0:00:00.2 S?: I have the honor to announce on behalf of the Court that the October 2021 term is now convened.

[music]

0:00:10.4 Leon: Hey, everyone. This is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking to Elie Mystal, Justice Correspondent at The Nation. Together they're previewing the upcoming Supreme Court where guns, God and groundwater will all be on the docket. Arguments began at the Court last week, but the real decision-making happens before arguments, when the Court chooses which cases it wants to hear.

0:00:37.8 Leon: Based on what the Court has chosen to hear this year, there's a strong possibility that Roe v. Wade will be overturned, that states won't allowed to restrict gun ownership through licensing, and that one of the Court's resident Catholics will vote to put someone to death. This is 5-4, the podcast about how much the supreme Court sucks.

0:01:00.6 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that hover menacingly over America, like Kyrsten Sinema over a clearance rack at Forever 21.

[laughter]

0:01:09.7 Peter: I am Peter. I'm here with Michael.

0:01:15.6 Michael: Hey, everybody.

0:01:17.0 Peter: And Rhiannon.

0:01:18.9 Rhiannon: Hello.

0:01:19.9 Peter: And our good friend, Elie Mystal. Elie, welcome to the show.

0:01:24.9 Elie: Hi, thank you for having me.

0:01:26.9 Peter: Elie is, and correct me if I'm wrong, Elie, Justice Correspondent over at The Nation?

0:01:32.6 Elie: Yes, they asked me what I wanted my title to be, and I could choose between justice correspondent, justice reporter or legal analyst, and I was like, I hate analyzing things, and I certainly don't report on anything, so.

[laughter]

0:01:46.7 Rhiannon: I will correspond.

0:01:50.4 Elie: On how terrible our lives are about to be.

0:01:52.8 Peter: That's right. To people of my generation, people about a decade out of law school, you're also famously from Above The Law.

0:02:01.4 Michael: Yes.

0:02:01.9 Peter: I remember when I was desperately clicking refresh on those big law bonus pages at Above The Law, feels like it was just yesterday.

[laughter]

0:02:11.0 Elie: It feels like that for me too. Every time we hit bonuses and then I see them have to write 50 of those stories, I'm just like, "Oh, my God, I used to do that for years."

[laughter]

0:02:20.8 Elie: Debevoise today did exact same bonus as [0:02:24.5] ____ yesterday, and I will write different words to describe the same number.

0:02:29.3 Peter: What a time that was, and now I get to read the same pieces every now and then, knowing that some 26-year-old is getting $65,000.

0:02:37.3 Elie: Look, man, I worked at Debevoise & Plimpton in my early 20s, and I still... To this day, I am 43 years old now, and I still do not make as much money as I made when I was 27 years old in the last year before I quit, right, it's not even close. And that's stupid. You're not supposed to go backwards lifetime in terms of earnings, but that's what happens when you get into journalism, folks.

[laughter]

0:03:01.1 Elie: Remember, kids, marry well, that's what I did, marry well.

[laughter]

0:03:06.2 Peter: So as our listeners probably know, the Supreme Court's 2021-2022 term just started, and that means that oral arguments are beginning and in a couple of months the decisions will start coming down. Now, usually we don't do a term preview, but Elie, you wrote a term preview piece for The Nation that we thought was excellent and that's why we wanted to have you on. And so we thought we would go over some of the cases that you mention in your piece, and the first thing I would like to engage in what I think is the lowest form of interviewing, which is reading a quote that you wrote back to you.

[laughter]

0:03:47.7 Peter: You said, "This term, we will see conservatives celebrate the achievement of two long-sought goals they could not accomplish through electoral politics. We will see broad conservative agreement that women should be treated as second class citizens, reduced to the status of incubators with mouth parts when the Court hears the most direct challenge to abortion rights in a generation, and we will see broad conservative agreement that guns have more rights than children." An important bottom line when you're doing Supreme Court term previews, because you'll often see a lot of prognosticating in those previews about where the Court might come down on a case, and that's sort of well and good, I'm not inherently opposed to it, but it's important in my mind to keep centralized the idea that no matter where precisely they land, this is a fringe reactionary Court and they will produce fringe reactionary outcomes.

0:04:33.9 Rhiannon: Right, yeah.

0:04:34.4 Peter: And they can shove us off a cliff or they can slowly walk us off, but we're going to hit the bottom one way or another, and I think it's important not to indulge the part of a legal media ecosystem that is sort of hunting for nuance where not much exists.

0:04:49.2 Elie: It's why I wrote it that way, Peter. Look, like everybody else, I was inundated at the end of last term with idiots trying to tell me that this Court is split 3-3-3. That was the main thing, that's what Noah Feldman wanted me to believe that somehow a 3-3-3 Court... And it ain't. It just is not a 3-3-3 Court. There is legitimate ideological disagreement about the best way to take away our rights. But the outcome, that rights should go away, there is no disagreement there.

0:05:22.8 Elie: So what you have is like one set of conservatives basically acting like leopards, I want to kill a thing and take it up in a tree and eat in private. And you have another set of conservatives, like, "No, no, we're wolves, we want to hunt, we want to wear down the face and then eat it all together as a family."

[laughter]

0:05:41.4 Elie: That's the debate, right? Are they going to kill you like a leopard, or are they going to kill you like a wolf. I do not have a crystal ball. I do not know if some of these cases that we're going to be talking about are going to be 6-3 or 5-4 or 8-2. I don't know what the actual vote count is going to be, but I know ideologically, we have already lost because we're already arguing on the grounds that conservatives want to argue about, over the issues that conservatives think are important.

0:06:09.3 Rhiannon: Exactly.

0:06:10.8 Peter: I think that there is one issue hovering over all of us right now, and it's abortion rights. And specifically Dobbs v. Jackson Women's Health, which is a challenge to a Mississippi law that forbids abortion after 15 weeks, which can be distinguished, of course, from SB8, the Texas law dominating the headlines lately that penalizes abortion after six weeks.

