Has the Supreme Court Always Been This Terrible? with Mackenzie Joy Brennan

What is “originalism,” and what does it have to do with all these bribes? Mackenzie Joy Brennan has some answers.

Find Mackenzie online here.

You can find Abortion Access Front online here.

"Anita Hill" episode of You're Wrong About.

The US supreme court just basically legalized bribery by Moira Donegan

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Transcript

YWA - Supreme Court

Sarah: What even are words, if not a way to massage the average voter's brain into a jelly?

Welcome to You're Wrong About, the podcast where sometimes we ask, what is happening? And why is this allowed to be happening? Today, I am talking to Mackenzie Joy Brennan, attorney and constitutional scholar about the Supreme Court, some recent decisions of theirs you may have noticed. Is there a constitutional right to abortion? No. And how many crimes can the president commit? Most of them. One of the difficult things, in my opinion, about being an American is that you can tell something terrible is going on. But if you don't have the legal vocabulary to name what you see happening according to the terminology chosen by the profession of the people making it happen, you can feel too ignorant to be allowed to have an opinion about it. Or at least that's how I feel sometimes. That is why we are talking today with Mackenzie about the Supreme Court, what it is, how it works, what powers it claims to have, and what it claims to derive them from. And one of the central themes in the Supreme Court's claim to power is the concept of originalism. The idea that the nine justices sworn in for life are uniquely able to interpret the desires and beliefs of the Founding Fathers, and that this, if it were possible, would be the correct way to run a country. 

The real driving question of this episode for me is what is the Supreme Court and is it destined to be the thing it is now? And the answer is ‘no’. The world looks a certain way today, but it doesn't have to look that way forever. And it didn't look that way in the past. We have that power. Thank you for listening.

Welcome to You're Wrong About, the podcast where sometimes we just ask a question of mine that I really want an answer for. And our guest today to help us in that quest is Mackenzie Joy Brennan. Mackenzie, hello. 

Mackenzie: Hi, I'm so excited to be doing this. Except for what brings us here. 

Sarah: Yes. The last eight years potentially happened because somebody wished on a monkey's paw that they would have something to write about as a journalist or something covering America.

Mackenzie: Oh my god, right? Yeah, it's one of those things, and I say this because I do abortion law as well, the only thing I would like more than doing this type of work is not having a job. Not having to represent people, not having to talk about this. 

Sarah: Yes, you're like Alan Grant in Jurassic Park.

Mackenzie: Exactly.

Sarah: Except not really, because I think he really wants to be on a dig intimidating a child.

Mackenzie: Oh, for sure. 

Sarah: So I wanted you to answer my question, which I suspect is a question many of us have, especially lately, which is, has the Supreme Court always been this terrible? Does it have to be this terrible? And what was it like before if there was one? 

Mackenzie: Those are great questions. I want to preface everything with don't take anything I'm saying as, back in the good old days, because generally that type of reasoning, especially with government, means a lot of us lose our rights. Take everything I say in terms of where we started out in the halcyon days of constitutional democracy with a grain of salt, because I know that, we know that. But what I will say is that there's been a real turn in politicization of the court, and in my humble opinion, I think that really started with Robert Bork and with the introduction of originalism. So those are the threads that I was thinking we could trace through to answer what the heck is going on today and why we're here.

Sarah: I would love that. Also, to start, I would love for you to talk a little bit about what your profession within the law is. What is the law, while we're on it. What is your relationship to the Supreme Court? Which is a weird question to be asking as if I'm accusing you of having gone out with it.

Mackenzie: Abusive relationship? 

Sarah: Yeah, take both of those however you want. 

Mackenzie: Right? It's really sad to answer your last question first, because I always saw the judicial branch as the last bastion of civility, some sort of rule of law. It's harder, or it was for many years harder to overturn precedent, and that could be a good and a bad thing, but that there was some degree of objectivity, and we must rely on this, and we wear robes, and that's great. 

Yeah, I went to law school in New York and worked for the New York Supreme Court for a couple years under a judge there doing all sorts of civil law stuff, family law, guardianship. He was great, but I got the sense that I was working for somebody who was an exception that proved the rule a little bit, that, oh, damn, judges bring a lot more of their own biases and freedom to what they're doing. 

And so then I did a hard pivot and started doing more media commentary work, came back to my home state of Arizona just in time for all this abortion stuff to happen in Arizona. Now I am still taking abortion cases, but most of what I do is media work, and I'm with Abortion Access Front right now. That's my relationship with the law on a very personal level. My late dad also wrote about originalism and his life's mission was debunking it. So he left that mantle behind for me to pick up and here we are doing that. It's gotten worse. 

Sarah: So there's a little of a family of superheroes kind of quality in all this.

Mackenzie: I love that. Yeah, except that nobody really cares about our plaintiff call in the night that this is all nonsense. 

Sarah: I care! I care about the Constitution. It has good parts. It's like Brian De Palma's Body Double. You wouldn't say unequivocally it was a good movie, but you're like, listen, there's great parts.

Mackenzie: Totally, and I feel like that's, I know you and I talked about this a little bit before, but that's what a lot of us on the more liberal side of things have lost the opportunity to do, that oh, the Constitution really was designed, yes, it was written by very flawed people, and there are necessary amendments that have been made over the years, and even more so that we haven't made, but there's a lot of good to it, and they knew what they were doing in terms of making it able to grow. We just have let the rule of law really get co-opted by people who have not taken it that way and have co-opted it. 

Sarah: Sort of one of the first questions of this show is, how long has originalism been around? Because the name really does seem to imply that this is, implies to me, this episode should really be called, You're Wrong About the Legal System, Sarah, implies to me that it's been around since the beginning because it's called originalism. You just were like, it's old, right? 

