5-4 x Know Your Enemy

Welcome to a very special presentation of 5-4.

Last week, we guested.

Is that?

Yeah, I think guested.

Yeah, we guested.

Last week, we were guests on Know Your Enemy, an extremely good podcast about the conservative movement to discuss the conservative legal movement and sort of its genesis, the genesis of some of its underlying ideas, like originalism and textualism, the development of the Federalist Society, and things like that.

And the episode turned out so good that we wanted to share it with our listeners so that if you're not a listener of Know Your Enemy, which you probably should be, that you could listen and enjoy yourself.

But really, the goal was to steal their listeners for us.

That's also true.

But we sounded great.

Right.

We did sound incredibly smart.

Thank you for that editing, Know Your Enemy.

And yeah, if you are a 5-4 listener, you definitely will enjoy Know Your Enemy.

And if you are a new listener to 5-4 because you were a Know Your Enemy listener, welcome.

Yeah.

And we cuss more than they do.

Yes.

Yeah.

We're cooler.

Yeah.

We were on our best behavior, I think, on their podcast.

Brace.

I didn't say the F-word one time.

You were great.

But yeah, we're sort of the bad boys of legal podcasting.

You know, I don't mean to brag.

Thanks to Matt and Sam over at Know Your Enemy for having us.

It was super, super fun.

And it's definitely one of the smarter conversations I've had in 2020.

Yeah, agree.

Agree.

Enjoy.

All right, well, welcome to Know Your Enemy 5-4 crew.

Hey.

Thank you.

Thank you.

Good to be here.

Yeah, we're really excited for this.

I'm a huge fan of 5-4.

I've listened to every episode, and if our listeners aren't fans of yours yet, I hope they will become fans after this episode.

That's very kind of me.

Thank you.

Yeah,

we're making a huge mistake by inviting funnier and more intelligent people onto our podcast.

I was about to ask if there was going to be like some sort of air horn sound to introduce us, you know, kind of right.

The final countdown, please.

Yeah, it's really stupid.

We're like telling people like, oh, you like listening to like in-depth analysis of like conservative ideas from like smart, charming people.

You should listen to that.

You should listen to 54 instead of our podcast.

Yeah.

But yeah, to begin with, because our listeners have complained about it, even amongst the two of us, would each of you just say your names, introduce yourselves, and before we get started here?

Yeah.

Sure.

I am Peter.

Also, The Law Boy.

Yeah, Twitter's The Law Boy.

On Twitter, I am the Law Boy.

A couple years ago, I decided to choose the name on Twitter, The Law Boy, and here I am.

Just

dragging it behind me like

Peter,

I addressed your Christmas present to Twitter as the law boy.

So keep an eye out for that.

In the mail, buddy.

And I'm Rhiannon.

I'll be easy to distinguish, I think, by not being a man on this podcast.

And my name's Michael.

Happy to be here.

Yeah, well, welcome again.

You know, for our listeners who aren't familiar with the 5-4 podcast,

it's really, you know, when you listen to an episode,

Leon Napok does the little introduction.

He says, it's a podcast about how much the

Supreme Court sucks.

That's the tagline.

But maybe to begin with, you could just tell us about the basic perspective you offer on the show.

Yeah, yeah, sure.

So we're a legal podcast, and I think we can be described broadly as sort of leftist critique of Supreme Court cases.

And I think it started as Peter's idea, but it just came out of like not really seeing our way of thinking and talking about Supreme Court jurisprudence and the conservative legal project.

Like we didn't see that reflected back at us from, you know, mainstream media doing legal analysis, even from supposedly like liberal outlets.

And, you know, there's just no space where people weren't just parroting what the Supreme Court and the American judiciary as an institution

say about says about itself, which is, you know, that judges are objective, they're non-political, they're not ideological, and they're decision makers who, you know, sort of divine a correct answer out of legal questions.

You know, that legal problems are not only sort of like objectively solvable, but also that there's this special class of people, you know, the judge who is specially equipped to answer, you know, legal questions because nine justices on the Supreme Court have the right objective tools to do that work.

And I think like even more broadly, we're critiquing legal formalism.

And our philosophy or like the perspective sort of flows, I think, from legal realism, which just refers to the idea that law derives from prevailing social interests and public policy.

It's not static, it's ideological, it's political.

And judges shouldn't just be looking at abstract rules when they're deciding a case, but they should also be considering social interests, public policy, material realities, and that kind of thing.

Yeah, it's a really wonderful sort of demystification of the Supreme Court.

And, you know, obviously, know your enemy.

We have a fairly, you know, we try to be fair-minded, but it's, you know, ultimately, we're very critical of, you know, the right and the conservative movement, the post-war U.S.

conservative movement, especially.

And I found listening to your podcast, it's made me even more cynical than I was before about the Supreme Court.

Yeah.

Part of the ongoing project with the podcast is to like unstick any remaining little bits of

Matt's sympathy to the conservative movement.

Right, that's right.

Just let it go, Matt.

Just let it go.

So I'm thankful to you guys for participating in that project.

Absolutely.

Yeah, that might actually lead into another question, which is,

you know, I think just to confess my sins here, being the bad Catholic that I am, I probably credited the conservative legal movement with a little bit more kind of intellectual rigor and sophistication than than I might have the broader conservative movement.

You know, Antonin Scalia taught at the University of Chicago.

You know, some of the people you talk about on the show, you know, they are distinguished legal figures, and there is a kind of competency we see with, say, the people who work for the Federal Society and the kind of organizational prowess they bring to it.

So I kind of had a maybe higher opinion of the conservative legal movement than I did other parts of conservatism.

But really, one of the things things that courses through the show, your show, every episode's most episodes are about a particular case.

But there's also a broader story you're kind of telling about the rise of conservative legal thinking.

And I wondered if one of you might sketch that for our listeners, too, kind of where, when we think of originalism or the federal society, these terms and phrases, organizations,

institutions,

particular jurists we think of, most of the cases you look at are fairly recent in the last, what, 30 or 40 years probably.

So where the people you're criticizing and demystifying, where did that movement come from?

Where did the conservative legal thinking, where did it originate?

When did it originate?

And what's the kind of story you're telling in your podcast?

It's a horror story.

To just put a genre on it.

The conservative legal project, as it is constructed today, is about 50 years old and sort of arose similar and parallel to the broader conservative movement as a reaction to the liberal gains of the mid-century.

Before that, conservative legal thought was a little more atomized, a little bit inchoate.

It coalesced primarily around sort of disparate ideas like states' rights that tracked with the conservative political project, but they weren't particularly wedded to any underlying framework.

And then you have the Supreme Court of the mid-century under Earl of Warren start to actively engage in furthering civil rights, protecting minority rights, expanding defendants' rights, voting rights, finding a right to contraception and then to abortion in Roe v.

Wade in 1973.

And conservative legal circles are just sort of reeling.

And there is a sense on the right that this is sort of ivory tower judges, right, imposing their, you know, the activist judge line, right?

That they are sort of imposing their will on the rest of us.

And conservative legal academics actually sort of feel the same way.

And they're thinking, like, look, this is ridiculous, right?

How can all of these sort of newly popular ideas be protected by the Constitution, this 200-year-old document?

And that basic complaint leads them to solidify their articulation of originalism.

And originalism is just a legal framework that is built on the idea that our interpretation of the Constitution should be tied to its original intent or original meaning, rather than

having it be what's called like a living constitution, which is a document whose meaning sort of evolves with the times.

Aaron Trevor Bowie- And originalism, sort of, I mean, who are the people who are propagating that idea?

