Teach 2 Dumb Dudes

Dr. Paul Moreno: The Not So Supreme Court

July 25, 2022 Joe Bento Season 2 Episode 15
Teach 2 Dumb Dudes
Dr. Paul Moreno: The Not So Supreme Court
Show Notes Transcript

Roe vs. Wade being overturned, it's what's on everyone's minds these days. What led to this decision and how has the Supreme Court, a group of un-elected judges, acquired so much power over years? Dr. Moreno answers these questions and many more about the SCOTUS. He gives us the history of the Supreme Court, and educates us on some of the biggest cases this country has ever seen. Be sure to check out Paul's book How the Court Became Supreme: The Origins of American Juristocracy, releasing on September 14th 2022.  

Bobby:

What's going on everybody. Welcome back to another episode of teach two dumb dudes with Bobby and bento. Today, we're talking to Dr. Paul Marino. He is a professor of history and the chair in constitutional history at Hillsdale college in Michigan. He has a book coming out in September. how the court became Supreme. So we dig into the Supreme court history with Dr. Moreno and go through the creation, the founding father's original ideas for the Supreme court and the intention behind it all the way until what it has evolved into today. Uh, really focusing more on, you know, these big social issue and morality type cases. Dr. Mariner is fantastic. Uh, it, it was a really great conversation and, uh, we definitely learned a lot, uh, hope you enjoy

Bento:

hey, Dr. Marino, can you hear us? Yes. Hi, how are you? Good. How's it going?

Paul:

Is mark Marino, but it's actually me. Paul

Bento:

Marino. Yeah, we were these two dumb, these two dumb dudes were already confused. We're like, wait, I thought it was Paul.

Bobby:

Yeah, like I swear to God the Hillsdale. Paul,

Paul:

We have to have all our classes, you know, on zoom in the oh right spring of 2003, but I was on sabbatical, so I didn't have to.

Bobby:

It. Oh, oh, good for you. Yeah, right. Yeah. I'm glad you didn't have to deal with that. Its good time to be

Bento:

on sabbatical, right? That

Paul:

logical Yeah,

Bobby:

for sure. For sure. Well, Paul, thanks a lot so much for your time. Uh, I really, really appreciate it. Ever since we started this podcast, which is. Almost a year now ago. We, have always wanted to have somebody on talk to us about the Supreme court because I've always found that the, you know, the history when I learned the surface of it, I said, wait a second. This is not what you find@history.com or what, what we were taught in, you know, high school, social studies. And so I, I was really, really excited to finally find someone, uh, you know, to come talk to us about this. and as well as I understand you have a, a book coming.

Paul:

Yes. it should be in September, Louisiana state university press is coming out with it. And it's called, how the court became Supreme. yes, the story of how actually until very recently, I think,, this term, the court has sort of taken a few steps back and tried to return, you know, power to the people where it belongs. But in the last 50 years, especially the court has become, you know, way more powerful than the founders expected it to be. And the, the justices in the majority, were aware of that. They were saying that some of our bad decisions in the past have given the American people unrealistic expectations about this institution's role in

Bobby:

system. Right. And so, and so let's take it all the way back to the beginning, right? 1787, article three, the constitution gets passed, signed into law by George Washington establishing the judicial branch at that point. There was John Jay was the first chief justice. Correct. And then from there, there were a few cases that were pretty minor, but then the first major was what was it, Madison versus, Murberry Marbury against Madison Marbury. Yeah. And so, so talk us through that case and especially through John

Paul:

Marshall. Yeah. it's funny, you mentioned that cuz John Jay was the first chief justice mm-hmm a lot of people think it was John Marshall just because he was so you know, so, predominant, but he was actually the fourth chief justice mm-hmm and John Jay, the first one, he actually quit after five years cuz he thought the court really wasn't important enough job. Right. I wanna become governor of New York. That's much more powerful. That's yeah.

Bobby:

That's why, that's why I had heard that back then, that that position was viewed as a stepping stone, right. Into something greater, which is, you know, I today, right. It's a lifetime position. Mm-hmm was it not that back then? Like you had the, you had the opportunity to just kind of walk

Paul:

away, like yeah. It was always a lifetime job. Yeah. life tenure was one of the most important provisions of, of article three mm-hmm but ambitious, people in politics thought that being again, governor of New York, or president of the United States was important. So you had people who resigned from the court to pursue other offices or actually turned down, you know, they were offered positions of the court and declined wow. Into the late 19th century. You know, that, that would be UN unheard of today. I know. I was just

Bobby:

thinking, I was just thinking the same thing. I, I can't imagine a single

Bento:

highest honor go these days. Yeah.

Bobby:

Crazy. And, and so, and then, so, you know, a after John, Jay, like you said, two other you know, chief justices, and then we move on to John Marshall. Right? Right. And so Marshall and the, the Marshall court as it, it states there in, you know, 1901 talk us through what this fellow was like and, and what motivated him to, to take these actions.

Paul:

Yeah. Marshall wanted to make the court into a, you know, a powerful institution and one that would defend, uh, the, the nation, the union, especially Marshall was a Federalist. He was uh, he served in the army under George Washington. Washington was his hero. Marshall wrote the first like serious biography of George Washington, the four volumes. And in, in 1800, when. The, uh, Republicans, the anti-federalists party got control of the government. Uh, Marshall was sort of the last holdout because the Federalists lost the presidency. They lost the Congress, but they still had the Supreme court. And Marshall really made, made the most of that. Right. And,

Bobby:

and if I can just jump in for one second too. What was it? The midnight judges was how he ended up there.

Paul:

Yeah, Marshall, technically wasn't one of the midnight judges. Those were new offices that the Federalist created the LA ducks when they were on their way out of all. God, it, Marshall, Marshall got the job just because his predecessor Elsworth resigned, designed UN unheard of today, but, he left office. Yeah, just cause he had more interesting things to do. So Oliver Elsworth left and John Adams made. chief justice and a lot of people in the party, weren't happy about that, cuz they didn't think that that Marshall was part isn't enough. Mm. Marshall was very moderate. He was very prudent. he was, you know, he was a judge, a great judge, but also a very good statesman, you know, very, very moderate sort of prudent guy. Interesting. And he was able to save the Supreme court from also being packed or taken over by the, by the Jeffersonian opposition. And part of that was because, just because of Marshall's personality, he was a very gregarious, fellow interesting. He was the oldest of 15 children, and he just, everyone liked John Marshall except Thomas Jefferson, Marshall, everybody except Thomas Jefferson. And there were second cousins and there were some family history about all that. So Marshall was able to take the court and it was smaller. Then it was only six justices, originally. And he made sure that. Lived together and had dinner together and almost all of the Marshall court's opinions were unanimous mm-hmm and they were written by John Marshall, right. Even when Jefferson got to a point Republican justices to the court, Marshall was able to charm them and win them over. And it just drove Jefferson crazy that marsh, a winning personality. Can, can you talk

Bobby:

us a little bit about the, the position itself back then compared to what it is now? Cause you know, I heard like they used to have to go on, on circuits.