Mackenzie: That is the first intentional hoodwink because it really gained popularity in the 1980s. A lot of people credit Robert Bork. And I think, I paralleled before that it's like when a country calls themselves People's Republic or Democratic Republic.

Sarah: Yes. 

Mackenzie: Just to mask that they're really not doing that. And originalism, in using those words, gives it a certain degree of clout. And as I was researching this, I saw some places now calling it constitutionalism, which is even more brazen. 

Sarah: What even are words, if not a way to massage the average voter's brain into a jelly?

Mackenzie: Oh my god, you got to hand it to conservatives that they really know how to play their semantic games, and it is working. 

Sarah: Yeah. The Clean Air Act. 

Mackenzie: Yeah, and even like Pro-life. 

Sarah: No Child Left Behind, yeah. 

Mackenzie: No Child Left Behind, yeah. But anyway, yeah, so Robert Bork was the granddaddy of originalism and before he introduced that word he had a storied past in the more political sphere. I want to send you a picture of him because he's everything that you would think of. I want to quote from his book first and his book is called, Slouching Towards Gomorrah. 

Sarah: No Why? Was he like, move over Joan Didion? 

Mackenzie: Yeah, he's going to rewrite the manifesto. So he invaded against liberals. 

Sarah: I'd call it electric Bork-a-loo, but he didn't ask me.

Mackenzie: Oh, I hate that! He invade against liberals and premarital sex and working mothers, saying, “a decline runs across our entire culture and the rot is spreading”. 

Sarah: Okay. 

Mackenzie: Okay, do I send it in the chat, this super-hot pic? All right, he's on his way. 

Sarah: Okay, oh boy. Oh yeah, see I recognize this face now that I see it. He looks like he plays Abraham Lincoln for town 4th of July events. 

Mackenzie: Yeah, or we could say Confederate general foil. 

Sarah: Yeah. Civil war hair and beard. 

Mackenzie: Yeah, so he also was part of what was called the Saturday Night Massacre, and so that was when Nixon was being investigated for Watergate, he tried to fire the special prosecutors who were looking into Watergate, and so three successive DOJ folks were asked by Nixon to fire the special prosecutor, and they all refused, except for, he got to the third in line, who was Bork, who was at the time Deputy Attorney General.

Sarah: Put a cert in his mouth and said Bobby, what do you say? 

Mackenzie: Bork was the one who agreed to do it. He obeyed Nixon and fired Archibald Cox. That was his first time in the public eye. Then, by the time Reagan, because of course it was Reagan, nominated him to the Supreme Court in 1987, he had also spoken out against The Civil Rights Act of 1964 and the SCOTUS cases that established the right to contraception because obviously that is part of the rot that is bringing us to Gomorrah. 

Sarah: Yes, yeah. 

Mackenzie: So that's his proud history. He was not approved to the Supreme Court. 

Sarah: Isn't it fascinating that that used to happen? Not in a while, but… 

Mackenzie: And he lost with the largest margin at the time for a nominee losing, which meant that people cross party lines, which is, quaint.

Sarah: Wow, which they also don't do any longer. Yeah, and I remember that George W. Bush had a sort of notoriously under qualified nominee who was not appointed. And there was a feeling for me, at least at the time, that the executive branch is going to pull some shit, but the Supreme Court, at the time, felt like a moderating force. And it would seem to me that kind of the reason you have a judicial branch is so that they're not in the pocket of whoever's president. But I guess we don't believe that anymore. 

Mackenzie: Exactly. And I think that's the paradigm that I believed we were in for a while, and I think we were more so in that world. 

Sarah: Yeah, it had to have been more so than this, because just look at… because we would have noticed. 

Mackenzie: And as you should, looking at the Constitution, you can see that there is a world with checks and balances that should and could exist under our structure, so like, why not? But Bork opened a door because conservatives were so angry, and they turned his name into a verb that means to get vilified and defamed. And if somebody gets Borked. 

Sarah: And aside from what you mentioned, was there a particular reason that at least people cited? Because I know it's often more complex than a single thing, but what was the sense people had about why he wasn't confirmed? 

Mackenzie: Too political. That he was too partisan. 

Sarah: That doesn't happen anymore.

Mackenzie: Isn't that wild? I think the relationship that he had with Nixon and specifically with Watergate.

Sarah: Oh, wow. 

Mackenzie: The fact that he was questioning legislation that was on the books from Congress and questioning settled Supreme Court precedent because it approved contraception. 

Sarah: And I feel like today they'd be like, good for you. What was Nixon like? 

Mackenzie: Also, though, on the other hand, Nixon was the one who signed federal funding for Planned Parenthood. So they're all terrible, but also, we're reaching new levels of terrible as we go. 

Sarah: There are aspects of American culture, or, specifically government, that were designed to be unjust from the very beginning. But there are also parts that were designed at least with an intention toward justice, and we can actually try and use those. There's life in the old girl yet. 

Mackenzie: Absolutely. One of the things that my dad cited in some of his research is there are ample framers talking about natural rights that they have not yet discovered that future societies as people become more civilized, if you will, will discover more rights and dignities that humans deserve, and the document is supposed to live with and embrace those things. So if that's not them speaking to progress within this constitutional scheme, I don't know how else you interpret that statement. But it's there. 

Sarah: Yeah. What is the Constitution? And then what is the Supreme Court? 

Mackenzie: Okay. Oh boy. 

Sarah: So it's like talking to a baker and being like, what is flour? And they're like, I don't, wow. 

