August 10, 2023 • 47 mins
Attorney, writer and political commentator Elie Mystal joins Laverne to talk about the radically conservative United States Supreme Court, the constitutional amendments through history and his eye-opening book, Allow Me To Retort: A Black Guy’s Guide to the Constitution. He explains how the judges’ own personal tastes make the largest impact on decisions and how the right’s unification has reaped a pipeline of conservative judges the left cannot replicate. They also talk about options like stacking the court and term limits to make change, but when it comes down to it, guess what, it’s up to us.
Elie is a frequent media contributor and the justice correspondent at The Nation.
Please rate, review, subscribe and share The Laverne Cox Show with everyone you know. You can find Laverne on Instagram, TikTok, and Twitter @LaverneCox and on Facebook at @LaverneCoxForReal.
As always, stay in the love.
***
The U.S. Constitution Amendments mentioned:
1st Amendment = freedom of religion, speech, the press, assembly, and the right to petition the Government for a redress of grievances
2nd Amendment = the right to bear arms
4th Amendment = the right to be protected against unreasonable search and seizure
13th Amendment (1865) = abolition of slavery
14th Amendment (1868) = US citizenship rights and equal protection of the laws
15th Amendment (1870) = Black men can vote
Links of Interest:
Elie Mystal on The Mehdi Hassan Show (MSNBC via YouTube, 6/29/23)
Here’s What Happened When Affirmative Action Ended in California Public Colleges (NPR, 6/30/23)
The Current Supreme Court Justices
News and analysis of the US Supreme Court
Reconstruction Amendments (Video, PBS)
Progressive Mobilization:
American Constitution Society (ACS)
Cases mentioned:
Brown v. Board of Education of Topeka
US vs. Rahimi (opinion)
Bostock v. Clayton County, Georgia
Previous Episodes Mentioned:
Residential Segregation & Structural Racism w/ Richard Rothstein
CREDITS:
Executive Producers: Sandie Bailey, Alex Alcheh, Lauren Hohman, Tyler Klang & Gabrielle Collins
Producer & Editor: Brooke Peterson-Bell
Editing Support: Nikolas Harter
Associate Producer: Akiya McKnight
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:01):
Welcome to The Laverne Cox Show, a production of Shondaland
Audio in partnership with iHeartRadio.
Speaker 2 (00:10):
It's not that the Conservatives are winning, it's that they've won,
and now it's time for the new forces to get
back into the game. Right. We're not in an empire
strikes back situation. We're in an end of revenge of
the sifth situation where the young things have been slaughtered,
(00:31):
the empire is on top, and right now we need
a new hope.
Speaker 3 (00:34):
Right.
Speaker 1 (00:46):
Hello, everyone, and welcome to The Laverne Cox Show. I'm
Laverne Cox. Growing up in Mobile, Alabama with a mother
who grew up in the segregated South, the context of
racial apartheid. I was very aware abround versusport of Education,
(01:08):
this Supreme Court decision that desegregated schools, and so I
grew up with this thought of the Supreme Court as
this place, this space that could be potentially liberatory for
my people. And as i've sort of grown up and
(01:28):
taken on advocacy work as an openly trans woman of color,
the law and the court continue to be spaces of
fascination for me, spaces the possibility and spaces of potential
oppression and the withholding of rights. And now more than ever,
(01:51):
Americans are waking up to how important what happens at
the Supreme Court is in how we live our life
lives day today. So I am so excited about speaking
to our guest today because I've watched him on television
(02:14):
four years and he's made me laugh, and he's made
me think differently about the law, about the Supreme Court,
and he just has the best afro ever. And I'm
just really excited to talk to him today about his
book and the state of the law and the Supreme Court.
(02:38):
His name is Ellie Mistaal. Ellie Mastaal is a columnist
and justice correspondent for The Nation magazine. He's the author
of the New York Times bestseller Allow Me to Retort,
A Black Guy's Guide to the Constitution. He has a
frequent guest on MSNBC and SiriusXM and a board member
of Demand Justice, a liberal judicial advocacy group. Here's a
(03:01):
graduate of Harvard College and Harvard Law School and the
former executive editor of the legal website Above the Law.
Please enjoy my conversation with Ellie Pastal. My conversation with
(03:24):
Ellie Mistal was recorded on February twenty seventh, twenty twenty three.
Hello Ellie Mistal, Welcome to the podcast. How are you
feeling today?
Speaker 2 (03:33):
I am good? How are you?
Speaker 1 (03:35):
I'm great. I'm so excited about this. So first of all,
I want to say that my brother and I are
obsessed with you whenever you are on television or on
a podcast or on anything, and we like share it
and discuss. So there's so much to talk about. I
want to talk about your book. Allow me to retort
a Black Guy's Guide to the Constitution, And what's so
deep about the book for me is and wonderful about
(03:57):
the book is taking a look at the founding fall
there's that you refer to as colonizers, enslavers, and rapist.
Thank you. The Constitution was not written with us in
mind as black people, and not with women as full
citizens in mind. And you often say white men, straight
white men. Arguably, I actually feel like it's about landowners too.
(04:19):
Do you feel like there's that piece too with straight
white male landowners? Who does straight white men? That's a
question in the I mean, god, this the book is
so dense, but I think the biggest piece is like
the biggest question. I think you said the kryptonite of
conservatives in relationship to the Constitution, it's the fourteenth Amendment
and loving be Virginia. And so how do you see
(04:41):
your vision of the Constitution now that you lay out
in the book in relationship with some of the more
pressing questions before the Supreme Court.
Speaker 2 (04:49):
Yeah, lots of questions. I want to say if I
can can kind of eat an elephant in sections right.
First of all, I slightly disagree with your premise, right,
because I'm not saying that the Constitution was written without
us in mind. Oh they had us in mind. Indeed, right,
it was written to oppress and enslave us. The Constitutions,
as originally promulgated, was an enslaver's document design directly to
(05:15):
propagate the unfair, evil and unequal system of slavery and
oppression in the society. And you see it all throughout
the document. They don't mention the word slave, but you
see slavery all throughout the document, and you see the
upholding of slavery and white supremacy all throughout the document,
even in the parts that haven't been changed. Right, you
(05:36):
cannot explain the structure of the United States Senate, where
land gets more voting rights than people. You cannot explain
why they thought that was a good idea without slavery
and the need for minority slave states to be able
to continue with slavery over the objection potentially in the
(05:57):
future of a majoritarian of the the country.
Speaker 1 (06:00):
The way you break down the Second Amendment is crucial
in that piece.
Speaker 2 (06:04):
Yet, right, you can't explain the Second Amendment without their
need to have not just numerical superiority, but military superiority
over the slaves. Right, you can't explain the modern police
without understanding that they can literally be traced to slave
patrols and the need for white Southerners to recapture their property.
(06:27):
And that is how I will segue into kind of
the second party. Your question, do I make a huge
distinction between the white, male, bourgeois, wealthy leaders of the
American Revolution and authors of the Constitution voices their poor
white cousins, And no, I don't, not really, because while
I agree that being poor and white in America has
(06:49):
never been a great thing, it's always been a better
thing than being black. It's always been a better thing
than being a woman. Based on our constitutional.
Speaker 1 (07:00):
But isn't that a way isn't that a part of
the divide and conquer structure though of the United States,
to pit poor white folks against particularly black people. I'm
white and poor, but at least I'm not black, right Like,
isn't that a divide and conqueror strategy around class?
Speaker 2 (07:16):
Except by what it call it? Divide? Okay, it's a
unify and conquer right. Yes, I obviously agree that black
people have always been put up as the thing that
poor whites, poor mediocre whites, could look down on, and
that ability to look down on somebody else makes those poor,
mediocre whites feel better about their poverty and mediocrity. It's
(07:36):
easy to feel good about yourself if you're not a slave,
right And that's not even a uniquely American. The Romans
had this right like, where it was important to have
an underclass to make the impoverished middle class feel a
little bit better about themselves. So it's not exactly a
divide and conquer strategy. It is a let's remember we're
all white, and that's why it's okay if I have
(07:59):
all this and you have so little, because at least
you hate that. But as a legal practice, as well.
My dad has had a lie that I used to love. Right,
if you hate me because I'm stupid, that's okay. Maybe
one day I will get myself educated. If you hate
me because I'm poor, that's okay. Maybe one day I
(08:21):
will be rich. But if you hate me because I'm black,
you can go f yourself because all I got to
do is stay black and die. When you put together
a structure that values rich people more than poor people,
that is problematic on many levels. But there are things
poor people can do to become rich one day.
Speaker 1 (08:44):
And theory one would argue in practice though, that economic
mobility is like harder and harder to achieve with the
existing system. We haven't had a raise in the minimum wage.
Corporate power, the decimation of unions wage does not keep
me up with product. There could be an argument in
today's da and age, if working class people of all
(09:05):
races could come together then and rise up against corporate
power and oligarchs, that social mobility could be more possible now,
and that race becomes a way to continue to buy
working class people certainly differently than it did. You know,
within a function during slavery and during Jim Crow, would
you disagree with that.
Speaker 2 (09:27):
True that upward economic mobility has always been a bit
of a myth in this country. It's always been less
good than the people at the top will sell it to.
And so I agree that social mobility, upward economic mobility
is difficult in this country, and that that difficulty then
leads to a whole suite of problems. But the wealthiest
(09:51):
black man in this world can get stopped for driving
while black. You can't buy yourself into fair and equal
treatment from the police in this country, no matter how
well you do on the social upward mobility allowed by
this country. Every wealthy black person living in a predominantly
(10:15):
white neighborhood knows that, should know that, or God forbid,
will learn that at some point. So the idea that
the problems, if you will, with our social structure, our
constitutional structure, our legal structure, our economic structure can all
be distilled to class is just not true experience.
