Legal News Roundup: Trump's Woes and Alabama's IVF Ruling

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Is there enough legal news in the headlines right now? It's not just Trump. You know how we have three branches of government, the executive, legislative, and judicial branches. You know how that works? Well, the president and the governors, the executives, are doing some stuff. Biden just canceled more student debt yesterday, right from the White House, for example, Congress, absolutely gridlocked and doing almost nothing, but the courts, the judicial branch of government, they are rocking with action right now with so much at stake in the hands of judges, lawyers, prosecutors, and juries.

Here's just a quick list of a few that are front and center right now. The Supreme Court could decide any day or even any minute, we are actually watching the ticker, on whether Donald Trump has immunity from prosecution for things he did as president, even if they were actual crimes. While Trump compares himself to Alexei Navalny, a special counsel in the Biden administration has recently indicted Biden's son, and another special counsel investigating the president himself has probably put his thumb on the scale of public opinion about the president's mental acuity. Remember that. "No different from the Putin regime," says Trump. Maybe not.

Meanwhile, an informant in the impeachment inquiry against Biden has now been charged with making up evidence helped along by guess who, Russia. Yet another case for the court system. New York's Attorney General wants to seize Trump properties if needed to pay his $355 million business fraud judgment. The Alabama Supreme Court has just declared that frozen embryos are children under the law. A prosecutor in Arizona says she won't extradite a suspected murderer wanted in New York because she calls Manhattan DA Alvin Bragg soft on crime. Can she really do that?

Those are a few that are in the news right now. I could go on if I wanted to, but let's discuss a few of these anyway. With us now with his take, Elie Mystal, justice correspondent for The Nation Magazine and host of their legal podcast Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center, author of The New York Times bestselling book Allow Me to Retort: A Black Guy’s Guide to the Constitution, and his new claim to fame, which is that Kenan Thompson just portrayed Elie Mystal on Saturday Night Live, so now he's really made it. We will play that clip and ask the real-life Elie Mystal what he thought. Elie, always great to have you on. Welcome back to WNYC.

Elie Mystal: Thank you so much, Brian. It's almost like people should pay attention to the courts and prosecutors and demand that their political candidates tell them what kinds of prosecutors and what kinds of judges they're going to appoint because they control an entire branch of government.

Brian Lehrer: It is almost like that, yes. The Trump immunity case. I keep looking because I expect this ruling any day, maybe any minute, but maybe not. Do you think the Supreme Court feels an urgency on this one because of how the January 6th case intersects with the election calendar?

Elie Mystal: Do they feel urgency? I don't know. I can't read those guys in terms of what their feelings are about the state of American democracy. I do think they will rule soon. People need to understand that there are three ways this can go. They can rule with four votes to take the case. They shouldn't because the argument that Trump is absolutely immune for any crime he committed while he was in office is a ridiculous and stupid argument, so they shouldn't take the case. The Supreme Court doesn't take ridiculous and stupid arguments all the time. Step one, four votes they need to take the case.

There's a second option, five votes they need to grant a stay on the criminal trial that Judge Tanya Chutkan is trying to get started in DC. You need five votes to grant a stay. There is a version of events where the Supreme Court could take the case, but not grant the stay and thus not do the one thing Trump wants them to do, which is to delay his reckoning because, remember, with his bad arguments, the point of those arguments is not to win. The point of those arguments is not to actually be declared absolutely immune from everything because, again, that's stupid. That's not going to happen.

The point of these arguments is to delay the trial, to delay the reckoning until at least you get to the Republican National Convention where Trump will be crowned as their nominee, which will make it harder to prosecute him or perhaps even delay it past the election in November. That is the goal. If five Supreme Court justices vote to grant him a stay, he will have gotten another step closer to accomplishing that goal.

That's really what I'm looking for. I'm not even so much looking-- obviously, I care whether or not they take the case because the third option is that they could just not take the case like adults, but beyond whether or not that binary of whether or not they take the case, I'm really looking to see if they have five votes to grant the stay.