Paul:

Yeah. Yes. They, it was really the time they spent at the capital as the Supreme court was really a part-time job. Most of their work was in their circuits. they each had a certain part of the country. Marshalls. Would've been Virginia, Maryland, North Carolina. and they would have to hear cases there as ordinary judges, just trial court judges. And that's what they spend most of their time doing. And many of these cases were just the most trivial kind of cases, you know, about somebody sold a cow or somebody else from another state. And yeah, they had to decide these, these cases, they would only spend a couple of weeks a year as the Supreme court. And, but Marshall made sure that when they did that, they were, you know, sort of all on the same page and back in the, in the 18th century, when you had to travel, you know, ride the circuit, they called it. Yeah. We had bad roads and sure. Riding horses back then so you can see why some people didn't want the job. It was. Right. Right,

Bobby:

right. Absolutely. And, and so the other thing too is, is it my understanding that they were originally like basement dwellers. Like, they just got stuffed in the bottom of the capital.

Paul:

It was not 1935 was the, the huge, you know, temple that we have now. But before that, they, they, most of the time they served in the basement of the Senate. Wow. And they did most of their work at home, you know, that sort of the home office. And they would send around the, uh, opinions by messengers and, uh, you know, they had to do their own work. They didn't have clerk. They didn't have any of, no, they were not paid particularly well. So it wasn't the high profile position that it is today. And that's why when somebody appointed a justice to the Supreme court, you know, nobody cared. Sure. Right. It just didn't have the power and the prestige, uh, that

Bento:

at what, at what point did it start becoming a more powerful position?

Paul:

Yeah, no. You began to get a professionalization of, the, the bar, you know, the American bar association in the late 19th century and lawyering became, uh, you know, an academic road. You had to have a law degree as the bar exam, look at something like Abraham Lincoln. You know, he became a lawyer just by hanging around the courthouse, reading some law books, and then he hangs out a shingle and, and he's a. And the organization of the legal profession, the bench, and the bar that started in the, late 19th century, then they started hiring a clerk or two, and then they get more and more, then these clerks end up, you know, writing the opinions in many cases. And when they start probably in the 1950s and sixties, uh, to take on really controversial political questions that it became, you know, the, the sort of, you know, the, the, the volatile institution that it is today that people really, really cared about.

Bento:

It's interesting to hear too, that even way back when, when it first started, it was still a political game where, you know, they wanted people of the same ilk of the same team to be in there, even though it wasn't even, uh, you know, a big position to have. So it's interesting to see that still continues on today. Yeah. You know, now more than

Bobby:

ever and, and Dr. Marin, if you could tell us a little bit about that time period. Right. I mean, at that time it was, uh, Adams versus Jefferson for the presidency and they were the country. Excuse me. The country was pretty divided,

Paul:

correct? Yes. So, yeah, it was very as, almost as bitter as you see politics today. Yeah. This's nothing new, the kind of, polarization that you see in America, today, but I think there was some more agreement on fundamentals and people didn't you people understood. Okay. Federalist, president's gonna appoint Federalist justices. Uh, but still that was more about sort of rewarding people because they had been, you know, good, good party. Then it was about a particular ideology, uh, you know, the, the philosophical sort of moral issues. Weren't so shortly divided then as they are now, you know, Democrats and Republicans, they could, they could live with

Bobby:

each other. Yeah. Okay. Interesting. Yeah. Cuz like in today's world, it is always those big moral, social type topics that are the most divisive. Yeah. Interesting. Interesting. And I, I wonder too, you know, back then too, because they weren't right. They weren't making those types of decisions that, that made it's like a, you know, what, what came first, they started making those types of decisions with the, uh, Murberry versus mass in case, or, you know, were they, just trying to grab power, you know, as they

Paul:

go and, and when they did make controversial decisions, you know, Congress and the president would, they would push back, you know, the court didn't have the kind of sanctity, uh, that it had until very recently. Now again, the court has become so, you know, so, so polarized for a long time. Since the 1950s, when the court was a very liberal institution, you know, liberals would defend the court and this idea that's above politics and all that. Now, especially with the, with the Trump appointees mm-hmm liberals are the ones today saying we need to pack the court or put it in its place and all that, but that was very commonly done, before, before recent years, like after Dr. Scott, for example, everyone said most controversial, worst decision the court ever made, which, which

Bobby:

decision

Paul:

is that, Dr. Scott versus Sanford, where the court said, right on the Eve of the civil war, that Congress couldn't keep slavery outta the territories and that blacks even free blacks, couldn't be citizens of the United States. And so Lincoln, the Republican said, you know, that's, that's a wrong decision. And, Congress and the president, once they got elected, took certain acts that treated that decision as having been wrongly decided they didn't need to amend the constitution. They didn't need to right. Change the. You know, the other branches of the government still thought that they had an equal power to interpret the constitution, but the court certainly could, you know, had to interpret the constitution, what it, you know, render its decisions, but they weren't the only ones. And they weren't the, the Supreme ones. Yeah. They weren't the end

Bobby:

all

Paul:

be all. Exactly. Yeah. Yeah. The end. That's the way

Bento:

it is to today. Right? I mean, like say the, say the, the abortion one that just went through, obviously it's very popular. I mean, is there, is there anything that Congress, Senate and the president could do at this point to, to change that?

Paul:

Well, they put, they already tried to do so Congress tried to pass a law, using their power of interstate commerce to reverse the decision and to impose a, sort of a national Rowe versus wait. Now nobody knows because they didn't have votes to do it. And the court might have overturned that decision, you know, in the next term, that remains to be seen, but you, what the interesting thing now is that you're seeing a revival by the Democrats about these old sort of court controlling, actions by the president and the Congress. Mm-hmm when the, when the court gets settle along, I, I think that's a good thing. the, the, I think the justices today, the, the court today, the majority today is trying to put the court back into its proper place in the constitutional system, whether a separate and equal, but not a superior branch of the government.

Bobby:

Right. And, and, and as I understand that, right, as it's written today, they don't technically have the ability to enforce any laws.

Paul:

Right. Yeah. In fact, when push comes to shove, they have no power. They depend. The, the so-called political branches to provide the money or the, you know, the force to enforce their decisions. So what

Bento:

is the process? I know that the, the Supreme court only takes certain cases in a certain amount of them every year. Say if I'm a Senator or a Congressman, and I say, I want to get rid of Roe versus Wade. What is a process like to get that up to the Supreme court for them to even take a look at

Paul:

it? Yeah. That's also recent development wasn't until the 1920s that the court could choose what cases they wanted to hear. Hmm. before that, if you had standing, if you were like citizens of two different states, the court would have to hear your repeal. If you had the time and the money to bring it up to the Supreme court. And in 1925, they got the power to pick and choose what cases they wanted to hear. And they only picked the really important ones now. and, that's, it's called theri search Aari. That means that four of the nine justices have to agree that they want to hear the appeal. And they now, they, they pick about 70 cases a year. Wow. In the old days it was hundreds of cases a year out.

Bento:

How many cases do you think there are out that 70? Oh no, they get, they get thousands.

Paul:

Thousands of petitions. Sorry. Fact, that's one of the most important things that, that the clerks do is they screen those petitions and they tell their justices, which one they think are even worth considering, to hear.

Bento:

And what happens to those cases that they don't see are is

Paul:

this. Then, then the highest court below the Supreme court are the, 11 circuit courts of appeal. that's what the, the old, in the old days, the court had the Supreme court justice had to hear those cases themselves wide on the circuit. Now there's a whole separate bunch of judges. Almost all of the Supreme court justices today had been circuit court justice before they, uh, got onto the Supreme court. And so if the Supreme court doesn't hear the decision, the last word is the, the circuit court. So usually the Supreme court hears cases where the circuits are in conflict. So the fifth circuit will say one thing and they eat circuit will say another. And to resolve that conflict and provide a, a national rule, they'll decide the case.

