 All right, life in the law here on ThinkDeck. I'm Jay Fiedel. It's nine o'clock in the morning on a given Tuesday. And we have Avi Soyfer from the William S. Richardson School of Law, who's a constitutional lawyer, very important person these days. And if you want to get it from the 50,000 foot level, you've got to be a constitutional lawyer. As a matter of fact, let me add one more point is that it seems to me that constitutional lawyers were never as important as they are now. Agree, Avi? I think that's probably right, although they were pretty important at various moments in our history. 50,000 is where entrepreneurs go, right? Isn't that the beginning of space? How about 30,000 feet, Jay? OK, well, how about Samuel Alito? Let's talk about Samuel Alito and space. I cannot decide whether he's at the level of Mars or Saturn. But he's definitely in space. We had reconstruction in this country, and we never actually accepted it. It was the strangest thing that the country has been fighting the Civil War and reconstruction ever since. And the Supreme Court hasn't really followed the action. We're we, Avi. Do you think on January 6, they barred the door? And should they have barred the door? On January 6, who have barred what door? I don't follow that. I want to say something about reconstruction, though, which is the court itself is implicated in a heavy way in not accepting what the Reconstruction Congress did in terms of protections for the newly freed slaves and actually for all people. And they did that through a statute right away, 1866, overrode Andrew Johnson's veto, first time Congress ever did that on major legislation, and then the 14th Amendment. 15th Amendment followed a few years later and didn't bother the court. They were ready to go back to states' rights into what they considered normalcy very quickly. And people accept it as they often accept whatever the court says. So the court itself is complicit in the problem that we've had ever since in law and in life. Notice you use the present tense there, is complicit. And they're still in the same place. You know, is this a political problem, an ideological problem that the Supreme Court is in space, these have either rest of the country and the quality historical track of the country is in one place and the Supreme Court is in another place on critical things, on critical issues that have existed throughout our history that the Supreme Court is essentially irrelevant to those issues. What is going on? Why is that? Is that a flaw in the constitution in the notion of the court, in the appointments made to the court? Here we are where we really wonder if they are relevant. Well, I'm afraid they're more than relevant. They are part of the problem. And there's that old selection from our time if you're not part of the solution, you're part of the problem, they really are part of the problem. On the other hand, I'm not sure on the second part of your point that we should muck around too much with the Supreme Court as it exists and with judicial review, you can, we've got this commissioner task force that's looking at whether there should be term limits, whether the numbers should change and it'll be interesting to see what they come up with. But for now, I think we have to view very critically what the Supreme Court has been doing and they have a lot to do with a lot of our problems. And nobody was talking about gun rights and getting anywhere until the Supreme Court came along and in a very dubious reading of history and even more dubious reading of the text of the Second Amendment suddenly in 2008, we have gun rights because the court said so. Citizens United is a huge part of our problem and our voting rights cases, Shelby County, which is written by Chief Justice Roberts really eviscerates the Voting Rights Act of 1965. What happened in Arizona is further development of that pulverizing that the court did. And it's just not true to why people fought, died and certainly marched to get the Voting Rights Act passed and to get blacks and other minorities to vote. So the court has been playing a major role. They're playing a major role in police brutality with qualified immunity, which they've been expanding and expanding. And so you can't really sue policemen for violating civil rights or other officials. So the court itself really has played a role and I don't think we should ignore that. Yeah, I was gonna ask you whether you're thinking of giving up constitutional law, but I think I have my answer. No, it's important for people to recognize rather than just to revere the court. I think it's important to respect the court. And I think it's politically really a difficult thing to change the court as FDR found out and Teddy Roosevelt and other very good politicians, American people accept the court and Bush versus Gore is our best recent example. I don't know how recent we now think it is, but it was an outrageous thing the court did both in practical terms and procedural terms and then in its decision. And some of us teaching constitutional law way back then in the election of 1980, that how do you continue to teach constitutional law with a straight face after they've done this? Well, right away, the American public accepted it. Of course, Al