0:06:31.5 Peter: So Roe v. Wade creates a right to abortion and Planned Parenthood v. Casey limits Roe, but essentially forbids bans on abortion before the fetus is viable, which it says is about 23 or 24 weeks into a pregnancy. So the law in Mississippi, pretty plainly unconstitutional under that framework, but the Court granted cert on it anyway, which is never a good sign. The only real question is how bad it's going to be, and I think there are two reasonable schools of thought. One is that the Court is going to keep the basic right to an abortion in place, but create an even narrower rule than Casey did. And the other is that the Court is going to take this opportunity, they've been waiting for it for decades, and they're going to knock this one out of the park and overturn Roe.

0:07:17.7 Elie: Where I always try to start people from is, what does Roe actually do? What's the point of that decision? And all Roe stands for is the proposition that before fetal viability, before 24 weeks of gestation, the state does not have a right to ban a woman's access to her own body. After 24 weeks, Roe says that the state can get all up in her uterus, right? After 24 weeks, we already live in a world where the state has a lot of power to come between a woman and her bodily decisions. But before 24 weeks, we simply say, they can't outright ban it.

0:07:58.8 Elie: Then Planned Parenthood v. Casey comes in and says, well, they can't ban it, but boy, can they throw some hurdles in the way. Any hurdle that you put up as long as you don't outright ban it probably is going to be okay, right? That's where we are now. That's where we are. Well, that's where we were before Texas' SB8. The Mississippi law is an outright ban after 15 weeks with no exception for rape or incest. There is an exception for health and the mother, but none for rape or incest. At 15 weeks, that is violative of Roe. There is no way that the Mississippi law can stand and Roe can be good law. Those two things cannot exist at the same time. What I fear they will do in Dobbs by June, they will technically uphold Roe v. Wade as good law, but eviscerate the very thing that it stands for by also upholding the Mississippi abortion ban.

0:09:04.8 Peter: It's almost the scariest outcome in a way, because I just don't believe that the legal media is prepared to reckon with that, to reckon with the reality of it.

0:09:14.2 Elie: In no way.

0:09:14.9 Peter: And I am just dreading ostensibly nuanced coverage of a case like that next June.

0:09:22.2 Elie: And remember, Peter, that's going to give Republicans exactly what they want, because if they uphold Mississippi law, but say Roe is still good law, then all the Republicans go back to their base and be like, you got to give us money because we still need to overturn Roe. Even though they've won everything, they can still go to their base, who doesn't know anything, and get money from them. The fool and his money are easily parted from, and on the other side, it gives moderate Democrats who do nothing to stop this, who pass no law, who take no action to stop these people, to come away from that decision and be like, guys, could have been worse. Roe could have been overturned, but it's not. Vote for me, I'm a centrist. It allows the moderates to do the same two-step pretending that Roe exists.

0:10:05.1 Rhiannon: And we should say, just in terms of previewing the term upcoming at the Supreme Court, the petitioners in the SB8 decision, so the petitioners from on the Texas law, abortion providers and reproductive rights advocates in Texas, they have filed for cert at the Supreme Court. So they have asked the Supreme Court now to fully review the Texas law, and they did that, I think just a couple of weeks ago. So I haven't looked at the specifics, but they have now asked the Supreme Court to decide the constitutionality of SB8 on the merits, and the Supreme Court chooses which cases it will grant cert to on a rolling basis, so it hasn't decided yet whether that case will be heard this term, but there's obviously some interplay there, and it's just something to look out for, right?

0:10:50.2 Rhiannon: Would it be crazy for them to be consolidated, right?

0:10:53.4 Rhiannon: Yeah, right.

0:10:54.8 Elie: Well, actually, I don't think they will be, because one of the funny things about SB8 is that it kind of jumped the gun. I don't actually think, maybe Alito or Thomas in some kind of fever dream, but I don't actually think that most even the conservatives wanted SB8. I think they've thought the fifth circuit wouldn't go full yolo, and would do the right thing and stop it.

0:11:15.9 Peter: One of the crazy things about SB9 is I think the conservative political movement has gotten away with just an unbelievably blood-thirsty and vindictive set of legislation, across the country, at a state level, on abortion rights that just hasn't made it to the headlines. It's always just sort of presumed to be unconstitutional, and because I think a lot of liberals have sort of rested on their laurels with respect to the existence of Roe, you just haven't seen it rise up in the political discussion in the broader political narratives.

0:11:50.2 Peter: Alright, so the next big case is a Second Amendment case, New York State Rifle and Pistol Association v. Bruen. We did an episode on DC v. Heller, the 2008 case that held there is an individual right to the possession of firearms, but that case did not have much to say about exactly what firearms regulations are constitutional. Since then, there's been a tug of war between the gun lobby and especially certain liberal states and municipalities over the scope of firearm regulations, and for a while the public debate has centered around things like certain types of assault rifles and weapon accessories, like bump stocks were a big deal a couple of years ago.

0:12:29.4 Peter: But with the Court firmly in conservative control, the gun lobby, it seems, has decided to play for all the chips here, and New York has a law stating that applicants for concealed carry firearms must show a specific need for those firearms before they can get licensed, some sort of need to self-defense. And gun lobbyists have challenged that licensing requirement, which not only puts the New York regulation at risk, but may put the very prospect of licensing for guns in danger.

0:12:58.0 Rhiannon: That's right, yeah.

0:13:00.3 Elie: You want to talk about bonkers? You want to do a list of the things that the state can make you have a license for? You need a license to drive a car, you need a license to sell a beer. You need a license to do a whole lot in this country, and the gun lobbyists say, not you people.

0:13:18.1 Rhiannon: Right.

0:13:18.7 Elie: Nope. That's the one thing in the entire world. You gotta register to vote. I mean, think about that. I have to literally go some place, and hand in my ID, and put in my social security number, and show you my birth certificate to be allowed to register to participate in the democracy, but if I just want to go get an assault rifle and go shoot Bambi, Bambi's mom, sorry.

0:13:42.3 Michael: Or Bambi, I mean...

