S1: This is why Bill Barr can’t order any state governor to decide when to end a public health emergency. The states have that authority, gets the police power of this state and whatever the state’s going to do. The state governor and the state legislature need to be accountable for.
S2: Hi and welcome back to Amicus. This is Slate’s podcast about the law and the courts and the Supreme Court and the rule of law and all things legal. Especially now in the time of covered as we podcast from under our beds and in our closets surrounded by towels and sheets. I’m Dahlia Lithwick. I cover the courts for Slate. And this week remarkably saw the Supreme Court handing down decisions from home, including a few that we will discuss in a very special slate plus segment with our own Mark Joseph Stern. So the courts are learning to take their proceedings online. This is very exciting. We’re going to have arguments in May that we can listen in to for the first time in history.
S3: And there’s also just a big ol string of blockbuster cases that will be coming down in the next few weeks. We are going to be here to chew over them, I promise. But there’s this other story that has bubbled up this week and we thought we should spend a little time with it. And it’s this question of federalism and the 10th Amendment and this burgeoning war, not just between red states and blue states over corona virus, but actually between the states and the federal government. And you can hear echoes of it in Governor Cuomo’s press briefings. You can hear echoes of it when Donald Trump smacks down state governors last week. I guess the president accidentally blurted out that he thought he had absolute authority over the governors of the states and could tell them when to open up. He walked that back. Yes. But we’re still just watching this colossal meltdown as Donald Trump pushes the full responsibility for dealing with every part of the virus onto the states and onto embattled governors. And now we’re hearing Attorney General Bill Barr this week making sort of inchoate threats about, well, suing states that don’t open up fast enough for his liking. We’ve got a patchwork of responses from states like Georgia that want to open up immediately, states like New York that are trying to figure out if and when they can open up at all. And none of this really accounts for the fact that we have interstate travel. Someone likened it to only peeing in one part of the pool. So I decided it would be a good idea to call an old old debate buddy of mine, Phil Wiser. Right now, he is attorney general of the great state of Colorado. And I wanted to talk to him because he is so well positioned to help us think through this question about the line of demarcation between state and federal power. Phil was sworn in as Colorado’s attorney general, the thirty ninth attorney general on January 8th of twenty nineteen before running for office. He was dean of the University of Colorado Law School, where he was also a professor. He was also deputy assistant attorney general in the Obama Justice Department and a senior adviser in the Obama administration’s National Economic Council. Long before any of that, he clerked for Justice Ruth Bader Ginsburg at the U.S. Supreme Court. So, Phil, big windup. Welcome to Amicus.
S4: Sadly, if I can just quickly start with my favorite Dahlia memory. It was a talk that Justice Ruth Bader Ginsburg gave that Marty Ginsburg was going to give before he passed away. And you wrote this up. And for those who are in a mood for a good cry, read it. It’s inspiring. It’s amazing. This was before the Notorious R.B.G. I believe, and it was Ruth Bader Ginsburg at her best. Just chilling. And it started the Tenth Circuit here in Denver. Their first argument, which later became famous and on the basis of sex movie, which I’m sure you and your listeners have all seen, we’ve seen we’ve talked about it.
S3: And that was an amazing. We should just note parents medically. It was a speech that Marty was supposed to give at the 10th Circuit. And he died very, very shortly after Justice Ginsburg just delivered verbatim his speech. And she did it stoically and heroically. And everyone else was sobbing. And she just, as I recall, plowed through. Is that your memory to Phil?
S1: Yes, it’s exactly my memory. And it again, it. Imagine what we saw in the movie of just what a wonderful supporter he was of her. He said the best thing he ever did was support her and all that she was able to accomplish. He meant it. And I often think about any. And who can support a wonderful woman who’s making an impact as sort of a Marty Ginsburg person because he obviously did that before. That was a normal thing to do.
S3: OK. Phil, let’s do this. Let’s start with the basics. You are on the front lines trying to be, as I understand it, the attorney general in the midst of really a developing crisis slash conversation about states rights and governors responsibilities and the line between fate, state and federal government. Can you talk for a minute about has this changed your job or has it always been some version of this? What do you think about when you wake up in the morning? What do you what do you do all day in covered?
S1: Let me take three cuts at this first. I was thinking about the role of states in the 1990s when I was working with the Justice Department for the first time and researching, thinking about federalism. So this is not a new thought for me. I ran for this job because we’re in a different worlds with Donald Trump as president. States are more important than ever. And I wanted to be Colorado’s people’s lawyer. So I stepped up to serve knowing that federalism was front center now in Cosied.
S5: We are seeing this on steroids because the federal government’s lack of leadership here is such a point of pain. And just to put a fine point that not every nessel appreciates. States are bidding against each other for PPE and ventilators because we don’t have national leadership. And one of the things the national government can do is coordinate among states things like how to procure necessary equipment. And that isn’t happening, leaving states to fend for ourselves. So to get to your immediate question, one of things we’re now doing, which wasn’t on my agenda earlier is price gouging because you have opportunistic sellers who might markup products 800 percent and think they can get away with it.
S4: So that’s something we’re having to look at. Obviously, there’s all sorts of scams arising and we are stepping up and trying to provide support. And now the other issue is coming down the pike is consumers who are distressed in the economic fallout that’s coming in the wake of the public health crisis here, too. We have to both pick up the slack that the feds might not be doing. And in some cases, sue the feds for their failure to do the job.
S3: So I want to talk about this, because I think that. People have really thrown around, particularly the last two weeks, Phil, when we had a kind of meltdown that went, you know, it swept up Liz Cheney and Neal Katyal, you know, unlikely bedfellows. Everybody tweeting about the Tenth Amendment. And I want to be really, really clear. Can you give us your your cliff notes on the 10th Amendment on federalism, how you if you were just teaching this to a law school class, how you would sort of help delineate the line between state and federal perogative in a pandemic?
