The Court Astonishes - Special Guest Ed Whelan
6:59PM Dec 15, 2021
Welcome to another episode of America's constitution. I'm Andy Lipka. Here as always with Professor Akil Omar. Hello, kill.
Hey, Andy. And thank you, Andy. And thank you audience. I say that specially today because this is our 50th episode, not quite our, our silver anniversary, but our silver episode. And Andy, it's all because of you. Thank you so much for the opportunity to do this every week. And boy, what a silver episode we've got for our audience. This week. We're recording this on on Friday, December 10. And the Supreme Court as actually, justices on the Supreme Court just hours ago, minutes ago, have said some truly extraordinary things, some astonishing things and and not entirely in a good way astonishingly troubling things. And we've got a special guest as well. So Wow, we got we got a lot for our audience in this silver episode. And you
even got to channel our hero Abe Lincoln by echoing his claim of astonish or legal history,
which is what he called Dred Scott and he meant it not in a good way. And we're going to talk actually, I think about Abraham Lincoln and Dred Scott in the course of talking about today's big news from the Supreme Court.
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Yes, and Ezekiel here. Thank you. And I'm very grateful that you could make it. I'm grateful to both of you.
So one of the things that we've done over the weeks here in our podcast is describe different aspects of the of the legal ecosystem, things like, of course, you know, faculty, courts, Justices, journalists, authors, you know, and so forth. And you've had a somewhat atypical path through the legal legal ecosystem. When Wouldn't you say, Can you can you tell us a little bit about your, your legal path and where you find yourself now?
Sure, well, I often describe myself as a recovering lawyer. I moved to Washington, DC 30 years ago to clerk for Justice Scalia. This was after several years in private practice, which is unusual back then. But I I decided I didn't want to spend the rest of my life in private practice and didn't know what to do next and was fortunate to have the Scalia clerkship somehow arrived for me. After that I was a I worked for Senator Orrin Hatch on the Senate Judiciary Committee for two and a half years was very involved in judicial confirmations, including the confirmations of Ruth Bader Ginsburg and Stephen prior to the Supreme Court. After seven years in house working for a fellow named Bill Barr in the telecommunications field, I was principal deputy in the Office of Legal Counsel for two and a half years at the beginning of President George W. Bush's administration. And for the last 17 or 18 years, I have been with the ethics and Public Policy Center as its president until earlier this year. And in that capacity, I have written a lot about judicial confirmations about constitutional law, and a host of other matters.
If I could just jump in, and very modest, and there are a couple of particularly interesting aspects of the by his biography, that I'd like to call attention to. One is he's worked in all three branches of the federal government, he did a clerkship for Justice Scalia, as he mentioned, that is at the apex of the judicial branch, but he's also worked in Article One, the legislature and the office and in the Office of Legal Counsel, the executive branch. So that's interesting. A second thing that's interesting is that, very unusually, I think, for folks of have EDS in my generation. He did not go straight from law school to a Supreme Court clerkships or, you know, a lower court clerkship and then a Supreme Court Krishna. I'm not sure that I had actually known that before. So So you graduate from Harvard Law School, what year and then, um, did you do a lower court clerkship before Scalia? So just because that's becoming increasingly common now, there are justices we're actually hiring people, long, perfect young law professors, for example, or out of practice, or in practice for a few years. But back in the day, that was pretty atypical. So that just give us the date said,
Well, sure. I graduated from Harvard Law School in 1985, I clerked for a year for Judge Clifford Wallace of the Ninth Circuit in San Diego. I was in a private practice with a law firm of Munger Tolles And Olson in Los Angeles. Great firm, great practice. But after a few years, I suddenly realized I didn't want to do that for the rest of my life. And told folks, I was I was decided to leave they said, What are you going to do? I said, I don't know how I'm going to figure it out. But unless I tell you, I leave I will leave a pipe around here forever. And I looked at different opportunities, including interviewing with the Solicitor General's office where I met for the first time a fellow named John Roberts. But actually wasn't thinking at all about Supreme Court clerkship because it was out would have been unusual to see one then but through a process I still don't quite understand. I ended up getting connected with Justice Scalia, and he brought me on board.
This hasn't been Pre rehearse just telling the audience members and so Andy just may not even know this, but I'm in the small world department. I'm just putting two and two together. My brother Vic clerked for the Supreme Court. He clerked for Harry Blackmun. We're probably going to be talking about Harry Blackmun just a bit today the author of Roe versus Wade Vick that year when he was clerking for Justice Blackmun his his housemate was a Scalia clerk Henry Weissman, Yale Law School graduate, they became good friends. It later became actually Henry's best man at Henry's wedding and Henry went on to monger tolls. So I bet Ed and Henry knew each other among their tolls that at a certain point, and and that might be in the Six Degrees of Kevin Bacon. One interesting link between the younger Ed Whalen and the future Scalia, Clark Adwaita.
Absolutely, I was a blast to actually have Henry working with me as a junior associate on some matters. rare that you want to have such a such talent and know Henry, I'm sure was of assistance in the process.
So all this is about in a word, just for the audience members networking, that's part of the legal ecosystem, you know, whom you met. As I said, modest Bayes actually already dropped some pretty interesting names Bill Barr, John Roberts, Antonin Scalia, and, and others. So back to you, Andy.
So now your position then your your senior in the ethics and Public Policy Center. And your work there finds publication in various places I you know, you have you appear frequently as with a byline in the, in the National Review, for example, you have, you know, some something of a column there, I guess it is. So what do you see as your role now, you know, you have this position, but what is the the point of this position? In other words, what are you trying to accomplish in this role? And what is it about your current role that is more suited to you than the role in the law firm that you found, you know, it wasn't a fit.
Well, I first started blogging back in 2005. And did the blog that I write regularly on, which is called bench memos on National Review Online was established in the fall of 2000. I'm sorry, in the spring of 2005, at my urging, because I anticipated that there might soon be Supreme Court vacancies opening up. And I thought I would have a lot of insights and information to provide and in particular, I wanted to make sure that I could knock down on a same day basis, false attacks, erroneous arguments made against judicial nominees, of course, the first Supreme Court nominee that year was John Roberts, and I was very vigorous in explaining his record, defending him from from what I thought were distorted attacks and did the same later on that year and into 2006. On Justice Alito, so that was the that was the impetus for getting started. I then discovered that the blog was also a valuable mechanism, or valuable means of talking about oh, principles of judicial conservatism of originalism, explaining explaining opinions. A lot of my work was defending Justice Scalia's opinions against what I thought were misguided attacks. And so I think, over the years, as I've been grateful to draw an audience, these have been the two focuses, that is judicial confirmations, including at the lower court, where I've been involved in a lot of the battles over process changes as well. And then general principles of constitutional law. And I would like to think that one of the assets they bring to the task is a broad background in constitutional law, in American government, but I think another an area in which I try to add value is that I can be very rapid and analyzing cases and in helping to shape from the outset, how a ruling ought to be understood or responding to maybe at some some law professors op ed that I think is is misguided. So I see a premium on being quick to write and I think that's one of my strengths.
