Melissa Murray Gives the Constitution Some Strict Scrutiny

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Melissa: The framers thought that people would read it. They would debate it. They would grapple with it.

0:00:06 Thomas: Oh, they thought people would read. That's where they went wrong.

0:00:18 Melissa: The people respond to it by taking the Constitution into their own hands and changing it. And that is a lesson for this moment where the court is giving us a workover. We don't have to take it.

0:00:35 Thomas: Hello and welcome to Opening Arguments. This is episode 1286. I'm your host, Thomas Smith. And in a moment, I'll be joined by Matt Cameron, of course, immigration attorney and special guest. We've got Melissa Murray from Strict Scrutiny, a podcast we love, and I'm sure so many of you do as well. Melissa Murray has a new book out, The U .S. Constitution, a Comprehensive and Annotated Guide for the Modern Reader. And in my opinion, the modern reader ought to be some of the Supreme Court justices, I think. We are so excited to speak to Melissa Murray about the book and so much more. And the book is also this month's OA Book Club selection. Of course, if you want to join that book club, go to patreon .com slash law. The meeting via Zoom to discuss it will be August 30th at 4 .30 p .m. Eastern. All right. I'm about to throw it on over to the interview. But, you know, while I have you, I haven't mentioned in a while, if anyone hasn't checked out Where There's Woke, my other podcast with Lydia, there's been some really good stuff over there as always and I just wanted to shout it out like recently we talked about this three million dollar anti -woke civic center curriculum thing started in west virginia and it had one enrollment oh so good or another one where we talked about the maga congress grilling the smithsonian director because they hate facts and history and knowing things and most recently uh james lindsey that's a blast from the past he talks about woke Woke 2 .0. So I was excited to upgrade. I always get the newest Woke right when it comes out. I'm not one of those hesitant users. I go for it and it bites me sometimes. Sometimes there's a lot of updates that make it better, but I jumped on that Woke 3 .0 immediately. James Lindsay taught us what it's about. Anyway, haven't given that one a shout out in a minute and I wanted to because there's lots of crossover and topics, but it's more from a commentary direction, but also really really good research by Lydia. She is the star of that show and it's really cool. So thanks for allowing me the plug, but more importantly, we're going to take our first break before we get on over to NYU law professor and strict scrutiny co -host, Melissa Murray. If you'd like to avoid that commercial break and join the book club and get a lot off of movies, all that good stuff, patreon .com slash law, you know where to go. All right, we'll take a break and they'll be on with With Matt and Melissa Marie.

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0:02:52 Matt: Melissa Murray is the Frederick I. and Grace Stokes Professor of Law at NYU and co -hosts the legal podcast Strict Scrutiny with fellow law professors Leah Lippman and Kate Shaw. She is also the author of this month's OA Book Club selection, The U .S. Constitution, a Comprehensive and Annotated Guide for the Modern Reader. So, Melissa, I'm just going to say it. I think that not only every OA listener, but every American should buy and read this book, even if they think they know about the Constitution. This is just the perfect straight -ahead textbook. And I'd say textbook, obviously, as a compliment. It's not a dry book, but it's an easy read. I think it was probably a pretty stupid question, but was there some reason that you felt like you needed to explain the Constitution in 2026?

0:03:28 Melissa: Well, first of all, thank you for having me. Thanks so much for making this your book selection for the month. I really appreciate it. And yeah, it feels like there are some people who could use the Constitution. I'm just thinking back on just the events of the last week. It seems John Cornyn could use a refresher despite his two law degrees. He seems to not know that Congress has a role to play in reigning in the president.

0:03:54 Thomas: Wait, it has two law degrees? What does one do with two law degrees?

0:03:56 Melissa: He has two law degree. Well, he has a JD from St. Mary's in Texas, and he has an LLM from the University of Virginia. And yet, and yet. At.

0:04:05 Matt: He has and yet, here we are.

0:04:08 Thomas: Yeah, the book almost could have been an email to some people. I mean that in a good way. Like, hey, maybe just directly like to some of the Supreme Court justices and a few other people might need to read it.

0:04:13 Melissa: Some of our very trolly listeners on Strict Scrutiny, I think when the book was first released, a couple of them ordered copies and had them delivered to the Supreme Court to certain justices.

0:04:30 Matt: I hope they read it. That's great. Having been to law school and having been thinking about this stuff for a long time, there's plenty in there that I knew, but there's a lot I didn't know. And even the stuff I knew it's just great to see it. It's refreshing to see just laid out the way it is. It's just a blow -by -blow, straightforward, going -through -the -Constitution. I actually listened to it, so I got the pleasure of having you read it to me, which I really enjoyed.

0:04:31 Melissa: So I was told,

0:04:51 Matt: And along with Dion Graham reading the constitutional parts, it was beautifully done. Very nice production. I can recommend the audiobook for sure.

0:04:50 Melissa: Oh, he's great. He is absolutely fantastic. I was very lucky to be able to work with Jan. He was fantastic. It was my first time reading an audio book out loud. And And it's really different from reading stories to your kids.

0:05:11 Matt: At least you know the material. That has to help.

0:05:12 Thomas: Unless you slip into like a voice at one point.

0:05:14 Melissa: It's hard. It's difficult. It's really hard to do audiobooks. So I have a lot of appreciation for the medium and for those who, like Dion, who are just absolutely fantastic at it.

0:05:24 Matt: What a pro. I was wondering, as I'm listening to you read all this, I've enjoyed strict scrutiny for many years as well. And of course, you have a very different voice in this book. You're very straight ahead. You're telling us the objective facts about the Constitution. I can almost hear in your voice, there might be some other things you wanted to say as you were going through this. Did you kind of have that feeling?

0:05:45 Matt: I mean, again, it's a really vital learning resource, but it doesn't have the kind of commentary we get on strict scrutiny.

0:05:52 Melissa: I'm a Black woman, which means I'm really good at code switching. So this was a code switching exercise for sure. So what I do on Strict Scrutiny is not what I would do in the classroom. Room. I think this is probably more like my professorial voice where I really felt that if I was going to do this, I wanted it to have as wide a reach as possible. And if people want to hear what I think about X or Y, they can look up my writing. They can go to strict scrutiny. But if you want to know what the Constitution says and what some people say about this, what some People say about that and come to your own conclusions, that's sort of the posture that wanted to kind of just be even -handed about it the way I would in class. I mean, there are times in class where I say things like, doesn't Justice Alito have a point? And if the students listen to strict scrutiny, they're like, no, he doesn't have a point at all.

0:06:47 Melissa: But I feel like in the classroom, I have to give even the arguments that I think are ludicrous a fair airing and allow the students to decide for themselves that they don't believe this or they think it's bunk.

