The liberal legal establishment deluded itself that judging was apolitical, America is stuck with the consequences

Episode Summary

The John Roberts Supreme Court has been one of the most reactionary high courts in American history, overturning numerous laws and precedents about abortion, voting rights, gun safety, and many other issues. The Republican-appointed justices have also frequently abused the court’s “shadow docket” emergency procedures to temporarily empower President Donald Trump.

The rulings have come so fast and so thick have caused shock and outrage in America’s liberal legal establishment. One law professor likely spoke for many when she told the New York Times that: “While I was working on my syllabus for this course, I literally burst into tears. I couldn’t figure out how any of this makes sense. Why do we respect it?”

And yet, if you look at the long-term history of the American judiciary, what Roberts and his Republican colleagues have been doing is exactly what you should expect. Courts are supposed to preserve legal structures, and that makes them inherently conservative.

Tragically, however, the liberal legal establishment could not see any of this coming. That’s because after the Earl Warren Court of the 1950s, the legal left has been dominated by a philosophical approach called “formalism” which argues that jurisprudence is almost a form of science in which totally objective judges will scrutinize the law to arrive at obviously true conclusions to expand civil rights and restrain private coercion.

Needless to say, judicial activists like Sam Alito see things very differently—and they now have the ability to try to remake America in their authoritarian image thanks to Republicans’ intense focus on court power.

Legal formalism has been an absolute disaster for America, and yet despite the chaos and injustice it has enabled, many Democratic politicians and legal mavens are still reluctant to embrace the reality that all jurisprudence is political.

Elie Mystal, my discussion guest today, has been making that case tirelessly in his columns for The Nation magazine and in his books, including his latest, Bad Law: 10 Popular Laws That Are Ruining America.

The video of our conversation is available, the transcript is below. Because of its length, some podcast apps and email programs may truncate it. Access the episode page to get the full text. You can subscribe to Theory of Change and other Flux podcasts on Apple Podcasts, Spotify, Amazon Podcasts, YouTube, Patreon, Substack, and elsewhere.

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Audio Chapters

00:00 — Introduction

10:41 — Philosophy and science abandoned belief in total objectivity, but legal scholars didn’t

17:15 — Legal formalism as the perfect justification for law schools

27:12 — Legal realism explained

38:22 — Critical legal studies and integralism

43:34 — Going back to legal realism means we have to restrain judges

48:09 — The Warren and Burger courts were anomalies that distorted liberal understanding of jurisprudence

53:17 — Because judging is political, it must be restrained

59:00 — Making courts matter to voters

Audio Transcript

The following is a machine-generated transcript of the audio that has not been proofed. It is provided for convenience purposes only.

MATTHEW SHEFFIELD: This is going to be a fun discussion. I don’t get to do legal philosophy very much on this podcast, perhaps even ever. I’ve been looking forward to doing this and, a lot of people are not as able to throw down with the legal formalists as yourself. So this will be fun.

ELIE MYSTAL: I do it all the time. My uncle is actually a professor of philosophy at the University of North Carolina, Charlotte. So this be like Thanksgiving for me.

SHEFFIELD: Okay, hopefully in a good way! All right, [00:04:00] okay, so before we get too deep into it, let’s define legal formalism. What is it and what are the main ideas of it?

MYSTAL: Yeah, so my definition is that legal formalism believes that the law is an objective thing that is written down. And if you simply read the text, if you look at the case law, if you look at the history in the presidents and the precedents, you, me, Joe Blow on the street, anybody can figure out the right legal answer by simply applying reason and logic to the words and text on the page.

And that’s it. And that there’s a structure, there is a process for how you interpret certain words, how you deal with certain precedents how important it is it that the comma in this sentence is here and not there. What’s the subjective clause? What’s the operating clause like? All of these truly.

Linguistic disciplines, right? If you think of yourself as like a, an English professor or, or or a writing teacher, right? you can use all, you can use your Strunk and White to figure out what the law means, what the law should mean and thus what the right outcome.

And again, there is a right outcome. What the right outcome of the case, the analysis, the issue should be.

Originalism itself is a form of formalism, right? it’s an offshoot, of what we’re talking about.

And, formalism has a long and deep history both in this country and in England, right? formalism, I believe, you could argue, was at its height in the 1920s, right? In, in, the 1910s the older court really delved into this conception that. The law was an objective, rational thing [00:06:00] that could be understood through reason, and logic, it’s always been part of our tradition and it’s there I think on both sides.

I think on both the right and the left, it’s there to insulate judges from the real world consequences of their decisions, right? if I can say, look, I don’t have an opinion on whether. Black people are people. I don’t have an opinion on whether gay people should have rights. All I can do, I’m just a lowly judge.

All I can do is look at the text and the documents place before me and make a call on what the language means, or what the language should means. Means that protects you from, conceptually speaking, that protects you intellectually from having to stake out an opinion, a belief structure, a worldview, and all of that messy political stuff that a lot of times judges like to say and like to pretend that they are above, And so at its core, legal formalism to me has always been a judicial self-defense mechanism. a way for judges to. Again, insulate themselves from accusations of political feelings of of trying to impose their worldview on the elected branches and all that.

And I think that’s why both sides cleave to it even when it can sometimes make them look absolutely ridiculous.

SHEFFIELD: Yeah, absolutely. It is self-justifying, and we’ll get into that a bit later, but yeah. And it’s important to note the time period, because as you were saying, during the early 20th century is really when it was all the rage. But it was a de facto system even continuously after that.

That time period coincides very well with logical positivism which was a fad within [00:08:00] philosophy around that same time period, which basically it was like a souped-up scientific realism that said that not only is there a real world in which we live, we can know literally everything about it through science.

And so with that, all moral questions are simply scientific questions that haven’t been adequately examined. And it was a very popular idea around that time.

MYSTAL: Yeah, although I think most people are more familiar with it in the field of economics. The invention of economics, the idea that we can understand markets and money and the flow through essentially science and impose that scientific understanding on our economic structures that our economic structures should be built for.