S1: Justice O’Connor probably has this as her most notable legacy. Another one is being the first woman. And her relationship with Ruth Bader Ginsburg is something else to think about. And you probably talked a lot about this before. She was very clear. States have an independent sovereign role to the people of their state. And so part of what is most, I would say, insidious is the federal government tries to coerce the states to do things so that people think the states are doing it because the states want to do this. But really, it’s the federal government making the state do something. Put it finally. This is why Bill Barr can’t order any state governor to decide when to end a public health emergency. The states have that authority. It’s the police power of this state and whatever the state’s going to do. The state governor and the state legislature need to be accountable for it. The feds can provide support and say, here, we’ll give you money for a ventilator and you can’t use that money to buy guns for your police forces. But the federal government can’t say, oh, we have this program that we used to give you money for your police forces. And if you don’t want to open up tomorrow, we’re taking away all this money. That’s coercion. And that goes against the whole concept of federalism, which leaves the states with an independent sphere to operate. And as Justice Brandeis famously explained, this is a real strength of our system of government. The states can be laboratories of democracy. And we in Colorado have been one. We were the first state to legalize marijuana. Now that’s in 36 states in one form or another. That’s what our country has been about. And it’s important to remain that way. And if the federal government is going to turn its back on those principles, we’re going to fight them in court.
S3: So this is where I want you to be super clear for me, Phil, because it’s the thing that, again, I think has been really elided in the national kind of freak out about what the federal government should have been doing in a perfect world. You’re right. States have vast constitutional authority to regulate health and welfare in the state. But we also do have a long, long history of the national government involving itself in health policy. Right. And this doesn’t start with the Affordable Care Act. So in a perfect world, we would actually want Congress to be effectively putting measures into place to protect sort of the very public health and safety that you’re saying is the state prerogative. So I just I guess what I want to ask to make it crystal clear is if we had a functioning Congress that wanted to be responsible in this pandemic, there are a lot of things that Congress could be doing. It’s not the case that this is solely the authority of the states, right?
S4: That’s right. Let me go back to I started. The federal government in a perfect world would have been ramping up and building up testing capacity in January, February, notices coming and would’ve said to every state, we have all this testing capacity, we are going to provide it to you either directly at a federal laboratories offering testing or give it to the states or some other form. That would be a extraordinarily valuable role the federal government could play. It hasn’t played that here in the states have been fending for themselves on testing, among other areas.
S3: So when Donald Trump last week said, oh, I have no absolute authority to order governors to open up their states. He was both offending sort of the principle of the 10th Amendment, federalism and states rights, but also actually weirdly separation of powers principles. Right. Because presumably he was sort of interpolating into congressional prerogatives his own executive powers, which he actually doesn’t have. Correct.
S4: It is correct. And it’s worth noting, Thursday of this week in Colorado, we won a case involving burgan grants, which involved both federalism and separation of powers because Congress passed these Byrne JAG grants. This is something I alluded to before. They provide law enforcement with funds for a range of purposes. It’s going back decades. All of a sudden, the Trump initiation said we’re going to add new conditions onto these burn JAG grants that Congress didn’t provide for. And we are gonna make the states do our work for us in this case, immigration enforcement violating both separation of powers principles and federalism principles.
S3: So I want you to talk a little bit about. The ways in which this is not a new proposition. The states have banded together to push back against executive authority. I mean, we saw red states doing it in the Obama era when they didn’t like the Affordable Care Act or they didn’t like environmental regulations. We’ve seen blue states pushing back in all sorts of contexts against Trump and Trumpism. So this is a long standing thing. Have the blue states who who are now entering into all sorts of compacts with each other. What’s different and new and what is sort of pre-existing? What is what is kind of a continuation of blue state agreements and priorities from the last couple of years and what’s new in the last couple of weeks?
S1: It’s worth putting us in some context. And 2006 is an important starting place. Massachusetts versus EPA. This is a case involving the Clean Air Act where the Massachusetts A.G. sued, saying carbon is a threat to human health. The EPA needs to do something about it. The Supreme Court said two things. The Massachusetts A.G. has the authority to bring such a suit on behalf of the people of Massachusetts. And number two, the EPA needs to do its job and oversee carbon is a threat to human health. That I believe more than any other single point marks this role that we’re talking about, which is state. Agee’s having a role as a check on executive power. Part of why it’s more important than ever is we’re seeing a less functional Congress than ever. So Congress isn’t doing the sort of oversight that we might all like and benefit from. With respect to how is this moment different? I would say there is a little bit more and sorry for the overused word I think was the top word last year. Existential threat around this. And it started right with the Trump presidency around issues on immigration, the ban of Muslims entering this country.
S5: It was such an offensive proposition to me, for example, who came here as a first generation American and been able to benefit from this American dream that we all really celebrate. My mom was a refugee. She was born in a concentration camp. As you know, my grandmother was an amazing person. And they came here with nothing.
S1: Didn’t speak the language to target someone based on their religion seems so anti-American. And they stayed. Agee’s felt we were the ones to stand up for our Constitution and have had other ages on your show talking about these efforts that I believe set the tone that has continued and that was part of the tone that I was running for A.G. in.