0:07:00 Matt: No, I really appreciated that. And it's so essential, I think, when you're talking about something as important as the Constitution to present it that way. You've been thinking about the Constitution, I think fair to say for your entire adult life. Has your relationship with it changed over the years? Did writing this book make you feel any differently about it?

0:07:13 Thomas: Men

0:07:13 Melissa: I really learned a lot working on this book. Teaching constitutional law, you don't teach the whole constitution. I think I start off the class by telling people, there's so much here, we're not going to cover it all. If you want to learn more about the Fourth, Fifth, and Sixth Amendment, you'll take criminal procedure. If You Want to Learn About the Eighth Amendment and habeas, you will take a different kind of class. Most of my teaching has really been focused on on things like the 14th Amendment and even just very particular parts of the 14TH Amendment, the Due Process Clause, equal protection. And so when presented with this challenge of trying to explain the whole document, there were things I just wasn't as teched up on that I really had to dig in and learn more about. Andso it was a really great exercise to just become completely immersed in the document to think about what its animating principles are. And I think I kind of came away with a different understanding of the framers. I don't think this is a hagiographic enterprise.

0:08:17 Melissa: These are great guys. I think they are really smart people who are capable of really horrific things. They make a lot of compromises here that never explicitly condone slavery, but but very implicitly keep slavery as an institution for much of the country's early history. But I think what comes across most explicitly and what struck me in doing this is how much of this document was about dealing with their own trauma, right? So at the beginning, they are dealing with the trauma of living through the colonial period where the British Parliament and the King have literally made their lives intolerable.

0:08:47 Thomas: Will write a constitution rather than go to therapy. Is that what you're saying?

0:09:01 Melissa: Or maybe this is their therapy, like, you know, in therapy, you're told to journal through it. And I think they're kind of doing that. They're dealing with the colonial period where the British crown and parliament are on their necks constantly. And then they also have this period where, you Know, they've shaken off the crown and the parliament. And now they're trying to fight a war against the greatest global superpower the world has ever seen. And they're doing it with this half ass government that is literally held together by gum and friendship bracelets. And it's terrible. And then it is a traumatic episode for them. So they're dealing with these twin traumas. The question for them is how to create a government that is strong and effective, but not so strong and effective that it becomes tyrannical. So the whole conceit of the constitution, I think this gets played out over successive iterations and amendments is how do we hedge against the prospect of the government going bad and becoming tyrannical? And that insight was so important, I think, for the way the book worked out and certainly for how I think about the Constitution in this moment where I think we are genuinely thinking about what do we do if the government it goes sideways. Yeah.

0:09:04 Thomas: How long

0:09:04 Matt: I think you make this point throughout the book too, but I think many people think about the constitution as rights that are given to us, which is certainly true. But if anything, what I got is what you're saying, protecting us from the government, ways. I was also fascinated by all the little details, and I'm sure I think you were kind of referencing this before, but something like Article 7, which I'd never read before. Why would I read Article 7? Isn't that for me basically finishing up the Constitution, putting a bow on it? And I was shocked when I get to the end of the Constitution and you're telling us that we don't actually know when it was official. Something as strange as that.

0:10:51 Melissa: It's not clear. And people have debated, legal scholars have debated when did the Articles of Confederation become obsolete? The articles, of course, were the predecessor document that was the friendship bracelet binding this loose confederation of states together. Hard to say. Why do we have a preamble? Is it legally binding? Probably not. But is it so important for our understanding of this document and how it shapes our lives? Of of course it is. And so there are all of these kind of contradictions and idiosyncratic elements that we probably have never thought of, but maybe we should.

0:11:10 Matt: Yeah, no, I think so. And I think just there's a lot of value. And And I love how you just have the text of the Constitution at the beginning of the book. And I just listened to Dionne Graham read it to me because it was just an interesting exercise. I'd never actually listened to the entire thing before.

0:11:36 Thomas: Is that bad boy? How does it take to read through?

0:11:39 Melissa: It

0:11:39 Matt: That chapter was a while, actually. It takes some time for

0:11:42 Melissa: Takes a while. I will say, though, it's a pretty spare document. For what it is, like, you know, this is laying out our entire government. It's pretty spare. And that's by design as well, because the framers thought that people would read it. They would debate it .They would grapple with it.

0:11:59 Thomas: Oh, they thought people would read that's where they went wrong okay I get it now

0:12:01 Melissa: We thought people would read. And maybe that's part of the impetus for this project. You know, if we're supposed to be engaged in it, and I think they understood the work of citizens is calling the government out sometimes when it goes too far, jealously protecting your rights, jeallously protecting these boundaries between the different arms of the government. In order to do that, you've got got to be informed. And so part of this book is reflecting on where we are in our history, where we're in our culture, and the fact that there are lots of kids who grow up and they've never read the Constitution. They've never read it all the way through. They don't have civics education in schools anymore in the way that they might have 40 years ago. That's a dangerous situation for a government that was intended to be structured to hedge against tyranny and with with the understanding that the people, as much as the document, were part of that hedge.

0:13:02 Matt: Yeah, that was another big takeaway after finishing this was thinking about the fact that, you know, I think this book could easily be assigned in high school. I think I would have enjoyed it. Great. I hope so.

0:13:09 Melissa: It is being assigned in high schools, which is great. And I wrote it not for lawyers, although I'm really glad that lawyers will read it. But I was really thinking about a high school student, a college student who may or may not go to law school, but who's definitely going to be living in this country and trying to figure things out.

0:13:10 Thomas: Hey

0:13:26 Matt: Yeah. Yeah. And so I was thinking, I mean, in high school, college, law school, current lawyers, it has value for everybody. Even if you think you know it, just to go back and read it and just kind of reinforce these things. There's this kind of narrative on the right that people on the left hate the Constitution and they want to do away with it. Some days, maybe. I don't know. But I don'T get the sense from this book and the effort that you put into it that you're somebody who hates the Constitution. You do teach it all day, I assume. You don't hate it.

0:13:51 Melissa: I think that's a really lazy attitude for them to adopt. I'm not surprised they adopted because I think there is value for them in framing their opponents as people who don't love this country, who don'T love the constitution, who were just flaming feminists who just want to be woke and hate everything. I'm the daughter of immigrants. And I genuinely believe that there is no more fervent proselytizer than the converted.