And I think that’s always a point that I like to dive into the whole conception of our economics, of our economic science is that the point of economics is to make more money, not to increase social justice, not to better the lives of the citizens, but just more, more is the point.

In the same way, legal formalism kind of draws from that economic idea draws from that scientific idea and presumes that the point of legal analysis, the point of judging, the point of the judiciary is to apply logic, is to apply reason, not necessarily to apply justice.

SHEFFIELD: Yeah.

MYSTAL: That to me is always the black hole, if you will, at the center of all of this. What are you act, what’s the gravitational pull? What’s actually pulling you in one direction or another?

And I think for a lot of legal formalists, the black hole at the center, the thing that’s pulling them is an idea of logic, not an idea of justice. Now, they’ll argue that [00:10:00] we achieve justice through logic.

That’s an argument I don’t know that I always agree with it, but I don’t think that it’s necessarily wrong. But you know what, has the bigger pull, right? It’s the black hole or the sun. The sun has a lot of gravity, right? But if you’re next to a black hole, the body is going to go towards the black hole.

And, to me, the black hole is this again. Idea, this intellectual thought of what’s reasonable, what’s logical, what’s defensible, as opposed to the intellectual thought of what’s just, what’s good, what’s fair.

SHEFFIELD: Yeah. It’s justice as a side effect basically. You’ll get it if you do this other thing.

MYSTAL: Yeah, that’s right. That’s right.

Philosophy and science abandoned belief in total objectivity, but legal scholars didn’t

SHEFFIELD: Within philosophy, though, philosophy, logical positivism and philosophy of science, it got basically destroyed after World War II essentially by people like Karl Popper.

And, a lot of the postmodernists, they showed that if all of these things were objectively true, then why did we just have a war in which tens of millions of people died? Like that’s a pretty intuitive argument, right there. And it was hard to argue with it.

And so within philosophy, logical positivism was dead, pretty much. Dead and buried in the ground, like nobody was pushing that idea. But within the legal system in the United States, it got institutionalized almost immediately.

It was a comforting story that law professors told themselves. And the New York Times they had an interview asking legal professors, what do you think about this John Roberts court, and one of the professors that they had talked to was saying something like, this is basically undermining everything that I’ve ever understood about the law, and it’s making me question everything and making me traumatized.

And I’m just looking at it and thinking this is what happens, and why you never go full legal [00:12:00] formalist!

MYSTAL: Welcome to the world you’ve been living in this whole time. I love Matt, your analogy, or your reference to World War II, and how that killed an idea of scientific objectivity. One of my favorite episodes of my favorite podcasts is Dan Carlin’s Hardcore History, and he does an episode called Logical Insanity, And how the use of nuclear weapons was the logical thing to do from the perspective of the people who were making the decisions.

And it made all other horrible, genocidal decisions all the way up to that point in that war. it’s amazing what tens of millions of dead people will do to your philosophical theory, right?

It’s amazing how just the reality of bodies on the ground forces you to reconsider your intellectual priors. And that is something that I would argue in a way hasn’t really happened to the law-- you haven’t really had. There is no nuclear weapon. There is no bomb that goes off and people are like, oh no, what have I wrought?

We might be seeing that now. We might be right now. And this what this links up to your Times quote, we might be living through the logical insanity of legal formalism and where that leads us and where that leads the country. And the suffering and injustice that it causes that might make the next generation reject this whole cloth, come up with new ways and new methods of interpretation because we are right now seeing the logical conclusion of legal formalism.

SHEFFIELD: Yeah. Exactly. And with regard to World War II, everybody who was involved with it said that their beliefs were the objective scientific reality. That was the centerpiece of the Nazi propaganda. We are just doing science [00:14:00] with this here.

And science says that, this is, we need to kill these people, and we need to invade these countries. This is objective, because we’re the superior ethnicity and race. And it became so absurd that logical positivism collapsed under its own weight and under a lot of criticism.

Nonetheless, it, legal formalism, its counterpart in the legal system, became very entrenched, and as you noted, both in left and right varieties of itself. And so it was a way to justify for courts that it basically boils down to: it’s just business.

It’s just business. It’s not personal—like that classic line that someone says when they’re screwing you over. I don’t mean, I don’t mean anything against you. I’m just doing something really awful. But don’t worry, I don’t mean something bad by it.

MYSTAL: Yeah. No, I never trucked with that. I never trucked with that, even when I was in law school. I so, an offshoot of legal formalism that you’re talking about is called law and economics. It’s the idea, it’s most famous acolyte is judge Richard Posner, who’s a incredibly intelligent man.

I’ve had the opportunity to interview him and disagree with him and lose live he he’s a brilliant man. I completely disagree with his philosophy. And his philosophy is that of law and economics, that the, as I was saying earlier, back economics, the goal of economics is more law and economics presupposes that the goal of law is to make the right economic decision. That the goal of law is to make the decision that will produce the most economic benefit.

I disagree with that wholeheartedly to the point where. The first time I was exposed to this theory I was a first year in law school in my torts class. And the, my torts professor was a law and economics guy, and he was shoving law and economics like down our throats. [00:16:00] And just every day I was just, no disagree. That can’t be right. Like I, I was not having it.

So we get to the final, and at least when I was at Harvard, your final is 100% of your grade. it’s one test, written exam, open book, eight hours, 100% of your grade. And my torts exam had three questions. And the third question was, people like Elie Mystal will argue that the tort system is a lottery. Explain why he’s wrong.

SHEFFIELD: Wait. It literally said that.

MYSTAL: It literally says people Elie Mystal will say this. Explain why he’s wrong. And I was like, this MF this guy.

SHEFFIELD: Hah!

MYSTAL: I was like, I’m going to take my B, I’m going to take my B. And I wrote, in fact, Elie Mystal is not wrong. And I just answered the question. And so I got my B plus and I was happy with that.

