should tell me what to feel about abortion, that to me is the issue.
- Maybe also just following up on that, one thing you said this morning that I found very intriguing and is I believe you said that reproductive rights and voting rights are inextricably linked. And I found that formulation really interesting, I wonder if you could you unpack that a little bit for us, tell us a little bit more what you mean by that.
- Sure. I think we are conditioned to think about these different questions in silos, like there is voting rights, there's environmental justice, there is reproductive rights and justice, and they're all sort of separate and distinguishable. Are they though, right? There is a way in which there is a straight line that runs between restrictive abortion laws, deregulatory laws that make it harder to protect the environment, laws that allow for redlining and limiting the economic growth of particular neighborhoods, laws that allow individuals to carry weapons openly in public, and changes in what we allow in terms of voting, like who we allow to vote, what the ramifications of voting are, how our voting districts are composed, all of that is linked together, whether we see the thread that links them or not. You don't get a law like SBA that prohibits abortion at just six weeks of pregnancy.
- And this is the Texas law.
- This is the Texas law that the court heard on November 1 and still has not issued a decision on. Point of order, I know that college students do all nighters in order to get things done, maybe the court could too. Moving on, but you don't get a law like that unless you have first limited the ability of those who would oppose the law from voting to have a say on it, you don't get a law like that unless you have reconstructed the boundaries of political communities so that political power is consolidated in certain ways. And so there's a way in which redistricting, the court's decision in 2018 about political gerrymandering, partisan gerrymandering, all of this is linked together. And you don't get these kinds of laws that feel regressive, that are regressive, unless you first change the character of the political community by limiting who may vote and how their votes may be counted. And so this is all inextricably intertwined. And when students ask me, what can I do, like how do I be a progressive lawyer once I graduate from law school? I don't know if it's going to New York and working for the NAACP Legal Defense Fund, I think that is one way to be a progressive lawyer. Could it be more impactful to go to Aiken, South Carolina, where you're from and run for the school board? Possibly. Could it be more impactful to go back to Ohio and run for county commissioner in your hometown? Possibly. I mean, our imaginations are sort of geared toward college and then you go to some metropolis and you do something exciting and fantastic in that metropolis. Maybe it's better to be like Clark Kent before he went to Metropolis and you go back to Smallville and you figure out how to make Smallville better.
- Yeah, and also just, I mean, it's interesting, a couple of the pathologies that you just identified in our American democracy, things like gerrymandering, the winnowing of people who can vote, I mean, the Supreme Court has played a very powerful role in contributing to these pathologies. I mean, in the Rucho v. Common Cause, in the Shelby County decision. And one thing we've also seen is the way in which, I think just most recently we've seen a poll that suggested that the perception of the legitimacy of the court has eroded pretty dramatically. So I mean, in basically contribute to these pathologies, do you see the court really kind of in a crisis for itself or creating a crisis for itself?
- Yes, I think there's no other, I think, full disclosure, super dystopian perspective, I think we are in the middle of a full throated constitutional crisis. I think the next two years are absolutely pivotal in terms of democracy. I mean, we literally had people staging an insurrection on January 6th. I mean, I've never seen anything like that in my life. My parents were immigrants and that's what they told me happened in other countries, I'd never seen anything like that in this country in my entire life. So remarkable, so breathtaking, to watch that unfold on January 6th, and then to go the next day to teach constitutional law. Yes, this is a crisis of which the court has played an important role. Shelby County dismantled key provisions of the Voting Rights Act. Ruth Bader Ginsburg, I think she got her Notorious RBG moniker by noting that throwing out the pre-clearance provisions of the Voting Rights Act, those are the provisions that allowed the Department of Justice to act prospectively. So whenever a state wanted to change its voting laws, they first had to go to the Department of Justice and say, okay, this is not going to limit minority participation in elections and they have to explain themselves. And so it was prospective. The court in a decision authored by the Chief Justice says that violates this idea of equal sovereignty, you have states going hat in hand to the federal government to bed as applicants for the authority to do something that they're allowed to do, election law. Justice Ginsburg disagrees, said, we understand that you think that there has been racial progress, more minorities are voting than ever, but that's because pre-clearance works and throwing out pre-clearance is like going out in a rainstorm and tossing your umbrella because you're not getting wet. I think like what we saw over the course of the last election, the changes made in 24 hour voting, the law in Georgia that makes it a crime to give someone water when they are standing in line to vote. Those would never have survived pre-clearance had the pre-clearance regime been in place, it is not. What is left of the Voting Rights Act is section two which instead of being prospective relief, is