Speaker 1 (10:38):
No, no, no, no, no. I would never reduce it to class.
It would mean to be intersectional.
Speaker 2 (10:41):
Right.
Speaker 1 (10:42):
I'm not a class reductionist and I'm not suggesting that.
Speaker 2 (10:45):
And the other thing I would say here is not
only do we have white supremacist legal structures embedded into
our systems, both at the constitutional level and the statutory level.
That's only part of the coin, right, The other part
of the coin that we have patriarchal structures embedded into
those documents as well. Is it worse being black or
(11:06):
a woman in the society? Hard to say, frankly, if
you write, because the gender bias in our legal structures
is so strong that not only are we sitting here
talking after the Supreme Court, over the objection of the
American people, revoked the bodily autonomy of women.
Speaker 1 (11:26):
And other people who can get pregnant who don't identify
as women.
Speaker 2 (11:29):
As women and pregnant people, what we also see is
numerous laws, structures, norms that disadvantage women and people who
identify as such. Right as writing recently about this awful
case coming out of the Fifth Circuit called Rahimi, where
(11:52):
there's a statute that says that if you have been
if you have a restraining order taken out against you
for domestic violence, that you lose your gun lights. And
this Raheemi case revoked that law, called that law an
unconstitutional impingement on the Second Amendment, thereby straight up putting
(12:13):
guns back into the hands of domestic abusers. And anybody
who knows anything about this topic knows that most women
are killed by intimate partners with a gun. Most trans
people are killed, not brutalized, not beaten, killed by intimate
partners who have a gun. Having a gun is the
(12:34):
most dangerous thing to non cispresenting males in the society
by far. And yet the Fifth Circuit Court of Appeals
overturned a federal law preventing domestic abusers from having weapons. So, like,
(12:55):
when I'm talking about the structure of our laws is
to uphold white supremacy, it is every bit as much
to uphold the patriarchy, however you want to define that.
Speaker 1 (13:07):
And since normativity and heteronormativity as well, absolutely.
Speaker 2 (13:10):
And these are structural problems that we're not close to
dealing with.
Speaker 1 (13:14):
Yeah, you suggest you know that in your book too,
that after apartheid was overturned in South Africa, they rewrote
the constitution there and that that didn't happen here after
our civil war, And what a concept to you know,
rewrite the entire thing.
Speaker 2 (13:29):
I tend to not be a constitutional conventionalist because I
think that with our current and this is where I
do become a bit of a classist. I think our
current political structure, with the overrepresentation of moneyed interest, would
result in a new constitution having just as many problems
as the current one. So I don't actually think that
(13:51):
in our current post citizens United world, I actually don't
think a new constitution conventional would help all that much.
Speaker 1 (13:56):
Yeah.
Speaker 2 (13:56):
But my answer then is the fourth teenth Amendment, Because
the fourteenth Amendment is the first and only place in
the Constitution where it says all men are created equal,
and then we can interpret that to be all people
are created equal. First time anybody said that, and that's
the solution to me. Right. So from my perspective, every
(14:19):
single law, statute, ordinance out care we're talking about a
zoning provision in the rural South or a banking provision
in Manhattan, every single thing must pass the acid test
that is the fourteenth Amendment. Are we treating people equally
and are people entitled to substantive fairness? Which is my
(14:44):
kind of non lawyer explanation for the concept of substantive
due process. Are people being treated equally and fairly? If so,
then we can talk about this law about whether or
not it's good or bad for society, and we can
if not, goodbye law, goodbye ordinance. Because if you can
cannot pass the acid tests of the fourteenth Amendment, you
are illegitimate on its space. Because the Fourteenth Amendment is
(15:07):
the only thing that says the white supremacist, white patriarchical
structure of the original Constitution is null and void. It's
the fourteenth Amendment that does that.
Speaker 1 (15:22):
This is a good time to take a little break.
We'll be right back, though, Let's get back to our chat.
In your book, you contend that since then, conservative leaning
(15:44):
people have been doing everything they can to undo the
Fourteenth Amendment. There are reconstruction amendments as their call, and
specifically the fourteenth Amendment. And that is deep when you
think about Thomas's concurrent decision went with the Dobs case
last year, where he said, we need to now any
substance of due process the way we need to revisit
except loving versus virtain. You're interestingly enough, oh, clarience Thomas.
(16:10):
So it's interesting that like that's where he wanted to go.
He wanted to go directly to the Fourteenth Amendmen looking
at Lawrence v. Texas, looking at marriage equality, looking at
contraception very much supports where you're talking about around fourteen Mienden,
and I'm trying to, you know, do away with that
and sort of roll the clock.
Speaker 2 (16:28):
Back, because the twentieth century relies on the fourteenth Amendment,
which means the twenty first century relies on the fourteenth Amendment,
which means everything that we think of as modern relies
on the fourteenth Amendment. And if you pierce it, if
you take it away, then you can truly roll back
the country at a legal level to circa eighteen fifteen,
(16:52):
which by the way, is the year that the Leado
went to directly in his majority opinion in Dobs right, Like,
that's that's how far back we go once we pierce
the fourteenth Amendment. And that's why the Conservatives are so
interested in doing that, because if you go back to
eighteen fifty, who was on top, yea white land holding
(17:14):
males were on top. If you go back to eighteen fifty,
and it's the fourteenth Amendment and the progress of the
twentieth and twenty first century that took their toys and
shared them more equitably around the country, and they've never
gotten over it. They have to roll back a robust
interpretation of the fourteenth Amendment. You know, when I was
(17:36):
logging on, I was looking at our notes for the
show Laverne, and you said, you know, the tragedy of
the Supreme Court, And it occurred to me that, like,
these people do not think that what they're doing is
a tragedy. These people have been working at this tirelessly
for fifty years. This is the capstone. This was the
(17:56):
whole game, and they're getting it. It's not that the
Conservatives are winning, it's that they've won. Yeah, and now
it's time for the new forces to get back into
the game. Right We're not in an empire strikes back situation.
We're in an end of Revenge of the Sith situation
(18:18):
where the younglings have been slaughtered, the empire is on top,
and right now we need a new hope, right because
we're not in the game right now.
Speaker 1 (18:26):
That's so beautifully put Brooke, my producer before this conversation,
is like, what this is? Like, what in the world
do we do? It seems so utterly hopeless right now.
But before we get into a new hope, you mentioned
briefly in the fourteenth Amendment. You're talking about banking regulations.
I think it was the slaughter house case in the
eighteen hundreds that could have looked at monopolies and could
(18:51):
have looked at the fourteenth Amendment as a way to
kind of regulate monopolies. Am I interpreting that correctly? Because
I was just thinking about like corp rule now and
how it's just kind of like taken over everything. And
there seems to be an argument that you make in
your book that there could have been away with the
fourteenth Amendment to tell people about that, and what is
it the flutterhouse cases or something, Yes.
Speaker 2 (19:12):
The slaughterhouse cases are. It's one of my favorite case.
So the slaughter house cases is actually just one case
because people in the eighteen hundreds name things weird, but
it had to do with slaughterhouses. Right. It turns out that,
you know, there was a group of butchers in Louisiana.
The state of Louisiana granted a monopoly to one butcher.
(19:33):
They said it was health and safety concerns. Really it
was just the old you scratch my back out, scratch
yours this one.
Speaker 1 (19:39):
Butcher before anti trust laws too, Before.
Speaker 2 (19:41):
Anti trust laws, this butcher was granted a monopoly to
basically run all the butcher shops slaughter houses in New
Orleans south of like a line, right, So if you
wanted to be a butcher in New Orleans, you had
to work for the one butcher that had the whole monopoly.
And people sued the state under the thirteenth Amendment. White
(20:04):
people sued the state under the thirteenth Amendment. This was
the first lawsuit under the thirteenth Amendment.
Speaker 3 (20:13):
What year with this? This is eighteen eighty three or
so eighteen sixty somewhere, and I think it's eighteen sixty eight,
but like, don't quote me on it. And the White
argument was that by granting this monopoly to this one butcher,
they functionally enslaved all of the other butchers into economic
(20:33):
slavery because they had to work for this one butcher.
Speaker 1 (20:37):
That phrase economic slavery is so interesting thinking about that
right now in this current United States. But go on,
I just want to like put a pin in that.
Speaker 2 (20:46):
And there were people who wrote the thirteenth Amendment, who
were part of ratifying the Thirteenthmendment. So according to the originalists,
you know, these were some of the original authors of
the thing who were like, yeah, that's a good lawsuit
that totally works. But the Supreme Court set no. Court
I think it was unanimous, it might have been seven
to one, said that the Thirteenth Amendment only applied to
and I'm quoting them, not me, the slave race. I
(21:09):
think he was talking about me and me, and thus
white people cannot use it, and certainly white people cannot
use it for their economic grievances. Right so, right there
at the beginning of the Thirteenth Amendment, jurisperience. You know,
at the beginning of reconstruction, we have a theory that
(21:30):
would have made the Thirteenth Amendment so much more robust,
so much more interesting, so much more valuable to the
kind of economic oppression that we've now just grown accustomed to.
But it's the Supreme Court that said no, not the authors,
not the legislators, not the people who ratified the thing.
But the Supreme Court has said no, no, no, this
(21:50):
is only about slavery.
Speaker 1 (21:51):
What do you think that was about? Do you think
that was about monopolies? I mean, why wouldn't they want
to extend? What do you think that was about?
Speaker 2 (21:58):
Because conservatives have always been against the Reconstruction amendments. They've
always wanted to limit the scope and effectiveness of the
reconstruction amendments. Right, So thirteenth Amendment boom right out the gate,
can only apply to the slave race. Fourteenth Amendment. Fourteenth
Amendment did nothing to stop segregation, according to the conservatives
(22:20):
who were trying to hobble those amendments. And then obviously
the fifteenth Amendment, the fifteenth Amendment, the one that grants
voting rights to people regardless of the place. Conservatives pretended
that even exist. Conservatives for one hundred years pretended that
that wasn't even a thing. Right. So, again, the conservative
project has always been then and now to limit the
(22:43):
effectiveness of the rules that could make this country more fair.