0:14:20 Melissa: My parents came to this country and they loved where they came from. They loved Jamaica, but they loved America and they love the promise of America. And it was a promise that was created by the structure of government that kept the different lanes of the government in check, provided rights that the government could not infringe upon. That's what made all of this possible. And so the life that I have is not the life my family members in other countries and other systems live. And I recognize that I'm incredibly fortunate to be here in this country under this government. And so I reject the premise that you're a liberal, you hate the constitution, you hat the government, you're not a patriot. The most patriotic thing you can do is call out the government because that is what this constitution was about. I mean, the first amendment that they started with was about creating these alternative systems of value, you, whether it's religion or the press. So when the government goes too far, you can recognize it and be like, yeah, I'm not down with that. That's not what I think is a good thing. And I'm going to call it out. Maybe other people will join me. Maybe they won't. But the government doesn't get to run roughshod over us. We get to check the government too.

0:15:34 Matt: And that is something that we all get to do as legal podcasters these days, it's pretty much our whole job is just pointing out how the law is supposed to work and what's actually happening.

0:15:41 Thomas: Yeah I'm not the lawyer but it doesn't seem like there's a whole lot in the constitution that directly I disagree with all that much it's more like where it's gone and how they've where they've taken I mean I guess the senate kind of sucks I'm a huge fan of that but electoral college yeah sure okay there's few few things yeah all

0:15:57 Melissa: Or the electoral college, College, also bad. Yeah, yeah, yes.

0:15:58 Matt: Sure. Yeah. I mean, the fact, obviously, as you point out, that the Constitution originally allowed for escaped slaves to be returned, not great, that it put off the whole question of slavery until what, 1808?

0:16:10 Melissa: 20 years. 20 years should be enough to work it out, apparently.

0:16:12 Thomas: Right I was counting the amended stuff I was going with the latest version okay yeah

0:16:13 Matt: Yeah, just to figure it out. Sure. The 2 .0, yeah. I totally agree with you, though, that I don't think it should to cancel out the document, that it makes it invalid just because, obviously, what is a product of its time, but I don't think we need to scrap it. Is there one big misconception or misunderstanding of the Constitution that you could change right now? If you could, you'd want to change.

0:16:35 Melissa: Well, when I'm in those Twitter streets, and I'm not in those Twitter streets anymore, because one, it's X and it's a cesspool. But when I was in the Twitter streets – I used to love when people with their Twitter law degrees would say things like, you know, so -and -so is infringing on my First Amendment rights.

0:16:51 Melissa: It rankles a little bit. I mean, I understand the impulse, but, you You know, the one misconception that I think I go to great pains to clarify in the book is that the Constitution is a hedge against government. It stops government from doing things. So the First Amendment is a prohibition on the government. The First Amendment does not implicate it. And I tell you on Twitter that you're an asshat. Like, that's not the First amendment. That may be me being an asshet, but it's not The First amendment and so, you know, there there are very few places in the Constitution where its provisions apply to restrain private conduct. One place, very famously, is the 13th Amendment, which prevents individuals from owning people. So that seems like a good place for an intervention into the private life of individual citizens. Another place is prohibition, maybe a less good one. But for the most part, the the constitution's provisions are about limiting the state. So the federal government, state and local government, and I wish more people in the Twitter streets with their Twitter law degrees would cotton on to that. Yeah.

0:18:08 Thomas: And it's actually been confusing to me to learn uh like how much it only was I guess applied to the federal government that part's always confusing to me uh you know like how many people are going to be going to the government you know how much of that well I guess what would be kind of some of the bigger areas that the founding fathers would would be the most surprised about where we've kind of taken their therapy document, their journal.

0:18:19 Melissa: James Madison, father of the constitution, I think he would probably be very surprised to learn that I am now his co -author and he's probably like, who taught her how to read? Genuine question for him. But I think they would have been surprised characterized by, for example, sovereign immunity, the 11th Amendment. That's a response to the Supreme Court's decision in Chisholm versus Georgia. They had all of these debates about who could be sued, whether states could be sued by their citizens. And they left some big loopholes in the original Constitution. And the 11TH Amendment comes in because the states are totally freaked out about the prospect of being sued by residents of other states. And so so the 11th Amendment comes in to sort of create sovereign immunity. I think they would have been very surprised, certainly by the Reconstruction Amendments, not necessarily by the abolition of slavery, because that was certainly a conversation that was being had when the document was being framed. They did not have to go down this road where they condoned and accommodated slavery. They could have gotten rid of it. But I think they would've been surprised that it came to the point of the bloodiest conflict in the history of the country in order to end it, and that the 14th Amendment becomes this vehicle for recognizing that we shouldn't just be concerned about limiting the tyrannical impulses of the federal government. States can be pretty crap too. And the 14TH Amendment becomes a vehicle for holding states to account and preventing states from running roughshod over the people. And I think they might have been surprised by that because to them, the threat was the prospect of a Congress that would be like parliament. I don't think they imagined that state legislatures could be similarly prohibitive and tyrannical with the people, they really saw this as a problem of centralized federal government, not of states, which they thought were closer to the people and would be more likely to protect the people's rights. Now, of course, included among the people post -Reconstruction are a group of people that they probably didn't think of as people. And maybe that helps explain why the 14th Amendment continues to be surprising in some ways.

0:20:43 Matt: Staying on the 14th Amendment, I was listening a couple of years ago to Strict Scrutiny, and you guys had a great laugh at the idea, and I was laughing with you because I continue to laugh at this, at the idea that somebody would challenge the text of birthright citizenship in the first few words of the 14th Amendment.

0:20:58 Melissa: Look at us now!

0:20:59 Matt: Well, you're still laughing. I mean, it's still funny, but it's a little less funny, of course, now that we have effectively a 5 -4, very close, you know, with Kavanaugh's concurrence, obviously, finding that there's no constitutional right necessarily to birthright citizenship. At the time that your book was published, the case was still pending before the Supreme Court. How are you feeling about the future of birthright citizenship?

0:21:18 Melissa: We talked a lot about this on the podcast. I did not say this in the book, again, because I was being very professorial, but I have said on the broadcast and I will continue to say and my private commentary as a pundit, I guess, that it is a travesty that this decision was so close. It's a travesy that it was not a unanimous decision because the text of the 14th Amendment is so straightforward. I mean, if you can read, you know what the 14TH Amendment says and you know what it means. And apparently we have five people on the United States Supreme Court who who have questions about the meaning of the 14th Amendment. And the fact of the matter is they should not. They should not have questions because ostensibly they are literate and this says what it says and it means what it means. I think going forward, Justice Kavanaugh's concurrence is going to be an invitation to the right to continue pressing this question, whether it is through through congressional legislation, to open the door to rescinding birthright citizenship for some people, whether it is the children of undocumented migrants or individuals who are here on temporary visa statuses. This is going to basically be what abortion was in the 1980s and 90s. They're going to bang the strum. You've already seen J .D. Vance talk about it. If we just get a different Congress, we can do this. If We just get the right people in place, they're going going to continue to press this. This is not a settled issue. It should be a settled issue,

0:22:50 Melissa: And that's the travesty of it. But when people in the media talk about this court saving birthright citizenship, they haven't saved it. Brett Kavanaugh has basically opened the door for even more questions. And we should also not let the court off of the hook for the fact that they could have issued a decision on the substance of birthright citizenship a year before they actually did it. Because in that case, Trump versus Casa, which was about whether the nationwide injunction was an appropriate remedy for a district court to levy against the administration, the ACLU asked them to take up the substantive question underlying that jurisdictional question, and they didn't. And they let this off -the -wall theory percolate for an entire year, and now the court has gone even further in unsettling things. So this is not a settled issue. It is going to be debated and litigated. And the meaning of the 14th Amendment, which again, I think is obvious, that's something I think that's going to be resolved maybe in 20 years, maybe in two years, who knows, but it's not over.

