“Forced labor is already unconstitutional and what is forced birth other than forcing a woman to labor against her will?” remarked Elie Mystal, a justice correspondent at The Nation, following the leak of a Supreme Court draft opinion that would overturn Roe v. Wade. Mystal is also author of the New York Times bestselling book, “Allow Me to Retort: A Black Guy’s Guide to the Constitution,” in which he points out problems with-and solutions for- reversing systemic issues created by America’s founding document. He joins WITHpod to discuss his objections to conservative interpretations of rights, abortion rights law, changes he’d make to the Constitution, and revisions he’d make to the structure of the Supreme Court and more.
Note: This is a rough transcript — please excuse any typos.
Elie Mystal: Forced labor is already unconstitutional. And what is forced birth other than forcing a woman to labor against her will because, allegedly, the state has an interest in that. Guess what, folks, just because the state thinks it’s important, doesn’t mean that they can force you to do the work for the state without pay against your will. The state might say, “It is very important that somebody pick this cotton.” But you know what, they can’t force me to do it. They have to find a willing person to pick that cotton, can’t make me do it. That’s the Thirteenth Amendment, same thing should apply to abortion rights.
Chris Hayes: Hello and welcome to “Why Is This Happening?” with me your host, Chris Hayes.
Well, I think for most Americans, and maybe not the majority of listeners to this podcast, but most people and even honestly, like pretty news junkie, news consumer folks just don’t spend a lot of time in their life thinking about the Supreme Court or the courts more broadly. It’s not a front of mind news concern.
Obviously, people that are legal practitioners or law nerds, or even Supreme Court nerds who are really obsessed with it. I should speak full disclosure that my wife is one of those people, she clerked for Justice John Paul Stevens, and now is a law professor and is co-host to a podcast called “Strict Scrutiny” with Melissa Murray and Leah Lippmann, where they talk about the Supreme Court and the culture around the court. By the way, it’s great. You should check it out.
The broader world is like the Supreme Court is just sort of there in the background, and then every once in a while, like forces itself on you. Like it forces your attention, right? So like a Supreme Court justice passes away unexpectedly, or retires, and now there’s a big confirmation battle, or there’s a big landmark ruling. There’s also an asymmetry here, which is that the right has been more focused on the course than left. I think that’s like not even a really arguable point, both in the way that they do politics, in the way their base thinks about politics. It’s both the kind of mass and elite, like both the grassroots and elite phenomenon.
Now, the reason I’m saying all this is because I’m speaking to you on Wednesday, May 4th, two days after the bombshell leak of a 98-page draft majority opinion by Samuel Alito that would overturn Roe v. Wade. And at the high point of one of those moments, when the court is front and center in all its words and all, all of its contradictions, all of its weird attempt to be both like a priest cast in robes, who are hidden behind the secrecy, and then go into the cave and they come out with what the oracle says. But also our human beings are produced by political institutions and have political beliefs, and often cloak those political beliefs under specified technical language that justifies them.
And also amidst this like enormous human disaster that is happening in front of us, which is the impending end of a right to safe legal abortion in the United States, something that has been under threat for a very long time, but on a scale now that is not precedented in the last 50 years.
Now, I had scheduled today’s guest before all this happened, because he’s written a fantastic book about the Supreme Court and about the Constitution specifically which is called “Allow me to Retort: A Black Guy’s Guide to the Constitution,” It came out in March. I got to say it’s been an enormous success, debuted at number two in the New York Times’ bestseller list.
It’s a great read. It’s such a great combination of sort of like fury, righteous indignation, humor, and incredible erudition and brilliance, and which is not surprising because the person who wrote it is a guy named Elie Mystal, who’s the justice correspondent at The Nation, Alfred Knobler Fellow at the Type Media Center, and is a frequent guest on our program. So if you know him, you know exactly that combination I’m talking about.
And it just so happens through incredible stroke of luck that Elie was scheduled for the podcast today, two days after this bombshell, and so we get to pick Elie’s brain about this enormously consequential development, which also perfectly fits with the general thesis of Elie’s worldview and his book. So Elie Mystal, great to have you on.
Elie Mystal: Thanks so much for having me, Chris. And thanks for so expertly summing up the problem with my entire career right. I’m kind of constantly the guy screaming about, “Hey, the third branch of government, just as powerful as the other two, maybe all should care.” And Democrats are like, “Not today.” Yeah, until it’s today.
Chris Hayes: Well, let’s start there because I think one of the things that’s interesting about that sort of third branch of government is I was talking about this in our editorial call the other day, one of the things that makes this institution, let’s talk about the Supreme Court before we get to the Alito opinion, which we’re going to get to. So the Executive branch, the Office of the White House at the West Wing has several hundred staffers and then there’s a few thousand in the Executive Office of the President, which is in another building, or maybe like a thousand. All told, there’s like somewhere in the neighborhood of 2,500 to 3,000 staffers.
And then there’s a whole federal government, which is all the cabinet agencies, which is literally millions of people, right? Congress has 535 members. If each of them have, say, 20 staffers at the lowest end, right, that’s 10,000 people, right? There’s probably like 20,000 people all told that like make up what we call Congress, members and staffers. The court is nine justices. They each have four clerks. It’s a totally different institutional texture, that I think actually relates to the moment we’re at in many ways than those other two branches.
Elie Mystal: It’s 36 people. And Chris, the nine most important people are there for the rest of their natural lives, which means they have no incentive to play any game, right? This is the last job they’re all going to have. Most of them are going to literally die in their job. Their clerks, the other 30 or so people who have any idea of what’s going on, they rotate out every year. But their entire careers are linked to the power and prestige of the Justice that they served with.
So you were saying like your wife, she clerked for John Paul Stevens, right? So, like her career stature is only enhanced as John Paul Stevens is enhanced. So she’s incredibly committed to his legacy and his virtues, and making sure that people think that he was a nice guy. They don’t leak. They never leak. This is not an institution that works on transparency because they literally don’t need it.
Chris Hayes: Right, that’s true. Let me just quickly, not to defend my wife, but let me just say this about her relationship to her Justice, which I think actually relates this. Like, John Paul Stevens has passed away sadly. Like I’ve described her before I think in public, she would take a bullet for the guy. I mean, just absolutely like adored, respected, loved, thought was brilliant, who had incredible politics. Like, now, I think that’s not uncommon. I mean, it’s almost a medieval relationship, like the old-old form of like apprenticeship. You’re by the blacksmith’s knee or something. Like, it’s very intense relationship.
But you’re right also that in Kate’s case, this is a totally like first order uncomplicated thing. But you’re also right that like the career incentives and the incentives in the institution, you are bound to your Justice forevermore. You are always a person who clerked for that Justice. And that relationship means that like the place never leaks, total code of Omerta. The people who are doing a lot of the work which is the clerks are doing under these conditions of medieval apprenticeship. It’s just not like anything else. I have to say like judicial clerkships and particularly Supreme Court clerkships are really not like anything else.
Elie Mystal: Which is why Washington is so bad at covering it, right? Because all the things that Washington reporters do to cover a story, all the gossip, all the leaks, all the cocktail party, “I was out on the veranda and this person talked to this person who talked to that,” none of that happens. None of that happens in the Supreme Court. In fact, you don’t have to get a leak. You don’t have to imagine what the Justices are thinking, because for the most part, they will tell you.