retrospective relief, which allows you to litigate changes to the voting laws that you believe have a disparate impact on particular communities. And the court just last term kind of hobbled that provision as well. And in hobbling that provision, really credited this idea that states have an obligation, indeed a duty to prevent electoral fraud. I mean, basically tacitly endorsing the idea that there is massive election fraud and that elections that are contested are somehow illegitimate because of the prospect of fraud, essentially reiterating the big lie that led to the insurrection on January 6th. No one talked about that in the court's decision in Brnovich. Those were the Arizona voting cases that Justice Alito basically credited the big lie and gave credence to this idea that we are awash in voting fraud. The evidence of voting fraud or electoral fraud is glancingly rare. All economists, statisticians, everyone suggests that this is not a widespread problem, elections operate relatively well and people who need to vote who are eligible to vote do and they're just like, it's not dead people voting, it's not people who are undocumented voting, like they run the way they're supposed to do. But instead, we've fed this lie and the court has now fed this lie that there's some deep seated problem. And what that does I think is created the notion that we are a democracy in crisis, and we likely are, but it is a crisis that I think the different sides see quite differently. Like for the Justice Alito, I think the crisis is the prospect of all of this foul play in election that we're told doesn't really exist, and for the other side, it's the prospect of not being able to vote, like having the opportunities to exercise the franchise so circumscribed that it's essentially a nullity for you in much the same way the abortion right is so circumscribed that is essentially a nullity for most people throughout the country.
- I want to open this up to general questions so already start thinking about your questions. I'll ask just one more if that's okay, which is, you're talking about a constitutional crisis and the way in which the court itself is contributing to that crisis. I wonder if you have any view about the constitution itself being the crisis, that is that there actually defects in our constitution which have now for all its greatness have emerged over time. And I wonder if there's, if you could like push a button and change, let's say, I don't know, three parts of the constitution, what would those be?
- So I guess about a year and a half ago, I was on this project that the National constitution Center commissioned and there were three teams, the progressive team, the libertarian team and the conservative team. I was on the conservative team, obviously. Not obvious. I was on the progressive team. And we were charged with drafting a new constitution. And what was interesting about it, my teammates and I, we actually found that we thought the bones of the constitution were pretty good, right? I mean, it was like a nice pre-war apartment, like it needed some renovation, maybe some amenities needed to be added, but the essential structure was good. And our point was, the constitution is meant to divide authority so that no particular branch or no particular political entity has too much power, right? And that seems right, that seems right to us. And it works best when it facilitates and enables democratic participation, right? So the features that we changed were ones that we thought would enhance the prospect of democratic participation. So, we introduced a constitutional amendment to deal with partisan gerrymandering and racial gerrymandering. So to actually firm up what the court had done in prior decisions and to allow for a constitutional amendment to deal with partisan gerrymandering specifically. We got rid of the Electoral College and switch to a popular vote for all of the reasons that those who criticize the Electoral College as being unrepresentative, we think that's basically right so we did that. What else did we do? Oh, we made DC and Puerto Rico states in order to enfranchise those individuals. So those were three key things we made. We didn't do that much in terms of adding rights because our view was if the democratic process worked, then individuals could then go to the polls and be able to sort of agitate for those rights and tells someone. And we think that is basically right. So we were criticized for being too tentative, like some people wanted us to blow it all up, but again, you can be progressive without blowing the whole thing up. So we were like, maybe there's a radical team who needs to be brought on board for the next iteration of this, but as the progressive team, we felt like the document itself has good bones. Is it flawed? Surely, it was written in 1787. But the bones are there, we can add to this, we can add more flesh to some of this, and we can make it easier for the people themselves to add the flesh on and so that's where we ended up.
- You didn't tinker with the Second Amendment?
- I think we did, I think we did tinker with the Second Amendment to allow for gun control by the states.
- What about Article Five?
- The amendment process?
- Yes.
- So I think we did do something. I mean, this is all, like the pandemic happened in the middle of this so this is all somewhere between ordering DoorDash and cleaning my groceries as we were doing this. So what did we do with it? I think we did make it easier, like less than a 3/5 majority of the states in order to get something passed.
- So questions from you all.
- We've got a mic.
- The mic's right over here
- But we can also take it off.
- We can hand the mic if you're kind of trapped in the middle, we can pass the mic into you. Are you trapped in the middle in like the, yeah, very trapped in the middle.
- But it's being recorded.
- I think yeah, for the purpose of the recording, I think it'd be helpful to.
