Interview with Judith Resnik on Prisons

Strict scrutiny is brought to you by Americans United for Sparation of Church and state The Trump administration's excessive Christian nationalist rhetoric is only building as we move toward the two hundred and fiftieth anniversary of the Declaration of Independence And those most caught in the crossfire are specifically federal workers A multi faith group of federal employees filed a new lawsuit against the U. S. Department of Agriculture for violating the separation of church and state and the religious freedom promised in our Constitution. Our friends at Americans United for Separation of Church and State received emails from multiple USDA employees A handful of employees reached out saying the proselytizing Easter email sent by Secretary of Agriculture, Brooke L. Rollins to more than one hundred thousand USDA employees is an abuse of power that violates the separation of church and state promised in the First Amendment And they are absolutely right Again Separation of church and state. If you can read the First Amendment, you see that the government cannot establish a national religion, cannot endorse a national religion. And here we are sending a proselytizing Easter email to one hundred thousand federal employees The hits just keep coming from this administration, and Americans United is doing their best to keep up the fight against creeping Christian nationalism If you want to help, head over to au d. org forward slash crooked to learn more about their work and how you can get involved Granger knows when you're a procurement manager for an office park You're not managing one building. You're managing all of them And to stay ahead, you need to see through walls and around corners. Light's about to fail, filter's ready to clog, HVac on its last leg. If you wait until something breaks, you're already behind Count on Granger for quality products, easy reordering, and twenty four seven support Call one eight hundred Granger, click Granger. com or just stop by Granger for the ones who get it done OnDeck is built to back small businesses, like yours. Whether you're buying equipment, expanding your team or bridging cash flow gaps, ONDecks loans up to four hundred thousand dollars help make it happen fast. Rated A plus by the Better Business Bureau and earning thousands of five star trust pilot reviews, ONDeck delivers funding you can count on. Apply in minutes at onndDeck dot com d Depending on certain loan attributes, your business loan may be issued by Ondeck or Celtic Bank. OndDeck does not lend in North Dakota. All loans and amount subject to lender approval justustice It's an old joke but man arg' against two beautiful ladies like this, they're going to have the last work. , not elegantly, but with unmistakable clarity Tad. I ask no favor for my sex All I ask of our brethren is that they take their feet O fars Hello, and welcome back to Strict Srutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts, I'm Melissa Murray. And I'm Leah Litman And it's just us this week, which means let the wild rumpus begin. That is correct, folks. withithout the tempering influence of Catherine Shaw Who knows what we two chaos goblins are going to get up to Maybe Leah, we will draft a concurrence saying that seection two of the Voting Rights Act doesn't apply to redistricting claims or something crazy like that Wrong chaos goblins, Melissa. That's Clarence and Neil. I think we would write a different concurrence, but fear not listeners. We can assure you that this is going to be wild. and here's what we have on tap. We'll start with the news, including some updates on the slush fund, thenen we'll turn to the opinions that the court issued last week, and we'll close with the dab of court culture, our favorite things and an interview that Melissa did with Yale Law professor Judith Thznik about her recent book Ipermissible Punishments, How Prisons beccame a P probleblem for Democracy. And speaking of problems for Democracy We have some breaking news Listeners, as you know, the court's decision in Louisiana vers. Kelle nullified section two of the Voting Rights Act, which had prohibited states from drawing districts that resulted in meaningfully less political and electoral power and political and electoral opportunities for minority voters. Basically, before KellA, under section two, states could not effectively ack and crack the Back electorate by consolidating them into a single district and then diffusing the remainder across several districts when it was very possible to draw two or more nice, reasonably configured, pretty districts where black voters could actually have political opportunities And in ending the prospect of minority opportunity districts, KellA insisted that it was merely making the Voting Rights Act closely track those cases where the Constitution itself would limit states redistricting. So the Constitution prohibits redistricting that is intentionally racially discriminatory and intentionally disadvantages black voters Footnote or maybe it doesn't, we'll get to that in a second. But Calais said it wasn't adopting an intentional discrimination requirement or rule. It was just limiting the Voting Rights Act to occasions that are likely intentional discrimination and give rise to an inference of intentional discrimination. And just be clear, we've seen these ghouls run this play before in twenty thirteen decisions, Shelby County versus Holder The nation's leading institutionalist, John G. Roberts, assured us that even though he was eliminating the preclearance regime, there was no need to worry because Section two remained in place and prohibited discrimination in voting Now, the court tells us we shouldn't be alarmed that KellA gutted section two of the Voting Rights Act because the Voting Rights Act and the Constitution still prohibit intentional racial discrimination Again, hold that thought for a second In addition to trying to run the oakie doke on the whole country, a month after issuing the apostasy that is Kell, these ghouls decided that the last shards of law that prohibited intentional racial discrimination against black voters was just too much a quality to bear And so this court granted Alabama's request to reinstate a set of maps that a three judge panel that included, two Trump appointees had twice concluded was racially discriminatory. Let that settle in. Two Trump appointees twice looked at these maps and were like, yep, seems like racial discrimination to me In any event, the court did so by requiring a showing of racial discrimination to establish a seection two violation And then they made it virtually impossible to prove intentional racial discrimination Basically the lower court looked at this and said, yes, this map seems like it was drawn to fuck over black voters. And the court was like, well Can you really tell that they meant to fuck over black voters convinced because racial progress And also it's so mean to call someone intentionally discriminating on the basis of race. But folks, here's the thing We know that these maps that the court blessed are in fact racially discriminatory because this same court told us they were Back in, let's think back to, I don't know Three years ago, twenty twenty three, this court held that a similar Alabama map, which included only a single minority opportunity district in a state where black voters are more than twenty five percent of the electorate, likely violated seection two. And Alabama said, you know what? Let's try that whole massive resistance thing again. It went so well for us in the mid nineteen hundreds. So it went back to the drawing board and drew another set of maps also distributed black voters across a bunch of white districts and contained only a single majority minority district In a very fast, rather secretive legislative process, nothing to see here folks, it created yet another map that diffused black voters across several white districts and then included only a single minority opportunity district After Alabama instituted those maps, a lower court said, you can't use them. They both violate the Voting Rights Act and they're intentional racial discrimination in violation of the Constitution Alabama immediately went up to the Supreme Court. This is back in twenty twenty three and said, please, daddy, let me use these discriminatory maps And the Supreme Court said no, they did not stay the lower federal court decision. And so that litigation continued to play out And now Fast forward. to Pallet So after the Supreme Court decided Cay It vacated the lower court opinions on the new, but also old twenty twenty three maps for inexplicable reasons. It told the lower court to reconsider the maps in view of its holding in Calais And on remand, the lower court reconsidered the maps in light of KellA and came back and said We said what we said and also we said what You said in LA, which is that the Constitution and the Voting Rights Act still prohibit intentional racial discrimination And then the Supreme Court said Pase. Unconstitutional racial discrimination is fine actually. In fact, intentional discrimination against black people might not violate the Constitution at all. Again, this comes back to something we have been talking about since Rucho versus commommon cause. in many districts, especially in the South Partisan affiliation and race are closely correlated. In those dricts, white voters are often Republican and black voters are likely to be Democrats And what the court is saying basically is that if every single black person votes one way and every single white person votes the opposite way, every election, that's not even relevant to determining whether voting is racially polarized as long as or maybe especially as black voters are likely voting for a different political party than white voters only sees this as state's consolidating partisan advantage but not like the obvious racial undertones of partisanship. I mean, there was a real alignment between the two political parties based on race. Like the passage