Chris Hayes: Right.
Elie Mystal: They will literally tell you. Congress passes a law, you have to intuit, “Well, why did they vote for this law? Well, why didn’t they vote for that?” We don’t know. We’ll never know. We know for the most part, exactly why five Justices voted to overturn Roe v. Wade, or four Justices dissented. We’ll know exactly why, because they will write it down and tell us.
So covering the Supreme Court then becomes less about getting the scoop, getting the leak, getting the hot story, and more about accurately conveying to the American people what these nine heads in robes, what these nine high priests of American law and politics, they are our priesthood, what these people are actually doing. And that’s where I think the media falls down a lot because it doesn’t have the horse race to cover. It doesn’t have the kind of interesting gossip to cover. It just has the raw results of their rulings.
Chris Hayes: I think I’ve said this before on the podcast, like it doesn’t even have tape to show. I mean, this is a real problem that we have every time we do the show. At the first day of the term, I think they all get together in front of a red curtain and they take a group photo. And then there’s like B-roll where it scrolls over them. And then there’s B-roll the of the court outside. There’s nothing to show.
And in fact, when he started releasing oral arguments, at least, you can play that and you can subtitle and you have something, but that’s all on purpose. I mean, there’s a reason. They’ve been very clear about this. They don’t want it to be like those other branches. They don’t want it to be covered like other branches. They want to retain the mystique of the clerks in robes. They want all that because, again, they don’t have any authority other than that.
Elie Mystal: Their entire authority is based on what the other branches will let them get away with. Let’s not forget Alexander Hamilton, before he started rapping, was a guy who said that the Supreme Court should be the least dangerous branch of government, Federalist 78.
He thought that because the Supreme Court controlled neither the army, that would be the president, nor the power of the purse, that would be Congress, because it had no guns or money, the Supreme Court couldn’t do anything. Because anytime it did something that the other branches of government didn’t like, the other branches of government would just not fund or not physically enforce the Supreme Court rulings. And boy, was Hamilton wrong? The next time Hamilton would be as wrong, he would be firing a gun into the sky while he got shot to death. That’s how wrong he was.
Chris Hayes: So this is a perfect segue to the leak, right, and to the decision, both of them. I want to talk about them both to start out with, right. And first of all, the leak is, just to be clear, way less important than the decision. And so in ascending order of importance, let’s just start with the leak because I think it actually substantively relates to decision, and subsequently relates to precisely this point of like mystique.
I have no idea who leaked it. But the fact of leak itself is an enormous peek behind the curtain that we never get, that itself, when you see Ted Cruz and Mike Lee and all these people up in arms about it, it’s because, particularly with the 6-3 court in their favor, they have an enormous incentive in vouchsafing and guarding that institutional mistake, right?
Elie Mystal: Right. The reason why the right wing is pissed is because the leak shows that the court is not better than the other institutions. It’s just politics by other means. And at the point where you’re reversing by fiat, where nine unelected, unaccountable people are reversing by fiat, a long-standing legal principle that gives rights to people, that is overwhelmingly supported by the American people. You want as much mystique as you can get, and that leak took it away.
However, like you said, Chris, you don’t know who the leaker is. I don’t know who the leaker is. And honestly, not to toot my own horn, but of the people who could know who the leaker is, like I’m one of them. I’m one of the people who might have a shot at knowing who the leaker is, I don’t have a darn clue. And the assumption is that this was leaked by some kind of liberal person, a clerk or whatever, who was horrified by this decision.
I ain’t so sure about that because what I looked at is what this leak does. And what it does, from where I sit, is lock in the hardcore conservatives, to this hardcore conservative opinion. Now, if anything changes, it’ will all be like, “Oh, they bowed to pressure.” If anybody who was going to vote for this doesn’t vote for this now, “Oh, they just bowed to political pressure.” It kind of locks in. So I think it’s like this, I think it’s just as likely that this was leaked by somebody who was in favor of this decision as it was that it was leaked by somebody who was opposed to it.
Chris Hayes: Yeah. I mean, by the way, we’re speaking on Wednesday, May 4th, and by the time this comes out, that like I don’t think it’s crazy that the leaker will be revealed. Like, again, like we just said at the top of this, there’s not that many people.
Elie Mystal: Right.
Chris Hayes: We’ll see.
Elie Mystal: And it’s so unprecedented that you just can’t imagine. Like, I thought I saw somebody, I forget who it was and it’s bothering me because I would like to name check this person. But whatever it was, it was probably an intensely personal decision.
Chris Hayes: Right.
Elie Mystal: And so whatever we think the person’s reasons for leaking it were, it might have absolutely nothing to do with why that person leaked it because it’s such a rare thing, that how can we possibly guess at what motivates a person to break such a long-standing tradition.
Chris Hayes: So you just said something which I want to reiterate, and again, this is a little CYA because by the time this hits the listener’s ears, like we already know who it is, right? So I agree like as likely on either side. The thing I said on the show last night which I think holds is that whoever it was, whoever, wanted people to see how radical the decision is. Meaning, if it was an opponent of the decision, they wanted to blow the whistle, to say like, “This is what’s coming.”
And if it was a supporter of the decision, they wanted to get this on the record to box those five votes in to not climbing down and giving an inch off how radical the decision is. So let’s talk about the decision. Break down the basic line of argument that Alito offers here.
Elie Mystal: The legal justification for overturning Roe v. Wade is Warren Court was wrong and we’re right. So we’re going to do it. I was worried because I knew that the Supreme Court would take this right away in this case. That was obvious. I’m not surprised by the decision. But I was actually worried that Roberts basically would get his way, and it would be a lot of legal gobbledygook that essentially overturn Roe v. Wade. But they wouldn’t come out and say it, and so I’d have to spend like my whole summer trying to explain to people, like on your show, like what actually happened.
It turns out I don’t have to do that because Alito was so bold as to just straight up say, “Roe v. Wade was egregiously wrong,” when he cited, which is amazingly stern, and unforgiving and uncompromising language. He cites the alleged wrongness of Roe v. Wade in the fact that the Constitution, as written, never talks about the rights in abortion, never talks about this particular women’s rights. Yeah, because the misogynist who wrote the Constitution didn’t believe women should have rights. So of course, they didn’t write that women should have rights to their own reproductive system.
The people who wrote the Constitution didn’t think that something as simple as marital rape could be a thing. Marital rape was an oxymoron according to the people who wrote the Constitution. You couldn’t rape your wife. So like, that’s how those people thought about the rights of women. Of course, the right to an abortion is not anywhere written in the original Constitution, but Alito leans on that. He’s technically right as a fact.
He leans on that. And he says that the old record, the Roe Court was wrong. And that the thing to do now is to let every state decide whether or not women have rights, which is just not how rights work, right? Like, Chris, people need to understand, there’s a reason why states’ right is the first and last argument of the white supremacist. There’s a reason why states’ right is the alpha and the omega argument.
And it’s because people of color, they’re not evenly spread around the country. Most black people still live in the states where their ancestors were enslaved. Most Latinx people live in border states. Most Asian Americans live on the coast. The only people who are evenly spread out throughout the country are white people. And so, white men believe and they’re not wrong, that if they can just get it back to the states. If they can just get it back to a state by state decision, then they can blunt the overwhelming majority of the American people. And that is what Alito has played into and that is what Alito has done in his Roe v. Wade decision.