- [Jaden] Hi again, I guess my question, so I read your article and I like had a moment like reading it where I was like, oh my God, I'm not the biggest fan of legal writing. And then I think that I thought like, no offense, I think it was a great article, but I wonder if do you think that like there are barriers for like lay people, I think to like digest and understand law, and how do you feel like that is affecting the way in which we can act basically to ensure that laws are just and that we are doing what we can to make sure that they're affecting everyone equally.
- So Jaden, I will just say that you are not the first person to find legal writing inscrutable and impenetrable. My husband who actually did go to law school, we met at law school, I don't think he's read anything that I've written since I got tenure, he's like, you're good now, you've got a job for life, I don't need to go back here and read any of this. So I think that is a problem of legal writing of the law review format. I mean, the only way we can actually get people to read our work outside of other academics is to get invited to colleges and make you read it, which is what I've done. And so I sort of divide my career into two parts, there was the part at Berkeley and now there's this sort of second part at NYU. And in the second part, I think I had been very conscious about making sure my work has a public facing dimension. I think the earlier part of my time at Berkeley was about getting tenure and speaking to my colleagues primarily, speaking within the academy. Now, I think it is absolutely urgent and important to not just be having an insular conversation within the academy, but to be facing outward. And so, I wrote the article that I gave you, I also wrote like three different op eds that are sort of rooted in parts of that article that have been published for lay audiences. I have done a podcast, I have a podcast, "Strict Scrutiny", a podcast about the Supreme Court and the legal culture that surrounds it, please feel free to follow it where we talk about this. And the goal is to speak to law students, to speak to college students, people who are interested in the law. And we're very clear about how we talk about this, like we will get into the really arcane stuff, but we have what's called the Aunt Johnny Pearl test, Aunt Johnny Pearl is my husband's aunt and she's from Mississippi, and our idea is if Aunt Johnny Pearl couldn't understand this, we have to figure out a way so she could. And so there's a lot of making analogies to pop culture, like Chief Justice Roberts is the Taylor Swift of the court, he's like calling out people, his opinions, all kinds of things. Trying to make it digestible and relatable to audiences who maybe don't have legal training or some that have more limited legal training 'cause they're in law school or they're in college. And so that's been a big part of the second half, I think, maybe it's only a third of my career, who knows. But this second part has really been focused on being public facing because there's no point in doing all of this work if you can't share it and people can't understand what the ideas mean and why they're important if they are important. And I think this last piece, I do think this is important. I mean, I really think that this is what's happening with the court, what's going to happen with abortion, I don't think they're going to overrule Roe v. Wade in this case, Dobbs, I think there's going to be another challenge and I think it's going to be to a trait selection law. And I think the logic of overruling Roe is going to come on the backs of black and brown women and it's going to be about race.
- Questions? Don't feel shy, yes. And can we get the mic.
- [Student] I don't know how to do this.
- Don't throw it.
- [Student] Thank you. So you touched upon this and I was wondering if we could go a little bit deeper. So it seems that we make a lot of our reproductive decisions against a background of economic and like legal conditions. So you brought up a really powerful anecdote regarding the mother who decided to have a second child after her first child was diagnosed with Down syndrome. And I think a common critique of like liberal neutrality is that taking like a non-interventionist stance, when you have these background of conditions, is either like an implicit or like accidental endorsement of like the status quo or like the current moral positions that we had. So I wonder what you would say to I guess somebody who has the idea that, well, it's important for a true kind of feminist or progressive position must take some type of explicit stance, because if not, this stance of neutrality allows for cultural conventions or perhaps personal decisions that lead to I guess or oppression or domination of certain identities.
- So let me make sure I understand the question. So it's important for feminists or anyone within a particular ideological set of commitments to take a stance acknowledging the background conditions under which these "choices" are made and recognizing that in some cases, these are not choices at all because they are quite constrained and if we don't sort of interrogate those background defaults against which the choices are made, we're basically ratifying a kind of state, like we're all in the same boat making the same choices when in fact, that's not true. Is that right?
- [Student] Yeah, most definitely. And you touched upon the fact that we have like diverse cultural conditions and not maybe taking one position could be like it's detrimental to another. Yeah, but I guess the idea would be that if you stay neutral, in some ways you're endorsing, right, some types of exploitation.