S4: And unfortunately, it has continued as issues have come up, the Affordable Care Act being a recent one where the Supreme Court could hear this case and its democratic agee’s against the Justice Barton Republican charges. I do want to note and this is an important exception, there are two Republican Agee’s who are standing up for the rule of law and a principle that you don’t knock down a whole law because one piece might be unconstitutional. Those are heroes. And that’s the edges of Ohio and of Montana. No quinces, probably. They’re both Medicaid expansion states. We are otherwise seeing as, you know, a divide where we who are looking at these important rules are asking who’s going to enforce them. And in the Justice Department, we’re not seeing that enforcement. The Affordable Care Act case was a notable one, but not the only one. And so this has been a progression there. There was some of this obvious Senator Obama. There’s a a reasonable argument that Republicans can make on a range of fronts and that gets worked out in court. We’re seeing a lot more of these going to court, because I believe we have an administration and bill bar enforcement at the DOJ who doesn’t tend to respect the rule of law in the way that that institution at its best does. The affordable care case for me is head scratching and it’s a sad moment for the DOJ.
S3: So, Phil, I guess you’re describing a sort of sea change in the role of state attorneys general. And I’m wondering if with that there has come massive politicization. You know, expensive campaigns are really polarizing and ugly races. In other words, has this become like state Supreme Court races, something that has just pretty much torpedoed the notion that you can’t be sort of an attorney and doing law and that there is some neutral principles here? Has it just become mud fight across the country?
S1: Let me give two answers that actually are somewhat intention. First, to your point, we are seeing, particularly the Republican Attorneys General Association, it was founded first. It’s considerably more well funded doing what you just said, which is targeting races in my race in Colorado. There was almost six million dollars spent by this outside group against me. And it was very much going to be, like, you say, attack politics at its worst. It didn’t actually target me on the issues.
S4: It was more ad hominem. And I knew that going in and my kids were prepared and we had to figure out how we responded and we stayed on the high road. I’m proud of the campaign we ran because I wanted to run on the issues. And part of what I was saying when I was running, for example, is if the Supreme Court’s going to reconsider Roe versus Wade, I’m going to fight to defend it. My opponent tried to avoid addressing this issue and even said something like he’d have to think about what to do if that happened. So there was a there was a real contested campaign in Colorado. We are a swing state. And I was committed to mobilizing people, engaging on the issues. Now that I’m attorney general, I want to say I am super committed to collaborating across party lines every chance I get. And I mentioned to Agee’s and Ohio and Montana, the A.G. in Idaho, in Nebraska, they’re both Republicans. They’re amazing people who are real public servants. And on many issues, we can still work together. And this is the challenge we have. I try hard not to mention the president’s name because it sucks oxygen out of the room and just kind of depresses people.
S1: I work on common ground to make progress on a range of issues. In Colorado, things like criminal justice reform across state lines, things like the opiate epidemic and. Investigations that are involving big tech companies. This is hard because we do face this challenge that we have a national political environment that is more polarized than ever. The A.G. position can become more polarized. So there are those forces in play and I am doing my part to stand up against them and to find ways to work with people to solve problems regardless of their party.
S3: And I don’t know if I’m inviting you to engage in an homonyms, but what do you do when you see, for instance, the Texas A.G. Agee’s around the country who are really kind of opportunistically using this pandemic to restrict abortion access or do things that seem to do absolutely nothing to further, you know, that sort of health and safety goals that you’re meant to be protecting.
S4: We have the ability to disagree but not have it burden the relationship. And so I joined an effort to stop Texas from doing what I thought was unconscionable, which is denying women’s health care during a pandemic that’s so wrong in so many ways. That said, I will work with the Texas A.G. on opioids, on HIV investigations, on other fronts. And part of what was a tradition in Congress and this is actually worth reflecting on in Congress, they used to be that tradition, Orrin Hatch and Ted Kennedy, they fought about a lot of things, obviously, but they could find ways to work together and other things. That was a honored tradition in the A-G world. That tradition very much exists. And it’s something I value. The fact that we’re all lawyers and the fact that we’re all accountable to the rule of law, I believe matters because it creates a rigour in a discipline that binds us in ways that if you are a legislator, you may not have.
S3: Can you? I’ve gone back and looked at a bunch of your speeches and things that you’ve written. Can you talk a little bit about what you mean when you think about cooperative federalism and how how we should be thinking of it? I think it’s not a phrase that sort of trips off the tongue of the average American. But I think it’s really, really central to how you think about states.
S4: This is absolutely right. I’m going to start with the point we made earlier and then go into the aspiration. What I made earlier is states have the right to exit. States cannot be forced into a partnership of the federal government that again, is undermining these core principles at our best, the states and the federal government. Our partners think about the Affordable Care Act. The federal government creates this framework, invites the states to work together with the framework and gives the states a lot of autonomy. Colorado, we’ve got our own health care exchange, for example. Other states work on the national scene. That’s a choice that states can make. A lot of states have different things they may decide to support or not support. That’s within a federal framework. Same thing with the Clean Air Act. The states get a lot of room to maneuver. And I have a healthy respect for that choice and autonomy that states have, the experimentation I talked about earlier. And what’s beautiful about this is at the federal government, if you’ve got people who are engaged paying attention, they look around, they say, oh, this inch in Colorado is trying this with respect to air quality. Let’s see if it works. And if it works, let’s publicize best practice. And this is a spirit I take to do all the work I do, including within a state.
S1: Mesa County, Grand Junction has done this great work on bail reform. I noticed that I can then publicize it to other counties. That is the spirit of cooperative federalism. We are partners. We are cooperating. And there is a framework that we work within. Of course, we don’t have to, but the feds have so many resources we’d be crazy not to. And we can learn from each other. That’s a partnership. That’s a spirit of cooperation. It can break down if the person at the helm at the federal level basically says, I have no desire to cooperate with you. I want to undermine you.
S4: Or if the state peop- people say we’re done, we’re out. We’re not playing. And I don’t see many of those examples. But those are theoretically there, whether it’s Telekom’s caissons, which is the area I got started in, health care, environmental issues, what have you.