And if I could just jump in Andy, in a way, Ed is a precursor of us of this podcast because he is trying to respond very quickly. And in that sense, he is a certain kind of journalist from the French word sure that the day wants to respond immediately. But he's different. You see, from the mind run of journalists, who don't actually truthfully have a long term perspective on anything, they just jump from story to story to story today, it could be a fire tomorrow, or an earthquake the next day, a pandemic, that the next day is shooting the next day, a Supreme Court case, and they just cover what the news is just anything that's recently happened, and a certain kind of journalist just jumps from story to story. And ad isn't that he what he just explained as he's trying to take certain things that are happening immediately, a confirmation battle, or a Supreme Court oral argument or Supreme Court opinion. And he's trying to respond very quickly, much more quickly than a typical law professor might in an article published a year later, or a book published five years after the fact trying to respond very quickly in journalistic fashion. But to try to place the day's events in the perspective of a much larger theoretical framework that stretches back to the past. He's interested in the founding and originalism, all the way through two and a half centuries of our constitutional history, but also with an eye toward I'm thinking about the long term implications of this claim, or that one, this appointee or that one. And in trying to do that, and he is telling you, he started this project in 15, a decade and a half ago, 15 years ago. He's, in some ways doing stuff that we're trying to do actually, in our blog. We often not always, but we often are picking something that's ripped from the headlines, very current, but try to place it in longer term perspective, both its connection to the past. originalism, and its its implications for the medium and long term future.
Well, a couple of comments on the first one, I don't think it's really on our blogs as much as we were on a podcast. I guess this is me, but yes, but but also, I think that I don't consider us to be journalists. And I don't think that that Ed is a journalist in that sense. Also, just because he's using the medium of, you know, print or, you know, internet writing, and so forth. He's not a journalist anymore than Neal Katyal, as a journalist, when he appears on on MSNBC, he's a legal expert or a legal commentator that's providing expertise to journalists, possibly, Neil is, and in the case of Ed, he, you know, he's his, he has sort of his own vehicle here. He's not relying on someone to ask him a question. But nevertheless, he's, he's providing a certain expertise.
But here's why I said it the way he did, and you know, if people don't want to be called journalist, and I won't call them journalists, I call myself a constitutional journalist. And in fact, I tried to meditate on the role of the constitutional journalist. And the tension there in that in my book, The Constitution today, in fact that the structure of the whole book is, in part, this tension between the journalistic side of me, which is responding to things immediately from the French word de jure, and like the Wall Street Journal, it's what's happening today, um, and but trying to put it in a much longer term perspective than your typical reporter. So I do think that on the right hand side called as a blog, and we do have a website, but but but this podcast is a weekly thing, where we're at, and we're talking about often what happened in the last week, like the debate in the Mississippi abortion case, and I think today, we're recording this on Friday. There were actually a couple of interesting judicial developments at the Cordon, and we're going to talk about them in this podcast. So in that sense, you know, we share something with a journalist and that we're trying to jump in very quickly. But we're different than the rest of the journalist. You're right because of a certain claim of legal expertise. And but Ed wanted to jump back in,
but I certainly don't claim the term journalist for myself, among other things. I think there are many journalists who undertake to have a To play things neutrally, I never claimed to do that. I want to make sure I get everything, all the facts right. And I do my best when I write, to make sure that people can tell the what is what I present as factual from what is commentary so that they know what they know. Okay, if I say a case says this The case says that if I if I say this is a good result, they know I'm and gave some commentary at that point. But I, I would not present myself as a journalist, and I don't mind the the insult being flung upon me at times, but it's not a term I would use myself.
Maybe we could actually transition to what's actually happening today.
Right? Well, I was going to say, you know, what, perhaps one way of interpreting, you know, your role, you know, so forth might be to take a real life example. And we've got one right in front of us here. So, this morning, the Court handed down to rulings related to the Texas abortion law, SB eight.
And then you say this morning, just reminding everyone, we're recording this on Friday, December
10. So okay, so that happened at 10 o'clock Eastern time. And so what did your morning look like?
Well, I was very ready for the possibility that the court would issue these rulings today, I made sure I set aside my schedule, so that I would be free.
So you saw it coming?
Well, I can't say that. The possibility the possibility of the Court has announced would be rulings today. And it's not surprising that these were the rulings to wind back a bit. It was sometime in late August that I heard talk about this Texas bill and figured well, let me find out more about this. And I wrote up some blog posts quickly became very knowledgeable about it, and have written who knows how many 1000s and 1000s of words about the different challenges to the case since then. So I think that's a good example of how, you know, on August 15, I don't think I'd written a word about this matter. But it's been something I've written a lot about day in and day out. Since late August, but so yeah, so today, as soon as the court's opinion came out, I tweeted about it initially, making sure that that people understood how the court had ruled included link links to the opinions. And then I wrote a couple blog posts that were a little more thorough, there's still very just a sketch of what happened. There's a lot more that I'll probably write in the coming days. But I wanted to make sure that that folks had an accurate account of what the court had ruled. I'm told that that many media outlets have reported this as a as a big defeat for the Texas heartbeat Act, which I don't think it is at all. And I explained why. But it's that sort of wrong tape that I that I try to preempt or counter in my writing.
So substantively, what what is the news? As you see it?
Okay. Well, the court I had two cases before one involving a complaint brought by abortion clinics in Texas and the other complaint brought by the Department of Justice. And the Court ruled in the first case by essentially a five to four vote, that the lawsuit of the abortion providers could go forward only against a handful of state defendants who are have overcharged with licensing responsibilities, and to muster May, somewhere down the road to take action against individuals who have been involved in violations of the Texas heartbeat act. Most importantly, the justices in the majority ruled that the lawsuit could not proceed against the state judge who is a named defendant on behalf of a class of defendant judges, or the named county clerk, who likewise was a class defendant on behalf of a to be to be certified class of county clerks. And I think everyone recognizes that those were the defendants against whom relief might possibly have been effective. In order to stop the threat of private actions against the abortion providers, there are four justices in dissent. The chief and the three liberal justices who believed who opined at least that the actions ought to be able to proceed against the the court clerks. Now this is this is all I should emphasize, in the arcane realm of what law professors call, you know, federal court matters, some of the most difficult and interesting questions involving limits on federal courts jurisdiction on their authority to grant relief, sovereign immunity of state actors, exceptions to sovereign immunity, a whole host of very complicated issues that Passover for now. But the essence of the of the ruling in the abortion providers case is that there's only a very limited relief. Relief that I think the abortion providers will not find effective, provided by the justices in that case, on the Department of Justice's separate case, the court dismissed the search or a petition is improvidently. Granted, I think I a big defeat for the Department of Justice. Only Justice Sotomayor, registered dissent from that action. And so what there has not been, in addition to there not being a ruling against the state judges and state clerks, there also hasn't been any order purporting to tell private individuals that they can't file lawsuits for violations of this Texas heartbeat act, I suppose should go back a bit. Were maybe assuming a lot of background knowledge here. But the the Texas heartbeat Act is a bill that became effective on September one that says that abortions done in Texas, after a heartbeat is detectable, violate the law. And it cleverly says that state officials have no responsibility for enforcing this action. And thus, is this is designed to prevent those officials from being enjoined from enforcement, its stead leaves enforcement to to private individuals in a way that's been very controversial.
