 Welcome, Aloha. Thanks so much for joining us, Nick Takahoye, rule of law in the new abnormal, whatever that may be. And today we're going to look at, you know, who's asking the questions and who's most impacted by whose rights are most affected by the stuff that's been coming out for the last year from dobs to affirmative action to website design for LGBTQ and same sex marriages and lots of issues and decisions. We have with us Professor Vanalia Randall, one of the leading scholars, Professor Emerita of the University of Dayton School of Law, and probably the most comprehensive website out there, racism.org, on race and its role and impact in all sectors of society. Ben Davis, former chair of the ABA section of dispute resolution, Professor Emeritus from the University of Toledo School of Law and Adjunct Professor now at Washington and Lee School of Law. And David Larson is about to become second immediate chair of the ABA section of dispute resolution and one of the originators of online access to justice in the New York court system and Professor at Mitchell Hamlin School of Law in St. Paul, Minnesota. Professor Randall, Professor Davis, Professor Larson. Where are we? What is going on with all these decisions and who's getting hit the hardest? Professor Randall, from your perspective? Well, I mean, what's going on with all these decisions is an attempt to turn back the cultural clock in the United States to 70 years ago. It passed the 40s. And because the law is the arbitrator of what happens in our culture, you know, I've always said, if you really want to change something, make a law about it, and the law will force change on people who didn't before didn't care or who are opposed. And so all these laws are going to do are these are all these Supreme Court decisions are these and and decisions in state legislatures is designed to do that LBGTBQ. I got the letters wrong. People of color, black people in particular anti black racism and women. And so the laws are designed to control them and people who are their advocates. I don't see a who's worse off because I there's no hierarchy of oppression. When you're oppressed, you feel it whether other people think you're being oppressed or not. And I think part of what's going on is why people are beginning to feel oppressed for the first time. And the backlash is to to a group of people who've never been oppressed. Equality feels like oppression efforts to make things equal feels like oppression. So I think that's kind of what's going on for my And that's a great insight because we're moving toward a country and a society in which whites will no longer be the majority in 25 30 years or so. Is this backlash stuff? David, what do you see us going on? So much to talk about. So I've got a Supreme Court. And I think that when we think about a Supreme Court, we want to believe that that body is principled. And I think their legitimacy depends upon being principled. Because if they're perceived as a political arm of whatever parties in power, then why do we even have a court? I mean, they're just an appendage to a political position. So the idea is we want to have a principled body that can kind of be a check on the other two branches. But to some degree, that's just a fallacy because judges have an opportunity to decide a perspective, a position, an approach. And we're now at a position where at a point in time, where the Supreme Court is decided, we're going to embrace this doctrine of originalism. And the fallacy is that in the guise of being principled, you can select a jurisprudential approach that gives you the result that you want. So you're saying, I'm not going to be political. I'm going to be principled. And I'm following this principle of originalism, which basically is that we're going to interpret the Constitution the way that we think it was intended to be interpreted when it was written, which creates all kinds of controversy right there. Like, what are you thinking? How can a document that old be applicable centuries later? How is that even a workable approach? There are alternatives. There's an approach called textualism that says, yeah, we're going to look at the words, but we're going to look at the words and their meaning not necessarily in the context limited to the intent of the framers. But we're going to look at the words as they're understood now and apply the words that however, how everybody understands them. You can kind of go beyond that and say, well, the Constitution is a living document. And it's got to evolve over time. We get things like chat GPT. We get things that framers never imagined happening. And if we want the country to continue in the document to continue to force, it's got to be a living document. So I think we're at a time where we have jurisprudential approaches that are available theories. One has been embraced. It's being embraced because it justifies the results that this court would like to see. And I think it's really unfortunate because it's driving us backwards in time. And to me, that's really disturbing. Ben, I'm sure you have some thoughts on this. My comment is more about revealing the blind spots that we see in the decisions of the Supreme Court in this battle between the majority, the super majority and the dissent in that space and actually all the way down through the judicial system. I've talked a while back since the Dobs decision about the fact that Justice Alito was doing a whole analysis, going back to the 13th century. Yet in his eloquent analysis, he didn't mention the 250 years of enslaved Black women, and they're trying to have body control over themselves in the United States. Or that women didn't have the right to vote until 1920 and arguably until 1965 with the voting rights act. None of that is in there. I said, well, that's a pretty serious blind spot. In terms of if you're going to do traditionalism and all that, yeah, do it all. Put it all in there. But you didn't. When I look at this, there's this case about water rights of Navajo. There's a tree, and the tree says the US is supposed to take care of water for the Navajo, and they say, yeah, yeah, the US is supposed to, but that doesn't mean you get any rights to any particular water. I'm like, what? Well, slow down here, fella. We've seen white