Bobby:

And so, and it's so interesting because what they're essentially doing is telling these circuit judges how to rule and interpret the law. But at the end of the day, they're not even the ones who put it together.

Paul:

Yes. Yeah. And in most cases, 90% of the cases, the, the circuits will be the, the last word Supreme court won't decide. And you, you will find some differing, opinions and they, they can last for a while. So that in one circuit. We'll have one rule and another circuit you'll have another rule. If the Supreme court doesn't think it's important enough to establish a national, rule, which you know, is not a bad thing. in fact, that's what the court is trying to do in the abortion cases is just return this to the states, right? Which Texas wants it one way and New York wants it another way. You know, we, we can live with that.

Bobby:

In terms of, of, you know, how these people, so are the circuit judges appointed as

Paul:

well. Yeah. Same rules, the same life tenured, situation with the president, appoints them and understand it has to confirm them. there's a lot of, senatorial courtesy involved in this mm-hmm, where usually, the Senator of the, you know, majority party can more or less black ball or, or Vido, the president's choice about this. And that was considered okay for a long time, because, you know, that's part of what part of why you want to be a Senator is to control patrons like that. but recently Harry Reed, when he was sent, a majority leader did away, for example, with the filibuster, so that senators couldn't filibuster, circuit court of appeals, appointments, right? this was mostly about the district of Columbia court of appeals. That's the most important circuit because they, they decide most of the regulatory state issues. Mm. One of the controversial decisions in this last term was about, the, the clean power plan and how much power the, environmental protection, commission can have the agency can have from that. Yeah. Yep. So when, when they did away with that, senatorial courtesy position McConnell took the next step and said, okay, no filibuster for Supreme court appointees. And that's the only way that the, the Trump appointees could have been confirmed, confirmed, right. Is that they took away with the, they used to call it the nuclear option they were doing with the filibuster, for the, fucking mish McConnell. Yeah. And that was really, really surprising cuz. the Senate has this long tradition of being sort of collegial and, you know, that's why they called it the nuclear option. Mm-hmm I was really surprised them. Well again, Harry Reed set the set, the set, the stage, the precedence. Yeah, for,

Bento:

and it's. So it's so interesting that we're, everyone's so focused on the Supreme court. And honestly, I had no idea about these circuit judges that they were also appointed by the president. I mean, I don't think I've ever seen or heard a radio broadcast watch televis show, read an article or newspaper that mentioned circuit judges that were getting appointed and they see so many more cases. Yeah, yeah. Than a Supreme court does. And of course

Paul:

below them, there are hundreds of federal district judges, you know, they're the first here, of courts. And even those have become politicized now, where I say there was somebody that Biden, was gonna appoint a Republican. To a district court judge ship I for about reason, I don't know. And some, you know, liberal organizations are very upset about this and you are gonna make an issue outta that. So again, up until very recently, even Supreme court nominations were never, you know, politically interesting. Now the circuit court ones have become so, and it could be that even district court wants are, and those are, again, those are hundreds of, of, of judge. Wow. They do all the grunt work, you know, they're the trial court judges, where you have cases of, you know, the enforcement of federal drug laws, all kinds of federal crimes, you know, high level, civil lawsuits,

Bento:

And do they make, do they make laws or, or see cases on a federal level or do they is a state by

Paul:

state with them? Yeah, the, the, the biggest element of sort of business that the federal courts decide is when you have a, a lawsuit between citizens of two different states. Hmm. And there, the, the federal judges have to decide the case according to state law, but they still have to decide, the case. there's some thresholds, like the controversy has to be above a certain amount of money. but if there's a federal law involved, again, like immigration cases or, or federal, drug laws or things like that, then you're in, you're in federal court. And the people have pointed out every year, the chief justice issues a report about the whole federal judicial system. And one of the complaints is always that the, the circuit, the, the lower federal court judges are overworked and they're underpaid. And, it, it's hard to get people, you know, talented, legal people to give up, you know, lucrative jobs in the legal take, the federal judgeship. And there's right. There's a lot of truth to that.

Bento:

Right. I mean, you can probably say that about Congress and Senate too. I mean, so many people have really good jobs and you know, you go into a position. I mean, if you go into it with good intentions. Yeah. You know, it's a, it's a massive pay cuts, whatever you before. Exactly. Right. Yeah.

Bobby:

That's why, that's why when they all get out and go private, they make triple, quadruple the amount

Bento:

right. Yeah. Easily the, some of them while they're in there. Yeah.

Paul:

And that's actually, that's one thing about the federal judges is at least their salaries are, you know, guaranteed. they have life tenure, and their salaries can only be raised. So they, they have, you know, job security that makes up for, you know, being underpaid.

Bento:

How do you feel about the lifetime tenure? Because I I'm really torn with that on, on one hand. I like the fact that, you know, like my wife used to work for a Congressman here in Rhode Island and the amount of time that he has to spend canvasing and getting on phone calls and speaking with people, I mean, it really takes away from the job that he should be doing. So I like that part where they're not the campaign, but at the same time, like lifetime appointment, that it kind of goes against everything this country was founded on,

Bobby:

Just the fact that it's an appointment versus an election as well. I mean,

Paul:

yeah. And that was, that happened at a unique period in American history in the 1780s. Uh, the American people had a lot of confidence and faith in, in judges. Uh, in English and earlier colonial history, they had been sort of the good guys. They were on the side of, of Liberty and all that. And the trend after the Constitution's ratified was for elected judgeships. Uh, almost every state has, you know, long term, but elected judges. In fact, it's funny that you mentioned you're from Rhode Island. I think Rhode Island is the only state that still has life tenure for its state judges. Hmm. So that if the constitution had been, you know, considered just a decade or two later, you probably would've had long term elected judgeships or maybe appointed, uh, a, a long term. And if you look at the average American presidents usually get about two justices per term, they die, or it's higher about every other year. this is why, again, Trump was really unusual in that he got three yeah. Three, right in long term. And you know, some, some reasons for that. So yeah, maybe a system where you gave them, like long term, maybe like 18 years. and you know, you can make it more regular where remember Ruth badder Ginsburg, liberals were begging her to resign, right. You Obama was still present. Right. Right. And then she just, you know, died unexpectedly and then created this sort of where it becomes kind of a crapshoot, and maybe more regular terms where they don't have to be elected necessarily. But, the, the, the contingencies of, you know, the, the, the process could be, could be minimized. Cause you know, Democrats today, you know, I'm, I'm a conservative publican myself, but I can sympathize with their complaint that these judges were appointed by presidents who didn't get a majority of the popular vote. And, you know, there's something that's meant sort Democrat. It's a Democrat. I impeach

Bento:

president too with that three of them,

Paul:

the most Ted president in American history. That's the thing. Uh,

Bobby:

it it's a, but that's the thing, right? When did it become that, that, that president got that appointment power? I mean, where we were talking earlier about John Adams appointing John Marshall. Yeah. I mean, since the beginning of time, the presidents have always just had that

Paul:

ability. Yeah. That came out of the constitutional convention, but it was very late in the day. And the, the know the, the records of the constitutional convention don't reveal initially it was gonna be the Senate that shows the justices. Mm. And the last minute they made it a presidential appointment. Uh, and again, that's just sort of almost accidental. Right. And then, you know, Trump was the first candidate who said, this is, you know, he said, one of the most important reasons people vote for president is that they're the ones who choose the justices justice for all the time. But he was the first one to come out and say it. And also to say, here are the people who I'm gonna choose from. You know, he had a list of 20 and, you know, that's, he sort of staked, a lot of people voted for Trump, just because of that reason. They were really voting for a Supreme. Yeah. That's only very recent. Yeah.

