Supreme Court Showdown

Listen to this episode

S1: This is a word, a podcast from Slate, I’m your host Jason Johnson with the nomination of Ketanji Brown Jackson to the Supreme Court. The debate about what the Constitution means and who gets to decide that is again at the center of national debate. But as much as Americans in and out of politics love to invoke the Constitution, a lot of them don’t know what it means.

S2: So black people, women, minorities, we have never, not for a day been a full and equal partner in writing or interpreting the laws under which we live. We could change that.

Advertisement

S1: Legal analyst Elie Mystal on his new book Allow Me to Retort a Black Guy’s Guide to the Constitution coming up on a word with me. Jason Johnson stay with us. Welcome to a World, a podcast about race and politics and everything else. I’m your host Jason Johnson. President Joe Biden capped off Black History Month by nominating Ketanji Brown Jackson to the Supreme Court, the first black woman ever nominated. Her confirmation hearings are sure to bring empty platitudes about judicial temperament, speech length, tantrums disguised as questions and lots of hand-wringing about the fate of the Constitution. But how many of the political leaders who go on and on about the Constitution actually understand it or won its protections to apply to everyone? Not enough, according to our next guest. Elie Mystal is an MSNBC analyst and the justice correspondent for the nation. His new book is entitled Allow Me to Retort a Black Guy’s Guide to the Constitution and Elie Mystal joins us now Elie. Welcome to a word. Thanks for having me. We’re here to talk about your book. But first, I do want to get your thoughts on Ketanji Brown Jackson. Like, you know, there was almost a pool of legal analysts guessing who was going to get selected, depending on the political power of Clyburn and Lindsey Graham. Were you surprised at her selection? Why do you think she won out?

Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

S2: No, I was not surprised because she Brown Jackson has been the front runner for six years. There’s reporting out that Biden maybe called her within three hours of Breyer announcing his retirement. She was always going to be the front runner. And it’s something that I’ve been trying to get people to understand for a while now. It was great. Look, I’m really happy that Joe Biden said he was going to nominate a black woman. That’s really that’s important. That’s progressive. Good job, Joe. But let’s be real for a second on your show when he said that during the primary. Every other person on that stage, every other Democrat running for office would have said the same thing because Ketanji Brown Jackson was always going to be the most likely person to replace Stephen Breyer. All right. So whether Bernie Sanders won that primary or the coffee man who won that primary, Ketanji Brown Jackson was going to be a high likelihood of replacing the man she clerked for, Stephen Breyer. That takes nothing away from Biden’s commitment and nothing away from the historic accomplishment and progress of putting a black woman on the Supreme Court. But Brown Jackson had this job on lockdown, I think, for a very long time,

Advertisement

S1: according to Gallup. Like the public approval, Supreme Court is at 40 percent like it’s at an all time low. And to put this into context, amongst the American people like the Supreme Court actually had a higher approval rating after Bush versus Gore. Right? Was 60 percent. So the Supreme Court is less popular now than when they literally flipped an election. And most of it is because people think that the entire nomination and voting process is a political sham. Do you think that’s going to remain the same Will Ketanji Brown Jackson? Or do you think that at least there’s going to be some attempt to restore faith in the courts by at least making it look like a reasonable process?

Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

S2: Biden always wants to restore faith in that way. He’s an institutionalist. He always wants to build back up institutions. He’s going to do all the stuff that one does to try to get Republican votes and support for this nominee. You know, there’s an argument from the hard left that the best Supreme Court nominee would be confirmed 50 50, with Kamala Harris breaking the tie just because that would be the one most odious to conservatives. And that’s who we want, like our version of alleged rapist Brett Kavanaugh. But Biden’s the other way Biden wants to say the best nominee would get 60 votes right. The best nominee would get sixty five votes. He wants as many Republican votes as he can possibly scrounge up for this nominee. And you know what, Jason and I’ll say something positive, which is not like me. I think he’s going to get some like, you know, you can have me back on and call me a naive idiot later. But I think that this is going to be a relatively speaking easy confirmation process, and I do think the Ketanji Brown Jackson will get some Republican votes. They’ve already voted for her. This Senate already confirmed her with fifty three votes. Susan Collins, Lisa Murkowski and Lindsey Graham all confirmed her. If you get Lindsey Graham, which is going to be hard, but if you get Lindsey Graham, there’s no reason why you can’t get Tim Scott. If you get Graham and Scott, there’s no reason why you can’t get Mitt Romney. Like, there’s a chance here for it to be not a complete partisan lockdown situation. And that chance is because Brown Jackson is so overwhelmingly unassailable, qualified if you just look at the quality of the Republican attacks right now. I mean, they’re in tequilas, right? They’re like, Oh, she rejected Trump’s lawsuits to steal the election. That’s a good thing. So they got nothing so far. I think it’s going to be OK.

Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

S1: So a quick vote because I want people to understand this. You said she already got approved. That was to her promotion. To which court? To the appellate court?

S2: Right. So she’s been on the federal bench for almost 10 years, which is longer than four of the current Supreme Court justices come. All right, so that’s you put Barrett and Roberts and Alito and one of the other ones figure out which one and the four of them do not have as much federal judicial experience. I think Kagan’s the fourth one as Brown Jackson, but so she was confirmed by the Senate for the district court. And then in 2021, she was promoted by Joe Biden to the D.C. Circuit Court of Appeals, which is like the theater court for the Supreme Court. And that’s the other thing about the hypocrisy of Republicans are the ones who already voted for her if they don’t vote for her again when she was put forward in 2021. It’s well known that she was put forward so that she could replace Breyer one day. So if they were good with her getting the promotion to the D.C. Circuit Court from then turn around and not be good with her getting the job that she was groomed for. Will be some hypocrisy.

Advertisement

S1: We’re going to take a short break when we come back more with author and legal analyst Elie Mystal. This is a word with Jason Johnson. Stay tuned. This is Jason Johnson, host of a word Slate’s podcast about race and politics and everything else, I want to take a moment to welcome our new listeners. If you’ve discovered a word and like what you hear. Please subscribe rate and review wherever you listen to podcasts and let us know what you think by writing us at a word at Slate.com.

Advertisement
Advertisement
Advertisement

S2: Thank you.

S1: You’re listening to a word with Jason Johnson. Today, we’re talking with Elie Mystal about his new book, Allow Me to Retort a black guy’s guide to the Constitution. So Elie, I have known you for years and I actually learned some things about you in this book that I did not know before. What in your upbringing, like, inspired you to write this book? Because I found nuggets of that and this that are fascinating even to fans of yours who probably wouldn’t know.

Advertisement

S2: So my dad and my mom were both race men right back when that word meant something positive and good, like Jackie Robinson was a race man. That word goes back into black activism, and it’s about people who were out there trying to lift up the whole race right, trying to put that whole race on their shoulders and take us the next step forward. And both of my parents were those people, right? My mother, you know, marched with King Warren in 1950 Mississippi. My father came over from Haiti as an immigrant, you know, couldn’t speak the language and taught himself to speak English, taught himself to read English and taught himself to be kind of a part of the civics of this country to bring us forward. And they always wanted me to do that work as well. They always expect me to be part of that tradition. They didn’t expect me to have to fight as hard as I’ve had. Right? They thought, you know, and I’m sure that your parents are the same way. Like so many of our boomer type parents, they thought they were fixing things so that their kids wouldn’t have to have the same battles, right? They thought we had secured voting rights. And so seeing them being wrong, it’s been hard for my mom, especially, right? But they always thought that I would be part of that generation. So for instance, I don’t say this in the book, but I’ve said this in the past. You know, when I was working at the law firm as a corporate law firm representing rich clients doing horrible things, my law firm was great law firm, if you like that kind of thing, it just wasn’t, you know, socially progressive. So I’m sitting across the table and, you know, it’s a dispute between a big oil company and an African nation, and I’m on the side of the oil company. I’m on the side of the table helping the oil company who was doing horrible things to this African nation. And I come home just like man, the ancestors did not do not sacrifice, so I could do this. And I call it my mom and I’m like, Man, this doesn’t feel like I should be doing this. This is what you want me to do with my life. And she goes, Nope, that’s not the way, son. And like, that’s a big reason why I quit that work and started on the journalism path, the path to have be part of the conversation and the path to try to, you know, and I think of myself as my dad did as a race man, but I want to see black people take the next step forward. And I believe in my heart. If more black people understood what the courts did and how the courts worked and how the courts help hold us back, they would be as outraged as I am and they would be as committed as I am to doing something about it.

Advertisement
Advertisement
Advertisement
Advertisement

S1: In Chapter seven is called like stopping police brutality, and you lay out this ridiculously simple solution to stopping police brutality. Why do you think this administration, which got pushed into power based on protests and activism from George Floyd, have been so feckless and ineffective in challenging or doing anything about police reform?

S2: The fear of police unions are strong. Honestly, these politicians are honestly afraid of cops themselves

S1: for different reasons than us. But yes, right?