- Also I mean, I guess one question is, what is neutrality for your purpose, because neutrality for a long time is sort of been a status quo that isn't actually neutral, it's actually shaped by one person's or one set of people's experiences and expectations. We're just calling it neutral because that's been the default, but it's actually not the default for everyone, it's just the default for those people and it's so widespread that we treat it as being the baseline, but it's not the baseline, it's their baseline, right? So do we actually have neutrality to start with? Like whatever we think is neutral is really just only neutral because it's somebody's perspective that we've accepted as neutral, right? What if we flipped it? Like, and just like here's a great example, most studies of urban transportation are actually based on men, right? Like bus routes and how they are cited and routed throughout the city are based on men's work patterns of needing to go from home to a city center, right? Imagine how different it would look if our urban planners organized their planning around how women and children actually use public transportation to recognize that women often do not just go from home to work, but rather go from home to daycare to the store to pick up things. That there are all of these sort of smaller intermittent steps that are not accounted for in the baseline for how we deal with and plan transportation in a city center, right? That's what I mean, the neutral baseline is a man's baseline. What if we were to flip it? And I think just the whole question of interrogating what undergirds someone's exercise of choice is that prospect of flipping the baseline so that you can see what someone else is experiencing, right? In my view and in my experience, like it is one thing for me to exercise my choice to bring a pregnancy to term, I have unparalleled economic advantages. Like I have a husband, I have economic security, a health insurance, right? I can't then sort of say like, if I can make this decision and I can deal with it, then that's what you need to do as well. And I think sort of understanding that not everyone is similarly situated is the first step, like the flipping of what the neutral baseline is to accommodate, and indeed, to see the experience of someone else, I think is a big part of creating a more just society, understanding how these things work, and why they are different for different people. I mean, I think one of the biggest critiques of the reproductive rights movement over time is that it was a movement focus largely on contraception and abortion because that's what a lot of white women were concerned with, how to avoid motherhood. There's an entirely separate debate going on around reproductive rights that's not about avoiding motherhood, but actually how to take it on and be able to raise your children in conditions of safety and security because you have economic security, because you have a home, because you have childcare, because you have paid leave, right? And those are a set of issues that are as important and integral to reproductive life as the availability of abortion and contraception and they were largely left out of the conversation for the first 35 years, right, because we did not flip.
- Question. Yeah, Jacob.
- [Jacob] Thank you. I was just wondering what your view was on the idea that conservative legal actors have these really catchy, almost attractive forms of constitutional interpretation that are easy to buy into, like original public meaning or Neil Gorsuch's style textualism. Or and then liberal justices have this tendency, right, that there isn't a counter to that, there might be purposivism or living constitutionalism, which seems somewhat defunct, right? But do liberal justices need to think of something that could contend with originalism and textualism or can they just use it for their own purposes I suppose?
- So, hats off to the conservative legal movement 'cause I think they've been very successful and adept at marketing their movement, right? I mean, like you know what originalism is, right? Like, let's go back to what the constitution meant in 1787 and let's do that. And it's sort of clean, it limits the idea of activist judges 'cause you're bound by text and you're tethered to this idea. Like I think there are lots of things that can be used to criticize the prospect of originalism including the fact that when the constitution was originally framed, there was a democratic deficit, no matter, says the originalist, we then just move forward to the Reconstruction amendments, being part of originalism because you can and then sort of add on and you can take away as long as it's textual and it's sort of framed within the text. I think it's a very clean way to think about it and they've been incredibly successful in doing it. I think I was on MSNBC this week and said something basically to the effect that, the constitution when it was drafted was understood that it could not be exhaustive, how could it be? Like they knew they weren't writing a legal code, they were sort of painting with broad brushstrokes for the purpose of principles can later be extrapolated. And so not everything that could be protected is included, some things are implicit, like executive privilege, for example. And I got this kind of sharp email from a gentleman in Huntsville, Alabama. And so then I wrote him back, like, here's originalism. And he was like, you really want to say that like this flagrantly unconstitutional non-originalist perspective is right? And I'm like, and so we had this whole discussion. And so what struck me about the discussion is that he is some guy in Huntsville, Alabama, by his own admission, he's not a lawyer, he's ever been trained as a lawyer, but he knows what originalism is, right? He knows what textualism is. I don't know that anyone on the liberal wing of the court has a strategy for bringing constitutional interpretation to the masses in that way. And that's a problem I think, how to make it relevant for the folks at home. Maybe we on "Strict Scrutiny" are doing some of the lifting on this by doing the Aunt Johnny Perl test, but I don't know how deep our reach is, certainly not to the extent the conservative legal movement has had reach. And I think that's an issue. I think Justice Ginsburg had sort of cottoned on to this in the later part of her career, I think it's one of the reasons why she was so tickled at being the Notorious RBG because she had this moment where she was for the left what Justice Scalia was for the right, and in the same way, conservative law students were reading and citing Justice Scalia opinions, now progressive students were doing the same thing for her. And I don't know that it was necessarily narcissism, but actually, she had found a conduit into the next generation of lawyers and possibly even beyond lawyers and I think she was excited and energized by that. Justice Sotomayor too I think recognizes the power of reaching beyond the court to the people. I think a lot of her decisions are written in a way to engage the public, they are I think what Lani Guinier and Gerald Torres might call demosprudence, that kind of speaking not to other legal actors, but speaking directly to the people. And I think she's been doing more of this as the court has moved sharply to the right because I think she recognizes this court isn't going to save itself, it's going to have to come from outside of the court. And I think maybe that is an attempt to calibrate the incredible intellectual success of the conservative legal movement. Whether it is too little too late I think is a completely different question.