Chris Hayes: We’ll be right back after we take this quick break.
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Chris Hayes: So the structure of the argument, as I read it, right, abortion is not an enumerated right in the Constitution. No one would disagree with that. It’s not known, specifically said not in the Constitution. He then says there are some unenumerated rights, right?
Elie Mystal: Right.
Chris Hayes: There is such thing as rights we have that the Constitution doesn’t explicitly grant.
Elie Mystal: Right.
Chris Hayes: And that the test to figure out, basically, whether you have one of those unenumerated rights in the Constitution, which these takes from, I think, ‘86 decision, but sort of introduces kind of a new test. That’s like now going to be the test, is it deeply rooted in American history and tradition? Like, that’s basically the argument, right? And the answer is, okay, not enumerated right. We all agree on that.
Is it an unenumerated right? Meaning, is it a right that the people have, that isn’t explicitly provided for in the Constitution? And the jurisprudential tradition that gave us Roe is something called substantive due process, which basically grows out of the Fourteenth Amendment, which basically says, like, there are certain rights that we hold, there are certain areas upon which the state just cannot infringe as a matter of the fundamental due process we are granted by, right?
Elie Mystal: So I like to explain a substantive due process like this. There are rights that we explicitly have, right? And then there are rights that we have to have in order to make the rights that we explicitly have make sense. And those rights are the rights that we call are part of substantive due process.
So to me, a great analogy is we all understand that we have a freedom of speech, right? That probably means that we have a substantive right to have a freedom to read, right? If you think about it from the perspective of the founding, what good is the freedom of speech is if I don’t have the freedom to read. Okay, another substantive due process like —
Chris Hayes: Wait, let me just stop you right there because I think it’s really useful. I mean, you used this in the book if I’m not mistaken, right?
Elie Mystal: Right.
Chris Hayes: Because, right, so the Constitution never gives us the right to read.
Elie Mystal: Right.
Chris Hayes: It’s not in either the original text or any of the amendments.
Elie Mystal: No.
Chris Hayes: Clearly, a state banning reading, like we all just grasp and almost sort of like, in visceral level, like you can’t have a free society in which the state can ban reading.
Elie Mystal: Right.
Chris Hayes: So then the question becomes right, there’s some category of things that clearly the state can’t, like the government can’t do, can’t reach, even if we haven’t explicitly set.
Elie Mystal: Right. It would be ludicrous for the government to say the freedom of speech is protected because I can read my book out loud. But for other people to read my book with their own eyes, no, no, that the government can ban. Of course, they can’t ban that. So of course, the freedom to read is a substantive due process right, that is part of the freedom of speech.
Now, so you’ve gotten the due process argument, right, in terms of what Alito is saying about abortion. He’s saying that, well, we can only divine what those substantive rights might be if they’re deeply rooted in American history. And then he skips over the fact, that for the first 150 years of American history, women weren’t allowed to be a part. All right. It is not deeply rooted in American history that women are allowed to finish their sentences. So of course, it’s not deeply rooted that they’re allowed to have access to their own bodies.
But Chris, here’s the other thing. I reject out of hand the substantive due process argument for abortion rights as the only way to ground abortion rights. Like Alito’s opinion, 98 pages’ worth, all talks about abortion rights as if substantive due process is the only way to get there. That is but one of many. That is how the court and Roe got there, sure.
But there are lots of other ways. For instance, in the same amendment where we find substantive due process, that would be the Fourteenth Amendment’s grants of due process of laws, we also find the equal protection clause. I would grant abortion rights under the equal protection clause, right? Like if a man has access to his reproductive system during the entire time when reproduction is happening, then a woman should also have rights to her reproductive system during the entire time that reproduction is happening.
I’ll tell you this, if a man can take out any organ in his body, that he may or may not need for reproduction, then a woman should be able to take out any organ in her body that she may or may not need for reproduction. If a man can take out his prostate, then a woman should be able to take out her placenta. It’s hers. She owns it, right? So I would do an equal protection argument for abortion rights.
I have some Eighth Amendment arguments for abortion rights especially in the situation where a woman has been raped in jail. It is cruel and unusual punishment for the government to force that woman that they have jailed, that they are literally controlling what she can and cannot do. It is cruel and unusual punishment to force that rape victim to give birth in jail, or if she’s in the military. So I’ve got the Eighth Amendment argument.
I have a Thirteenth Amendment argument for abortion rights because —
Chris Hayes: I’ll take, come in. I’ll take, come in.
Elie Mystal: — forced labor is already unconstitutional. And what is forced birth other than forcing a woman to labor against her will because, allegedly, the state has an interest in that. Guess what, folks, just because the state thinks it’s important doesn’t mean that they can force you to do the work for the state without pay against your will. The state might say, “It is very important that somebody pick this cotton.” But you know what, they can’t force me to do it.
Chris Hayes: Right.
Elie Mystal: They have to find a willing person to pick that cotton, can’t make me do it.
Chris Hayes: Right.
Elie Mystal: That’s the Thirteenth Amendment, same thing should apply to abortion rights.
Chris Hayes: So you just laid out a whole bunch and we should say there’s an entire literature about other ways to ground the right. And I’ve heard versions of that and you write about some of them in the book. The equal protection clause I think is probably the one I’ve heard the most of. But the substantive due process line, just so that people are clear on the sort of jurisprudence here, right, like, you get a line of cases that basically in Griswold, they say that the right to contraception is covered by substantive due process. We get Roe.
We then get Lawrence, which is that you can have whatever kind of sex you want to have with a person. If you want to have sex with a man and you’re man, the government can’t say you can’t do that, can’t criminalize sodomy. And then of course, we get Obergefell, right? And all these cases, again, they flow out of this same line of reasoning. The Kansas State banned you from reading, for instance, or could the state require mass vasectomies of all men once they hit reproductive age, who then have to, like, voluntarily get them undone when they’re like in a committed relationship. Like I think we all agree like, well, that sounds insane because they get that.
Elie Mystal: Right.
Chris Hayes: I mean, one of the entailments of this right, that the people are freaked out about is because Roe and Casey rests on that foundation. He’s taking a sledgehammer to the foundation. He’s enunciating a new test for any unenumerated right, that also seems, even as he says he’s not doing it, to shatter all that other stuff.
Elie Mystal: Yes. Which is why that’s where they’re coming next. Like, there is a reason why the right wing has already priced in the defeat of Roe and has moved right ahead to the defeats of Obergefell, right ahead to the defeats of Loving v. Virginia. That’s the case that allows for interracial marriages.
I am not being hyperbolic. I am not being hysterical. I am accurately quoting what Indiana Senator Mike Braun said, when asked if loving should be overturned. He said, “Yes, because marriages should be decided by the state.” I am accurately quoting what Senator John Cornyn said, when asked, when he said, “Obergefell should be overturned next.” That’s what the right wing is promising to do. If you learn one thing about the overturning of Roe v. Wade, please let that one thing be, believe these conservatives when they tell you what they’re doing because they’re going to do it.
Chris Hayes: Braun, who got in a little hot water and then tried to walk it back, is actually more honest on this point than Alito. Because what Braun is saying is that the necessary entailment of what I’m saying is a legal theory, is that Loving has to fall, right? Because he’s saying, “Look all this stuff.”