And why does it serve the kind of reactionary purpose that it's being kind of enlisted into?

Because there is a way in which I think the success of these conservative legal legal figures,

originalism makes a certain amount of sense, right?

To the kind of common person, like judges apply the law.

Shouldn't they be bound by what the law says or what the Constitution says or what a statute says?

You know, there's a kind of almost common sense force it has that I think has helped give it some of the traction it has alongside, of course, all the kind of efforts at spreading it through institutions and getting it taught in law schools and having judges and advocacy groups pushing for it.

But it's a good question just because it's why does it serve reactionary ends, especially when it sort of has a certain common sense appeal?

Yeah, I mean, I think it's important to note that sort of there's a through line in conservative legal analysis generally, which is their position that the law needs to be rooted in something, right?

It needs to be tethered to something real.

How do you prevent a judge from just kind of using their own policy preferences?

Well, you bind them to the original meaning of the Constitution or you bind them to the text of the law.

And any other approach, according to them, is just sort of arbitrary.

And I think a big part of what made it so appealing was what you're describing, that they weren't just saying, here is our preferred position on the law and the Constitution.

They're making this claim to objective correctness, right?

They're saying, look, this is the proper way to interpret the law.

This is the only way to ensure objectivity in a legal system.

And the extent to which that line of argument was successful in penetrating the collective consciousness of the legal profession, I mean, can't really be overstated.

You'll see it manifest across all the different conservative frameworks from originalism to textualism to less popular stuff like law and economics, right?

This idea that the law has concrete answers or can be solved.

As to why they are conservative, with originalism, I think it's simple enough.

It prevents the imposition of progressive ideas onto the Constitution, right?

And essentially limits, you know, what the Constitution does is grant infinite power to the states theoretically, and then carve out

certain things that the states can't do, and then does the inverse with the federal government, right?

That's the only it gives them the federal government specific powers and the federal government can't do anything else.

So

the more narrowly you interpret it,

the broader you're interpreting states' rights.

And that, in like a microcosm, is why

conservatives gravitated towards these sorts of analyses initially.

But yeah, I think in general,

it's a combination of things.

You know, with something like textualism, it really hampers the ability of Congress to pass meaningful legislation.

That hampers progressive ends.

And in general, though, I mean, it's important to realize that this isn't necessarily something that aids conservatives.

It frequently doesn't.

They have sort of constructed an analysis of it that is not particularly consistent, but just so happens to track the conservative project at just about every turn.

Right.

Yeah, I wanted to add that to Peter's points,

just that, like, you know, I think probably 80 or 90% of like constitutional or statutory interpretation cases that come before before courts are pretty easy.

You know, you're not going to really have much difference across interpretive methodologies or anything like that.

It's the tough cases where it matters.

And in those cases, it's often the case that the text or the history of the Constitution doesn't give you a clear answer.

And you're no more tied down as an originalist or a textualist than you would be as a purposivist or

a living constitutionalist or whatever.

At the end of the day, there's just a certain level of value judgment that goes into this stuff, right?

And that's part of judging.

But they want to deny that.

Aaron Powell, what's the difference between originalism and textualism?

How are they related?

Originalism, like I had mentioned, but I'll restate, is just the it's generally limited to the Constitution and is the idea that interpretation of the Constitution should be

based on either the original intent of the Constitution or the more popular formulation now is the original meaning of the Constitution, which is

how the public would understand it

to have read.

Textualism is

a statutory analysis framework for the most part, meaning that the best way to interpret

statutes, actual written laws, is by prioritizing the text, which can mean a bunch of different things, but generally speaking, just means you read the text fairly literally as sort of

step one and then work from there.

Right.

You always know a textualist decision is coming down when the first paragraph is like a dictionary definition of words.

Right.

Right.

Yeah.

Which is not a joke.

That's like a staple of textual analysis is busting out the dictionary.

Right.

And there's sort of an idea that like Antonin Scalia

is associated with like this kind of tripartite

set of ideas like textualism, originalism, and judicial constraints?

Yeah.

I mean, I would certainly he he managed to sort of tie himself to it almost as like a branding operation rather than rather I because he wasn't, you know, I think the foremost scholar on the seminal work on originalism was done by Robert Bork, who's the famously disastrous confirmation hearing in the 80s.

Coming soon, listeners, stay tuned.

Yeah, his his I think his, he published a book on originalism in 1973, I want to say, maybe 72.

And that became the sort of

initial shot across the bow or whatever in the in academia.

Scalia certainly came on the backs of that and was just sort of like a firebrand who managed to

make himself the focal point of a lot of these discussions.

Michael, when we were planning for this, you had said you were delving into some of the history more.

So if originalism and textualism and these kind of associated ideas begin as a backlash to the war in court,

you know, you have an early book or law review article from Bork in the early 70s, you know, kind of Scalia picks up the mantle.

Um, you know, he's, of course, appointed to the Supreme Court by Reagan in the 1980s.

Like, how do you, how did it kind of move from the

basically an intellectual movement, a set of ideas maybe held by a relatively small group of people, to, you know, the federal society giving Donald Trump a list of judges to a point, or, you know, just kind of the long march through the institutions.

How did they do that?

How did it move from, again, a set of ideas to this really powerful, influential school of thought that has had a huge effect on the country?

Right.

Well, Peter talked about like the development of the substance of right-wing legal thought as a response to the Warren Court.

And I think you could also frame their approach to political change as a response to the New Deal,

which sort of professionalized politics, right?

It created like this vast network of bureaucrats.

It increased the importance of people with secondary education degrees, lawyers in agencies, not just on the court.

And all of a sudden, there was like a big premium on...

you know, having a foothold in academia, in all these institutions,

which was an avenue for political change that didn't require electoral change, right?

And it turned out

even winning elections wasn't enough, right?

Because Nixon appointed four Supreme Court justices.

One of them turned out to be Blackman, who was like, great, like, thanks, Nixon.

But that didn't usher in quite the change they expected.

And there are a lot of reasons for that.

You know,

they didn't have a ready supply of reliably conservative justices, obviously.

They didn't have a ready supply of reliably conservative clerks for those justices.

They didn't have conservative public interest groups bringing lawsuits that would help them

reach the sort of legal conclusions they wanted.

The court only has so much control over the cases before it.

So there was, I think, a realization that

they needed to be thinking more broadly and looking for other approaches.

And the Federalist Society, I think, is

their biggest success, not just in the law, I think it's arguably the biggest success of the conservative movement generally looking for non-electoral

levers of change.

And

it started as a way of sticking it to the fucking lips, is what it was.

There's a few disgruntled conservatives at Yale Law who were like tired of being like sneered at when they

raised their hand in class they wanted to like they wanted anthony and scalia and other sort of big-name academics to come to yale and stick it to their professors and and that's like that's they say it they they wanted to make their professors feel uncomfortable they wanted to knock them off their high horse they wanted them to lose their confidence that they had like a sort of stranglehold on you know legal answers And this sort of took off.

Like conservatives loved it.

This conference was super successful.

Scalia himself loved it and got very involved in in fundraising and organizing.

And this is the early 80s at this point?

1982.

And within a year, they had raised $100,000 in modern-day cash from a handful of big conservative legal foundations, the Olin Foundation, the Skyf, what is it, the Institute.

Maybe Bradley.

Yeah, I think so.

I think so.

But yeah, and they were talking about we need to start founding chapters.

We need a professional wing.

It got very organized very quickly.

They saw an opportunity and an interest,

and that started to create this sort of judicial network, right?

Which is what sort of blossomed into what we have today.

They've been very careful to,

they don't file briefs at the Supreme Court.