Gore also accepted it, but in terms of constitutional theory and in terms of constitutional past development, that was an off the wall decision by the court and nobody seemed to blink because it was the Supreme Court of the United States. I can only speak to our generation, but I think in the course of my own personal awareness of these things, you know, which is the truth is that many lawyers, most lawyers do not necessarily follow with the Supreme Court does. They're busy watching the shoelaces in terms of the daily grind and the practice of law, most of them. And now it seems to me that over our lifetimes, the Supreme Court has done more to distance itself from the main track of the country than I would ever have imagined. As I came into it, as most lawyers did with this notion of the Supreme Court, must know something we don't know. They have a connection that we don't have. And so they must be right. You know, this is what you were talking about. But now it seems to reveal itself to say, yeah, they could be wrong. And furthermore, there's a book to this effect back in the early 2000s, a tipping point. You know, you reach a certain point where the people, including the legal sector of the country, begins to wonder why these guys are not following the public. Are they reading the newspaper? No. Do they understand where the country is going? Do they understand the diversity of the country and what people out there want? I mean, there's a million polls reported. There's all kinds of stuff on television and all the op-ed pieces. I wonder if they're looking at that or they're marching to a drummer that they hear from 1783 in front of Liberty Hall. Are they still locked in Ben Franklin and Liberty Hall? Or are they watching what's going on in the country? Well, I wish they were locked into what the Constitutional Convention was about. They pay no attention to that really, but just a little bit of historical digression. The reason for the Constitutional Convention was that the states were fighting among themselves. And so the government country was falling apart. So this was strong national government. That's why they got together. And that's what the original intent was. But we've got states' rights with no textual basis really. And states' rights was not what they were talking about after the Civil War either because the states had said, states' rights, we're gonna secede. It's not what Congress believed they were doing or the people who ratified the 13th, 14th, and 15th amendments. So the court is really doing it on its own. And it does it on its own in a not very well hidden way, which I guess is consistent with what you're saying. Not the first time that that's happened. So what you're describing is pretty much what happened in the early days of the New Deal. And the court was striking down all sorts of laws passed by FDR and Congress. And they were doing it sort of because they thought it was socialism. And then came 1937 and what's called a switch in time that saved nine by the first Justice Roberts. And actually historians have kind of shown that it's not as simple as all that, but then Roosevelt got to a point basically a new court with deaths and retirements. And so then they started upholding the New Deal. And that was much more in keeping with what the American people had shown they wanted particularly with the overwhelming landslide victory of FDR and the FDR supporters in 1936. So a lot has to do with who the justices are. And I think the public sort of knows that but doesn't fully know that. And your point about the current court is it's a very conservative court and it is not representative. I'm not sure it should be represented. I mean, that's another argument when they decide in favor of freedom of expression or freedom of the press, a lot of the public is gonna say, no, no, no, we don't want that. We passed legislation to restrict the press or expression. We don't like those wise guys. Those people with long hair from our era and neither of us is doing long hair anymore, Jay. Or will we? Exactly. So, okay. So here we have the Brownovich case. It's very interesting. He was a Trump or an attorney general of Arizona as I recall. And he's the one who initiated the suit on behalf of Arizona against the Democratic National Committee to, I guess, the argument is about voter suppression legislation that was passed in Arizona. And the court said, that's okay. But one thing, and I must say that I have not read the decision in detail that they realized were they thinking, talking about the fact that there's similar legislation in like 50 states around the country. And when they opine and what happened in Arizona, they're really opining on voter suppression everywhere. Did they get to that? Well, so I think it can be read in several different ways and people have already been commenting about that. I think they were aware of it and Justice Kagan wrote a terrific dissent. She's dissented often, but this really is maybe her best dissent ever. And she talks about how the greatest thing about America is the vote, but also what our history tells us, suppression of the vote is also sort of a constant. And so it's on and on. And that's why the Voting Rights Act of 1965 was so important. And the