And by Alito’s own test, Loving has to fall, even though Alito goes out of his way to kind of cordon off Loving in the opinion because he realizes how noxious it is. But if it’s like the unenumerated rights are the ones that pass the test of deeply rooted in history tradition, I got news for you about interracial marriage in the United States of America. Like, that’s a tough nut to crack.
Elie Mystal: Can I also say why would anybody believe Alito going forward? Chris, you bring this up a lot on your show. I’ve seen you do it, where you point out that the jig is up. Brett Kavanaugh got in front of the Judiciary Committee and said that Roe was precedent upon precedent. Guess what, he’s going to overturn precedent upon precedent. Neil Gorsuch got up in front of the Senate Judiciary Committee and said that Roe was reaffirmed countless times and that he wrote a book about precedent. And guess what, Neil Gorsuch is going to overturn precedent.
So as you’ve pointed out repeatedly, Chris, these people have already lied to our faces. Republicans act like we were hysterical, and were just like these people were going to overturn Roe. “No, no, no,” they said, “No, no, no, they’re not. They’re just going to apply the law and follow the Constitution.” That’s what they said. They were clearly lying then. Now, the lie has been laid bare. But they’re going to tell me, “Don’t worry about Obergefell because Alito promises that this far no,” like, am I a sap?
Chris Hayes: Right.
Elie Mystal: Like, is that what you think I am?
Chris Hayes: Let me argue on the other side for a little bit. So I want to raise the argument that Alito explicitly makes and I think it’s an argument that relates to this really profound question about precedent and what it means, right? So this is at Anglo-Saxon legal tradition, right, about how precedent controls. It goes back thousands of years, I guess, probably hundreds of years.
Elie Mystal: Let’s start the clock at William of Norman.
Chris Hayes: Right. Let’s do William of Norman, right, the Norman conquest. Right, so at common law. And Alito makes a point and other dudes like, look, there’s clearly lots of decisions by the court that were both precedent, and terrible and wrongly decided. And you could pick a whole bunch of them. Plessy v. Ferguson, of course, a very famous one. Of course, that’s the one that John Cornyn grouped with Obergefell.
Elie Mystal: Right.
Chris Hayes: Plessy v. Ferguson, Roe v. Wade and Obergefell, which is like whoa, boy, right? So Dred Scott, Plessy v. Ferguson, two of the most famous; Korematsu, which has never been officially rescinded by the court, but paved the way for Japanese and German. I mean, there’s a whole bunch of like Buck v. Bell is one where —
Elie Mystal: We call it anticanon.
Chris Hayes: Right. The anticanon, right, Buck v. Bell is the enforced sterilization of people that score below a threshold on IQ test. So that argument, which is like, look, clearly, sometimes the court gets it really badly wrong and precedent has to be overcome. I think we all agree with, right? Then we’re at this profound level, which gets to the heart I think of your book and your thesis, which is like, is the rule of law a real thing, or is it not? Is it all just legal realism all the way down, which is essentially it’s all politics in every single direction?
Argumentation means nothing. Precedent means nothing. All of this is will to power, cloaked in ultra-fancy language, which I think is kind of a radical critique. Marx basically thought that was the case of a lot of like essentially bourgeois law. There’s all different radical traditions and different other traditions that think that’s the case.
And then there are people saying like, “No, it’s a real thing. There’s just good judging and bad judging, good decisions and bad decisions, good argumentation around precedent, good overturning precedent, bad overturning precedent.” And I feel like you oscillate a little between those two positions, like the full legal realist versus the like some of it is true, and there are bad actors view.
Elie Mystal: Yes. So it’s funny that you bring up the oscillation. It’s just funny to me because most people act like I am all one way all the time, and I appreciate you noticing the nuance there, Mr. Hayes. So why do I sometimes suggest that the law and these institutions can be legitimate, even though I’m often arguing that they are not legitimate in real time? Well, a lot of that, for me, goes to who gets to decide.
So one of the reasons why I wrote my book, and certainly one of the reasons I titled my book the way that I did, “A Black Guy’s Guide to the Constitution,” is that I have looked at the law from the perspective of a person that the law was designed to ignore, and in fact, enslave. And when I look at the law from that perspective, I see a lot of problems, obviously. I see some solutions, but those solutions cannot be done by an all-white judiciary, or a predominantly white judiciary, just can’t do it.
I can’t make it work. I can’t make these institutions. And the idea that these institutions have meaning and value, I can’t make it work if we are constantly hemmed in by the white male supremacist, racist conditions of those institutions. So either of these institutions are capable of overcoming the white male patriarchy that they are founded upon, and that can only be shown by adding in a more greater diverse group of people involved in making those decisions, or as Sam Alito would apparently have us believe, these institutions cannot ever overcome the white male patriarchy on which they are founded on, in which case, yes, then I turn into something a little bit more radical and a little bit more like, well, it’s all just a will to power all the way through. And all of this fancy legal hoi polloi doesn’t actually mean anything.
So guys tell me, do you all want to actually try having a real democracy, or do you want to keep doing this bullcrap that you’ve been doing? Because if that’s all you want, well, then I’ve got some other ideas about what we should do with you. But if you want to actually make a go of it, all right, let’s start putting in a diverse group of people. It’s like one of the things that I say, and I mentioned this in my book, one of the things is, how should we decide? How should the Supreme Court decide how much deference to give Congress? It’s a huge issue.
It’s a huge issue in environmental law right now. How much deference should we give Congress? How much deference should we give the executive agencies when it comes to like the EPA and their decisions, right? And the conservatives and the liberals, both white conservatives and liberals will both go on these long tangents about Chevron deference and major question doctrine. They have all got these fancy legal jargons about when we should or should not listen to Congress. I’ve got one, was the Congress that enacted that law or regulation, a diverse set of people? Did it have women and minorities all involved in making the decisions and having the votes? Or was it an all-white or predominantly all-male panel?
Because if it was an all-white predominantly all-male panel, then guess what, no deference. I have no deference for all-white, all-male panel. I have no deference from males, all right. You want to show me like, well, actually, the EPA consulted with diverse groups and women’s rights groups, and thought about the economic impact of the right. Well, now, I’m inclined to give the EPA quite a lot of deference. That’s how I would think about it. But that is one of the more radical things you’ll hear me say.
Chris Hayes: Well, that is radical, right, because that’s like completely anathema to the methodology that the right espouses. But even the sort of liberal response to it, right, did that kind of stuff is like outside the parameters of the law? Like that just doesn’t factor into our decision, right? We can’t even pay attention to these things, like how diverse was the Congress, like not for us to say.
I mean, your point is the project of the book in some ways, right, is like we’ve got a constitution that was written and amended over the course of years in the context of white supremacist, patriarchy, a massive disproportionate share of power held by white men, that has changed over time and expanded out in different ways through lots of different changes. And that if the goal is like true pluralistic, multiracial, equitable democracy, that guiding ethos has to be at the core of like how we think about the law, and can’t be like outside of it, while we try to like take this structure that we’ve been bequeathed by this history, and make it work with modern pluralistic democracy.
Elie Mystal: Yes. Either we understand a more pluralistic and diverse view of America, or we are an illegitimate nation, or the people who were enslaved here are still waiting for their opportunity to break free. Look, it is simply there is not a stitch of law, philosophy, political philosophy, economic history, there is nothing that suggests that I as a human being should live under laws as they would have been interpreted by my captors. That’s just not a thing. All right.
