--:-- Sean Rameswaram: Support for Today Explained comes from Adio. Adio is an AI-native customer relationship management platform that Adio says is built for the next era of companies. A powerful data structure adapts to your business model, syncs in all your contacts in minutes, and enriches your business with actionable data. Adio says it also allows you to create those email sequences, those real-time reports, those powerful automations, which they claim can help you build what matters most, your company. You can go to adio.com slash todayexplained to get 15% off your first year. That's A-T-T-I-O dot com slash todayexplained.
--:-- Sean Rameswaram: Support for this show comes from Macy's. Layering is an art form. All it takes is a bit of intention, style, and of course, the perfect cold weather staples. So find the perfect look for you with the help of Macy's Fall Fashion Guide, your one-stop shop for fall's latest trends and must-haves, curated by their experts. From leather to denim to cozy knits, find everything you need to piece together your new fall look. Explore the Macy's Fall Guide for yourself and shop in-store or online at Macy's.com.
--:-- Sean Rameswaram: Ian Millhiser, you cover the Supreme Court for Vox. We are on day three of Judge Amy Coney Barrett's confirmation hearings. What have we learned?
--:-- Ian Millhiser: So the short answer is not much. Nominees in their Supreme Court hearings are often very evasive. But Barrett has been unusually evasive. You know, she would not commit to saying that there has to be a peaceful transfer of power.
--:-- Sean Rameswaram: At one point, I believe, Senator Klobuchar read to her a statute saying it's illegal to intimidate voters. And she wouldn't say that it's illegal to intimidate voters. Senator Klobuchar, I can't characterize the facts in a hypothetical situation and I can't apply the law to a hypothetical set of facts. I can only work very hard not to answer questions.
--:-- Ian Millhiser: That being said, this is a nominee with a pretty clear record. She is a so-called originalist, which at least in its modern form is a theory that is used to implement a very aggressive conservative jurisprudence. She is very outspoken in her opposition to Roe v. Wade. She's criticized both of the Supreme Court's past decisions, largely upholding the Affordable Care Act.
--:-- Sean Rameswaram: Well, I want to get to the originalism, but let's start with the evasive nature of these hearings. Is this really something exceptional that we haven't seen before with Kavanaugh or Gorsuch or Kagan or Sotomayor?
--:-- Ian Millhiser: I mean, I think that Barrett has been unusually evasive, but Supreme Court nomination hearings have been moving in this direction of sucking all the information out of the room for a very long time. It really goes back to the Robert Bork hearing in the 1980s.
--:-- Sean Rameswaram: [Playing a clip from a speech] And to his credit, he was very honest about his beliefs. What I do, unfortunately, I suppose, is take Supreme Court opinions that seem to me unsatisfactory as matters of constitutional reasoning and criticism.
--:-- Ian Millhiser: He was very open about the fact that he believed that it was wrong, not just for the Supreme Court to protect abortion, but to protect the right to contraception. I think the law was an utterly silly law.
--:-- Sean Rameswaram: And what I think every nominee since then has learned is that being honest is not a good way to get the job.
--:-- Ian Millhiser: Right, but we do know a bit about her from her past as a judge. And the last time we spoke to you, we talked about abortion, the Affordable Care Act and the election, which, as I understand, are still three issues that at least Democrats are trying to get some clarification from Amy Coney Barrett on. Has that worked at all thus far?
--:-- Ian Millhiser: So, I mean, there's a weird bit of kabuki theater to these nomination fights where, especially when there's a Republican nominee, the Democratic senators will try to trick the nominee into saying, I will overrule Roe v. Wade. And the nominee is never tricked into saying that they will overrule Roe v. Wade. But like we know that she's going to overrule Roe v. Wade.
--:-- Sean Rameswaram: She has signed a bunch of petitions and sign on letters where she pledged to oppose abortion. There was one where she referred to Roe v. Wade as an infamous decision.
--:-- Ian Millhiser: So there isn't a mystery here that needs to be solved. She just isn't saying it during her hearing. And what will that actually mean for people if Roe v. Wade is overturned?
--:-- Ian Millhiser: There's a question about how the Supreme Court will go after Roe. They may not actually write the words Roe v. Wade is overruled. The court may just allow laws that make it functionally impossible to get an abortion without ever saying that Roe is gone. There's also a question if Roe v. Wade is struck down, the next possible horizon for anti-abortion advocates is something called fetal personhood.
--:-- Sean Rameswaram: And fetal personhood would essentially be the opposite of Roe v. Wade. So Roe v. Wade says that the Constitution protects the right to an abortion. Fetal personhood is the idea that there is a constitutional right, I guess, of the fetus to not be aborted.