0:13:43.8 Elie: This is a legal podcast, Bambi's mom, If I just want to go off and do that, no, no, no, you can't make me get a license for that. And the only reason why this is a Supreme Court case is because at least four, if not six, but at least four conservatives on the Court agree that licensing maybe is too much power for this... It is insane bonkers. And one way I want to synthesize just what we're talking about in Dobbs and what we're talking about in New York State Rifle, the Supreme Court is horribly out of step with where the majority of Americans are. You could not get through a legislature a vote to end gun licensing or to end abortion rights. That's not something that you could do nationally speaking, so the only way for conservatives to get these things that they want are through the unelected, unaccountable, unrepresentative Supreme Court, because they are beyond the pale of where mainstream mainline America is on both of these issues, especially guns.

0:14:49.6 Rhiannon: Yeah. Elie, I think such an important part of your preview piece in The Nation is exactly that point, is highlighting that through these cases, this is where the conservative political movement is going to achieve its ideological aims that it cannot do through the electoral process. And I think another thing that the piece highlights and that these cases highlight is that these ideological aims are not just sort of in opposition to where public opinion is and what the majority of people in this country actually want, but also against a lot of Supreme Court precedent that's already on the books. It's even more right and even more fringe than what even conservatives on the Supreme Court were saying just a decade, two decades, three decades ago, right?

0:15:36.6 Michael: Yeah, you can look at Heller itself, the case that Peter mentioned, which is sort of infamous as like a case that created an individual right to own guns in self-defense, sort of out of whole cloth, but in that opinion, they say nothing in this opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms, right. It's like, look, we've always regulated guns, and this decision shouldn't cast doubt on that, and we can question the sincerity of that line, but it's undoubted that the current Court is far to the right of that.

0:16:25.6 Rhiannon: Exactly.

0:16:26.5 Michael: That we have moved much further down the conservative rabbit hole when it comes to gun rights, and the fact that this case is even before the Supreme Court, I think, is pretty telling.

0:16:37.6 Peter: Yeah.

0:16:38.0 Elie: But this is why these people were picked.

0:16:39.9 Michael: Absolutely.

0:16:40.4 Elie: Their hostility to precedent is one of the ways that you rise up within conservative ranks. Neil Gorsuch has written screeds kind of giving himself an intellectual framework for overturning precedent. Same with Amy Coney Barrett. The people who get on the Court are people who do not respect the precedent, because it's all against them.

0:17:01.0 Michael: Right, yeah.

0:17:02.0 Elie: Liberals have played this game too, right? If you try to put a liberal Justice on the Court in 1960, you kind of need somebody who doesn't respect precedent, because all the precedent in 1960 is Black people aren't real people, and neither are women, really. That's all the precedent. Gay people, ew. That's your precedent coming into 1960. If you're liberal you need Justices who don't respect that and are willing to re-open Plessy v. Ferguson.

0:17:29.1 Michael: It's very frustrating to see the conservative legal movement and conservatives coming up in the courts. They have ambition and they have an agenda. They want to remake the country to fit their values, and on the left, I don't see that. I see a lot of sharp lawyers and maybe some justices with their own visions, but I don't see a comprehensive sort of agenda, and I don't see unified ambition to shape the country the way the right has. And I think that's one of the reasons why the courts are not as much of a rallying point for the left. What are we offering, right?

0:18:07.2 Elie: I can tell you exactly what a conservative justice is, right?

0:18:09.6 Rhiannon: Yes.

0:18:10.0 Elie: We can name. They're hostile to women, they love guns, we can talk about what they are, right? I can't tell you what a liberal judge is. You ask Biden or you ask Barack Obama, they'll just say, a good judge. I'm [0:18:21.2] ____, right? The liberals don't have a set philosophy. Conservatives, they have originalism, they have textualism, they have other made-up words they can fit on a bumper sticker. What's the liberal version, right? We got Stephen Breyer out there running around being like, oh, it's not actually about ideology, we're all friends and we have a seance. We don't have even a definition of what we want the judges to do, right?

0:18:49.5 Peter: The conservatives have merged their political ideology and their legal ideology into one, and liberals really have not. They have treated jurisprudential issues as if they are separate from their politics, and have never really found a coherent vision, and that's where the conservatives have this sort of tremendous advantage, because they get to make and enforce unpopular policy from the bench with this veil of legitimacy while at the same time sort of shrugging and saying, well, this is the law. This is not politics, this is actually the law, because they have so successfully merged legal and political ideology.

0:19:25.3 Rhiannon: There's an interesting point, I think, in this gun rights case that's at the Supreme Court this term on that point, so there's an interesting amicus brief that was filed in this case by a group of public defenders, and listeners, you'll remember that an amicus brief, it's a brief filed by a party that's not directly involved in the litigation, an organization or an individual that has an interest in the outcome of the case, and so they provide information that they want the Court to consider when deciding the case.

0:19:54.8 Rhiannon: And in this amicus brief, filed by these public defenders, they are arguing that the licensing requirement in New York should be found unconstitutional based on how it's enforced against their clients. So they're saying that the licensing standard is used as a pretext really to deny Black and Brown people licenses to carry, and that police use the possibility of unlicensed gun possession as pretext to harass Black and Brown people on the street. So it's a unique framing I think that you don't hear often that there is a constitutionally protected individual right to bear arms, and that the problem is racist administration of that.

0:20:36.2 Rhiannon: I think, Elie, you make a good point in your piece that this is an argument for individual gun rights and not civil rights, but it's personally sort of an interesting issue for me as a public defender, because it highlights a broader tension that public defenders face when they place themselves as movement lawyers, the interests of the individual clients that you represent day-to-day with their discrete, their particularized experiences, and how that sometimes does not align with what you would think of as broader progressive goals or conceptions of constitutional rights, right?

0:21:09.8 Michael: Right.

0:21:10.1 Elie: The problem with the amicus brief is not the argument, it is the conclusion. They have made the correct argument, but their conclusion, let's get rid of gun laws, is not the right one. The conclusion is, let's get rid of racist cops. Let's deal with that. The point that really brings... The rug that ties the room together here is when they talk about who actually in New York state is in charge of giving out the licenses. It's the NYPD, the people that you have to show a proper cause to are NYPD, and NYPD tends to think that White celebrity person has proper cause and Black small business owner does not have proper cause. So again, their solution is, let's get rid of proper cause. No, no, no, let's stop having NYPD of all people be in charge of handing out gun licenses, like those are the worst people I can imagine handing out...