court, when it reviewed it in the early days of, I guess one could say the liberal court, the Warren court, and not the early days, but the late 60s, even into the 70s, they embraced it. They said, this is what Congress did and Congress needed to do it because there had been, as even Alito says in the Arizona case, there had been heavy suppression of African-American votes is how he puts it for nearly a century. So they did something about it and it was close call, but the Voting Rights Act got passed. Now the court has been saying, you've gone too far. And again, Shelby County is very lame in terms of how they get there. And it's about states rights, says the Chief Justice. So used to be that the Department of Justice had to review changes in the vote, in the voting process. And if they hadn't struck it down, there is this interesting question of what would the Department of Justice have done under Trump with all the changes that had already happened. But that's no longer there. There's no longer pre-clearance. So states can do whatever they want and then you have to litigate if you think they've gone too far. So what Alito does is undermine pretty significantly another piece of the Voting Rights Act but doesn't declare it unconstitutional. And one could say it was a fairly narrow restriction on the vote in Arizona. You have to vote in your own precinct. Well, in some places that's very complicated and some places very easy, but it kind of makes some sense. And the other thing was about bundling. Can someone deliver the ballots of someone else? Which has particular salience in Arizona because there are a lot of Native Americans and they don't have post office addresses and they're very far from mailboxes. And so it made sense as it does for assisted living to say, well, someone can deliver those ballots. There is the opportunity for corruption, of course, if you have someone who can come in with a pack of ballots. But I would think you could correct that down the road rather than say, oh no, Voting Rights Act can't touch that. So even the Biden administration actually did not join in attacking the Arizona laws. They could have and they didn't because they're pretty mild. But to your point, Alito says, it's a remarkable starting point. He says, well, when you vote, there's a burden on you. There are burdens to voting. Okay, it's kind of sensible in some narrow, narrow way. But then he says, and therefore more burdens are okay. Well, that's where I think the court really goes way off the road and it doesn't make any sense. And it wide open for the court down the road to say, well, that's not such a bad burden and that's not such a bad burden. And so they open the door for lots of upholding of these restrictions that are passing all around the country, which is not to say that all of them will be upheld. There is still the possibility that if it has an impact that you can prove pretty definitively on minorities, you still might be able to win. That's left open by Shelby County and by the Arizona case. They recognize that the question of legislative intent, but in a larger sense, because to use the word, to use the word that comes to mind, this is kind of a conspiracy of Republicans around the country. They're working together. It's not an accident. It's not mystical, magical coincidence that all these 50 states have Republican suppression bills pending or passed or signed. This is a matter of people talking to each other across state lines and establishing the same kinds of suppression bills. Did the court recognize that this was sort of a national movement and it had a specific intention namely to change the vote for what Republicans wanted, namely to win in 2022 and 2024. Did the court recognize the political implications? Well, first I have to quibble a little, Jay, not Hawaii. We are not suppressing the vote. And in fact, we have expanded it. So people talk about all these legislatures changing the vote. Well, we have too. So it's not 50 states. We are certainly the outlandish outsiders who don't fit the pattern. Quibble, quibble, quibble. So we're outliers, but we're not liars. So the court, I think knows that those cases are coming. And I wanna go back to Shelby County with perhaps more detail than is of interest, but I think it really is illuminating. So what Roberts and the majority said in Shelby County, this is 2013, it's out of Alabama. They say, well, the Voting Rights Act was really important at the time. Yeah, and they concede that. As Alito concedes, there's been suppression for a long time. But then they go on to say, but it's no longer needed. Everything's okay now. And that apparently is a new constitutional theory that statutes have to keep up with the times or else they're unconstitutional. The second, and he actually paraphrases the 10th Amendment in two ways that are just wrong. And I've written something that says, is this sloppiness by the law clerks? I don't think so. I think he is actually setting a trap or planting a landmine there and using the 10th Amendment in ways that the text does not support. So the so-called textualists, and he's not a big textualist, but those who join him are, they're willing to abuse the text even of one of the amendments. The second prong of