--:-- Ian Millhiser: And so if this theory were to take hold, it would mean that abortion would become illegal throughout all 50 states. We should note that in a lot of states it already pretty darn hard to get an abortion.
--:-- Sean Rameswaram: Yeah, yeah, I mean the Supreme Court while it has had five votes until probably very recently to outright overrule Roe v Wade the court has been very aggressive in allowing laws that make it hard to get an abortion to stand.
--:-- Ian Millhiser: They can force abortion providers to read an anti-abortion script. They can put certain regulations on clinics. And we're likely to see much more of this.
--:-- Sean Rameswaram: So like the last big fight over abortion rights was whether states can enact laws that make it so expensive to operate an abortion clinic that it's functionally impossible to do so.
--:-- Ian Millhiser: And so that's one way that the Supreme Court could get rid of the abortion right without overruling Roe v. Wade. They could say Roe v. Wade is nominally in place. But if a state wants to pass a law saying that all abortion clinics have to be built out of solid gold, they can do that.
--:-- Sean Rameswaram: Now, do you know how many Americans have obtained insurance through the Affordable Care Act?
--:-- Ian Millhiser: I do not. Let's talk about the Affordable Care Act for a second. I saw part of the hearing on Tuesday where Senator Leahy was cluing Amy Coney Barrett into how many people could stand to lose health care if the Affordable Care Act is struck down. It's more than 20 million.
--:-- Sean Rameswaram: And do you know how many children under the age of 26 are able to stay on their parents' insurance because of the Affordable Care Act?
--:-- Ian Millhiser: I do not. And Amy Coney Barrett seemed to not know how many people had their health care on the line.
--:-- Sean Rameswaram: Did we learn anything about her feelings on the ACA?
--:-- Ian Millhiser: Barrett hasn't been particularly forthcoming in this hearing about her views on Obamacare. But she wrote a book review in 2017 where she said that NFIB, the first decision that largely upheld the Affordable Care Act, and King V. Burwell, the second decision which preserved the Affordable Care Act after a partisan attack, rested on a – what she thought was a very stretched and difficult to defend reading of the law.
--:-- Sean Rameswaram: So she's been fairly clear that she thinks that the past court decisions allowing Obamacare to continue to thrive were wrongly decided.
--:-- Ian Millhiser: That said, there is a case in front of the Supreme Court right now which rests on an unusually weak legal argument that seeks to strike down the Affordable Care Act.
--:-- Sean Rameswaram: And in the short term, I don't know if Barrett or anyone else is going to sign on to the argument in this case because it is just so bad.
--:-- Ian Millhiser: But the fact that the court might not strike down Obamacare this time around doesn't mean that they can't take up another case and use that as a vehicle to strike the law down.
--:-- Sean Rameswaram: And the election? Yeah. Oh, man.
--:-- Ian Millhiser: So the one question that kept coming up about the election is, of course, Donald Trump hasn't committed to a peaceful transfer of power.
--:-- Sean Rameswaram: And so some senators asked, do you believe that every president should make a commitment unequivocally and resolutely to the peaceful transfer of power?
--:-- Ian Millhiser: And she wouldn't say yes. I mean, she didn't say no, but, you know, she wouldn't answer even that question.
--:-- Sean Rameswaram: Well, Senator, that seems to me to be pulling me in a little bit into this question of whether the president has said that he would not peacefully leave office.
--:-- Ian Millhiser: And so to the extent that this is a political controversy right now, as a judge, I want to stay out of it and I don't want to express a view.
--:-- Sean Rameswaram: I think there's one plausible reason she's not answering it is that Donald Trump is vindictive.
--:-- Ian Millhiser: And he, you know, he reacted in anger when Jeff Sessions, his previous attorney general, recused from the Russia investigation.
--:-- Sean Rameswaram: So he has a tendency to lash out at people.
--:-- Ian Millhiser: And so maybe Barrett didn't answer the question because she fears that if she commits to a peaceful transfer of power, Donald Trump will withdraw her nomination.
--:-- Sean Rameswaram: I don't know why she wouldn't answer the question, but I mean, the most basic question you could possibly ask about voting rights.
--:-- Ian Millhiser: You know, if the voters elect Joe Biden president, can we have him become president without a civil war?
--:-- Sean Rameswaram: She wouldn't even commit to that question.
--:-- Ian Millhiser: I saw a lot of people making a big deal of the fact that she just has a notepad with zero notes on it in front of her.