S3: I feel that I have to ask this because I think we have done every show for the last four months about this. But talk to me about voting. Talk to me about November 2020 and what your thinking about what you’re worrying about, what the folks in Colorado are doing in order to make sure that there’s a free and fair election. I’m sure if you’ve listened to the show, you know that it’s all I think about. But go ahead, reassure me.
S6: Well, first, how could you watch that Wisconsin election and not be in mortal terror about what could happen in November? What everyone needs to do is study the Colorado model. Colorado automatically registers everybody. It mails people a ballot. It makes it easy to mail it back or drop it off. It gives people time to vote. And it is committed to the highest participation level possible. That is democracy at work. It works really well. What other states can still do is learn from this model and have free and fair elections with full participation. That should be the American way, what you are afraid of is Apsley right, which is too few voting stations forcing people to choose between their health and their basic constitutional rights. We shouldn’t be put to that choice. What happened? Wisconsin is a negative role model. I very much hope we have federal support to make this transition. This would be, to my mind, a no brainer. The federal government says we’re having an election and this is the upside of this pandemic. Dahiya is if we can learn things that we may be new before, like telemedicine or online learning and do them better because we have to we will be better in the long term. Voting by mail safely is one of those things we’ve learned enough that we should do it. Colorado has proven it. I’d love to see it go national.
S3: And you haven’t had vast experience of fraud or, you know, the kinds of crazy bugaboos that we hear invoked about vote-by-mail right now.
S6: We’ve had extraordinary few cases. Those few cases do get referred to our office. They are minuscule. We know who the people are who are eligible. They are the ones who get the ballot. They have to sign it. It’s not like this is an easy thing to screw with. Obviously, if the U.S. mail goes bankrupt, that’s a different problem, which we can’t let happen as a nation. But our system as it has worked has been a huge success.
S3: I want to ask you about it’s looping back a little to this Metta question of separation of powers. But what are the questions I’m asked increasingly often, especially now in the midst of the pandemic, is why haven’t we seen a massive authoritarian power grab from this administration? This is an administration that has been very, very apt to say, oh, you know, border emergency. I guess we need to build a wall. I guess we need to seize funds. And yet we’ve seen almost nothing. In fact, what we’ve seen is gross abdication of responsibility. And generally my answer has been the reason we haven’t seen a sort of victor or bond style authoritarian power grab is just because there’s too much chaos, because, you know, the federal government, right and wrong, has been peopled with, you know, some grifters and I guess a labradoodle brittle breeder and, you know, other folks who just can’t get it together to seize power in any meaningful way. But the other part of the answer, Phil, has to be federalism. It has to be that states by design that the framers were terrified of authoritarianism. And so there is this massive this other check your talking about, which is Bill Barr can say he’s going to sue the states if they don’t open up fast enough. But there’s absolutely no merit to that claim. Right. I mean, it has to be the case that federalism in this moment is one of the biggest checks against a really authoritarian power grab.
S1: You have put your finger on it. And this is something that the founders appreciate your absolute. They were terrified of concentrated power. They studied King George and wanted to ask the question, how can we create a government that diffuses power and protects liberty? States having the independent authority that we have is absolutely a protection of liberty. It’s a protection also, as you noted. This is really important to me of sound governance. Part of the problem with the national government, which people like in Hurricane Katrina like now see when you don’t have the expertise at the helm, the administration doing things that would serve the nation like building up testing capacity. You are playing Russian roulette now. We aren’t as a nation purely playing Russian roulette because we have the states so that states are able to step up and fill that void.
S5: If we did only have a national government right now, this pandemic would be much worse because the states have been the ones in the lead, which is why people are talking about governors, whether it’s Mike DeWine in Ohio, Andrew Cuomo, New York or others that has filled a vacuum.
S4: The federal government leadership is most effective when it can be out ahead of issues and it can be led by competent administration. That’s why during the New Deal, FDR was able to have such a national impact because it was competent and it was doing things. But it’s the federal government is not doing things if it’s purely reactive. Behind the curve, curve chaotic, then the states have to fill the void.
S3: So this leads me to thing I really wanted to press with you fill, which is this question of states and civil liberties, because one of the things we are certainly seeing, particularly, you know, this week, whether you believe the protests or Astroturf or not, are a lot of people pushing back on, you know, stay at home orders, a lot of people who are making claims about wanting to open their businesses, wanting to you know, we we kind of can brush it off, as, you know, privileged people wanting magical cures. But it’s not that there are legitimate religious liberty claims. There are legitimate speech claims and protests claims. And I wondered if. You can give us a framework for how you think about, you know, it’s interesting, again, I hate to keep talking about Bill Bar, but, you know, one of the things that he said when he talked about suing states to reopen is that these stay at home restrictions are, quote, disturbingly close to house arrest. So I want you to work through with me how what your framework is for thinking about. I know you were involved in Colorado in trying to get the Hobby Lobby stores to close down when they refused to close. Help me understand. Do we just say no? It’s basic police power. It’s basic parents, Patrick power. And the state can do whatever it wants. And folks have no liberties? Or is it more complicated than that?
S4: It’s a little more complicated if you are as you’re putting your finger on it, seeing two values up against each other. So the police power and protecting in the case of a pandemic, there is authority and its longstanding Supreme Court has looked at this for quarantine’s that is the best approach in the face of pandemic. The concern that I believe you’re put your finger on is how do we ensure that’s done responsibly and not abused? This is where we have a legal system and actions that are authorized by law can be tested as to whether or not they are lawful.
S5: We had the first such test, actually in Colorado. To the governor, stay at home. Order. It did not go anywhere. It was rejected pretty quickly. I could imagine situations where governments abused this power in ways that people say, wait a minute, this is arbitrary. You’re playing favorites, you’re not playing it straight. And it’s healthy to have that question raised and to have a check on government action.