They don't lobby Congress.

on bills.

The organization tries not to take specific policy positions because they don't want to piss off their members.

They say they're a debate club so that everybody can come and argue about the takings clause or whatever and like all the stupid disagreements that conservatives have amongst themselves that they think is like really smart and really,

you know, so deep.

And then they tell you that, like, well, we're not really engaged in anything political.

Sure, it's great that we've, you know,

we can place judges and clerks and professors, but that's just a side effect, you know, of our wonderful debate club and the exchange exchange of ideas, which is like the equivalent of somebody, I don't know, like shooting a bank shot in basketball and then trying to tell you that, like, oh, I wasn't trying to make it in.

I was aiming at the backboard.

Great.

Great.

That the ball went in the hoop.

Whoa.

To be just as clear as possible, Kavanaugh, Gorsuch, Thomas, Roberts, Alito, and Coney Barrett were all.

Federalist Society members.

That's right.

So that the new six-person conservative majority on the court, all of them were Federalist Society members.

Trevor Burrus, Jr.: That's right.

And in fact, the keynote speakers at their big annual event for the last four years at Reverse Chronological Order, Alito, Kavanaugh, Gorasich, Thomas.

They are deeply influential and intertwined with the organization.

Amazing.

Right.

And Bill Barr gave a ridiculous speech at one of their conventions also recently, where he was basically

calling for right-wing autocracy, practically.

Yeah.

Yeah.

And he's a member, of course.

Pretty much any major figure in the right are a member.

And one of the reasons is, like,

like I said, there was back in the 70s and the 80s, what they learned was,

you know, you can't trust

people to sort of just be honest about their positions.

But like there was a stigma attached to being a conservative and there's a stigma attached to being in the federalist society.

And so the more someone was willing to bear that stigma, the more somebody was not just in the Federalist Society, but showing up to meetings and like wearing it proudly around campus

or as a professor, the more you could trust that they're like...

They're going to be real.

When you appoint them, they're not going to be drifting like Blackmen or Souter or any of those guys, right?

Like it's a badge of honor and a way to advance, right?

It's a career advancement opportunity.

Right.

I wanted to make a point about just going back to like originalism kind of blowing up and becoming super popular

through Scalia, through Bork,

through, I'd say, like the late 80s.

And something we want to do, something we try to do on our show is connect the conservative legal movement in the United States with the conservative political project more broadly.

Right.

And I think you can't really,

you know, what we're trying to say like over all across our episodes, all the cases we cover is that like the the conservative political project has used the judiciary and used theories about law's objectivity,

law's formalism, you know, namely originalism, in order to sort of reify conservative policy preferences and ensure conservative political outcomes, right?

And so,

it's not a coincidence that originalism is kind of

blowing up in popularity in the late 80s, you know, towards the end of the Reagan administration, when there's a real sort of cynicism about government, right, sort of spreading across the United States, an idea that like you don't rely on government to do stuff for you, you don't rely on government to support you, and how that goes hand in hand with like a judicial idea, what Scalia talks about all the time, of judicial constraint, that like we don't act, we're not, that our role is not, uh, is not to deliver wins to the common person.

Aaron Trevor Burrus: Something I just wanted to add really quick about the Federal Society is that it was very successful, very quick, but it's like fundraising doubled in the late 80s after Robert Bork's nomination.

Since we are going to come talk about that, it's worth noting that after his nomination failed, and

like I said, it's a big network of people.

And Bork was one of the early backers of the Federal Society, and they all knew him.

He had a bunch of friends.

He was well-liked in those circles.

So the fact that, you know, I was reading somebody, one of them compared it to like a mother or father, you know, getting nominated to the Supreme Court and then not getting it.

That experience that we can all relate to.

Yes, exactly.

He became a martyr for the cause.

That might be the place to go here.

I mean, because it sounds like the sort of history we're talking about is we've got, we've got the Warren Court in its sort of like instantiation of civil rights in judicial opinions.

And then there's a reaction to that across the conservative movement.

There's in the 70s this effort to pack the court with conservatives.

It doesn't work out because they don't have enough of a beachhead in like in conservative, in the legal academy.

And so then they establish the Federal Society to solve for that problem.

And then that sort of takes off in the 80s.

And then we get to Bork, who is, as you've identified, kind of the

godfather of some of these ideas and the sort of the sort of perfect iteration of the kind of judge that they're trying to install who's totally on board with the whole program.

Right.

Yeah, absolutely.

But there's a degree to which

his disastrous confirmation hearings were sort of a reckoning, I think, for the conservative legal project.

So just to kind of go back and just describe how Bork comes into the national spotlight.

So he's nominated by President Reagan to the Supreme Court in 1987.

He's supposed to replace Justice Lewis Powell, who was retiring at the time.

And Robert Bork is a guy who, you know, earlier in his career had publicly stated that he supported the rights of southern states to impose a poll tax.

Super chill dude, like a really cool chill dude.

Yeah.

He also looked, he also, if you haven't seen what he looks like,

he looks like an ogre.

He looks exactly like his views.

He was not made for television, hearings broadcast on television.

Right, that's right.

You could imagine someone like you see that in a movie now, and then the actor who portrays him is like, yeah, I had to go through like seven hours of prosthetics every day.

Right.

That's right, yeah.

So it, and, you know,

he's writing about originalism.

He's very excited about originalism.

And, you know, and he's saying he explicitly he wants to roll back civil rights wins from the Warren Court era.

You know, he would like to

overturn Roe v.

Wade, that kind of thing.

And so

when Reagan nominated him, you know, a bunch of liberal organizations and then Democrats in the Senate really sort of organized around opposing and eventually killing his nomination.

And, you know, it's not the first time that like Supreme Court confirmation hearings

were political theater, but certainly like to the mainstream media and the public, I think it was the first time seeing it so intensely.

And,

you know, over the course of the confirmation hearings, I think it's a real like crystallization of the conservative legal movement and the moment.

And that's because Robert Bork and the

conservative legal thinkers at the time didn't know

how to sell that ideology to the public yet.

He was saying the quiet parts out loud, right?

He called the conservative legal movement a movement, right?

He said that this was political.

He recognized that it was part of broader conservative political machinations.

And he got so behind the idea of legal formalism and that you know, law is just a set of formal objective rules.

And, you know, that you sort of see like this stark abstraction in his words about adjudicating.

Like, you know,

he's asked what's supposed to be a softball question in the confirmation hearings about why he wants to be a Supreme Court justice.

And he says, because it would be an...

intellectual feast.

And I think like,

I think like, you know, it was it was a reckoning moment for conservatives to the degree that like today we don't talk about John Roberts or even Samuel Alito as members of a movement, right?

As part of

a political project.

And law schools teach and people broadly think that like justices don't have specific ideologies at all,

except how they think the Constitution should be interpreted.

Right.

Yeah.

And

is this kind of where the trend of simply not really answering questions, was that one of the the lessons learned?

That's right, yeah.

The origins of Amy Coney Barrett saying, I don't know if presidents should cede to the peaceful transfer of power, or I don't know if climate change is real, just kind of not answering questions, especially around Roe v.

Wade.

Is that where this comes from?

Yes.

Yes.

100%.

I mean, I think the way we described this in prep was like, this is the last honest confirmation hearing, right?

Where people were asking questions and he was just answering them.

Right.

Right.

And then then they were like, oh, you can't do that.

We're actually at a point where something like Roe v.

Wade is just a little too dangerous, a little too third rail-ish.

And

now, yeah, I mean, you know, you had John Roberts,

A, dodging every question, but B, also openly presenting himself as the umpire, right?