--:-- Sean Rameswaram: But I kind of wondered if that was a big deal considering she isn't really saying much.
--:-- Ian Millhiser: Well, look, she's a really smart woman. She has thought a lot about the Constitution. She's thought a lot about her originalist philosophy and, if confirmed, is likely to use her originalist theories to implement an extraordinarily conservative agenda.
--:-- Sean Rameswaram: More with Amy and Ian in a minute. Support for Today Explained comes from Built Rewards. These days, it seems like everybody has a rewards program. You swipe your card and you get one cent on the hundred dollars. But with your rent, frequently, you just pay month after month. You never get anything from it other than that roof over your head. Not anymore, says Built Rewards.
--:-- Ian Millhiser: Ian Millhiser: So, let's be honest. Are you happy with your job? Like, really happy?
--:-- Sean Rameswaram: The unfortunate fact is that a huge number of people can say yes to that Far too many of us are stuck in a job we outgrown or one we never wanted in the place But still we stick it out and we give reasons like what if the next move is even worse I've already put years into this place, and maybe the most common one, isn't everyone kind of miserable at work?
--:-- Ian Millhiser: But there's a difference between reasons for staying and excuses for not leaving. It's time to get unstuck. It's time for strawberry.me.
--:-- Sean Rameswaram: They match you with a certified career coach who helps you go from where you are to where you actually want to be.
--:-- Ian Millhiser: Your coach helps you get clear on your goals, create a plan, build your confidence, and keeps you accountable along the way.
--:-- Sean Rameswaram: So don't leave your career to chance. Take action and own your future with a professional coach in your corner.
--:-- Ian Millhiser: Go to strawberry.me slash unstuck to claim a special offer. That's strawberry.me slash unstuck.
--:-- Sean Rameswaram: Ian, you went to law school. For all the people who didn't, what is originalism?
--:-- Ian Millhiser: So the definition of originalism is that you believe that the meaning of the Constitution's words is fixed and that judges are bound by those words.
--:-- Sean Rameswaram: And if you just provide someone with the definition, it sounds obvious. I mean, of course, judges have to be bound by the words of the Constitution.
--:-- Ian Millhiser: The problem with originalism, there's several problems with originalism. One is that the Constitution is really vague.
--:-- Sean Rameswaram: You know, it refers to the privileges or immunities of citizenship doesn't tell us what they are.
--:-- Ian Millhiser: It says that there cannot be unreasonable searches and seizures. Do you know what it means to be unreasonable? Because it's not really clear in the document.
--:-- Sean Rameswaram: You know, it uses the word liberty. It doesn't define the word liberty.
--:-- Ian Millhiser: So like the Constitution uses words that not just constitutional scholars, but philosophers have been debating the meaning of for almost as long as those words have existed.
--:-- Sean Rameswaram: And the idea that a judge could simply say, well, I'm only following the words of this very vague text is a bit of a dodge because ultimately there has to be a bit of personal judgment brought to the table if you are interpreting a word like liberty.
--:-- Ian Millhiser: I know a lot of people associate originalism with Justice Antonin Scalia, but is he the OG originalist? How did this thing come about? How does it sort of developed as a legal theory.
--:-- Sean Rameswaram: Originalism is a theory that I think tends to arise in reaction to legal developments that someone disagrees with.
--:-- Ian Millhiser: So in the last century, there have been what I would describe as three great waves of originalism. The first was actually a liberal wave.
--:-- Sean Rameswaram: It was spearheaded by a man named Hugo Black, who was a Roosevelt appointee in the Supreme Court.
--:-- Ian Millhiser: Obscenity is wholly ambiguous. It means one thing to you and another thing to you and another thing to these, another thing to me. I've always detested it, but that's no reason.
--:-- Sean Rameswaram: I think that it's not speech on an important subject. Liberals can be originalists too. Yes.
--:-- Ian Millhiser: Again, originalism generally manifests not as a way of implementing conservative policies, but of a way of wiping out past decisions that an originalist doesn't like.
--:-- Sean Rameswaram: Black objected to some early 20th century decisions that made it very, very difficult for the government to regulate the economy in the workplace.
--:-- Ian Millhiser: And he couldn't just because judges aren't allowed to say, well, I disagree with that past precedent, so I'm going to get rid of it.
--:-- Sean Rameswaram: He had to come up with a reason to get rid of it. And originalism allows a judge to wrap themselves in the legitimacy that comes from the Constitution's text and the framers and say, look, you know, James Madison beats your prior precedent.