of the Voting Rights Act and the Civil Rights Act. it literally lies underneath our entire It would literally why we talked about massive resistance. like massive resistance is why white people in the South are Republicans now, because they used to be Democrats Yes But Leo, what about the smoking gun of Alabama being hell bent on using a map that a court had twice determined was discriminatory Well, According to the Supreme Court, the three judge lower court panel quote interpreted the state's legal disagreement with the court's earlier remedial order as proof of discriminatory animus. Y'all Legal disagreement is the new massive resistance. Basically shorter Sotis Alabama's recalciitance is not evidence of discriminatory intent because Alabama correctly predicted that Sotis didn't really mean what it said in Milligan. And Alabama knew that Sotis would later recant and say that actually it's not discrimination for a state to draw a map with only one majority minority district. Basically Alabama is the Deon Warwick of states, and it anticipated that what was racial discrimination before KA would not be considered racial discrimination in KellA's wake. And if you are marveling at Alabama's clairvoyance, don't. Anyone could have seen this coming with this court Also, I would just like to note that all of my characterizations of Brett Kavanaugh's intellect are just legal disagreement. and all of the cuswords I use to describe the justices are also just legal disagreement. for a note going forward for when you next testify before Mara Blackburn, Exactly. Oh, you mean my legal disagreement? Are you talking about my legal disagreement, disagreement, maam. But the real crux of the court's Tuesday night decision in Milligan is that it imported the CLA rule that had made it impossible to show a violation of the Voting Rights Act into the constitutional context. So Kell A had said You basically cannot show a violation of the Voting Rights Act unless you can show that a state could have drawn a different set of maps that had the same partisan result more majority minority districts. That is if the state wanted five out of six districts to go Republican, in order to establish a violation of the Void and Rights Act, plaintiffs would have to show that you could make one of those five districts that are all supposed to go Republican a majority minority district. Wait, wait, wait, are we asking Back people to vote for Republican You are saying right Black people only have rights under the Voting Rights Act if they vote Republican. Like a minority district in which black people elect a Republican candidate is the only way to show a violations of the Voting Rights Act That is a null set. There are no such cases. There are no such districts. Given the correlation between race and partisan affiliation There are no majority Back districts that would elect a Republican. Probably because Rublicans are doing racist stuff like trying to disenfranchise black voters But I digress It's almost like black voters like to vote their interests. so almost Now, the court in Milligan, this is the new Milligan, the one that was released just last week, comes along and says, in order to establish that this map with six out of seven Republican districts and one majority black district was intentionally discriminatory, you plaintiffs are going to have to show that the state could draw a map that also had six of its seven districts be Republican while also having two of its seven districts be black. That is again to say what Lah is talking about. One of the black districts would have to be a Republican voting district. And again It's kind of a practical impossibility, a null set, it doesn't exist. And because it doesn't exist, you will never be able to prove intentional racial discrimination in order to satisfy the requirements for pleading under Section two of the Voting Rights Act. Unless of course, black people in Alabama start voting for Republicans against their interests. So are you seeing why all of this is a trap Do you see it I'm starting to get the picture. But just to put this starkly, I mean, look, the reasoning in Milligan is slapdash. We don't know how far it extends and how much to take it for, but like if one political party literally called itself, anti Back partarty, like would that matter, right? Like would you still say, you know, like minority voters could only establish a violation of the Voting Rights Act and racial discrimination if they voted for the anti Black partarty? Like if the legislature came out and said, we are diluting the voting power of racial minority because we don't like people who aren't white. Would plaintiffs still have to show that the legislature could draw a map with the same partisan distribution? L it's utterly unhinged. Just again, to put this starkly. I mean to put a fighter point on what Leah is saying they've actually ratcheted up what was already a very high bar to prove intentional discrimination to make it even higher, maybe even impossible. Like literally nothing you could show be sufficient to establish that the state was doing intentional racial discrimination. And they talk a lot in this opinion about the sort of presumption that the state is acting in good faith. Why would we presume that A all of this It's very unclear. The only real reason is because it's mean to call someone a racist, and that's way meaner than actually doing racist things, right is a major through line in the court's decisions So another inconsistent and unprincipled part of all of this is that the KellA court insisted that it was not adopting an intentional discrimination requirement for the Voting Rights Act, even though it basically did, they told us they were not. So This is a little confusing, but again, if that's right, like if CalA did not require plaintiffs to show intentional discrimination And Kelly said it wasn't saying plaintiffs had to show intentional discrimination. Why on earth? Is the Supreme Court now in this Alabama case invoking KalA to speak to a claim of intentional discrimination? There was admittedly a lot of double speak in Cala. Like on one hand, the court said it was interpreting the Voting Rights Act to quote focus on intentional discrimination and to cases where there was, quote, an objective likelihood of an intentional discrimination It also said, it was not adopting an intentional discrimination standard, acknowledging that it's quote, interpretation does not demand a finding of intentional discrimination and mocking the dissent for quote, stating over and over again that our decision requires a plaintiff to prove discriminatory intent And some of this double spepeak is in a footnote, literally in a footote. It's all over the opinion Even if, even if the court did own up to an intentional discrimination standard for seection two, which they said they were not. That would still not resolve the claim at issue in Milligan, because in Milligan, the plaintiff also alleged the state had violated the Constitutions's prohibition unintentional discrimination So I said this on a YouTube rapid reaction. I did with Duell Ross of the NAACP LDF and Rick Hasson, who's a professor at UCLA. But this decision in the Alabama case was for me, the Supreme Court's equivalent of the insurrectionist slush fund. Trump and Carte Blanche were saying, goo ahead, insurrectionists, do a little insurrection, do some treason, overturn an election, We'll legalize it, pay you for it. Here, the Supreme Court is saying, go ahead states do unconstitutional racial discrimination, like nullify the will of the voters lock out, you, a third of the state from political power, will legalize it. We'll even tell you to go ahead and do it It's a legal regime for white supremacy and white minority rule, like the seventeen seventy six fund was a slush fund for insurrectionists and listenterers Everyone at the end of this term is praising the Supreme Court for rebuking the president and telling him that he cannot nullify the fourteenth Amendment's guarantee of birthright citizenship. We want you to just remember. that these are the same folks who just told states that they can nullify the Constitution's prohibition on racial discrimination. So Don't give them credit for reading the Constitution because they don't read all of it They do not U I miss Kate And yet in some ways, I'm glad she isn't here to have to talk about this, given that I'm not hard for going expect the court to stoop this low This would be hard for Kate. I think Kate might be in a fetal position on this one. Like it would challenge her her desire to see the good, or at least the upside of everything it would. Struct Scourney is brought to you by smmart Credit. Here's something that most people aren't told about their credit score. It's not just whether you pay your credit cards, it's when you pay them Most people don't realize that But smart credits data experts understand how credit bureaus operate. So they created something called the bestest pay down date that's built around how credit reporting actually works. So instead of guessing, you get a personalized strategy that shows you what to do and when to do it to help you maximize your credit score And that matters because better credit can mean lower payments and more money in your pocket. And this is where it gets interesting You can see your full credit picture in one place, your score, what's affecting it. And if something needs your attention, you can take care of it right there So before you apply for anything, a car, an apartment, a refinance, it makes sense to start with smart credit Go to smartcredit. com slash strict and try it for just one dollar You may be surprised to see how many points smmartcredit estimates you can gain. That's smartcredit dot com slash strict. Results vary, you can cancel anytim Shu's here is brought to you by Zbiotics Hey folks. I would love to tell you that I am one of those people who can have three glasses of wine and still wake up glowing But guess what? I am not. Somewhere in my late thirties, the morning