There's a lot in that. And I think that they're in the in the Chiefs dissent in the not in the case against the Department of Justice. But in the other in the other case, the Home Health case. He talks a lot about questions of supremacy, right? He calls in Marbury vs. Madison, you know, United States versus Peters, he says where he quotes. If the legislature's of the several States may at will a no the judgments of the courts of the United States and destroy the rights acquired under those judgments. The Constitution itself becomes a solemn mockery. So these seem that seems not arcane, but, you know, fundamental, and it's in its approach. So that's one point. Um, and the other thing is that, so part of the cases allowed to go forward, as you said, against officials that, for example, might deny abortion provider, his medical license, you know, or something like that. So suppose that case goes forward and is found in favor of the abortion doctors, what would the implications of that be for the law?
Well, I think for starters, it will probably be tough to get any such victory, because you're not going to get an injunctive relief, for example, absent some sort of threat I think of, of injury, and it's difficult for an abortion provider to say my license is going to be revoked, even though I'm committing to comply with the statute. So there's a bit of a bind, I think. But when you would have would if the abortion providers were successful, as you'd have some sort of order to the licensing officials saying that in the event that you determined down the road that this particular abortion provider has violated the Texas heartbeat act, you are not to make any adverse licensing decision on that basis. I think that would be the the greatest extent of the possible relief in this particular case.
Let me take public Camera's way back, because we've been awarness about this is this is why a course in federal jurisdiction, which I used to teach every year was actually the course I was basically hired to teach it. You know, law school, was nicknamed at Harvard Law School, back in the 1950s. By Henry Hart, and Henry Ayers test was was effectually or not so effectually known by students is darkness at noon, just because it can be it can get very technical. Very quick, let me let me pull the camera way back, ed in his most recent posting, and again, we're talking now on Friday the 10th, early afternoon, but he posted something on Friday morning, said several things that I thought were really interesting one thing, Andy that he said was actually responsive to an issue that you and I talked about last week. There had been oral arguments, in which lots of commentators immediately drew some very strong inferences about justice Cavanaugh and justice Amy Coney Barrett and and how they might be likely to draw. Maybe they joined the Liberals along with John Roberts, and create a block of of six justices that that might actually make it easier to challenge this law in federal court. That didn't happen, in part because the justices may be asked a whole bunch of questions, but it may be was a mistake to infer from those questions exactly how they would roll ultimately, when they when they looked at it more carefully. And you would ask the question about how much or how little we could. Andy last week, you would ask the question, how much or how little we could infer from questions that oral argument and actually said something about that this morning. So Edward just say,
well, I said that I and others, you know, made a mistake in reading too much into the oral argument in particular. Many of us thought from the oral argument, as you said that justices Cavanaugh and Barrett might be with the chief in this case. Instead, they were exactly where they were in the ruling on September one when the abortion providers first sought emergency relief against enforcement of this Act and the court by a five to four vote, deny that relief.
So now here's a second and related point, because this seems really hyper technical. But in fact, really big issues about American Constitutionalism can be deduced from what just happened today. And I'm going to actually try to pull the camera back so our audience can can see the really big picture. Justice Sotomayor said the attorney general in effect said John Roberts actually said the Chief Justice gee, if you don't have very broad ability at this stage to bring a certain kind of anticipatory lawsuit. Oh, the Constitution is set at not a we are undermining Marbury vs. Madison and the constitute and constitutional first principles and the rule of law. And truthfully, I'm skeptical about some of those claims. And I believe is skeptical about some of those claims. So so let me just give our audience just just one little primer just a bit and then ask add to respond on judicial review. And what is about and not about. The judicial review often takes place. Actually, when the government initiates an action against an individual. This is actually a very famous theme of Henry Hart's effects. As I mentioned, Henry Hart and his his famous course in federal courts, nicknamed darkness at noon, and the landmark case book is actually called Heart and Wechsler and even today, it's the single most cited case book by the United States Supreme Court. It's sort of rather definitive I taught from it. A lot of times judicial review does not occur when an individual sues the government anticipatory before the government has actually acted. It can sometimes take that form, but a lot of times is very different. The government comes after me and as an individual or us as a doctor or add because they claim he hasn't paid his taxes or whatever, they actually go after him, or you or me, and we raise the Constitution sort of as a defense. We say, actually, the government can't do this because what they're trying to do is actually unconstitutional. And nothing that has happened of late seems to me remotely, to imperil that core idea of judicial review which Henry Hart actually put forth as actually Pretty close to the heart of of Marbury vs. Madison like ideas if I do agree with that, Ed?
Yes. And in particular, I think it's essential to distinguish as I know you do between judicial review, that is the power or one might even say the duty of a federal court to refuse to apply in a particular case, a law that it deems to be unconstitutional. With the myth of judicial supremacy, the notion that the courts and the Supreme Court in particular, have some sort of exclusive privilege role to say what the law, what the Constitution means that whatever they say it means is what it means and everyone else needs needs to accept that.
Yeah. So let me actually we're going to disentangle that. Now you're starting to see, and it's just connecting a little bit to what we talked about last week about the Great and Powerful Oz has spoken, whether the Supreme Court statements are really the same as the Constitution, we're actually not quite the same as the Constitution itself. But But first, this really seemingly technical point, even if no abortion provider, even if no, abortion seeker in Texas, could bring a lawsuit in anticipation of some government restriction, once the gun once the government in one way or another starts to act against individuals against a patient or against abortion provider. Oh, there's judicial review. And no one has ever thought in Texas or anywhere else has ever thought otherwise. Okay. So that's that's kind of one point. That's pretty key. What was at stake here is not with all due respect to Justice Sotomayor or two Chief Justice Roberts, any assault on the basic ability, right and into duty of court in proper cases to protect individual rights, with opinions that define the courts understanding of those of those rights. That wasn't an issue today, although some, I think, overheated rhetoric, in Justice Sotomayor, his opinion, and frankly, in the Chiefs opinion, might suggest that, but that's actually not what's at issue, as I understand it. And I just want to confirm that Ed sees that the same way. And then I was going to move, though, to the second question of judicial supremacy, which raises a slightly different issue, because if any, I promise it, I know you want to jump in, but this is really technical stuff. And I just want to walk the reader through that to get from darkness to noon, actually.