his argument is based on a bizarre case out of Oklahoma, when Oklahoma was desperate to become a state, they were territory. And they made an irrevocable promise with Congress that they would not move the state capital until a certain year. They become a state and they move the state capital. And that goes to the Supreme Court. And the Supreme Court says, oh, now you're a state. We can't treat you differently from any other state. So you broke the promise. Okay, that's all right. States rights. So that's his other major prong. That's the other major support for this outrageous opinion. And of course, he was wrong about it not being needed as we have seen back to your point. And since when does either states rights in some bizarre way misquoting or misparaphrasing the 10th Amendment? Or we're not keeping up with the times, therefore unconstitutional. Those are the two bases that shall be counted. Well, it sounds like this, what they did overrides common notions of constitutional law and call it constitutional precedent, although that's elusive sometimes. But is it you mentioned before that there's an ideological thing here? I wonder if you could also look at it as a political thing. How has the Supreme, Abbey has the Supreme Court been politicized? Six to three. Well, I don't think it was unpoliticized at various other times. So I guess the famous saying by someone who was writing as if it was an Irish dialect, the Supreme Court follows the election returns, I'm not gonna try the Irish dialect. Well, they do to some extent and to some extent they should. So they are paying attention. The end of the story about the court packing scheme that FDR lost and lost badly, lost a lot of his allies and friends is that he got to replace justices, as I said before. Well, that was a very politicized court that he went after with the court packing scheme and the court then paid attention to what the new deal was doing and to what the country seemed to want. So they're politicized in various ways and I don't think we should ignore that. It is unusual for a Supreme Court to be changed so much so quickly as Trump got to do. So that is a problem, but we shouldn't forget this is the legal historian in me, that's so did FDR. Well, going forward, people say we'll take generations to put the court back in the same balance it was before. And that's troubling because things move so quickly now. And if you take the same sensibilities that they expressed in Bronowicz, they'll be doing damage to basic principles, basic morality of the country for a long time until they get balanced again. So you may be able to move it into political directions quickly, but moving it out of political directions because of life tenure takes a long time. Can we afford that time, Avi? Well, if we did something to the Supreme Court, and I am anxious to find out what this task force recommends, there are a number of people who've been here for our January turn at the law school on Nancy Gertner who was just here remotely for our access to justice conferences on that. There are people who are certainly open-minded and progressive on that task force. It's mostly people with lots of credentials as you would imagine, but we'll see what they do, what they recommend. And we could come out of it with term limits or something else. I don't know that the public would go for that. It remains to be seen. But I think the Supreme Court, in a way, J.A., I would say there's sort of a logical paradox in what you're saying that the Supreme Court shouldn't reflect the politics and should reflect changing times. So the resolution to that may be slowing things down. And as badly as I think the Supreme Court did particularly on the last day of the term with the Arizona case and with the case about disclosure of big donors to charities where they again talked about the burden, not say what the burden is in that case because the same information that is being sought by the California Attorney General, they have to submit to the IRS. So where's the burden? They shouldn't even have standing. But if we look at the term overall and the term before, they didn't uphold Trump arguments, right? Lots of cases about Trump went to the Supreme Court and he never won there. And of course, he wanted the election reversed at the Supreme Court and they weren't going there. So they weren't as politicized as saying, we love Trump and we'll do whatever he wants. And that includes Trump appointees. And Chief Justice Roberts, I just give you a big critique of his, which he deserves, I think Shelby County, but he is trying to keep the institutional concerns of the court together. And this last term actually had some very narrow decisions, sometimes saying they don't have standing, sometimes saying in the Philadelphia case, well, we're not gonna go all the way to free exercise to strike down an ordinance that protects same sex couples. I will find a narrow way to do it and say, well, they make some other exceptions. So there's a sort of equal protection problem. They make exceptions. They can make an exception for the Catholic social services. So they're doing lawyers law a lot of the time. Then they do things like Arizona and Arizona, the decision itself, not horrible, but as you pointed