Speaker 1 (22:50):
Equal and just that's so deep.
Speaker 2 (22:53):
That's how they always have rolled. We need better tools
and a better commitment to fighting what they've always done. Yeah,
and this is where liberals often fail.
Speaker 1 (23:04):
I want to get to some of that later. But
you make a point in your book that we talked
about protected classes. What is it? Reverse racism is not
a thing why people aren't a protected class? But gay
and lesbi and people are not a protected class. But
then I think about the Bostock case that was decided
in twenty twenty. I was the first time I went
to the Supreme Court for the oral arguments in that case.
That case decided that, based on the Civil Rights Act
(23:26):
of nineteen sixty four, that it is illegal to fire
someone from their job for being gay, lesbian, or trans.
And the ACLU who brought the case used a textualist argument.
They said, by the plain language of the Civil Rights
Act of nineteen sixty four that this is discrimination based
on sex, and there was some precedent with the Price Waterhouse,
(23:48):
the Waterhouse versus Something case. I always forget sex stereotypes
historically in terms of precedent, were used as a violation
of sex discrimination. So there's a slew of anti trans
legislation that's being introduced, impacts and stay legislatures all over
the country right now that would seem to be a
violation because we have a Supreme Court decision saying that
(24:10):
like sex discrimination includes gay, lesbian, and trans people. What
are your thoughts about like the law. I mean, obviously
you also make the case in your book that they
make the law whatever they wanted to make it. But
what would you say to where we are now with
anti LGBTQ laws in relationship to both stoc.
Speaker 2 (24:30):
Yeah. So there are a couple of different ways of
analyzing boss Stock, and one is your wife what you
just said as a I would say standard legal way
of understanding what happened in boss Stock, that there is
an argument that according to nineteen sixty four Civil Rights Act,
you can't fire people because of sex, that sexual presentation
(24:52):
is an offshoot of sex, and so you must let
that go. The other way of analyzing boss Stock is
that this is where you got Neil Gorsich, because Neil
Gorsich likes to be known as a textualists and likes
to be known as an originalist, and those two things
are separate. Textualism is basically a theory of interpretation that
(25:14):
I can get behind, where it says you kind of
read the text closely and try to understand what the
words mean. Originalism comes in when textualism fails, right when
the words are too ambiguous. Now you have to find
some way of what those words intended to mean. And
then you go and then the originals say, and then
we have to look at Thomas Jefferson what he wrote
(25:34):
to James Madison. But I have Myuiji Bordon Thomas says
he doesn't like black people know, more like that's what
the originalists go to, and I say, miss me with
all that. But Gorsicic, who believes in both, was convinced
in Boss Doc of this textualist argument. That's why the
ACLU made the argument because they were going directly for Gorsach.
(25:58):
What's different between now and that Ruth Bader ginsburg'stide. Yeah,
bostuck a six to three with Ginsburg in the majority.
Right now, you've got Amy Cony Barrett standing in for Ginsburg.
Does she agree with that analysis? Does she agree with
the fundamental rights and equality of the LGBTQ community. I
(26:21):
don't think so. Right So, now, even if you hold
gorsic now, you gotta hold one of the others. You
gotta hold Roberts, you gotta hold Kavanaugh, And these are
difficult people to hold through all of the other outcrops
of the LGBTQ rights fight as it is now to
(26:43):
say nothing in the fact that this was a one
off from Gorsach. Gorsiches know Anthony Kennedy when it comes
to LGBTQ rights, because remember, Anthony Kennedy got there through
his hyper understanding of the First Amendment. One of the
things I like to say is that none of these
Supreme Court justices are moderate. They're all extremists in their
own way. Anthony Kennedy's extremism happened to be around the
(27:06):
First Amendment, which happened to be helpful for a lot
of LGBTQ issues. Corsiag's extremism is not that way. His
extremism is with textualism and originalism. And so why you
can get them on one issue, you might not hold
them on the other issue. But here's the key thing
in terms of how I think about this. Notice how
I'm talking about this case very differently than most legal
(27:27):
scholars would talk about. In this case, I'm talking about
the personalities. I'm talking about the motivations of the people
who decide, because it is their personalities, their motivations, their
corps that actually determine what laws we have or don't
have in this country, way more than any legal hoity
(27:48):
toity scholarly argument that you can make, because these people
don't care about your arguments. This Supreme Court is so
extremist and so pompous. They I think so highly of themselves,
and they think so highly of their ability to reshape
society in the ways that they want. That they've made extreme,
(28:10):
wild decisions, completely reshaping our world. They care about their
own ideological positions and keeping those positions to the best
of their ability, not just in the instant case before them,
but for future cases. Right, Gorsic loves pointing out Bostoc
because he says, hey, I'm not a horrible bigot, I'm
(28:31):
just a textualist. Right, Bosstoc them becomes part of Gorsic
just beer to give him credibility when he does all
these other horrible textualist things like revoking the right to choose. Right, So,
when I think about the future of anybody's rights, I
think about the personalities of the justices in play and
what we know about their ideologies, And when I look
(28:53):
at that, it is a rough road ahead, not just
for LGBTWOQ rights generally, which it is, but for trans
rights specifically, because personality and ideologically, these conservatives are all
about creating a safe zones for each state to be
bigoted in whatever way that state wants.
Speaker 1 (29:16):
And there's also religious fundamentalism. And what was really key
to me when I during the oral arguments is that
the issue of bathrooms came up, and the attorneys arguing
for the slu and for Amy Stevens was like, well,
this is not about bathrooms. This is just about whether
you can be fired or not. So they were very
narrow in their arguments, and this was a very narrow decision.
(29:40):
Now feels like a great time for a short break. Alright,
let's get back to it. There's another case before the
Supreme Court this session. I think it's three or three
Creative versus three or three creative.
Speaker 2 (30:02):
Yeah, and that's goddamn case.
Speaker 1 (30:04):
I know. Right. You make an interesting point in your
book about the cake shop because they've made the argument
based on religious freedom, and you said it actually would
have been more effective if they used it around the
First Amendment. And that's actually what's happening in three or
three created. Do you just have any thoughts on that?
I was, Did they read your book?
Speaker 2 (30:23):
Okay, so let's start here. The common argument that allows
for bigotry is that my God demands that I'm bigging
in today. And for some reason, the religious crystal fascists
on the Supreme Court are just like, that's a good argument.
It's a terrible argument. The religious argument should never be
the argument that allows a person in the public sphere,
(30:45):
in the public space to be bigoted against other people.
That's the worst argument. The better argument is this First
Amendment argument. Right, we all understand that part of what
the First Amendment is it just that it allows you
to say whatever you want within reason. It allows you
to not say whatever you want without government punishment. Right,
(31:08):
you can't make me a journalist write a nice article
about Donald Trump, don't do it. You have to goolog
my ass before that happens. Right, And we all understand
that I have that right to not do it under
the First Amendment. And so when it comes to the
bigotry that anti LGBTQ people want to enforce on the world,
(31:31):
a better argument for them is, well, you can't make
me say good luck gay people, right, because that would
be that's a violation of my First Amendment rights. Right.
Speaker 1 (31:41):
Then, Shapiro would say, you can't make me use the
correct pronouns of someone, right, can't.
Speaker 2 (31:46):
Make me use a pronoun And if you're writing your
own blog or whatever Shapiro does for a living, it's fine.
There is a sphere in which that is a good argument.
That argument, to me, loses its allure once you once
again get into the public space. And that is what
(32:07):
three h three creative is. It's a case about a
woman who wants to doesn't actually have one yet wants
to run a marriage website, an invitation website.
Speaker 1 (32:19):
Where she creates invitation.
Speaker 2 (32:21):
She wants to say that she will not serve people
who are getting married to people of the same sex,
which is a weird kink to have in your life.
I don't want kingshame anybody. But if you're this person,
I just need to have a business and no gay people.
You can't cut like. I don't know what makes you
want to do that, but okay, fine. The problem is
(32:41):
that she wants to have this business in public, and
in a free and fair society, people have the right
to access services that are generally available to the public.
And that's where your free speech argument doesn't really work.
I can't or shouldn't be able to have a business
(33:01):
where I say I don't want to serve white people.
I might not like to serve white people, I might
not want to, and that might not be my preference.
But if a white man comes in with American money,
if I'm a mechanic, a white man comes in with
his no yacht. I guess that's what they have, right.
Speaker 1 (33:17):
That's not intersectional, Elie. They're not all rich people, aren't.
My God.
Speaker 2 (33:24):
Comes in with like hard American currency. I can't say, huh,
I don't serve white people. I don't lack your con
am My established can't say that that's racist and illegal
and violates various anti discrimination laws. And so this is
what this one wants to do. She wants to be
in the public sphere and have this business.
Speaker 1 (33:43):
And it looks like she might win based on the
oral arguments, so that she might win, of course.
Speaker 2 (33:46):
Because this Supreme Court is six to three with conservative fascists.
But I just want to point out there are other
businesses or other pursuits you can have, or I would
support that kind of First Amendment argument. Right. If you're
a sculptor, you want to say I don't sculpt Republicans,
I'm like calling bad self. You can't make me sculpt
(34:07):
no Republican. I wouldn't, right. And if you want to say, well,
I don't sculpt no Democrats, I'm like, great fun your sculptor.
It's artistic. I understand that running a marriage registry is
not artistic in that way. Right, running a cake shop
is not artistic in that way. Don't go, don't tell
me about.