But yeah, but I’m saying like the point of that story is like, law and economics is endemic to how they teach law students. And it’s just, it’s something that I’ve always rejected. But I am in the minority.

Legal formalism as the perfect justification for law schools

SHEFFIELD: Yeah. And on the law school point, legal formalism is the perfect justification for law schools to exist because it’s fake science essentially, is what we’re talking about. This is, that’s what legal formalism is. It’s a pretension of objectivity.

And you brought up English professors, but you get two English professors in a room and you ask them, tell me about Voltaire’s Candide. Does it mean x? And you’ll get 20 different opinions out of two people on what that novel means. And the same thing obviously is true with regard to legal stuff.

And here’s the thing. It doesn’t [00:18:00] mean that because we’re criticizing it here, it doesn’t mean that we’re saying that there are no cases where an objective outcome is possible. It doesn’t mean that. It means that the burden of proof is on the legal formalist to say that it always exists and that it’s always discernible.

And they never bother to do that.

MYSTAL: Yeah Matt, you’re hitting close to home because I am one of my more radical ideas and my more radical proposals is about the how we need to massively rethink how we do legal education in this country. I’m no fan of our current, 232 law school system where, 90% of them are diploma mills and three of them are teaching the next Supreme Court justices.

And there’s just not a lot in between. I think we should have a two-tier, at least a two-tier law school system where we have one group of schools that is really focused on training the next judges, right? The next the next legal arbitrators, if you will, whether that’s a judge or an arbitration person and really focusing the mind on the structures and the skills that one needs to judge.

Which are different than the other law schools, which should be focused on teaching the next generation of lawyers, the next generation of practitioners, the next generation of people who will do client services. Because those are two different things. Like what you need to do, one thing is somewhat completely different than what you need to do.

Another thing and in particular point what you need to do the client service stuff shouldn’t take three years as current law schools do and shouldn’t cost, the mortgage of a house, like it should not cost hundreds of thousands of dollars to get through that experience.

One of the reasons why we have a justice gap in terms of attorney representation is that people coming out of law school have so much debt that [00:20:00] they can’t take on the poor, the vulnerable, the needy client they have to take on, have to is not correct. They are compelled to take on the rich, the powerful, the insurance company clients because that’s how they’re going to pay back their debts. And if we had a different law school system where we were producing practitioners, after a year and a half people graduating from school with 20 grand in debt, 30 grand in debt, as opposed to 200,000 in debt, 400,000 in debt.

You’d develop a crop of lawyers who were able to assist clients in need. That’s one huge distinction, tiering I would make in the law school system. And then I would try to encourage more people to pursue something along the lines of a PhD in legal philosophy, right? PhD in legal history. Because that’s another thing that law schools try to cram in there over three years while taking all your money that most lawyers don’t need at all yet.

Some people are super interested in and that can be, the, if you, so if you think about it, you need one track for the people who are going to be judges. One track for the people who are going to be law professors, and another track for people who are going to be actual lawyers.

Law schools right now, they try to do all three things and they do it poorly. They do all three things poorly

SHEFFIELD: Yeah, that’s right. And

MYSTAL: Except for Yale. Yale does it all good, but except for Yale, they do all.

SHEFFIELD: Yeah. And your idea here, large language models, the new LLMs, are basically going to force this. Because all low level legal work, because most people who come out of law school, they get stuck doing document review work, very basic research for cases and a large language model, they can do that stuff actually very well, in, in many cases, better than humans. Because, they, they are able, [00:22:00] they know a lot more synonyms off, off of the top of a calculation compared to us. Like there could be, like on a given word there might be 20 or 30 different ways of saying one word.

And a human might only know off offhand, maybe 10 of them. So like this is going to completely destroy all entry level legal jobs. And so we have to, they have to be, the law school environment has to be optimized for litigation because obviously a computer LLM cannot do that.

MYSTAL: Litigation and service. one of the, one of the, one of the real, I think, failures of law school is that they don’t teach people how to serve people. Law. Law, being a lawyer is a service industry. One of the reasons why I didn’t like it being a lawyer is because it’s the service industry. Right? One of the, one of the reasons I didn’t like it is that at the end of the day, you’re the guy who’s okay, Mr.

Client, would you like fries with that? you are providing, person to person, flesh to flesh service. And law school doesn’t train you to do that very well. And a lot of people who end up in law school turns out they never wanted to go into a service industry. They want to go into an academic industry or judicial industry.

Like they’re and they’re they’re, that’s one of the reasons why you have so much sadness and I think disappointment and uncertainly drinking and drug use in the legal profession is that you got people mismatched, serving in a service industry when they had no intention or skills or abilities to do that.

Yeah. So there’s a

SHEFFIELD: And they’re 200 grand in the whole on top of it.

MYSTAL: Right. But they got to pay the bills and they got to pay back that debt. So there, there are a lot of, there are a lot of problems with how we teach lawyers that, and judges that then lead to some of the problems with lawyers and judges that we’re talking about now.

SHEFFIELD: Yeah. and legal formalism. Yeah. It’s like the perfect justification for all of this bad system because it’s no, we’re, we are [00:24:00] unlocking the secret to reality basically for you. And we happen to know what it is. So

MYSTAL: People should note. People should note, like if you go back and read a really old opinion, a, an opinion from, 18, 18, 10, an opinion from 1845 if you, your, the language is archaic so that will trip people up. The we don’t talk or write like they did in 1845, but if you were comfortable with the language, you would be able to understand it without a law degree.

You would be able to understand what they’re saying without a law degree, because back in the 19th century, they wrote with clarity, they wrote with the idea that. Non legally trained people should be able to understand their decisions because they understood that non legally trained people would have to enforce their decisions.

And so of course, they needed to write in a way that the average Joe, if you maybe a slightly above average Joe, but like the average Joe could understand what they were saying. Fast forward to reading an opinion today or really reading any opinion post 1960. And it’s jargon on top of jargon nestled into procedure, right?