S1: I believe what we’ve done in Colorado is all authorized. The one challenge, like I said, didn’t go anywhere. But we need to keep asking these questions. Absolutely.
S3: I think I have to ask you, but you are going to have the amazing privilege of arguing before the Supreme Court, which is no longer a secret society. It’s going to be broadcast and I imagine popcorn will be sold. This is something I’ve wanted for a long time. The Supreme Court itself opening up. But you’re going to argue in front of the new makeshift Zoom’s Supreme Court next month.
S4: Yes, it won’t be on Zun diastole, a telephonic argument broadcast live on C-SPAN involving a cornerstone question of our democracy, which is can electors act as free agents or can states bind them to do what the people of the state want? And no surprise, given our talking about federalism, I believe states can have the authority to take it on themselves, to say we want our electors to be agents of the public and only to do what the public wants. That’s our position. We didn’t win in the 10th Circuit. We’re now heading to the Supreme Court. And as someone who’s been a law professor, I couldn’t resist. We’re making a car of Go Supreme video series so that we can get people of all ages excited in understanding our Constitution and our election system. We in Colorado, like I said, are proud of having elections with lots of people participating. We’re proud of being the first state to allow women to vote. Truth Wyoming did do it as a territory, but we were the first state to do it. So I give us some credit there. And this will be a case that is super novel because we’re interpreting parts of the Constitution that don’t get talked about a lot. The appointment of electors, the 12th Amendment and the 24th Amendment all play prominent roles in our argument.
S3: And I’m so glad they’re not going to be zooming Phil, because I have this like mental image of like Justice Breyer, like just peering at the screen, being like, what? I can’t hear anyway. OK. Sorry. Talk. Can you. Can you give us the background on the faithless electors case? Because it is very much, I think one of the cases that were we not in a pandemic, everyone would be paying a lot more attention to. And also, this is a blockbuster term. And so maybe this doesn’t quite, you know, match June Medical. But I think it’s an essential democracy affirming case. And I wonder if you can just tell us the backstory and what as crisply as as you can, what the issues are and what the stakes are.
S4: Sure. So the founders decides do an electoral college, which was basically a compromise, to have states have some role here, suppose to all be national. Also, it was a way to apportion power between states and we have this electoral college. The founders didn’t really think too long and hard about how Lecture’s would behave. Hamilton had one view. Madison had a different view pretty quickly. It happens as all electors get bound, as agents of their political parties, parties get going. We have the eighteen hundred election with a tie because the Democratic Republicans end up having everyone vote for both Burr and Jefferson. We get the 12th Amendment, separate elections for president, vice president. And at that point, we just go on our merry way. And generally electors are agents of their parties. Earlier than nineteen hundreds, we start getting states passing laws saying that those electors have to actually do what they said they were going to do. The Supreme Court in the case of Alabama, Rae versus. Blair says, yeah, that’s OK to have pledges for electors. But Ray reserves the question about whether those pledges that can be a condition of being an elector are potentially enforceable after the fact. We’re now up to 32 states and D.C., all of which have these laws that say electors have to do it. They can say they’re going to do. We’ve never had the Supreme Court visit. This issue reverses Blair in the 1950s. But every single state court and federal court has said, yeah, you can have a binding law that tells electors they have to do what they said they’re going to do until the 10th Circuit rules after the 2016 election, saying that a gentleman named Michael Barkha was removed improperly because he has the constitutional right to be a free agent and do what he wants to do. And that 10th Circuit opinion kind of broke out of this norm. Larry Lessig, a friend of mine, argued that case in the 10th Circuit. Once that came down, I said, wow, this thing may go to the Supreme Court. There was a Washington Supreme Court case. At the same time, that case involved a fine, which went the other way. Both cases were teed up to the court. The court said, yep, we want to consider this issue once and for all. And thank God they’re doing it this spring, not in the middle of presense election with a whole presidential election riding on it. That would have been a spectacle. And our point is a couple fold. One is. States have this authority. That’s what the Constitution does. It’s important to honor that state authority. States can make electors free agents if they want to, but they can also require them to be bound to the public’s will. We also point out that if you have no removal power of electors, you could have an elector be bribed, for example, and the state would be powerless to do anything about it. We think that’s not feasible and we want to honor the will of people of Colorado is the law they passed. And so that’s why we’re defending it. The Supreme Court will hear it. It’s, I think, 9:00 a.m. Eastern on May 13th on C-SPAN. You can watch for yourself.
S3: And will you be wearing flip flops? You can tell. I really want to tell you this.
S4: I will tell you I’m going to wear a suit, actually, because part of the challenge is you don’t want to give in to feeling too informal. You really do want to take it seriously. And it’s going to be a still a great experience. I’m going to miss not doing it in person, but I’m really glad we’re getting the argument and we’re getting a decision on time if we weren’t in the midst of a covered mania right now.
S3: What would be the things that you are working on? I know you’re still working on them, but can you talk a little bit about some of the things that are other priorities not covered, related?
S4: When I took office, I talked about five areas of priorities. No one is defending the rule of law. We’ve talked a lot about that. That’s obviously really important, too, is the opioid epidemic. I can go back and talk a little bit more about this. It is having a devastating effect on parts of our state. Three is improving criminal justice. We have a real opportunity right now to reform our current justice system. We incarcerate more people by far than any country in the world. There’s a lot of opportunities there. No. For protecting consumers. This has actually been where I spent most of my life work, including in antitrust. And we are seeing consumers being taken advantage of in ways we never have before. And number five, protecting our land, air and water. We in Colorado depend on this. This is a critical resource for us. And so those are my top five priorities before this crisis. Obviously, the crisis has added a whole new dimension, but we’re going to keep walking and chewing gum the same time. Those are still areas I’m committed to working on.