Brian Lehrer: On that stay question, do you think the justices are asking themselves, which is the greater good in the public interest? Is it to make sure that a trial happens before they vote for somebody for president who might be charged criminally for things like that or versus not interfering with a presidential election and keeping the criminal case out of it?

Elie Mystal: Oh, I wish that's what they were thinking. What I think they're trying to weigh up is not what's better for the country, but what's better for the Republican Party. They are asking a version of that question, Brian, but they're asking that version in terms of what helps Republicans retain power. Is it better for Republicans to retain power or to gain power in the White House if they allow a trial for Trump to happen before the Republicans crown him, or is it better for Republicans to stay out of it, let them crown their king, and let Trump shoot his shot?

Brian Lehrer: I will say that's the most cynical possible take on the Republican-appointed justices on the Supreme Court, that it's purely partisan. They're trying to help their party. A lot of other analysts would say, they certainly have their leanings, philosophically, how they approach the Constitution, that seems to line up with the issues that Republicans care about and the positions on the issues that those Republicans care about, but what you're saying is a step or two more cynical that they actually, from the bench, are trying to figure out how to help their party. They would vociferously deny that, I'm sure.

Elie Mystal: I'm sure they would deny it, and I believe they would be lying. I think those six people, those six conservatives, are some of the worst people available. When you read their decisions, when you look at their history-- John Roberts, for instance, who was often in the media portrayed as some moderate, that's not John Roberts. John Roberts has done everything in his career possible to bend the law towards Republican interests and Republican political victory as far as possible without breaking it.

The fact that John Roberts cares about breaking it is the difference between John Roberts and Sam Alito, is the difference between John Roberts and Clarence Thomas, but all of those people have spent their entire careers trying to engineer Republican victories in politics. We've seen that in their gerrymandering decisions, we've seen that in their voting rights decisions, and I believe we're seeing that now in their Trump decisions.

Brian, again, there's no objective reason for them to take this case. The argument is so wackadoodle cuckoo. The DC Circuit took such pains to explain exactly how cuckoo their argument is, at times quoting-- they cited a number of judges in the DC Circuit opinion, which was, by the way, unanimous. Two Biden judges, one George H.W. Bush judge, three judges unanimous to reject Trump's immunity argument at the DC Circuit level. That panel cited Neil Gorsuch and Brett Kavanaugh and Clarence Thomas against the proposition that a president is immune from any criminal trial.

This is not a close case. If they take it, they are only taking it to help Trump's political desire to delay his trial. I don't see how there's any, I think, fair read of what they are or not doing that doesn't include the obviousness of the fact that this case is a lemon. This case is a dog that should never be heard by the Supreme Court in the first place.

Brian Lehrer: So many legal analysts, even conservative ones, are saying that, and here's how wackadoodle, to use your word, one of the claims is. We played the clip yesterday of Trump's lawyer telling the appeals court that Trump could have a political rival assassinated and only be prosecuted for it if he's impeached and removed from office by Congress first. Can even Justices Thomas and Alito find that a plausible way to read the Constitution?

Elie Mystal: Yes, if the Supreme Court takes the case, if they take the case and they get to the merits, which is the legal term of [unintelligible 00:10:33] or they actually decide on the issue presented, I think there's an excellent chance of this that Trump loses 9/0 because that's how off the wall the argument is. If he doesn't lose 9/0, he is going to lose 7/2. If he picks up Thomas, because Thomas and his wife seem to support the coup in the first place, if he picks up Alito, because Alito seems to hate everything that's good and green on this earth, that'll be it.

I don't even see Kavanaugh, I certainly don't see Gorsuch, and I certainly don't see Barrett or Roberts going for this crazy argument. If they ever get to the merits, he's going to lose, and he is going to lose hard. Which, again, brings me back to the granting of the case in the first place, or the granting of the stay. If you are going to take the case knowing full well that you are going to smack him down, why would you grant the stay? Why would you grant the stay unless you are trying to help him?