after a few drinks just started to hit different. That's why I amm so happy that I discovered zibiotics pre alcohol. Ciotics pre alcohol probiotic drink is the world's first genetically engineered probiotic. It was invented by PhD scientists to tackle rough mornings after drinking Here's how it works When you drink, the alcohol gets converted into a toxic byproduct in the gut It's the buildup of that byproduct, not dehydration, that's to blame for your rough days after drinking. Pree alcohol produces an enzyme that breaks the byproduct down Just remember to make pre alcohol your first drink of the night Drink responsibly and you'll feel your best the next day. I tried pre alcohol when I was going out in the summer and still wanted to wake up fresh and able to do things like, I don't know, get on TV and talk about the news And let me tell you, you wouldn't believe how on top of things I was. There was no sluggishness. I didn't feel tired justust had pre alcohol, had a glass of wine, maybe two, and then got up the next day and did my thing. Between weddings, the US. open and the first real beach weekend of the year, June barely leaves a Saturday open. So don't let a rough morning after cost you your Sunday. Drink pre alcohol to stay ahead of it and make the most of every weekend this month Just remember to head to zebiotics. com slash strict and use the code strict at checkout for fifteen percent off may be listeners, a development that is entirely unrelated to the disenfranchisement of bllack voters in the South, we would like to note that Texas Secretary of State Jane Nelson just announced her resignation, effective july seventeenth, twenty twenty six. That is just four months before the upcoming election No further details were provided about why Ms. Nelson was leaving at this moment or who would be her replacement We should note though, that Texas Governor Greg Abbott, . e, are you there, God? It's me, Greg Abbott Pad appointed Nelson to the Secretary of State Post in twenty twenty three and he will be the one to name her replacement It goes without saying that the Secretary of State is charged with administering the election and This year's election is especially consequential in the Lone Star state Every statewide elected office is on the ballot this year, including a very anticipated Senate race between the state's impeached attorney general, Ken Paxton, whose wife incidentally is divorcing him on biblical grounds. Just that seems relevant And James Telarico, whom the president has continually derided on many different grounds, none of which seems to be accurate. Last week, the Department of Justice announced it was abandoning the apostasy that was the slush fund for victims of lawfare, . e. insurrectionists Apparently Speaker of the House Mike Johnson might actually be good for something. It was widely reported, I know that was kind of a joke. It was reported that Johnson managed to convince his overlord, Donald Trump, to abandon the slush Fund on the view that opposition to the slush Fund was mounting among Senate Republicans. Again, I have to insert here that sometimes it bes your own people But apparently, the furor over giving insurrectionists billions in taxpayer dollars was preventing the Senate from voting to give billions in taxpayer dollars to IC and CBP to harass taxpayers As McJagger saying, you can't always get what you want O can you So if you try sometimes, sometimes what you need and what you want may actually be the same thing as we learned. Because last Tuesday, auditioning Attorney General Todd Blanche, more on him in a moment, appeared before the House Appropriations subcommittee where he was pressed on the decision to leave the slush fund in a lockbox at a local fire station And AAG Blanche's answers were How do I say this very revealing Listeners Acording to Blanch Although the administration is abandoning the slush fund, more on that in a minute, It is not actually jettizoning the part of the wink, wink settlement that insulates the president, his family, and their corporations from IRS audits. And to be very, very clear, Blanche stood ten toes down on this. T Some other interesting nuggets emerged in the Tuesday hearing When pressed on whether he would commit in writing to rescinding the order to create the weaponization slush Fund Blanche refused It seems like he learned what Leah and Stinger Bell have long advised. Listeners, you never take notes on a motherfucking criminal conspiracy I think he learned the opposite lesson because he put the motherfucking criminal conspiracy the slush fun in writing. and now he's refusing to put in writing the end of the criminal conspiracy. maybe Stringerbell would counsel different advice there just liked that he's like I' not writing anything down right now. That becomes relevant. right. So instead of memorializing the end of the slush Fund in writing, as many of the legislators were asking, Blanche simply assured the members of the subcommittee that he would abide by his word. Pinky promise between friends I know I feel reassured, Leah. I don't know about you. most trustworthy guy in the country or yeah anyay The administration's posture toward the slash fund is giving me real Allen versus Milligan energy back in twenty twenty three when they were like, don't worry, it's all good. And then psych, right? they like did the very thing we were all concerned about Not all of us were concerned, but okay, that's fair. That's fair. That some of us were concerned about Also on Blanche's whatever he is saying about the slush Fund. I think he's unwilling to be very clear about how he's going to kill the slush fund with fire, rightight? I mean he's being killed at all. Yeah. he says like he's abandoning it, but Maybe I'll come back to it. It's hard to say. is't like the First Amendment aban any exactly overruling, you many different shades of things you can do Exactly. I mean, this doesn't seem like the firstirst Amendments establishment clause where you know, it's just been abandoned and it really is going to be killed off with hot fire in some later decision. No, it does not. and his posture toward the slush Fund It kind of tees up questions about what's known as mootness doctrine. So mootness doctrine is, again, set of rules about when federal courts can no longer hear cases because there's no longer a live controversy or dispute And as we've discussed, a number of lawsuits have been filed challenging the slush fund. Now that the slush fund has been, quote, abandoned, wink There are questions about whether those suits are now moot Under Article I, federal courts can only hear lied cases or controversies when an underlying issue is moot, that is no longer a question to be resolved, casees no longer reviewable in federal court. So here the fact that the slush fund has been Abandoned, wink, might suggest that any suits challenging it are not moved And it's a big but there are a number of exceptions to the motness doctrine. One of them is what's known as voluntary cessation. Basically where a litigant voluntarily ceases the conduct that gave rise to the lawsuit, it doesn't necessarily mean the suit is automatically mooted. Instead, in a two thousand case, Friends of the Earth versus Lade Law, the court said that the party claiming mootness had to show it is, quote absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur end quote Not sure that absolutely clear describes words coming out of auditioning Attorney General Carte Blanche's mouth and the That's the president or the president. And the fact that the auditioning attorney generenal won't even commit in writing to killing the slush Fund might suggest that the slush fund like a zombie could be resurrected under more favorable political conditions Also doesn't help that the president also unclear whether he is abandoning the slush fund, so maybe these lawsuits continue just to ensure that the slush fund is in fact dead, dead dead. Another reason why it might be wise for a court to weigh in is that it seems that the number three at DOJ thinks that the administration might try other means for providing reparations to january sixth insurrectionists, which again, they just call Victims of lawfare So Stanley Woodward retweeted something by Lindsey Graham, talking about how Even though Senator Graham appreciated that the proposed weaponization fund wouldn't be moving forward, he was quote still of the firm belief that there are many victims of the weaponized Biden just department And the number three at DOJ retweeted that and said were' on it All of these developments are especially concerning given the legislative landscape. Now, as you may have heard, there's been a lot of outcry from the Democratic Caucus about the need to have codified limits on this proposed settlement, a codified end to this proposed settlement and the slush fund that it engenders. Well, guess what Early Friday morning. The Senate passed legislation to fund President Trump's immigration enforcement agencies. That was the basic compromise to kill the slush Fund to allow the funding for ICE and CPB to go forward. And Democrats had wanted to include some guardrails in that package in order to keep the slush Fund from being resurrected or being used to pay insurrectionists. However, despite efforts to include amendments to the creation of the weaponization slush Fund All of the proposed guardrails failed to secure the required sixty votes Basically, despite broad concerns, a majority of Republican senators banded together to defeat multiple attempts by senators on both sides of the aisle to codify ending or changing the settlement fund And when pressed about the lack of restrictions on the settlement fund in the final bill, Senate Majority Leader John Thon, remember him, noted that auditioning Attorney General Todd Blanche had already told lawmakers that the administration would not proceed with the fund Athon said, quote think what was talked about and then ultimately done away with is in my view, it's a settled issue Really, sir, well then I'm reassured. Brett