Bobby:

I think that was one of, one of the few things I really loved about Trump was the transparency. Cause he just didn't care. And so he said everything he didn't, he didn't really know. You could believe after a while, but it was one of those

Bento:

things. It was come

Bobby:

back to earth, Bobby here. It was just one of those things. But no, but, but I honestly, I wish all presidents were like that. I want all presidents to be transparent,

Bento:

but he wasn't transparent. Like he was a crook, you know what I mean? Like he was only, he was only transparent about his attitude towards the position,

Paul:

but it's funny. Cause you know, Trump ran as a, a populace, right? He was considered. But the thing that he said was that the reason why you're voting for me is because I will give you the least popularly responsible, you know, accountable part of the. The Supreme court is the least connected to the people and yet, and especially when he chose the justices, he chose them with the same sort of resumes and the same background. As, as all their predecessors, you had to be a Harvard or Yale JD, and you had to have clerked and, you know, been on the circuit court, you know, a real populist would've said, I'm gonna pick someone to random. I'm gonna open up the phone book and point my finger at somebody and make them Supreme. Right. And the constitution has no requirements. There's no age requirements. Wow. There's no requirements to, to be a Supreme court trustee. So if you have a five year old son, he could be appointed at the Supreme report. Well, I take that chance.

Bobby:

Wow. Good thing. My son will never get appointed right. So he'd be giving it away.

Bento:

So let's talk about the confirmation process a little bit, right. I mean, you know, the confirmation of Brett Kavanaugh, that was the, yeah. The, the, the big one. And I like beer and, you know, Republicans defending him and liberals are trying to like, you know, just take them out to take em out to the cleaners. Did, is, has that process always been around?

Paul:

Nope. Nope. also very, very recent, no justice appeared in person, before the, the Senate, judiciary committee until the 1920s. in fact, the first real controversial appointment was Louis Brandis. He was the first, uh, Jewish appointee to the Supreme court. his big progressive and Woodrow Wilson was trying to make a statement, in, in the appointment. And he wasn't allowed to appear, uh, in person. So this is a, a very recent, uh, thing, some justices too, along the way they refused to appear. They said, look, you got my record. everything I've said and written is, is out there for your examination. I'm not gonna, you know, testify in person. And they, they were confirmed anyway. So people wow told me think that yeah, the, the televised confirmation hearings are a requirement. They're, they're not,

Bento:

they're very recent. Wow. So, so even to this day, it's still not a requirement.

Paul:

No, not at all. And most justices were appointed without any hearings without any recorded vote. Uh, the Senate would just, you know, just by voice vote and almost always, you know, unanimously

Bento:

confirmed, right. I mean, is that confirmation hearing, just dog and pony show, does it really do anything? I mean, could someone not get appointed? Well,

Paul:

the, the real turning point was Robert Bo in 1987 and that was contingent. I mean, most people thought that he was going to be confirmed. He was certainly very qualified. But the campaign that was launched to attack him, you know, the boarding, uh, worked and it was a, it was a close vote. a lot of justices, a lot of senators probably changed their mind during the course of the confirmation hearings. But once that happened, you know, after that, the idea Claris Thomas was also really close. I mean, I think he was like two, two votes. Uh, so there it, that it does make a difference in some close cases. Yeah. Hmm.

Bobby:

In, in terms of that, that process, why was that brought about in 1920s?

Paul:

Uh, I think in, in 1920s, it was just Harlan Fisk stone, who later became chief justice. And he was accused by some of the progressives of being like a, a big business, attorney. He had had been a hit the JP Morgan company as a client and all that. So I think he wanted the opportunity to sort of clear his name and, he was, he was given it, but it was still pretty unusual. Something like, I think justice, William O. Douglas appeared before the Senate judiciary committee for like five minutes and uh, case closed. And so, it wasn't until the 1960s. when, again, when the important point is that it was when the Supreme court itself turned itself into a politically controversial in institution.

Bobby:

Sure. Yeah.

Bento:

War, it sounds like a couple of things happened in 1920 to kind of shape what we know today about it. Yeah.

Paul:

The court in the twenties was still very conservative and it was the progressives liberals who were attacking it in the thirties, have flipped, you know, FDR, uh, in his four terms, as president was able to, you know, appoint seven of the nine justices. Wow. They became, they became very liberal. and then in the 1950s, and especially the 1960s under Earl Warren, they became liberal and controversial. these are those kinds of cases that lead to Roe versus Wade. that was a actually a burger court decision, but then the political reaction and the controversial Senate confirmation hearings and all that, it's really not until the last generation. A lot of people, a lot of Americans today are old enough to remember when the Supreme court was not, uh, the lightning rod that it's today.

Bobby:

Right. And, and so what do you think is the, the reason that, right. I mean, cuz again, we've established that technically the Supreme court, the Supreme court itself has no ability to enforce any of its decisions. So what do you think changed in our culture or society that then kind of led them. Artificially get this

Paul:

power. I think it mostly because for 150 years or so, they restrained themselves, you know, they did, they certainly issued some controversial decisions. Like when they, they said an income tax was unconstitutional, 1895, Scott was certainly very controversial, but they didn't overdo it. And so for 150 years, the American people got used to the idea they got used to, to judicial review mm-hmm cause the idea that the court can overturn ask Congress isn't anywhere in the constitution, you know? Right. It's nowhere in the text. Uh, you can make a good argument that Hamilton did. That's sort of implicit in the idea of a written constitution. I, I would agree with that, but they were, they were pretty, under control and they recognized sort of political limits. And so the American people began to get comfortable with judicial review and with, with a power of court. and again, in the, in the last generation sort of. Broke those bounds and began to, you know, take on controversial political decisions and turn themselves into, uh, an institution that, you know, people approach Soly

Bobby:

just because of who the justices are or who the president is. I mean, right. The politicization of politicalization excuse me, is coming from somewhere. Yeah. Right. Like you said, not nothing has changed for us as

Paul:

citizens. Yeah. But, but, but along the way, there are like, if you read article three, the constitution Congress has a lot of power to limit the court's jurisdiction right now. Everyone knows. Well, they also have the power to expand the size of the, uh, you know, you can impeach justices. It's never happened. Only one Supreme court justice has ever been impeached and he was acquitted. but there are ways in which Congress can, you know, uh, sort of bring, a, rogue court to heal, but they've fallen into such disuse over the course of 150 years that, you know, don't know that they're. Well, that's one thing I think, Congress and the, the political branches had a healthier sense of their own responsibility to interpret the constitution.

Bento:

So with the Supreme court, I'm just gonna run through some of these cuz they've had some really influential decisions, as far as the past couple generations go a really big one, defendants who can't afford legalization must be provided without charge. Huge. Great.

Paul:

Uh, let's see,

Bento:

flag burning. They, they said that was, uh, considered free speech in the first amendment that was 89. You know, Roe versus Wade obviously is the, is the biggest one. 1974 versus Nixon found that president cannot use his or her power to withhold evidence of criminal trials. Yeah. Wow. Thank, thank God that was put in place before Trump. right. Imagine that only in 2003 in Texas struck down anti sodomy laws, which, you know, you think not surprising for a state like Texas But, you know, they've made some pretty critical decisions. Do you think these would be would've been made without the Supreme court?