Well, I do see that way just to be the devil's advocate, though, I think the the part of the argument that, Justice Sotomayor that Chief Justice make is that the chilling effect of the act is such that they're never even be these enforcement cases in which they can present the defense. Now, as it happens, the abortion providers actually won a case in state court yesterday got a victory in state court yesterday, and a case that I believe that they didn't even file until sometime in September. And it certainly seems as though they may have missed focused on a federal court. So we have all these jurisdictional obstacles that come into play, rather than on the Texas courts. So so
so judicial review is not just something that can happen in the Supreme Court, it can happen in lower federal courts, and state courts, all courts. So that's that's one point and some of the special rules that were being litigated at the Supreme Court rules and just said that limit federal courts but not necessarily actually state courts, but I just wanted now, and talked about judicial supremacy, and it can mean different things and how is it the same as or different from judicial review? And what does Marbury vs. Madison really mean? Marbury got invoked today by the United States Supreme Court. They don't actually cite Marbury vs. Madison in every single case. So they ratcheted up the stakes today, they meaning John Roberts and Sonia Sotomayor, and this is what I teach Marbury vs. Madison isn't just common law, it's fed courts, you know, one on one, and this is what I was hired actually at the law school to teach so so I want to actually go through it with just a little bit of care here. Here's what Marbury does not say, quote, The Supreme Court is the ultimate interpret the Constitution, unquote. It doesn't say that at all. Our audience will put the will put the case up on our website, so they can do a word search, they will not find that they will find if they go online, the Supreme Court at least half a dozen times in the 20th and 21st century, citing Marbury for that proposition, but never with a page site. The Supreme Court the ultimate term of the Constitution. Marbury actually didn't say that it actually didn't say much at all about the Supreme Court as such. It actually talked about courts in General, the judicial department which includes, at a minimum, all federal courts, maybe state courts as well, which which add invoked. One of the things that really upset Justice Sotomayor ears, nose out of joint and the Chief Justice is nose out of joint. And and and Justice Sotomayor, his opinion was joined by justices Briar and and Kagan and together that they just added to for for those of you who are counting is that this Texas, fetal heartbeat law is pretty directly inconsistent with Roe versus Wade, and Casey, which are Supreme Court opinions from 1973 in 1992, respectively. Okay, they are. But a statute that's inconsistent with a Supreme Court opinion, even a Supreme Court opinion purporting to interpret the Constitution is not the same thing as a statute that's inconsistent with the Constitution itself. And, and one understanding of judicial supremacy and add rejects judicial supremacy. And so do I, if this is what judicial supremacy means? One understanding is she a two quick conflation between what the Constitution actually says and what supreme how Supreme Court decisions have interpreted the constitution? So in our last week's episode, I said, Gee, Dred Scott said us and so and actually, um, it's a blacks couldn't be citizens. It really does say that my opinion. And Abraham Lincoln, actually his Attorney General, disagreed with that and actually issued a passport a federal passport to a black, which could only issue if that black were really citizen and Lincoln's Justice Department and Lincoln's excuse me, administration, his attorney general Bates took the position, the blacks were citizen could be citizens under the Constitution, and the Dred Scott was just wrong, his obligation, Bates thought was to the Constitution, and not to the judicial opinion. Now, it's possible to imagine a lawsuit might have been able to materialize or not in which that could have been litigated. And the Supreme Court would have had the opportunity then to reaffirm Dred Scott or overrule it. And in effect, that's what Texas is is doing with it statute is passing a law, which will not be immune from judicial review, once it's actually directly enforced against abortion providers or their affiliates, they're Aiders and abettors. And as soon as a minute, no matter what, what other remedies might exist, or ability to come to court, as soon as that law actually starts to get enforced against people, oh, there will be judicial review. And there will be a court case and the court that court case can easily get up to the US Supreme Court, which can decide whether it wants to re affirm Roe versus Wade and Casey or overturn them. And I know you want to jump in on that point. Sure.
And of course, there was nothing accidental about the Lincoln administration's issuance of this passport. Lincoln ran for president condemning the Dred Scott, the Dred Scott decision, and making clear that while he would respect the judgment in that case, he was not bound by its reasoning, including the abominable statement that, that blacks could never be citizens. What do you
mean, what do you mean? Sure, right. But what do you mean bound by the judgment of the case just for our audience, because we're making a technical distinction? That's very important.
Uh, sure. Well, the the particular judgment in that case was that Dred Scott had not become a free man by virtue of his traveling with his purported owner into federal territories in which Congress had abolished slavery. So with respect to the judgment,
the judgment is Dred Scott is not free. And Lincoln wasn't purporting to try to free Dred Scott Dred Scott was a litigant. He was a party to the lawsuit. He lost and Lincoln respects the judgment on the facts of the case. And the party's the case, Dred Scott lost and Lincoln isn't going to try to use his presidential power to liberate Dred Scott as a as a human. One human being was bound by that lawsuit. That's the judgment of the court. It was Dred Scott versus Sanford. And that's what we call race. judicata. A thing adjudicated so as to the party, so lawsuit. Too bad for for Dred Scott, unfortunately, but
Well, I'm actually not sure that I agree. Oh, with Lincoln's concession on I agree with what you said. But that is I'm not sure that the The President, the executive branch, in all instances, even these to respect to judgment, but that's that we'll set that aside here. So, Lincoln said, I'm not going to stand by the supposed reasoning or the principle that this case stands for. And so he issued passports to blacks of citizens, as I understand he issued patents as well to black sisters since he also, as I understand it, signed into law, a bill that banned slavery in another federal territory, yes, in other words, went directly against the the the holding of Dred Scott.