Mackenzie: Yeah, so the Constitution is, I think, our most important foundational document. It lays out a whole bunch of freedoms, and there was a big debate when they were drafting the Constitution about should we write out the rights that we want to be protected? Or, by writing out the list of fundamental rights, do we beg the question down the line that, oh man, they forgot something. If they took all this time to write out these rights, and they didn't include X, Y, Z, that probably means they didn't intend to protect XYZ. But it's impossible to enumerate all of the things that people have freedom to do, let alone, contemplating that document living with a society as time goes on. They struck a balance, and, you can't write out the right to breathe, the right to sleep, the right to turn left, there's so many things that are so basic.

Sarah: The right to wash or not wash your chicken.

Mackenzie: I exercise that right all the time. So the balance that they struck was, we'll have catch all's and we'll leave some of the way that we term these rights open to interpretation and able to grow and adapt. I may be getting ahead of myself, but one of the most important ones is the Ninth Amendment, which basically says, don't worry about this whole argument that we had between the Federalists and Anti Federalists. Anything that is not enumerated in this Constitution should not be interpreted to take away those rights from the people. All those rights that aren't included are retained by the people unless somebody says otherwise. Oh, and the Bill of Rights are the first ten amendments. But it also outlines in the articles some of the powers that are delegated to different branches of government. And that brings us to the Supreme Court. The Supreme Court is basically there to resolve conflicts on an appellate scale, or there are some cases over which they have what's called original jurisdiction, where they're the first ones to hear the case, yada yada. But the biggest thing for our purposes is they have the power to interpret the Constitution and resolve questions of constitutional interpretation. So that probably brings us to this power that they've wielded more brazenly in the last couple decades if you ask me. 

Sarah: Okay, so we have the U. S. Supreme Court, which I feel like we're all used to calling SCOTUS now. We all have to talk about SCOTUS all day long, which makes me feel like we're all characters on Veep, in a way. There aren't any other Supreme Courts, are they, for counties? 

Mackenzie: Yeah, there's not really a uniform structure, for example, in-

Sarah: God damn it.

Mackenzie: I know, right? It's bananas. And this is what happens when you do the state's rights thing. So many bad things stem from states’ rights. But, yeah, so in New York, for example, the highest court is not the Supreme Court, it's the New York Court of Appeals.

Sarah: They were like, we're not calling it Supreme. You know what it's like? It's like when they named Al Anon. They were like, we need a name for friends and loved ones of alcoholics. It'll be related to Alcoholics Anonymous, but very different. What should we call it? Let's just call it Al Anon. Let's make it super confusing. Yeah. Everyone will be confused for the rest of time, but we did it. We really did it. 

Mackenzie: It's bananas. And then, because there are state courts and federal courts, and the federal courts have circuits and they have below the circuit courts, which are like for different regions of the U.S., there are district courts. But then in some states they also have like state district courts, or that's the word that they use. But the U. S. Supreme Court is the highest court for everyone. Unless you go international, yeah. 

Sarah: When you say appellate, here's what we'll do. I will try to explain what I think that means.

Mackenzie: Perfect. Yeah. 

Sarah: So what I learned from Law Order, because they say this in every episode of Law Order, is that when you're arrested, you have the right to remain silent, and you also have a right to an attorney. Although I didn't learn until adulthood that people only started having that right after arrest in what, 1964?

Mackenzie: Yeah, with the Miranda case. Yeah. And you also don't have a right to an attorney in lots of other types of cases. It's really just as a criminal defendant, which is also messed up if you think of custodial cases or domestic violence. Yeah. Anyways, but go ahead. 

Sarah: But those things don't matter because they happen to women. And so you have these basic rights as a criminal defendant. And my very general understanding, although this warrants a whole other episode, is that we had it to some extent, an expansion of defendants’ rights in the 1960s because of the Warren Court, which was the Supreme Court under Chief Justice Earl Warren?

Mackenzie: You're doing very well. Yeah, that's correct. 

Sarah: I'm doing it! Okay, so that the Warren Court in the 60s was relatively liberal. And then that we since then have been living in the quote unquote victims’ rights backlash to that. I think I probably know this because we did an episode with Rachel Monroe on victims’ rights.

Mackenzie: Yeah, and it's another case of a misnomer and a willful misnomer because it's really not about victims’ rights, and it's just like a co-opting of-

Sarah: It's about prosecutions rights.

Mackenzie: Yeah. I think that there's been a war between progressive and regressive, if I can call them those things.

Sarah: I like that, because conservative implies.

Mackenzie: Restraint. 

Sarah: I'm, in a literal sense, being conservative when I reuse leftovers. But the party's ideology is so much about waste that it feels a little bit weird to call it that at this point. 

Mackenzie: It's not even that they're trying to retain values that existed in the Framers days, it's that they're trying to be as regressive and bigoted as possible and find an excuse to do that. It's a double-edged sword because the way that the Framers wrote it gave a lot of room to add definition. What does liberty mean if not privacy and autonomy, but also yeah, it's not defined so that technically allows people to define it super narrowly, too. 

Sarah: This is why founding documents are so difficult, I guess. 

Mackenzie: And liberty, a lot of our personal freedom and bodily autonomy rights within the last 50 years have come through the liberty part of the Due Process clause, where it says that you can't be deprived of life, liberty, or property without due process of law. The older, more progressive courts, ironically, have taken that liberty phrase and paired it with things like the Ninth Amendment and other protections of privacy, ironically, like the Third Amendment, that the founders didn't want you to house people in your home, so they probably don't want people searching your body for contraceptives, or knowing if you went to the doctor, or keeping you from getting married. So all of those types of cases hinge on how we define liberty in the due process clause. Because take abortion or gay marriage, they're not telling anybody to get that. They're just protecting those who want to. 