Paul:

Well, one of the things like Ruth Baker Ginsburg on the abortion cases, she made the claim that the problem with Roe versus Wade was the states were already moving, towards liberalizing their abortion laws. Mm-hmm there were some states like New York, Washington and Hawaii and Alaska, uh, that had, you know, sort of pretty much, you know, pre viability abortion on demand and about a dozen other states were allowing, you know, more sort of reasons why you could, could have abortions. And states like Texas were sort of, uh, lagging behind and Ginsburg said the democratic process, the people were doing it themselves. The states were taking it on and she said the Supreme court short circuited that, that process, and they should have left it alone. And that was sort of the trend of, of public opinion. Uh, you mentioned, uh, Texas in the homosexual sodomy. Illinois was the first state to repeal its uh, sodomy criminal law in the 1960s. Most other states had done that. Uh, most of the Warren court criminal procedure cases like, right to counsel and the Miranda warnings and all that kind of stuff. Most states had already adopted the, and what the Supreme court was doing was bringing in the, the lags. It's almost always Texas, whether it's that's true, it's true death penalty or all these other things, Texas or Florida. And they tended to Southern Southern states generally, and almost all of them had something to do with race. and so that was why, cause the Lauren court made its mark and brown for support of education, right? When they shut down segregation and public education. And now everyone agrees, that was the right thing to do. And the court acquired this kind of moral authority in 1954. The problem was they began to think, oh, well we fix this problem. We can fix every problem. Mm-hmm that's what I think's, what's

Bento:

got them's problem. It's always a slippery slope with the government. I just, yeah. And

Paul:

you give people power and you know, judges are just like

Bobby:

everyone else. Yeah. Right. They're not gonna give it back anytime soon. And so with all those decisions though you know, I, I doubt. That this abortion case that just got passed has really been the first one, you know, to face, you know, such protests and, and disagreement and division. Has there ever been a point in the history where somebody else has considered expanding the court or making changes? I, I mean, have, has there ever, has there ever been a moment where it was CLS?

Paul:

Uh, yeah. FDR in 1936, when he, you know, the court was striking down a lot of new deal legislation and he won an overwhelming landslide, majority 36, 1 of the biggest in, in American history. And he, unfortunately, the problem for him was that he was a complete surprise attack. He didn't make the court an issue in the campaign. And he just out of the blue, without telling any member of Congress, this was coming or even any members of his cabinet. Hmm. Uh, you know, said that the court, the justices are too old. He said they can't keep up with their workload. And so I need to appoint up to six new justices, uh, right away. And it was so transparently, you know, dishonest, right. Just wanted to pack the court. It blew up in his face. And that was the last serious attempt to, you know, to, to pack the court because people assume that as somebody who was, you know, FDR was a political genius, you know, he was just, uh, you know, a mask. And if he could get as badly burned, uh, as he did by the Supreme court, no American president after that, the suggest, but even Biden has said that he's opposed to, you know, packing forth. Most of these suggestions have come from Congress or from, you know, sort of, uh, think tank people, you

Bento:

know? Yeah. I mean, if Biden impacts the courts. And a Republican gets put in in 2024, which is seeming, you know, seems like it's gonna happen. could he just pack the courts as well?

Paul:

Well, if he had a Congress, uh, all it takes is that the great thing about court tax is it just requires a simple majority of right. And just in

Bento:

Congress, not in the Senate.

Paul:

Yeah. Oh, wow.

Bobby:

I, as I'm shocked that it hasn't happened

Paul:

before. Oh, no, it has happened before, but not in cases that are, you know, today considered, uh, controversial mm-hmm uh, especially this, especially during the civil war the Supreme court had been expanded to nine when Andrew Jackson was present. Okay. And then they added a seat, uh, because California, which was, you know, far away and because of the circuit writing and all that, they added a 10th seat. Then Lincoln was assassinated and Andrew Johnson was very hostile to what Congress was trying to do. And so Congress reduced the size of the court to prevent Johnson from having any Supreme court appointments. Oh, they lowered seven. Wow. And then they raised it back up to nine after Johnson was outta the way. And it's, it's been there ever since. And most people assume for instance, that, uh, uh, us grant, when he was present, uh, appointed two justices to overturn a specific decision that he disagreed with was about, uh, the greenbacks about sort of paper money in that's. It's probably not true, but it appeared to people that that's, that that's what he was doing. So, uh, court packing is not, you know, it, it has, it's been a long time. Uh, okay. And in effect, what Roosevelt ended up doing was he packed the court, the old fashioned life, the justices eventually died and retired and he was elected four times. So he was able to, to pass the old fashioned life,

Bobby:

right? Yeah. One, one of the only, right? Yep. Yep.

Paul:

No one except for George Washington. And since he was the first, it was a unique opportunity. Yeah. Has had that many appointments.

Bobby:

And so, and so kind of, as you look forward here again, it's just so funny to me, it seems like the Supreme court is really just like a puppet for whatever political party holds leadership at that point. I feel like that's like super, super manipulative, like at the end of the day, like you said, it's, it's politicized now. It's not about even interpreting law the right way anymore. Do you agree with that? Or? Well,

Paul:

it's the thing is that it's the problem with the court has been that it usually lags behind political change because their life tenured. Right. And the other parts of the government are elected every two or four or six years. Interesting. Evenly you'll have a court that's sort of out of step with changes in public opinion. That's what happened in the new deal. You know, you had this title wave, uh, the democratic party had been pretty much the minority party since the civil war. All of a sudden, you know, in election, after election, the overwhelming majorities, but you have the same justices on the court and they're they're outta step. Uh, one political scientist named Robert doll wrote a famous essay about this in the 1950s where he said, eventually the court will catch up it lags, but it takes a while. But cause you know, they don't live forever. Uh, Jefferson once complained that they federal judges, SDO, retire and never die. Right. eventually they do. And so sooner later the system will catch up. So Democrats today can say, look, we've won the majority in the presidential, uh, elections. They're gonna say if it weren't for gerrymandering, we'd had bigger majorities Congress and all. And if that's true, eventually they'll, they'll have their turn and they'll protect the court. The, uh, the old fashion way. I think that expanding the size of the court won't be won't be necessary. Yeah. We see John Roberts, he issued a separate concurring opinion in the Dobbs case where you saying that we, we shouldn't have taken the such a leap as we did. We should have done this gradually, right. An invitation to, I think, a political accom. Between what is now a Republican court and, uh, a very, very narrowly, uh, sort of democratic majority. Yeah.

Bobby:

Right in P mm-hmm. And it's funny. Oh, sorry guy, Bobby. I was say, it's funny you brought up the gerrymandering thing as well. You know, if I, if, am I correct in saying that that got, uh, ruled on recently? Oh yes.

Paul:

Yeah. In fact, the court, that was one of the Warren court's most controversial decisions. Mm-hmm, starting in 1962 where they said, you know, districts have to be one person, one vote. Right. And that was a real threat to incumbency of a lot of, you know, gerrymandered, congressmen state, but it stuck, most people agreed with that principle. And, uh, that, that remains to the present day, but they got out of the business of the federal courts overseeing partisan, Gerry MAs, you know, mm-hmm, every Congressman more or less has to represent the same number of people, but there's all kinds of ways of drawing the district lines to give the advantage. And the court has now said, we're, we're out of that business. That's not a, a, a, uh, a judicial question. Well,

Bobby:

that's good because who would enforce

Bento:

that at this point, then, uh,

Paul:

state it's up to the state legislatures, although state courts, uh, you know, might, might, might get into this act. Uh, and there's also the issue of, of racial Gerry, man. You can violate the voting rights act, right? But the problem is how do you distinguish a racial gerrymander from a partisan Gerry maker? So that this question is still, still gonna come up, but Democrats are now complaining that because of Republican dominance in state legislatures, they're gonna draw the lines that, that favor. I favor of them and they'll have an artificial event. You just, so with,

Bento:

with all this Republican dominance, why doesn't Joe Biden wanna put more people in the court?