0:22:04.4 Rhiannon: Yes, exactly.

0:22:06.2 Peter: It reminds me of Kelo a little bit, because if you guys remember in Kelo, Thomas had a little bit in his dissent about how eminent domain policies are reinforcing racism, and he was right. He was absolutely right, but all he was doing, and all the conservatives will use this amicus brief for, was utilizing this argument as a weapon to very quietly own the libs while handing a huge win to the gun lobby.

0:22:31.7 Rhiannon: Right, exactly.

0:22:32.9 Elie: I was just saying I don't make predictions, but I will make a prediction on your show. I think when New York State Rifle comes out, I think it's going to be 6-3, I think they're going to let Thomas write it, I think they're going to let Thomas write the majority opinion because of this bad faith argument from the public defenders so that he can make the whole, see, this is really... I'm trying to help some Black people with this, and that's what's going to happen. And you're so right to say that it's just like Kelo, they're using it as a beard, they're using it as a shield to do the dirt that they were already going to do, but they can pretend like they're trying to help under-represented minorities.

0:23:05.9 Rhiannon: Yeah.

0:23:06.4 Elie: In my upcoming book, which is not out yet, so I don't want to fully plug it. But in my upcoming book, Allow Me to Retort: A Black Guy's Guide to the Constitution, I have an entire chapter on takings and on Kelo where I kind of... Like it's the only place in my whole book where I agree with Thomas, where I'm like, look, his dissent here is absolutely right, but the way to do it is not to worry about the nice white lady with the pink house. The way to do it is to stop [0:23:29.9] ____.

0:23:31.8 Peter: Another sort of guaranteed headline-grabber coming up, US v. Tsarnaev, a case about whether the Boston marathon bomber, Dzhokhar Tsarnaev, will be put to death. He was sentenced to death in 2015, but the sentence was vacated on appeal last year after a judge found that the court had not properly inquired into whether the jurors were biased by press coverage, which seems like a pretty reasonable inquiry to make. The feds are now appealing to the Supreme Court because they would very much like to kill him.

0:24:01.8 Rhiannon: Yes.

0:24:02.3 Peter: That's my read on it, and I'm not that deep on this case, so Elie, I'll let you expound.

0:24:07.7 Elie: Yeah, man, look, that joker is an asshole. Let's just be clear. He killed people. He's not a...

0:24:13.9 Peter: Our podcast is opposed to the Boston marathon bomber. We will say it.

0:24:18.1 Michael: You don't always like to take political stances, but...

0:24:22.6 Peter: Look, there could have been worse cities to hit, but...

[laughter]

0:24:25.7 Michael: Wow, wow.

0:24:29.0 Elie: Look, if you're going to be anti-death penalty, as I am, you end up having to defend terrible people. Dzhokhar Tsarnaev is a terrible person, who I don't think should be put to death because I don't think the state should be involved in killing people.

0:24:41.5 Rhiannon: Right.

0:24:41.7 Elie: I think that's something that the bad guys do, not the state, I think that's too much power for the state to have. So again, the state has enough power to license guns, doesn't have enough power to kill people, I don't think that that's a hypocritical stance. The interesting thing to me about the case is not the law here, because the conservatives on the Court enjoy killing people.

0:25:00.9 Michael: They do...

0:25:01.3 Elie: Bill Barr at the end of Trump's term went on a straight-up killing spree. Like if he wasn't wearing a suit and calling himself the Attorney General, he would have been reported on accurately as conducting a killing spree during the last dregs of the Trump term, and the Supreme Court let him do it with surprising alacrity, and then had the audacity to get pissed off that people kept asking them for reprieves and clemency. The thing that really gets me about the current concern... Neil Gorsuch is positively angry that people dare ask him for mercy, how dare you use legal tricks to try to stay alive is what you get from the conservatives, so legally, they're going to kill this man, that I think is fairly certain. What's interesting to me here is that Joe Biden, the current President of the United States... I know a lot of people think that it's Joe Manchin, but it's actually Joe Biden who won the presidency.

[laughter]

0:26:00.9 Rhiannon: Right. Wrong Joe.

0:26:01.7 Elie: He is against the death penalty. He is against the death penalty. Amy Coney Barrett, the newest Supreme Court Justice, last seen kind of dancing on Ruth Bader Ginsburg's grave, she is against the death penalty. She has written Law Review articles about how she's against, about how a good Catholic judge should recuse themselves from death penalty cases. Is she going to recuse herself? Hell, no. Is Joe Biden going to stop this execution? Hell, no. When Biden and Attorney General Merrick Garland got in, they had the opportunity to change the United States' posture on whether or not we should kill Tsarnaev, and they didn't.

0:26:41.9 Elie: The Biden administration appealed this one all the way up, the Biden administration is on the side of continuing to try to kill this guy, despite Biden's public statements that he's against the death penalty. So what are those statements worth? What do those statements mean? The death penalty is one of those things where when a Democrat or an anti-death person is in charge just should stop through executive authority. Just we're not going to do that anymore. I can also argue the deportations should stop.

0:27:12.7 Rhiannon: Yeah. I think the death penalty at the Supreme Court, it's sort of just an interesting category of cases, I think, to keep an eye on, because before the 2016 election in the capital defense community, there was a real hope that if Democrats won that we might see the Supreme Court abolish the death penalty altogether in the next 10 years, that's how people were talking about it, but that didn't happen. And it shows their precarity. Elie, you mentioned this earlier, it shows the precarity of relying on the Supreme Court for social justice wins.

0:27:48.0 Rhiannon: Trump won in 2016. We now have a 6-3 conservative super majority. This Court is nowhere near abolishing the death penalty. And they're certainly not going to do it on a case like this, where the defendant, the man sentenced to death, is incredibly unpopular, right?

0:28:05.8 Elie: Look, I don't think that he got a fair sentencing trial. I don't think it was possible for him to get a fair sentencing trial. Everybody knew he did it. He was tried in Massachusetts when he was on TV 24/7 in that little boat in Massachusetts trying to shoot cops. There was no opportunity for fairness at sentencing. Look, I think he's guilty, because I saw it. I think he belongs in jail. I don't think the state should be killing people. And you cannot tell me that that particular person got the fairest administration of justice at sentencing. You just can't... Couldn't convince me. You shouldn't be able to convince Biden.