0:23:56 Matt: They saved it in the same sense that when someone unexpectedly walked in front of me the other day, I didn't hit them and I saved them, I guess. So I managed to swerve. Yeah, that's right. And it's like, look at me. That's right, speaking of heroes in capes, I have an oil painting on my wall of your former boss, Sonia Sotomayor. And we're big fans here as our listeners. And I know that you got the chance to work with her when she's on the Second Circuit. I love to talk to people who have had the chance to clerk with people like this that we respect so much.

0:24:02 Melissa: Yes. Yes. You're a hero. Not all heroes wear capes.

0:24:26 Matt: I think you're the first person I ever talked to who's personally met her. So I'm just wondering if you want to share anything that you learned from her or from your time there in the Second Circuit.

0:24:33 Melissa: First of all, I should say there's so many people who have this impression that I clerked for her at the Supreme Court and I'm always like very quick to disabuse them of that. Like I am old, old AF. And she came to the court, the court in 2009. And I clerked for her in 2003 to 2004. So, you know, the tail end of her time at the second circuit. The things I learned about her that I think are really evident in her time at the court is just how well versed she is in what district courts do and how the record is compiled and why that is important for appellate litigation, whether it is at an intermediate appellant court or at the Supreme Court. So she would always tell us, go get the record. And it was like, honestly, such a drag to have to go to the top of Foley Square to the library and pull down the record and sometimes the record was so voluminous that you had to have a cart to get it back down. And everyone knew if you couldn't find the record, the Sotomayor Chambers had it. And she would make us go through it. She wanted to know what the district court saw. And she had real respect for the work of the trial court, the court of first impression, really. It's so important to think about the fact that she was a district court judge, that she did have this respect for, the work that district courts did, even as an intermediate appellate court judge. Because this comes across so clearly in the voting rights cases. So if you look at a case like Louisiana v. versus Kelly, where she's like, yeah, the district court looked at it and they decided that this was an impermissible racial gerrymander. It was a likely unconstitutional gerrymandering. And then you have someone like Sam Alito, who has never been a district court judge, just like, you know, going off, like, Yeah, like this is like, like just like second guessing the record all of the time, second guessing, the District Courts. I think you see the kind of disdain for the work that district courts do among some members of the court when the district court rules against this administration. I don't think you see that from her. I think Justice Jackson is similar in this way. They have deep, deep appreciation. Having done this job, it is a hard job. They're really close to the people. I mean, as a district court judge, you are looking litigants in the eye every single time you get on the bench. I do not think she has ever forgotten that. And she made that so clear to us that that was important that you had to go through the record you had to make sure that the litigants knew that you heard them that you framed their argument in the best way possible and you gave it a fair airing and you went on and did your work

0:27:08 Matt: Yeah, that is such an important point that over and over again, especially in the last few years, Supreme Court just continues to disregard extensive findings from district courts over and over Again, as you said, Jackson was the first public defender in the Supreme Court. And Sotomayor was private attorney for at least a decade, I think, of course, yeah, yeah. And I think, you know, that's such a difference in all that just the practical, the overall practicality of her approach, and just the real world look at everything. I just really appreciate that. Is there anything else about her that you think might surprise us?

0:27:23 Melissa: Yeah and a prosecutor before that yeah she's a great dancer uh like I don't know if that's surprising uh you know she came to my wedding and my other judge Stephan Underhill from the District of Connecticut was also there. And I think Judge Underhill and I both attended the University of Virginia. And one of the quirky things among many that happens at the University of Virginia is that they do this kind of weird Southern dance called prep step. It's a bit like Shag. Did you ever see that movie with Phoebe Cates? It's called Shag with Phoobe Cates and Bridget Fonda. I'm really dating myself. But it's kind of like one of those dances that you would would see in a Gap commercial for khakis back in the late 90s. But we all learned to do it at UVA, or many of us learned to doing it, and my judge knew it. So at one point in the reception, Judge Underhill and I are doing this prep step thing, dancing. And then all of a sudden, out of the corner of my eye, I see this mint green dervish whirl by me. And it's then Judge Sotomayor with my new husband, just like cutting a rug. And she's gotten them to

0:28:20 Matt: Perhaps. Awesome.

0:28:45 Melissa: Play salsa or something. It's like some Doobie Brothers song just stops. And all of a sudden we're playing like Mijente. It was just like wild.

0:28:55 Matt: That's great.

0:28:56 Melissa: Terrific dancer, lots of fun. And someone who takes very seriously her role as a mentor, even though she's enormously busy, she spends a lot of time talking to school kids, talking to young lawyers, and making sure that mentorship is available. She has mentored me. I have mentored other people. I mean, this is something that she makes very clear as part of the ethos. If you come out of her chambers, you know that this is what she wants you to do as you go through your career in the law and in the legal academy, in my case.

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0:29:35 Matt: Together with your co -host, you wrote a law review article. I was at a podcast of one's own right about what you call the ecosystem that surrounds the Supreme Court and the role of someone like Sotomayor and the feeders, what you called the feeder judges, sort of the send clerks to the Supreme Court. I think you published that maybe five or six years ago. What's your impression of that?

0:29:53 Melissa: Yeah, it was during the pandemic. It was during during the pandemic?

0:29:55 Matt: Any updates on that?