Paul:

Uh, I mean, Biden, I don't know about it. Biden has been a, uh, you know, relatively moderate Democrat for most of his careers. Most of the flack he's getting now is that he's not, you know, following sort of the, uh, the, uh, the AOC wing of the party and right.

Bento:

I mean, I think Paul Maari Democrat is probably even a bit, a bit easy on him. I think he's more of a moderate Republican, to be honest, but yeah, at least in his earlier years,

Paul:

when you consider that he's been around, I think in politics, you know, since 1970s. Wow. Yeah. Uh, and you know, uh, his vice president, Pamela Harris gave him a lot of grief. Being willing to, you know, get along with Southern, you know, segregations who were legitimate white supremacists back in the 1970s. Right. Geez. Uh, so he's got a lot of sort of, uh, uh, baggage. Sure. Uh, again, there's also the, uh, the age factor right. There's a legitimate concern that somebody who brings that much sort of baggage with him into the white house, uh, is, is, and also, I think Biden recognizes that you don't get sort of earth shattering stuff done when you have a very narrow margin in the house representative. Yeah. And really not, you really don't have a majority in the Senate and, and sick, right. Because of tension and, and Sy up, uh, you know, you gotta be willing to compromise and packing. The court is not. An issue that people are gonna compromise

Bobby:

about. So, yeah. Right. And, and, and immediately after you do that, good luck getting anything else done?

Paul:

Yes. Right. Yeah. In fact good point McConnell McConnell said that you wanna do a filibuster, which would require, you know, just about anything to just get done, you know, we'll make it impossible for you. Do anything. Because of the, you know, million and one things that every day have to be done by unanimous consent, right. In the Senate. That's gonna be another way So, but did you remember too, you know, how Biden got the nominat, uh, in the middle of the COVID panic and all that? yeah, I don't think he was a lot of people's, you know, first choice, right. It was kinda in the sense that the Democrats said, we've gotta, we gotta be Trump one way or another. Right. That's you know, presidential politics. And

Bento:

I, I think he did an okay job of bridging the gap. You know what I mean? Cause I feel like there are Republicans out there, like, Republican classics, like the, the Bush era guys that, you know, not this new Trumpism and, you know, start out as a tea party and turned into this cult of Trump. you know, there are a lot of people probably get behind him, but, but yeah, like he, you know, I guess I consider myself a Democrat. I mean, I don't, I don't like where democratic party is going, so I just consider myself. Left leaning, libertarian how to put a label on it. But yeah, I mean, I didn't care for him either, but I still voted for him, but I hope he doesn't run again. but yeah, like he's too old, like I'm so tired. He's like super old white guys running the country, but it seems to be the only people that wanna do it. Yeah. I think

Paul:

that, I think the same thing for Republicans where I, I would bet a majority of Republicans were preferred that Trump not running it. Right. And this is also part of the fact that the two parties had become so weakened, you know, Bernie Sanders could have won the nomination, and he wasn't a Democrat. Right. He was socialist and Trump really has not been a Republican. No contributed money to Hillary's campaign when she was running for New York Senate. So when people like that can get the nominations of the two parties, the parties are in bad shape. So that, that's another thing I think we need is a, a strengthening of what the parties stand for and sort of accountability of the voters. I think

Bento:

we need more parties to choose from is a problem, too. You know, they have the green party and they have libertarian, but they receive such a low percentage of voters that it's, it feels like

Bobby:

a waste is even voting for them. That's something I was gonna bring up. When you look at some European countries, there's a, a flood of these parties where there's six of 'em running against France is a example. Yeah. And there's so many options, you know, when we look back at American history and it was the Federalist and Hamilton versus Madison and the democratic Republicans back then. Why was there never an a third school thought?

Paul:

Yeah. They never last very long. they're able to shake things up for a while, but eventually sort of return to the two party system. And that's mostly because of the, winner take all election rules that we have for almost everything, in America, like the electoral college, especially mm-hmm I think Nebraska and Maine are the only states that will divide their electoral votes. Right? Every other state says you win the majority, you get all the elector right now, if you wanted, if you wanted to change that and have, you know, a plurality system, in the electoral college, what that would end up doing is you'd get no majority unless for college. And then the house of representatives would, would choose the present. And oh, in that system too, each state gets one vote. Right? So if the California delegation was divided, you know, 21 to 19 one person would get all of the, you know, the, the one vote that the California gets. So a lot of that's just built into the constitution. There's, there's a bias against third parties. in the constitutional structure, were those

Bento:

things added later on or have, has that been in effect since the beginning?

Paul:

Well, the, the, the founders didn't, it wanted there to be part, you know, they were hoping that, you know, everyone would get along and there wouldn't be actions and then

Bobby:

that didn't last long. They could see us now mean they couldn't even agree on the constitution when they were trying to ratify the, the articles of Confederation. It's

Paul:

very, very close vote. And, again, a lot of people, the anti-federalists complain that that process was rigged. Right. But then it turns out that political parties ended up being good for democracy. In that they were sort of the, the, the conduit, the connection between the government and the, the mass of people. Mm. So that most people spent and people today don't have the same kind of party, loyalty that they have. Right. Where it used to be like, it was like church or your family, you know, you, you were just fanatic about your, your party

Bobby:

connection. Yeah. And everyone walked in and you just hit the one Republican box and both Republican all the way. Yeah. You didn't

Paul:

split your ticket, you know? And, that gave a kind of stability in organization to, to American politics. There was also a lot of, you know, there, a lot of corruption involved in the spoil system, the patron system and all that. But it, it had its upside as well as its, disadvantage. Hmm.

Bobby:

And, and so, and so there was never an intention, you know, to say, Hey, we're gonna be a two party system. No. Right. You're saying that the founding fathers was like, Hey, we happen to, we happen to disagree on whether we have a stronger central government and big bank versus more state power, but then that's what started the, the spread.

Paul:

Correct? Right. Yeah. They wanted a zero party system. Yeah. And when you had someone like George Washington who just, you know, unanimous choice, two times you ran for president. But even in the Washington administration, his people, especially Hamilton, you know, everyone knows this now from the, from the musical, you know, they became the sort of the polarizing figures. And Washington was really a gas at that where even he personally, became the target of a lot of journalistic, uh, you know, abuse. Hmm. And you know, he thought that look, I'm, I'm supposed to be above all of this. Right. And American presidents, at least through Andrew Jackson, you know, took that seriously. I'm not gonna be a party. You know, I'm supposed to be sort of above factual conflict. And then we got, kinda got used to, it said, okay, we have two parties. Here's what we stand for, you know, sort of duke it out. but you know, fair means and foul. Right. And the 19th century was sort of the great age of, of party politics now, American politics. So disorganized, you know, people don't organize their political lives according to, to parties. So I think we need

Bobby:

stronger. Yeah. It's funny too. Cause I think back to like the, uh, gore Vidal debates that they put on ABC. Yeah. I can't remember what year that was, but I mean, you go back and watch those political party conventions and yeah. It's like nothing you see today. Well,

Paul:

absolutely. It used to be that the presidents were nominated by the party bosses. Mm-hmm delegates to the conventions are people who had won election at the state level and they were the professional politicians and the introduction of allowing the people directly through the direct primary. this starting the progressive era in the 19 teens, but even so the president presidential tenants, weren't chosen by the de by the, pop primary voters really until the 1970s. Wow. And it's ironic because that's what saved, Hillary Clinton, the so-called super delegates, the delegates who weren't chosen by the people in the primaries, right. Tended to be pro Sanders. The professionals, the insiders are the ones who were, were for Hillary. Ironically, Donald Trump, the Republican party was more populist in that all of their delegates were chosen directly by the primaries. And they went for Trump. If it had been up to the Republican professionals, you know, it would've been J Bush or yeah.