0:28:43.1 Peter: Just to circle back a second. Michael, you were talking about this during prep, Amy Coney Barrett writing about the death penalty.

0:28:48.9 Michael: I am glad you mentioned that. She wrote about it when she was like in her mid-20s and she said, yeah, a good Catholic should recuse herself.

0:28:56.1 Peter: It was like three years ago.

[laughter]

0:29:00.2 Michael: And so then what... At a hearing in 2017, this came up and she sort of clarified it in an interesting way. She said as a trial judge, she wouldn't be able to enter an order of execution. But as an appellate judge, she could affirm that a trial judge applied the law properly or whatever.

0:29:18.6 Peter: Boom lawyers, yeah.

[laughter]

0:29:21.3 Michael: The Supreme Court, though, is much closer to the trial judge posture because the Supreme Court isn't really bound by anyone. They get to decide what is and isn't right. And yeah, so I think it will be interesting to see how hard she's selling out right now, whether or not she's going to write about this and where she's going to come down on it. Because if she has any sort of actual integrity, you would expect to see her saying that the death penalty is unconstitutional or at least inconsistent with her values.

0:29:53.8 Elie: Her position is further hypocritical because the Tsarnaev case, at least, the posture is that he's not going to be killed. The appeal is let's take away his clemency and kill him instead. If she adds her vote to the killing side, she's literally overturning a decision to let the man live into a decision to kill him.

0:30:15.3 Michael: Essentially entering an order of execution, precisely what she said she couldn't do. So, yeah, it'll be interesting to see how that goes. No predictions one way or another. But I do think it's sort of a fascinating subplot.

0:30:27.7 Elie: I don't need to vote, right, 'cause Brett's all just like, "Yo, let's do it and be legends."

[laughter]

0:30:31.7 Michael: Exactly, exactly.

0:30:35.7 Peter: So before we move on, I want to make one last point that sort of circles back to the Biden administration's posture here, because when it comes to the death penalty, the Trump administration didn't have a policy so much as like a philosophy. Their strategy was murderous, but it was also sort of performative in a way. The intent was less to execute people in and of itself than it was to symbolically proclaim that executions are good and righteous and should be embraced, which I think makes it all the more disappointing, even if it's sort of predictable in a way that the Biden Justice Department has not sought to reject that philosophy, because the rejection of the philosophy in and of itself is important.

0:31:15.1 Peter: There is a stand to be taken here that they didn't take. And they are acting as if the Trump administration didn't just make a point, which they did. And it's important, even if it's symbolic in my mind, to counter that point.

0:31:28.3 Rhiannon: Yes. Yeah.

0:31:29.1 Peter: Alright. The last case you mentioned in your piece is Mississippi v. Tennessee, which is about water rights. And since I do not know a single thing about water rights, I'm going to let you go from the top here and tell us what's what's going on in this case.

0:31:46.4 Elie: So this is a little thing about me, whenever I do one of these previews, yes, you got 30, 45 cases, all of them are important in their own ways, but I always try to find one that's kind of a little bit wonky and technically interesting. So the technically interesting one here this year is this case. This is a long-running dispute between the states of Mississippi and Tennessee. It's original jurisdiction in front of the Supreme Court because it's a dispute within the states. See, there, you listeners, you just learned something from first year law school. Congratulations.

[laughter]

0:32:14.4 Elie: At issue there's this Sparta-Memphis Delta, this underground 70,000 square mile reservoir of groundwater. Right now, if you've been watching the news or paying any attention, you know that we're running out of water, that's, you know, the earth is warming and the seas are rising, but we don't have enough water that's fresh that we can drink. And it's all bad. If you look at like pictures of the Colorado reservoir, it's all sadness. So Tennessee, which is upstream of Mississippi, has this particular pumping method where they... I don't fully understand it, but it's kind of a drink your milkshake situation, where they go down under the ground over to Mississippi and suck the water back out from Mississippi.

0:32:58.2 Elie: Now, we have a long jurisprudential history of dealing with upstream states damming or stopping water from reaching downstream. We call it equitable distribution, and we basically make everybody share. This is not that, because the water was not being blocked by Tennessee upstream of Mississippi. The water done already made it to Mississippi. It's like chilling in some rocks in Mississippi, and Tennessee's like super technological, amazing pumping method is literally taking water out of Mississippi, back for Tennessee. And so Mississippi says, no equitable distribution here, they just ganking us, make them stop, make them pay us money for ganking our water.

0:33:41.5 Elie: And that's where this case is. Now, I don't know how the Supreme Court is going to decide, but the reason why I want to bring it up and I want to talk about it, is that we live in a world where the political apparatus, generally both sides, but especially on the Republican side, acts like climate change isn't happening. We live in a world where we are in danger of having a radically different kind of resource environment. And the politicians act like it's not happening. And they can act like it's not happening as long as they want, but it is happening.

0:34:14.8 Elie: And at some point the legal system is going to have to get in the game and decide what to do, not about how to prevent it from happening, because the conservatives have already decided that the Constitution doesn't allow us to protect ourselves. It's actually a suicide pack, smoke them if you've got them, like that's the Neil Gorsuch position on climate change legislation. But despite that, climate change consequences are happening. What's happening between Tennessee and Mississippi is a consequence of climate change. There is not enough fresh water to go around. Tennessee has gotten creative about going to find it.

0:34:53.9 Elie: And so courts will eventually have to weigh in to these situations and tell us what happens when we have a scarcity of resources, who gets what, and Mississippi v. Tennessee will be one of our... This year's really good example of how the conservatives, who we... Again, we already know what they think about prevention. This'll be a good opportunity to see what conservatives think about the solution, is Tennessee just allowed to steal the water or do we have equitable distribution. Even if we have equitable distribution, Tennessee wins, it gets more water than it would have, or does Mississippi get to keep all that it has itself? I don't know. I don't know, I don't know the ideologies in play, but it's interesting, because these kinds of things are going to keep happening.