It’s just you have to have gone through the three years or more or so of legal training to understand what John Roberts is saying today. And that is actually. Historically speaking in America new, it is new that the average, relatively speaking, it is new that the average person has almost no opportunity to understand a Supreme Court decision.

That’s a bit weird, right? And it’s and it creates a social stratification, right? It creates a educated class, an elite class, a ruling class of law people of law [00:26:00] understanders, who are then allowed to explain to everybody else what the law means, right? So that you, the average person, aren’t allowed to figure out for yourself what the law means.

You, the average person, aren’t allowed to noodle out for yourself what your rights and responsibilities are. You have to pay a lawyer to do that, right? Isn’t that convenient? It’s you have to pay money in order to understand simple things like your rights or your contracts, or think about a contract.

That’s a great way of thinking about it. How many people, how many business people can write a contract for their business without a lawyer? And the answer is almost nobody. Almost nobody. You almost certainly, if you are a, if you are a small business all the way up to a Fortune 500 con company, you got to have a lawyer to write your contracts.

You have to pay a lawyer money to write your contracts because the law has become so formalistic, so jargon heavy, so procedural that you, the average business person cannot write your own business contract. That’s new. That’s not how it was in the 19th century.

Legal realism explained

SHEFFIELD: Yeah, that’s that’s a great point. And it undercuts the originalist idea that they’re trying to preserve some sort of antiquated understanding of the law. But that takes us to the next part of the discussion here, which is that so we’re not going to have a big long legal philosophy seminar here, but basically there are two other alternatives to legal formalism, we can say, boil it down very broadly that the alternatives are realism and critical legal studies. And and as you described yourself at the beginning, you are in the realist camp. So what is legal realism?

MYSTAL: Yes I am most definitely a legal realist, so my form of legal realism. Is the particularly harsh political kind, right? My thought is that judges [00:28:00] make their decisions based on any number of factors, their personal beliefs, their political beliefs, their religious beliefs, all the things that go into a person.

That is what the judge is drawing upon to make their decision. And then they work backwards. They want to get to a certain outcome, either for political or personal or social reasons. And then they work backwards to figure out how they can achieve the outcome they want. They’ll use whatever’s at the table.

They’ll use formalism if that’s helpful to get to their outcome, but they’ll ignore formalism if it’s unhelpful to get to their outcome. That there are very few ju there are no judges. Do this 100%. And, you can always find, even the most formalistic judge, you’ll find a case where they abandon whatever.

Procedural and intellectual principles they have in order to get to the determinative outcome that they seek. And so when I’m talking about legalism, that’s really where, I’m coming from that you have to understand who the judges are as people both stop it though. Sorry. You have to understand who the judges are as people, both as intellectual beings, as social beings, as religious beings, as racial and gender beings.

You have to understand who they are as people to understand the decisions that they’re going to make. And if you do that, you’ll find that your ability to predict how the case is going to go shoots up the roof, right? Like you, I will, win the crystal ball bat bet I will win fantasy SCOTUS against anybody who thinks that the.

The texts of the statutes and the texts of the cases and the particularities of the issues, I will win against anybody who thinks that those matter, just by having a better understanding of who these judges are as [00:30:00] people.

SHEFFIELD: Yeah, that is very, accurate. And it actually reminds me of a conversation that I had with somebody. I’m not a lawyer, but I write about law stuff a sufficient amount that lawyers sometimes ask me opinions about what they should say and or how they should word things.

And I was having a conversation with somebody one time and this person asked me, okay, what should I, what do, should I say A or B in this brief here? What do you think? And I said, what’s the political party of the judge? And they looked at me and I had two heads, and I was like, this is actually very relevant here because this is a clear distinction between, a conservative and a right wing inter interpretation, what you’re asking me here. And they were like, I have no idea what it is, and it doesn’t matter. And I was like, you got some news for you. It does matter. And they got and very huffy at me for daring to suggest that their precious judge would have political considerations in the case.

And it turned out I was right. but I didn’t rub it in. I’m only rubbing it in now anonymously.

MYSTAL: Yeah the look I have that fight with journalists all the time. Where, recently in my career, recently, like halfway through my career, I started proactively when I refer to a judge, refer to either their political party or the president that appointed them. 10 years ago, people didn’t do that.

You read the Adam Liptak, the New York Times, he still doesn’t do that. the, idea that you have to put the party affiliation of the judge when you are explaining a judge or a decision to anybody, that is, again, that is incredibly new. And I’m one of the people that’s made it new that’s made it a thing that now most people do, although they’re still old school journalists that don’t, and that is that, that is, if you will, legal realism 1 0 1 as applied to journalism, right?

I’m going to, I’m not doing my job as [00:32:00] a journalist if I’m not telling you Elena Kagan appointed by Clinton Amy Coney Barrett appointed by Trump. I’m not doing my job if you don’t know that. So that’s one kind of definition of realism. The other definition that I find useful and that I clinging to quite a bit is the idea that you have to look at the.

On the ground realities of the decision as part of your decision making process, right? that, that the, real world impacts of your decision matter and should matter as you’re making the decision. And this is such a controversial point to many judges on both the right and the left. And I’m not saying like the right believes one thing and the left believes another thing I’m saying that you can find interesing battles.

Amongst the right and the left over how much to consider the real world impact of their decisions. And I am, an extreme to the side of the real world impact to of the decisions is one of the only things that matters. but there are people on my side of the aisle, if you will, who would disagree with me and say that, looking too much at the real world impact of your decisions leads to worse decisions.

So that’s a live battle. And I’m on the side of, I apologize for that. My dog has seen a squirrel that she does not like stop it.

SHEFFIELD: It’s an

MYSTAL: And so the idea is that so yeah, I’m on the extreme side of saying that the decisions are, the real world impact is some of the only things that matter.

We can see this battle play out at the Supreme Court over the issue of abortion, right? If you go back to 1992 and you look at the decision in Planned Parenthood v Casey, which is the decision, the 1992 decision that upheld Roe v. Wade, what you have is a bunch of [00:34:00] conservative judges of justices, a bunch of Republican appointed justices who hated abortion.