Bobby:

It would've been anybody, but Trump. Yeah.

Bento:

Yeah. John KK, something like that. Yeah. Yeah. That's great.

Bobby:

Yeah. Right. All case forgot about him. I know.

Bento:

So, another question before we start to finish up, what do you think is gonna be the, the next biggest item that the Supreme court rules on

Paul:

affirmative action? almost certainly. oh really? Yeah. The three big ones I took off this time were abortion of force, the gun one and, the administrative state that was sort of the sleeper. And I think most people don't realize the significance of that, the EPA decision, the idea that Congress has to be more explicit about the powers that it gives to these administrative agencies. That's gonna affect a lot of what the government does. but that's kind of technical and, you know, sort of, not as sexy as these, these other issues, but, but

Bobby:

don't you think like that that's government holding onto more power?

Paul:

Yeah. Oh, absolutely. Yeah. And here the court is trying to say that the people, the Congressman, the people who are actually elected by the people, they have to make the hard choices. They can't just fob it off onto these, you know, unelected bureau cuts and let then make, make the, the hard decisions.

Bobby:

I think, I think that's a good thing. Yeah. Make politicians more responsible. Yeah. Get a little more accountability there rather than whoever is appointed as charge of the E Eva. That way I, we know nothing about yeah. And we're the

Bento:

ones that vote them in. So I mean, you know, they should make those harder decisions for us. That's that's literally why they're.

Paul:

But that's real sort of inside the beltway kind of stuff. That's the, the administrative state. And, uh, actually look, once Trump did kind of make an issue about this. He wasn't able to do really anything about it. Although in indirectly, he is now by the justices that, that he appointed. But I think now people are gonna have to start paying more attention to that, you know, sort of grassroots, sort of way that most of our laws are actually not made by Congress. They're made by the secretary of health and human services or the federal trade commission or, or whoever. Right. So that's kinda a, that's kind of a sleeper, I don't think people realize the significance of that decision. Affirmative action though. That's a, that's a hot button one, you know, that involves race and, people get worked up about that. So the, the case that's coming out of Harvard mm-hmm claim that their, admission system discriminates against Asian Americans, the court could well revisit some of the fundamentals of, of affirmative action. That could be, that could be. But that's my, my predictions are worthless. I'm I'm about what happened yesterday and what's gonna happen tomorrow about time. What do you think

Bento:

about this? you know, Clarence Thomas made a, a comment. I think personally, I think he was just making it to, you know, ruffle some feathers, but he's mentioned, they're gonna look at same sex marriage next. You think

Paul:

that's that's even on the table? Well, no, actually his concurring opinion in dos, he just said that he wanted to review the whole doctrine of substantive due process. And that was the basis of the homosexual marriage and a lot of other stuff the court has, has done as well. And I think if you read his opinion carefully, he wasn't signaling signaling out that issue or any other issue. He was singling. sort of calling attention to that, that particular doctrine and. He has always preferred to approach those questions of sort of fundamental rights. You know, what are our fundamental rights? Is it gay marriage or abortion or whatever under the privileges or immunities clause of the 14th amendment. And I actually wrote a, a piece about this for, national review recently. And, tried to explain what it is he was, he was getting at most people, these are sort of technical sort of con law questions. And I think people on the left were getting a little sort of, hysterical about this. what Thomas is trying to do is just sort of shifting which part of the 14th amendment we go to when we address these questions of fundamental rights and, the others, the, the majority opinion, Alita was very clear. Say, look, this, this is about abortion alone because abortion is a different kind of right. It involves the state's interest in this third party of the unborn child, etcetera, et ceteras completely different basis. From these other decisions now, the dissenter said, well, remember, justice Kennedy said, when they struck down the sodomy laws, this doesn't mean anything about homosexual marriage, but he did. Yeah. Right. That saying this doesn't mean anything funny, but it might, so yeah. Have a hard time getting the guard of this court to, to do

Bobby:

that. Yeah. I, I feel like it's, it's a very slippery slope though. Like benzo said earlier, I mean, allowing these unelected people to, to make decisions on the interpretation. I mean, just like we were talking about with the EPA and bringing that power back to Congress, I would rather seek Congress, make these decisions. Yep.

Paul:

Well, and when it comes to national issues, like, environmental policy, you know, that, that, that's one of the fundamental questions of whether these questions are, should be left to the people at all, and whether they can be left to the people through Congress or, or the

Bento:

states. Right. See, that's kind of how I feel about the abortion thing. Right. I mean, I get part of me and, and just to be clear, I don't like decision at all, but I like the fact that they're giving states more power, but the problem is just some of these states just can't be responsible to make the right decisions. You know, like the extremist states of, you know, the evangelicals and, you know, you think about like Missouri and Mississippi and like that, that kind of Texas, you know, we talk about Texas And if you read a lot of the polls and things like that, I know, you know, polls, aren't always the end be all, but even people in those states, the majority of them agree with some form of abortion. So I feel like they're not really giving the people what they want still. They're kind of giving the people what they think is right.

Paul:

Yeah. It's gonna take a while to see once people see, okay, what does my state legislature do about this? How much of a difference is actually gonna make, you know, sort of on the ground, right? Uh, new, New York preempted, this they liberalized what had already been the most liberal abortion law when Roe versus Wade struck it down and essentially allowed even more than Roe versus Wade did sort of abortion on demand up to the point of birth. doesn't even have to be, uh, performed by a, a physician, you know, New York had a lot of, states like that already paid for them, whereas the federal government won't. So let's see how new Yorkers feel about that. there, there might be a lot of, you know, sort of, pro-life people in New York that vote out their legislators for supporting this. And there might be a lot of pro-choice voters in Texas or Oklahoma who, who do the opposite. Yeah. Right. Chance to do that.

Bento:

Right. The problem is that that, that bureaucracy takes so long and there's just so many people that are gonna suffer while this change gets put in place. You know, like if you, if you live in Southern Florida and you need an abortion, like you have to travel very far to, to get one, you know, to another state which a lot of these people that have abortions, they, they can't afford it. You know, they don't have, they don't, they barely had the money before the abortion alone. So it's just, I don't know. I guess it's just kind of nature of our country, but it just feels like a step backwards for a moment, at

Paul:

least. Well, if you, I live in Michigan and Michigan, didn't change its law. And before RS, Wade, we had a law that was as strict as Texas, you know, abortion only to save the life of the, and so that's now the law that's on the books now, now the Wade has been overturned, but our governor said I'm not enforceable. Right. And so, when is I wanna, when is the first time that an abortion provider is actually gonna be prosecuted and convicted? Yeah. Under these state laws, that didn't happen a versus Wade, by the way, there was no. That was a case that was more or less an advisory opinion, right? The plaintiffs were asking the court to say whether this law is constitutional, it's not like an abortionist was, you know, jail and then was challenging his conviction. That was right. That was one of the problems of the case. It wasn't really a case. Mm.