Kavanugh, Nil Gorsuch, Amy Barret and others described Roe as settled precedent because it's also gettingiv also giving me that. Does this mean that I get to play Susan Collins and tell the world that I have some concerns? Well, no, not yet. You are allowed to say at this point, you believe them, they gave you promises. And then when they turn around to resurrect the slush fund, you can express some concerns. Okay, that's how I do with Susan Collins. Yes., exactly. All right And now we are back to auditioning Attorney General, Todd Blanche who might have been announced as the winner of America's top attorney general. So One reason why Todd Blanche is Asuring or might be assuring the senators that he is one hundred percent definitely against ever having an insurrectionist slush fund is that he might be halfway to the finish line and he needs these senators on his side So last week, the president nominated Todd Blanche to be the nation's top law enforcement official That's right, folks. It seems that lawless sick of fancy actually does pay off But as is often the case, getting the nod from the president is really just the first hurdle Blanche still has to clear the Senate confirmation process because the Constitution. That may actually be quite contentious for Blanche since he does have a lot of Epstein baggage and he does have a lot of slush fun baggage basically He's got more baggage than United Airlines right now, and he's going to need all of the Republican votes, which may explain why he is standing ten toes down on definitely one hundred percent killing the slush fund, though not in writing. It's very hard to please two masters, y'all, but as you can probably tell The ladies of strict scrutiny are rooting for Todd Carte Banch and some late breaking news after we recorded. Auditioning atttorney General slash maybe America's next top attorney genereneral, Todd Blanche, decided to put something in writing After even Republicans were pushing back on Blanche's refusal to put anything in writing, the Department of Justice filed a brief in federal court, arguing that a lawsuit challenging the Sush fund was moot because the plans for the slush fund had fizzled out. But the brief really went no further than Blanche's testimony in that it put his non denial denial in writing. The brief noted that the acting attttorney generenal told Congress that although quote, the reasons for the fund remain important The fund is quote, not going forward, period And it cited a YouTube clip Blanche's testimony to Congress. So there you have it, folks. somethinghing in writing. And now back to our regularly recorded episode Speaking of mediocre men, getting promotions Now that Tulsi Gabbard has stepped down as the director of National intntelligence, it's time for another wholly unqualified person to take charge of our national security. And that personon His name is Bill whole day Pulty's name sounds familiar. It's because he is the scion of Pulty Group, a residential home construction company. I first became familiar with Pulty homes when I was living in California, and I would see people twirling Palty signs at busy intersections pointing the way to Pulty developments. You may also be familiar with Bill Pulty because he has served as the head of the Federal Housing Finance Aency and the chairman of Fann May and Freddie Mac since twenty twenty five, obviously preparation for his new gig as the director of National intntelligence And it was in that role that Polte may be better known to Strictes as the dude who referred New York Attorney General L Letitia James to the Department of Justice for criminal prosecution, alleging James quote, falsified bank documents and property records to acquire government backed assistance and loans and more favorable loan terms end quote. accusation was James listed another residence she brouought as a primary residence when it was not in fact her primary residence. In july twenty twenty five, Trump accused California Senator Adam Schiff of mortgage fraud, citing a memorandum from Fannie May Senta Polte. Notably, the memorandum did not allege that Schiff committed mortgage fraud. Trump also called for Federal Rerve Board of Governors member Lisa Cook to resign accused her of committing mortgage fraud. Days later, Trump stated that he had fired Cook for cause Cook sued to contest her removal and that case is currently pending at the Supreme Court in Perfect timing Last week, Pro Publica reported that records show that quote, Trump did the very thing he's accusing his enemies of, which is to say that in nineteen ninety three, Trump submitted mortgage applications for two different homes, and both applications indicate that the homes would be his principal residence Those homes were' in. Florida, but weirdly at the time, Trump lived in New York. Indeed, as Pro Publica reports, it's not even clear Trump ever even lived in the two Florida houses. It's like Donald Trump wanted to do some mortgage fraud mogging on everybody else This is all to say that Polte seems to be exactly the right kind of sycophant to be in charge of national intelligence Again, a reminder, the Director of National intntelligence is someone who has warrless access all of our communications. I know we'll sleep better What could go wrong? And now, Melissa, I found a clip related to Bill Polte that I wanted to get your reaction for and that I avoided sharing with you in advance of the episode. So this is real time and live Here's the first ever man, live fucking tildo slap on the PP li Pulty. lookook at this fucking thing All right Come on Pner, Daddy. All right, bye There you fucking have it. the first Dildo slap in history live So Bill, this says Bill Pulty fucks. Where are you? And then if you notice on it's got a tramp stamp with a butterfly I like only the young. O As cheek Yes, it does say It does say only the young on the back here Only onng December firstth. That looks pretty badass. We have a mushroom stamp in the head of it and bed bath on one cheek and GME. Oh but She and me on the other. I got too excited there Ma Greatest I. What the fuck did I just watch? You watch our new director of National Intelligence He was in the suit. He wasn't getting slpped. He was in the suit. So he was not actually getting slapped with a dild Doo. He was just observing it. But he was on stage as a guy who was about to hand him an award was, you know carve with something like Fucks only the young watching that guy slap another man with a dildo I mean, I I' genuinely in shock. like it takes a lot to shock me Did I just watch? I don't know. I really don't know. How did you find that Who gave The interwebs? I found it on the interwebs and I sent it to Did you find it in the Mosphere? Becauseuse that seems like it was made by the Mosphere? So I have been doing a little research into the manosphere for a potential project I might be working on. put a pin in that and ye do you shower after the research? because I genuinely I've been showing I have times of myself. Seriously, no jo. L Oh my God, I just genuinely don't even know what to say. Thank you for not sharing that with me in advance I don't even know what to say. ruck Scrutiny is brought to you by Wild Alaskan Company Wild Alaskan comppany offers the best way to get wild caught, high quality seafood delivered right to your door on your schedule. Each wild Alaskan box comes with individually portioned fillets that are vacuum sealed, easy to prep, and great for any meal no matter how quick or how elevated All of their fish is quick frozen, fresh from Alaskan waters, which helps to lock in the freshness, texture, flavor, and key nutrients like Omega Thes This is fish you can trust. There are no GMO's, no antibiotics, or other additives Every order supports sustainable harvesting practices and Alaskan fishermen whose history is tied to the region and the practice My absolute favorite fish from Wild Alaskan Company is the Pacific Halibut. I love, love, love this. You put it in a little parchment boat, you put some other herbs around it, maybe some vegetables, pop it in the oven. boom, magic. Really, you just can't mess it up. It's that easy. And the flavor is absolutely fantastic. It tastes fresh, it doesn't taste frozen And the texture is so firm and lovely. it's a Chef's kiss, E I look like a good chef when I use this Wild Alaskan is so confident that their fish is the absolute best, and I can see why they're so confident, but they are going to offer a one hundred percent satisfaction and money back guarantee so you can try your first box risk free. Just go to wild Alaskan dot com forward slash drick for thirty five dollars off your first order of premium wild caught seafood That's wildalaskan dot com slash stick for thirty five dollars off your first order. Many thanks to Wild Alaskan for sponsoring this episode Strict Srutiny is brought to you by Aura Frames. Father's Day is right around the corner folks. and let me just say, Aura Frames is the perfect gift for the dad in your life Are there memories of your dad, your husband or your partner that always make you laugh? Are there moments that you've thought, I've got to get this framed. I've got to do this. Maybe from a family vacation, Maybe it's time with the grandkids, something from the first day of school, maybe a night out at your favorite restaurant Aura Frames allows you to preserve all of these memories in one place and make them accessible to everyone that you love. With Aura, you can add as many photos and videos as you want via the Aura app or by simply texting the photos straight to your frame You can even preload photos before your aura frrame ships, making it the perfect gift for the dad or gad in your life It couldn't be easier to shop for all of your special people who have special days in the month of June Aurarames was named number one by Wirecutter, and you can save now by visiting aarames. com And for a limited time, listeners of strict scrutiny can get thirty five dollars off, select frames with the code strict That's AU R A frames. com promo code