And that's where this whole weird theocratic morality that started with Reagan and Daddy Bork, our favorite guy, started to poison our collective view of morality in government too and make it way more Judeo Christian regressive. If you wanted to go back and really find foundations of progressive values in the Constitution, a lot of the state conventions and constitutional conventions at a federal level talked about things like privacy and the right to create your family. Abortion was super common. It was actually more common per capita before what's called the quickening at the time of the framing than it is now. And they talk about protecting women, children, and animals. If you actually want to look at the Constitution, there's plenty of arguments to make, but that's not what quote unquote originalists are doing. 

Sarah: Where are we now? What has the Supreme Court been up to for the last few years? Because I, like many people, have a general sense of I don't think it's good and everything I hear seems to be terrible, but I also can't say that I've been following it closely. 

Mackenzie: Because it's painful to do that. 

Sarah: Yeah, so just give me all my pain right now, and then we'll go back to the 80s where I'll be safe.

Mackenzie: Rip the band aid? Okay, so let's do the greatest hits of this last term. 

Sarah: Do they get summers off? 

Mackenzie: Yeah, they do.

Sarah:  God dammit. Come on, you guys. 

Mackenzie: Seriously. Yeah, so I feel like it's worth noting also that a fair amount of the current justices are either not duly appointed or have done things criminal to unethical in nature that in any other government job would bar you from serving.

Sarah: That's not good. 

Mackenzie: Do you want to do decisions or the people? 

Sarah: Yeah, let's start with our cast of characters. 

Mackenzie: Okay, fun. So like we have credible sexual misconduct and then perjury about the facts surrounding that misconduct in the Senate hearings with both Thomas Kavanaugh. You also have gross misconduct in what is a job interview from the same two, because Thomas in his Senate hearing, where he talked about the Anita Hill accusations, called it a lynching, which is bananas to say that in a job interview, when your victim was also Black. She was a Black woman. How dare you? And then Kavanaugh in his job interview yelling and crying about how much he likes beer. I wouldn't get hired if I did that. It's not technically against the law, but worth saying. 

Sarah: It feels like it's an important part of the GOP rulebook to very strongly enforce morals that you then don't follow.

Mackenzie: Yeah. And that actually comes up in the next kind of section of what should be disqualifying conduct, which is improper appointments. Gorsuch's appointment resulted from a violation of Article 1 when the Senate did not give a hearing to a properly nominated appointee from a party that they didn't want to hear. So that was Garland. So Gorsuch didn't do anything in his hearing, but his seat should have properly been heard with the Garland appointment. So that's one. And then you take the reasoning that the McConnell Senate used to deny Garland a hearing. And that was like too close to an election because it was a number of months before a presidential election. But when Ginsburg died, it was roughly a month, I want to say a little less than a month before a presidential election, and McConnell's Senate in that case was fine having an appointment hearing. 

Sarah: Yeah, and that one was extra bad because it was like only a couple years difference. It was like, come on, we all remember this.

Mackenzie: So like by your own rules, you made Amy Coney Barrett's appointment improper, and so that takes us to how many, four of them with questionable traits? And then not recusing heavily vested interest and demonstrated bias and then bribery applies to Alito, Thomas, and Kennedy who retired to give Kavanaugh a seat. We've all heard a fair amount about the Thomas bribery nonsense that he's been getting bought off by a big right-wing donor. 

Sarah: Gave him an RV or something, I mean it's like a lot of other stuff but yeah. 

Mackenzie: Vacations and paid for his grandson's tuition or something and then Alito apparently has nothing to do with the stop the steal flag that was hanging at his house because his wife has bodily autonomy and he doesn't interfere in that.

Sarah: I suppose it's hardly relevant. I just think that if you're going to be a criminal, you should just commit and there's nothing less attractive than hypocrisy. 

Mackenzie: They're a hair away from just doing that. Cause in this term and maybe this is a good segue, they said that bribing a federal official is okay.

Sarah: What?

Mackenzie: That was one of their holdings. That kind of snuck in there.

Sarah: Because what I got was the headline which is that they're like crimes are okay if you need to commit them to be president, which is like-

Mackenzie: That's huge! 

Sarah: Yeah, and you just don't necessarily think about how much that covers, but it’s in the breakdown of the details that the shock factor really comes in.

Mackenzie: Yeah, I mean it makes everything that Nixon did in Watergate legal now. 

Sarah: Wow is Nixon, I guess he already was pardoned by Ford, but we can just pardon him again? 

Mackenzie: But yeah, like that's wild. And also within the theme of originalism, how crazy is it that they're bringing us close to a monarchy and acting like they're adhering to the constitution. The whole point of our country's formation is that we didn't want a king. 

Sarah: Yeah, I may not be a great student, but I do remember that part. 

Mackenzie: It's fundamental. 

Sarah: I guess it's nice because one silver lining, and I realize I'm really grasping here, is that this degree of government malfeasance is so transparent and cartoonish that you can't really ignore it and you can't feel like it's too complicated for you to grasp because it's just so corrupt right on its face that maybe it's empowering, I don't know. I think throughout recent history there's been a lot of Emperor's New Clothes about it, and that's harder to maintain these days. 

Mackenzie: Yep, better or worse. It was a watershed moment. So people who maybe didn't hear the quiet part before, now they do. What they do with that is another matter, but it certainly has pushed some people to like, wait a second, I'm not okay with this. This is a bridge too far. I don't know. 

Sarah: When the Supreme Court reviews a case what's the procedure there? 