Speaker 1 (34:25):
That's what the planet is argued that in the alliance
defending freedom like this, you know, gives them the language
to argue that. And we're running out of time, and
so as we run out of time, I want to
talk about the new hope. What is the new hope?
I heard you talk about expanding the courts. What in
the world can we do with the mess that is
our legal system right now, our political system right now?
Speaker 2 (34:45):
Number one out of the gate. I'm for expanding the courts,
and I'm for expanding the courts by a huge number.
Right now in Congress, the bill that Democrats won't pass
is plus four, and I get plus four. Plus four
will be better than where we have now. I want
plus ten. I want plus two. I want to quote
Hermit the Frog and mupp A State Manhattan. I want
more dogs and bears and cats and chickens and things.
(35:06):
I want you in the show, right because I believe
that when you have a larger body of people, what
you get is more moderate decisions. And we see that
all the time in our real life. Right when you
have to get this is the analogy I've made. When
you have to get five of your friends to go
out for dinner and drinks, you might end up in
(35:27):
some places. Right you just gotta get five of your boys,
you might end up in like thunder down under, you
might end right if you've got to get twenty or
thirty of your friends at like a family of reunion
to go out to dinner, you're gonna go to Applebee's,
You're gonna go to the Olive Gard, You're gonna go
someplace that is good for all time zones. And so
more justices lead to more moderate decisions, which is what
(35:49):
they should be doing because they're run elected and nobody
voted for them to make these decisions about the rest
of our lives.
Speaker 1 (35:56):
But what about I mean, we know about corporate corruption
about a politics, there's also a lot of evidence of
corporate corruption of our Supreme Court right like right now,
all these stories we've been coming out about them kind
of being bribed for their special causes and whatnot, and
they're unelected and they're there forever there's a case that
even like large bodies can be corrupted by money and
(36:18):
corporate power. Right, term limits, I love term moments.
Speaker 2 (36:23):
I think they're a great idea. I don't think that
you can do term moments without a constitutional amendment. And
more to my point, even my idea for doing term
limits without a constitutional amendment, I then have to go
to this conservative Supreme Court and be like, do you
like my term limits idea? And then they say no,
get out of my courtroom. Yeah, term limits great, but
absent constitutional amendment doesn't get me where I want to go.
(36:45):
In terms of the corruption, there's a lot of unethical
behavior by the Supreme Court that is corrupt, but I
don't think it's corruption and that kind of like direct
Here's an envelope full of cash, vote my way, Sam,
Sam wants to vot that way anyway. I think the
corruption and the impropriety is more that Sam decides how
(37:07):
he's going to vote after talking with all of his
conservative friends, and the corruption then becomes why do his
conservative friends get to talk to him for an hour
at dinner? And I don't think about oral arguments. All
that is supposedly is an hour. So think about how
valuable it is to have an hour of one of
these people's time just to argue your case in front
(37:31):
of them, Right, conservatives have a whole machine to make
that influence happen. That's the corruption we have to deal with.
And I'm more worried about that than kind of the
straight up like bribing people for votes. I don't think
that that's.
Speaker 1 (37:43):
Speaking of that though. Where is the leftist machine? Where's
the leftist federalist society, the leftist machine that like funnels
more progressive judges? Like, is there a movement to like
have that happen?
Speaker 2 (37:56):
Where is that?
Speaker 1 (37:56):
That feels like a really crucial part of the piece
that's missing.
Speaker 2 (38:00):
There are movements like the ACS does some of this work.
The Alliance for Justice does some of this work. A
Demand Justice. I'm actually a board member there. We do
some of this work. But like, here's the real answer, Levern.
The reason why the right wing has this federal society
system is because all of the right wing constituency groups
buy in to the federal society and seed they're judge
(38:23):
making appointments to the federal society. So the NRI says, oh,
just ask the federal society. Right, the banking industry, just
ask the federal society. Try doing that. On the democratic end,
Let me and my friends and demand justice beyond. Hello, DACP,
don't worry. We're gonna pick all the judges and uh,
you're gonna be cool with that, right, Hey, lamb illegal,
(38:44):
We're gonna pick all the judges and you guys, hey,
teachers like you.
Speaker 1 (38:49):
It's a way more heterodox constituency.
Speaker 2 (38:52):
There is no tricking way right with the big tent
that is the left. There's no freaking way that we
can get all of our constituent groups to just seed
this immense power. That's what's happened on the right. They've
seeded their entire judicial making apparatus to five guys with
(39:12):
a billion dollars, and there's a lot that that kind
of I say, authoritarian way of picking justices. That's a
very efficient system that the left just can't replicate because
of how we are organized. That's not necessarily a bad thing,
but it is one of the reasons why this is
an asymmetric war.
Speaker 1 (39:31):
Thank you so much for that, because I've been thinking
about that for years. Okay, we have to end, and
I like to end to be continuary. I like to
end every podcast with the question that comes from my
trauma and facilia therapy, and the question is what right
this shit is traumatizing, And the question is what else
(39:51):
is true? When things are, when the courts are, you know,
doing their thing, and when the world is on fire.
That is true, But there's something else also so true
that can get us through. So for you today, Ellie Musdal,
what else is true?
Speaker 2 (40:06):
Let's go with this. Biggest mistake Germany made in World
War Two was declaring war on the Americans because we
were asleep, we were not into that war. Then the
Japanese bomb Pearl Harbor, and all of a sudden, we're like,
wait a minute, we can't stay on the shell. We
(40:26):
gotta get out there and find that. Germany declares words
like oh, we're gonna go to Europe right, kind of
wakes the sleeping giant.
Speaker 3 (40:34):
To me.
Speaker 2 (40:35):
I hope that is Dobbs, because people like me have
been screaming for years. We got to watch the Supreme Court.
What they're doing is wrong, what they're doing is evil.
They will take things away, And I can only hope
that Dobbs is that like Pearl Harbor moment, that is
that declaration of war moment where people that are not me,
people that are not steeped in this internescing legal world,
(40:57):
are like wait a minute, this Supreme Court is out here.
We gotta do something. And the results of the midterm elections.
I might not be wrong about that, because it seems
like finally the sleeping giant that is the emerging majority
of America that is not white cis heterosexual male men.
(41:18):
Seems like people are starting to wake up for the
danger and the threat posed by the Supreme Court. And
if we wake up to it and we fight it,
we are destined to win that because there's more of
us than there are of them, and they're very old.
Speaker 1 (41:34):
I love that. I love that we gotta we gotta
wake up, we gotta organize, and they are wiland, They're wilind.
Oh my god, it's in thinge Ellen mus Dah, thank
you so much. You are a treasure. You are fantastic.
I keep waiting for you to have your own shown anthemyc.
But it might be too much for them.
Speaker 2 (41:55):
I don't think they want that smoke.
Speaker 1 (42:07):
I love Ellie Mastaal so much. He's such a great
legal mind, and he's able to make the law, the
constitution just very clear and make the stakes really clear.
And I love that. I love the Star Wars reference.
I love quoting Kermit the Frog. That's definitely a first
(42:28):
on this podcast and the first season of the Laverne
Costs Show. When I spoke to Richard Rosstein about his
book The Color Blaw and the History of Housing discrimination,
he suggested that we need a mass movement for people
to rise up. But what does it mean to really
be organized as masses of people whose rights are being
(42:51):
taken away? What does that look like? Who are the
folks who can mobilize us, how we mobilize each other,
mobilize ourselves into action and organization that can actually create change.
I think that those are the questions that we have
to continually ask ourselves as we try to take action
(43:12):
to make sure everyone in this country has civil rights.
As we said to be continued. Since my conversation with
Ellie Mastahal, the Supreme Court has handed down its decisions
(43:32):
for the year. Amongst them, the Supreme Court sided with
three or three Creative basically legalizing discrimination against the LGBTQ
plus community on the basis of free speech, and the
Supreme Court overturned affirmative action for colleges and universities. On
(43:53):
the day the affirmative action decision was released, Eli shared
his perspective on MSNBC's The Medi Hassan Show. Here's some
of what he had to say.
Speaker 2 (44:02):
We have evidence for how this is going to play
out in California, in Michigan and other states that have
banned affirmative action, and we see that diversity goes into
the tank. And that's what Roberts wants. That's what these
six conservative wants. They don't care about the diversity. They
don't care about the Fourteenth Amendments, racially ameliated riv programs,
(44:25):
right like people need to understand affirmative action. The first
time that happened in American history was during reconstruction.
Speaker 1 (44:34):
Oh. I think it's important to note, in the context
of my conversation with Ellie Mistall, that this should not
be surprising considering this court. Ellie reminded us that the
makeup of this court, he feels, will overdetermine the nature
(44:54):
of these kinds of decisions, and so much of what
Elle writs to in his book and what we talked
about in our conversation around the Fourteenth Amendment feels reflective
of these decisions that roll back progress in this country,
that roll back the civil rights of citizens of this country.
(45:20):
And Ellie said that he hoped Dobbs would be the
decision that awakened the sleeping giant, and he had hoped
that the midterms had done that. And I don't know
if the sleeping giant has been awakened. I'm not sure
about that. I know that in this moment, I'm pissed off.
(45:45):
I'm angry. As much as I love being an American,
it's also embarrassing. It's embarrassing to be an American in
these moments when the human rights of so many people
are being taken away. It's embarrassing, it's enraging, it's angering. Yeah,
(46:09):
I mean yeah, I'm like, Fuck the Supreme Court. That's
really where I'm at right now. Fuck the Supreme Court.
And you know, I always like to try to be
loving and mgnanimous, and I don't know, I just feel
like we're past that. I feel like we've reached a
point where the Supreme Court where state legislators which have banned,
(46:31):
you know, twenty states, a band, gender firm, and care.