strict And you can support the show by mentioning us at Checkout Terms and conditions apply It's time for the opinions we got last week from the court. Speaking of Dldoos across the face. Dildoos Dildos, and Supreme Court opinions. So we got three opinions from the court last Thursday. One of them was HICMA Pharmaceuticals versus Aarin. This case concerns a dispute between a generic pharmaceutical manufacturer HicCMA whose product can be dispensed for uses that both do and do not infringe on patents. So Amarin, which holds patents on uses of the branded pharmaceutical VSkea, a medication for which HykmA's product is a substitute, filed suit to hold HIkMA responsible when pharmacists dispense HykMA's generic product for uses that don't infringe on its patents, but Amarin allege Hikma was kind of elbowing people giving them the nudge to use the generic product for patented uses So at oral argument, the justices had seemed skeptical that HICMA, the generic manufacturer was doing anything to compel pharmacists to dispense the generic for uses that infringed upon the patents The justices seem skeptical of holding someone liable for someone else's conduct, and that skepticism bore out in the opinion. The court with Justice Jackson, writing for the majority, said that Amarin did not establish that HICMA, the generic drug manufacturer was actually trying to get people to use the drug in ways that would infringe Amarin's patent. The case was remanded to the lower court where Amarin can try again to make out its claim We also got an opinion in Street Patch versus SEC This case pitted the Conservative supermajority's antipathy for the administrative state and financial regulation against its antipathy for criminals In a unanimous opinion written by Justice Gcorsuch, the court held that the SEC can recover money that companies and individuals gained illegally, even if the agency cannot prove that investors suffered a financial loss. Writing for the court, Justice Gcorsuch explained that, quote, a showing of pecuniary loss is not required before an investor may qualify as a victim of an offender's wrongdoing entitled to compensation We noted that this was a unanimous opinion, but, as is his w, Justice Thomas would have gone further, which means it's time for another We need to talk about Justice Clarence Thomas segment In a separate concurrence that nobody joined, Justice Thomas suggested that there might be a seventh ammendment problem when the SEC seeks discorgement in proceedings within the agency's adjudicative structure, and that discouorgement cases may have to go to federal court and be heard before a jury Now, as is often the case with Justice Thomas's concurrences, This is an invitation to litigants to now challenge discorgement proceedings on seventh Amendment grounds. Basically, jarousy only make it discorgement Is it unconstitutional to send invitations to have a party, Melissa? I don't understand what the problem. Not if the party is to completely rewrite the Sventh Amendment Exactly. Speaking of the Seventh Amendment, and needing to talk about Clarence Thomas, the court issued a surprisingly sane ish decision on agenccy's adjudicative authority in FCC versus AT and T. There, eight members of the court, no points for guessing which cheese stood alone here, said that the FCC could impose what are called forfeiture orders within the agency's own adjudicative structure and therefore, without a jury. The Supreme Court said these forfeiture orders did not definitively resolve the party's legal obligations or even definitively settle factual matters and that before the agency can make a party pay, the statute requires the agency to go to court and prove the case to a jury While it's heartening that the court didn't go full throttle against the agency, I think it's important to note that the agency ended up kind of obeying in advance, conceding to some limits on its powers to avoid a seventh Amendment problem And this decision could also mean companies feel emboldened to give the agency SEC a harder time and say settlement talks by threatening to drag out proceedings and go to court. There's also language in the opinion that might call into question agency fact finding. Just some notes We do, again, need to talk about Clarence Thomas, who dissented The cheese stands alone. He said that because the companies paid under the understanding that forfeiture orders did definitively determine their rights, the case required some additional proceedings and relitigation based on the understanding that actually they were not so required. All right, let's do a little court culture. So folks, do you remember district court judge Jeb Boseberg who tried to enforce the rule of law in the face of the administration's recalcitrance earned him brick bats from the president, as well as an effort to impeach him from his judship Guess what Far from cowering, Boseberg decided to step up to the podium at Yale Law School's commencement too exhort the graduates to stand ten toes down on the rule of law and their own principles. Take a listen. The legal profession faces a pivotal moment onene that tests not just how lawyers practice, but the institutions they serve More than ever before, our news headlines feature lawyers in both the private and public sectors and the cases they are litigating So when you decide where you will lend your talents Make sure to take a close look at your selected institution. and ask yourself whether its principles and its values align with your own. For private practice, do you actually believe in the mission of the firm of which you are a member For those entering the public or nonprofit sector How comfortable are you with the priorities this entity espouses? Ask yourself if these are the missions you are proud to stand up in court to support Now do not mistake my message There are very few jobs in which you will always believe that every client you represent has the better of the case or the moral hround If you were to quit the moment you didn't believe your client deserved to win, you wouldn't hold many jobs for long When when you are representing a public entity For example, a municipality, a state or the federal government There's a meaningful difference between isolated disagreements with your client helping to defend policies that are wholly antithetical to your core values. I encourage all of you to have your own redline Each of you will put it in a different place But if you were asked to cross that red line You must decide whether you can do so and still look at yourself in the mirror or whether it's time to start searching for a new job. Wd up. Yeah, spepeaking of standing ten toes down on the rule of law, the DC Circuit concluded that the ban on transgender service members is unconstitutional discrimination P procedural note, the Supreme Court had earlier stayed a district court order in the case that had also concluded that the ban on transgender service members was illegal. And so as a result of this DC Circuit decision, This is going to put the case on the Supreme Court's regular docket. So the DC Circuit wrote that the case in part came down to whether, quote, we are going to fall for the old Groucho Marks line. Who are you going to believe meor your lying eyes, given that there was, quote, direct evidence that animus motivated, and quote, the ban on transgender service members. Now, this is a welcome instance of a court being willing to call BS on the administration's pretextual rationationales something that the Supreme Court has been lohe to do even when it has ruled against the administration. We should also note that the DC Circuit did limit the scope of the district court's injunction such that only current trans service members are protected. The injunction does not apply to aspiring service members at least during the pendency of the litigation because this was a preliminary injunction The DC Circuit used the Supreme Court's lack of explanation against it, saying that they didn't know why the Supreme Court had stayed the district courourt order, and maybe it was because they disagreed about the scope of the remedy. So this again, almost certainly tease up the case to go back to the Supreme Court, but on its regular argued docket One final piece of court culture, which is I wanted to highlight something that is happening in my home state of Michigan which is supposedly represented by two Democratic senators. So in May, the president nominated one Michael Martin, the criminal chief for the U.S attttorney's offffice for a district in Michigan to a district court judgehip here in Michigan. And we are apparently still waiting to learn whether our esteemed senators, again, both of whom are ostensibly Democrats, Senator Alysa Slotkin and Gary Peters will return a blue slip on Martin and allow Martin to get a confirmation vote, which would almost certainly result in his confirmation or whether they will instead deny a blue slip, which would block Martin's confirmation Putting aside general issues with returning a blue slip given current conditions Doing so for Michael Martin would be Astonishing, appalling, a perfect example of why Democrats hate the Democratic partarty. Let me elaborate for a bit So while Martin was head of the criminal office, two esteemed career prosecutors were fired from the office Seemingly because those prosecutors had the audacity to enforce a federal law freedom of access to clinic entrances or Face act, which prevents threats of force or intimidation against reproductive care facilities As head of the office, Martin almost certainly would have had to sign off on those firings and removals Also, even though Martin is a U.S attorney in Michigan, he may also have been involved in the vindictive prosecutions arising out of Operation Metro Sge in Minnesota killings of Renett Good and Alex Preredty. The investigations related to those as well Remember, there was a mass exodus of U. S attorneys from the U.S Attorney's office in Minnesota because The Department of Justice was reportedly investigating Renee