Mackenzie: A big element of that is deciding whether they want to leave a case be where it was, which is a ratification of what the lower court did, because they heard it correctly or their analysis is fine enough that we don't have to mess with it. Sometimes they decide to do that if they don't want to touch an issue, also. And I feel like that is common for political reasons, that maybe something is a hot button issue. The inverse of that is now you're seeing the court, they have granted cert to some trans ban cases for next term. There are all sorts of different things within those umbrellas that they can do. They can remand something, so they can say that we're not going to rule on it, but we'll send it back to the lower court for rehearing the case, and sometimes they'll give instructions on how to do that. Sometimes they'll say that something isn't ripe yet, so try coming back with this case in a while if you have different plaintiffs, yada. 

Sarah: This is sounding stunningly similar to what it's like to submit a piece to a magazine or something, because we have editors who are like, yeah, this is a good concept, but it's not a story yet. Make some calls, see what you find or whatever. 

Mackenzie: Or we'll totally ignore you. And you just have to live with that. 

Sarah: Or they're like, this is interesting, but it's not something that it makes sense to put in our fall issue, Triassic, whatever. I know that they don't have to decide everything that comes to them, but I do still, I think, have this instinctive sense that surely what we hear about is a representation. 

Mackenzie: Right, like a balanced sense of what is going on in the country. 

Sarah: Yeah exactly, that it's somehow representative of the bigger picture when really it's like, no. There has to be an element of what's advantageous for us to talk about right now? 

Mackenzie: Absolutely. They didn't have to touch any of these things.

Sarah: Yeah. And that would be less surprising if they didn't insist on having lifetime appointments and robes.

Mackenzie: It's a wild amount of power. I know I talk about this too much, but yeah, and just the sort of pomp and circumstance, they have a big red curtain and stuff too? Do this in a VFW hall if they're so confident, this is too much ceremony. It's like the Vatican. 

Mackenzie: It totally is. And it's all just inching us closer to that monarchy, but with a crazy disproportionate amount of power in the court. Because when the Dobbs case was initially moving through the courts, and that was the one that overturned Roe v. Wade, it was a big deal that they granted cert to that because if they hadn't re-looked at Roe v. Wade, it would have stayed settled law, and that's what precedent should do. 

Sarah: They want to have it both ways, at least historically, by being like, we are here to serve the Constitution - I guess this is originalism. That the originalist argument, as far as I can tell, is saying, we are here to serve the Constitution. And it's like the idea that a preacher is your conduit to God. 

Mackenzie: Exactly, like we're just the messengers. We know what they were saying. 

Sarah: We are simply doing what the Constitution says and it happens to say- 

Mackenzie: Exactly what we believe.

Sarah: That we should do this thing that was never relevant for the past, 51 years or whatever. 

Mackenzie: Yep, absolutely. And that doesn't stick with precedent, which by the Supreme Court's own rules, you really should only overturn precedent if it's not proven workable and if new information or new science has come out that makes it inapplicable, lower courts are struggling to apply it. So none of those things apply in these weird overturning’s that they've been doing on political bases, but originalism. 

Sarah: Yeah. Okay. So we have a near miss with Bork. And then how do we get from there to now? 

Mackenzie: Yeah. I think Scalia was really the one.

Sarah: The return of Bork. Bork strikes back.

Mackenzie: That is Borked up. Yeah, so Scalia brought originalism to the court with a vengeance, and I think one of the best examples of how absurd calling it originalism is Scalia's opinion in D.C. vs. Heller. Are you familiar with that case?

Sarah: No.

Mackenzie: So that's the one that redefined the second amendment as having an individual right to firearms, which oopsie except it was intentional. But that's another one kind of like the term originalism that has not been around forever. The second amendment was seen as like a town militia type right and that's its own episode in and of itself, but in establishing this individual rights conception probably because he was in bed with the NRA, he quoted from the dissent written by the minority of the Pennsylvania State Convention to the Constitutional Convention. That is such cherry picking. 

Sarah: I didn't know there was a minority opinion in the Constitutional Convention. 

Mackenzie: And not even the convention at large, but the Pennsylvania State Convention. 

Sarah: We got a real Eagles fan here. 

Mackenzie: Apparently! Man! And that's the thing you can find anything to support your own weird little biases if you look hard enough. And in the Supreme Court cases the council comes to you with that research already done. So somebody probably handed them, hey, look at this one excerpt from the minority dissent in Pennsylvania that says individual, right, basically original intent. 

Sarah: To quote another 30 Rock joke, it's like the Mamma Mia tagline saying, fun, good.

Mackenzie: Dot dot dot, good. Yo, what are you leaving out? Yeah, so I feel like that is a perfect poster child for like, how quote unquote originalism operates and how Scalia brought that to the court and did it with such pride that people just bought it. They're like, oh yeah, okay, originalism right to firearms. But I feel here's a good quote from Justice Brennan, who is no relation, tragically, of mine. But I'd like to pretend he was. He described originalism as, “arrogance cloaked as humility.”

Sarah Ooh.

Mackenzie: I think that says it, yeah. 

Sarah: Yeah, that's a read by Brennan. What are your thoughts on that quote and how does that illuminate it for you?

Mackenzie: The arrogance piece is pretending that they know the intention. And I think where maybe for a while you could argue that they really did believe that original intent said blank and that the framers even intended for original intent to be used, because that's also a novel idea. Nothing in the Constitution says, look to our society as the guide and put disproportionate power in the 1700s.

Sarah: They seem to really, based on what you're saying, to be extremely oriented towards the future. And so it's very funny to take something that's very focused on the future and the idea that we're keeping this a bit loose because it's like writing a syllabus and being like, here are some ideas for how I want this class to go but you, the students are going to tell me what you want to learn, and it'll develop on its own. And then acting as if that syllabus was written in the spirit of, oh boy, it says no loud foods, so how do we define loud, right? Silken tofu is made out of soybeans, which are loud to harvest when you use a combine for it, so when you think about it.