So either the people who captured my ancestors and brought them to this country illegally in chains, who raped various of my ancestors, either the people who did that, their idea of freedom and equality doesn’t apply to me, or this is an illegitimate project. Now, the difference between me and a black radical, me and a black nationalist, is that I think it could work. We could make this work, that if we just gave full faith and credit to the Fourteenth Amendment.
Chris Hayes: Well, right, I mean, my response was like —
Elie Mystal: Yes.
Chris Hayes: Wait a second, but the Fourteenth is like the fulcrum of the Constitution is the war and the Reconstruction amendments and both in a historical sense, right, like there was the great war over this issue. And also in the sheer radical nature of the project of those amendments, which was truly put together by people with a genuine vision, and informed by free African American activists, writers, thinkers, critics, et cetera.
Elie Mystal: Well, informed by, sure.
Chris Hayes: Not written by, yeah.
Elie Mystal: Not written by.
Chris Hayes: Yeah.
Elie Mystal: And they didn’t actually go ask black people what freedom meant to them.
Chris Hayes: Yeah, it’s a good point.
Elie Mystal: And they didn’t let black people have a vote in what freedom meant for them. And they certainly didn’t let women have a vote in either of those questions, even though we use the Fourteenth Amendment to also now extend equal protection to women. If they had asked women after the Civil War, what equal protection might have looked like, you might have had some more economic protections, right? You might have had some more rights that were designed around the ownership of property.
If they had asked the former enslaved people what equal protection meant to them, they might have included some more property ownership protections. Again, I’m not speaking on the back of my mind. I know this because the very first case that came up out of the Reconstruction Amendment was a Thirteenth Amendment case called the slaughterhouse cases. It was brought by white people, white people who were in slaughterhouses. They were butchers.
The government of Louisiana had granted a monopoly to one butcher, making all the other butchers in Southern Louisiana have to like work for that one company that was granted the monopoly. And white butchers sued under the Thirteenth Amendment, saying that their economic rights were so taken advantage of, that they were essentially being forced into labor, and that the Thirteenth Amendment should protect them. And the Supreme Court said no.
So right at the start of the Reconstruction Amendments, they took the economic rights right out of the Reconstruction Amendments, which arguably could have been in there from the jump. So when we talk about whether or not the reconstruction project was good or bad, or whether it worked or not, there’s a lot of complication there. I tend to think that the project worked, but when I say expansive, I really mean that word expansive. I have an expansive understanding of what the Thirteenth, Fourteenth and Fifteenth Amendments and then eventually the Nineteenth Amendments are capable of doing.
And so if you ask me, the Constitution is those four amendments. And like some suggestions, right, like, people go, “If those people are originalist, what are you, Elie?” And I’m like, “I’m a Fourteenth. Amendment’s ologist, right?
Elie Mystal: Right. But I mean, like, I guess my point is that the creation and drafting of the Reconstruction Amendments, so the Thirteenth Amendment which ends slavery, the Fourteenth Amendment which creates equal protection under the law, and the Fifteenth Amendment which confers voting rights, which again, like we tried it once and then it just was like destroyed, and then we had to like do it again, right?
So it’s like the Fifteenth Amendment is an amazing document because it’s like we did it.
Elie Mystal: Right. Again, and we have to do it again.
Chris Hayes: We have to do it again. That, as insufficient as they are against the metric of what you’re saying, which is like genuine, multiracial, pluralistic input and consensus or just input, right, feedback into conceptions of freedom to guide the lawmaking and constitution of a free pluralistic, gender equitable, multiracial democracy, right? Like they fall far short of that. But they’re like wildly radical in comparison to the worldview of the founders.
Elie Mystal: Sure.
Chris Hayes: Right? And to me, I guess, I would say, and I think you agree with this, you say as much in the book, like when you say I’m a Fourteenth, it’s like it’s also the case that their radical potential seems underrealized in the actual development of constitutional jurisprudence.
Elie Mystal: Yes.
Chris Hayes: If you take seriously both the text of what they say and the context in milieu, there really was a vision for multiracial democracy like genuinely present at that time.
Elie Mystal: Let’s look at the Fifteenth Amendment, as to me, the OG example of this, because we can honestly see for reasons like you were just alluding to, we can really see just how powerful the Fifteenth Amendment is. We have the Fifteenth Amendment at first, that gives us our first hit of blacks elected to Congress in the states where they were formerly enslaved them, hiring rebels, a bunch of people, right?
Then white southerners see that, “We don’t like that.” So, they take the Fifteenth Amendment, they put it in a drawer and they ignore it for a hundred years. We then have to go through a hundred years of real oppression unnecessarily until the Civil Rights Movement. And finally, in 1965, we get the Voting Rights Amendment. The Voting Rights Amendment is my pick for the most important piece of legislation in American history, because the Voting Rights Amendment Rights —
Chris Hayes: Act.
Elie Mystal: Voting Rights Act is what makes the Fifteenth Amendments real.
Chris Hayes: Correct.
Elie Mystal: And that’s what makes democracy real. If you ask me, you don’t start the clock on American democracy until 1965, folks.
Chris Hayes: Yeah, I think that’s right.
Elie Mystal: Because that’s when we stopped being an apartheid state. So okay, the Voting Rights Act is so good. It’s so good that by 1980, Ronald Reagan, who started his campaign in Philadelphia, Mississippi, and said that he thought that the Voting Rights Act humiliated the South. Even Ronald Reagan had to agree to an expansion of the Fifteenth Amendment over the objection of John Roberts. We’ll get to that later. And so by 2008, barely 40 years after we are a functional apartheid state, we elect a black man president. That’s how powerful the Fifteenth Amendment is, folks.
Chris Hayes: Right.
Elie Mystal: And that’s why once the black president was elected for a second time, so it wasn’t a fluke, what’s the first thing the white conservatives did? We got to get rid of the Voting Rights Act. We got to get rid of the Fifteenth Amendment. The Fifteenth amendment is so powerful that that was the white people response to Brock Obama is to take it away again. And they did. John Roberts, 2013, Shelby County versus Holder eviscerate Section 5 of the Voting Rights Act. The first thing white folks did once black people had political power was to take away the thing that was giving the political power, which was the right to vote.
So, to go back to the answer to your question, the radical potential of the Reconstruction Amendments is such that if they are just allowed to be —
Chris Hayes: Right.
Elie Mystal: If they are just allowed to run and exist, we don’t have to do a whole lot else in order to have a diverse, pluralistic, inclusive society. And the people who know that the most are white conservatives, because that’s what they attack first when they want to put black people back in their place.
Chris Hayes: We’ll be right back after we take this quick break.
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Chris Hayes: The project of limiting the franchise and the fights over it, right, have been one of the animating forces of American history and constitutional history. And you’re even seeing it in this sort of the one person one vote jurisprudence and that development too, which again like one person one vote, which is the inevitable, inescapable, logical entailment of the Reconstruction Amendments, like it has to be the case.
That one person one vote itself was an incredibly controversial and fraud-finding. And again, when you carry it forward, it meets with a lot of resistance in modern conservative jurisprudence. And also, I said this once and people lost their mind, I had this monologue I once said about the Electoral College where I said, “If the Electoral College weren’t explicitly in the Constitution, it would be an unconstitutional scheme.”