Good's widow rather than the immigration officer who shot Gs And while the principled U. S. attorneys in Minnesota refused to go along with these cases There's some evidence that Martin may have volunteered to step in. Specifically, at least one case against a Minneapolis protester was filed in the district where Martin is the criminal chief Again, given that he is the chief there and that the case was filed by an assistant U. S attorney who reports to him It seems somewhat likely that Martin would have had to sign off on what many view as the politically motivated prosecution and persecution of protesterors Democratic senators. If you are returning blue slips on a guy who may have fired people for enforcing the FaceE A and may have jumped in to facilitate the administration's efforts to terrorize Minnesota and its people, after the administration's actions in Minnesota prompted mass resignations of federal government lawyers are you even doing? Democrats don't have a ton of power right now, but blue slips are one area where they do Grow a spine, grow up, do something. I have called your offices and now I am blowing this up on my podcast because this is my right And now be sure to stay tuned for a great conversation that Melissa had with Judith Resnik about her recent book This episode is presented by Planned Parenthood Federation of America If you listen to strict scrutiny, you already know This administration, Congress, and the courts have spent the last few years making it harder to get health carere in this country and itss patients who are paying the price Take the Supreme Court, for example. It paved the way for states to exclude Planned Parenthood health centers from state Medicaid programs in Medina versus Planned Parenthood This undoubted violates patients' rights to get care from quality providers that they choose. And last year, the Trump administration and Congress defunded Planned Parenthood, trying to shut down Planned Parenthood centers and to block patients with low incomes from accessing birth control, cancer screenings, STI testing, and so much more. That's why Planned Parenthood is fighting back But fights like these take resources and supporters just like you No matter the size, your donation makes a real difference, helping Planned Parenthood meet this moment and protect patients' access to care when and where it matters the most. If you believe all people should get health care, no matter their income, donate now at plannedparenthood dot org slash deffend All right, shifting gears for a moment. As we've discussed in prior episodes, there have been a couple of cases on the Merits docket this year that concern the rights of prisoners and the administration of correctional facilities. In November, for example, the court heard oral argument in Lander versus Louisiana Department of Corrections and Public Safety That was a case that considered whether a government official can be sued in his individual capacity for damages for violations of the Religious land use and Institutionalized Persons Act of two thousand, also known as Ralpa We're still awaiting a decision in that case, but the court has actually heard and decided two other cases about habeas relief for prisoners, Klein and Bow In addition to what's been going on at One First street, we also have an administration that has also had prisons on the brain. This administration has been unceremoniously sending people to foreign prisons and building prison style immigration detention centers all throughout the United States All of this suggests that this might be an especially opportune moment for us to consider Prisons, prisoners' rights, and our approach to punishment. And today we have the perfect guest to help us do just that Judith Rresnk is the Arthur Lyman prorofessor of Law at Yale Law School and the founding director of the Arthur Lyman Center for Public interestnterest Law She is a prolific scholar, and her research interests are truly wide ranging, everythingthing from procedure and federal courts to equality and citizenship. And at the intersection of all of these topics is her interests in prisons. She's one of the nation's leading experts on prisons, prisoners' rights and carceral conditions, and she is the author of a recently published book impermissible punishments, how prison became a problem for democracy. Judith, welcome to Stris Hur. Dellighted to be here. This book is a very heavy book The book is sweeping, it is historical, and it begins in Arkansas As you explain, Winston Tally, who as an Arkansas prisoner, made at the time a radical claim that he and other incarcerated men were being whipped and their whippings were actually in violation of the Eighth Amendment's prohibition on cruel and unusual punishment Can you tell us more about the Tally lawsuit and what happened at each stage of the litigation As far as I know, he's It was convicted of very low level crimes, not part of a political social movement But he had an idea that makes that we need to understand he's a significant theorist of prisoners of rights in general So if I just back up for a minute Enlightenment era The ennlightenment interruption was, excuse me monarchs, You can't just be arbitrary. You need to be purposeful These people These enlightenment thinkers Great. men. brought us to a contemporary world in which it is accepted Punishment is supposed to be purposeful What Winston Talley adds to this understanding is Wh you may punish me deterrence or retribution. You can't punish me like this. And he asserts the idea that he's a rights bearing member of this poly and saying you, the cororrections establishment, you, the state of Arkansas are limited, yes, you can punish me, but you can't whit me So there's a lot going on here. and I think it's great that you're connecting it to the past and the theories of punishment that many of our one O listeners will be familiar with retribution, utilitarianism. The government just can't punish people. There has to be a reason for it. This is one of the principles of imited government on the very basis of democracy. Winston Tallally, who, I think, under most circumstances would have been understood as someone who is civilly dead because he has been in prison, is actually saying, I'm not civilly dead. I may be incapacitated for this purpose, but I have rights that you are obliged to recognize. And one of those rights means that you cannot punish me using an impermissible punishment. and to his mind The whipping violates the eightighth Amendment's prohibition on cruel and unusual punishment. What does the court say First again Thanks, the judge. let the guy in. Second, appoint a lawyer Third, no retaliation, fourth, sorry. The eighth Amendment doesn't rule out whipping because we defer to correction officials And furthermore, Delaware whips, other places whip. It's not cruel and unusual punishment. This is in the nineteen sixties. Delaware whipping? Well, Delaware has a statute that permits it It's nineteen sixty five and the judge says only not cruel and unusual punishment if It's limited to no more than ten lashes at a time If it's based on a list of factors that you, the prisoner know in advance If you violate this, you could get whipped. And if the decision is made not by the person who's lashing you at the moment, but by some administrators. Okay. And the next step is Well actually two steps First is one might assume because it's perfectly appropriate to assume That enslavement and whipping are intermeshed and therefore, that Winston Tally was a black man. Winston Talley was a white man. Winston Tally and a whole group of other white men and lots of black men were mercilessly whipped in the Arkansas system for not working as they were told or other picking enough cotton, Not picking enough or not insubordination or whatever A couple of years later, three more white guys, William Jackson being one of them go back to prison and they say Actually, those rules aren't being obeyed, plus you shouldn't whip us at all. The judges again say Great lawyers, Arkansas step up There's a three day trial, and you can, if you want to look at the URL, read the six hundred and forty pages of the transcript of the trial and federal judges here People who are the staff in Arkansas saying We were raised by the whip, We whip our children. This is what we do And second, they also heard the person who was the former head of the Bureau of Prisons of the US. saying whipping is medieval and actually out of bounds And they also hear from many prisoners the utal, horrible intrusions on their bodies. Somebody pulls down their pants, shows the injuries And the judges say It's not cruel and unusual punishment. you can whip if. And again with these limits as a matter of eighth Amendment law. procedural due process. But it's only not cruel and unusual if you whip within these constraints. So this is sort of interesting. and it reminds me of the NAACP Legal Defense Fund's strategy for dismantling Plusy versus Ferguson. L they don't start with Brown. like this is just per se unconstitutional. They argue first that separate but equal has standards. it actually has to be equal, if it's separate. So the initial litigation that ultimately culminates in Brown starts off as just trying to hold the South to account. L you don't actually have equal facilities. They're separate, yes, but they're not equal. And this almost seems like what the courts are doing here. We've set out these standards for what constitutes appropriate whipping in the context of prison and you're not doing this. We have all of this evidence that you're not quite doing this. Yes and no. First of all, these prisoners are one offs. They're not The ACLU will come in. Well they the judgees all treat it as if it's a class action. Okay. It's going to apply to everybody white and black in the facility There's the lawyers who represent them are the head of the commercial bar of the Bar association. They're not civil rights lawyers. They're not the ACU or the IncFund at this time M will come the way to appreciate what