Mackenzie: And we found a receipt in the pocket of somebody who wrote the syllabus, and they went to this restaurant once. So this is probably all they meant. 

Sarah: Yeah, it feels like a transparently unnecessary degree of fixation on just a handful of people who would drop dead if you gave them a pixie stick or whatever. And I also understand, I can see how for a lot of us, the founding fathers are made out to be these sort of dummy god type figures, and I believe that this is a cynical political movement, but I believe that there's enough sort of good faith plausible deniability about this for citizens who are raised when we're taught history at all to see historical Americans as so much better than us and as these great legends that it's easy to trick a well-meaning populace into believing that this is the most reasonable way to approach the Constitution.

Mackenzie: Yeah, and I think the tragedy is that it has forced us to fight on their level and pick out how terrible elements of that society were in a very real and legitimate way. Jefferson was no paragon of virtue, especially by modern standards, but they did design something sustainable and we shouldn't even be fighting over whether they're sainted or not. They didn't want us to focus on them. So we don't even need to be having that argument because they didn't see themselves that way. And so if we want to play the originalist game, we should be focusing on now. So that's the arrogance piece. And I think time has also shown that it goes beyond arrogance and it's just bad faith. It's intentional at this point. 

Sarah: Yeah, and tell me how and where can we see that bad faith in action? 

Mackenzie: I think Scalia using the dissent of a minority of one state when everything else in the historical record, including the convention at large, did not suggest that there was an individual right to firearms. That's a pretty good one. And I think the fact that this court has also overturned so much precedent. One decision that came out of this last term that we didn't mention was, it overturned something called Chevron, which was this decades old, hugely important precedent on agency authority. Places like the CDC, the FAA, the FDA, all of those under Chevron had the power to interpret and enforce the rules that they themselves make. That makes sense. They're the experts, they're the ones who passed these guidelines they had the authority to. And, with a conservative majority, this court just overturned that. And basically said that courts can decide if there's some ambiguity in a rule that came out of an agency that courts can determine over an agency saying that this is how we meant that to be interpreted. Let's use an example. 

So Fauci headed the CDC. That's an agency, right? If the CDC put out guidelines on quarantine under COVID and said that TSA agents at airports should do XYZ and they should quarantine themselves. But there was a question about what the word quarantine meant. Under Chevron, under this case that has been around forever and has been cited thousands of times, if you had confusion about how to interpret those agency rules, you would defer to the agency. 

And so then Fauci and his buddies would say this is what we mean when we say quarantine. And courts would be bound to enforce what the agency says. Now, people can challenge it more comfortably because there isn't this deference to what agencies say. And the ultimate arbiter is the court. And of course, the court has handed themselves power to say no, we're the authorities on what the word quarantine means, or what the FDA means when they say that this is their new medication approval, or the FAA rules. It's a lot of really scary substance. 

Sarah: And it feels like this interesting kind of jujitsu move in a way where you're taking power away from federal agencies, which, classically, conservatives dislike strong federal government. But then you are simply making another branch of the federal government the arbiter of what they do. So it seems like you are supporting the strength of a federal government when in fact you are kicking it over to the inside men you have put in the supreme court to help align the whole theocracy project. 

Mackenzie: What you said is absolutely true, but it also just gums up the gears of everyday agency functioning because they'll be spending time defending themselves against all of these random challenges to their rules and interpretations instead of actually focusing on what they are supposed to do.

Sarah: Yeah, you can imagine some of the implications of that pretty easily. It's not as if federal agencies are running with very much efficiency to this point. 

Mackenzie: Exactly. They're already on their last legs. One of the dissents from this term was really good, and I think it was Kagan. It was in that Chevron agency case. 

Sarah: One of the rare Supreme Court justices who doesn't have any criminal charges that seem like they should be pending. Yeah, what a thought. 

Mackenzie: It was a really powerful season of dissents, if anybody's into it.

Sarah: HBO's best season ever of dissent. You've seen Severance, you've seen Succession, now watch Dissent.

Mackenzie: Oh my gosh, I would watch it.

Sarah: Oh yeah, we would watch it. 

Mackenzie: But, okay, so Kagan says judges are not experts in the field and are not part of either political branch of the government. This was a quote from the case they overturned, “those were the days when we knew what we were and knew what we are not.” And so she's saying we don't know how to make these decisions, so we shouldn't empower ourselves to make them, which is what people who are responsible and hold power should do. 

Sarah: Yeah, and to come back to, I don't know, the role of the judge. It does feel like the magic of trials, the magic of our idea of the courtroom, that a lot of it comes down to our idea of the magic of the judge, who is this mythical figure who wears a black robe a religious leader, and who sits higher than everybody else, and who gets to have these romantically charged sidebar conversations with counsel and to decide what happens and what doesn't and who's the director of the play, but also the sort of idol who has to be appeased, it seems like.

Mackenzie: It's the whole like you can't take their name in vain even. You gotta call him a special name. Yeah, that's apt. 

Sarah: That's real weird! 

Mackenzie: Yeah, and that whole monarchy thing, it's an enormous amount of power, and maybe that can bring us to some action items related to, we have an election. 

Sarah: We do. We are having an election, I hear. 

Mackenzie: I've heard. Word on the street, it's a very stressful time. 

Sarah: I heard that it's Tuesday. 