Like, I grew up in the Bronx from the city charter. I had like one borough president for all five boroughs, even they had massively different populations. You can’t do that. You couldn’t create a statewide Electoral College tomorrow and haven’t passed constitutional muster under the one person one vote, again, which flows from the Fifteenth Amendment and Fourteenth Amendment, and Reconstruction framework.
But the thing that we use to elect the president, like, I mean, this to me is like the ultimate tension. To your point about the sheer radicalness or at least the like genuine vision of equitable, multiracial democracy encoded in the Reconstruction Amendments, which is the country’s second founding. And the vestigial systems that we have, they are in unbelievable tension.
Elie Mystal: Yeah. I mean, look, one of the pushbacks I get from my book, I mean, I get all kinds, right, but one of the consistent ones is, “What do you think you could do better? How would you do better?” And the first thing I always say is like, “I would have popular election of the President,” boom, better.
Chris Hayes: It’s an easy one.
Elie Mystal: Right. Like, ask me a hard question, please. One of the reasons, Chris, why I’m not in favor of a constitutional convention, of a new constitutional convention to fix some of the obvious problems in our constitution is because I do not believe a new constitutional convention would be seeded on the basis of one person one vote. If we have a new constitutional convention and there is a delegate from Wyoming, how many delegates do we think should be from California?
Chris Hayes: Right.
Elie Mystal: And if your answer is south of 60, you’re just wrong. You’re just wrong as a matter of population. If you have one delegate from Wyoming, we need at least 62 delegates from California to make that fair.
Chris Hayes: Right.
Elie Mystal: Okay. That’s how outsized the power of small states are in the Electoral College. Now, Republicans will say, “Well, you know that protects rural interests.” No, it doesn’t. No, the Electoral College does not protect rural interests. What it protects are people who live in cities in small states.
Chris Hayes: Yeah.
Elie Mystal: Right? So, like the interests of like Des Moines, Iowa is protected.
Chris Hayes: Yeah.
Elie Mystal: The interest of Providence, Rhode Island is protected, not rural interests. City dwellers living in small states, that’s who’s protected. The idea that somehow if we had the Electoral College, people in small states would be overlooked. That’s not necessarily true, because what we see in the primary situation is that people in small states aren’t looked at quite heavily in certain primaries, not perhaps as heavily as in the bigger primaries. But you’ll get a lot more primary attention if you’re a Democrat or Republican.
If you live in Illinois, or Iowa, or Indiana, three states of completely different sizes than you will in New York, right? So, like, come on. So, the Electoral College doesn’t lock in small state representation. What it does do is allow for perverse incentives, where presidents of either party can ignore vast swaths of the country.
Do you know, Chris, and I know you do, the state where Donald Trump got the most raw popular votes in 2020?
Chris Hayes: California. Yeah.
Elie Mystal: California.
Chris Hayes: Right.
Elie Mystal: California.
Chris Hayes: Yeah.
Elie Mystal: Donald Trump was willing to literally let California burn.
Chris Hayes: Right.
Elie Mystal: Burn, the most popular votes he got were from a state that he was willing to let burn, and he could do that because he wasn’t going to win the state.
Chris Hayes: Right.
Elie Mystal: And the Electoral College creates perverse incentives, where it’s a winner take all system, where if you’re not going to win the state, you can functionally ignore it. And if the state is close, you have to fight for every blade of grass.
Chris Hayes: Right.
Elie Mystal: Which explains the difference between campaigning in Florida versus campaigning in Texas. Democrats, I mean, they know, which is stupid, but like they can functionally ignore Texas every four years, in a way they can’t Florida, even though where did Joe Biden get the third most amount of popular votes? Texas.
Chris Hayes: Yeah. And also, to me, I mean, we’ve done entire podcasts on the Electoral College, which I just think is like one of those things. There’s some issues. I think there’s like good arguments on both sides and the Electoral College is not one of them. Like, there’s no arguments on either sides. Every state and union-run statewide elections, without the scheme, and it’s fine and it’s not like if you’re running for governor in Missouri, do you ignore the rural areas? No, you do not.
Elie Mystal: Although that’s also stupid, right, Chris? I mean, one of the other things I point out in the book is that federalism is dumb.
Chris Hayes: Okay. Let’s get to that. My point only is like we run the experiment in places all the time. And even in New York gubernatorial races, it’s not like they ignore upstate. It’s not like they ignore rural areas. Like, it’s actually a huge deal to like go and replace. But to the point of federalism, which I think goes to your deeper point about just like the structure of the constitutional regime that we have being like that, which I think is your view.
Elie Mystal: Right.
Chris Hayes: I guess the question is like, what to do about it, right? So you don’t want a constitutional convention?
Elie Mystal: No.
Chris Hayes: We have an amendment process that seems just hopelessly out of reach, given the level of consensus you need to marshal for an amendment being outside the reach of really, I think, either party in current American polarization, like, you just can’t get it. So, then the question is like, well, what do you do about it?
Elie Mystal: Yeah. So expand the court. Look, we live in destrocracy. The jobs opinion from Alito should prove that more than anything, right? We live in a world where as long as you have five Supreme Court justices, that’s all you need. Think about the things that we could or could not have, depending on the Supreme Court.
Apparently, the Supreme Court is what gets to decide whether or not women have access to health care. They decide whether or not you’re allowed to bring guns on the subway. They decide whether or not you have to wear a mask on a plane during a pandemic. They decide whether or not your kids have to go to school or not during a pandemic, with health protections or not. That’s apparently an issue for the Supreme Court now. All right.
So they get to decide at a granular level, how American life operates. Laws that we pass through Congress, that are signed by the President, at this point in our history, are suggestions that don’t have meaning until the Supreme Court weighs in. The Supreme Court decides who gets into the country, who gets out of the country. The Supreme Court decides how much carbon we have in the air.
If that’s going to be the case, if we’re going to live in a jestrocracy, where nine justices get to decide all of these critical things about American life, well, then I take the Kermit the Frog, and Muppets Take Manhattan option. I want more dogs and bears and chickens and cats and things. I want more people in the show. I don’t want another four justices. That’s small potatoes. I want another 20 justices to start. I want a 29-person court to start. Does that sound like a lot to you? It shouldn’t. The Ninth Circuit Court of Appeals is a 29-person court, works just fine.
We’ll find enough chairs, all right? I promise. I’ll make em’ myself. We’ll find enough chairs. We’ll have 29 people, they’ll hear cases, and three judge panels. And those people will be more diverse. You won’t know who you’re getting before you show up for panel. That’s going to just have the appearance of impartiality a lot more. Maybe you won’t have to take Ginni Thomas’ call when she calls your office about your law, because you don’t know if her husband is going to be hearing your case. So that would be a benefit, wouldn’t it, right?
We’d have the appearance of impartiality. The one litmus test I would have for these judges is that the 20 people I appoint would all have to agree that term limits are constitutional. Right now, I don’t have five justices who agree with me that term limits are constitutional, so I need a constitutional amendment.
Chris Hayes: You’re saying on the justices?
Elie Mystal: Yes.
Chris Hayes: Yeah.
Elie Mystal: John Roberts do you think should have to go home now? No.