I feel like we're at a point where a lot
of politicians and judges they're saying fuck you to me
and my rights and my right to exist and the
rights of so many of my fellow citizens to exist.
Like they're saying fuck you to me. They are, and
they're saying fuck you to anyone who has the capacity
(46:54):
to get pregnant. They're saying fuck you to anybody who
maybe does not have a legacy admission and wants to
go to college, saying fuck you to a lot of people.
They're saying fuck you to people who were going to
get their student loans forgiven. They're saying fuck you to
people who want to unionize they want. They're saying fuck
you to people want to fair wage. Then, so I'm like,
fuck you back. That's that. I'm fuck you too, fuck
(47:17):
you too. Thank you for listening to The Laverne Cox Show.
Please rate, review, subscribe, and share with everyone you know.
You can find me on Instagram, Twitter, and TikTok at
Laverne Cox and on Facebook at Laverne Cox for Real.
(47:38):
Until next time, stay in the love. The Laverne Cox
Show is a production of Shondaland Audio in partnership with iHeartRadio.
For more podcasts from Shondaland Audio, visit the iHeartRadio app,
Apple podcast, or wherever you listen to your favorite shows.
Welcome to The Laverne Cox Show, a production of Shondaland
Audio in partnership with iHeartRadio.
Speaker 2 (00:10):
It's not that the Conservatives are winning, it's that they've won,
and now it's time for the new forces to get
back into the game. Right. We're not in an empire
strikes back situation. We're in an end of revenge of
the sifth situation where the young things have been slaughtered,
(00:31):
the empire is on top, and right now we need
a new hope.
Speaker 3 (00:34):
Right.
Speaker 1 (00:46):
Hello, everyone, and welcome to The Laverne Cox Show. I'm
Laverne Cox. Growing up in Mobile, Alabama with a mother
who grew up in the segregated South, the context of
racial apartheid. I was very aware abround versusport of Education,
(01:08):
this Supreme Court decision that desegregated schools, and so I
grew up with this thought of the Supreme Court as
this place, this space that could be potentially liberatory for
my people. And as i've sort of grown up and
(01:28):
taken on advocacy work as an openly trans woman of color,
the law and the court continue to be spaces of
fascination for me, spaces the possibility and spaces of potential
oppression and the withholding of rights. And now more than ever,
(01:51):
Americans are waking up to how important what happens at
the Supreme Court is in how we live our life
lives day today. So I am so excited about speaking
to our guest today because I've watched him on television
(02:14):
four years and he's made me laugh, and he's made
me think differently about the law, about the Supreme Court,
and he just has the best afro ever. And I'm
just really excited to talk to him today about his
book and the state of the law and the Supreme Court.
(02:38):
His name is Ellie Mistaal. Ellie Mastaal is a columnist
and justice correspondent for The Nation magazine. He's the author
of the New York Times bestseller Allow Me to Retort,
A Black Guy's Guide to the Constitution. He has a
frequent guest on MSNBC and SiriusXM and a board member
of Demand Justice, a liberal judicial advocacy group. Here's a
(03:01):
graduate of Harvard College and Harvard Law School and the
former executive editor of the legal website Above the Law.
Please enjoy my conversation with Ellie Pastal. My conversation with
(03:24):
Ellie Mistal was recorded on February twenty seventh, twenty twenty three.
Hello Ellie Mistal, Welcome to the podcast. How are you
feeling today?
Speaker 2 (03:33):
I am good? How are you?
Speaker 1 (03:35):
I'm great. I'm so excited about this. So first of all,
I want to say that my brother and I are
obsessed with you whenever you are on television or on
a podcast or on anything, and we like share it
and discuss. So there's so much to talk about. I
want to talk about your book. Allow me to retort
a Black Guy's Guide to the Constitution, And what's so
deep about the book for me is and wonderful about
(03:57):
the book is taking a look at the founding fall
there's that you refer to as colonizers, enslavers, and rapist.
Thank you. The Constitution was not written with us in
mind as black people, and not with women as full
citizens in mind. And you often say white men, straight
white men. Arguably, I actually feel like it's about landowners too.
(04:19):
Do you feel like there's that piece too with straight
white male landowners? Who does straight white men? That's a
question in the I mean, god, this the book is
so dense, but I think the biggest piece is like
the biggest question. I think you said the kryptonite of
conservatives in relationship to the Constitution, it's the fourteenth Amendment
and loving be Virginia. And so how do you see
(04:41):
your vision of the Constitution now that you lay out
in the book in relationship with some of the more
pressing questions before the Supreme Court.
Speaker 2 (04:49):
Yeah, lots of questions. I want to say if I
can can kind of eat an elephant in sections right.
First of all, I slightly disagree with your premise, right,
because I'm not saying that the Constitution was written without
us in mind. Oh they had us in mind. Indeed, right,
it was written to oppress and enslave us. The Constitutions,
as originally promulgated, was an enslaver's document design directly to
(05:15):
propagate the unfair, evil and unequal system of slavery and
oppression in the society. And you see it all throughout
the document. They don't mention the word slave, but you
see slavery all throughout the document, and you see the
upholding of slavery and white supremacy all throughout the document,
even in the parts that haven't been changed. Right, you
(05:36):
cannot explain the structure of the United States Senate, where
land gets more voting rights than people. You cannot explain
why they thought that was a good idea without slavery
and the need for minority slave states to be able
to continue with slavery over the objection potentially in the
(05:57):
future of a majoritarian of the the country.
Speaker 1 (06:00):
The way you break down the Second Amendment is crucial
in that piece.
Speaker 2 (06:04):
Yet, right, you can't explain the Second Amendment without their
need to have not just numerical superiority, but military superiority
over the slaves. Right, you can't explain the modern police
without understanding that they can literally be traced to slave
patrols and the need for white Southerners to recapture their property.
(06:27):
And that is how I will segue into kind of
the second party. Your question, do I make a huge
distinction between the white, male, bourgeois, wealthy leaders of the
American Revolution and authors of the Constitution voices their poor
white cousins, And no, I don't, not really, because while
I agree that being poor and white in America has
(06:49):
never been a great thing, it's always been a better
thing than being black. It's always been a better thing
than being a woman. Based on our constitutional.
Speaker 1 (07:00):
But isn't that a way isn't that a part of
the divide and conquer structure though of the United States,
to pit poor white folks against particularly black people. I'm
white and poor, but at least I'm not black, right Like,
isn't that a divide and conqueror strategy around class?
Speaker 2 (07:16):
Except by what it call it? Divide? Okay, it's a
unify and conquer right. Yes, I obviously agree that black
people have always been put up as the thing that
poor whites, poor mediocre whites, could look down on, and
that ability to look down on somebody else makes those poor,
mediocre whites feel better about their poverty and mediocrity. It's
(07:36):
easy to feel good about yourself if you're not a slave,
right And that's not even a uniquely American. The Romans
had this right like, where it was important to have
an underclass to make the impoverished middle class feel a
little bit better about themselves. So it's not exactly a
divide and conquer strategy. It is a let's remember we're
all white, and that's why it's okay if I have
(07:59):
all this and you have so little, because at least
you hate that. But as a legal practice, as well.
My dad has had a lie that I used to love. Right,
if you hate me because I'm stupid, that's okay. Maybe
one day I will get myself educated. If you hate
me because I'm poor, that's okay. Maybe one day I
(08:21):
will be rich. But if you hate me because I'm black,
you can go f yourself because all I got to
do is stay black and die. When you put together
a structure that values rich people more than poor people,
that is problematic on many levels. But there are things
poor people can do to become rich one day.
Speaker 1 (08:44):
And theory one would argue in practice though, that economic
mobility is like harder and harder to achieve with the
existing system. We haven't had a raise in the minimum wage.
Corporate power, the decimation of unions wage does not keep
me up with product. There could be an argument in
today's da and age, if working class people of all
(09:05):
races could come together then and rise up against corporate
power and oligarchs, that social mobility could be more possible now,
and that race becomes a way to continue to buy
working class people certainly differently than it did. You know,
within a function during slavery and during Jim Crow, would
you disagree with that.
Speaker 2 (09:27):
True that upward economic mobility has always been a bit
of a myth in this country. It's always been less
good than the people at the top will sell it to.
And so I agree that social mobility, upward economic mobility
is difficult in this country, and that that difficulty then
leads to a whole suite of problems. But the wealthiest
(09:51):
black man in this world can get stopped for driving
while black. You can't buy yourself into fair and equal
treatment from the police in this country, no matter how
well you do on the social upward mobility allowed by
this country. Every wealthy black person living in a predominantly
(10:15):
white neighborhood knows that, should know that, or God forbid,
will learn that at some point. So the idea that
the problems, if you will, with our social structure, our
constitutional structure, our legal structure, our economic structure can all
be distilled to class is just not true experience.
Speaker 1 (10:38):
No, no, no, no, no. I would never reduce it to class.
It would mean to be intersectional.
Speaker 2 (10:41):
Right.
Speaker 1 (10:42):
I'm not a class reductionist and I'm not suggesting that.
Speaker 2 (10:45):
And the other thing I would say here is not
only do we have white supremacist legal structures embedded into
our systems, both at the constitutional level and the statutory level.
That's only part of the coin, right, The other part
of the coin that we have patriarchal structures embedded into
those documents as well. Is it worse being black or
(11:06):
a woman in the society? Hard to say, frankly, if
you write, because the gender bias in our legal structures
is so strong that not only are we sitting here
talking after the Supreme Court, over the objection of the
American people, revoked the bodily autonomy of women.
Speaker 1 (11:26):
And other people who can get pregnant who don't identify
as women.