men speak with forked tongue. We've been seeing that for 400 years, and that sure sounded like that. If you are Navajo and you wanted some part of that Colorado River water, one more time. I saw an analogy with this creation of a new doctrine called major questions that you have to have really clear instructions from Congress if it's a quote unquote major question that the executive branch is supposed to deal with. And Justice Barrett compared it to, let's see, what was it? You give your credit card to the babysitter and tell her to go to the store, and she spends $1,000 as opposed to spend $100. That's not something reasonable for them to do. And I'm like, excuse me, Justice Barrett, we're not talking about an employment situation. We're talking about separation of powers in the executive and the legislator that do this year. It's got nothing to do with these employment kind of visions that you're trying to put on as analogies in that space. When you look at this case with regards to the student loans, on the student loans, what is that about? You got people who got student loans, government's trying to help them out. Lord knows all these people, including ones in Congress, got those PPP and PPE and all those loans during the COVID crisis and got them to start. And now these students come along and it's like, no, no, no, no, no, no, waiver doesn't mean as much as cancellation and all this kind of game play. I said, come on, man. I mean, come on, man. And then, of course, you've got the affirmative action stuff that's going on there where I'm looking at that and said, okay, students can put in their essay, everything about what they want. But the admission people can't take in the count rates. I mean, it's like, come on, man, what are you talking about? I mean, let's get real here, really? You come down to a point where you're just saying, excuse me, the only thing to be said at this point is scorn. Scorn for all of this. Scorn for this guy down in Texas, I guess we just did this temporary restraining order on the government, the executive can't talk to the social media company. When you know every administration been going on back to, and certainly the Trump administration was on the phone all the time with Twitter and all that, you know? And I said, no, no, but this administration can't. That's scorn for this stuff. I mean, it's not, let alone, let's talk about the conflict of interest money gain of, you know, your favorite local billionaire. I mean, how about if all of us just do a go fund me for each of the members of the Supreme Court so we can be part of the game? You know what I mean? I mean, it's like scorn for all of this is the only word and that's a word I'm pulling up from Frederick Douglass' July 4th speech in 1852. At some point you just got to have scorn about it. So that's, you know, and then with scorn, you act on it. Then don't we have to admit though that their behavior is not inconsistent with Supreme Courts in the past? Oh, and I have plenty of scorn for that too. Okay. No, yeah, but I think that, I guess I don't, I just don't want people listening to them to somehow, I don't believe that their behavior is inconsistent. I think Supreme Courts in the past have looked at the law through the lens that gives the results that they want and the results that they want is based on their values. And they're, you know, we don't like to call it political, but it's their values, their underlying values. And otherwise we wouldn't have had a Supreme Court that would have interned Japanese Americans, you know, we wouldn't have had a Supreme Court who found that it was okay to clear that Chinese weren't white. I mean, we're not allowed to immigrate. I mean, and then all of the decisions of the Supreme Court related to Black people, we wouldn't have had that. In Brown versus Board of Education, the Supreme Court looked at this issue for whatever reason, and I think it was political. And Black men coming back from war and the unrest in the society in a decision that something had to be done. But then they said with all deliberate speed, which was kind of like take your time, do it when you get ready in Brown versus Board of Education. So Brown versus Board of Education came down what in 54? My school, my schools in Texas had not desegregated in 66. And so in the Supreme Court, that has consistently done that. I don't know. I think that what they're doing now is, I don't want to say more dangerous. I think what they're doing now is laying the framework for the society to be oppressive to certain groups. And that's by law. And that framework will last at least 50 years. And that's assuming that the Democrats get off their butts and develop a network of progressive lawyers that they can gradually retake the Supreme Court. Then again, all of the Democratic states and the Democratic president could do like, who was it, Johnson, who when the Supreme Court made a right decision about the lands of Native Americans in Georgia, saying that that land was treaty land belonging to Native Americans if you couldn't force them out. Johnson, I think it was Johnson said, yeah, well, make me. And the Supreme Court only has the power we give it. And I think that's the point you made. But for many of us, we've always believed that the Supreme Court decision can be very, I can't think of the word where they, you know, they do these things that really oppress groups of people. And when society is when the people in power get upset about what they're doing, they change their mind. And then they find a legal theory that supports their change of mind. I mean, that's, I mean, so yeah, well, that's kind of what I was suggesting that the Supreme Court can pick a jurisprudential approach that gets them to where they want to go. You know, one thing that that's happening now that to kind of pick up what Professor Randall was suggesting that may have lasting impact is that one thing this court is doing is that it's looking at fundamental rights and it's choosing which are which are better, which are stronger. Instead of making an attempt to balance, it's looking at religion and saying religion is more important than equal protection. I'm thinking about the web designer case that they're right up against each other. And they decide one wins