So Dred Scott had multiple holdings, and at his remaining, one was that blacks couldn't be citizens. But a second was that Congress could not prohibit slavery in the territories, which was preposterous, Lincoln called that, quote, an astonishing in legal history, unquote, because the Missouri Compromise had done that the Northwest Ordinance had done that. George Washington sign the Northwest and Northwest Ordinance bill into law as the I think the eighth statute ever passed by the first Congress. So it was shocking that the Dred Scott, a court, the tiny court said that Congress can't prohibit slavery in the territories, Lincoln call that an astonishing legal history. And scientists named to a bill passed in 1862, that actually did free blacks, for example, in Washington, DC, which is a federal territory and, and elsewhere. And that's not so different. You see, from what Texas did, they're passing a lot, it could go back up to the Supreme Court, which would then have to decide where they're gonna double down on Roe versus Wade. Oops, I meant Dred Scott, that whether they're going to double down on that, or they're going to use that new law as an opportunity to overrule or disavow the earlier case. So for me, and I'd like to get your opinion on this ad, I was genuinely shocked by so this is what I believe is news today just happened two hours ago, Justice Sotomayor, is opinion in one of these cases, which you described as having all sorts of designed to grab headlines. I think you're right. She's she's making an appeal to the broader American people. So I want to take her seriously. She's making an appeal to the public, I want to in real time as a journalist, because I'm not offended to wear that label myself, on the very day to say, Gee, here's a very problematic thing that you said. She quotes a brief in a related case, saying, quote, and she's apparently deeply offended by this sentence. The Supreme Court's interpretations of the Constitution are not the Constitution itself. They are after all called opinions. Now, I think that's plainly right. And she thinks that's completely wrong. Because here's our next sentence. The nation fought a civil war over that proposition. I'm thinking what are you talking about? Abraham Lincoln agreed entirely and emphatically with that, which I agree with? I think Ed agrees with that. I think that's common law. 101, even though Ed has reminded me offline, that's not how many other people teach it. Well,
she is conflating two very different propositions. She calls them analogous sentiments, maybe their sentiments, rather than rather than thoughts, but they're not analogous. So yes, Calhoun wrongly insisted that a state had the right to nullify a federal law with which it disagreed. That was just disputing the supremacy of federal law, not just the Constitution, but of statutes that are that are constitutionally permissible. But the second sentiment,
and I'm with you on Calhoun, and and he knows that in my new book, I really beat Calhoun up about the head and shoulders. Oh, at great, great length. States can't nullify federal law they can't withdraw from the union and state court rulings are on federal law are subject to Supreme Court review and reversal and nothing that Texas has done comes remotely close to challenging that because when they actually start to enforce their law against people, oh, the Supreme Court can jump in quite easily judicial review of a classic sort.
But for Sotomayor to go on and say that the Nullification doctrine is analogous to the simple incorrect proposition that the Supreme Court's interpretations of the constitution or not, the Constitution itself is remarkable. And
they remarkable you mean not in a good way?
That's that's that's right. I don't think it's a proposition that can rationally be defended. Abraham Lincoln certainly rejects the proposition that the Supreme Court's interpretations of the Constitution and Dred Scott were the Constitution itself, Jefferson and Jackson before him had done so. And it really wasn't until 1958, that the court first propagated this myth of judicial supremacy. And what I did, concocted a false history around it making it seem as though this wrong and much contested proposition had actually been accepted forever by by everyone.
I think that part of the part of the problem here is that Texas is trying to set up sort of an infrastructure that makes it difficult to enforce those constitutional light rights through this sort of lawsuit. And this, in turn, points to a larger problem of the infrastructure of how to hold government officials responsible for acting in a constitutional way. So there's this questions of who do you sue? You know, if you're if you're, if your rights are violated, I mean, and this question is, sovereign immunity, and as a lot of you you may have audience you may be reading about, you know, this case, ex parte young, you know, which is discussed at length in the opinion. And, and she does talk about that this, Justice Sotomayor. She says that, statute 1983 is very purpose consonant with the values that motivated the young exporter young court some decades later, was to, quote protect the people from unconstitutional action, under color of state law, whether that action be executive, legislative, or judicial, in other words, they're trying to get in young, they were trying to give people a way to enforce their their constitutional rights. And that presumes that maybe it's maybe it was difficult to do so. And
go any, let me just jump in and try to connect the dots because again, some of this stuff is very, very technical. But here are two or three things I want an audience to understand. Number one, now you see the tensions and the opportunities of someone who wants to be an outerwear, the phrase because it's a phrase I used in my book, The Constitution Day, a constitutional journalist, we're talking about stuff that literally is hot off the presses just happened in the last couple of hours. But in order to actually make sense of this thing that really is news for the Capitol. And John Robert said, as Sonia Sotomayor, I said, What a majority did, we're going to have to talk about the Constitution itself and the Supremacy Clause from 1787 88. And how it actually is not making the Supreme Court's interpretation of the text the same as the constitutional text itself, we're gonna have to talk about Marbury vs. Madison, which goes back to 1803, where we're about to talk about a thing called ex parte young, which is an early 20th century case about the ability to have individuals to sue states for various reasons in various ways. So and this is what ordinary journalists actually who don't have legal training can't do they can't take sentences, rip from the news and give you the long view how this connects up with what Abraham Lincoln said and did in the 1850s and 60s to pick one more example. So 1787 88 What the text actually says 1803 Marbury vs. Madison though the font of judicial review confrontation between Tawny and Lincoln in the 1850s and 60s and out ex parte Young. First Principles of constitutional law were actually at issue in what was said and done today. And the ordinary journalists aren't going to be able to to see how all that fits together on ex parte young and the which is what you've brought into the conversation. I told you there are at least two basic ways that a court can rule on the constitutionality of something. One, when the government acts against an individual the individual races the Constitution as a shield. You can't prosecute me for criticizing the president because that violates my First Amendment rights. And John Adams did prosecute people for criticizing the president and they tried to raise the First Amendment and courts actually did rule on that not correctly, perhaps and if their rulings were absolute and final, Oh, Thomas Jefferson shouldn't to pardon those people afterwards, which he did, because those were just judicial rulings. But But Jefferson could read the Constitution himself. You see, he wasn't just a believer that only courts could could rule so so judicial review can happen when the government comes after an individual and the Constitution is raised as a shield. judicial review can also happen sometimes when an individual uses the Constitution as a sword and sues the government or government official himself, and he's the plaintiff rather than the defendant. And that's what various folks in Texas were trying to do. This. Texas law was cleverly designed to make that very difficult to sue anticipatory Lee. And just so the audience knows where I come into all all of this. My very first article written as law professor called of sovereignty and federalism said, Oh, we should make it easier for people to sue the government itself. There shouldn't be this thing called sovereign immunity, you should be able to sue the government when this violated your federal constitutional rights because Constitution is the supreme and and we should read, and that's especially true after the Civil War, that we need to have federal courts in and in the frontlines defending constitutional rights against states and state officialdom. So that's what I said for a long time. Here's the problem. The Supreme Court has not quite agreed with me on that. And and justice Brier hasn't quite, you know, fully agreed with him in on that Darnit. And Justice Kagan hasn't actually fully agreed with me on that. And just a soda my hasn't fully agreed me. And now they're saying all this stuff. Now I'm thinking like, Where were you guys a year ago, and five years ago and 10 years ago, because in fact, here's the problem. Now you're seeing Oh, kill was great. You We should make it easier for people to sue the government's directly. Now you're seeing but here's your problem. There's precedent against you on technical federal jurisdiction law, on what add mentioned, sovereign immunity and the 11th amendment and standing and all sorts of stuff. So they want, on the one hand, to disregard those precedents. And when it comes to the ability to come to, they want to make it easier to sue in federal court, fine, but then on the merits, they want to stick with Row row row and precedent and not want that to be related to get it Oh, and they're in a slightly awkward position. So these things that seem completely technical at first x party and young which was a case in which the Court made it easier to sue the government affirmatively to invoke the Constitution as a sword against an attorney general, the reason ex parte young didn't quite work in the Texas litigation is the Attorney General of Texas isn't directly involved in enforcing this Texas statute C. So it was the statute is beautifully designed this work around this landmark case called ex parte young, but you're beginning to see now, audience two things at least, you can't understand the day's news. Without sometimes actually understanding stuff that happened a long time ago, the founding the 11th Amendment, Marbury vs. Madison, Dred Scott versus Abe Lincoln, ex parte young. And a second, you're seeing a deep debate about actually the precise role of the Supreme Court visa via the Constitution, where the Supreme Court precedent trumps everything, whether how states can actually get the Supreme Court to actually revisit its rulings that states or anyone else think are improperly decided. Big first principles of constitutional law are actually at stake in what just happened this morning. And Ed Whalen really is. I mean, when we arranged for this interview, for several days ago, we didn't know that this was going to actually happen today. But he audience members is the perfect person in the world for us to be talking to today. Because he just told you earlier, he sees his job is coming in immediately to provide broader constitutional context for this stuff. And that's actually what our podcast is trying to do as well.