Brian Lehrer: Listeners, we welcome your phone calls for Elie Mystal on the immunity case or anything else. 212-433-WNYC. Elie, the justice correspondent for The Nation and author of Allow Me to Retort: A Black Guy’s Guide to the Constitution. You can retort on any of the legal cases in the news right now or just ask a question at 212-433-WNYC, 212-433-9692.

I want to take this hypothetical, just one more step, because if we assume that Trump is elected and that he won't actually have political rivals assassinated, Putin and Navalny, even though they explicitly ask the court for the right to do that, does anything come to mind that you think he might actually do more plausibly with that immunity from criminal prosecution if he gets it and he's elected?

Elie Mystal: Aside from whatever he wants because that's why he wants it. He wants to do whatever he wants. I don't know that Trump has the mental acuity, if you will, to think quite so far ahead to fully knowing what he wants. He's so impulsive. He just wants to do what he wants to do when he wants to do it. If he gets this immunity, he will have every opportunity to do that. Brian, he'll also have every opportunity to do it, even if he doesn't get the immunity, if he gets reelected, because I do not believe that Trump will ever allow himself to be out of power again.

If the people restore him to power in November, I do not believe Trump will ever allow himself to be out of power again. 22nd Amendment term limits be damned. All right. I think, to me, that's the baseline of what we're looking at, a Trump presidency for the rest of Trump's natural life if he gets reelected. What he does with that power, I think you're bringing up that he probably won't have his political rivals assassinated. I don't know that I want to give him, I don't know that I want to go that far with the trial-

Brian Lehrer: Even that much credit.

Elie Mystal: -but even if I do, look, the thing that he's most concerned about, that he's always been most concerned about is money. He'll steal. That's the first and most obvious way that he will use his newly granted immunity to steal more money from the American government, which by the way, he already did during his first term with his raisin disregard of the emoluments clause, his brazen disregard of The Hatch Act. Trump for all of his danger is also extremely petty. An extremely small-minded guy in Times Square selling beepers kind of dude.

When you give him an unquestionable power, the first thing he does is try to figure out how to make eight bucks. I think that before we get to the political assassinations, and I'm not saying that we won't get there, but before we get to the political assassinations, it'll be a lot of stealing, it'll be a lot of just straight-up theft. Anything that's not bolted down in the White House is his now.

Brian Lehrer: A lot of people compare Trump to Putin in various ways. Trump compared himself to Navalny as an opposition leader facing criminal charges from the regime in power. Your thoughts?

Elie Mystal: That's a really dumb argument, and it's dumb on a number of levels. The first one, the most obvious one to me is that Trump has what we call in this country due process. Trump has a lot of due process. Trump has not been railroaded by the administration. Trump has not been jailed by the administration. I can prove that because the man is free. He is walking around Mar-a-Lago right now. If we lived in a Putin-style dictatorship, I promise you he wouldn't be. He still has his passport. He still has his Costco card.

He can still go out and do everything that a free citizen can do because even though he has been subjected to 91 federal indictments, he is entitled and he is availing himself of his Constitutionally protected rights to due process. Compared to Navalny, are you kidding me? Trump has had process out the wazoo. All right. He's got lawyers, he's got an entire television network working for him, he's got judges running shotgun with him, he's got Aileen Cannon, like he's got an intense amount of process, and that makes him different from the kind of political prosecutions and kangaroo courts that we see in non-democracies like Russia. That's just number one.

Number two, it just one needs to point out that Trump committed crimes. Trump allegedly committed very serious crimes. With all of the process entitled to any criminal defendant in this country, that Trump is getting a whole lot of, we have to prosecute people who commit crimes. The right analogy with Trump is not Navalny. The right analogy with Trump is what Brazil has done to Bolsonaro, a former president of Brazil who Brazilians say committed crimes.