and one loses straight out. And it's at its prioritizing fundamental rights in ways that court hasn't always. And I think it's really dangerous. And to me, that's very unsettling. And you look at the facts of that case, and there's so many things to criticize about it. We discovered that there was never really a party, a party that was supposed to be never never made this request. Somebody that's been married for a while, had a family. It was that the case was a fraud, basically. You look at someone who's a web designer, which seems to me to be a business. It's a business. That's how you make your living. And yet now it's being categorized as as an artist. And it's a it's a freedom of expression thing. It's really it's a it's a business that's selling a service. And if you can describe yourself as an artist, I guess you can take yourself out of that economic world and get the protection of the First Amendment under free expression. And if this fits under it, God knows what else fits under it. And if you can do if you can, if you can use your religion and free expression against LGBTQ, you can use it against women, you can use it against blacks, you can use it against Native Americans. There is no I find it difficult to figure out what kind of analysis, although I'm sure they could find it if they want to. Well, just by saying you can discriminate against LGBTQ people because of your religion beliefs, but you can't discriminate against black people because you're religious beliefs. And the fact is, is that religion was at the basis of many of the people who discriminated against people of color. And so I, I, you know, it's hard. The groundwork in that case is to say, yes, I think you're right. Professor Larson, the groundwork there, they're laying is a groundwork of being able to justify religion as a priority right, so that I your equal protection rights don't aren't as powerful as my religious right. Right. Well, yeah, and I would go along with that in this sense that, you know, there is Supreme Court Decisional Law that says basically, you can't question the religious beliefs of somebody. I mean, as a as a legal matter, they are whatever they are. You may, you know, believe in tree, whatever, religiously, but that, you know, there's no questioning of the religious belief. So, you know, what I see is that this, all this stuff gets, gets, gets, gets flipped the other way, which is of course that somebody, well, first of all, we just take Christians, right? You just saw the Southern Baptist Convention go through all this thing about being able to ordain women or not, right? And excommunicating churches that had women pastors, right? With some literalist vision of certain parts of the of the Bible, right? Well, there's a schism in the Southern Baptist Church about that, you know, cross Christianity between the Episcopalians, Unitarians and all that stuff. Then you got the Muslims, you got the Satanists, you got the Catholics, and there's a lot of space in that religion. And within each one of those, guess what? You got liberal ones, so progressive ones, I mean, like the abolitionist religious types back in the day, right? And you have these, hey, you know, status quotas, right? So once they go down this religious path, and they're not, they're going to have this blowback from people who are asserting their religious right to be able to do everything that they want to do. And so that's my free, my first amendment, right, too. And that's where the rubber's going to hit the road, because they'll have to, you know, temporize between the two. If, you know, every, every, I just like to say that every little game that is getting played, because it's the nature of the law, it can be flipped. It's the power in the background as to which one of those things is going to be chosen as the rule, as David was saying. But, you know, you can fight all these battles in different places. You can fight them at the federal level. You can fight them at the state level, depending on which separation of powers thing is going on. You can fight it in your private life and business and all that stuff. There's all these different places where you can fight it if you want to, if you think that, you know, we're not going to go back. And that's what is we have to engage with. My personal feeling is that this is kind of like a shell game in a certain sense, if you have at least a little sense of what international human rights said, right? Because international human rights kind of is like on the state as it is. And there are certain things like we don't want to talk about systemic racism. Well, yeah, but there's a huge UN report just came out about, guess what? Systemic racism in 20 countries. You know, I mean, it's like you may not want to talk about inside of the United States, but the rest of the world knows about this stuff. And you know, you want to be ignorant, you can be ignorant. But I don't have to buy that nonsense. I, you know, I don't have to buy it. I think we could end up living in something that was, I mean, the United States has made a good, has historically refused to adopt human, the human rights treaties in any way except that's consistent with our Constitution. That's a clause they put in the human rights treaties that whatever's in the treaty is limited to what, how we interpret our Constitution. Our problem is that, I mean, in terms, the rest of the world is kind of like, it doesn't matter what goes on in the rest of the world if the rest of the world has no power to force a change on the United States. And they don't have a power, they don't have that power because the United States is an empire with military bases all over the world and spending 10 times the amount of money all the other top countries combined for military. So it doesn't matter, you know, the, you know, the United, the rest of the world can do what they want the United States and it's not going to be impacted by it, which means that we who are fighting in the United States against this oppression can't turn to the world to do anything. So in our last few minutes here, yeah, go ahead, David. Well, it's kind of something I've been kind of consistent with on his programs is we still, we do need, we do need to vote. We need to get people in the office. I mean, you