So let me let me ask you in that vein, you clerked for Justice Scalia. And obviously, we're party to many discussions with him on on various matters. Take me into the chambers of an imaginary, you know, Justice Scalia, chambers at this point, how would the conversation on this matter have taken place in your in your mind? To the degree that you're able to discuss it?
That's a very difficult question for me to try to answer. I do think that Justice Scalia would have emphatically rejected the myth of judicial supremacy. I think he would have been very concerned about the role that the that, that the challengers were asking the court to play, I think he would have emphasized that in a system of separation of powers. There may well be authority that Congress could grant that that might have empowered the Department of Justice, say in its suit against Texas, or perhaps even these private plaintiffs, but that the court does not have carte blanche to concoct its own remedy, simply when is dissatisfied with with what's happening? So I think that he would be, you know, very much with the majority in this case, but we'd be struggling to make sure that we're getting the principles, right. I mean, look, one of the things one has to do, as as a as a justice, as a as a good lawyer in any matters, test any, any intuition against your principles, substitute the parties make it so that you're dealing with this unsympathetic fact pattern or alignment rather than a sympathetic one and see if that changes anything, and if it does better figure out, you know, whether it's your own biases that are that are driving the decision, or whether there is in fact, some distinction to be drawn.
Okay, and so now in terms of questions of sovereign immunity, and so forth in the structure as it's set up now, do you see that this law has and this case has implications for citizens ability to enforce their constitutional rights? And obviously, I'm separating that from the question of whether you believe that the constitutional rights asserted in Roe versus Wade and Casey are legitimate rights? Aren't? That's a separate question, of course.
Sure. And I'll perhaps highlight that separate question by avoiding using the term constitutional rights and simply say, rights thunder, roe and Casey. Look, I think it's clear that the Texas heartbeat act seems to have deterred abortion providers in Texas, from providing abortions from the heartbeat for to viability. And so, in that sense, unless unless the abortion providers are simply gaming things, and I'm not not gonna suggest they are. It will seem that that you are having the exercise or right recognized by Roland Casey being chilled. The question is, what's the response to such a chilling? Might it be to bring a lawsuit in state court to try to get some of these provisions invalidated are blocked their enforcement again, no such lawsuit was filed until September, I believe. And the Court yesterday just granted some relief declaratory relief against some defendants at the state court, a state court a state court Thank you.
Yeah. Let me just jump in on the on that because I'm gonna I'm going to be on your right on this issue, which is unusual, perhaps. But there would be it seems to me next to no chilling whatsoever. If everyone understood that there are five votes to reaffirm Roe, and Casey, because if there are five votes to reaffirm roe and Casey, then no abortion providers should really be particularly chilled. Just do what you're doing. They'll come after you. You'll raise the Constitution as a defense. And and as part of the Constitution. You can say precedent matters and whether and if you think that the court is going to reaffirm the precedence, whether it's simply because their presence or because they think they're rightly decided, you're golden, you're gonna win.
So it's like if you're using Ed's formula for a moment that you mentioned earlier, I think you're you're making a case that suppose a state passed a law saying that you can't wear a shirt that says f the draft. Okay. Then would that really stop people from wearing a shirt that says if the draft given that we all know that, if that went to the Supreme Court, that would be nine? Oh, you know, against it? Would it show such behavior? I? That's the question. Right? Yeah, I think that's analogous one.
Exactly. And we talked about that case. Exactly.
Yeah. I agree with you a keel. And I think that the question is, then where does this change? Bill that I was identifying come from, I think, as you point out, a very big part of it is the very real prospect that the court at some point in the near future might overturn Roe and Casey. And that observation, I think, is very important in terms of the concerns expressed about slippery slopes or copycat laws and other places. Because that's, you know, it's it's not likely that someone exercising a second amendment right in California, is going to be deterred by some sort of copycat law here. Now, that said, I mean, there are, you know, there is bother and expenses and potential hassle in violating a law. So I don't mean to minimize entirely the chill, but I think you'd have plenty of test cases that would get things litigated pretty quickly,
I have to push back on myself, you know, now and also on, on what the two of you have said, because of my personal experience as a physician. And, you know, I know that there are many times that a doctor knows what to do, knows the right thing to do, and does something different, like ordering another test, or avoiding a course of action, because of the possibility of a litigation or litigation, which they would almost certainly win. But nevertheless, they will not engage in that action. I mean, that happens every day. So Akil, I think that, you know, I'm not quite sure that you're right about the fact that chilling effects only come from the prospect of losing at trial, the prospect of facing a trial is something that that is chilling in and of itself. And the court also made the
call back, hang on. And any go back then to why is that different than your f the draft intervention? Why wouldn't that be true for that?
Well, I guess what it comes down to, I guess what it comes down to is that there are some beat, first of all, that would be likely to be in a group behavior, protest, and so forth. So you'd have a bunch of people as opposed to an individual. And, you know, there's a certain bravery in crowds. And there's, there's also a question of, sort of the type of behavior. So and, and there might be something that you might believe is your right, but perhaps it's not been, you know, over and over and over and over again, reinforced or something like that. Um, but actually, hold on, the court actually brought up the point, I suppose they were a million dollar fine instead of $10,000.