Chris Hayes: Right.
Elie Mystal: That’s how that conversation goes. I appoint 20 justices that agree that term limits or constitutional. Boom, term limits are constitutional. Now, we’ve got 29 justices. They’re all rotating off the court every 18 years. That folks fixes the confirmation process. The way it is right now, every time the party out of power loses the justice, it’s an existential crisis for that party, because they are going to serve for 30 years or more.
Chris Hayes: Yeah.
Elie Mystal: You have term limits, and you have 29 justices just rolling through, it’s going to make the confirmation process a lot less politically fraught.
Chris Hayes: It also cloaks the stakes in such an insane way. Like, will someone die of a stroke or not? Will someone retire or not? Like, you can kind of tell, but a lot of it you like we didn’t know that Scalia. And that was that part of it, like knowing when openings are happening, and having that be part of the like broad popular mandate. It seems like such an obvious no brainer to me. I mean, again, I think there’s constitutional obstacles, because like it’s in there that they serve for life, right, or good behavior, or whatever the clause is.
Elie Mystal: Think about it this way, Chris, which is just with the Dobbs situation, right? So Mississippi has a 15-week abortion ban. They go to the Supreme Court, ask them to approve their 16-week abortion ban. Then Ruth Bader Ginsburg dies, then Mississippi changes their argument to actually just overturn Roe v. Wade straight up. Like that’s what happens in our current destrocracy that with one woman dying completely changes, even what we’re asking the courts.
Chris Hayes: Right.
Elie Mystal: That should not be. That was not what was intended, right? So no, a 29-person court at the very least means that instead of getting five justices on board for an opinion, you get 15 justices on board for an opinion. And that’s going to be much harder. I made this analogy before. But if you have to get five of your friends to go out to dinner, you might end up at some places. You might end up at the club. You might end up under down under, right?
If you have to get 15 of your friends to go out to dinner, you’re going to end up at Applebee’s, You’re going to go to Chili’s. All right. That’s how you end up at the Olive Garden, folks. Because when you have 15 people, you have much more moderate center mass opinions. You’re going to have much narrower opinions, and you’re going to have a much more moderate opinion. Because getting 15 people to agree on anything, even 15 people who are of the same party is hard.
Conservatives have six people on the Supreme Court. They only have five for their completely radicalized view of abortion. Imagine if they had to get 10 more to make a decision. I promise you it wouldn’t be this radical. So you’ll notice, Chris, I haven’t even said that I want 20 justices who agree with me.
Chris Hayes: Right.
Elie Mystal: Court packing, court expansion, court reform, whatever you want to call it, is such an obviously good reform to the Supreme Court. I don’t have to care. I would be willing, if Mitch McConnell would agree, which he won’t because he’s a bad person, but if Mitch McConnell would agree.
Chris Hayes: Well, also you won’t agree because of the reasons you’re saying. Because of the current system, he’s winning right now. Yeah.
Elie Mystal: Right. But if I would agree that if you give me 20 justices and Republican votes, and we can split them 11-9. It’s going to be 11-9 because that’s something they would guard. That ain’t right.
Chris Hayes: Right.
Elie Mystal: We can’t let that in. But 11-9 would still leave them, if I’m doing the math correctly, with a conservative majority on the Supreme Court.
Chris Hayes: Right.
Elie Mystal: I would live with a 15-14 conservative majority on the Supreme Court if you gave me 29 justices. People always say like, “Well, if you add 20 justices, then Republicans will come back and add 20 more.” Okay, 49-person court. If the court is going to have this kind of power, then I want more people on it. I want more people from more different backgrounds. I want people from more law schools on it. I want some people who haven’t been to law school at all. If the court is going to be a super legislature for life, then I want it to be a super legislature that has more of my people in it. That’s what I want.
Chris Hayes: Yeah. And the other thing that is interesting to consider about this, and again, this is one of those areas where like the way I feel about a lot of America right now is like I know the system is broken. I know some radical things need to change. I know we’re in an incredibly perilous situation. I know that we’ve strayed from certain like small democratic precepts. I know that there’s like this threat of minoritarian rule.
There are certain reforms that are obvious to me, like we should obviously have a popular election of the President, strengthening the Voting Rights Act. Then there’s other stuff where it’s like, I don’t know, I just feel like completely like court right-sizing or court expansion is one of those where like I don’t feel like I have certainty in either direction about which reforms I do or don’t favor.
But one thing that I’ve been thinking about a lot and I’m thinking about now in response to your argument is, and I was talking about this with our producers today, people forget that, like, as furious as liberals are right now, right, can you imagine how freaking angry you would be if it leaked, and one of the three democratic appointees was on the Roe overturning side? And like, that was what happened in three successive occasions, with Souter, Sandra Day O’Connor and Justice Anthony Kennedy. True, right?
Like they were like, “We want to do this thing.” They got their chance. They put people in the court, and the people in the court didn’t vote their way. And everything subsequent to that has been about producing a vetting process and a pipeline that will ensure that never happens again. And so far, with maybe the exception of Roberts, honestly, from Roberts on, it’s worked. They have gotten really good at this vetting process to be like, “These are our people, and these people are going to be there when we need them on these important cases, right?”
That process itself, which I feel like is really messed up, would be much harder with more people. Like just making sure that you’ve got these people who are absolutely going to do the thing you need them to do when they’re there, would be harder with more people.
Elie Mystal: Yeah. So, a couple of points. One, I can’t imagine what it would be like if that was reverse, because I live in a world where Joe Manchin controls my party.
Chris Hayes: So right, exactly right. But, no, it’s that feeling, right? It’s the feeling that you feel about Joe Manchin. It’s how anti-abortion activists and maybe on the rate, felt about —
Elie Mystal: Sandra Day O’Connor.
Chris Hayes: Certainly Souter. I mean, Jesus, look.
Elie Mystal: Souter just knifed the system.
Chris Hayes: He killed it. Yeah.
Elie Mystal: Right. So yes, I agree with that. But here’s the thing, the reason why they’re so effective is not because they’re vetted, it’s because they’re made. They’re made this way.
Chris Hayes: They’re both. That’s right. That’s exactly right. Yeah.
Elie Mystal: Like, they go and identify these people in law school. They train them up. They tell them where to work, who to clerk for, how to think. So that by the time they get to be Amy Coney Barrett, they have been produced to be this way. The Democrats have nothing comparable on their side. I’d like to make the point, though, I went to Harvard Law School, which is a pretty good law school.
Chris Hayes: Yes, I’ve heard of that. Yeah.
Elie Mystal: It’s near Boston. If I had been conservative, Leonard Leo, the head of the Federalist Society, he would have taken me out to dinner. He would have been my friend.
Chris Hayes: Dude, are you kidding? You wouldn’t? I mean, well, let me explain this for people who are listening. This is actually a key thing you need to understand is that the sheer math here is an important thing to reckon with. There is equal demand out in the political world for credentialed, high achieving, legal hot shots on the world of the right and the world of the left, equal demand.
Elie Mystal: Right.
Chris Hayes: Because it’s a roughly 50/50 universe. Okay?
Elie Mystal: Right.