Who's just calling balls and strikes.

That's what he said in his confirmation hearing.

Really distancing himself conceptually from the idea that he was playing a political role at all or had any affiliation with these actors who might be construed as playing a political role.

All of that traces back to Bork.

And it's also why you see these like the sexual harassment fights, right?

Because

which is not that they're invalid or anything along those lines, but it does seem bizarre to a degree that you have these long drawn-out battles over like sexual harassment allegations and no one's ever like, by the way, what are you going to do once you're on the court?

It was like a very small part of the Thomas hearings.

So kind of in lieu of talking about substantive legal thinking, we've had to go to character or issues about the particular nominee, their background, their history,

again, their character, rather than talking about what they actually want to do as a judge.

Yeah, that's right.

So one of the lessons of the Bork hearings for the conservative legal movement was let's be a lot more coy about what we're trying to accomplish and how we talk about what excites us about it.

But what else?

I mean, what did they learn from Bork moving forward?

And why was it that liberals were able to bork Bork as now as a verb when they haven't been able to bork others?

Conservatives certainly learned some things from the Bork confirmation hearings, but one thing that they took from it, absolutely, is that it's just more of that victimhood complex, right?

That they were being attacked for

these neutral principles that

they wanted to apply to the law.

You know, the idea of victimhood

is so central.

to the conservative mind, right?

And so just to say that, like, you know, Mitch McConnell at at the time of the Bork confirmation hearings, he said that Democrats would rue the day that they

that they tanked, that they tanked the nomination.

And you see, like since then, he's spent, you know, now a good, what, over three decades making Democrats pay for it.

Yeah.

I was just going to say, it's worth pointing out that the Bork got a vote with the full Senate.

Yeah.

He lost an up or down vote.

Yeah.

Bipartisan.

Yeah.

Some Republicans voted against him.

So it was Democrats did control the Senate, I believe, but he they gave him an an up or down vote and he lost it.

So it is a little different than, say, what Mitch McConnell did to Merrick Garland.

Absolutely.

Yeah.

We talked about this a little bit on our Joe Biden episode, and I don't want to sing his praises too much.

But there was like one of the one of the flashpoints in Bork's hearing was when Biden tried to pin him down on not just Roe v.

Wade, but like

contraception, right?

Like the legal foundation for Roe v.

Wade was a prior case that said, look, you know,

you have a right to do what you want in your home, and that includes contraception.

And Bork was just like, I mean, he just didn't know how to get out of saying what was his obvious position that is very unpopular, which is that that law was bad and wrong.

And instead found himself saying that he had like never thought about it.

And Biden, you know, was like, you're fucking kidding me?

You're like, you've been an academic for decades

and you've never thought about it.

Like, we're supposed to believe that and and he looked you know he looked like he was hiding something and he looked like he what he was hiding was like a profoundly unpopular position um and i think that hurt him a lot like first-person accounts from Republicans was that that hurt him a lot right that that helped them sway them that's also something that they took away from this

how do you talk about these sort of cases right that are that are difficult to talk about it it's not just Roe v.

Wade it was Brown v.

the board of education at the time

The originalist position on Brown v.

Board was that it was incorrectly decided.

Trevor Burrus, Jr.: That's come back, by the way.

I think Amy Coney Barrett wouldn't say that it was rightly decided, right?

That's right.

I think that you had this sort of what was prior to Bork, a much more intellectual movement, at least as it viewed itself, right?

And so when you have these intellectuals talking amongst themselves, they can say, look, yeah, Brown v.

Board, I'm not sure about that one.

You know, I think it was incorrectly decided.

But once it becomes a little more political and once they see the need for political strategy, they start talking about these things differently.

And what they sort of coalesced around is the idea of starry decisis,

which is precedent, the idea that once something has been precedent, established as precedent, it's sort of untouchable to a degree.

And so what they would say is, look, Roe v.

Wade, that's settled.

Forget what I think about it in this sort of high-falutin intellectual way.

You don't need to worry about that.

That's already settled.

So's Brown v.

Board.

And that's how they started talking about those cases.

Trevor Burrus, Jr.: How do they tend to handle precedent?

Because Scalia has the famous line where he said something like, I'm an originalist, I'm a textualist, but I'm not a nut.

Meaning he wasn't going to take the premises of originalism to their logical conclusions, which would render

entire swaths of precedent illegitimate based on

an original understanding of the

Constitution.

So how do they and that and that was a major, to the extent Amy Coney Barrett's jurisprudence was actually discussed substantively, substantively, that was one, she probably goes even further than Scalia, who she clerked for, in

kind of her willingness to overturn precedent, maybe.

At least she signaled that in a law review article or two.

So

how do they kind of square the fact that their theory of judging in the Constitution

would invalidate large swaths of modern jurisprudence?

I think it's useful to take a step back here, but the short of it is that they don't really reckon with it at all.

You know, the basic critique of originalism and other legal formalistic frameworks is very simple.

The entire philosophy is sort of predicated on agreeing to and applying certain rules to the facts.

But those rules are not very clear and they're not consistently adhered to, right?

So if you're talking about originalism, for example,

the process of ripping a clear meaning for a constitutional provision out of the pages of history is about as far from like a measurable science as you're ever going to get, right?

We did an episode on DC v.

Heller, which is the case that found an individual right to bear arms in the Second Amendment.

And the majority opinion is Scalia doing this like tortured, selective interpretation of the Second Amendment that functionally overturns a case from the 1930s, US v.

Miller.

And in dissent, you have Justice Stevens, the liberal, sort of doing the same thing and coming to a different conclusion.

And, like, just to give you a flavor, give your listeners a flavor, Scalia says that the term well-regulated militia in the Second Amendment wasn't referring to an actual militia, but was just a way of talking about the body of citizens that could, in theory, comprise a fighting force.

And he, like, very selectively cites some sources for this.

But like, no one was interpreting the Constitution like this before like 1990.

I mean, it was just, it's completely novel.

And it sort of reminds me of what

the historian Eric Habsbaum called invented tradition, which is like the idea that there are these political and cultural practices or ideas that are viewed as long standing, but are in fact recently constructed.

And a large part of originalism is sort of ascribing sacredness to what are in reality fairly novel conceptions of how to interpret the Constitution.

And there's a real bad faith element there, right?

And it's, yes, it's like it's partially just the idea that, like the absurdity of the idea that history can provide clear answers, but a lot of it is just something that borders so closely on fabrication that it's not really worth digging in too much too deep.

And, you know, when

they confront something like precedent,

to say they do it inconsistently is almost to like undersell it.

It is wielded in such obvious bad faith by, frankly, by both sides of the aisle that

I genuinely don't think talking about it is useful.

Not just on this podcast, but in general.

I mean, it's just

something that is just not applied consistently by a single person.

You can go through and identify moments of hypocrisy or not, but really fundamentally, originalism is not a judicial philosophy that

it doesn't really exist.

Absolutely.

Absolutely.

No, that's exactly

right.

They're not actually engaged in it as a good faith intellectual project.

The reason that it has the reputation that it does is not just because of what the conservative legal movement has been able to accomplish propaganda-wise, but because liberal jurists have

sort of conceded that it is.

They have sort of played along with the idea that

it consists of a coherent intellectual project, which you can disagree with or not.

I forget who it is.

It may have been Eric Siegel, who's a law professor down in Georgia, or Jack Balkin.

But there was a law professor who wrote an article that I read recently that was just like

sort of mocking other academics.

And he's like, look,

you know,

we have all this data that shows that judges aren't actually doing, you know, originalism as you describe it, right?

Like in your academic works.

So what are you even doing, right?