I'll point out, Brian, Bolsonaro does not have his passport just at the moment because he has availed himself to the due process provided in Brazil, and he is losing because he committed crimes. Brazil, much more than America knows how to defend itself from dictators.

Brian Lehrer: You were talking about due process. Rufus in Brooklyn wants to refer to what I think he's going to call undue process. Rufus, you're on WNYC with Elie Mystal from The Nation. Hi.

Rufus: Yes, thank you, Brian. Yes, on due process, it seems to me that all the legal experts expect the immunity appeal to fail. A natural question is why is it being heard by these courts? Why isn't it just set aside as a frivolous suit and then can get on with it before the election settles the question?

Brian Lehrer: That's the question in front of the Supreme Court right now because they had to work up the chain. The appeals court denied it, but due process means the Supreme Court gets to look at it.

Elie Mystal: Remember, Brian, they didn't have to work themselves up the chain because Jack Smith smartly went directly to the Supreme Court once this argument was made. You want to talk about process. Look, the way it's supposed to work, you have a trial in front of a trial judge. You make an argument. The judge rules on that argument. If it's a ruling adverse to you, that's it. In most normal criminal trials, we do not allow what's called interlocutory appeals, which means when the trial judge makes the ruling, that ruling is final until the end of the trial.

Then after the trial is done, if you've been convicted, you collect up all of your appealable issues and you bring those all on appeal to a higher court. Otherwise, you'd have people like Trump stopping trials every five seconds, every time they disagreed with a judge. "Objection, overruled. Appeal. Stop the whole trial, appeal," is what would happen. We don't allow that to happen, but we've decided to allow that to happen because Donald Trump is rich and powerful. The idea that the Supreme Court even had to hear this is simply wrong. We normally don't allow exactly these kinds of appeals to go all the way up to the Supreme Court until a trial has already been completed.

That's number one. Number two, Jack Smith understanding that we were going to treat Trump differently because he's rich and powerful, went directly to the Supreme Court and said, "Look, he's made this appeal. It's stupid. We know what the DC circuit is going to do. Why don't y'all rule now? Let's just get it out of the way." The Supreme Court was like, "No, no, no. Let the process play out. Let it go to the appellate court first."

The Supreme Court, even in that moment, decided to help Trump by delaying things and allowing the DC Circuit to go through its process instead of coming in over the top, which Jack Smith is saying, "We all know that you're going to do it anyway." Again, when you say I'm cynical, I'm cynical about these people because I listen to them because I see what they do, and what they have done to this point is everything they can think of to help Trump delay this reckoning.

Whether or not they have four votes to keep doing that, or five is really the million-dollar question right now. Because if they only have four votes to help Trump, then regardless of whether or not the Supreme Court takes the case, the trial can go forward. If they've got five, they can delay it once again.

Brian Lehrer: Richard in Brooklyn, who says he's an immigration lawyer, has a question about something the Supreme Court is considering regarding Trump. Richard, you're on WNYC with Elie Mystal. Hello.

Richard: Good morning. I want to ask Elie's opinion about the Section 3 of the 14th Amendment case. When I first heard about it and listened to Judge Looted talking about it, I thought it was creative, but going nowhere.

Brian Lehrer: Let me just translate a little bit for the general audience and make sure they all know you're talking about the case from Colorado. If I've got your case right, that says Trump should be barred from the presidential ballot, at least in that state because he violated the insurrection clause of the Constitution that's now being appealed to the Supreme Court and they heard arguments the other week. Richard, go ahead.