0:29:57 Melissa: Certainly the ranks of the clerks, I don't think, have become more diversified. Although I do think the fact of Justice Jackson being on the court has perhaps attracted other kinds of law students who might otherwise have not been interested to apply for clerkships. I think Justice Sotomayor, as a judge on the Second Circuit, always had a very diverse chambers. And I think she's had a diverse chambers as a Supreme Court justice. And also has a very diverse chambers. But any inroads that they have made as justices may be counteracted by the fact that there are six justices who are more conservative. And I think for all of this talk about DEI, one of the things that's so striking to me, this was in a study that was done by Jeremy Fogle, a former judge on the Northern District of California, Justice Goodwin and Lou, my former colleague at Berkeley, and Mary Hoops, who is a professor at Pepperdine, they did a study of the clerks of conservative justices and liberal justices. And one of the things that they found is that judges of color are more likely to have clerks of color. And interestingly, judges who are more conservative are also likely to to have clerks whose ideological bent is similar, but they're also more likely to go further into the class in order to get them, which I thought was really interesting. The rap on DEI has always been that it's anti -meritocratic, that if you're selecting for diversity, you're obviously not selecting for merit. But I think what this study suggests is that when you're you're selecting for ideology, you also may be playing it a little fast and loose

0:31:45 Melissa: In terms of grades. Again, I don't think grades are the sole metric of merit, but I think it is interesting that for years they have been painting diversity and thinking about diversity and hiring with this brush that suggests that you're not picking the best of the best. Well, it seems if you're picking looking for ideology, you also may not be picking the best of the best. Weird.

0:32:11 Matt: In that article, Cool. I actually, I read that not long before I took this job and I started working as a podcast host. And it made an impression on me. You're talking about the commentariat around the Supreme Court and about the law bros. And that's more than a fair comment, obviously, I'm going to say as a law bro. I don't consider myself to be a law bro, but I can see it.

0:32:31 Thomas: Matt's always talking about how much he bench presses and all the steroids he takes. Yeah.

0:32:36 Melissa: And I know after you tape, you crush beer cans against your heads and wax your backs together. Yeah.

0:32:43 Matt: Hours of sports talk, actually, that we cut every week, famously.

0:32:47 Melissa: I think the commentariat has changed a lot. I hope strict scrutiny has been part of that. I think one thing that's really changed, and it's not about law bros versus law sisses or whatever, I think more people are willing to be critical of the court than was the case before. And I think that's a huge change. One of the things we talked about in that article was that the way people talked about the court was the sort of both sides and very neutral and abstract. And for us, it could never be abstract because the things the court were doing were going to have direct effects on our lives and the lives of people and communities that we cared about. And so we were just unabashedly, nakedly, we hate this. We hate that.

0:33:34 Matt: Yeah. It's refreshing.

0:33:36 Melissa: And I think it's refreshing that more and more people are just like, yeah, I hate that too. Yeah.

0:33:39 Matt: Yeah we're, we're here for that.

0:33:41 Melissa: I don't think we'd want people to think about this in terms of stochastic violence or anything, but I think it is okay to be able to call out members of your government. What you did on X or Y, that does not make sense. That is wrong. You know, it's wrong. And I don't like it. I think you can say that.

0:34:01 Thomas: And you go out of your way to compliment Alito's skin routine, which I think does a lot to, you know. Yeah. You call it like you see it.

0:34:05 Melissa: I, I, where credit is due. I mean, when I found out, when I found out, he was a septuagenarian. I was like, sir, what are you doing? Like, what kind of like hyaluronic acid glycolic? What are you doing? Although he has aged a little over the last couple of years. Yeah, he did.

0:34:14 Thomas: Yeah. What's in those flags? You know, what's it?

0:34:25 Thomas: Yeah, I feel like he finally, yeah, something happened.

0:34:27 Melissa: It was post Dobbs.

0:34:28 Thomas: It comes for all of us eventually.

0:34:30 Melissa: It was post Dobbs.

0:34:33 Thomas: How do you balance the idea? Because like, again, coming in as not the lawyer, I have the feeling of like, boy, this thing, like casually, I know a lot of people feel this way too. This whole thing sucks and the points don't matter. It feels like nothing, you know, like it started to feel like what even means anything anymore. It feels like if you get five idiots to say something, something, then I guess that's how it always worked. How do you balance that sort of, you know, nihilism, which to the extent that you feel that way, I don't know, but like, how do you bounce that with a sort of wanting more people to be a part of the law and to, you know, like more, especially more diverse people do pursue this at a time when maybe it's felt like the word, like the most hopeless in terms of what it all means.

0:34:46 Melissa: It Right. Right. Yeah. There are moments, I think, where it's easy to slip into nihilism and this is all politics all the way down. It's not really law. They're not doing law. But then I think you do a project like the Constitution and there are these amazing stories where the Supreme Court does something insane or some group of people thinks is insane and they realize they don't have to to take it. Go back to the turn of the century, late 19th, early 20th century. The US government has basically co -signed the consolidation of wealth in the hands of the robber barons. It's the Gilded Age, the age of oligarchy. It doesn't sound altogether different from what we have now.

0:35:58 Melissa: Relatedly, the way the American government raises most of its revenue is by levying tariffs on things that people use every day. And ordinary working people are just getting hosed and they hate it. And what they want is a progressive income tax that will force the rich to pay their fair share. And they get some kind of direct tax. It is struck down by the Supreme Court in a case called Pollock. And that could be the end of it. They could just like their tails between their legs, go back to their hobbles to pay their tariffs or whatnot. But the people just say, we're not going to take it. The Supreme Court is wrong on this. Like, okay, Article 1 doesn't allow us to directly levy taxes. We can change Article 1. And that's what they do. They literally agitate and get a constitutional amendment that changes Article 1 to allow for the direct taxation. And that is what leads to the progressive income tax that we know today. That was a grassroots movement led by the people. And then they look around and they look at the Senate and they're like, OK, the framers obviously didn't trust the people they allow the senators to be selected by state legislatures. And guess what? The state legislators are corrupt and they pick these lackeys who are basically shills for corporations. Well, guess what, we can pick our own corporate shills. Why can't we do that the way we do in the House of Representatives? And so they begin agitating and they ultimately get the 17th Amendment passed, which allows for the popular election of senators. So there are all of these moments in our history where the court does something and the people respond to it by taking the Constitution into their own hands and changing it. And I think that is a lesson for this moment where the court is giving us a workover. We don't have to take it.

0:37:52 Matt: One of my favorite law stories, which of course you, you have in here of, of the, um, the most recent time we met at the constitution, just a 19 year old who finds something, you know, from history, resurrects it and gets it passed.

0:37:59 Melissa: Gregory Watson. Yeah.

0:38:02 Matt: That's incredible. What a story. I love that.

0:38:04 Thomas: What's, what?

0:38:05 Matt: Uh, the 27th.

0:38:05 Melissa: It's such a good story, too, because Gregory Watson does not get his due. He's writing a paper for the University of Texas at Austin on constitutional amendments that never made it. And he focuses on this compensation amendment that is supposed to keep Congress from raising its compensation in any term in which the congressmen are actually serving. It doesn't make it through. It's proposed in the 1790s with the Bill of Rights. It does not make it through, so it is one of these two amendments that fail. Ten amendments obviously get ratified as the Bill of Rights, and it just languishes there. He writes this paper about it. He gets a C. That is the best part. He get a C, like his teachers, like this is crap. He is undaunted. He thinks this is a a great idea. Why should Congress get to raise its salary while they're still in session? And so he starts lobbying state legislatures to get this back on the table. They're only a few legislatures short of what they need to get THIS ratified. And he succeeds, and he changes the Constitution. And then once he's changed the Constitution, even the University of Texas has to reconsider. And ultimately, he gets his grade changed too.