Like

what's the social purpose of your work?

Because you're

coming up with these whole

elaborate academic schemes and structures to explain these decisions.

But that's not what's happening, right?

That's not what's happening in the court at all, right?

So it's like this

navel-gazing exercise about how smart we are.

It's all backfill.

Yeah.

One of the things that's interesting now to me is that people like Adrian Vermuel,

he argues for this common good constitutionalism.

And what he's suggesting is that originalism has outlived its utility for social conservatives in particular.

And of course, people like him point to, especially, like Gorsuch's decision in the Bostock case, which was the case that decided that trans people should be protected by Title VII.

So what he's saying is that

originalism, as conceived as a real good faith, conservative legal theory has outlived its utility because now it's not always being decided in our favor.

And I remember also reading back then,

Josh Hawley,

another...

friend of the pod,

gave a speech on the Senate floor in June 2020 about that decision, where he said, this decision and the majority who wrote it represents the end of something.

It represents the end of the conservative legal movement or the conservative legal project as we know it.

After Bostock, that effort as it was exist as it existed up to now is over.

I say this because if textualism and originalism give you this decision, meaning the decision that trans people have rights at work, if you can invoke textualism and originalism in order to reach such a decision, an outcome that fundamentally changes the scope and meaning and application of statutory law, then textualism and originalism and all of those phrases don't mean much at all.

So, this is sort of like in conflict with what we've been describing:

the idea that, like, if people believe in good faith and some of these ideas, then they might arrive at conclusions that don't comport with at least social conservatism.

Yeah.

It's interesting that Bostock gets paraded around as this manifestation of like deeply held principles on the part of like the conservatives when I view it actually as like the complete opposite.

Title VII is a law that says you can't discriminate

against anyone on the basis of their sex.

And the principle of it is that that would

cover

that would according to the decision cover gay and transgender people too, right?

It covers LGBT people because discrimination against them is functionally discrimination on the basis of sex.

And that's very simple and it's actually a textualist decision, which is why a lot of people and Gorsuch wrote the.

That's right.

He writes a very textualist majority opinion.

Now, a lot of people pointed at that and said, look, look at Gorsuch and Roberts joining the libs out of pure unfiltered principle.

But the real story to me was the remaining justices, because there are seven others, and all of them flipped on what their usual mode of analysis would have been.

You had

the three remaining conservatives in Alito, Thomas and Kavanaugh all taking the sort of anti-textualist side where they were like, well, look,

this isn't really what the legislature would have meant with this.

A little bit purposivistic, and that generally

would be a deviation from their usual...

at least their ostensible textualism.

And you had the liberals going text first, and that is a deviation from their principles.

You know, I don't think of that as

a sign

that we are transcending the ideological era that we were previously in.

My instinct with that was that Gorsuch is surprisingly empathetic to the plight of LGBT people as long as that plight is not conflicting with religious principles.

And

that's what I took from that.

I cannot believe how overblown the reaction on all sides was to that case.

Trevor Burrus, Jr.: Right.

That's very interesting.

I think that also sort of puts the lie to

what we were talking about earlier, with the Federalist Society holding itself out as like a debate club with like a rich and varied ideology with a lot of different viewpoints and then the second there's any deviation it's like well this is fucking this is the end of the world

right right our movement is over like you know what happened to the debate yeah what happened to the you know rich you know in-depth disagreements right like hall holly was a fedsock product yeah for sure.

And clerked for Roberts.

And suddenly he's like, nope, fuck it.

I'm taking my ball and going home.

I don't want to be involved in this rich, intellectually serious debate.

And

rather than the end of the conservative movement, I do think

this is what conservative victory looks like.

Conservative victory is where those random fault lines actually show themselves a little bit, right?

Like where

we're at a point where there are enough conservatives on the court that their idiosyncrasies and their slightly different approaches to the law might actually change a few cases' outcomes.

And they're not going to be like always traveling in a pack.

But

that only happens when you have six votes on the court and you have a robust right-wing legal establishment that's bringing very extreme right-wing cases.

Aaron Powell, Jr.: So as we kind of think about what the effects of the rise of the conservative legal movement have been and their installation of, you know, now six people in the Supreme Court who kind of came up through that movement or are attached to it in some way, what are the major areas where they've really had a bad effect on American life and American politics?

Aaron Powell, why does this Supreme Court suck?

Yeah.

Yeah.

Yeah, broad categories, civil rights,

voting rights, labor law, workers' rights, Reproductive rights.

Some of the most interesting damage done

is

probably in their interpretation of the Equal Protection Clause, which is actually, in a lot of ways, very non-originalist.

The Equal Protection Clause is a

clause that was passed with the 14th Amendment in, I think it was 1870, around there.

And it says that all people need to be treated equally under the law.

And obviously at the time, we're 50 50 years prior to women voting.

We are nearly 100 years prior to the Civil Rights Act of 1963.

And so what we've, you know, it's quite clear that the intent and the public understanding of the Constitutional Amendment at the time was not to grant equality to women and minorities in any meaningful sense.

It was something that was to be sort of weaponized against the South, right, and in the wake of the Civil War.

And the sort of irony in how conservatives treat this is that they go way farther than any originalist interpretation would ever take them, right?

They, of course, say that it protects women.

How could you not, right?

Oh,

that would be awkward to have to admit that we are directly adhering to the misogyny and racism and whatever of the old guard.

But they also stop well short of where it could be.

And, you know, one of one of the things we've touched on many times in the podcast is just how powerful a clause saying that people need to be protected equally by the law could be in the right hands, right?

Instead,

they've taken a lot of strides to ensure that that never happens while still abandoning originalism because taking the originalist position is just a little too thorny.

Right.

An area of law we haven't mentioned, sorry, that we didn't mention, but that has been like devastated, I think, is like just democratic norms.

Campaign finance, access to the ballot, all that stuff.

Over the last 40 years, the Supreme Court has made our country profoundly less democratic.

Yeah,

it's really striking

to see that kind of mindset and style of thinking at work in the broader conservative movement, too.

As you said, they don't go all the way back.

They wouldn't say that it doesn't include women.

And you see this all the time on the right when

they all act like they would have supported the Civil Rights Act in the 60s.

But even though no one, even at the very magazines they write for, no one at the time actually did that.

So it's this really incoherent way of thinking where they kind of grant a certain level of progress, but don't take that to its logical conclusion.

But nor do they take the reactionary view to its logical conclusion.

Yeah, I mean, look,

if you ask them like what their project is, they say that like, oh, we want, you know, judicial restraint.

We don't want judges making law.

We want them interpreting the law or whatever.

And you'd say, well, like, well, what are you talking about?

Don't judges always interpret the law.

And they'd say, no, the crazy liberals were making law all the time.

And you'd be like, well, what are you talking about?

When?

And what's the answer?

Brown v.

Bord, Roe v.

Wade.

Like, Maria.

Like, the things they're reacting to are.

profoundly popular.

So they have to, they can't say, well, look, yeah, we don't want to roll back.

We want to roll back Brown v.

Board.

But they do, right?

That's what their movement is rooted in.

Like, that is his animating principle, but they can't say it.

And one thing we haven't dug into

very much, but it's important to note, the initial originalists were

very tied to this idea of judicial restraint.

And that actually came with like...

some amount of principle.

And they believed that if there wasn't a clear conflict between a law and the Constitution, it should not be struck down.

As conservatives have gained power over the course of the subsequent 50 years, they have sort of quietly abandoned that, right?

Any perceived conflict

between the Constitution and laws that they don't like results in those laws getting struck down.