Richard: Okay, thanks. Then when I started listening to historians talk about it on podcasts and read the historians amicus brief, I said, "Well, there's really something here and it's not a long shot." My question for Elie is why does he think-- when I listened to the oral arguments and heard Justice Kagan, Justice Ketanji Brown Jackson, they seem to just be worried about the floodgates arguments, the consequences. Judge Kagan asked, let's talk about the fact that this is going to go national and Colorado is going to decide for the whole country. My question for Ellie is why does he think that these liberal justices seemingly paid no attention to what turned out to be really solid excellent arguments from the historians?

Brian Lehrer: Richard, thank you.

Elie Mystal: Thank you, Richard, and thank you so much for your immigration work. We need that so much. Thank you very much for your work, Richard. Brian, you want to call me cynical. The reason why the liberal justices didn't go for it is because the liberal justices were scared because in the final days, they lost their nerve. What Kagan was most concerned about-- Look, I said, I think probably on your show, Brian, I never thought that the Supreme Court would ultimately kick Trump off the ballot. I never thought that the six Republican-appointed judges would go for it.

The question was simply, would we get a couple of stinging dissents from the liberals, and based on our oral arguments, no, no, this is going to be 9/0. The liberals are not onboard either. What Kagan was primarily concerned about, what she was afraid of was what Texas will do or what Alabama will do, or what any of these red states will do--

Brian Lehrer: Meaning they'll find an excuse to kick Biden off the ballot or a Democrat?

Elie Mystal: Yes. That was her animating fear that even though we can say there was a trial in Colorado, he was ruled an insurrectionist, that's a points-and-click violation of section 3 of the 14th Amendment. Even though as Richard says, it's a real thing and it's a thing that we should take seriously. Kagan could not abide, basically, a world in which Colorado could kick Trump off the ballot because that means Texas can kick Biden off the ballot. Then at some point, she said we would just have different ballots for presidents in every different state depending on basically which party controlled the state legislature.

That might not seem like a huge deal when we're talking about Colorado, where Biden is likely to win, or Texas where Trump is likely to win. That happens in Pennsylvania, that happens in Michigan, that happens in Florida, and suddenly you're talking about real money. Suddenly you're talking about real electoral votes up for grabs that are being decided by state attorney generals as opposed to the voters of the state. That's what Kagan was afraid of.

She got really good counter-arguments from the lawyers for Colorado basically saying insurrection is rare, which it is, and saying what I think is the right intellectual point that you can't make law based on what you think bad faith Republicans will do next. If we are making laws based on what we think bad-faith Republicans will do next, then surely we should have different voting laws based on what we know bad-faith Republicans are willing to do in red states.

There are a whole number of laws that we should reinterpret if we're reinterpreting them around what the worst available Republican will do with them. We generally don't do that. Liberals generally don't do that. Here on this issue, Kagan was doing that. Jackson shared all of Kagan's concerns, but then it hurts, but she went full-on textualist originalist, the president is not an officer. I think that's a terrible argument, but to me, this was always the double-edged sword with Justice Jackson. Justice Jackson is a textualist. We love her from the liberal side when she's a textualist and she's willing to go to the mattresses to fight Neil Gorsuch.

If Neil Gorsuch wants to bring up the Magna Carter, Justice Jackson is waiting for him with the second line of that document. She will go to town with Gorsuch over their differing textual interpretations. The downside of being a textualist is that sometimes you're a textualist. For her, she thought that this not an officer thing was a compelling argument. I do not think it's compelling. I do not think it's reasonable, but she did. That's where she stuck her flag. I think it's very likely going to be 9/0 that Trump is allowed back on the ballot. He was always going to be allowed back on the ballot in Colorado, at least 6/3 but I think it's going to be 9/0.

Brian Lehrer: We'll continue in a minute with Elie Mystal, take more of your phone calls and texts. By the way, I guess none of our listeners have AT&T because our lines are absolutely jamming despite the reported widespread AT&T phone outage this morning. When people finish up on the phones, you can call 212-433-WNYC. Of course, you can always get a text message through to us at that same number.