Chris Hayes: The supply is wildly asymmetrical. Okay? So, if you’re one of the like 15 out and proud conservatives at Yale Law School, or however, 50 at Harvard, I don’t know what the numbers are. The world is your wish, like you just go do whatever you want to do. Whereas that’s not at all and the same goes to the top 10 law schools, like they are producing a massively asymmetry in the politics of the people, which is not to say they’re graduating a lot of leftists. Like, a lot of people just want to go work in a corporate law firm and they’re going to vote for Joe Biden. But they are not producing a lot of like diehard anti-abortion mega people.
Elie Mystal: The Republicans are trying to create the next Antonin Scalia. That’s how they got Neil Gorsuch. That’s how they got Amy Coney Barrett. Democrats and liberals expect the next Thurgood Marshall to just show up, to just figure it out and show up on their doorstep and be like, “Hey, I’m Thurgood Marshall too.” And then they’ll start talking to you, right? So, like that’s the asymmetry. But there’s another reason for that.
Chris Hayes: But partly, that’s math too, isn’t it?
Elie Mystal: Partially, it’s math, but this is the thing that I want to get into. It’s because of how fractured the Democratic Party is itself when it comes to things like race, sex, gender, and social justice, right? Think about it this way, the conservatives have federal society, which is the organization that we’re talking about that does the work of creating these people.
Chris Hayes: And Leonard Leo, who you talked about taking out dinner, is the sort of head of the Federalist Society, though, maybe not in a titular sense, but in this sort of spiritual sense, and has been the point person for Republicans on judges, specifically justices.
Elie Mystal: Right. He’s the mascot —
Chris Hayes: Yeah. Right.
Elie Mystal: — of the Federalist Society, right? And the thing is that all the other Republican constituent groups seed, their Supreme Court picks, and their judicial picks through the Federalist Society. So, if you go to the NRA and be like, “Who do you want for the Supreme Court?” The NRA will say, like “Whoever the Federalist Society thinks.”
Chris Hayes: Yes.
Elie Mystal: So, well the Chamber of Commerce, so well the evangelical right, those are three wildly different groups, but they will all say, “Well, whoever the Federalist Society says.”
Chris Hayes: Well, that’s what’s so amazing about what they pulled off.
Elie Mystal: Try doing that as you’re a Democrat. Try telling the NAACP, “Actually, we’re going to pick the judges. You guys just support it.”
Chris Hayes: Right.
Elie Mystal: Try telling that to Lambda Legal. Try telling that to organized labor. Try telling that to the teacher’s union. Try telling all the democratic constituencies, “Actually, no, I’m going to be the one who picks the Supreme Court justices, and you’re just going to support it. Okay, Chris Coons? Okay, Dianne Feinstein? Okay? You’re just going to support who me and (Charles Winfield) pick for the Supreme Court.” It ain’t going to happen.
And so that the asymmetry is not just the numbers, it’s that other constituent groups in the Democratic Party, they don’t trust for there to be one clearinghouse for new judges and new justices. We saw this a little bit during the Ketanji Brown Jackson confirmation hearings, where there were a lot of people, a lot of black people specifically who were just like, “Why are we picking another Harvard grad? Can we please, maybe please have somebody from a non-Ivy League school?” It’s a completely reasonable point.
Chris Hayes: Yeah.
Elie Mystal: Right? Like —
Chris Hayes: Well, and to your point before about extending the court, it’s like, yes, we do with the court, and particularly, I think, Democratic presidents, right, and the progressive movement, broadly, the broad center left coalition, right, has in this respect, and this has been true judicial nominees by Joe Biden, below the Supreme Court Justice level, which have been, I think, quite good and quite diverse compared to the baseline, right, not necessarily compared to the United States of America.
But the Supreme Court, it’s incredibly uniformed in some levels. Like, there is diversity in life experiences, diversity in race and gender. But it’s like all Harvard and Yale, like Amy Coney Barrett is the big outlier f Notre Dame. Like, it is a very small hothouse atmosphere and a very small pipeline that produces all of these people.
Elie Mystal: There’s a reason why everybody knows each other, right?
Chris Hayes: Right.
Elie Mystal: There’s a reason why Ted Cruz is sitting up there in Ketanji Brown’s confirmation hearings, talking about going to law school, be on the law review with Kentanji Brown Jackson. There’s a reason why a guy like me has stories about Tom Cotton.
Chris Hayes: Right.
Elie Mystal: We were in law school together, right? Like we everybody knows each other. Everybody —
Chris Hayes: I used to go to Happy Hours with Josh Hawley in the court when he clerked for Justice Roberts and Kate clerked for Justice Stevens. And I remember Josh, he seemed like a perfectly nice dude, have a beer, like make conversation.
Elie Mystal: I didn’t know that he was thinking about killing all of you when he was there. Like, it’s an incestuous club. It’s what it is, right? And again, it goes back to how you started your show. We’re talking about a hundred people. We’re talking about a hundred people from three or four law schools, who have at this point in our history, decided that they get to make the rules for the rest of us, who nobody elected.
Brett Kavanaugh could not win an election. It’s easier to do it this way. The only Supreme Court justices who would have won an election are John Roberts and Ketanji Brown Jackson. None of the rest of them could have won an election. Like that’s just the idea that these nine people are the ones who get to decide these rules for the rest of us is to me ridiculous. And again, it’s one of the reasons why I wrote the book. Like, I honestly think, Chris, if people just understood what these Justices were doing, the way that I understand it, people would be as angry as I am.
Chris Hayes: Elie Mystal is a justice correspondent at The Nation. He’s the Alfred Knobler Fellow at Type Media Center. He’s author of The New York Times best seller, “Allow me to Retort: A Black Guy’s Guide to the Constitution,” which came out in March, which is really great. It’s a great read.
By the way, congratulations, the book has done really, really well. And a book doing well is like not necessarily super correlated to its quality. So like, people write great books that don’t do well and people write crappy books that do well. But it is nice to see like you published this under an independent publisher. It’s not like you had some enormous like William Barr level machinery behind you to like book every morning show. And it’s done great and it’s awesome to see.
Elie Mystal: The funniest story is that I was scheduled to be on your show, on some other MSNBC shows.
Chris Hayes: Like in the war.
Elie Mystal: And the war happened the week that I got bumped from everything.
Chris Hayes: Yeah. I mean, we didn’t take a break for a week. I mean, it’s like, yeah.
Elie Mystal: So I’m very thankful for all the people who have bought it and who are reading it. And I also need to thank Antonin Scalia because without him, I never would have written it.
Chris Hayes: All right, Elie, Thanks, man.
Elie Mystal: Thank you so much.
Chris Hayes: Once again, great thanks to Elie Mystal. He’s something else, man, just one of a kind, a great communicator, and a really unique voice, and I always love talking to Elie. That was awesome.
You can tweet us with the hashtag WITHpod, email withpod@gmail.com. “Why Is This Happening?” is presented by MSNBC and NBC News, is produced by Doni Holloway, Tiffany Champion and Brendan O’Melia, engineered by Bob Mallory, and features music by Eddie Cooper of the band Tempers. You can see more of our work including links to things we mentioned here by going to nbcnews.com/whyisthisishappening.
Tweet us with the hashtag #WITHpod, email WITHpod@gmail.com. “Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway, Tiffany Champion, Brendan O’Melia, engineered by Bob Mallory and features music by Eddie Cooper. You can see more of our work, including links to things we mentioned here, by going to nbcnews.com/whyisthishappening.