And you've really seen, although they still use the sort of rhetorical language that they used to about judicial restraint, they've functionally abandoned it entirely.

It's a very radical court right now, and has been for a while.

So, one of the things that where this always leads me, and Matt and I have had conversations about this before, too, is like

acknowledging that the conservative, like hermeneutic approach to the law is

basically bullshit, and they violate it whenever they want in order to achieve particular ends, namely the maintenance of particular hierarchies and

keeping people in power who are in power and keeping people under the boot who are already under the boot.

That being said,

what is the

other side?

Like

what is liberal jurisprudence or what is left jurisprudence?

What does that look like?

Can you articulate, is it possible to articulate a like normative or interpretive or

some combination of the two approach that would result in

the Supreme Court and the judiciary in general making the sorts of decisions we want them to make.

Trevor Burrus, Jr.: To quote the Big Lebowski,

at least originalism is an e-bus,

right?

Like,

it's at least the theory.

And I was struck too by, you know, when you mentioned the District of Columbia versus Heller, that John Paul Stevens' dissent kind of tried to out-originalism Scalia, right?

So

often, even the left or liberals, I don't know if you would consider Stevens in that category, but oftentimes it seems like we're, you know, almost arguing on their terrain.

I think that's right.

I think that we don't hear about the response or the alternative to originalism.

Like, what is a leftist interpretation of the law?

What are the leftist theories

about what the law is and

how it affects people?

And I think that in large part is

because of law schools and how much they've bought into

how much they've bought into originalism and just the just the sort of

the industry and the elitism that

flows from

these principles.

But, I mean, there are alternative theories, right?

I mentioned up top that like our kind of underlying philosophy when we're talking about cases is

legal realism, which just refers to the idea that people should

interpret the law while also considering

the status quo, public policy, how people's material realities are affected by legal outcomes.

And more specifically,

there was a movement founded by a professor Duncan Kennedy and others

in,

I guess, the 1960s called Critical Legal Studies.

And the Critical Legal studies movement kind of posits that the legal materials, like written law and case law, those aren't the only thing that determine the outcome of legal disputes.

Human beings do.

And human beings are subjective.

And as judges sitting on a case, they are sort of at best exercising their own personal ideas of fairness and policy preference onto that legal outcome.

You know, originalism kind of holds that like if judges would use historical materials correctly, then everything we need to know,

all the tools we need to like solve, quote unquote, a legal problem are obvious and objective.

Whereas in critical legal studies, it's sort of this understanding that like there isn't a black and white right or wrong answer that you can divine from history.

And there isn't a black and white right or wrong answer about what words in the Constitution mean, right?

Like it's a recognition that a lot of this stuff is vague because it was human beings designing it and writing it and drafting it, and it's human beings interpreting it.

And so law is politics, and legal decisions are a form of political decision.

We don't have an interpretive framework that is,

and we don't pretend to.

And that's, I think, one of the things that has left legal realism in the dust a little bit.

Right.

Because there is no sort of normative proposition.

If I could provide one, it would be very simple.

You can incorporate context into your analysis of the law.

I mean, it's like really as simple as that.

And

as sort of obvious as that sounds, that is something that is like in many corners rejected to at least some large degree.

And so I always try to think of like, what would be like a simple and appealing way to project what we are proposing here?

And I think that that is it.

But at the same time, I think that we're always sort of on the defensive because what we're really doing is positing a descriptive critique saying, you know, like you said earlier, originalism doesn't actually exist.

And we need to acknowledge that and move forward, right?

And that's the real proposition.

Where that leaves us obviously feels a little bit chaotic, but I think that in reality, that is where we are anyway.

Yeah.

I feel like this discussion is incomplete without talking a little bit about the dominant ideology in law schools.

Sure, please do.

Because this is something that we've sort of elided, which is that like originalism

is not like what you're taught for the most part in law school.

Conservative legal thinking is still kind of...

It's taught as a way to interpret the Constitution alongside several others.

If you're the asshole in class who's constantly like quoting Scalia,

you might get identified by a certain professor to get

into that track to go into the federal society and become a

conservative legal thinker.

But that still puts you in sort of like the minority in the sort of like hegemonic view of law school legal thinking.

Aaron Powell, absolutely.

The dominant ideology in law school is something called the legal process school of thought.

And that idea is that like, look, if you read read cases and you read statutes and you read the Constitution and you use basic rules of like logic and deduction and maybe a few interpretive rules that we'll write down and we'll call them canons of construction,

you can get answers and that's it.

And you don't need anything else.

And it's like algorithmic and the law will spit out answers and you don't need politics and you don't need personal value judgment.

And that's how it's taught.

The law is taught to students that way.

You read cases, you find the holding of the case, and then you are supposed to divine how that will

apply to other sets of facts and spit out the right answer.

And the thing about this is that it's predominantly liberals

who

espouse this idea, and it's sort of like this institutional idea

that

liberal outcomes

will sort of naturally flow from just good judging and good, our great constitution and good institutions.

So what you have is like the liberal side being like explicitly apolitical and disavowing politics,

which is a major problem.

Yeah, I think there's a very like March of History viewpoint here that has only sort of recently started to run up against reality, which is why I do think in law schools, you're like...

I'm just sort of eyeballing this, but it feels to me like you're going to start to see a little bit of a shift.

But, you know, there is, there is just sort of a sense in when I went to law school, which was a decade ago, that, you know, yeah, you know, there's, you know, you have these sort of formalistic frameworks.

Maybe they tend towards conservative outcomes in some regards, but like history will march on.

Legislation gets more progressive, right?

And everything sort of flows with it accordingly.

Obviously not true.

Obviously not true.

No.

I was going to say, what was I going to say?

You guys will learn to cut Michael off, by the way.

I'm kidding.

You can cut any of this, obviously.

The right wing,

you know, they see their positions in law schools as like the result of a hard-fought political victory, right?

They've spent decades organizing to make this happen, to get their positions that they had to like fight for tooth and nail.

Whereas there's like a sort of complacency for liberals.

It's like the vast majority of people on faculty are already liberals and they hire more liberals.

And, you know, you, you're in this legal process school of thought and you view the idea of politics, you know,

as being a part of this as distasteful.

Right.

And so you're not really like meeting them on like the field of political battle, right?

Like there's a political competition here, but there's only one team occupying the field.

They might only make up 10% of the faculty or 15%.

15%, but if they're the only ones playing the game,

they're going to win.

Yeah.

Well, that leads me to another question that sort of, I think, follows from the idea of what a left or liberal alternative might be to originalism and the conservative legal movement, which is,

and I alluded to this at the very start of our conversation, so maybe this will be a good way to start winding down.

But I think one of the real values your podcast provides is by, again, demystifying all this.

But one of the things you emphasize again and again is that kind of this apolitical view of the Supreme Court is perpetuated by legal commentators in the media, right?

The way the Supreme Court is covered, the way we tend to talk about the Supreme Court, the way we talk about these decisions reflects that dominant ideology that you're saying prevails in elite law schools.

So what would your...

I'm interested in what like a better coverage of the Supreme Court, what would that look like for you?

Obviously, it would look like something something like five to four, but you know.

Yeah, it would look like a column with my name at the top of it in the Washington Post.

Right, yes.

I totally endorse that.

I was going to say cuss words.

We need cuss words when we're talking about the Supreme Court.

The Washington Post, byline, the law boy.

Yeah.

Yeah, just Peter, one name, Peter, the Law Boy.

But yeah, but how would you,

you know, sort of like a message to our listeners, if you would, What would you say to people, just help them to understand the way we talk about the Supreme Court better?