Speaker 2 (11:29):
As women and pregnant people, what we also see is
numerous laws, structures, norms that disadvantage women and people who
identify as such. Right as writing recently about this awful
case coming out of the Fifth Circuit called Rahimi, where
(11:52):
there's a statute that says that if you have been
if you have a restraining order taken out against you
for domestic violence, that you lose your gun lights. And
this Raheemi case revoked that law, called that law an
unconstitutional impingement on the Second Amendment, thereby straight up putting
(12:13):
guns back into the hands of domestic abusers. And anybody
who knows anything about this topic knows that most women
are killed by intimate partners with a gun. Most trans
people are killed, not brutalized, not beaten, killed by intimate
partners who have a gun. Having a gun is the
(12:34):
most dangerous thing to non cispresenting males in the society
by far. And yet the Fifth Circuit Court of Appeals
overturned a federal law preventing domestic abusers from having weapons. So, like,
(12:55):
when I'm talking about the structure of our laws is
to uphold white supremacy, it is every bit as much
to uphold the patriarchy, however you want to define that.
Speaker 1 (13:07):
And since normativity and heteronormativity as well, absolutely.
Speaker 2 (13:10):
And these are structural problems that we're not close to
dealing with.
Speaker 1 (13:14):
Yeah, you suggest you know that in your book too,
that after apartheid was overturned in South Africa, they rewrote
the constitution there and that that didn't happen here after
our civil war, And what a concept to you know,
rewrite the entire thing.
Speaker 2 (13:29):
I tend to not be a constitutional conventionalist because I
think that with our current and this is where I
do become a bit of a classist. I think our
current political structure, with the overrepresentation of moneyed interest, would
result in a new constitution having just as many problems
as the current one. So I don't actually think that
(13:51):
in our current post citizens United world, I actually don't
think a new constitution conventional would help all that much.
Speaker 1 (13:56):
Yeah.
Speaker 2 (13:56):
But my answer then is the fourth teenth Amendment, Because
the fourteenth Amendment is the first and only place in
the Constitution where it says all men are created equal,
and then we can interpret that to be all people
are created equal. First time anybody said that, and that's
the solution to me. Right. So from my perspective, every
(14:19):
single law, statute, ordinance out care we're talking about a
zoning provision in the rural South or a banking provision
in Manhattan, every single thing must pass the acid test
that is the fourteenth Amendment. Are we treating people equally
and are people entitled to substantive fairness? Which is my
(14:44):
kind of non lawyer explanation for the concept of substantive
due process. Are people being treated equally and fairly? If so,
then we can talk about this law about whether or
not it's good or bad for society, and we can
if not, goodbye law, goodbye ordinance. Because if you can
cannot pass the acid tests of the fourteenth Amendment, you
are illegitimate on its space. Because the Fourteenth Amendment is
(15:07):
the only thing that says the white supremacist, white patriarchical
structure of the original Constitution is null and void. It's
the fourteenth Amendment that does that.
Speaker 1 (15:22):
This is a good time to take a little break.
We'll be right back, though, Let's get back to our chat.
In your book, you contend that since then, conservative leaning
(15:44):
people have been doing everything they can to undo the
Fourteenth Amendment. There are reconstruction amendments as their call, and
specifically the fourteenth Amendment. And that is deep when you
think about Thomas's concurrent decision went with the Dobs case
last year, where he said, we need to now any
substance of due process the way we need to revisit
except loving versus virtain. You're interestingly enough, oh, clarience Thomas.
(16:10):
So it's interesting that like that's where he wanted to go.
He wanted to go directly to the Fourteenth Amendmen looking
at Lawrence v. Texas, looking at marriage equality, looking at
contraception very much supports where you're talking about around fourteen Mienden,
and I'm trying to, you know, do away with that
and sort of roll the clock.
Speaker 2 (16:28):
Back, because the twentieth century relies on the fourteenth Amendment,
which means the twenty first century relies on the fourteenth Amendment,
which means everything that we think of as modern relies
on the fourteenth Amendment. And if you pierce it, if
you take it away, then you can truly roll back
the country at a legal level to circa eighteen fifteen,
(16:52):
which by the way, is the year that the Leado
went to directly in his majority opinion in Dobs right, Like,
that's that's how far back we go once we pierce
the fourteenth Amendment. And that's why the Conservatives are so
interested in doing that, because if you go back to
eighteen fifty, who was on top, yea white land holding
(17:14):
males were on top. If you go back to eighteen fifty,
and it's the fourteenth Amendment and the progress of the
twentieth and twenty first century that took their toys and
shared them more equitably around the country, and they've never
gotten over it. They have to roll back a robust
interpretation of the fourteenth Amendment. You know, when I was
(17:36):
logging on, I was looking at our notes for the
show Laverne, and you said, you know, the tragedy of
the Supreme Court, And it occurred to me that, like,
these people do not think that what they're doing is
a tragedy. These people have been working at this tirelessly
for fifty years. This is the capstone. This was the
(17:56):
whole game, and they're getting it. It's not that the
Conservatives are winning, it's that they've won. Yeah, and now
it's time for the new forces to get back into
the game. Right We're not in an empire strikes back situation.
We're in an end of Revenge of the Sith situation
(18:18):
where the younglings have been slaughtered, the empire is on top,
and right now we need a new hope, right because
we're not in the game right now.
Speaker 1 (18:26):
That's so beautifully put Brooke, my producer before this conversation,
is like, what this is? Like, what in the world
do we do? It seems so utterly hopeless right now.
But before we get into a new hope, you mentioned
briefly in the fourteenth Amendment. You're talking about banking regulations.
I think it was the slaughter house case in the
eighteen hundreds that could have looked at monopolies and could
(18:51):
have looked at the fourteenth Amendment as a way to
kind of regulate monopolies. Am I interpreting that correctly? Because
I was just thinking about like corp rule now and
how it's just kind of like taken over everything. And
there seems to be an argument that you make in
your book that there could have been away with the
fourteenth Amendment to tell people about that, and what is
it the flutterhouse cases or something, Yes.
Speaker 2 (19:12):
The slaughterhouse cases are. It's one of my favorite case.
So the slaughter house cases is actually just one case
because people in the eighteen hundreds name things weird, but
it had to do with slaughterhouses. Right. It turns out that,
you know, there was a group of butchers in Louisiana.
The state of Louisiana granted a monopoly to one butcher.
(19:33):
They said it was health and safety concerns. Really it
was just the old you scratch my back out, scratch
yours this one.
Speaker 1 (19:39):
Butcher before anti trust laws too, Before.
Speaker 2 (19:41):
Anti trust laws, this butcher was granted a monopoly to
basically run all the butcher shops slaughter houses in New
Orleans south of like a line, right, So if you
wanted to be a butcher in New Orleans, you had
to work for the one butcher that had the whole monopoly.
And people sued the state under the thirteenth Amendment. White
(20:04):
people sued the state under the thirteenth Amendment. This was
the first lawsuit under the thirteenth Amendment.
Speaker 3 (20:13):
What year with this? This is eighteen eighty three or
so eighteen sixty somewhere, and I think it's eighteen sixty eight,
but like, don't quote me on it. And the White
argument was that by granting this monopoly to this one butcher,
they functionally enslaved all of the other butchers into economic
(20:33):
slavery because they had to work for this one butcher.
Speaker 1 (20:37):
That phrase economic slavery is so interesting thinking about that
right now in this current United States. But go on,
I just want to like put a pin in that.
Speaker 2 (20:46):
And there were people who wrote the thirteenth Amendment, who
were part of ratifying the Thirteenthmendment. So according to the originalists,
you know, these were some of the original authors of
the thing who were like, yeah, that's a good lawsuit
that totally works. But the Supreme Court set no. Court
I think it was unanimous, it might have been seven
to one, said that the Thirteenth Amendment only applied to
and I'm quoting them, not me, the slave race. I
(21:09):
think he was talking about me and me, and thus
white people cannot use it, and certainly white people cannot
use it for their economic grievances. Right so, right there
at the beginning of the Thirteenth Amendment, jurisperience. You know,
at the beginning of reconstruction, we have a theory that
(21:30):
would have made the Thirteenth Amendment so much more robust,
so much more interesting, so much more valuable to the
kind of economic oppression that we've now just grown accustomed to.
But it's the Supreme Court that said no, not the authors,
not the legislators, not the people who ratified the thing.
But the Supreme Court has said no, no, no, this
(21:50):
is only about slavery.
Speaker 1 (21:51):
What do you think that was about? Do you think
that was about monopolies? I mean, why wouldn't they want
to extend? What do you think that was about?
Speaker 2 (21:58):
Because conservatives have always been against the Reconstruction amendments. They've
always wanted to limit the scope and effectiveness of the
reconstruction amendments. Right, So thirteenth Amendment boom right out the gate,
can only apply to the slave race. Fourteenth Amendment. Fourteenth
Amendment did nothing to stop segregation, according to the conservatives
(22:20):
who were trying to hobble those amendments. And then obviously
the fifteenth Amendment, the fifteenth Amendment, the one that grants
voting rights to people regardless of the place. Conservatives pretended
that even exist. Conservatives for one hundred years pretended that
that wasn't even a thing. Right. So, again, the conservative
project has always been then and now to limit the
(22:43):
effectiveness of the rules that could make this country more fair.
Speaker 1 (22:50):
Equal and just that's so deep.
Speaker 2 (22:53):
That's how they always have rolled. We need better tools
and a better commitment to fighting what they've always done. Yeah,
and this is where liberals often fail.
Speaker 1 (23:04):
I want to get to some of that later. But
you make a point in your book that we talked
about protected classes. What is it? Reverse racism is not
a thing why people aren't a protected class? But gay
and lesbi and people are not a protected class. But
then I think about the Bostock case that was decided
in twenty twenty. I was the first time I went
to the Supreme Court for the oral arguments in that case.