People think that the court is unbalanced now because it’s six three Republican. In 1992, the court was eight to one Republican appointees over Democratic appointees. And the one democratic appointee was a guy who voted against Roe v. Wade, right? So if you’re coming at abortion in 1992, you, think you have it locked.

You think you have it won and you don’t because two of the Republicans, Sandra Day O’Connor and Anthony Kennedy did legal realism. Senator Day O’Connor famously says abortions will happen whether the government wants them to or not. And so in her upholding of Roe v Wade, which is a decision she didn’t agree with upholding of abortion rights, which were rights that she didn’t agree with.

O O’Connor was no fan of abortion, but she rules in favor of abortion because of the real world impact of taking that right away. Fast forward to Dobbs v Jackson Women’s Health. Fast forward to 2022, and you have Sam Alito telling us that we shouldn’t at all look at the real world impacts of abortion rights or the real world impacts of taking them away.

That’s a difference that happened within the Republican justices. Within the Republican party. Again, when I say that formalism is a way for judges to protect themselves, it’s a re it’s a retreat. It’s a, I don’t ha, Sam Alito is falsely telling us he doesn’t have an opinion on abortion rights one way or the other.

He just

SHEFFIELD: Where it’s not relevant. Yeah.

MYSTAL: He just thinks that the real world impact is not relevant at all. It’s a shocking turn that’s happened again, 1992 to 2022. It’s a shocking turn that’s happened within our, all of our lifetimes.

SHEFFIELD: [00:36:00] Yeah. And I would say that it, in this particular case at least on the right that it really shows that there is a distinction between conservative and reactionary. Like a conservative is somebody who says, look, there might be a law that I don’t like. what, this is a thing that millions of people have built their lives expecting to exist.

And so I’m not going to take it away from them, like that was classic Dwight Eisenhower when he came in after Truman and FDR had created all these programs that he wasn’t necessarily want, wouldn’t have supported when they were doing it, but he was like, look. Our economy is literally built on these ideas now. So I’m not going to get rid of Social Security. I’m not going to get rid of all these new departments because that would be foolhardy and destructive to the nation.

And so that’s what an actual conservative does. A reactionary says no, this is all evil. We need to go back to 1910 or 1847 or some insert pre-Civil War year here.

And and that’s what we’re going to do. And they don’t care who it impacts or who it hurts because, they have this imagine past that they want to go back to.

MYSTAL: Look, the word evil is important here because I do think that it, again, as a legal realist, I think that evil is a word that should be used in law, that should be used in making decisions. And I would, it’s going to sound weird. I would’ve preferred it, I would’ve preferred it as a legal proposition if Sam Alito come out and said, abortion is evil.

If Sam Alito come out and said we, are overturning Roe v. Wade, because abortion is an evil scourge on the country, that must be stopped, that would’ve been a truthful for what he believed, as opposed to the bull crap that he wrote. B. It would’ve made the fight obvious, right? Like, that’s, and thus it makes it easy, easier to overturn, easier to fight politically, whatever you [00:38:00] want to say.

But it is clear to me that justice is like Alito Thomas Roberts. They think abortion is evil. So just say that stop hiding behind your jargon. Just say that you don’t like it and say that you’re overruling it because you don’t like it, because that then opens the aperture for what the people who disagree with you can do.

Right.

Critical legal studies and integralism

SHEFFIELD: Yeah, it lets them know what’s at stake, for sure. Yeah. All So the other alternative, the main alternative to discuss here is critical legal studies or critical realism as sometimes it’s called. So let’s talk about that.

MYSTAL: Yeah. So I don’t, this is, this now is a little bit beyond me, right? My understanding of critical studies is like a law school understanding of it. Which is that you have to look at all of the history of you, if you will, of the case law. first of all, I guess we have to start with, we have to understand that America is a common law system.

That means that most of our laws are not written down. Most of our laws are are based on precedent, right? so because this old white guy did it in 1790, then this other old white guy agreed with him in 1812 and so on and so forth. And we get to a point where wherever we are today, right?

And critical realism is to look at the factors. Involved in the decisions in 1790 and 1812 and so on and so forth. Until we get to a point where we can understand why they made their decisions, that’s why it’s a form of realism, right? We have to understand who these people were, the society that they were living under and we accorded presidential value or not, based on how much our society is different from their [00:40:00] society.

So an example of this, you could argue is Brown v. Board of Ed. Now, I struggle a lot with Brown v Board of Ed because as a black man, brown v Board of Ed is one of the most important decisions to ever have been made. My mother was born in 1950 in Mississippi, right? Brown v. Board of Ed is why my mom could go to the library, right?

So Brown v Board of Ed is a critically important decision, literally to me personally, to say nothing of, I think its larger effects on the country, and yet it is stupidly written like, oh my God, I like it. It is almost laughably ridiculous in terms of how they reasoned their way into overturning Plessy v Ferguson People, a lot of people don’t know this.

My man Warren was looking at dolls, right? And I’m not. Making that up at all. One of the, one of the ways he reasoned that s but equal was unconstitutional was based on a study of black girls playing with dolls and how they found the black dolls to be less good than the white dolls, even though they were black girls.

And somehow this shows that segregation is bad. And I’m like, brother, what? What dolls? Are you kidding me? Like that? That’s a critical realism theory. That is that, that is looking at the differences between the society of Plessy b Ferguson and the Society of Brown B Board of Ed that is looking at new science.

It’s a study. To inform your opinion, but man, that’s not how I would’ve rolled with it. That’s that I, again, I would have been [00:42:00] much more comfortable saying, guess what? Segregation is evil. We’re overturning it, suck on it. Like, again, my re my, my, so I do make a distinction between legal re realism and critical realism.

Because I think legal realism is cleaner. I think critical realism is trying to get to the same point than I’m already at through a lot more bs.