One thing, one dynamic that I see, not just in the media, but in interpersonal conversation about the law between lawyers and non-lawyers, is a non-lawyer will react to the implications of a Supreme Court decision saying, you know, wow, that seems like it sucks for immigrants, workers,

LGBTQ people.

And then a legal commentator or a lawyer, whoever, steps in and says, actually, you're misunderstanding what this discussion is really about, right?

What it's really about is the interpretation of this law or whatever, right?

Right.

And it's like, no, you had it right the first time.

Like, the first guy was right.

And you see this dynamic in

legal media where

mainstream legal journalism either tacitly accepts or openly promotes like the ostensible legitimacy and objectivity of the court.

And there are many, many writers whose main MO is to sort of push back against creeping notions that the court is driven by ideology.

If you look at the case brought by Texas against the swing states that Biden won,

that was just thrown out last week,

the upshot of that case is that everyone familiar with the law knew that it was going to get thrown out because

Texas was trying to sue these states saying that, you know, challenging their own state laws.

And

the Constitution gives each state the right to run their own elections.

So the idea that another state could just sue sort of runs contrary to the constitutional scheme.

And that's very open and shut as far as these things go, especially because the conservatives on the court have like long been proponents of the idea that states can run their own elections.

That's like a big part of how they have enabled voter suppression.

But after this decision comes down, sort of predictably 9-0, just throwing the case out immediately, there were several articles about how it got tossed out essentially like

because the court is so principled, right?

And there was at least one that said, well, why did this case get thrown out?

Because these, because the court is conservative, right?

Conservatives like believe in these principles.

And it's like, what the fuck are you talking about?

Right.

As if, thank goodness they're conservative.

Right.

As if like liberals were going to go the other way with it.

And, you know, it's as if the court tossing out like these extremely frivolous cases is some considerable step forward for the project of seeking objectivity in the law.

And I think the bottom line when you're reading this sort of media coverage is to remember that these types of pieces are

fairly explicitly designed to push the discussion

to be one that takes place within these sort of legal, formalistic legal frameworks that they believe in, rather than one that is about those frameworks, right?

Rather than one that takes a step back and says, well, what is actually happening here?

How can it possibly be that you have this sharp division in the analysis of the law

that splits perfectly along partisan ideological lines a huge chunk of the time?

If in fact what the law is, is this

sort of algorithmic interpretation of facts and circumstances that get applied to the law and then the correct answer is spit out.

I think that a big part of what those legal journalists do is try to confine the discussion back to those frameworks.

Like, well, is this

about the

interpretation of the text?

Let's look at the text of the law or whatever.

Like, let me explain to you like a lawyer what this case was about.

You know, and you're really explaining to people who are directly impacted by the court what what a court was actually about.

But what what they're what those journalists are talking about is incredibly abstract and detached from reality.

And it's it seems like that like people's first instinct instinct that you sort of alluded to there

is more right than what they get kind of like disillusioned of by this legal journalism.

Like the idea, oh, well, there's a bunch of conservatives on the court who were appointed by conservative presidents and they share the conservative ideology of the people who appointed them.

And for the most part, they're just going to do what those people asked them or wanted them to do in the first place.

In certain circumstances, like this one, it's so stupid that it wouldn't serve their their interest

to try to do something else.

Like, ultimately, the long-term project is better served by, in this particular instance, being like, no, this is complete bullshit.

And we can win a little bit of credibility this way.

Like, whatever people's first instinct as sort of political beings in the world about what they're doing is more right than what they get mystified by when they start reading.

like

legalistic journalism about like, well, you know, if you think about originalism and textualism in this context.

There's almost like a,

when you're saying, well, what if you asked a lay person, like, what was that case about?

And just, you know, picking a case like Epic Systems v.

Lewis, which we covered too, and that's the case that held that you can't bring a class action, that class action waivers and arbitration agreements are allowed, right?

If you asked a lay person what that case was about, they would say, well,

I can't sue my employer anymore in a class action, right?

And

if you asked a lawyer what it was about, they'd be like, well, there's the Federal Arbitration Act.

And you have, you know, and here's like, and, you know, and like, which one of, which one of those answers is more correct, right?

It's obviously the first guy.

Yeah.

You know, which I

always try, when people ask me what legal realism is,

in shorthand, I always will say something like, you know, law is only real to the extent that it intersects with actual human beings' lives, right?

And everything else is abstraction that doesn't actually matter in and of itself.

And that's how I view the law.

That's how we try to approach our cases.

And I think that's what legal media consistently fucks up.

And, you know, I had in mind, too, every time one of these shitheads is appointed to the Supreme Court or nominated for the Supreme Court, we have people who are ostensibly Democrats, ostensibly liberals, write the op-ed saying, I will vouch for the fact that Amy Coney Barrett's actually a really fine person and legal mind.

Fucking Noah Feldman or Gorsuch or Kavanaugh or whomever, you know, and then in the case of Neil Cattau, you know, he's defending child slavery or, you know, slave labor

a few months later.

But that's, that's another aspect of this, just the people going to, people, people going to bat for the right-wingers.

Oh, you think he was defending child slavery, but it's really about like foreign torts and who can sue an American

torts.

Don't get mistaken about what that case is about.

Right.

When I live next to Joseph Goebbels, he cleaned my gutters twice a week out of the kindness of his.

There is a bizarre cottage industry.

A lot of it is driven

by practitioners who will find themselves before the Supreme Court.

Like Neil Katyall, who's only, who's recently famous for child slavery-adjacent reasons,

is now

previously on the, he's a big-time Supreme Court lawyer, former

Obama Solicitor General, who would write these pieces when Gorsuch and Kavanaugh got nominated.

He's like, this guy's actually pretty cool.

Don't worry.

And when you think about someone like him doing it, it makes total sense.

He's about to, he's like, they're going to get confirmed.

I'm going to appear in front of them.

I'm going to give them a big thumbs up and my shiny dumb smile.

And they're going to be like, there's Neil, my buddy.

You know,

it makes sense.

It makes sense that they would want to write something like that.

Why, like, you know, the fucking New York Times would want to publish it.

I have absolutely no idea.

This might be a sort of like just kicking a dead horse at this point, but like the thing that I started to think about originalism and textualism as we've been having this conversation is that the idea that it's a purely interpretive approach, uncontaminated by the real forces that you guys are committed to incorporating into the way you think about judicial decisions.

It's belied by the other half of our conversation, which is the very deliberate political strategy of building an institution like the Federal Society, which is allied with the conservative movement and which is trying to change the power relations within the academy, but also within kind of American politics in general.

Like, they know that they're not just engaged in this purely interpretive project.

And we know that because they're trying to take power within the institutions

that they're involved in.

Yeah, no, look,

the Federal Society's first document was like a pamphlet from their

first conference.

And it had a number of bullet points sort of like laying out what they envisioned like a this sort of network could be.

And one of them says, conservatives have long bemoaned the fact that clerkships to prominent conservative jurists have often gone to people with liberal views.

Similarly, it has been contended that far too many legal posts in governmental office have been held by liberals under Republican administrations.

Finally, it is generally acknowledged that there's an insufficient number of conservative law school faculty.

Their express purpose is to gain political power.

They want to be judges.

They want to be political appointees.

They want to staff agencies so that they can effect political change, right?

That's like their day one mission statement.

I still can't believe they got $100,000.

Like, we were,

Michael and Rhea and I were talking about this earlier, but like, how many people people did you know in college who like started some like left lefty group, right?

Imagine just getting 100 grand when you did it.

Yeah.

Like, like students for Palestine.

Oh, yeah, here's 100 grand from some Palestinian George Soros figure.