--:-- Ian Millhiser: And so black joined the court after a 40 year period where conservatives were just running buck wild.
--:-- Sean Rameswaram: You know, conservatives on the Supreme Court were striking down child labor laws. They were striking down minimum wage laws. They were striking down the right to unionize.
--:-- Ian Millhiser: And Black wanted to get rid of all of that. He had to come up with a good reason to get rid of these precedents.
--:-- Sean Rameswaram: And so what he could do is he could wrap himself in the legitimacy that comes from the framers and from the Constitution's text and say, my original history beats your bad precedents.
--:-- Ian Millhiser: So what's wave two? What's the second wave?
--:-- Sean Rameswaram: So the second wave was led by men like Scalia.
--:-- Ian Millhiser: I, Antonin Scalia, do solemnly swear that I will support and defend the Constitution of the United States.
--:-- Sean Rameswaram: That I will support and defend the Constitution of the United States. And this was a reaction to the liberal Warren court.
--:-- Ian Millhiser: So just as Justice Black disagreed with conservatives running buck wild in the early 20th century, Justice Scalia disagreed with liberal decisions that were handed down in the 50s and the 60s and to a lesser extent the 70s right after Chief Justice Warren stepped down.
--:-- Sean Rameswaram: And that I will well and faithfully discharge the duties of the office, the duties of the office.
--:-- Ian Millhiser: Scalia wanted to get rid of decisions like Roe v. Wade. My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that.
--:-- Sean Rameswaram: My only point is the Constitution does not say anything about it.
--:-- Ian Millhiser: But the kinds of arguments that he used were very similar to the arguments that Black was using.
--:-- Sean Rameswaram: He would wrap himself in the framers. He would wrap himself in the Constitution's text and original history and say this history, like my obedience to the text, trumps these past precedents that I disagree with.
--:-- Ian Millhiser: And the third wave is the third wave of everything that Scalia influenced.
--:-- Sean Rameswaram: The third wave likes to cite Scalia as an inspiration, but I think the third wave is something much more frightening than what's come before it.
--:-- Ian Millhiser: So conservatives have controlled the Supreme Court for a very long time.
--:-- Sean Rameswaram: And one thing that happens when you control the judiciary for a really long time is you become really comfortable with judicial power.
--:-- Ian Millhiser: While Scalia articulated a theory of judicial restraint to get courts to do less.
--:-- Sean Rameswaram: The preeminent originalist right now is Justice Clarence Thomas.
--:-- Ian Millhiser: Justice Clarence Thomas, he has asked a question during oral arguments in a case that sounds funny The man has not asked a question in 10 years Justice Marshall rarely asks questions Justice Powell rarely asks questions That a personal preference I certainly wouldn't do it to provide histrionics for the media gallery or for other people or for critics Critics will always be critics.
--:-- Sean Rameswaram: Justice Clarence Thomas would bring back the doctrines that were used to strike down child labor.
--:-- Ian Millhiser: It's not entirely clear that the ban on whites-only lunch counters is constitutional. under Justice Thomas's theory of the Constitution.
--:-- Sean Rameswaram: So the third wave of originalism, what a lot of scholars refer to the new originalism, is about wiping away much of the 20th century.
--:-- Ian Millhiser: Another prominent member of the third wave of originalism is Justice Neil Gorsuch.
--:-- Sean Rameswaram: The first time the Supreme Court of the United States really departed from the original meaning of the Constitution was perhaps in Dred Scott, when the court found a right for white persons to own black persons as slaves in the territories of the United States.
--:-- Ian Millhiser: Scour the document as long as you want. You will not find that right there. They made it up.
--:-- Sean Rameswaram: Or take the Sixth Amendment, which guarantees you a right to confront your accusers in any case against you.
--:-- Ian Millhiser: For years, the Supreme Court of the United States said, no, we're not going to enforce that right, except for when we think it's really important.
--:-- Sean Rameswaram: Originalism says no to both of those things.
--:-- Ian Millhiser: Gorsuch's big project is he wants to eliminate much of the administrative state.
--:-- Sean Rameswaram: So the EPA has a great deal of power to make sure that we have clean air and clean water.
--:-- Ian Millhiser: The Labor Department has a lot of power to make sure that people are paid fair wages.
--:-- Sean Rameswaram: The Department of Health and Human Services has a lot of power to make sure that insurance companies are providing us with a certain baseline of coverage.
--:-- Ian Millhiser: and Gorsuch wants to strip away a lot of that power.