SHEFFIELD: A lot a lot more hoops to jump through. Yeah and in a way I think, you could argue that perhaps and I’m I’m violating my idea of saying only two of the philosophies here, but in, in a certain sense it is. I think critical legal realism is like a more left counterpart to what exists on the far right.

This idea of integral of, that the role of the legal system is to, integrate the tr religious doctrines of my personal religion into society. And we’re going to, we’re going, so we’re going to cite to, Pope j John the 11th amount something on this here.

And we’re going to cite through the Bible on this other case. And we’re going to look to these things that have nothing to do with the legal case because they are representative of the values we want to ensconce. That’s how I see it.

MYSTAL: I think that’s right. And I just, I, there, there are cleaner ways to do it. There, there are, there are, look the danger of what I’m saying, right?

Going back to legal realism means we have to restrain judges

MYSTAL: The danger of my position that I’m well aware of is that if you untether judges from any sense of text from any sense of precedent, from any sense of history, all you get are politicians in robes. And while that might be fine, the problem is nobody elects these politicians in robes. In a Democratic a [00:44:00] self-governing republic, we are supposed to elect the representatives who make the laws for us and decide the important issues. For us, we’re supposed to have a vote in these decisions.

And judges, you don’t vote for. So the judge shouldn’t have the power to make political decisions based on their whatever, on their personal beliefs, on their personal feelings, on their religions, on their race, on their creed because nobody voted for them, right? And where I take us to is a form of a judici a form of overpowered judiciary, where they are in the platonic sense, right?

Philosopher, kings lording over the rest of society that nobody voted for. So the way that I handled that criticism, the way that I cut that criticism is to say that while I am a legal realist, why I believe that judges are in fact politicians in robes because nobody voted for them. I think judges should have way less power than they do in our society, right?

I want to understand what a judge is, but then truncate and limit the power of the courts. To the point where whatever it is, where it’s not as powerful as it is today.

SHEFFIELD: Yeah.

MYSTAL: My idea there tracks globally. A lot of Americans don’t understand that the American Supreme Court is one of, if not the most powerful high court in industrialized democracies.

Other countries, high courts do not have as much power as the American Supreme Court. Other countries’ high courts do not regularly overturn laws passed by their parliaments overturn orders issued by their prime ministers. That doesn’t really happen elsewhere. It happens every June here. It [00:46:00] doesn’t it, it’s a rare thing for it to happen elsewhere.

That’s why in most other countries, people don’t have any idea who the justices are on their high card. They don’t know. they’re not, because it doesn’t matter right here, we don’t know because we’re stupid and we’re poorly read. But in other countries, it doesn’t matter who their high court does.

It’s not a life or death political fight every time one of these octogenarians dies or chokes on a ham sandwich or whatever because their high courts don’t have as much power. So my response to the criticism of legal realism is always to significantly truncate and limit the power of our Supreme Court and our federal courts in general, so that they can’t run roughshod over the elected branches of government.

SHEFFIELD: Yeah. and that also as a very originalist in historical context as well, Elie because like that the idea of the courts as the quote least dangerous branch is that was the unanimous belief among all of the signers of the Constitution that we’re prominent is that we have records of basically you.

MYSTAL: I’ve made the joke. Matt, I’ve made the joke before that so Hamilton writes the courts will be the least dangerous branch in federal 78 because they have neither the power of the purse nor the power of the sword. That means they have neither the power to tax like Congress does, which is the power to destroy according to the founders, nor the power of the sword, that means that they’re not the president, they’re not the commander in chief. They can’t use the military. So Hamilton says that they will not be that important. And I’ve made the joke, Matt, that the next time Hamilton would be that wrong, he’d be shooting his gun up into the air in Hoboken, right?

like Hamilton was just wrong, just straight. And all of them were just straight up wrong and they were wrong almost immediately. Marbury versus Madison, John Marshall in 1803 proved them wrong [00:48:00] almost immediately. They proved them wrong in their lifetimes,

SHEFFIELD: And they didn’t do anything about it, like those assholes.

MYSTAL: Do a damn thing about it.

The Warren and Burger courts were anomolies that distorted liberal understanding of jurisprudence

SHEFFIELD: Yeah. so besides the historical context though, the other thing is that and this was the allure of legal formalism for the, for liberals, is that it became ensconced exactly around the time period of the Warren Court.

And so it became a self-justifying theory for the Warren Court’s decisions and the Burger Court which was only slightly less progressive in its rulings. And the problem is the legal system is inherently conservative, and inherently biased to the right because it is based on, we have to preserve what order exists right now.

So that is an inherent conservative object for them to strive towards. And as you said, it’s not about justice, it’s literally about legal order. that’s the de facto pursuit of all legal systems. And in some ways it, you could say it, it probably has to be that way, right?

MYSTAL: Yeah.

SHEFFIELD: Because there would be chaos if it wasn’t. And but, so essentially legal formalism, this is why it’s so pernicious, is it became a way for people on the political left to justify a conservative institution. That historically up until only the Warren Court, so the entire history of the United States before and then subsequently to the Burger Court, it was and has been and is, a conservative and reactionary institution. So this was liberals literally saying, here, take this gun and point it at my head and point it at America because I like this five or six rulings. That’s what happened.

MYSTAL: Warren and Burger destroyed intellectually [00:50:00] an entire generation of liberals. Just an entire generation of progressives. I could argue two generations of liberals and progressives because of exactly what you’re saying, Matt. That because for 20 years there, disregarding the entire previous history of the court and disregarding the entire post Burger, Rehnquist, into Roberts history of the courts.

For 20 years there, the court was a progressive force of social change, every other time in American history, the other 230 years there are regressive conservative force against social change. But for 20 years they were forward thinking. And because they were forward thinking for 20 years, it created in liberals a false and ultimately defeatist reliance on the courts as the institution for social change.

The courts are not an institution for social change. They shouldn’t, as you pointed out, they probably shouldn’t be an institution for social change. I argue that they can’t be a, so an instrument for social change because the society does not elect them to change the society, right? So all of these kind of intellectual and structural vales, retard the progress of the court.