That case decided that, based on the Civil Rights Act
(23:26):
of nineteen sixty four, that it is illegal to fire
someone from their job for being gay, lesbian, or trans.
And the ACLU who brought the case used a textualist argument.
They said, by the plain language of the Civil Rights
Act of nineteen sixty four that this is discrimination based
on sex, and there was some precedent with the Price Waterhouse,
(23:48):
the Waterhouse versus Something case. I always forget sex stereotypes
historically in terms of precedent, were used as a violation
of sex discrimination. So there's a slew of anti trans
legislation that's being introduced, impacts and stay legislatures all over
the country right now that would seem to be a
violation because we have a Supreme Court decision saying that
(24:10):
like sex discrimination includes gay, lesbian, and trans people. What
are your thoughts about like the law. I mean, obviously
you also make the case in your book that they
make the law whatever they wanted to make it. But
what would you say to where we are now with
anti LGBTQ laws in relationship to both stoc.
Speaker 2 (24:30):
Yeah. So there are a couple of different ways of
analyzing boss Stock, and one is your wife what you
just said as a I would say standard legal way
of understanding what happened in boss Stock, that there is
an argument that according to nineteen sixty four Civil Rights Act,
you can't fire people because of sex, that sexual presentation
(24:52):
is an offshoot of sex, and so you must let
that go. The other way of analyzing boss Stock is
that this is where you got Neil Gorsich, because Neil
Gorsich likes to be known as a textualists and likes
to be known as an originalist, and those two things
are separate. Textualism is basically a theory of interpretation that
(25:14):
I can get behind, where it says you kind of
read the text closely and try to understand what the
words mean. Originalism comes in when textualism fails, right when
the words are too ambiguous. Now you have to find
some way of what those words intended to mean. And
then you go and then the originals say, and then
we have to look at Thomas Jefferson what he wrote
(25:34):
to James Madison. But I have Myuiji Bordon Thomas says
he doesn't like black people know, more like that's what
the originalists go to, and I say, miss me with
all that. But Gorsicic, who believes in both, was convinced
in Boss Doc of this textualist argument. That's why the
ACLU made the argument because they were going directly for Gorsach.
(25:58):
What's different between now and that Ruth Bader ginsburg'stide. Yeah,
bostuck a six to three with Ginsburg in the majority.
Right now, you've got Amy Cony Barrett standing in for Ginsburg.
Does she agree with that analysis? Does she agree with
the fundamental rights and equality of the LGBTQ community. I
(26:21):
don't think so. Right So, now, even if you hold
gorsic now, you gotta hold one of the others. You
gotta hold Roberts, you gotta hold Kavanaugh, And these are
difficult people to hold through all of the other outcrops
of the LGBTQ rights fight as it is now to
(26:43):
say nothing in the fact that this was a one
off from Gorsach. Gorsiches know Anthony Kennedy when it comes
to LGBTQ rights, because remember, Anthony Kennedy got there through
his hyper understanding of the First Amendment. One of the
things I like to say is that none of these
Supreme Court justices are moderate. They're all extremists in their
own way. Anthony Kennedy's extremism happened to be around the
(27:06):
First Amendment, which happened to be helpful for a lot
of LGBTQ issues. Corsiag's extremism is not that way. His
extremism is with textualism and originalism. And so why you
can get them on one issue, you might not hold
them on the other issue. But here's the key thing
in terms of how I think about this. Notice how
I'm talking about this case very differently than most legal
(27:27):
scholars would talk about. In this case, I'm talking about
the personalities. I'm talking about the motivations of the people
who decide, because it is their personalities, their motivations, their
corps that actually determine what laws we have or don't
have in this country, way more than any legal hoity
(27:48):
toity scholarly argument that you can make, because these people
don't care about your arguments. This Supreme Court is so
extremist and so pompous. They I think so highly of themselves,
and they think so highly of their ability to reshape
society in the ways that they want. That they've made extreme,
(28:10):
wild decisions, completely reshaping our world. They care about their
own ideological positions and keeping those positions to the best
of their ability, not just in the instant case before them,
but for future cases. Right, Gorsic loves pointing out Bostoc
because he says, hey, I'm not a horrible bigot, I'm
(28:31):
just a textualist. Right, Bosstoc them becomes part of Gorsic
just beer to give him credibility when he does all
these other horrible textualist things like revoking the right to choose. Right, So,
when I think about the future of anybody's rights, I
think about the personalities of the justices in play and
what we know about their ideologies, And when I look
(28:53):
at that, it is a rough road ahead, not just
for LGBTWOQ rights generally, which it is, but for trans
rights specifically, because personality and ideologically, these conservatives are all
about creating a safe zones for each state to be
bigoted in whatever way that state wants.
Speaker 1 (29:16):
And there's also religious fundamentalism. And what was really key
to me when I during the oral arguments is that
the issue of bathrooms came up, and the attorneys arguing
for the slu and for Amy Stevens was like, well,
this is not about bathrooms. This is just about whether
you can be fired or not. So they were very
narrow in their arguments, and this was a very narrow decision.
(29:40):
Now feels like a great time for a short break. Alright,
let's get back to it. There's another case before the
Supreme Court this session. I think it's three or three
Creative versus three or three creative.
Speaker 2 (30:02):
Yeah, and that's goddamn case.
Speaker 1 (30:04):
I know. Right. You make an interesting point in your
book about the cake shop because they've made the argument
based on religious freedom, and you said it actually would
have been more effective if they used it around the
First Amendment. And that's actually what's happening in three or
three created. Do you just have any thoughts on that?
I was, Did they read your book?
Speaker 2 (30:23):
Okay, so let's start here. The common argument that allows
for bigotry is that my God demands that I'm bigging
in today. And for some reason, the religious crystal fascists
on the Supreme Court are just like, that's a good argument.
It's a terrible argument. The religious argument should never be
the argument that allows a person in the public sphere,
(30:45):
in the public space to be bigoted against other people.
That's the worst argument. The better argument is this First
Amendment argument. Right, we all understand that part of what
the First Amendment is it just that it allows you
to say whatever you want within reason. It allows you
to not say whatever you want without government punishment. Right,
(31:08):
you can't make me a journalist write a nice article
about Donald Trump, don't do it. You have to goolog
my ass before that happens. Right, And we all understand
that I have that right to not do it under
the First Amendment. And so when it comes to the
bigotry that anti LGBTQ people want to enforce on the world,
(31:31):
a better argument for them is, well, you can't make
me say good luck gay people, right, because that would
be that's a violation of my First Amendment rights. Right.
Speaker 1 (31:41):
Then, Shapiro would say, you can't make me use the
correct pronouns of someone, right, can't.
Speaker 2 (31:46):
Make me use a pronoun And if you're writing your
own blog or whatever Shapiro does for a living, it's fine.
There is a sphere in which that is a good argument.
That argument, to me, loses its allure once you once
again get into the public space. And that is what
(32:07):
three h three creative is. It's a case about a
woman who wants to doesn't actually have one yet wants
to run a marriage website, an invitation website.
Speaker 1 (32:19):
Where she creates invitation.
Speaker 2 (32:21):
She wants to say that she will not serve people
who are getting married to people of the same sex,
which is a weird kink to have in your life.
I don't want kingshame anybody. But if you're this person,
I just need to have a business and no gay people.
You can't cut like. I don't know what makes you
want to do that, but okay, fine. The problem is
(32:41):
that she wants to have this business in public, and
in a free and fair society, people have the right
to access services that are generally available to the public.
And that's where your free speech argument doesn't really work.
I can't or shouldn't be able to have a business
(33:01):
where I say I don't want to serve white people.
I might not like to serve white people, I might
not want to, and that might not be my preference.
But if a white man comes in with American money,
if I'm a mechanic, a white man comes in with
his no yacht. I guess that's what they have, right.
Speaker 1 (33:17):
That's not intersectional, Elie. They're not all rich people, aren't.
My God.
Speaker 2 (33:24):
Comes in with like hard American currency. I can't say, huh,
I don't serve white people. I don't lack your con
am My established can't say that that's racist and illegal
and violates various anti discrimination laws. And so this is
what this one wants to do. She wants to be
in the public sphere and have this business.
Speaker 1 (33:43):
And it looks like she might win based on the
oral arguments, so that she might win, of course.
Speaker 2 (33:46):
Because this Supreme Court is six to three with conservative fascists.
But I just want to point out there are other
businesses or other pursuits you can have, or I would
support that kind of First Amendment argument. Right. If you're
a sculptor, you want to say I don't sculpt Republicans,
I'm like calling bad self. You can't make me sculpt
(34:07):
no Republican. I wouldn't, right. And if you want to say, well,
I don't sculpt no Democrats, I'm like, great fun your sculptor.
It's artistic. I understand that running a marriage registry is
not artistic in that way. Right, running a cake shop
is not artistic in that way. Don't go, don't tell
me about.
Speaker 1 (34:25):
That's what the planet is argued that in the alliance
defending freedom like this, you know, gives them the language
to argue that. And we're running out of time, and
so as we run out of time, I want to
talk about the new hope. What is the new hope?
I heard you talk about expanding the courts. What in
the world can we do with the mess that is
our legal system right now, our political system right now?
Speaker 2 (34:45):
Number one out of the gate. I'm for expanding the courts,
and I'm for expanding the courts by a huge number.
Right now in Congress, the bill that Democrats won't pass
is plus four, and I get plus four. Plus four
will be better than where we have now. I want
plus ten. I want plus two. I want to quote
Hermit the Frog and mupp A State Manhattan. I want
more dogs and bears and cats and chickens and things.