Mackenzie: I'm not excited about it. But yeah, one of the few things that the executive, which for me, it's helpful to remember that the executive is a branch, not a person. And so think about what the agenda is of the branch. And one of my colleagues actually had another great point. And she was like, which one of these guys would you rather fight with and argue with? Who do you think would actually hear you? And might take some of your points into consideration, rather than just be a megalomaniac. But, food for thought, one of the few powers that an executive does have, pretty unilaterally, is nominating federal judges. Not just Supreme Court justices. 

Sarah: And committing crimes now.

Mackenzie: And apparently, yeah, murdering if they want to, if it's official enough. 

Sarah: If you're like, they were impacting my mental state, they were annoying me, so I had to kill them. It affected my ability to be president. Well, can't argue with that. 

Mackenzie: You just have to say it's official, which seems like the only requirement that they have. And that sounds pretty damn, like a monarchy to me. I don't know what other differences you could point to, but yeah, that's a huge amount of power.

Sarah: Yeah, it seems like we have these founding documents and the sort of idea of government that was based out of both the intelligent and more wishful, let's say ideas of a handful of guys who were around during the age of enlightenment, some of whom, had fortunes and businesses entirely dependent on the labor of hundreds of enslaved people, that's what we have to work with. And I think that it makes sense that we find ourselves in this really, if we let it be interesting, this really interesting kind of gray area of there is so much humanistic potential in some of these writings. But also to treat these men like gods is to actually ignore the very best of what they had figured out, in my opinion, which is some basic concept of human rights and the inalienable rights of man, parentheses, humans.

Mackenzie: And that societies are designed to evolve and grow. 

Sarah: Yeah, and that to write something and to expect it to remain immutable and be graven in stone… contrary to whatever you think of the Founding Fathers, it's hard to not admit that is contrary to the best of what they had to offer.

Mackenzie: Exactly. 

Sarah: Yeah. And then looking at originalism, okay, so we're taking the figure of the judge from the littlest ones to the SCOTUS ones, these people who are torn between humanity and divinity and who have to maintain consciousness and responsibility about this great power that they have in order to preside over a system that hopefully will lead toward justice through the participation of every person involved. And what if we just tell them that they're the only ones who can know what the Constitution is meant to say, specifically the Supreme Court justices who are already more powerful than everybody else, that they just…

Mackenzie: Even what wasn't written down, they know. Without any proof.

Sarah: They get to just decide. 

Mackenzie: When you put it that way it sounds insane. 

Sarah: Looking at it from the perspective just of people in a role where you have to be in a culture of humility and that this is a philosophy that among so much else is just, yeah, about arrogance, disguise this humility, like good old your cousin, Justice Brennan said. Okay. And so what do we know about why this rose as a legal school of thought? And how did this idea get to us? Do we know? 

Mackenzie: It was just persistence, dogged insistence that they are the conduits, first Bork and then Scalia and now on the current court you have Alito really playing that role. Thomas tends to do the same thing as Scalia and Alito and Gorsuch now as a new addition is very quote unquote originalist. So I think it was real political money behind a movement. After Reagan, that whole theocratic conservative movement started and they put their money where their mouth is and originalism was the theory that worked for instilling regressive religious morals in the government. And I think part of what makes it good to talk about how new it is, and how not sainted it is that a big part of it picking up steam was our acceptance collectively, that it was original intent, and that it was a valid way to interpret things, so I feel like conversations like this are the best antidote. The lack of conversations like this is probably why it gained so much power so quickly, beyond, money and politics, etc. 

Sarah: Which is, I don't know, to me, very motivating to think of it in terms of any time you're afraid to ask a question because you don't want to seem ignorant or stupid, that makes it easier for terrible ideas to just swim under the radar with an okay sounding name. And I remember first starting to learn about just general sort of Supreme Court stuff and it totally worked on me. There's a sort of real laundering of the concept where you're like it's called originalism. It's based on the idea that we should get as close to the intent of the Founding Fathers as we can. And on the face of it, at least to me, at the time, it didn't immediately seem terrible. You have to learn about the implications. 

Mackenzie: Yeah if you did apply it as the name would suggest, you would reach different, more rational conclusions. Yeah. And that's where I think the semantics are so insidious. So yeah, I think this kind of pushback is good. 

Sarah: Yeah. There is really a lot of opacity to relatively simple concepts. 

Mackenzie: Especially when you're talking about that feeling of superiority that we get from the judiciary. Making them opaque really serves their end goal of making sure that no one catches on to what they're doing. If you throw a lot of legalese at somebody, and then the one term they do understand is original intent. It's like, oh, okay. 

Sarah: You're like, that has to be good. Tell me if this metaphor makes sense. I feel like the Constitution is like grandma's casserole recipe. And grandma wrote this casserole, and she's here is a recipe for a delicious casserole. These are the things that I put in it, but I don't expect you to always put these things in it or to be able to buy these things easily where you are because I will die and you will live and make this casserole recipe and give it to your children and your children's children and I don't imagine that I am able to foresee, how much changes in agriculture  and whatever. Grandma was really thinking it through.

Mackenzie: I love it. She's a benevolent grandma. She foresees a flexible legacy for her casserole, and she wants it to be sustainable. 

Sarah: And then fucking 200 years later. Some cooking YouTuber comes along and is like the only way to make grandma's casserole recipe is with French's onions and green beans just like she made it that one time.

Mackenzie: Even though they went out of business and if you don't do it this way you go to prison. 

Sarah: But grandma was very clear. 

Mackenzie: Yeah, that was part of the recipe, is to be flexible. 

Sarah: Yeah, that flexibility is part of the recipe. And then to come along and be dramatically rigid about a recipe that was successful because it has a degree of adaptability to it is silly.

Mackenzie: Yes, and I like that it's a random YouTuber who has taken on this task because that's exactly right. Why does this person know what grandma meant? They don't. 