So now, now, you know why my the first article I ever wrote as a law professor, an article that's been cited is among the top 70 most cited articles of all time, I'm proud of this fact of sovereignty and federalism by scholars and mountainside multiple times by the Supreme Court. I say, Gee, I actually believe that full remedies for Constitutional Rights sometimes involve the ability to sue anticipatory Lee to get to sue the government itself to have sometimes as you know, very robust injunctive relief, but also damages and punitive damages. So so I'm a full remedy fellow and Marbury actually talks about remedies for ice. The court has consistently rejected, you know, my point of view. And now I think Justice Briars may be wishing he had paid more attention to what I've been shouting for, for literally decades. This article was published in in 1987. But all that said, if you have a clear constitutional right that today's court will clearly uphold and remedial law actually entitles you to when attorneys fees and and other things then, which I've always argued for against the government. You shouldn't be deterred too much. Because you you should be pretty confident you're going to be able to to win with judicial review, invoking the Constitution as a shield. And there are landmark cases in which that happens. Many of them in American constitutional I'll just give you one. McCulloch versus Maryland is a case in which Maryland went after this clerk of the Federal Bank, his name was McCulloch. They went after him. He raised the Constitution as a shield saying Maryland can't impose a tax on me and on the bank that I represent. And he ended up winning unanimously in the Supreme Court. And there are literally 1000s of US Supreme Court cases like that in history that said, I'm with you, Andy. I want to make it even easier for the individual, which is why I want to the individual to be able to sue the government itself as a plaintiff using the Constitution. has a shield to sue the states.
I think you mean the Constitution could be used as a sword in such a scenario, not a shield.
Right could catch thanks. But I keep losing on that issue and and Briar and Kagan and Sotomayor haven't been with me on that thus far, which, which you see frustrates me, and now it's beginning to frustrate them. But you see, precedent isn't, I'm gonna keep making this argument. I'm gonna make this Aryan because I think the precedents are wrong. And when the precedents are wrong, they should be overruled in the name of constitutional first principles, you say, and that's why I can I can keep arguing this evening, because I'm not a precedent, precedent precedent person. I'm like, add more of a constitutional fundamentalist. And and I'm critiquing those remedial cases, those technical standing and sovereign immunity and 11th Amendment cases, justice, conservatives are critiquing Roe versus Wade, and and Casey on the abortion merits.
So and you were saying that we, you know, you brought we got onto this, because you mentioned the, what you perceive to be a chilling effect, you know, in the interim. So where do you think the law comes into play? When it comes to the to these chilling effects? I mean, you know, is that something that we need to be that's relevant in court cases that, you know, Akiles saying, Well, you have a right to challenge the law, you can go through the process. And, and, you know, even if you, you're an abortion provider, you get sued, well, then you're going to defend yourself, and eventually, it'll get to the Supreme Court, and you may win. But in the meantime, this is happening, is that a problem with the law that courts should be enforcing, by way of injunctions and so forth? In the meantime?
Well, I don't see it, I don't see it as an all purpose excuse to jump past jurisdictional limitations on the federal courts. And I would add that, you know, Congress might well have the authority to step in and authorize causes of action that it hasn't authorized. That would would address the situation. In other words,
I agree. And you wrote something, or I'm sorry to interrupt, but you know, whatever. I agree, I wanted you to know, immediately, and wrote a post a while ago, and I think actually called him up and said, You know, I'm right. He said,
a lot of words here what he said, Yeah, yeah. But,
but he criticized the garland administration. So the attorney general, I think, you know, the US tried to jump into this lawsuit, and the US actually doesn't have a dog in the fight. And and it wasn't even suing the right people, who aren't the right people to defend the lawsuit in and bringing class actions against state judges, and state clerks. I teach. I taught federal courts for many years, I'd never seen anything like that before. These were very edgy. But what Ed said, and I agree with this, Congress has very broad power. twofold, I would say, one, to create more access to a federal courts. And and the Supreme Court when Congress acts should not be actually restricting Congress when it's trying to open up federal courts and you know, who allowed access to be restricted even when federal court when Congress was trying to open up access? My friend, Elena Kagan, in that case that I was criticizing last week, Alan versus Cooper, where Congress actually was trying to make it easier to sue states that misbehave. And she said, Oh, Congress can't do that. And you know, what she said three times, precedent, precedent precedent. And and I thought that was bad. You see, so I agree with Ed, Congress actually does have a role in opening up federal courts. And, and yet, but but with the court itself sometimes restricts them from doing so that's not so good. And a second thing that Congress can do and is also I think, written about this. I don't know if he hasn't, I want to ask him. And even if Roe vs. Wade were overturned, and Casey were overturned, Congress has broad power to actually pass a statute protecting as a statutory matter, women's ability to procure abortions under I would say, not merely the power to regulate interstate commerce, because people do travel interstate to get abortions. But actually, I would say in addition, under Section Five of the 14th Amendment, Congress has broad power to protect rights as it understands them, even if it understands them more broadly than courts. Now judicial supremacist don't see that you see, but I think Congress has very broad power, but courts have limited that to precedent actually, is a stumbling block for me landmark cases called city of Bernie versus Flores and a case involving the Violence Against Women Act United States versus Morrison. But I want to ask Ed, does he think Congress has a role both on the remedy side and the right side here?
Well, let me answer the question this way. I do think that the Express conferral of power to Congress under Section Five of the 14th amendment has somehow been shrunk by the court, you know, beyond any reasonable measure. That doesn't answer the question, specifically, with whether you could have a federal ban on abortion. I think there may well be some obstacles there the court, some justices raised some, or at least raise the possibility that there might be some in the ruling in 2007 upholding the federal ban on partial birth abortion. I think believe it Justice Thomas, who emphasized that a challenge to Congress's power hadn't been presented in that case.
But there might be a difference between a federal ban on abortion and a federal affirmation of federal protection of abortion is possible to imagine it's not entirely symmetric. My student Robby Flatow, actually, who is himself pro life has actually written a very interesting piece that I hope he publishes on this image, she suggests, actually, there might not be perfect symmetry between those two as a matter of at least judicial doctrine today.
Perhaps as a matter of traditional doctrine today, I do think that, you know, there are folks who have made the constitutional personhood argument that was the argument that the unborn human being is a person within the meaning of the 14th amendment I have contested that, even while acknowledging that the argument as an originalist as an originalist matter is much stronger than I realized, and certainly much stronger. I believe that then roe itself, I think, even if I were, were of the view that that argument is not sufficiently clear, for the for the Supreme Court to make such a holding, I think it probably is sufficiently strong to enable Congress to act under section five to to enforce the rights of the unborn.
Wow. Um, so that said, Gee, I'm not sure about that. But I do think Congress has broad power to enforce the rights of women who are citizens of the United States, if born in the United States or naturalized in the United States. And so So I think Congress has very broad power. For sense the 14th Amendment says everyone born in the US or naturalized as a citizen thereof, last sentence is Congress's power to enforce this. So I think Congress has broad power to protect women's rights under the plain language of the first sentence of the 14th Amendment and the last sentence of the 14th Amendment. But you see, precedent is a stumbling block for me. But again, if you're a constitutional fundamentalist, what your ultimate allegiance is to the Constitution and not to the precedents.