0:35:39.8 Rhiannon: Right? And I think you make a really good point in the piece, Elie, that there are myriad possibilities for how the Supreme Court could treat this case in the context of an ongoing environmental crisis. The fact that there isn't enough fresh water currently, it could mean that the Supreme Court and legislators come together and decide that water rights should be federalized. And that the federal government should be in charge of this equitable distribution, etcetera, etcetera. But again, not being an expert on water rights, there are myriad possibilities for what could happen, but instead the Supreme Court, as it's made up right now with the conservative super majority, is very likely to continue to say, this is a sort of state by state and case by case individual basis that we treat these crises, and they're not treating it in the proper context of impending climate doom.

0:36:35.5 Elie: If we ever get over the Madisonian nightmare that is federalism, like if we ever wake up from that, I believe it will be environmental crises that wake us up from that, because the environmental crises do not stop at the state boundary, they just don't, and they cannot be handled effectively on a state-by-state basis. We need to have a national approach to these global problems.

0:37:02.3 Michael: Yeah. But it's still not out of the question with these Justices that we'd get an answer that you'd expect under the Articles of Confederation or something. It's not... It's not out of the question that it's just like Lord of the Flies and everybody get what you can.

0:37:18.2 Elie: To the strongest.

[laughter]

0:37:20.6 Peter: The climate change deniers will lose the argument, and they will admit that they're wrong during the first wave of fire hurricanes...

[laughter]

0:37:27.6 Peter: Of 2045 or whatever. I do think a cool way to start off that opinion, no matter where it goes, would be something like, "I knew Tennessee sucks, but this is ridiculous." I think that'd be a winner. I don't if you guys get that joke. If any clerks are listening, put that in your back pocket, bust that one out.

0:37:45.5 Elie: Kagan would do it.

0:37:46.9 Michael: Yes. She likes the puns. She does.

0:37:48.9 Peter: She does love a pun. So I think we should talk about some cases that we're looking at that weren't in your piece, Elie. Michael, I think you've got one, right?

0:37:58.5 Michael: Yeah. United States v. Zubaydah, I believe, Abu Zubaydah. And a little more detail, this is a Palestinian man who was picked up in 2002 in Afghanistan. The US government said this guy is Osama Bin Laden's best friend and godfather, and like they might even be lovers.

0:38:16.5 Rhiannon: Besties.

0:38:17.9 Michael: And he planned 9/11 and any other terrorist attack you've ever heard of, and he ended up eventually in Guantanamo Bay. Now, it turns out, one, he probably wasn't in Al-Qaeda at all, and two, before he got to Guantanamo Bay, he had a nice tour of CIA black sites where he was tortured. That included getting water-boarded over 80 times in a month, being kept awake for 11 days straight, hung upside down naked, something I only saw called I think rectal rehydration, and I just don't even want to really contemplate what that...

0:38:56.5 Peter: Yup, no thank you.

0:38:57.9 Rhiannon: Yup. That's where you disassociate.

0:39:00.4 Michael: Pretty awful stuff. That's not even all of it. Now, he is in Guantanamo bay. He's probably going to be there for the rest of his life. There are records of the government saying while they were torturing him, like, hey, basically this guy should never talk to anyone ever again because of what we're going to do to him. That's something we have to understand is he's going to be incommunicado with the rest of the world forever, because we're about to go crazy on him. So he is trying to sue Poland, and he is trying to get criminal charges in Poland because that was the country where one of the CIA black sites was.

0:39:37.9 Michael: He has some judgments there. They have admitted that he was there and there was a CIA black site there. They have names of contractors, not CIA employees, but contractors who were present at that site, who they think will have important details about his torture to substantiate his claims and bring this forward. And there are federal laws that allow for compelling discovery in the United States for judicial proceedings abroad. And so, that's what this is about is him trying to get evidence for these criminal cases that he's pursuing in Europe.

0:40:18.3 Michael: Now, what happened is the United States government has asserted a state secrets privilege, and it is one of the most brazen assertions of privilege you can imagine. They are asserting privilege over confirming the presence of a black site that everybody knows exists. They're saying there's significant national security interests in not making the CIA say, "Yeah, that black site in Poland that has been reported on extensively in the media and that has been confirmed in other testimony in the United States, we shouldn't have to just admit that, that's a national security interest and that's a state secret." Preventing these two guy, who have testified along very similar lines in the United States in other cases, having them testify here, nonetheless presents a national security issue and raises national security concerns. It is insane.

0:41:17.4 Rhiannon: Brazen, yeah.

0:41:17.9 Michael: It is an insane assertion of privilege. And if this is allowed to stand, it's basically the government can just say whatever the fuck they want, whenever they want, they can just say, "Look, we are the experts on what is and isn't national security. And you have to believe us. If we say there's a national security interest, you just have to accept it." Right? That's basically what they're arguing. And as Elie mentioned, this is the Biden administration that's arguing this. It's very disturbing, not the least of which because 9/11 was 20 years ago. Like when are we going to be out of its shadow?

0:41:54.1 Rhiannon: Yeah.

0:41:54.6 Michael: Right? When are we going to stop this slide into just straight authoritarianism and say like, "Hey, the balance between civil liberties and security is way out of whack and we're tired of the road we're on." It doesn't seem to be any time soon, because the current Court is somehow much worse on these issues than the still conservative Court was in the mid and early 2000s. In the midst of the 9/11 hysteria they were much better on these things.

0:42:24.3 Elie: I think that's an important point to put a pin on, because I've already said about how shameful it is that Biden and Garland are continuing this argument. But let's all realize how brazen the Supreme Court is to even hear this case. The procedural posture of this case was that DC circuit kicked it back down to the district court saying that the district court should decide what information might be privileged and what information clearly isn't, right?

0:42:50.0 Michael: Right. They didn't even compel discovery. They just said, "See if you can separate privileged from non-privileged information."

0:42:56.2 Elie: Let us know if you can, because that would change the issue, right? And the conservatives appealed and they got at least four conservatives to think about quashing this case before there is even a procedural determination about whether or not the information can be disentangled. When I was growing up, when I was in law school, I was told that conservatives didn't like activist judges, right? But what is more activist than the Supreme Court not even allowing other courts, not even allowing the district court to do what they were asked to do.