0:38:43 Thomas: That's funny.

0:39:13 Matt: That's good. Yeah so good. And that was within our lifetimes, the lifetimes of everybody on this call. Yeah. I really appreciate that. I've always appreciated your attitude and the others on strict scrutiny that obviously things suck, the court sucks, we've got real issues, but I really have been feeling the way we've all been trying to push back against the tumorism.

0:39:15 Thomas: That's awesome.

0:39:18 Melissa: Yeah, 1992, 1992.

0:39:32 Thomas: I hear you. But like, could we get an inspirational story from sometime post -grunge era? Okay, let's do it.

0:39:37 Melissa: Okay, I have an inspirational story. I have an inspirational story from this week.

0:39:41 Matt: Sure. Perfect.

0:39:41 Melissa: Here's an inspirational story from this week, right? So in 2019, the Kansas Supreme Court issued a decision in which they found in the state constitution a right to an abortion. Anti -abortion conservatives in the state of Kansas have been railing against this decision since 2019.

0:39:59 Thomas: Oh yeah, I remember this.

0:40:00 Melissa: You remember this, in 2022 they had a ballot measure just a few months after the Supreme Court decided Dobbs where they were basically going to change the Constitution of Kansas to foreclose a right to abortion. And the people so pissed off about what the court did in Dobbs and so pissed off about their state legislature was trying to do, came out and forced to reject that proposed ballot amendment. The Kansas state legislature, undaunted, still wants to get that decision off the books, decided that what they'll do now is make a proposal whereby all of the justices on the Kansas Supreme Court will now be elected rather than appointed by the governor. And the idea here is that we will elect anti -abortion shills to do this. We talked about this for a couple of months on strict scrutiny. This was on the ballot in the primary election in Kansas just a few days ago. And The People came out in overwhelming numbers to say that. Can we say that on your podcast? Can we say that? Okay. Okay. All right. Well, okay.

0:41:01 Thomas: I'll bleep it, but it's fine. Sometimes a bleep works better. You know, sometimes it has more punch to it.

0:41:06 Melissa: Believe it. This is the code switching.

0:41:11 Thomas: No, yeah, it's fun.

0:41:12 Melissa: They said, we're not down with that. And they beat it back. And they're like, just no. And so I think that's actually an inspiring story about what the people do when they're engaged, when they're locked in, and when they're unwilling to let their Republican state legislature that has been gerrymandered within an inch of its life decide what's what in the state of Kansas. So that's what's happening in Kansas.

0:41:36 Thomas: For sure. The margin on that was crazy, too.

0:41:36 Matt: Yeah. Perfect, perfect.

0:41:39 Thomas: It wasn't even close, right? Yeah.

0:41:39 Melissa: It was crazy,

0:41:40 Matt: Yeah, that's what we we want to be.

0:41:40 Melissa: Crazy, crazy. And Missouri bounced back too. They were trying to change the threshold requirements for direct democracy in Missouri, but only for proposals to change the constitution that the citizens put forward on. Anything that the legislature did, the same majority rules would suffice. And the people were like, no, we see what you're doing. So I think when people are locked in, they're ready and they'll tell their legislatures, they'll tell the government, like, stop the crap. Like, we're done. That's powerful.

0:42:13 Matt: It feels like we're due for that kind of a moment right now. I can feel it everywhere.

0:42:17 Melissa: Can't you? Can't you?

0:42:17 Matt: What has given me, I mean, honestly, like just, we are just watching all of us, of course, and all of this legal podcast, we're just watching week after week as all of these insane shit happens, as it just continues to happen in front of us.

0:42:29 Melissa: I will give you another glimmer of hope, right? So on strict scrutiny, we've not often been kind to U .S. Attorney for the District of the District Columbia, Jeanine Pirro. I think on one occasion, we may have referred to her as a box of wine. But in recent days, JeanINE Pirro was like, actually, ladies, I'm a box of spine. She decided she was going to withdraw the charges against Doug Hearn, the Olympian who had been charged with vandalizing the reflecting pool. And she ate a lot of crow. I mean, she did it on a Friday night when the news cycle was kind of dead, but I appreciate that she did. She got out there and said, we looked at the evidence. It seems that this is the problem of the installation, not necessarily any vandalism, and we're not going to prosecute this. And so that is like she did the right thing.

0:42:52 Thomas: Holy

0:43:20 Melissa: And I remember when Jeanine Pirro was not a Fox shill. And maybe this is a return to that.

0:43:27 Thomas: Shit. That's a low bar. She stopped prosecuting the Olympian who did nothing. All right. Okay.

0:43:28 Matt: Yeah. But it's

0:43:32 Melissa: Well, I mean, you take your victories where you find them. Take your victories whereyou find them well,

0:43:44 Ad: [Ad break 3 — ad music]

0:43:44 Matt: So much of this talk, and I still see this sometimes, but especially after the election, especially around the inauguration, so many people kept telling me, and I'm sure you and everybody else online, that Trump's just going to do whatever he's going to do. There's no point in talking about this, and he's gonna ignore the courts and whatever. But yes, there's been some of that, obviously, to that degree. But at the end of the day, we've been trying to explain in this show, and I know that you have too, that he actually can't. I mean, and use the word can't carefully, but he can't just issue an executive order that cancels birthright citizenship, for example. There are a lot of people that have to participate in that. There're a lot of other people that need to involved. And even if you appoint, right,

0:44:15 Melissa: According to Brett Kavanaugh, you need a Congress to do it. You can't. Right.

0:44:17 Matt: Exactly, at least the Congressional majority, but even if you appoint hacks like Jeanine Pirro, at some point they have to act like prosecutors. They can't actually just do exactly whatever you want them to do all the time. How are you feeling about the rule of law generally at this point as of August, 2026?

0:44:31 Melissa: Listen, I am not a cockeyed optimist by any stretch of the imagination. We're in a really dire situation for the rule of law. Yes, occasionally, Jeanine Pirro is a box of spine. We have bulwarks against what is literally the unrestrained exercise of executive power. Those give me hope, but we're really skating on thin ice, and I think people need to understand that. Despair, I don't think, helps anything.

0:44:58 Melissa: Abject despair, what are you going to do? Just crawl under the covers and not fight?

0:45:03 Matt: Yeah.