--:-- Sean Rameswaram: So, again, Thomas and Gorsuch aren't operating under a theory of judicial restraint. They're operating under a theory of wanting the courts to do more and more and more to implement a conservative agenda and to strip the federal government of much of its power to operate.
--:-- Ian Millhiser: I've heard Gorsuch referred to as a textualist, maybe even by you on this show.
--:-- Sean Rameswaram: So how does originalism gel with textualism? And is that an important difference?
--:-- Ian Millhiser: If anything, I would say that originalism is a flavor of textualism.
--:-- Sean Rameswaram: So textualism is the idea that when you're dealing with a legal text, the text of the Constitution or the text of the document controls.
--:-- Ian Millhiser: And again, that's one of those theories that like sounds deceptively simple, but in practices can be very difficult to implement.
--:-- Sean Rameswaram: Then originalism, again, is the idea that when you're interpreting the Constitution, the Constitution has a fixed meaning and judges are bound by it.
--:-- Ian Millhiser: So originalism and textualism are at the very least close cousins.
--:-- Sean Rameswaram: And where does Amy Coney Barrett fall into these three waves of originalism?
--:-- Ian Millhiser: I interpret the Constitution as a law that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it.
--:-- Sean Rameswaram: So that meaning doesn't change over time and it's not up to me to update it or infuse my own policy views into it.
--:-- Ian Millhiser: Barrett has written about originalism at a very high level of generality.
--:-- Sean Rameswaram: One thing that I find very frustrating about her scholarship is with a few exceptions.
--:-- Ian Millhiser: I mean, again, she's been very clear that she opposes abortion. She's been very clear that she thinks that the Obamacare cases were wrongly decided.
--:-- Sean Rameswaram: But she doesn't really get into the weeds about what sort of changes she would make under her originalist philosophy.
--:-- Ian Millhiser: You know, we don't know if she agrees with Justice Thomas that federal child labor laws should be struck down, for example.
--:-- Sean Rameswaram: But, you know, she grew up in the era where third wave originalism was ascendant amongst conservatives.
--:-- Ian Millhiser: She uses very similar rhetoric to what I hear from other third wave originalists.
--:-- Sean Rameswaram: And so I think it's a safe bet that if she joins the Supreme Court, you know, there might be some nuances just as Justice Thomas and Justice Gorsuch don't agree on everything.
--:-- Ian Millhiser: It's likely that Barrett won't agree with those two men on everything as well.
--:-- Sean Rameswaram: But I think that she's going to take a very similar approach and we're going to see her like Thomas and Gorsuch trying to sweep away much of the government's ability to function.
--:-- Sean Rameswaram: And her confirmation to that Supreme Court is all but sure.
--:-- Ian Millhiser: Do we know when it's going to happen?
--:-- Sean Rameswaram: Yeah, I mean, barring a miracle or like, you know, maybe six Republican senators will be lost at sea. She's getting confirmed.
--:-- Ian Millhiser: This is probably not about persuading each other unless something really dramatic happens.
--:-- Sean Rameswaram: All Republicans will vote yes and all Democrats will vote no.
--:-- Ian Millhiser: And that will be the way the breakout of the vote.
--:-- Sean Rameswaram: The Senate is operating under a very rushed schedule to get her confirmed.
--:-- Ian Millhiser: I mean, I think Lindsey Graham has announced the first markup on the Barrett confirmation in the committee will take place on Thursday.
--:-- Sean Rameswaram: I think she's likely to be confirmed by the end of this month.
--:-- Ian Millhiser: Just in time to weigh in on an election of which she won't commit to a peaceful transfer of power.
--:-- Sean Rameswaram: Yeah, that's right. Everything is awesome right now.
--:-- Sean Rameswaram: Ian Millhiser, he writes about the Supreme Court at Vox.com, where you can find our latest coverage of Judge Amy Coney Barrett's confirmation hearings.
--:-- Ian Millhiser: Ian also just wrapped up hosting a miniseries on voting rights for the Weeds podcast. It's called By the People. Each episode looks at a different obstacle facing voters in the coming election, from voter suppression to the Constitution to the Supreme Court itself.
--:-- Sean Rameswaram: And while we're on the Supreme Court, on Tuesday, in a 7-to-1 decision, Justice Sotomayor dissented the court approved of the Trump administration's effort to end the national headcount early.
--:-- Ian Millhiser: That means, at least for now, this thing ends October 15th at 11.59 p.m. Hawaii time.
--:-- Sean Rameswaram: So if you're like a last minute person, that last minute is soon approaching.
--:-- Ian Millhiser: I'm Sean Ramos for him. It's Today Explained.