0:43:29.6 Michael: Yeah. And it's worth saying, if there's one thing that courts and especially district courts are very good at, it's figuring out whether information is subject to some sort of privilege.

0:43:42.1 Rhiannon: They do this all the time. Yeah.

0:43:44.7 Michael: Right. This is what they do. Like discovery, going through discovery and figuring out what should be compelled, what should be withheld, what needs to be redacted, this is like bread and butter court stuff. And the question is whether or not they're even be allowed to see if they can start that.

0:44:03.2 Peter: It really isn't overstating it to say that this makes litigation against the CIA and its adjacent agencies irrelevant.

0:44:12.2 Elie: Just like the CIA wants it.

0:44:13.6 Michael: Yes.

0:44:14.9 Rhiannon: Exactly. Yeah. Another case I'm looking out for, it has not actually been granted cert yet, but the petition for cert has been filed and it might be heard at the Supreme Court this term, is Brackeen v. Haaland. This is a case I mentioned in our Adoptive Couple v. Baby Girl episode. This is a case that is challenging the constitutionality of ICWA, the Indian Child Welfare Act, because conservatives are now arguing that ICWA's placement preferences disfavoring non-Indian adoptive families in child placement proceedings involving an Indian child, conservatives are arguing that that is an unconstitutional use of race in a federal law.

0:45:03.4 Rhiannon: They are also arguing that child placement proceedings, foster care, adoption, sort of family court matters, are exclusively the province of state governments, and that the federal government can't sort of restrict states in how they carry out those proceedings at all. So like I said, it hasn't been granted cert yet, so we're not sure if the Supreme Court will accept this case and hear it on the merits, but if they do, right, just knowing what this 6-3 conservative super-majority thinks about all of these issues, it's not difficult to predict that this really cornerstone sort of bedrock of federal Indian law that was passed to protect Indian families will be overturned.

0:45:51.6 Elie: The argument that this law is unconstitutional is beyond me. I can argue that the law is about good policy or that it is a good policy, we can debate that, but that it would be somehow unconstitutional for the government to stop this redistribution of children away from Native communities just shocks my conscience, right.

0:46:11.8 Rhiannon: Yeah.

0:46:12.1 Elie: If you're going to say that the state has a legitimate interest in forcing a woman to bring a baby to term against her will, which is the posture of conservatives on the anti-abortion kick, that the state has a legitimate interest, and again, forcing labor, then how can you then fix your mouth to say the state doesn't have a legitimate interest in keeping already born babies with their own community.

0:46:41.3 Rhiannon: That's right.

0:46:41.9 Elie: How do you live in that world of hypocrisy? Again, we can have a policy debate about whether or not it's good policy, but whether or not it is constitutionally allowed just seems obvious to me. And I don't know that we'll lose that, because one of the things that's interesting about Neil Gorsuch is that he... Neil Gorsuch has shown, I would call it a soft spot for Native and tribal issues. I feel like Native people are the one people besides white men that Neil Gorsuch thinks are actually people too.

0:47:11.7 Michael: Yeah.

0:47:11.9 Elie: Right, not so much women or Black people or Latinos, but Native people, like Neil's, oh, oh, you're like me, almost person-like, right, like he gets that. If you look at McGirt, which was an amazing decision written by him that I recently had to re-read and, Jesus Christ, this man's writing is like... Every Neil Gorsuch is like, "When the Wife of Bath once said... " Like that's where everything...

[laughter]

0:47:34.8 Elie: He cares about these kinds of issues, and I don't know if he has a friend, if you can phone a friend on his side, but that case, even if it's granted cert, I don't know how that case turns out.

0:47:45.7 Michael: Right. I think in Adoptive Couple, Thomas wrote a concurrence basically sympathetic to the argument that the Indian Child Welfare Act is unconstitutional.

0:47:56.3 Rhiannon: That's right.

0:47:56.6 Michael: So we know where he stands. I think Elie's right that we know where Gorsuch stands. Where Kavanaugh and Barrett and Roberts land, I think it's an open question.

0:48:07.3 Rhiannon: Yeah.

0:48:07.6 Peter: I want to talk a little bit about religious rights cases, even though I don't think there's anything that jumps out as uniquely terrifying on that front, by this Court's standards, at least, but some of the most reliably conservative jurisprudence coming out of this Court is on First Amendment religious issues. And there's been sort of a two-pronged attack from right-wing judges. The first prong is on the free exercise clause, which says you have the right to the free exercise of religion. Conservatives have been using that clause to carve out questionable legal exemptions for religious practices, which you saw last term in the Court's jurisprudence on COVID restrictions, most notably.

0:48:44.6 Peter: But the second prong is the establishment clause, which says that the government shall not respect the establishment of religion, and that is firmly on the docket this term. So many state and local governments have avoided becoming entangled with religious institutions in order to respect the purported constitutional boundaries there, but conservatives have sort of long rejected that status quo and held that that what the Constitution actually requires is that the government engage with religious institutions, like they would any other institution.

0:49:15.8 Peter: So there's a case this term about whether state student aid must be made usable at religious schools, and another just granted cert on about whether Boston can reject a request to fly a Christian flag outside of city hall if it allows secular organizations to fly their flags. These cases are likely to come out on the side of the Christians in both cases, right.

0:49:39.1 Rhiannon: That's right, yeah.

0:49:39.8 Peter: And that signals a complete inversion of the law from a situation where the government was conscious not to engage with religious institutions, to a situation where they're actually required to engage with the religious institutions. And that fits very neatly within a conservative conception of the First Amendment and the law more broadly that seeks to make themselves a sort of legally privileged class, on top of the socio-economic privilege that they sort of inherently enjoy.

0:50:10.8 Elie: First of all, I want to push back a little bit on the there's no big free exercise cases on this docket, because while that's true right now, the next time any state has to do something to try to protect us from a deadly global pandemic, we're going to get another free exercise case, because it's going to be thrown on into the shadow docket about how this particular religious institution or that, my Jesus tells me that I have to get sick and get other people sick or else I don't get into heaven, that's going to be the case. And Alito will say, oh, Jesus said so.