We're going to turn the page after the break and turn to the Alabama Supreme Court ruling that an embryo is a child under the law. One of my questions to Elie about that will even be relating back to what he just said about Justice Kagan and the Colorado Insurrection case. We'll see what your questions are. Stay with us.

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Brian Lehrer: Brian Lehrer on WNYC as we continue with Elie Mystal, justice correspondent for The Nation. Yes, we will get to and play the clip of Elie being parodied on Saturday Night Live a few weeks ago. Listener texts, guessing your guest is not going to buy Trump's athletic shoe. That's probably right, Elie, right?

Elie Mystal: Absolutely not. If I buy it, it will only be so I can ritualistically burn it.

Brian Lehrer: Moving right along the Alabama Supreme Court this week ruled that an embryo frozen by a couple to be used for in vitro fertilization, a stored frozen embryo is a child under the law. Opponents of abortion rights are cheering, Nikki Haley reacted by endorsing the idea that embryos are babies. IVF, in vitro fertilization could become much harder for couples who actually do want babies to use it to make them. Is this legally new ground, Elie?

Elie Mystal: Yes. It is legally new ground. It's old ground in the sense that this is Christian theocracy reanimated and brought back to life. This is exactly the kind of law that we would've seen in the Middle Ages if the people in the Middle Ages understood the science better. This is exactly what they would've done. This is straight-up Spanish Inquisition-style law. It's not new from that sense. In this country, in this time, this is fetal personhood writ large. What fetal personhood means is essentially that the fetus, or in this case the embryo, or in this case the frozen embryo, has more rights than women straight up in Alabama.

They haven't thought this through in terms of what this is going to do to families who can't naturally have children and use IVF to start their families. Already we've seen the University of Alabama decide that they will no longer do IVF procedures because of the legal liability. Brian, we're on a stage right now where if there's a blackout in Alabama, there's a blackout in Alabama, and some of the storage facilities lose power for a long enough time, the storage facilities can be charged with mass murder according to this ruling.

Brian Lehrer: Not if they weren't negligent, though, right?

Elie Mystal: Who knows? In the instant case, the embryos were dropped. Was it negligence or was it just an accident? They were dropped. It happens to ice cubes. It happens to things you take out the fridge. You drop them sometimes, but according to Alabama, this was murder. This is analogized to murder. They were sued under Alabama's Wrongful Death Statute for dropping the frozen embryos, presumably, accidentally.

When I say it's Christian bureaucracy, Brian, the judge in the case explicitly said that the court needed to do this to avoid, and I'm quoting, "Invoking the wrath of the Holy God." That's in the opinion, Brian. That's in the opinion. If this country still believed in the First Amendment, it would be a violation of the establishment clause of the First Amendment, but the country doesn't believe in the First Amendment anymore. The establishment of religion is just A, okay as long as you are a Christian establishing religion.

It's a risible ruling. It's an awful ruling. Again, they haven't thought it through because not only does this essentially end any reasonable opportunity for IVF in Alabama, remember, by calling it a child and making an embryo subject to all of the child welfare laws in Alabama, obviously that ends any opportunity for abortion, but think about what this does to women who miscarry. It potentially makes them legally liable if their miscarriages were in some way according to a court. We'll have to wait for what a court says, how you're allowed to miscarry or not in Alabama.

This has significant implications for women's health in terms of pregnancies that go wrong or have complications. I don't know what to tell people other than this is what Republicans have promised to do for the last 40 years. Every single time in the last 40 years that you've voted for a Republican, you've voted for this decision in Alabama because they have promised you for a generation that if you give them power, this is what they'll do with it.

Brian Lehrer: I'm curious, Elie, if you think there are national implications to this case. I'm thinking about the likely outcome that we just discussed before the break of the Supreme Court case on whether Colorado can ban Trump from the ballot because he violated the insurrection clause of the Constitution. One of the Justice Kagan's arguments as I heard it, is that she seemed reluctant to let one state set the standard on that for the whole country. I think Kavanaugh was making that case too.