S2: For totally different reasons. But you know, the fear is real. So I think that’s a big part of it. They are really attune to white feelings about police and white people like the police. I mean, it’s it’s the fundamental problem of this argument, like they can show up on a March day for a couple of weeks and be like, Oh, we probably shouldn’t joke black people to death in public. But at the end of the day, they like the police. One of the things I’ve always said is people remember George Floyd Day, but I’ve always said that George Floyd Day, the day that that video came out was he was murdered. George Floyd Day doesn’t hit so hard and doesn’t happen without the day before George Floyd Day, the day before George Floyd’s death was Central Park Karen Day that Amy Cooper, lady in Central Park, who called the cops on the board watcher saying that, you know, I’m going to tell them the black man was attacking me when that man was just trying to get her to leash her dog. That literally hit the news cycle the day before George Floyd. And when Amy Cooper is calling the cops, what she is doing is invoking what would eventually happen to George Floyd. It is that white supremacy and brutality that Amy Cooper wanted to rely upon to intimidate. Christian Cooper, the birdwatcher and that is white America. They understand that sometimes they never think that they want their cops to be as brutal as they were to George Floyd, but they always want them in the back pocket just in case. And that is the fundamental problem. So in my book, I lay up my solution for police brutality is not complicated. It’s not radical. There are three cases. If you let me change the rulings on three Supreme Court cases, one involving a police use of force where we currently say that police use of force is determined by a reasonable officer at the scene. Why? Let’s have somebody else decide what reason. Forces to qualified immunity, just get rid of that. And three, Terry V. Ohio, it’s the law that basically allows the cops to stop, frisk and harass people. You change those three laws. You lessen the number of encounters that police have with black people. You change their use of force against black people and you can sue them and take their house if they screw up. I promise you, the incidents of police brutality will go down.

Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

S1: We’re going to take a short break when we come back more with legal analyst Elie Mystal. This is a word with Jason Johnson. Stay tuned. You’re listening to a word with Jason Johnson today, we’re talking with Elie Mystal. His new book is Allow Me to Retort a black guy’s guide to the Constitution. You Elie you are funny online. You are funny on television. Your book is funny. And I’m wondering, are you just being yourself and people laugh? Or do you actually attempt to infuse humor into what you write for the nation or how you tweet

S2: little comedy, a little comedy on Column A.? The actually trying to be it? There are a couple of things, right? First, I’m a columnist like my bread and butter is getting people interested in my opinions as opposed to my leather, you know, shoe leather reporting. I don’t do reporting. And so if I did reporting, I would need to turn off a little bit more. But the other reason why I do try to try to find it is I write about law and law is boring to most people. It’s incredibly important yet very dry. So if I just say, well, you know, statute twenty seven point three five S. C. So like, I’ve already lost you. Like, I literally lose people saying the names of law before I even get to explaining what the law does, right? So I try to have energy and humor and whatever. So, you know, one of my heroes in terms of how to do this honestly and find people special can be surprised. I say this is Bill Simmons, Bill Simmons Old School. Bill Simmons used to write about sports from the perspective of a fan, not from the perspective of some kind of the guy is high in the sky with the right. He was in the bleachers like he was on the scene. He was watching on TV, making jokes with his buddies and like, that’s how he understood the sports world. That’s how I understand the what the legal world. I try to be the guy who’s like watching court TV almost like Mystery Science Theater 3000 meets court TV is what I’m trying to do just to get people engaged and appreciative of this extremely important yet relatively dry section of their lives. The law is the third branch of government. We should cover it more like Congress. We should cover it more like a sports game, since that’s what we do to Congress, right? In terms of Column B, like, I don’t know that I’m naturally funny, but I am naturally cynical, right? I have a natural ability to just take the piss out of certain things. And I think the last part of the secret sauce is just like, this is I think I share with you, and I think I share a lot with a lot of black journalists. And in particular, you’re just out of effort to give. At some point you get to that level of blackness where you just like, you know what, they’re going to come at me no matter what. And so I might as well go down saying what I actually think I have the opportunities in my life to get ahead by saying what white people wanted me to say that life was not fulfilling for me. So I decided to have a life where I say what I want to say and just let the chips fall where they may.

Advertisement
Advertisement
Advertisement
Advertisement

S1: Your book so you engage with a lot of really, really tough issues and you talk about voting rights. You talk about police brutality. And yeah, we’re going to get Ketanji Brown Jackson on the court. But basically, I often come to the conclusion that we’re still screwed given just the cycles of history in this country. My question for you is what the heck does the future offer us? What is our only chance to stop this pushback against Barack Obama, this pushback against the hard fought rights that your parents fought for? What the hell are our chances of fixing any of these problems that you see in the courts right now?