the judges are doing. is they may well have thought Be they put these constraints on And it's a hugely public read every day, the Arkansas Gazette and the Arkansas Democrats the executive branch would in fact stop whipping, which are. Well, both to Ter and also We don't we, vulnerable Arkansas federal judges don't need to spend our political capital because it's going to end. We spent our political capital by putting it all in front of you as vividly as we could They are sort of right Be there's a move to stop it executively, but sort of wrong because it keeps going on And then in nineteen sixty eight Judge Harry Blackman before he became Justice Harry Blackman was sitting on the eighth circuit. He wrote the opinion, which he called the whipping case for the three judges saying you can't whip. It violates the eighth Aendment. Okay. You're out. Terry Blackman. As a judge of the eighth Circuit, which is the appellate tribunal that hears the appeal from from Arkansas. fromr one of these. We got to get. Arkansas is the only formererv Ced Cfederate state that is in the eighth circuit And the Congress did that on purpose, stuck this state in. They fed courts everywhere. It's like all here. Stuck it in to get Northern control over Arkansas All right, so Harry Blackman is like, okay, we're done with the whipping. There's no standard for whipping. whipping is per se, an impermissible punishment. And you argue that that decision reflects what you call an anti ruination principle, this idea that impermissible punishments are those that uin the person. And you're not just talking about physical ruin, but like just the dignity of the person, the mind and body and spirit of the person, and that whipping is one of these punishments utterly ruins a person and the government cannot do that. They can do a lot of things to punish you, but they can't do that Blackman is taking out for the first time in US. history, a punishment that is justified as disciplinine as in making you do the discipline of the work and the routine. first time ever across the board for anybody in the Arkansas system. But he is not prepared to say, I'm going to give you a grand theory of the limits on punishment. I'm just going to say this one's out and I'm going to distinguish it from some of the other stuff, which you can do. by the way, he mentions voting disenfranchisement. as something that of course you could be able to do. The district judge who had first appointed the lawyer in ' sixty five sits and presides over civil rights indictments criminal by the Nixon administration of prison staff that is brutalizing these people in ways I don't even want to talk about. And then those juries acquit in Arkansas. And in nineteen seventy district judge says the entire system of Arkansas's prisons is cruel and unusual. It's an evil and dark world and it's unconstitutional So within five years of opening up and listening to the grotesqueries inside the system federal trial judge says You have to stop the system for the next system as a problem. And for the next fourteen years, they're debating what that means. So the cusp of the question is between once prisoners are rights holders and persons. notot civilly dead What does it mean to be a rights holder in prison? R? What are the limits? What are the permissible and what are the impermissible? And then I say, if you try to look at the way the law is groping toward and some other legal systems are, what we should understand is in a democratic order, You can't set out to ruin people. so you can You can deter, you may be able tocapacitate, you can be mad and retribute if you want. You can't use things that take people down and out So the anti ruination principle is your invention and you use it to sort of render legible what the courts are doing during this period where they are invalidating the use of whipping in the Arkansas prison. They're invalidating the Arkansas prison system as utterly cruel and unusual and inconsistent with the eighth Amendment. In your view, what undergirdts all of this is the idea that this is a system that is meant to ruin people. It goes beyond simply deterring other people from doing crime. It goes beyond incapacitation, it goes beyond retribution. It's about ruining people. And in a democracy, that can't be what the government does I want to focus on this anti ruination principle because You've talked about it in the book in the context of the eighth Amendment, but One might argue that Sards or glimmers of the anti ruination principle are evident throughout constitutional law. and maybe even in just the whole idea of limited government. So inlanned Parenthood vers. Casey, which is the very famous abortion case from nineteen ninety two, the court talks about the impact of a forced pregnancy on the life of someone who is forced to bring a child into the world against her will. And they talk about the idea like it fundamentally changes her life. It might even ruin it. your life. So I think we might see a glimpse of the anti ruination principle there and A decision as momentous as whether or not to become a parent cannot be one made under the compulsion of the state. In a similar way, we might see evidence of the anti ruination principle and just the fact that the Cstitution itself is about designing limits on the state. Have we moved away from an anti ruination principle N notot just in the context of the eightighth Amendment, but in the context of our government and what we understand to be limited government So Prisoners suffragettes in the English system in the nineteen twenties. say rights When the world of rightlessness, it's after World War I that a group of people in England, a wonderful group of women feminists were bringing to the fore the need for an international convention for rights for prisoners because prison could be torture and you had to treat E person in detention political or not the same And they proposed a standard set of rules that this international organization took over, but didn't This IC. This is the International Penal Penitentiary Commission. and it agrees to draft rules that it promulgates that the League of Nations promulgates in nineteen thirty four. in nineteen thirty four Hlerk Germany in nineteen thirty three. and this organization meets in nineteen thirty four in Berlin, where they hear how great Hitler's just eugenic system is. The idea that you want to say, this goes to your general idea that limit on government power And we also have to talk about obligations of government. We'll get to that in a minute Yeah. But limits on government power feear of arbitrariness. Prison is the o place where you have sovereignty encompassing you And' arbitrary and terrifying power And it is at nineteen fifty when this interternational immunob penitentiary Commission is about to close its doors that it has its final meeting at the Hague and a man who had run the Belgian prison system speaks. he'd been briefly interred by the Nazis. and he says Prison will be seen as primitive as corporal punishment because of its radical intrusion on autonomy So somebody who's been interred is now speaking. to that experience, even though he's been a prison official. Right. So if we're looking at the idea of both obligation and constraint government can do something to you if you've done something wrong. But let me also get to this idea of its It should be the government can't set out to ruin you no matter who you are, whether we call it punishment or not. So if I'm in detention, because you're a migrant If I'm trying to take you off the streets because I think I should be taking people off the streets whether I've convicted you or not, the insight is you can't people down or out because we're all equals in this democratic order. R And that's a stumbling block. It makes it harder punishment taking on the burden of putting someone under your care and supervision is a burden that you should do as little as possible because it's a huge amount of activity Jeremy Bentham said some people grudge giving prisoners anything And other people bemoan that they don't have things And what he's got is the emotions that attach. when somebody's done something wrong form the capital, if you want that as an example, just off the top of your head How do you express the wrongness of that? And at the same time Don't you begrudge giving those people something because they did something so bad So there is Bentham's a mode of analysis of the complication of punishment which is that It's a reciprocal relationship in which now in a democratic order you have to recognize the equality of the person. and it's also hard and we shouldn't catch our breath to say It's both a burden in the logistics. It's also a burden emotionally because you have mixed emotions about giving to people who've done something really bad so You could also just pardon them. I've heard that's been done. Separately, the point about Reciprocal obligation is really important here. So you note that one of the things that's unusual about punishment, maybe even particular about punishment in the American style is that this prisoner now becomes a ward of the state almost. is under the care of the state and indeed becomes dependent and reliant on the state for care. And in your view, that engenders certain obligations, affirmative obligations on the part of the state continue even after the period of imprisonment. are the obligations of a democratic society to the people that are imprisoned both while they are confined and then when they are released. So well get you right back to constitutional law and strict scrutiny because here we are with the U. S. Supreme Court saying in nineteen seventy six If you incarcerate someone, you have to give them health carere. You can't be deliberately indifferent to known medical needs because that's cruel and unusual punishment. They could have said, that violates their liberty. And of course the answer is it's both cruel and unusual and it violates their liberty. But so the idea is that one of the rare pods of affirmative government