(35:06):
I want you in the show, right because I believe
that when you have a larger body of people, what
you get is more moderate decisions. And we see that
all the time in our real life. Right when you
have to get this is the analogy I've made. When
you have to get five of your friends to go
out for dinner and drinks, you might end up in
(35:27):
some places. Right you just gotta get five of your boys,
you might end up in like thunder down under, you
might end right if you've got to get twenty or
thirty of your friends at like a family of reunion
to go out to dinner, you're gonna go to Applebee's,
You're gonna go to the Olive Gard, You're gonna go
someplace that is good for all time zones. And so
more justices lead to more moderate decisions, which is what
(35:49):
they should be doing because they're run elected and nobody
voted for them to make these decisions about the rest
of our lives.
Speaker 1 (35:56):
But what about I mean, we know about corporate corruption
about a politics, there's also a lot of evidence of
corporate corruption of our Supreme Court right like right now,
all these stories we've been coming out about them kind
of being bribed for their special causes and whatnot, and
they're unelected and they're there forever there's a case that
even like large bodies can be corrupted by money and
(36:18):
corporate power. Right, term limits, I love term moments.
Speaker 2 (36:23):
I think they're a great idea. I don't think that
you can do term moments without a constitutional amendment. And
more to my point, even my idea for doing term
limits without a constitutional amendment, I then have to go
to this conservative Supreme Court and be like, do you
like my term limits idea? And then they say no,
get out of my courtroom. Yeah, term limits great, but
absent constitutional amendment doesn't get me where I want to go.
(36:45):
In terms of the corruption, there's a lot of unethical
behavior by the Supreme Court that is corrupt, but I
don't think it's corruption and that kind of like direct
Here's an envelope full of cash, vote my way, Sam,
Sam wants to vot that way anyway. I think the
corruption and the impropriety is more that Sam decides how
(37:07):
he's going to vote after talking with all of his
conservative friends, and the corruption then becomes why do his
conservative friends get to talk to him for an hour
at dinner? And I don't think about oral arguments. All
that is supposedly is an hour. So think about how
valuable it is to have an hour of one of
these people's time just to argue your case in front
(37:31):
of them, Right, conservatives have a whole machine to make
that influence happen. That's the corruption we have to deal with.
And I'm more worried about that than kind of the
straight up like bribing people for votes. I don't think
that that's.
Speaker 1 (37:43):
Speaking of that though. Where is the leftist machine? Where's
the leftist federalist society, the leftist machine that like funnels
more progressive judges? Like, is there a movement to like
have that happen?
Speaker 2 (37:56):
Where is that?
Speaker 1 (37:56):
That feels like a really crucial part of the piece
that's missing.
Speaker 2 (38:00):
There are movements like the ACS does some of this work.
The Alliance for Justice does some of this work. A
Demand Justice. I'm actually a board member there. We do
some of this work. But like, here's the real answer, Levern.
The reason why the right wing has this federal society
system is because all of the right wing constituency groups
buy in to the federal society and seed they're judge
(38:23):
making appointments to the federal society. So the NRI says, oh,
just ask the federal society. Right, the banking industry, just
ask the federal society. Try doing that. On the democratic end,
Let me and my friends and demand justice beyond. Hello, DACP,
don't worry. We're gonna pick all the judges and uh,
you're gonna be cool with that, right, Hey, lamb illegal,
(38:44):
We're gonna pick all the judges and you guys, hey,
teachers like you.
Speaker 1 (38:49):
It's a way more heterodox constituency.
Speaker 2 (38:52):
There is no tricking way right with the big tent
that is the left. There's no freaking way that we
can get all of our constituent groups to just seed
this immense power. That's what's happened on the right. They've
seeded their entire judicial making apparatus to five guys with
(39:12):
a billion dollars, and there's a lot that that kind
of I say, authoritarian way of picking justices. That's a
very efficient system that the left just can't replicate because
of how we are organized. That's not necessarily a bad thing,
but it is one of the reasons why this is
an asymmetric war.
Speaker 1 (39:31):
Thank you so much for that, because I've been thinking
about that for years. Okay, we have to end, and
I like to end to be continuary. I like to
end every podcast with the question that comes from my
trauma and facilia therapy, and the question is what right
this shit is traumatizing, And the question is what else
(39:51):
is true? When things are, when the courts are, you know,
doing their thing, and when the world is on fire.
That is true, But there's something else also so true
that can get us through. So for you today, Ellie Musdal,
what else is true?
Speaker 2 (40:06):
Let's go with this. Biggest mistake Germany made in World
War Two was declaring war on the Americans because we
were asleep, we were not into that war. Then the
Japanese bomb Pearl Harbor, and all of a sudden, we're like,
wait a minute, we can't stay on the shell. We
(40:26):
gotta get out there and find that. Germany declares words
like oh, we're gonna go to Europe right, kind of
wakes the sleeping giant.
Speaker 3 (40:34):
To me.
Speaker 2 (40:35):
I hope that is Dobbs, because people like me have
been screaming for years. We got to watch the Supreme Court.
What they're doing is wrong, what they're doing is evil.
They will take things away, And I can only hope
that Dobbs is that like Pearl Harbor moment, that is
that declaration of war moment where people that are not me,
people that are not steeped in this internescing legal world,
(40:57):
are like wait a minute, this Supreme Court is out here.
We gotta do something. And the results of the midterm elections.
I might not be wrong about that, because it seems
like finally the sleeping giant that is the emerging majority
of America that is not white cis heterosexual male men.
(41:18):
Seems like people are starting to wake up for the
danger and the threat posed by the Supreme Court. And
if we wake up to it and we fight it,
we are destined to win that because there's more of
us than there are of them, and they're very old.
Speaker 1 (41:34):
I love that. I love that we gotta we gotta
wake up, we gotta organize, and they are wiland, They're wilind.
Oh my god, it's in thinge Ellen mus Dah, thank
you so much. You are a treasure. You are fantastic.
I keep waiting for you to have your own shown anthemyc.
But it might be too much for them.
Speaker 2 (41:55):
I don't think they want that smoke.
Speaker 1 (42:07):
I love Ellie Mastaal so much. He's such a great
legal mind, and he's able to make the law, the
constitution just very clear and make the stakes really clear.
And I love that. I love the Star Wars reference.
I love quoting Kermit the Frog. That's definitely a first
(42:28):
on this podcast and the first season of the Laverne
Costs Show. When I spoke to Richard Rosstein about his
book The Color Blaw and the History of Housing discrimination,
he suggested that we need a mass movement for people
to rise up. But what does it mean to really
be organized as masses of people whose rights are being
(42:51):
taken away? What does that look like? Who are the
folks who can mobilize us, how we mobilize each other,
mobilize ourselves into action and organization that can actually create change.
I think that those are the questions that we have
to continually ask ourselves as we try to take action
(43:12):
to make sure everyone in this country has civil rights.
As we said to be continued. Since my conversation with
Ellie Mastahal, the Supreme Court has handed down its decisions
(43:32):
for the year. Amongst them, the Supreme Court sided with
three or three Creative basically legalizing discrimination against the LGBTQ
plus community on the basis of free speech, and the
Supreme Court overturned affirmative action for colleges and universities. On
(43:53):
the day the affirmative action decision was released, Eli shared
his perspective on MSNBC's The Medi Hassan Show. Here's some
of what he had to say.
Speaker 2 (44:02):
We have evidence for how this is going to play
out in California, in Michigan and other states that have
banned affirmative action, and we see that diversity goes into
the tank. And that's what Roberts wants. That's what these
six conservative wants. They don't care about the diversity. They
don't care about the Fourteenth Amendments, racially ameliated riv programs,
(44:25):
right like people need to understand affirmative action. The first
time that happened in American history was during reconstruction.
Speaker 1 (44:34):
Oh. I think it's important to note, in the context
of my conversation with Ellie Mistall, that this should not
be surprising considering this court. Ellie reminded us that the
makeup of this court, he feels, will overdetermine the nature
(44:54):
of these kinds of decisions, and so much of what
Elle writs to in his book and what we talked
about in our conversation around the Fourteenth Amendment feels reflective
of these decisions that roll back progress in this country,
that roll back the civil rights of citizens of this country.
(45:20):
And Ellie said that he hoped Dobbs would be the
decision that awakened the sleeping giant, and he had hoped
that the midterms had done that. And I don't know
if the sleeping giant has been awakened. I'm not sure
about that. I know that in this moment, I'm pissed off.
(45:45):
I'm angry. As much as I love being an American,
it's also embarrassing. It's embarrassing to be an American in
these moments when the human rights of so many people
are being taken away. It's embarrassing, it's enraging, it's angering. Yeah,
(46:09):
I mean yeah, I'm like, Fuck the Supreme Court. That's
really where I'm at right now. Fuck the Supreme Court.
And you know, I always like to try to be
loving and mgnanimous, and I don't know, I just feel
like we're past that. I feel like we've reached a
point where the Supreme Court where state legislators which have banned,
(46:31):
you know, twenty states, a band, gender firm, and care.
I feel like we're at a point where a lot
of politicians and judges they're saying fuck you to me
and my rights and my right to exist and the
rights of so many of my fellow citizens to exist.
Like they're saying fuck you to me. They are, and
they're saying fuck you to anyone who has the capacity
(46:54):
to get pregnant. They're saying fuck you to anybody who
maybe does not have a legacy admission and wants to
go to college, saying fuck you to a lot of people.
They're saying fuck you to people who were going to
get their student loans forgiven. They're saying fuck you to
people who want to unionize they want. They're saying fuck
you to people want to fair wage. Then, so I'm like,
fuck you back. That's that. I'm fuck you too, fuck
(47:17):
you too. Thank you for listening to The Laverne Cox Show.
Please rate, review, subscribe, and share with everyone you know.
You can find me on Instagram, Twitter, and TikTok at
Laverne Cox and on Facebook at Laverne Cox for Real.
(47:38):
Until next time, stay in the love. The Laverne Cox
Show is a production of Shondaland Audio in partnership with iHeartRadio.
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