0:50:40.7 Rhiannon: Right.

0:50:40.9 Elie: I mean, that's literally their entire COVID jurisprudence has been done on the shadow docket and been done to vitiate secular public health laws if people have religious objections, conscientious or not, I might argue. There isn't anything now, but we don't know how this year is going to play out yet.

0:51:03.6 Rhiannon: That's true.

0:51:04.2 Elie: In terms of free exercise. In terms of establishment, yeah, you said it right, Peter, the Christians will win. And that they are Christians is why they are winning, because if this was a case involving a madrass, you're not getting this case in front of the Supreme Court, right? If you are forcing the government to engage and let people fly their satanic flag, you're not getting this case in front of the Supreme Court. It's only because the majoritarian religion in this country now wants to have leave to invade the secular space and, most importantly, take secular money. That's one of the reasons why Neil Gorsuch has his job.

0:51:42.8 Rhiannon: Exactly.

0:51:43.3 Elie: Neil Gorsuch was a reliable vote and we all knew it as he was being nominated and confirmed. When conservatives are in control, this is part of their plan, and it's to take state funds and redistribute them to religious organizations, and they will keep doing that until somebody stops them. They will keep doing that until somebody stops them and the religious organizations will be Christian-based religious organizations, they won't be Muslim, they won't be Jewish, they won't be Buddhist.

0:52:15.9 Michael: Oh, and by the way, those organizations don't have to follow basic anti-discrimination or other civil rights laws that you would expect, because that's the free exercise of religion.

0:52:27.9 Peter: Yeah.

0:52:28.1 Elie: If Jesus says that you have to be a bigot, well, then gosh darnit, what you gonna do?

0:52:32.1 Rhiannon: Right.

0:52:32.7 Peter: Yeah... I think Trump v. Hawaii is sort of the obvious case of the Roberts Court's clear, clear disfavoring of non-Christian religions. But for me, what I always think of is, this is the same political movement that didn't want a mosque anywhere in New York City within 10 years of 911, right? The Ground Zero Mosque was a rallying cry for conservatives for months, months, and they were attempting to have the city intervene and prevent them from building a mosque. The hypocrisy is almost so obvious that pointing it out just feels like a waste of time. Of course, of course, these people are only referring to Christians when they are talking about religious rights, it's just obviously true, it's obviously true.

0:53:27.0 Elie: But we can't get the media to say that. Again, it's obvious to us, it's obvious to people who follow along, but it's really hard to get that obvious point written in the Adam Liptak column about the decision, it's really hard to get that obvious point written in The Washington Post or The New York Times or the Atlantic. Like you've got an entire media ecosystem that is so desperate to carry the war on.

0:53:52.4 Michael: Absolutely.

0:53:52.9 Elie: For reasons passing understanding, quite frankly, like I don't... Cui bono, who benefits from this kind of coverage that we get? Like look, political reporters, you can kind of understand, you gotta be an access journalist, you gotta get the source. And if you're not nice to Joe Manchin then he won't invite you on his houseboat, to do whatever you do on Joe Manchin's houseboat, right?

0:54:13.2 Elie: But the Supreme Court doesn't leak. You don't need sources, you don't need to go to a cocktail party with Samuel Alito to figure out what he really thinks, he's going to write down, "I hate these people, I hate those people, you're fine." He's going to tell you. So I don't know why access journalism or being nice to these people is something that motivates most of the Supreme Court reporting bar, but most of the Supreme Court reporting bar will not say something as obvious as what Peter just said about who tends to win in these religious establishment cases or religious liberty cases.

0:54:47.5 Michael: Yeah, that's right.

0:54:48.6 Rhiannon: Exactly, yeah.

0:54:49.3 Peter: Alright, so we've gone long enough that I don't think we should delve into Court reform, but what's your ideal number of Justices, Elie, can you just give us a number?

0:54:58.9 Elie: 29.

0:55:00.2 Michael: 29? I like it.

0:55:01.4 Peter: Like that.

0:55:02.2 Rhiannon: Love it.

0:55:02.7 Elie: And look, and I'll just say really quickly, two things: One, lots of courts work, this is going to be three things. If we had 29 Justices, the confirmation process would be fixed, 'cause it doesn't make sense to have a political battle every time you gotta replace one of 29 people. Number two, you want moderate decisions, I don't, I'm a crazy leftist, I want crazy lefty decisions, but if you want moderate decisions, like most of the country says it does, I'll tell you how to get it: Try herding 15 of these people into a majority opinion as opposed to just 5. I promise you, it will be more moderate. And three, the argument that when Republicans get in charge, they will just pack it back, how is that worse than what we have now?

0:55:44.9 Michael: That's right.

0:55:45.6 Elie: If you give me 29 Justices and those are slanted towards liberals, and McConnell says, "Well, when I get in charge, I'm going to give you 39 Justices." How is losing 25-24 any worse than losing 5-4?

0:56:01.1 Peter: And if they can ever win an election again without the Supreme Court on their side.

0:56:04.7 Elie: Right? You give me a Court that's going to protect voting rights and protect the Fifteenth Amendment? Good luck winning all of government again, good luck, you try that.

0:56:12.8 Michael: Yeah, revisiting Rucho and killing gerrymandering...

0:56:16.7 Peter: Oh, my God, they'd be done. They'd be done. Oh, God, Hillary really fucking blew it, Jesus... [chuckle] Alright, Elie Mystal, where can people find you?

0:56:26.3 Elie: Lots of places. I am @ElieNYC, that's E-L-I-E-N-Y-C on Twitter. I also write at The Nation where I am the Justice Correspondent. And I have a new book coming out called Allow Me to Retort: A Black Guy's Guide to the Constitution, which you can pre-order at Amazon and Barnes and Nobles, even though I am still in the process of begging my friends to write blurbs for the back of the jacket.

[chuckle]

0:56:46.8 Michael: Alright, excellent.

0:56:49.0 Peter: Pleasure to have you on, man.

0:56:50.2 Rhiannon: Thank you so much.

0:56:51.6 Michael: This was a lot of fun.

0:56:52.5 Peter: Absolutely.

0:56:53.2 Elie: Alright, thanks, guys.