Sarah: Yeah okay, so it has been a horrifying few years, and what next? What are we gonna do, Mackenzie? Fix it. 

Mackenzie: Yeah, let's feel constructive. I always really want to end on a positive note, but I think there are some good things. One really substantive thing that people can do that politicians can do, us as a populace, is put pressure on Chief Justice Roberts because he really, he is the daddy of the whole gang. And so he is allowed to comment publicly on ethics violations, but like he could work with Congress on a code of conduct on ethics violations. He could also push his subservient justices to recuse themselves on cases about a president that they clearly have feelings about. 

Sarah: They clearly all have crushes on. I mean they do. It seems to be how the party is operating.

Mackenzie: Seriously, like he's not going to fuck you, bro. I don’t know if you use obscenities in this.

Sarah: Not only that, but he's not even going to smile genuinely at you. He only does that with Putin. 

Mackenzie: Roberts is somebody who could actually make a lot of the changes that virtually nobody else could. So there's an outlet. Also Congress is an outlet and I know that we really focus on the presidential election, but a lot of the things that haven't happened in the last four years is because we didn't have enough of a majority behind a lot of issues, so I know it's exhausting and it feels easy to give up and just walk away from the whole thing, but really we need more, not less because things like term limits and getting rid of the filibuster that could allow us to get term limits, those are in the hands of our appointed representatives, whether they be Senators or national reps. 

Sarah: And I do sometimes feel like the grand circus of national politics can, in a way, also, not intentionally, but that we are so distracted by these giant things happening that we don't feel much or any control over that it can be easy to be so exhausted that we don't have the energy to get involved more locally.

Mackenzie: Yeah. Sometimes, it is really nice to feel like there is an outlet, and in a lot of places, it is fairly easy to get in contact with your representative's. Now, there are a lot of different ways to do it. I know I hate making phone calls, so if you want to send a letter, if you want to send an email, if you want to go to an event, there are a lot of different ways to exert this pressure, and it's all worthwhile, so find a way that feels right for you and do it. Make weird collage postcards and send them to your reps. Do whatever is your right way of advocating, but just do it. 

Sarah: I find it reassuring that in the story you're telling of originalism, it's like, how did we get in this mess? And well, we came up with this political approach to the Constitution in the 80s and then it really took off and gathered speed over time. And within about 30 years, it had expanded into the most useful legal doctrine of the GOP, I guess you could say, and allowed us to have a Supreme Court packed with criminals and not even in a fun Scorsese kind of a way. In an annoying way. 

Mackenzie: Creepy way. 

Sarah: In a taking your rights away without any apparent style kind of a way. And that is a horrifying story, but also it tells us that this is not what justice in this country must be. 

Mackenzie: Exactly. I think it's weirdly empowering how short a time span it's been, because that also means the inverse could happen.

Sarah: Yeah. Not every terrible process is irreversible, and the hollowing out of our Supreme Court is a reversible process, we can fix that. There are things that we can fix and also things that we can't fix are still things that we can mitigate and mitigate is a fancy legal word for make not so bad.

Mackenzie: Make suck less. Yeah, we have two justices and they're two of the pointedly bad ones who are in their 70s. Life happens. It's possible that whoever the next president is will have two appointments and that could change everything. It could also take generations to see a different composition of the court, because nominees have gotten younger since Bork, too. But, who knows? This time next year, two years from now, it could be a totally different picture. 

Sarah: Is it possible that we could not have the lifetime appointment thing anymore? I also think that the lifetime appointment thing has a different meaning in the 18th century than now. 

Mackenzie: Yeah, seriously. Speaking of original intent.

Sarah: You had more churn when people were, getting a blister while walking to work and then dying of sepsis a week later. Not that people don't do that in America now, but, that's because of lack of access to medical care and not because we don't know how to treat it.

Mackenzie: Yeah, you combine the life expectancy back then with the fact that they were generally older appointees, and it was like the people who had seen everything in their career for the last couple years of their working life and then they're gone. So I think that's another substantive thing to work on. If my understanding is right, we'd have to get rid of the filibuster for Supreme Court appointments because that would allow a non-majority party in Congress to stonewall changes to things like that so that would be the first thing to do and then you could change the lifetime appointments or the size of the court. And those are the two substantive ways that we could mess with the composition without somebody dying or stepping down. So yeah, I mean there are options. There are definitely options, but we got to vote first. 

Sarah: Oh boy. Yeah, we all have to vote, and this is maybe not the most reassuring message, but I'll really take what I can get, and take, maybe not comfort necessarily, but derive energy from the idea that we are cooking with a casserole recipe that was designed to be revised by the people and we are the people.

Mackenzie: Absolutely. And I still kind of like that recipe.

Sarah: Mackenzie, I'm really happy to be in the kitchen with you. Tell us what you're up to, where people can find you, and also anything that you recommend for people to feel a little bit less helpless. 

Mackenzie: Oh boy. Yeah, on all the socials sans X, @mkzjoybrennan. I also have a sub stack where I talk true crime media ethics, but that is on a summer break right now because of the election and trying to focus on election prep, both in Arizona and federally. And I don't know, just don't lose hope and hold each other close so that we don't all fall apart.

Sarah: Thank you for listening to our episode today. Thank you so much to Mackenzie Joy Brennan for being our wonderful guest. You can find Mackenzie online at www.mkzjoybrennan.com. Thank you so much to Miranda Zickler for editing help. Thank you as always to Carolyn Kendrick for editing. We've got bonus episodes for you on Apple Plus and Patreon.

We love you. We're happy you listen. We're happy you're here. And we're going to see you in two weeks.