Bobby:

Interesting. And, and so, to go back to, you know, kind of how these things get brought back up. So Roe V. Wade got brought back up for what reason?

Paul:

Well, it's interesting because when people said the court overturned RO versus Wade planned parented against Casey in 1992 more or less overturned Roe versus Wade. Okay. the trimester, scheme. It was the first significant Supreme court decision that upheld state restrictions, Pennsylvania had a 24-hour waiting period, right. Minors had to get their parents consent with a judicial, you know, escape, passion and all that kind of thing. And so that, especially the, the viability point, right? In fact, that medical technology changed the basic understandings of, of when viability occurred. So Roe versus Wade, a large part of the decision too, was based upon the history of abortion under the common law and the 19th century laws and all that. The court kind of got rid of all that as well. So Casey, in 92, it reaffirmed the basic, hold it that there is a constitutional right to abortion. Right. But it wasn't a, you know, fundamental, right. It didn't require exactly strict scrutiny. And that, that the, in the term that Casey introduced was that state laws were okay if they limited abortion, as long as they didn't, impose an undue burden. On a woman's right to abortion. And nobody knew what that meant.

Bobby:

That's a, that's a pretty loose terminology there, right? Yeah. I dunno if that, I don't know if that really answers anything. Right. Cause again, that puts it back to the state legislators to now interpret that. Right. Which again, you know, you've, I, we live here in Rhode Island. We vote for those people and I wanna feel like you. Those who I voted for are representing the majority of the state.

Paul:

But, and actually the politicians were always, and this is historic, not just that abortion, but a lot of issues, very happy to have the Supreme court take the heat off of them. Right. They could say, however, I feel about this doesn't matter, the court has spoken. And so let's talk about something less controversial. But so

Bobby:

part of the problem with this whole process though, is things like gerrymandering mm-hmm because there are so many systems of manipulation against the general public, and now you really don't have an opportunity. Like we talk about Rhode Island and, and our electoral college. Well, technically all of our electoral votes come from seven people in the state, like all the rest of our votes don't matter, you know? And so, and so there are so many systems of manipulation and roadblocks that if we're allowing a court to make those decisions for us, well, we're not really represented appropriately anymore. And so that's where I think is, is the biggest problem for me.

Paul:

Yeah. And I saying, it's like, again, in my state of Michigan, we adopted a, sort of a nonpartisan, commission to draw the district lines. Mm-hmm and the voters approved this by a popular referendum. I think it was in 2018. And so Michigan's lines are being grow. I don't think that's gonna be, I don't think the people on this commission are gonna be, lacking the kind of partisan, motivations that legislators have. I don't think it's necessarily better. Sure. Right. There'll be some sort of

Bobby:

bias.

Paul:

Yeah. But there, there, there are alternatives where, you know, having at large elections where don't have any district funds. Yeah. you know, I would love that. Yeah. You're allowed to do that, in the electoral college, as I said, states like Maine and Nebraska have already done this, but they said you have to win each of our congressional districts and then you have to win a majority of the, of the state. So. there are sort of ways that people can, you know, win elections and then you change the way that future elections are, are, are administer,

Bobby:

are ministers, right? Yeah. And that's really, that really is the only kind of legal way to do it in a sense is at the local government level. Cause a lot of

Paul:

this, like the, the Senate, the fact that the country is, you know, you can't change the district lines when it comes to the Senate, you know, every gets to senators and that's it. There's no change in that. So some of these things are just built into the constitutional. And, many of the constitutions virtually impossible, just getting authority of Congress now is virtually impossible. So, we're, we're, we're stuck with a lot of things that are just built into the constitution.

Bobby:

What, what's the, what's the, the rule there about amending the constitution? How many people do you need? You need,

Paul:

uh, the amendment be proposed by two thirds of Congress. Two twos of the states can ask for a constitutional prevention, but whatever they propose has to be ratified by three quarters

Bobby:

of, okay. Okay. Yeah. Good luck with that. Three's

Paul:

been a long and usually the point is that by the time you have that kind of consensus, You would need to amend the constitution anyway, right. Through

Bobby:

normal political, normal channels. Yeah. There's gonna be enough pressure and things at that point. Yeah. Right. Yeah. And, oh, and again, back to this, abortion thing, you know, I, I saw in 2018 was the last time that, the pew research center had done a, a census of the entire country and it was like 60, 61%, were in favor of, of some sort of, you know, legal, abortion, plan. And, and, and it is funny because, you know, we go back to that, you know, how are us as us citizens actually represented to our, you know, in our government system. And I, I just feel like if it really is 61%, you know, has that changed. So be it, but if it is 61%, then that means, you know, there's still an inverse, right. There's 30. Well, where are those? 39. Yeah. Cause I doubt that they're all in the south.

Paul:

Yeah. And I've, I've, I've seen, I've seen a million polls about this and every all depends on how you ask

Bobby:

the question. Oh, of course. Yeah.

Paul:

But I, I would agree that probably something like the majority is in favor of early first trimester of yeah. And that's ironically enough, that's pretty much what the Mississippi law that was in question, provided for now. Of course, Mississippi's gonna go back and ban it all together, right? Yeah. And if the Supreme, if in Roe versus Wade, the court had imposed a, you know, full nine months, you abortion on demand, a system on the entire country. Most states would've adopted something like that position, you know, states like New York, new in had pretty much, through the second trimester, 20 weeks.

Bobby:

Right, right, right. Terrific. Well so it's about that time, doc. Please let us know, where people can find you, you know, book, let us know about your book. You know, give us, give us all the details here for our listeners.

Paul:

Sure. I, I teach at Hillsdale college, in Michigan, I teach history constitutional history. I've I've published a number of books on constitutional issues, race relations, civil rights, labor issues. My last book was about the administrative state called the bureaucrat Kings. but the new book's coming out in September and it's called how the court became Supreme. although I have, might have to change the title now because there could be a backlash, put it in place,

Bobby:

but that, no, it was good. I thought it was a really catchy title. Honestly, when I came across on Amazon, that's how I found you actually saw the, the listing on Amazon and I, and that's how I reached out to you. But it called my attention right away. That title.

Bento:

Great,

Paul:

good title. Great to be on your show guys. And, uh, yeah, that's something that outta Rhode Island, it's not a lot of, uh, uh, stuff that comes outta Rhode Island, so, yeah.

Bobby:

Right. Dumb and dumber. That's a lot. you we're, we're, we're keeping that trend going, you know? Exactly. But yeah. Thank you so much for your time. Really. We greatly, greatly appreciate you coming on and helping teach our audience above the Supreme court. So thank you so much and

Paul:

hope you guys keep in touch.

Bobby:

Awesome. You some time. Yeah, we will talk soon. Thanks doc. We appreciate it. Have a good evening. Pleasure. You too

Bento:

All man. You'll turn and do the intro.

Bobby:

Oh shit. Dr. Paul Moreno, Mark Moreno. No, no right. It's

Bento:

Paul it's Paul. Yeah. I like how we address it right off the bat. He's like, Hey, he is like, I'm, I'm not mark. Yeah. it's like, oh, thank God. So he still so identity. Oh

Bobby:

my God. So funny. All right. He was so smart. He was so good.