- Can I just follow up on that. I mean, do you think that originalism just at least on the surface looks like a simple, digestible powerful view?
- Yeah, it plays in Huntsman.
- Right, right. But do you think that there is the liberal understanding the constitution just isn't, it's sort of in its nature not to be capable of that kind of formulation?
- I don't know if it's entirely incapable, I mean, but I think, one, what is it, right? Is it living constitutionalism, and if it is living constitutionalism, this idea that there's a kind of dynamism to the constitution and is perpetually updating like Apple software, now we're like constitution Apache. Like Big Sur, who knows. And I think that leaves people uneasy and slightly anxious because it vests a lot of authority for the update in the hands of these unelected judges. And I think even liberals who believe that the constitution has to move with the times and it's intended to like to evolve to meet new challenges, like the framers didn't know about cellphone towers, but surely we can figure out if the Fourth Amendment applies to data contained in cell phone towers. But I think there is a kind of concern that how far removed from the people the judiciary is means that there's a potential for kind of elitist capture if you allow for this sort of dynamic vision of the constitution to take sway. And that's the attractive thing about originalism.
- [Quinn] I was wondering what your thoughts are about the role of the law in terms of equal opportunity versus equal outcome, and I guess in terms of voting rights and reproductive rights, should the role of the law to ensure that everybody has the equal opportunity to vote or that of the people who do vote, there's a proportionality in terms of race and gender and other factors that have maybe previously inhibited people from voting in the past?
- So it's a terrific question, Quinn, and I think it's one that was captured in the oral arguments in those Arizona voting cases last year. The lawyer for Arizona, Mike Carvin, basically made the argument that there is no equal protection problem, there's no voting rights section two problem if everyone has an equal opportunity to vote. And, again, this goes to the question of the background defaults, right? That people are making these decisions, exercising these rights in. The lawyer on the other side noted that in Arizona, there's a sizable Native population, and, yes, they have the opportunity to vote, but polling stations are actually few and far between on reservations, post office are all, post offices which we sort of take for granted in most communities are actually also scarce on reservation so even the prospect of voting by mail is much more difficult. So yes, that everyone has an equal opportunity to vote, but there may not necessarily be an equal opportunity to have your vote counted, right? And that's sort of the difference I think between equal opportunity and sort of equality of outcome in the court. I think it was very clear, like the Voting Rights Act is about equal opportunity, not necessarily equal outcomes. And the part that was most stunning about the oral argument is there's a colloquy between Mike Carvin and Justice Kagan in which she's sort of pressing him on this question of equal, like why do you need this, like why do you need this law, like why do you need to prevent individuals on Native American reservations from collecting the ballots and bringing them all to a polling place together, right? Why does that matter if what you care about is equal opportunity. And he basically confessed and conceded that every vote counts, especially in these purple jurisdictions like Arizona where they're basically street fighting and the difference between an election and the state's electoral college votes going for a Democrat or Republican can be thousands or tens of thousands of votes. And so yes, we're going to get in there and we're going to litigate every one of these because that's how you win. And that I think made it very clear, this wasn't about equal opportunity, it wasn't about Democrat, it was about winning, it was about power. And I mean, like forget equal opportunity and equal outcome, this is a power play at this point.
- [Student] So, the past four Supreme Court nominees which are the only four that I've really been old enough to pay attention to have been some of the most divisive news stories of my time of this age. And you mentioned a minute ago that the putting so much power in unelected officials would make some people uneasy under a liberal understanding of the constitution. I'm wondering if you think that there's any grounds to reconsider the fact that the court is made up of unelected officials in the first place.