S3: Kate, can you talk a little bit about the antitrust piece, Phil? Because I know it is something that you’ve thought about so much.
S4: What we have to start with is the recognition that our economy is more concentrated today than it’s ever been. Whatever industry look at, take airlines, for example, you are seeing more concentration. You’re seeing consumers paying higher prices as a result. One way to know this, in airlines, for example, when oil prices went down several years ago, usually you think, oh, that’s lower costs, they’re going to pass it on. Consumers, literally, all they did was give free peanuts to people to time and made record profits. That’s the sign of an industry that is not healthy as a competitive matter. And what happened was there were too many mergers that were approved and there wasn’t enough entry because there have been some practices, including predatory pricing that drove out some of the upstart competitors we saw in the 1990s. That’s bad for consumers. Consumers are better served when there’s competition, when there’s more entry and innovation. And in too many industries, we’re not seeing that. This is part of what I’ve talked about. It’s a real concern of the public. And one great importance of State Agee’s is we can do our own antitrust enforcement separate than the feds. And in Colorado, we had a case actually where the Fed said, we’re not going to worry about this merger. We’re going to let it go. And we said not so fast. We think this could hurt our health care consumers. We’re going to go ahead and do something about it. And we did by ourselves.
S3: Phil, I want to let you go, but I feel that I want to ask you the question I have asked many, many guests in recent weeks and months. And that is, you know, there are an awful lot of people who are listening to this, who are really panicking. They’re panicking about the president telling people to drink bleach. They’re panicking about really scary claims about, you know. Presidential power to just shut down Congress. People are feeling like there is not going to be a free and fair election and the post office is not going to be functioning. What do you tell folks? They say to you, Mr. Attorney General, I am freaking out. And I just do not see the scaffolding of constitutional democracy holding through this period. I know you more than anyone really believes that the superstructure is going to hold here. But what what do you have faith and confidence in?
S4: Let me start with an inspiration of mine. I mentioned before my grandmother who delivered my mom in a concentration camp. And I would ask her, Bobby, which is what I called her. How did you believe you would have a better future? And she would say to me, it’s easier to believe. And she’s someone who lived through the Holocaust. She came to the United States and didn’t speak the language. And she worked hard. And she became an accomplished investor and is someone who was always positive. So my answer, Dalia, is we need to stay positive. We all have a choice. We can say positive or we can mire ourselves in doubt and fear. And that is contagious. But you know what? So is hope. And so stay hopeful. The arc of our moral universe has continued to bend towards justice. It’s not always a straight line. And we have a lot of bumps in the road in this country. But we’ve got this great tradition. It is a tradition that the world has looked to. And I still believe in that tradition. And I still believe that we will see our institutions validated through this experience and that we will get through it and be able to be stronger than before.
S3: Phil Wiser is attorney general of the great state of Colorado. He was sworn in in that role on January twenty nineteen. Before that, he was dean of the University of Colorado Law School and served in the Obama administration. Phil, thank you very, very much. I know you’re crazy busy, but thank you for giving us so much of your time.
S6: It’s always a pleasure. Dalia, how you doing? Are doing. It means a lot.
S3: We are now at the part of our show that goes out only to our Slate plus listeners. And so joining us now as he does as one does, is Mark Joseph Stern. He covers the courts and the law, LGBTQ issues voting rights so much more. First of all, thank you, Slate Plus listeners. Yeah, we appreciate it. And this is Mark Stern. And I’m doing a little bit of digging around in some of the Supreme Court gossip and news from this week. So welcome back, Marc.
S7: Thank you. Happy to be here. Broadcasting from my closet.
S3: As always, unbelievable. Never have sheets been this well folded. A couple things to talk about. But let’s start with a big decision that came down this week that wasn’t actually the thing everybody was watching for necessarily about split juries, but it got everyone’s tongues wagging. Can you talk about Ramos?
S7: Yeah. So this was this was a 6 to 3 decision. That was a good decision. And in my view, I think a pretty obvious one where the Supreme Court said state jury verdicts like federal jury verdicts have to be unanimous to secure a conviction. You can’t have a split jury. And in two states that was allowed until Monday. Oregon and Louisiana, a jury could convict someone by a 10 to 2 votes, which is a practice very much foreign to the American jury system. It was actually instituted for all kinds of sordid reasons which we can get into. And basically on Monday, the Supreme Court said enough, this is not constitutional. The juries have to be unanimous. That’s a that’s a bedrock component of the Sixth Amendment right to a jury trial. Very interesting breakdown. Right. So you have three liberal justices, Ginsburg, Breyer and Sotomayor are joining with Gorsuch and Kavanaugh. The two Trump appointees for the majority. You have Clarence Thomas concurring on his own kind of wild grounds. And then you have the three dissenters, a rather unusual trio. You have Alito writing the dissent, joined by the chief justice and Kagan. Kagan and Alito together at last. So like you said, you know, I think people were happy that this obviously unconstitutional practice has ended. But people were also more interested in all of the weird side squabbles that broke out in this seemingly straightforward and lopsided ruling, because the justices cannot stop themselves from squabbling over all of these other issues and shadowboxing over precedents. Right. The value of past decisions and and the ability to overturn them. And, of course, how that interacts with abortion, like anytime we’re talking about precedent on some level, we’re also talking about abortion, because precedent is all that Roe v. Wade really has going forward at the court today. The big question is whether any of the conservative justices recognize Roe as valid precedents and are willing to uphold it even if they disagree with it. So naturally, a lopsided decision about split jury verdicts turned into a free for all brawl may lay backyard fights, knockdown, drag out, squabble over precedents and sort of on some level whether and when to overturn Roe.