out, opens the door for lots of accepting of what these states are doing. Well, if you say that voting is the core of democracy and certainly it is, and it opens the door to, we talked about politics and maybe we should spend a moment defining what that is because politics under Donald Trump was different in politics as I used to understand politics. And if this opens the door to a new kind of political world in the country because voting is so dramatically affected and the country is changed. And if those voter suppression bills get through and have an effect in 2022, 2024 and who knows for how long after the country is changed. And so my question is, what's gonna happen going forward? You mentioned before that in opening the door it's going to encourage these states, everybody but Hawaii and all these states to do more voter suppression. And we call it a conspiracy or just a gentleman's agreement around the country by the GOP, we are going to have serious voter suppression and that's racist by the way, may I say the R word that's racist all the way down. This is going to create a problem not only for the continuation of respect for the government but for the continuation of respect for the rule of law and the rule of security of personal security and public safety going forward. You say people may accept it. Well, I know a lot of people that won't accept it and won't accept voter suppression. And when we get to an expression of that in 2022 or before we're gonna see violence here. So the question is, where do we go from here? I think this strikes at the heart of our democracy. Do you? Yes, I think it does. And I think Kagan's dissent puts it very well and I commend it to everybody. It really is worth reading. It's Kagan, I think the best ever. But I also am more of an optimist maybe than you RJ. I think this is gonna provoke people to come out and vote. They're not gonna be suppressed. And this of course is not as awful as that heavy suppression that Alito talked about against blacks for a hundred years where people literally could be killed if they tried to vote and where the numbers were astonishingly low or nonexistent of those who made it through the gauntlet. So the Georgia Senate races are one encouraging sign because they were certainly trying to suppress the vote in Georgia. We know that Trump made a phone call and tried to get more suppression and tried to get some votes changed and it didn't work. So that's one basis for optimism but also people turned out and stood in line. And of course there is racism in where the voting boxes are, where the precincts are. There's a lot of racism. Absolutely right. But people may react by saying, you're not gonna stop me. So I think one can be optimistic that there will be a reaction to the voter suppression statutes. Well, I hope so. From your lips to God's ears, I always say that. But all you have to do is say something. I wanna know whether God has one or two ears, Jay. That's another show. The expression goes both ways. I've heard it both ways. So let me ask you one other thing. You say people are gonna react and maybe they'll try harder to vote. Meet their obligations as voters and all that around the country. And maybe they'll be sort of an agreement among Democrats, if you will, around the country. We're gonna meet this challenge by voting really, really hard. But what about the constitutional lawyers? What about the press? I imagine there've been quite a few pieces, op-ed pieces written about the Bromovich case and that will continue. It's sort of like Citizens United, although all the press around Citizens United didn't have any effect whatsoever on the drastic effect that case has had on American life. But clearly, are we gonna see an uprising among the constitutional lawyers, among the journalists, among the op-ed pieces to criticize this court and to say, no, they don't walk on water and they can be dead wrong. And we have to watch what they say because now it's clear that they are marching to a different tune and we cannot simply accept them as why, as expressing wisdom and undermine essentially the very institution that you mentioned that Roberts was trying to protect. Have they entered into a new phase? Are we as the people who watch them and maybe criticize them, are we in a new phase in dealing with them? Well, you're suggesting that people would start reading the op-eds that we write, which are now called guest essays by the New York Times, no more op-ed or that they read law review articles which I know doesn't happen. Nobody, it's not just the public. Nobody reads law review articles. But there is serious and I think very telling criticism of the court, but it hasn't trickled down or up or wherever things are supposed to trickle economically and intellectually. So it's important to do shows like this, I think, and have people realize that it isn't set in stone, that they're abusing the text rather than following the text. And that the text is only the beginning of the discussion. We have a sort of psychological need to have the rules written in the text, but the constitution doesn't. Doesn't work that way. It doesn't answer the tricky questions. And that's why we need judges and we need good judges. And at the moment, we don't have