By the same standard, if they get the Alabama embryo case, which is at the state level now, but it could wind up at the US Supreme Court, I see. Can we be confident that they would not force it upon other states as a national standard?

Elie Mystal: Nope. Because Justice Kagan, while she might be intellectually consistent, her conservative colleagues are not. They will have no problem sending the entire country into essentially a race to the bottom on some theory of state's rights that every state has the right to desire for themselves which frozen embryos are children, which ice cubes deserve more rights than women. Every state can make that determination for themselves, according to Sam Alito and Clarence Thomas, and Brett Kavanaugh.

Alabama can have its law, and Texas can have its law, and New York can have a whole different law, and everything will be hunky-door. That's what the conservatives will say. Elena Kagan's problem is always that her intellectual consistency, Ketanji Brown Jackson's intellectual consistency, they're not shared by their colleagues. The Republicans will do what Republicans always do. No, I don't think there's a good chance at all that the Supreme Court will stop this law or prevent this law from taking effect or do anything to stop Alabama.

The only way to stop Alabama is to elect Democrats, have Democrats expand the Supreme Court, and then challenge Alabama's law in front of a Democratic majority on the Supreme Court because that'll make it stop. That's the only way to make it stop.

Brian Lehrer: A lot of people were talking about this idea after what seemed like tainted appointments to the Supreme Court because of the way Mitch McConnell played the rules in the Senate at the end of the Obama administration and the end of the Trump term. At that time, in the 2020 election campaign, there was this talk of what you just brought up, expanding the Supreme Court to take the partisanship somewhat out of it.

I think the transportation secretary Pete Buttigieg, when he was a candidate for president, said, "Let's make it 15 justices, 5 appointed by Democrats, 5 appointed by Republicans, 5 appointed by the other 10 justices." There are these fair-- but that has dropped off the radar. I see that in one of your recent Nation Magazine columns, you brought it up again. A lot of people will push back and say, "That's just a partisan argument." If the current makeup of the court was making more progressive decisions, you wouldn't be talking about the best way to fix the Supreme Court is to add more justices. Is this a partisan or to back up your judicial preferences, argument, or is it somehow consistent with a single standard of justice?

Elie Mystal: I have two answers to that, Brian. One, I don't care if people think that it's partisan. My argument for changing the number of justices on the Supreme Court and taking control away from the conservatives on the Supreme Court at this point doesn't even have to do with partisan politics. It has to do with keeping women alive, because that's what the Supreme Court won't let happen. In my mind, we are so far beyond some kind of partisan [unintelligible 00:38:24] infighting about like, "Oh my God, are taxes going to be higher or lower? Who can say."

They are killing women with these laws? The only way to stop them, the only way to stop them is to take their power away from the unelected, unaccountable gods that have decided that they, and they alone can tell the rest of the country what a child is. That has to be stopped. I don't care if I sound partisan when I say that. That's number one. Number two, I actually think expanding the Supreme Court has a lot of nonpartisan reform benefits.

I have said repeatedly that if you expand the number enough, you can share. I've argued for adding 20 judges to the Supreme Court that would make the Supreme Court 29 justices, that's the same size in the Ninth Circuit Court of Appeal. We'll find enough chairs. If you give me 20 extra judges, I'll split them 11/9 with the Republicans, 11/9 because of what they did with Merrick Garland, we can't ever forget that. That would still leave the Republicans with a slim majority on the court.

I think that if you give me 20 extra judges, their decisions will be more moderate because that's what happens with large numbers. You're not going to get a 15/14 Republican Supreme Court decision to defend the rights of embryos over the rights of women, you're just not going to get that.

Brian Lehrer: Whereas you could get a 5/4 with that smaller match.