The court is a retardation on the progress of our country. But because of the Warren court, because boarded, which I just talked about, because of the civil rights stuff, because of Roe v. Wade, for an entire generation or two, liberals got the false impression that the courts were their friends and they’re not. And it’s something that you have to, that we haven’t.

So to the point where you get the first black president, you get a, the first black president who also happens to be a Harvard educated constitutional scholar, and he’s thinking that the courts are going to [00:52:00] uphold his agenda because he has been. He has been bamboozled by, because he came of age during those 20 years when the courts were actually our friends.

And he completely, I, I could argue that, the, I’ve argued before the biggest failure of Barack Obama was trying to appoint Merrick Garland and not filling Scalia’s seat. That is it. I want, I don’t want to say Obama had one job, but he had three jobs and that was one of them. And he failed that job massively. Failing to appoint a liberal to replace Scalia was a massive failure.

And I know that’s McConnell’s fault and we can, people can blame McConnell for that. But like Obama was the president at the time, he should have found a way

SHEFFIELD: Oh, and he didn’t even tell the public really what was going on. Like they would’ve been outraged if they had heard about it. I

MYSTAL: that was mission critical and it was a failure, but it’s a failure because of what we’re talking about.

It’s a failure because of a reliance that the courts are fundamentally reasonable, fundamentally forward facing fundamentally socially just, and that’s just not what the courts are or have been throughout American history, but for, again, 20 odd years in the middle there.

Because judging is political, it must be restrained to be lower than Congress

SHEFFIELD: Yeah, and this was this was I think a system-wide failure on the political left outside, not just the legal system as well, and what they didn’t get ultimately is that the best way to protect democracy is to practice it. Be, you can’t protect democracy by saying, we’re going to have this small cadre of people and they’re going to make the right decisions.

That, that’s inherently anti-democratic, is what you’re doing. And you can’t do that. And, and I, and the example I sometimes give on this point is that, you look at. The the healthcare systems in other countries that have installed them through a pro parliamentary procedure, right?

You look at, [00:54:00] up until just, recently, pretty much every industrialized nation in the world, their conservative parties were less extreme than ours. And there are some, religious reasons for that and racial reasons for that. But there are the, it, those other countries also had racists and those other countries also had, religious fundamentalists.

And What kept them at bay to a very large degree is that policy change was put through democratically. So even, the most extreme right wing parties in the UK or France, and any of these countries, Japan there, and yeah, even in the Islamic world, and African nations, south American, these far right parties are not going there and saying, we’re going to take away your healthcare.

We’re going to, take, we’re gonna do all of these terrible things to you. They can’t run on that.

MYSTAL: It is the greatest trick the Republican Party has ever pulled. It’s the greatest trick they pulled in my lifetime because their policies are generally speaking massively unpopular, right? You could not pass an abortion ban. Couldn’t do it, couldn’t do it, couldn’t do it nationally, can’t. It’s real. And we’re seeing really hard to do it in the states even,

SHEFFIELD: Even Republican states. Yeah.

MYSTAL: Even Republican state, it’s really hard to pass it even in Republican state. Couldn’t ever do it nationally, but you can do it through the courts. The, some of the gun rights stuff you can’t ban background checks nationally at the ballot box. People wouldn’t have it.

If you did it all through the ballot box, we would solve our school shooting problem. But through the courts, what can one do? And for, so for a long time, Republicans, I would argue, the more moderate ones, the Lincoln Chaffee, if you will to reference an old guy a blast from the past.

The former, the last Republican New England Senator of my lifetime these guys always were able to [00:56:00] run on moderate policies, but acknowledge to the crazy folk that they were with them, but, oh, what can we do until we get, have the courts right. That, that, that was their fundamental thing.

Conversely, interestingly enough, speaking of the Warren court, Democrats learned the wrong lesson from the Warren courts. Democrats from the Warren courts thought that the lesson was that, oh, you have to have the courts to do massive social change like end segregation, when actually it was the Democrats who were able to pass.

Their social change laws through normal processes of democratic legislation. It was the Civil Rights Act. It’s the Voting Rights Act. It’s the Fair Housing Act. All of that is legislation. None of that came through the courts. Democrats actually could pass their policies now enforcing their policies on the states and forcing Alabama to accept the Civil Rights Act.

Maybe you need some courts for that. Although if you ask John Kennedy and Robert Kennedy, you also need some guns for that, right? Like actually forcing the states to follow these. Let these national pieces of legislations, maybe you need some courts to do that, but to actually get the law, you can do that democratically.

But Democrats learn and it’s the only way that’s going to stick, right? But Democrats learn the wrong lesson. Oh, you need the courts for Roe v. Wade, you need the courts for Brown v Board of Ed. You need the courts to do social change. Republicans understood that because they couldn’t pass their policies, they needed the courts to do the massive social change.

People get this all screwed up. The Republican courts, the conservative courts, are responsible for more social change through judicial fiat than the liberal courts because the liberal courts, the liberals, are genuinely enforcing [00:58:00] laws that were passed by Congress. Upon people who don’t like that the law was passed by Congress.

Whereas Republican courts, conservative courts are through judicial fiat creating changes that were not passed by Congress, that were not authorized by Congress because you can’t win those battles at the ballot box. So yeah my, my argument is always and again, as a black man, people are like, people are some, sometimes surprised that I say this because they’re like, have you seen Mississippi? Yeah, I have. And if you put a gun to my head, I would rather fight for the voters in Mississippi over what I believe than try to have to convince unelected unaccountable judges of what I believe I’m going to have a better shot with the population of Miss fricking sippy than I’m going to have with Santo.

Making courts matter to voters

SHEFFIELD: Yeah. and we’re seeing that we saw that with abortion and we will see that with regard to marriage equality. I think, the, and and hopefully that won’t happen, immediately. But there’s no, there, the religious right literally said we’ve decided to launch a lawsuit.