0:45:03 Melissa: I don't think despair is a useful construct, but I also think being clear-eyed about where we are is important. It's bad. The rule of law is in bad straits right now. We have a president who has managed in a very short period of time to limit many of the accountability institutions that we would have counted on. So Congress is on the couch, supine. Hopefully, post-midterms, there will be a more assertive Congress in place that will conduct oversight and hold this administration to account. I hope. That is literally what's on the table for the midterms. But we have real issues with regard to a free press. And I come back to the book and the First Amendment. The point of the free press was that it was there to dissent. It is a vehicle for dissent to hold the government to account for the people to channel their frustrations. And we have a president who is sending subpoenas directly to the homes of journalists. That didn't happen before. Yes, the government wanted to find out things about sources. First, they started within their own houses, cleaning house and trying to decide where the leak came from internally. And then they would subpoena the news organization by sending it to the news organisation, not sending prosecutors to the homes of journalists. That move, sending the subpoenas directly to the journalists, is intended to scare the shit out of journalists, not just New York Times journalists, but especially smaller outfits, smaller presses, independent journalists who don't have the resources to fight the government, to make them scared to hold this government to account. That's the point. That is a huge imposition on a free press as a vehicle for accountability. We have seen what they have done with the law firms. It is not simply about sticking it to Paul Weiss or whatever law firm. It's about limiting the opportunities for people to file suits against this administration at a time when there are so many people who need representation, right? Like that's a big part of what those executive orders did. They have been used to concretize this president's understanding of equal protection, that any consideration of race is verboten. That's not the law. I mean, he's basically usurping the role of court. So the rule of law is in dire straits, and we need to understand that. And it doesn't mean that all is lost. It does mean that it's a really challenging time. And it means that we are in an all hands on deck moment. So get on deck and figure out what you can do in this moment to hold back what is literally the most muscular assertion of executive power that I think we'll see in our lifetimes.

0:44:58 Thomas: Feel

0:47:56 Matt: And we do have, for what it's worth at the moment, we do still have a pretty robust judiciary that continues to push back and that the administration knows at the end of the day, they're going to have to deal with, with, but that's not inevitable either, especially if we can't keep Congress.

0:48:08 Melissa: Especially if we can't keep Congress and especially if we continue to have nominees who won't say things like Joe Biden won the election or that Brown versus Board of Education is a legitimate and incorrectly decided decision. I'm going to need members of the Senate Judiciary Committee, like the Democrats, to push harder on that and not cave on these nominees.

0:48:29 Thomas: Like there shouldn't be a single moment. If we can take power again, I really feel like we've got to put a stop to all that. We've got to go Mitch McConnell times a thousand. It just really feels like that needs to happen. Not now. In his memory we should

0:48:42 Melissa: I see what you did there.

0:48:46 Thomas: Go that

0:48:47 Matt: You've shared a couple of things already here today, but are there any other things out there right now that are giving you hope just out in the world?

0:48:54 Melissa: These young people, and I say that, I'm 50, but these kids, they get it, and they get what's going on. They worry about the world that they are inheriting, and they should. We are not giving them the world that we got and they're pissed. And I think they're right to be pissed. I am inspired by the way they channel their very righteous anger and indignation into the causes that they believe in and what they're doing. And, you know, I salute them. We need people like them in the fight. And. I don't always agree with their methods or some of their stances, but I love that they're in it and that they are locked in and they want a better world for themselves. And I want that for them too.

0:49:40 Matt: I'm feeling that too with all the younger people I know, my students and my staff here. It's just incredible what they know and what they can do. I guess I'll ask you the same question that we asked your co -host, Leah Lipman, last year. How's it feeling teaching constitutional law to these younger people over the years? Has it changed?

0:49:54 Melissa: Well, one, the syllabus is constantly being updated. I feel like the syllabus ist a Google doc and I'm just like, Justice Alito, just fill in, just edit it. So there's that. I taught constitutional law for 10 years and there were like minor changes at the margins. Maybe there was a new case on standing that clarified something, but I've never been in a situation where like literally every year you got to revamp the syllabus because what you thought was the law is no longer the law.

0:50:29 Melissa: That is down to this Supreme Court and its conservative supermajority, which in almost every year there has been a conservative super majority has overruled a case and made a significant change to the legal landscape. That is different. I think the other thing that is really different is the students seem a little despairing. I'll be honest. Con law is a course I think a lot of students think, this is why you go to law school. You want to learn con law. You want to be a constitutional lawyer. And I think at this point, many of them no longer come with with that sort of wide -eyed optimism about the enterprise, they think that constitutional law is basically politics, that people make stuff up, and we're basically doing Donald Trump's fantasy court for an entire semester. And it's real work to disabuse them of that, to sort of show that, yes, there are massive departures that have happened in the last couple of years from you know, extant jurisprudence. But for a very long time, like here are the moves that the court made in order to change things and to move things in different directions. Basically now I'm teaching this course almost like a legal history course.

0:51:41 Matt: Just thinking about the difference between when we were in law school, I'm a few years younger, but not much younger than you. And now what Kanwa means, what it meant.

0:51:49 Melissa: Well, who did you have con law with?

0:51:50 Matt: Actually with Michelle Adams, who's now in Michigan.

0:51:53 Melissa: Lucky you. How terrific. She's great.

0:51:54 Matt: Oh, I know. Absolutely. We had her on the show. It was such a pleasure to catch up with her. I learned so much from her.

0:52:00 Thomas: The most like starstruck Matt ever what it was really it was really cute to behold yeah you're like maybe that's not the the right word you're just like intimidated and nervous

0:52:04 Matt: I earned that B, but it's still... Yeah.

0:52:13 Melissa: Well can I tell you a Michelle Adams story?

0:52:16 Matt: Sure.

0:52:16 Melissa: When I was a law clerk and thinking about going into the academy, this was when I was at Justice Sotomayor's, than Judge Sotomayor's. I would just cold call people who were doing things I was interested in doing in the academy and just see if they would talk to me for like, you know, what's your career like? Basically informational interviews, like stuff that now, like when I get requests like this, I'm like, ugh, but I'll do it. Really basically just annoying people, like pestering them. And Michelle Adams agreed to talk with me. And so, you know, we talked on the phone. She told me about her career and blah, blah, then one day I was walking home from the subway in Brooklyn Lynn. And there was Michelle Adams. And it turned out she was my next-door neighbor.

0:52:57 Matt: That's great.

0:52:58 Melissa: And yeah. And so I saw her later when I went on the market. We have become friends. I just saw her a couple of weeks ago. She's wonderful. And what a privilege for you to take constitutional law from her. I would have loved to taken constitutional law from her.

0:52:56 Thomas: Again wow

0:53:13 Matt: Absolutely. And what fun it was to be able to catch up with her decades later. As you know, one of the joys of having a podcast is you can cold call people and they'll come talk to you, including constitutional law professor Melissa Murray.