Yeah.

Yeah.

No, I once calculated the money I lost by moving from right to left.

It was substantial.

I bet.

I bet.

Well, no, okay.

That's, Matt, that is a great point about like the Federalist Society and, you know, these conservative legal big thinkers.

Like

they know what they're doing, right?

And it is, and it is just,

and it's explicitly

a political movement, right?

And over the past, you know, say 40 years or so, these political players have ascended, right, into,

they've made huge amounts of money.

They've

been appointed to, you know, like be one of what, the nine justices on the Supreme Court, like probably

in the top 20 most powerful people in the world.

You know what I mean?

And so

there's an extent to which like the industry that flows from this and the people who are served by

these ideologies, it's like self-generating.

Yeah.

Totally.

Yeah.

It's, you know, one of the founders of the Federal Society was a guy named Gene Meyer, Eugene Meyer.

And his father was Frank Meyer, who was the National Review books editor.

You know, like arm in arm with Bill Buckley, defending segregation in the South in the, you know, in the 50s and 60s.

So, so, like, it, it began

that way.

Like, you know, there's a reason they got this foundation money because Gene Meyer was kind of conservative royalty.

Right.

Yes.

Yeah.

I mean, there's an extent to which almost nothing on the right that sort of arose in the 70s and 80s was entirely organic, right?

It was just, it was sort of this

time when money and ideas were flowing on the right.

And if you had a good idea, you got some good money.

And that was sort of how it went.

I was going to say that goes back to the Powell memo, Lewis Powell, right?

Where he wrote a memo to right-wing business leaders saying, you better start ponying up money because

if we deploy it in this way or that way, we can build the institutions to kind of take back the country.

But it was, you know, that memo, the Powell memo, was just kind of a blueprint for organizations like the Federal Society.

There's an interesting thing that kind of flows from this, which is that like one right-wing school of thought and the law is like called Law and Economics, which is like very prominent, especially in the University of Chicago, but is like now sort of everywhere.

Right.

But that sort of like that started earlier than the 70s, but it really took off in the 70s.

And one of the reasons it became very prominent is precisely because there was money flowing, but there wasn't a lot of institutions in which to flow yet, right?

Like think tanks didn't really exist then.

These right-wing organizations like either didn't exist or were very young.

And so it was like one of the only games in town.

So it was a few guys who were like really pushing law and economics, and they soaked up a ton of corporate money to make fellowships and to make, to create little

seminars for law professors or judges to come learn economics and how to do an economic analysis of law.

Yeah, which by the way,

I did take law and economics, and the main thing I took away from it was like, if you're a professor that is neither good enough at law or economics to teach either of them individually, don't worry, you can teach law and economics.

That's right.

It does strike me, though, it's okay that we didn't talk about law and economics as much because we've done an episode on the Chicago school where we did get into it a little bit more with Marshall Steinbaum.

But it does strike me that it's interesting that law and economics advises jurists to think about the efficiency consequences of legal decision-making.

Whatever you do, you should be thinking about what's the effect on markets, which is like a thing that extends

the

jurisprudential

thinking beyond texts and original

and original ideas.

And it's sort of like, it's like, okay, so there's been made space in legal

academia for thinking about the effects of judicial and legislative decision-making on markets, but not on people.

People.

That's right.

Not on distribution, not on political economy.

Yeah, that's exactly right.

I mean, yeah, there's obviously some tension.

There's actually

a ton of tension between

things like textualism and a lot of other sort of doctrines that have emerged on on the right.

But the sort of, I think I mentioned this earlier, but the sort of overlap is that law and economics still sort of presents it as like law is something to be solved, right?

That you can,

and there was a time in like the 80s and 90s where any conservative judge had like one or two paragraphs in their opinion about how this would affect the fucking markets.

And

you could just see it like a clerk would write it, and it felt completely detached from the rest of the opinion.

And you were like, what was that?

And that was like the influence of law and economics um but yeah i think that's right that there is

um i mean you see the same trend now when in for example labor cases the conservative judges will often like openly talk about the interests of management as if they are like of particular concern of particular concern um without really addressing the obvious the obvious counterweight well we might be ready we might be ready to wrap it up yeah oh oh wait oh wait i was gonna i wanted to tell one story Go for it.

And this is important because we were talking about the rise of the Federalist Society, and I have one story that can sort of illustrate how the left, liberals and the left, failed to create a counterweight.

I was reading a book review of a book on the Federalist Society.

And

I'm reading their book review, and the person reviewing the book is like, hey, this is a good book on the Federalist Society, but what it doesn't explain is how they got to be so powerful.

And I wish they would have described that because I am the president of the American Constitution Society, which is like supposed to be

the liberal counterweight to the Federalist Society.

And here you had the fucking president of it being like, I was looking for answers in this book

in 2014, but I could not find any.

So

we're still going to be way behind the ball here.

Sorry, everyone.

That is a good place to end for us because we often do have these conversations on the podcast where we describe the intricacy of the right-wing pipeline and how they've built this

whole ecosystem to normalize their ideas and incorporate those with grassroots movements and blah, blah, blah.

And then at the end of it, we go in like, and what is the left doing?

Like, how do we do

that?

Can we do that?

Yeah.

Can we do that too?

Yeah.

Right.

There's like a legitimate, we have a legitimate claim to being like the most prominent proponents of legal realism in the world right now.

Right.

That is not a statement about the popularity of our podcast.

You guys, it's been really lovely doing this with you, but that is still so fucking pathetic.

Right.

You're all so smart, but nonetheless.

Fuck.

Yeah.

Yeah.

I I'm not putting it on my resume.

Like that's embarrassing.

Have any of you read any of Bork's post-Borking books?

Well, like Slouching Towards Gamora or whatever?

I have not.

When I was When I was a young conservative, I read Slouching Towards Gamora.

I meant to mention this earlier, but it begins with juxtaposing the lyrics from a Peri Cuomo love song.

Peri Cuomo love song with a rap song.

Oh my God.

And it's really shockingly horrible.

And the only line from that book I remember is that he described rap as nothing more than inarticulate rage.

God.

Oh God.

I really read that book.

I mean, we really dodged a bullet with that one.

Yeah, we did.

Yeah.

That That guy's an all-time piece of shit.

Yeah, really is.

But think about how...

Wait, he's alive, right?

Bork's alive.

No, he died in 2012.

Yeah.

What?

Yeah.

I could have sworn he was alive.

Oh, I'm fucking it up.

Who am I confusing him with?

Oh, my God.

And he made me feel like it was okay to be weird.

Well, I was just feeling happy that he would have seen Biden elected, but now I don't even get that.

Alas, no.

Well, should we wrap it up?

Thank you, everyone.

This was great.

This is a lot of fun.

Yeah, it was fun.

Thank you.

The crossover event of the decade.

That's right.

That's right.

Engineered by podcast guru Leon Napoleon.

Yeah, that's right.

Yeah, thanks, Dan.

I was hoping that he would come in and do some ads for like a machine that puts you to sleep and hydrates you at the same time.

That's definitely in his wheelhouse.

Yeah, that is.

Yeah, I love doing your podcast when you say, let's go to an ad, and then it's Leon saying, do you hate drinking water?

Well, thank you all so much for coming on, Rhiannon, Peter, Michael.

This has been so fun.

Thank you.

Thank you so much.

We appreciate it.

Yeah, thank you very much.

All right.

Bye-bye.

I was raised a demon with a moonlight mind.

Oh, I cried in the gutter in the sunlight morning.

In a fiery home,

neath the pale dead sun

in the sea of tyrants all

the pole.