S2: I mean, look, it’s expand the courts or GTFO. I’ve said this recently. Ketanji Brown Jackson nominated. She’s 51 years old. That’s very young for a nominee. Amy Coney Barrett was forty eight. Brett Kavanaugh is just now 51. Republicans have been appointing embryos, and they are going to wield power long after Trump is dead. The people that he appointed will be wielding power and stopping things like climate change legislation, gun safety legislation and voting rights, right? So like either we accept generational Republican control of the courts or we expand the courts now in terms of accepting it. Make no mistake, white Americans accepted conservative control of the courts for 100 years. The courts have historically been a conservative institution. The white people fought a civil war to enhance the freedom and equality of all peoples and then ignored the victories of that war for one hundred years by letting the conservative Supreme Court handle it. So when I say that we expand the court or accept permanent conservative rule, remember permanent conservative rule is entirely acceptable to way too many white people in this country. So that’s our problem. Expanding on the court would fix it, and I think that we would be doing it if more people understood how important the courts are. The courts have not always been at nine. We started at six, we went to seven, then eight the nine that and then back down to seven then. Now we’re at nine again. So you can change the number as much as you want the population of the country now versus in 1869 when we last went. A9 has increased dramatically to say nothing of the participation that we have in this country. So there are lots of reasons to expand the court and for people to say like, well, we expanded the Republicans, we’ll just expand it right back. So how is that works? Right? Republicans already have permanent control if we expand and then later, Republicans somehow get control of the government again and expand the courts again. That puts us right back to where we are now. So I don’t see how that’s a legitimate concern. So, yeah, I think expansion is the other thing, the thing that I didn’t put in the book because I’m afraid of it, but I kind of obliquely reference in the book. You also have to remember how other countries have done this when South Africa came out of apartheid. Nelson Mandela, he becomes the president. And Black people now finally have full equal rights in that society. Did they just stick some amendments on their Afrikaans apartheid constitution? No, they lit it on fire. They started over. They had a whole new constitutional convention for took two years involving all of the people. This time came wrote an entirely new document, which by the way, folks, in case you’re wondering, the South African constitution is now widely regarded amongst legal scholars as one of the best pro-democracy pro human rights constitution in the world, not the American old trifling thing. It’s the South African one that is a world leader, right? So we could do the same thing instead of having a constitution that was written by white male slavers and colonizers and white males who were willing to make deals with laborers and colonizers. None of the amendments, by the way, that have given other people rights. They were also written by white males, right? All of the amendments were ratified by white male legislatures. So black people, women, minorities, we have never, not for a day been a full and equal partner in writing or interpreting the laws under which we live. We could change that. But the problem with the new constitutional convention is who gets to choose the delegates right? And in this current world, the people choosing the delegates would be like literal insurrectionists. And frankly, white Democrats who are way more concerned with comedy and basically, you know, it’d be the Joe Manchin crowd would have a bigger seat at the table than, you know, Latinos. So I don’t know that a constitutional convention is actually a solution. But I bring it up to remind people there are other ways of skinning this cat and we have chosen a particularly dumb one.

Advertisement
Advertisement
Advertisement

S1: What is the thing that you want people to get out of? Allow me to retort, what’s the thing that you want people to get out of this book care?

S2: I need you to care. The Republicans have single issue voters on the Supreme Court. I do not believe the Republicans are smarter than the Democrats. I do not believe the Republican base voter is smarter than the Democratic base voter. But I can go into a tabernacle in Utah and find some mom who’s like, I don’t really like Donald Trump, and I think he’s probably racist and definitely sexist, but abortion and will vote Republican up and down the ticket. Right? You can go to a bar in Texas. They don’t know nothing about civics or nothing. But, you know, I don’t like them gays kissing each other. So I got to have a Supreme Court. They know that, right? Democrats don’t know that. Part of my book is to show anything you want, whether it’s gun regulation, climate change, voting rights, anything that’s important to you. You cannot have unless you have the Supreme Court. So I want that kid, that high school kid, you know, fresh voter, 18 year old voter. I want him to care enough to become a single issue voter on the courts. I want liberals and progressives, you know, progressives who are to the left of me on some issues to become a single issue voter on the Supreme Court. Because if we don’t have the Supreme Court, we ain’t getting universal health care. We ain’t getting Medicare for all right. We’re not getting the things that we all say that we want unless we control the courts. And so people take one thing away. It’s pay attention and care because the Republicans do. This is an asymmetrical war because Democrats haven’t even taken the field on the issue of the courts.

Advertisement
Advertisement
Advertisement

S1: Elie Mystal is an MSNBC political analyst and the justice correspondent for the nation. His new book, Allow Me to Retort a black guy’s guide to the Constitution is out now. Thanks, Ali. Thanks for having me. And that’s a word for this week. The show’s email is a word at Slate.com. This episode was produced by Jasmine Ellis. Alicia Montgomery is the executive producer of Podcasts. It’s late June. Thomas is senior managing producer of the Slate podcast Network. Our theme music was produced by Don Will. I’m Jason Johnson. Tune in next week for word.