So we've been talking now for quite a while and it's really the time is flown by, and there's so much more I wanted to discuss with you. So I'm going to have to follow a Kiehl's rule of genies that when you have three wishes, your last wishes always for more wishes, and hope that you'll be able to rejoin us for some of these things. And what I'd like to talk to you about subsequently, just to tease it with our audiences is I'd like to get a little bit more into your time with with Justice Scalia, and the degree to which, you know your originalism corresponds with his, or whether it's changed over time. I'd also like to contrast your notion of original originalism with a keels, and to see, because I think that this is something that we although we've sort of taken a case by case basis in terms of Akiles approach to the Constitution, to have a sort of an overarching discussion of originalism is something we haven't really done, which I think would be would be very interesting, this would be a good forum for that.
Just a sneak preview on that, and the that just to leave our audience with one more thing. You know, we've, we've talked about abortion to an important extent today. This is a court that seems very responsive to claims made by a religious folk, claiming that government policies in various ways disadvantage or discriminate against discomfit religious practices of a certain sort. This is a court that may be on the verge of rethinking a landmark opinion by authored by Antonin Scalia. Payne called Smith that actually had a narrower understanding of religious rights against the government. You are very, a very loyal and former clerk to Justice Scalia and in many, many Many areas, you've actually defended his approach. You are also I think it's fair to say, very sympathetic to claims of religious entities and individuals. What is your take on your own view of the correct answer to the Smith? Should Smith be overruled? Question and your prediction? And if you're even willing to give us a vote count, that would be even better?
Just a small question. I think that there are lots of reasonable criticisms of Employment Division versus Smith. That ruling held that laws that are neutral and generally applicable, do not raise a free exercise problem. That in turn, of course, requires that one figures out what neutral and generally applicable mean. But, you know, one criticism that was leveled early on is that there really wasn't much in the way of originalist analysis in in Justice Scalia's majority opinion, I believe that was in 1990. I think that's a fair criticism, Justice Scalia responded to it by by developing his originalist case, in a separate opinion, he wrote, about seven years later, I believe in a case called Bernie versus City of Flores, which that ruling actually invalidated the application of the Religious Freedom Restoration Act, to state actors, as opposed to to federal governmental actors. I am more comfortable with the notion that Smith is right than I am with the notion that city of Bernie versus Flores is right. I think Smith is a very, very difficult decision. Very difficult, very difficult issue. I mean to say. But I have not been persuaded by the argument of many of my allies that that it's clearly wrong. And I do think it's fair to to try to figure out if it is wrong, what is the test that ought to be substituted for
it. So if I could just explain to the audience two really big implications of what I just said, first, and personally, he's very sympathetic to claims of religion, but he isn't willing to constitutionalize every one of his policy preferences. So he himself is very sympathetic to claim to religion, but he's, he doesn't read that into the constitution. So Smith might be right, even if that means that some of the folks that he some of the causes that he believes in, lose under the Smith test. So he's trying to distinguish in that between his personal policy preferences and commitments and what the Constitution requires. That's point one, good for him. I tried to do that on the other side, and
good for you a keel, because he just took away one of my questions, and I was gonna ask, but
no, no, no, no, that's still good. For me. It's just not good for you. And okay, so So I try to do that on the on the left. Ed tries to do it on the right, good for him. Second, he has just said that Congress should have power to protect rights, more expansively than the court under the 14th amendment. I agree. And once again, we see the problems of being a judicial supremacist of a certain sort. If you think that what the Supreme Court says is the Alpha and Omega have constitutional meaning, then if the Supreme Court says, Oh, well, the religion right extends this far and no further, that that's what the Constitution means. And maybe Congress can't go an inch beyond that, because Congress can only under the 14th Amendment, enforce the Constitution. And if the Supreme Court said, Oh, it's not in the Constitution, Congress can't go further. But if you believe, as Ed and I do that, we need to be careful and not conflate Supreme Court interpretations of the Constitution with the full possible meaning of the Constitution, and that sometimes other actors can have different understandings and properly so especially if they're more protective of rights, then you believe, for example, that even after federal judges, Supreme Court justices on Circuit said, there's no First Amendment right to criticize the president and you can be putting in prison for criticizing the president back in the 1790s. Even after judges said that a president was in within his rights, maybe Even he was obliged to pardon the people who were convicted under the Sedition Act of 1798, as Thomas Jefferson did yet a more expansive protection of the Constitution and the courts did. And he put that into effect with his pardon Ed. And I say, Oh, that was right for him to do it, maybe he was obliged to do it. So too, if Congress thinks that the Supreme Court has interpreted the religion, right, a little too strictly and narrowly, it may be able through a statute, the Religious Freedom Restoration Act, to actually provide more protection for religion than the court did. Those are applications that come more easily to AD and to me, and because we're not judicial supremacist, and we actually think, oh, there's a role for other branches to play in protecting constitutional rights for the President, for example, with the pardon power, or Congress under Section Five of the 14th amendment, and for society, maybe more generally, to play in a constitutional conversation, which is what his blog interventions are about and what this podcast is about.
And, of course, you know, when when we look at the justices that are on the court now, you mentioned a headcount a deal. And we have justice Barrett, who herself, a Scalia, Clark, who weighed in, sort of, on on Smith, in the in the last term in a case called Fulton, and basically saying, well, let's be careful before we overrule Smith, because what's going to take its place and when you look at the language, in Smith, I mean, I just wrote a couple of quotes down, he wrote, allowing exceptions to every state law or regulation affecting religion, absent a compelling interest, would open the prospect of constitutionally required exemptions, from civic obligations of almost every conceivable kind. That's a quote, and he lists all kinds of things compulsory military service, compulsory vaccination laws, drug laws, you know, equality of opportunity of the races, and so forth, that might call be called into question. So I think that this notion that there needs to be some kind of reasonable framework to take its place before you do anything about it might have appeal to justice Barrett going forward.
I find myself very similar to exposition. I think that there are possible arguments for Smith, I don't think it's absolutely clear one way or the other, that I think that Congress does have the power to protect religion more than Smith. So Ed's on the right, I'm on the left, we actually have different substantive views about all sorts of things, including freedom of reproductive choice, but we play the game, the constitutional game, actually, by similar ground rules and add I mean, that as a in a compliment, is that I think you you play you play fair, and I'm trying to play fair.
Well, thank you. I'm grateful for that.
Okay, well, this is, again, fascinating. And the blog is bench memo, which appears in the National Review Online, is do you have an independent website that posts that as well?
I know all my bench memos, blog posts are there. I have other writings in different places, some on national review some elsewhere, that would all be posted on my institutional website. I'm, I'm with the ethics and Public Policy Center, that's eppc.org. And you can find all my writings there.
Great. Well, thank you very much, and I hope we can check back in with you again as time let's do this again.
Wonderful. Thank you both.