know, if you're struggling against the, you know, against the court that's determined to come to a certain result from the outside, it's just going to be a difficult struggle. I don't know if you're going to win it. You got to get different people on the bench. So we have to, we have to get people out to vote. We got to get, get fair-minded people into office. One thing I did want to talk about today, just briefly make the observation. You know, we had the affirmative action case to which we've alluded a little bit today. And, you know, we've talked about affirmative action and how much of that still remains in terms of legacy admissions and colleges. There's all kinds of affirmative action going on, but I don't think we think about it broadly enough. Now, let's think about it a little bit this week. And, you know, what would you call action that helps somebody achieve one of the highest positions in the country, the proactive, aggressive action that would do that? And think about Neil Gorsuch and think about Merrick Garland and think about an administration that put off a nomination for an entire year so that Neil Gorsuch is going to get on Supreme Court. If that's not affirmative action, you know, proactive, proactive strategy, I don't know what is affirmative action. So, you know, when we think about affirmative action and how many people benefit from it, I don't think we think we've been thinking about it broadly enough. And to single out this one type and say that's prohibited, but everything else is fine seems ridiculous. So that's part of turning back to a society where racial discrimination, intentional even racial discrimination, it will be acceptable. It's not about doing anything about affirmative action. It's about doing something about race. And is there a distinction, I mean, political discrimination and racial discrimination in this country have gone hand in hand, hand in glove for centuries. So in our last minute, what are your takeaways? What are the choices we're looking at and the most important choices out there? David, you've identified voting. Ben, Professor Randall. You know, I don't believe that voting does much good as long as we only have two parties who just ping on the ball between them. I think that we have to find a way to destroy the existing political system. I mean, voting in it maintains it. And I'm not suggesting people not to go and vote. I'm suggesting that if that's all you're doing, you just maintain the system. There has to be a certain effort to blow up the system. And how we do that, I don't know. But I feel strongly that about that. I don't know if it's blowing it up, but you know, opening up the possibility of having more than two political parties, I think would be a helpful step. Because right now, things are so polarized, I would love to see some other options. Ben, can you wrap this up for today? So I agree with voting. I just think that we should, you know, it's, and I'm kind of agreeing with both of you, it's like voting plus. In other words, there's voting, there's lobbying, there's giving money to candidates that you want, there's bringing cases, there's demonstrating in the street, like we are proud people did the thing in the street in Miami. There's protest, there's going over to the UN human rights meetings when they look at the US and bring up horrific things and getting points raised in the conclusions there and then bringing them back to Chicago or wherever to say the UN says this is a problem, the raise, the profile of the local advocates, I've seen that happen and it had an effect too. There's, you know, there's also, I'm going to just say making a light, you know what I mean? Living a family, raising a family, taking care of the kids, being involved with what they're doing and trying to educate them about the nonsense that's being thrown at them. There's challenging the books that they're being given to read and complaining to the school and being involved with that. Obviously, you know, there's social efforts and all that. There's a wide range of things that you can do if you don't want to go back. Okay, but so. I just challenge you to say we've been doing that for the last 50 years. All of that stuff that you said, large numbers of people have been doing and that has not been effective. That's just out of the system. All the stuff you name is it's just part of the existing system. Well, I would say that if I take the longer view, which is to go back to my enslaved ancestors and look at it in that view, it's saying that all the things that people did worked towards getting them to be free. And then they had to go with segregation and then fight against segregation. And then you had unionization and these all these fights that you fight, that yeah, they're always going to be these retrograde elements in this country because people can make him money off and making, there's a great line that America's a business. And so a couple of people making money want to keep their money. Understand that, but the point is, is you're going to shape the kind of capitalism that this country has so that people can't be property that you shape capitalism so that people can have unionized and have unionized rights to counter manager. You can shape capitalism so you don't have a corrupt Supreme Court that we've seen that we got down and that people at the highest levels get prosecuted. I mean, it's going to be capitalism. I recognize how it is in us, but I'm just trying to say that through these kind of efforts, you can shape the capitalism so that whatever that market is, it's the same market on climate change on whatever you can shape that market. Not alone, obviously, but. So then David, Professor Randall, thanks so much for all your insights and perspectives. We're out of time for today. Think Tech Hawaii, come back and join us. We'll be back in a couple of weeks. And if there's a takeaway, maybe we need to fight for much better choices, because if we don't, they will continue to shrink any road. Thank you all. Aloha. Take care. Thank you so much for watching Think Tech Hawaii. If you like what we do, please click the like and subscribe button on YouTube. You can also follow us on Facebook, Instagram, and LinkedIn. Check out our website, thinktechawaii.com. Mahalo.