0:53:22 Melissa: I keep calling Meghan Markle and she's never said yes yet. So there's that. One day. One day, yeah.

0:53:27 Thomas: I keep trying yeah never

0:53:28 Matt: You'll get there, I'm sure. Sure. I did want to ask you before we go, so this is your second book of annotations. You also worked with Andrew Weissman.

0:53:35 Melissa: Am I going to write a real book?

0:53:36 Thomas: Know yeah

0:53:36 Matt: No, no. I love annotations, as listeners know, because I just wanted to mention that you did write a book with Andrew Weissmann on the Trump indictments where you just went through and did what you did with the Constitution here, which I also listened to. I'm just a hog for this kind of stuff, I guess. But I, as regular listeners know I love a footnote. Annotations are basically footnotes.

0:53:56 Matt: You're just going through and footnoting every part of the Constitution. That's why I was, I think maybe so delighted by this book more than anything else is it's a fetish. It goes deep.

0:53:59 Thomas: Matt has a sickness for footnotes he's underplaying it it's uh it's it's a disease.

0:54:06 Matt: Having just told you that, I'm setting up the question here, but what is your relationship with a footnote? I've read your work and I know that you enjoy a footnotes, but how do you like them? How do you see them?

0:54:13 Melissa: I love a good footnote. I really do. You all seem to have done a real deep dive into the strict scrutiny oeuvre. But a couple of years ago, we wrote a book review of Josh Hawley's book, Manhood.

0:54:32 Matt: I missed that. I'll have to check that out,

0:54:35 Melissa: I mean, we read the book, so you won't have to.

0:54:37 Matt: Brent.

0:54:37 Melissa: But the review is in the Michigan Law Review, and it's called Of Might and Men. And it has some A-plus footnotes. I mean, I think the footnote is an unappreciated vehicle for snark and sarcasm. And footnote four, it's great. I love it.

0:54:57 Matt: Carlin Products.

0:54:58 Melissa: But in a footnote, you can really just like slice somebody. You really can.

0:55:03 Matt: Yep. That's what I've been saying. I'm feeling very validated. Thank you. Appreciate that.

0:55:07 Melissa: Don't sleep on the footnotes. Justice Jackson is the queen of a cutting footnote.

0:55:12 Matt: Yes. Oh, she said so many good ones. So do I. I can hold her on too at the phone now.

0:55:16 Melissa: Justice Sotomayor, she is genuinely a person who likes her colleagues, who wants to like her colleagues. She really is. Sometimes she gets mad, but if she's putting something in the footnotes, if she's snarking in a footnote, she's had it. I feel like Justice Jackson snarks in the footnotES just because they're there and she wants to. Yeah. And I love that for her because it's real Virgo energy and I love it.

0:55:34 Thomas: It's Tuesday. Yeah. Okay. I do wish the liberals on the court would lose their chill more. I feel like that's another, I feel our politicians, I think we're getting to the point that actually I think is the reason we have Trump is that we're kind of fed up with fakeness or people we feel like don't really care, you know? And I wonder, I hope that gets to the court eventually, you know, like, cause I feel like there's still a little too collegial for my mind, you know, for my liking.

0:56:05 Melissa: The Republican appointees, they definitely have some DGAF energy. Justice Barrett has gone in on Justice Jackson in ways... I was just like, I hope you have some Black women friends because this is not the way you talk to a Black woman. This is not a good idea for you.

0:56:22 Thomas: She doesn't.

0:56:24 Melissa: I don't know. It's sharp. I was just like... I don't know, but you could say that to me maybe two times at work before I'd be like, okay, we're done here. I feel that's kind of how Justice Jackson is too. Like, okay, Like, it's time for a footnote. I think the Republicans are there. I think, you know, Justice Sotomayor, she really does like to be friends with her colleagues. It was like this on the Second Circuit. Like, she hung out with them. Whenever we sat with different judges, we had to have lunch with them, and I mean, she's a great person. I mean she really believed in colleagueship. I think Justice Kagan, you know, maybe this is sort of a remnant of her time as dean of Harvard Law School and just sort of bringing these warring groups groups together at Harvard, I think she too values collegiality. Justice Jackson, though, is so interesting to me because, you know, she came to the court from having lived in D .C. for a very long time. So when she came onto the court, it wasn't like she was looking to her colleagues for a friendship in any way. I mean, she had a life outside of work. And so I think she could approach it with the kind of like, this is my job. This is not where I find my friends, where I'm hanging out. And I think it might be a little different

0:57:37 Melissa: For the other two who are not DC denizens, like Justice Sotomayor already had this bent toward colleagueship. And then she was coming from New York and she hadn't lived in DC ever. And maybe this was kind of initially a built -in community. I do think that... Who wants to be friends with these guys? I don't. I mean, I just think it... Yeah. I imagine it's frayed in a lot of ways, but I think initially the impulse was that, eh, I can get along with anybody. I don't know if that's true anymore.

0:57:55 Thomas: I can't imagine it. Truly can't imagine it once you befriend him enough to get the skincare routine, why he's still talking to him. You know what I mean? Like get those details for sure.

0:58:11 Melissa: What did he do? I mean, it was like he was – the

0:58:14 Thomas: It's the flags. I'm telling you something about the, If it's something, it's the only variable. Yeah, they're silky soft. I don't know.

0:58:17 Melissa: Flags, I don'T know. Like are the flags soaked in glycolic acid?

0:58:22 Thomas: Could be.

0:58:23 Melissa: I don' t know.

0:58:24 Matt: But most of all, we really appreciate your time. This has been a lot of fun. And of course, I don't think anybody listening to the show needs to be reminded that strict scrutiny exists, but of course everybody can hear you there anytime. And the book is The U.S. Constitution, A Comprehensive and Annotated Guide for the Modern Reader. Again, our book club section for this month. Anything else you want to plug while you're here?

0:58:43 Melissa: Thank you so much for having me. Thanks so much for making a whole cadre of modern readers in your podcast ranks. I appreciate it. This has been great.

0:58:52 Matt: Happy to do it.

0:58:52 Thomas: Absolutely. Thanks for taking the time.

0:58:54 Melissa: My pleasure.

0:59:30 Thomas: Men will write a constitution rather than go to therapy.

0:59:34 Melissa: Like hyaluronic acid, glycolic, what are you doing?

0:59:40 Matt: Together with your... I'm so sorry. I don't know why it's so hard to say the name of your podcast.

0:59:45 Melissa: I know after you tape, you crush beer cans against your heads and wax your backs together.

0:59:48 Matt: That's right. That's correct.

0:59:50 Melissa: Yeah.