S3: So so let’s just walk through this. Linda Greenhouse said in her piece reflecting on this case that this is sort of a sign of chaos like a a court that has just lost its way totally. She made note of the fact that the court took a long, long, long, long time to decide whether they were going to take this case. And then a long, long, long, long, long time to deliver an opinion. And she also flagged and I wonder if you want to reflect on justice, Cavenagh seems to have written a little love letter to screw precedent. Is that right?
S7: Yeah. Basically, stari decisis is for suckers as these strict scrutiny podcast that I love so much often puts it. You know, Justice Cavenagh ruled the right way in this decision. So I think we should give him credit for that. He acknowledged that this practice of split verdicts is unconstitutional. He acknowledged that it is rooted in racism and bigotry. So Louisiana adopted this practice during the Jim Crow era to try to dilute the influence of of black citizens on juries. Oregon adopted this during the rise of the KKK to try to dilute the influence of religious minorities and racial minorities. And Kavanagh acknowledged that in a very clear eyed way and said, you know, this is this is unconstitutional on its face and it’s rooted in racism. And we should really have no second thoughts about overturning it. And then went on to write sort of a road map to lay out how he’s going to overturn future precedent with a bunch of blinking neon lights all pointing in the direction of. I will overturn Roe v. Wade when it is time. The very first footnote in his opinion talks about abortion precedents, and he said some of the court’s greatest decisions have overturned earlier decisions like Brown vs. Board of Education. The best decision of all time. Look how woke I am. I love Brown v. Board. And I think when and if the court does cut back on or overturn Roe, we will see citations to this opinion by Brett Kavanaugh, sort of pre pre-emptively explaining how he’s going to do it.
S3: So, Mark, you and I have talked for years and years about how the old divide at the court was between sort of the pragmatists, the technocrats, the make it all work people and then the idealists and, you know, the purists. This isn’t that breakdown, though. This is a very different thing. This Alito chief and the Kagan this is not about pragmatists. This is about a different thing.
S7: Yeah, this is this is all about precedent, but also sort of about virtue signalling. I don’t love that term. But Alito’s opinion is in part devoted to accusing the majority of being basically social justice warrior snowflakes. Alito says, how dare you acknowledge the racist history of these laws? You know, this has nothing to do with the case at hand. It’s totally irrelevant to the legal analysis. You’re just trying to slander these lawmakers and you are violating these codes of civility that we as justices are sworn to uphold and yadda, yadda, yadda, yadda. And so part of this is just about saying like, you know, you guys went way overboard and you’re way too WOAK and you want plaudits from the S.J. W’s and you don’t deserve them. But another part of the decision that the bigger part of the decision was talking about precedent and really kind of accusing the majority of being hypocrites on precedent and all kinds of different ways and saying, look, in 1972 and this is true, five justices upheld a split jury verdicts and Oregon and Louisiana have relied on that decision for 48 years. And now you just threw their systems into the lurch for no other reason than that. You disagree with that old decision and you think it’s wrong and you want to overturn it. And some of you have said over and over again, liberal justices, that the fact that a decision is wrong is not a good enough reason to overturn it. You need something more than that. So why are you guys, Breyer, Ginsburg and Sotomayor are signing on to this opinion that just chucks precedent out the window. And I do think that that is why Kagan joined his opinion. Right, because Kagan is by far the court’s most consistent respecter of precedent. Right. She is very much a principled fan of stari decisis, respecting precedent. And so I think it’s pretty obvious that she joined a leader’s opinion to say, you know, you might want to call my colleagues hypocrites. That’s fine, but I am not going to be a hypocrite. I am standing by what I believe in. And this old decision may suck, but even if it’s wrong, we don’t have a good enough reason to throw it out the window.
S3: So you wrote about Kagan this week, Mark, and everybody. Everybody’s super mad at this week. And you wrote to sort of try to think through, you know, she’s always the three dimensional chess player, as is the chief. So so they’re building a bridge to some kind of what now?
S7: Well, I mean, it’s hard to say. You know, I think the court just threw like four four gallons of tea leaves at everybody and said, sift through this for the next couple of weeks while we all go back on vacation. And one of the tea leaves that I was trying to read was Kagan actually joining this weird part of Alito’s opinion that says basically, you know, don’t acknowledge the racism behind these laws. It’s irrelevant. And the the states have re adopted split jury verdicts more recently. So it doesn’t matter why they adopted them in the first place, because, you know, the more recent adoption was free of racial taint. One thing I was thinking about and I and I will say I got this idea from Mike Sacks, a friend of ours, a legal journalist. There’s another case before the court. Espinosa versus Montana that involves the constitutionality of so-called Blaine amendments, which are these provisions in 38 state constitutions that bar the use of taxpayer money to fund religious institutions and religious education. And in Espinosa, the court is basically asking whether these amendments, which were enacted in the 19th century, are tainted by anti-Catholic bigotry. There is some evidence that they were adopted in part because people didn’t want to fund Catholic education. There is a whole lot of other evidence that they were adopted for many other reasons, including just general. Support for public education for all. But, you know, there there is this reality that some anti-Catholic bigots support these amendments, and there’s a real chance that the conservatives will want to overturn 38 state constitutional provisions that really just sort of enshrine separation of church and state in state law. And what I think Kagan was trying to do here was to endorse the theory that Alito adopts, which is that when a state enacts a law for a bad reason. But then later on re-enacts it for a good reason or an acceptable reason that the taint of bigotry has been cleansed. Sorry for this weird language, but that’s how the court always talks about taints. Right. And I think that Kagan can now try to use that opinion as a cudgel on the chief and Alito and say, look, when we were talking about these racist jury laws, you agreed that readmitting a law cleanses it of taint. Well, these Blaine amendments, the ones that you hate so much, the majority of them have been readapt. And more recently and they were adopted for good reasons because state lawmakers said we believe in the separation of church and state. That’s what Jefferson wanted. This is a constitutional value. So how can you say that all of these Blaine amendments are unconstitutional when you thought that it was no problem that states had these split jury verdict laws because even though they were originally racist, they’ve been reenacted for a totally decent and civil reasons.