Elie Mystal: Absolutely, you could get a 5/4. Put 20 moderate judges on the court, and then let's play our game. I have reform. There are non-partisan reforms to adding Supreme Court justices to the Supreme Court, but if you don't like those non-partisan reforms, fine, I don't care because the only way to stop these people, the only way to stop these extremists, Republican, Christian, theocracy, fascists is to put non-extremist Christian theocracy fascists on the courts. It's the only way to stop them.

Brian Lehrer: A listener texts, "Looking forward to moving to Alabama with my embryos and applying for affordable housing and SNAP benefits as a family of 10. The possibilities are endless."

Elie Mystal: They always want to talk about fetal personhood when it comes to controlling women. They never want to talk about fetal personhood when it comes to providing services for children. They never want to talk about that when it comes to providing health care or good homes or good schools. They certainly, Brian, never want to talk about fetal personhood, when it comes to citizenship.

Brian Lehrer: Protect our children from conception all the way through birth. Before you go, I promised to touch on maybe the most important story of all in the last month. Listeners, I mentioned that Elie Mystal was portrayed by Kenan Thompson on Saturday Night Live a few weeks ago, the first time Elie was used in one of their skits. Now I'm no TV critic, but I'll say they did not make the most of the opportunity. Here's basically all it was. The script was the Gee Brothers from the singing group, the Bee Gees hosting a talk show talking like they're heavy vibrato way of singing. For those of you know the Bee Gees, and one of them played by Jimmy Fallon asks Ellie a question.

[audio playback]

Jimmy Fallon: Ellie, [unintelligible 00:42:02] do you think the media is overstating the negative sentiment of the election to get views and clicks?

Kenan Thompson: Well, that's an interesting question.

Jimmy Fallon: Oh, is it? It's interesting. You find it interesting.

Kenan Thompson: Yes, I do.

Jimmy Fallon: Yes. Well, I find you interesting, okay? You look like if Don King ate another Don King.

[end of audio playback]

Brian Lehrer: Ellie, those of you who can't see you on their radios may not know you do have big hair like Don King, but do you think this generation of Saturday Night Live viewers since their audience skew is young even knows who that 92-year-old former boxing promoter is?

Elie Mystal: Oh, they probably do now. It's always funny to me, because my hair just looks like what Black people's hair looks like when you wear it long. It's just what it looks like. It's always a conversation topic. I'm totally fine with it. I would just like Brian to be able to do my Kenan Thompson impression. Because what's up with that, Brian? What's up with that? Actually, the funny thing is that Kenan Thompson and I actually share a birthday. I'm very honored to be portrayed by my brother from another mother.

Brian Lehrer: All they could come up with was a big hairdrip. Can I say out of my love and respect for you, of course, that there are other things about your, let's say, presentation style, that listeners may have noticed today, that Saturday Night Live could have a lot more fun with? Did you have any thoughts like that yourself?

Elie Mystal: Please don't give them any ideas. I was really happy to not be played as something less than. Look, it's an honor, it's very nice, but it also is an indication for me that like, "Man, I just got to keep doing what I'm doing." I just got to keep pushing the rock and keep doing what I'm doing. If Saturday Night Live could parody me in a way that got even one extra person to care about the Supreme Court and to care about justices, I will take every single Don King hair fat joke you can throw at me. That's that's my perspective.

Brian Lehrer: Any indication your character will recur?

Elie Mystal: Again, I hope not. June is my heavy season because June is when I'll probably be back on with you guys. June is when the Supreme Court makes its most critical decisions, so I'm holding my breath till then.

Brian Lehrer: Elie Mystal, Justice correspondent for The Nation Magazine and hosted their legal podcast Contempt of Court. He's also an Alfred Knobler Fellow at the Type Media Center, author of The New York Times best-selling book, Allow Me to Retort: A Black Guy’s Guide to the Constitution, and who knows how he might be portrayed next on Saturday Night Live. Thanks as always, Elie.

Elie Mystal: Thank you so much for your time, Brian.

 

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