such great justices. I will certainly agree with that as a majority of the court. So the last question I wanna ask you is let's assume for a moment that these personal essays and the law review articles and journalism in general and the public in general, pick up pitchforks about the Supreme Court and say, no, those guys are really wrong, wrong, wrong. And they have really broken the trust with us. They've broken the trust that's that serious as an institution. So before we could look at Congress and say they were dysfunctional. And during the Trump era, the Trump administration, we could look at the executive and say completely, completely dysfunctional. Now we can raise the same question on the Supreme Court. Are they functional? And my question is this, if all the op-ed pieces and all the law review articles and all the journalism and people in the streets, if the people ever go in the streets about the Supreme Court decision are criticizing them, does that affect one whit about what they do going forward? Do they care? I think they do care. I also think that they probably want to make sure that it's not just reflecting what the public seems to want and what the public seems to want is very dangerously hard to define, right? And the vote, back to the point you've been making, the vote is the crucial way. And if you start making it harder and harder for people to vote, you don't know what the people want. Of course, we also have the problem of people not turning out, including in Hawaii. And there are nations that have mandatory votes. It's not such a bad idea that you really have to vote. Then we have this, what just went on in New York with a mayoralty with the preference voting rather than just first pass the post as they call it. I think that's a good idea actually. And there were very few places that have done it in the past, but it kind of works. It works to make your second vote count too. So you have someone you vote for maybe because that's the lesser of two evils, but then there's someone you really want and you can do first and second and the second might count. So we're looking at things that may actually enhance the wishes of the public. But I think it's really important to get across the importance of the vote and the importance of trying to make sure that the voter suppression doesn't work. And there are a number of ways to do that, but most of all, getting out the vote. Hope so. I can't resist asking you one more question. Everybody. I can't ask one. No, go ahead. Go ahead. Everybody always says a constitution is a living, breathing, evolving document. Although there are some people at the Supreme Court obviously don't feel that way, but, you know, it's, that's the saving grace about it. That it can change with the times. But there's one provision in the constitution that can't be changed. And it's the provision that makes the Senate so powerful. It's the provision that calls for two senators from every state. And it says specifically in the constitution, this can't be changed. Isn't that a fatal flaw on all of this? Well, so it's a very learned point you make. There are a few things in the constitution where they say this can't be changed, very few. And that's one of them. But we don't know the answer to whether a constitutional amendment could change what they said couldn't be changed. The other one that's most revealing is they could not change the slave trade until 1808, not slavery, the slave trade, which was worse in the view of contemporaries. They were not allowed to change it. What does that tell you about the glory of the constitution? And I think once you see that, you might, pardon me, see it should have been the last question. Sorry about my phone. They, however, except for those provisions, had a very different view of the constitution than what we assume. And they thought it was an experiment. It had never been done before. And they constantly talked about change. They didn't talk about we're bound by this and they didn't act like they were bound. I mean, James Madison kept changing his mind every time it would please Thomas Jefferson. And we rely on him as the father of the constitution. There's a great book by Mary Builder called Madison's Hand where she went and looked at the watermarks and the handwriting and she can show that what we take to be Madison's notes were changed by Madison over time. So, but he often at the Constitutional Convention was in favor of strong national power. He wanted Congress to have a veto over state laws, for example. We forget that about James Madison and the Constitutional Convention. So it's not something they meant to find as binding as we now revere it to be. It is organic. I agree with that. And this participatory. In order to have the kind of change, they kind of played in that we're talking about. You have to have a participatory arrangement with the citizens of the country. And we hopefully can encourage that. Well, thank you, Avi. Avi Soyfer, the former dean of the We Miss Richardson School of Law or Constitutional Lawyer and teacher and judge and progenitor, if you like. I mean, he's gonna tell us how things are gonna work out. Thank you so much. Thank you, Jay. Always fun to talk to you. I love that. Be well. Take care.