S3: In the meantime, do you read all this squabbling as many weren’t sure how to ask this, Mark? Is this just the wheels coming off or is this more of the same? In other words, sometimes we can see when there are, you know, multiple opinions and a lot of strange bedfellows. We can see that the courts really under around something. Do you read this as the court is really, really kind of having a come to Jesus moment about what it’s going to do with starry decisis forever and ever?
S7: Yeah, I think so, yeah. And I think in the process, the wheels are coming off because, you know, like I said, a 6 to 3 decision should not produce this many side opinions and weird breakdowns. And, you know, you have Cavenagh joining some, of course, which is the opinion for the court, but not all of it. And Sotomayor joining some, but not all, and both of them writing these separate opinions. And it’s very clear that the justices are planning for these battles ahead and trying to figure out really sort of once and for all what precedent means to the Roberts court. When does the Roberts court stand by precedent? When does it throw it out the window and what’s the difference? And is the difference really just the personal preference of five justices? I think that’s something that like everyone wants to avoid. No one really wants the public to think that the court will overturn precedent because there’s a new justice who doesn’t like the old precedent and is willing to throw it out. Justice Kagan has talked about this in her public appearances. She said it can’t be that a new justice joins the court and everything is up for grabs. And yet that’s kind of what it feels like, right? I mean, in his very first term, Justice Kavanaugh joined to 5 to 4 decisions that overturn precedent. And it seems pretty clear that he’s willing to keep doing that. And so I do think this is like a come to Jesus moment for the for the court about precedents. And like I said at the outset, any time the court’s talking about precedent on some level, it’s talking about Roe v. Wade. It’s talking about abortion rights. And it’s figuring out what it’s going to do in the months and years ahead, whether there’s a single conservative justice who’s willing to respect abortion rights as precedents or whether they’re all just rolling down the window, getting ready to throw all this stuff out.
S3: So I can’t let you leave, Mark, without having you comment on the new teleconference model of oral argument, which is coming soon to a C-SPAN near you. We just talked to Phil Wiser, the attorney general of Colorado, who’s gonna be arguing the faithless electors case. He says in a suit, but I don’t believe him. What what’s your thought on what? The brand new day of opening up the doors on access to the court. There’s 10 cases, I guess, that are going to be oral arguments will be teleconferencing and livestreamed on C-SPAN. Is this. I don’t know. It’s the apocalypse.
S7: What do you think? I think it’s pretty clear, first of all, that the Supreme Court was shamed into doing this by all of these lower courts that pretty easily transitioned onto the Internet. Yes, there were some bumps in the road. But if you look at state supreme courts, federal appellate courts, they have figured out how to hold arguments over Zoom. And yeah, there’s a learning curve, but it’s largely the same. And they haven’t experienced that many technical difficulties. And once they kind of get into the flow, it’s pretty smooth. And I think that the chief justice looked at all of these other courts and said, you know, if they’re all doing it week. Do it, too. And furthermore, recognize that some of these cases basically have to be decided by this summer, the faithless electors case is a great example. This involves sort of the fate of the Electoral College and whether states can require electors to vote for a certain candidate. And that’s that’s going to decide the presidential election. So this has to be done. And I think Roberts decided teleconferencing was the least painful way to do it. You know, I think it’s going to be awkward at first. These justices are very much used to the flow of in-person questioning. When I watch them at the court and I’m sure you’ve you’ve seen this, too, of course. You know, they kind of glanced at each other. They read each other’s body language to figure out when to jump in. Sometimes there’s a roadblock. Two or three justices ask a question. At the same time, they look to the chief. He plays traffic cop. He says green light here, red light here. And all of that’s gone now. Right. They’re all gonna be in different rooms on the phone. I think that’ll take some getting used to. But I think it’ll be fine in the end. I don’t think that they will be mocked relentlessly on late night shows, which is their fear. And I really hope that if and when the Supreme Court ever reopens its doors, that this continues because the court has the technological capacity to livestream oral arguments right now. They’ve only been refusing because they have all these really stupid and irrational fears about transparency. And I hope that this experience debunks a lot of those fears and maybe brings the court into not the 21st century, but like the 20th century. Right. We’ll be getting their video is next. But that’ll be in like twenty, twenty, ninety or twenty ninety five. Think audio is as much we can ask for right now.
S3: Mark Joseph Stern covers the Supreme Court and the courts and LGBTQ and so many voting rights issues. So much for Slate. And he joins us here for Slate, plus listeners to help understand what’s going on at the Supreme Court. We look forward to hearing what it is you think about, whatever it is you heard at oral arguments next month. Thanks for joining us.
S7: Of course. Of course, we can all listen together. It’s gonna be a beautiful.
S2: And that is a wrap for this episode of Amicus. Thank you so, so, so much for listening in. Thank you for your letters, for your questions. You can keep in touch at Anarchist’s at Slate dot com, or you can always find us at Facebook dot com slash Amita’s podcast. And we do want to know what you’re wondering about. And we do want to know what you need more of. Today’s show was produced by Sara Burning Him. Gabriel Roth is editorial director of Slate Podcasts and June Thomas is senior managing producer of Slate podcasts. We will be back with another episode of Amicus in two short weeks. Stay safe. Take care of yourselves and others. Wash your hands. Hang in there. We’ll talk soon.