- I'm trying to think who, so the four, like Barrett, Kavanaugh, Gorsuch, and Kagan too, you're even including Kagan in this.
- [Student] I was thinking of, what was it, no, Garland.
- Well, he didn't make it, right?
- He wasn't even gotten a hearing.
- [Student] Yeah.
- He did get a hearing when he became Attorney General so cold comfort, but non the less. It's great when you have to settle for being Attorney General of the United States. So it's a really interesting question, I mean, like the whole framework around the Article Three judiciary and then being unelected is this idea that because they are unelected, they are not beholden to the democratic process, right? They don't have to worry about pleasing the voters, they can be above politics, so to speak. That is appealing in some ways. I mean, if you think about state courts, many of them are elected, including state high courts, and that has pathologies of its own elected judges and there's lots you could say about that. And so it's not to say that the fact of an unelected judiciary is by itself problematic, I mean, I think there are some real virtues to it, I think the question is, at a time like this when we have a democracy that really is made up of a plurality of different kinds of people and constituencies, what is perhaps most surprising about the Supreme Court is that it is not made up of a plurality of different constituencies. Eight of the nine justices are from the Boston to DC corridor, right? I think, when Justice Ginsburg was on the court, three of them were all from New York, right? Justice Sotomayor, Kagan and Ginsburg. Justice Thomas was living in DC when he was appointed, but he's originally from Georgia. The only justice to have not attended an elite university and law school is just as Barrett, right? So there's a degree to which as a group, they're sort of the elite of the elite, right? Justice Sotomayor is the only one who was raised in a household where English was not the first language. She and Justice Thomas are the only ones who have grown up in relative poverty. I think six of the justices are Catholic, right? That's a surprising degree of homogeneity, and that kind of homogeneity does not get limited to the court itself, but also I think bleeds out into the ecosystem of the court and how the courts doings are then translated back to us. So the group of clerks who work for the justices are largely homogenous. I think last year, roughly 20% of the clerks were women, right? So it's a lot of men. A lot of them hailing from the sort of traditional schools from which the justices hail. In the press corps around the Supreme Court, most of the people who report on the court are white men, there are a handful of women, Dahlia Lithwick, Nina Totenberg, Linda Greenhouse sort of sporadically now that she's retired from the New York Times, but they're mostly white men, very few people of color on that beat. I mean, it's one of the reasons why we decided to start a podcast so that there could be people who look like us who cared about some of the issues in the court and who could talk about what those issues meant for communities that were not always reflected in the discourse around the court. So, this is all to say like, there are lots of problems with an unelected judiciary. The fact that they're unelected I'm not sure is the principal problem, I think that they're unelected and incredibly unrepresentative, and then surrounded by an ecosystem that is also seriously unrepresentative is more problematic, in my view.
- [Student] Thank you.
- We have time for one concluding question. Who would like to, go back to you, absolutely.
- [Student] Yeah, sorry. Just along those lines, I've been looking at like where a lot of, so sort of what you mentioned, a lot of them just like come out of like Harvard or Yale Law School.
- Terrible phrase.
- [Student] And like, why is that?
- Why is Yale?
- [Student] Why is it that like all these justices and a lot of the clerks are just coming out of like these 14 schools, and how do you like, I don't know if you know how, but how do you fix a problem like that?
- I mean, that's the question, right? I mean, so I think we as a society are sort of interested in credentials. I mean, you all are interested in credentials, you're here at Amherst, it's like the number one liberal arts college in the country, yes?
- Yeah.
- You clearly don't care. Like we're all enamored of credentials. I mean, like I went to Yale and I went because it was number one, right? And I thought if I wanted to, whatever I wanted to do, being the number one school was going to help me to do it. And I'm sure you all make calculus like that all the time. I think presidents make similar kinds of calculus when they're trying to determine, can I get this nominee through a Senate that is very closely divided where like unassailable credentials perhaps smooth the path? Do I think Justice Sotomayor would be on the court now if she had gone to no name law school and hadn't been on the law review there, probably not, I think it mattered that she went to Yale Law School. And even though she went to Yale Law School and was a summa cum graduate of Princeton University, she still got to sail as being not smart enough, not good enough, all right? So yes, we are an incredibly liberal borage society and presidents are not immune from that impulse either. And even when people have those credentials, I think for whatever reason, there still may be questions about whether they are qualified or not to fill that post. So that is I hope approximating an answer to the broader existential question of why is Yale.
- Which is the note on which we always end our conversation. So thanks so much for joining us this evening.