obligations health care of some form, however limited it might be because you have incarcerated Footnote Jeremy Bentham said in the Penopticon contract, we got to give him health carere. We got to give him food. we can't kill them. We got to keep him safe. In fact, we want to incentivize if they want to go work. So we're all in on that. So there our affirmative obligation, one way to read food clothing, the one point five million person housing project called incarceration is you are provisioning, sadly, provisioning for people who should be not incarcerated as well as for whatever number you think should be punished in some way or other. But you are in the middle of a burdensome relationship that as a matter of constitutional law, statutory take care law and moral obligation is to take care of the who are in your care and custody. Now then the question is, what does that mean? And one of the purposes of the book is to show you what an incredible construct prison is. There's nothing normal about it. It's a group of people who sit in fancy European capitals and rationalize sets of radical control over people. And so you could be incarcerated and wear your own clothes You could be incarcerated, and if you're in Italy with its constitutional court, cook Because you have a right to cook because normal people cook So The sort of what's the normal is what we make normal. And once whipping was normal. So of course, the reason to start with whipping is to get people's attention to say, wait a second How can I help you see how utterly abnormal The practices of prison are? The idea that these cal conditions are entirely socially constructed, like we do this invent solitary confinement, invent whipping. use whipping for this. You didn't invent it, but you applied it in this way, but you did invent the incarceration state. and there are different versions of it. It's not the only one. And then the question is Is it doing anything that's okay? And the answer in terms of ruin is let's talk about the staff. Mental illness, physical illness, blood pressure the peoplein the prison. Prison is a toxic environment for people who live there, whether it's four hours, fourteen hours twenty eight hours in whatever period of time People are not doing well in Metal concrete noisy, dirty environment in which High security is apparently everywhere, but everybody's really insecure because it's really scary about the relationship between prisons This anti ruination principle and the idea of limited government and where we are right now as a democracy and like I'll be very bald about it Many people think we are on the precipice of no longer being a democracy. How does our approach to prisons reflect that precarity One way to respond is to say There's been The conceit that whatever you do to prisoners is different because they're prisoners. We're watching a federal government being willing to order the murders of people in boats offshore. to grab people off the streets So the continuity of treatment, which comes back to your light motif of limited lawful government, it's not just limited government. It's lawful government. And so if you're looking the treatment of the people inside and the treatment of the people outside, if they're pushed aside as the people who could be subjected to horrible treatment ungodly, terrifyingly comparable. And so therefore, the joint project is to reject those forms of treatment in or outside. And one of the things, you know, Europe is validated is, o, look at Europe, they do better. What they do better is provide social services inside and out, coming back to your healthcare in prison and annoying, how come they get it and I'm not in prison and I don't get it. The answer in many European countries is everybody gets it and some education. So I'm not giving prisoners more than I'm giving other people. I'm treating people the same. And of course, the purpose of this concern is the ruin isn't just of the person, but of the body politic. It's a really terrific point The book is called Iperpmissible Punishments, how prison became a problem for democracy The author is the indomitable Judith Resnik, a fantastic scholar, a really incredible thinker and someone who has made the question of prisons accessible And again, just urgent for this particular moment. Thank you Thanks And now for our favorite things. One of my favorite things are elected officials who hold political power actually standing up for democracy and doing the right thing. And so I wanted to highlight a speech by Pennsylvania state Senator Maria Colllette, who gave a speech to the Pennsylvania Senate on Louisiana versus CalA. on Very, I think important that Again, officials are not letting this one go and speaking to their colleagues and the public about it There's also a recent just published law review article on autocratic judging that just came out in the UCLA law Review, and it is written by Two law professors, Rebecca Brown and Lee Epstein, very important timely work and worth reading Another piece, Meghgan Wokspress wrote at Liberal cururrents called AOC for President, I just think has a really nuanced and sophisticated discussion about feminism and feminist politics, and I really enjoyed reading it. Megan is about to start as a professor at the University of San Francisco, so definitely watch out for her writing. Also I wanted to highlight Mara Gay's opinion piece in The New York times she went to Alabama to kind of report on the aftermath of Louisiana versus KellA and the redistricting there. It is a searing read and worth reading in full. It's called a shocking betrayal of Black Americans. It's kind of hard to rebound after that Margay citation because that was a searing piece in the New York Times. I will just say that it was a fun week for me because I was on the road promoting my book, The Constitution, a comprehensive and annotated Guide for the modern Reader. I went to Philadelphia. I was in Washington, DC. It was super fun. I'm especially excited to get back home though and find Some new reading delivered in advance for me L. Melissa, it's the building up aperackress version. It's so light. It fits in my bag. I had no objections to carrying around the hardcover, but I do like this paperback for summer. I also like the new material, which is thank you So fun, so funny. It almost makes living through this moment okay, but not really. So no, not really. You got close, but you didn't actually. Yeah. ye. I wasn't trying for that. I was not trying to make it okay. You did not stick that landing, but this is fantastic. Highly recommend please go and read. Because I was on the road, I got to meet a lot of people. I just w to shout out some of them. Shout out to one of our favorite friends of the pod, attorney Genal, forever atttorney General, Eric Holder, who joined me in conversation at Politics and Pse in DC on Wednesday evening. Such a great night, packed house. thank you to everyone who showed up Guess who showed up, Leah Best intern ever, B intern ever. Jordan was right there. Also with Jordan was Natalia, a rising One L at Harvard Law School, Kit, my former student, all there in the crowd. I met lots of great people. Shout out to Eleanor, who is a high school student who is thinking about law school and has read all of our books, so good for her I also got to attend in Philadelphia, the Committee of sevies's Women in Public Service Breakfast that was on Wednesday morning. Want to shout out to Andrea and the other stricties that I ran into. It is a really great event where they honored Kittie Colbert, who as we all know, was the person who argued Planned Parenthood versus Casey and has continued to fight for equality throughout her long career rear I Also want to give a big shout out to recurring friend of the pod Sky Perryman and the great folks at Democracy Forward who let me crash their retreat. They were fantastic. It was an amazing retreat at Audi Field in DC. That's how big they are. They're fighting for democracy and they need a whole soccer field. to hold them. and it was fantastic Also a shout out to Strictty Rachel, who I met standing in line at the Predeminger in Union Station on my way home. It wass a little embarrassed to be holding two sandwiches because I couldn't decide. I wasn't gonna eat them all. but I wanted to be able to try both of them. It was really great to meet her Finally, DC stricties, If you have an opportunity, please check out the artist Ear Lyman's amazing exhibit at the Krieger Museum. Lyman is an amazing artist who by training is a lawyer and his work is infused with themes of law and justice and equality, and it's just truly arreing. doeses a lot of work in multiple media collage, sculpture, it's just really fantastic. And the Kreeger Museum is an unsung gem as well. It's like nestled in a neighborhood in DC, a private home that's been turned into a museum and they have just a fantastic collection. please Get out there and see it. The show runs until July Speaking of Uersung gems in Washington, DC, if you haven't heard yet, tickets for Crooked Con twenty twenty six are on sale now You can expect potential presidential candidates, campaign strategists, pollsters, organizers, journalists, creators, and crooked podcast hosts like me, who knows, maybe I'll even deliver a read to some potential presidential candidates. I la my take on the Michigan Senators. Anyways, Crookedon comes just days after the midterms, We will have a lot to learn and a lot to do, a lot to get ready for for the next two years We'll kick it off on Thursday, november fifth with a Pod Save America Lve show. Then on the evening of Friday, november sixth, you can catch us at Strict scrutiny line. Oh my God, the pod bros are opening for us. I know. I know. finally Nature is madeing. Nature is healing. Touch grass, touch gr. And on Saturday, november seventh, join us for a full day of crooked C panels and meetups Crokedon. com to get tickets and more details, including how to become a friendriends of the pod subscriber for a special discount. We can't wait to see you there