Factory and we’re going to, we’re going to find enough cases and we’re going to find one that’s going to tickle the funny bone of these reactionary judges the right way. And and they’ll go for it. And, who’s to say that they won’t. And this is, and despite, and yet despite all of this, the Democratic party still does not campaign on the court, does not campaign on telling people what happened to them and why this happened and how they will fix it.

And and so when you look at voters to the extent some Democrats are saying that yes, they vote based on the courts but it should be a huge majority of Democratic voters should say that. And they’re not. And this is a failure of the leadership to not just pack the court, [01:00:00] but also restrain the court.

MYSTAL: It’s a massive failure of the Democratic Party and it’s an ongoing train wreck. I like to say that Republic, if I go to a Republican voter in Appalachia, if I go to a low information Republican voter in a poor state, right? They will not be able to converse with me about these theories of legal formalism or legal realism or anything like that.

They won’t be able to converse with me about substantive due process versus procedural due process. They won’t understand any of that, but they know about the Second Amendment. They won’t be able to quote a single statute that actually impacts their lives. They won’t be able to quote the zoning laws around their shack, but they can quote the Second Amendment right because the Republican leadership has made that.

So the Republican leadership the Republican Party has convinced that voter, that to have what that voter wants, Republicans have to control the Supreme Court. So that voter has a one-to-one understanding that if he wants his shotgun. and he can have legitimate reasons. I’m even going to say just for the sake of the argument, he’s got legitimate reasons for wanting his shotgun, right?

Constitutional reasons for wanting a shotgun. Let’s even go further, right? He understands that to keep his shotgun in his house, Republicans need to control the Supreme Court. That is not confusing to him. That is not mysterious legal jargon to him. He knows it for a locked fact. Now, I go to a Democratic voter, and I and, let’s say I’m talking, let’s say I’m in, Brooklyn, I’m talking to a crunchy Birkenstock wearing, free love, make peace, not [01:02:00] war.

Crunchy, hipster liberal, who wants the Green New Deal? Who is terrified about the environmental catastrophes that are happening, who’s terrified for their potential children and grandchildren in the world they’re going to live in? Who wants the earth to be saved? They have no conception that in order to get what they want, they have to have the Supreme Court.

They might talk to me about a OC. They might talk to me about Bernie. They might talk to me about a Green New Deal. They might talk to me about any number of legislation that they want to see passed, but they have no conception that every single one of those laws will be overturned before breakfast by a conservative Supreme Court.

If liberals do not control the Supreme Court, they do not make the one-to-one connection, and that is not their fault. That is the Democratic party’s fault. That is the leadership’s fault. The leadership has not made in the minds of the voters the one-to-one connection between what they want. Controlling the Supreme Court.

It is why Democrats lose it is why Democrats have lost the battle for the courts. It’s why they fail.

SHEFFIELD: Yeah, exactly. And legal formalism. It’s. Perhaps useful as a heuristic for writing decisions, but for anything else, it is dangerous if you are a liberal and it needs to be thrown in the trash can. Because yeah we got to get real about this stuff and it’s long pastime to do that.

MYSTAL: Yeah. And we’ve got to make it real for our own people, right? We’ve got to, I’ll, I go to the barbershop, as you can see from my hair. I don’t go to the barbershop often, when I’m there and I’m talking to black people about police brutality about. the things that are happening in our communities, the, I’m always trying to make that connection.

this the reason why the police can roll up in [01:04:00] here and put us all against the wall and beat the crap out of us. That’s Graham v Connor. That’s a William Renquist decision. If we change that decision, the entire structure of police brutality changes in this country, Like that’s where we got to focus. It’s not about Manami or Bloomberg or Stop, and it’s about these decisions that are made by unelected unaccountable judges that, for the most part are Republican, for the most part, are conservative. But, and that’s why you got to vote for Hillary Clinton because

SHEFFIELD: and you don’t have to like her. You don’t have to like, any of her ideas necessarily, except which is we’re going to contain the court and we’re going to pack the hell up.

MYSTAL: You got to vote for Hillary Clinton because Ruth Bader Ginsburg is 82 years old and she’s going to die soon. That’s why you have to do it. But that’s not a, that’s not an argument that Hillary Clinton made. My gosh, Hillary Clinton sat there in 2016 with an open Supreme Court seat and didn’t mention Merrick Garland’s name once during the Democratic National Convention!

Not once did she talk about the importance of filling that seat and filling other seats that would likely come up in her terms! She didn’t make the argument for her own candidates. It’s just--ugh.

SHEFFIELD: If you won’t advocate for yourself, who will? That’s the bottom line. But speaking of advocating for yourself what would you want people to check out of your stuff, Elie?

MYSTAL: Oh. Um, So I write twice a week for the nation the Nation Magazine in digital. And then I usually do one print column a month. So that’s the easiest place to find my writings. I’ve also written two books Allow Me to Retort, A Black Guy’s Guide to the Constitution and Bad Law, 10 Popular Laws that Are Ruining America.

Those are available wherever they still allow black books to be sold. I’m not sure that’s Florida, you might have to go to [01:06:00] Audible. But everybody else there, there’s a way to get it. And I read the books, my, my myself and for social media. I’m on blue. I can’t do Matt, I can’t do Apartheid X anymore.

I just I understand it’s where the hotness is. I just it’s too much for me. So I’m slumming it on Blue sky for a bit. I’m too old for TikTok. So, I put most of my social media things about my dog, really and my kids on Blue Sky.

SHEFFIELD: Okay. Sounds good, man. It’s great having you here today and I look forward to doing more of these in the future.

MYSTAL: Absolutely. Thank you so much for having me.

SHEFFIELD: All right, so that is the program for today. I appreciate you joining us for the conversation, and you can always get more if you go to Theory Change show where we have the video, audio, and transcript of all the episodes. And if you are a paid subscribing member, you have an unlimited access to the archives and I thank you very much for your support.

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