Dissenting Opinions

A Court with a Mission (with David Strauss)

Episode Summary

Will is joined by UChicago law professor David Strauss to discuss Congress's power to enforce the Constitution, recognized by Katzenbach v. Morgan, and whether there's still any room today for the principles of the Warren Court.

Episode Notes

Will is joined by UChicago Law Professor David Strauss to discuss Congress's power to enforce the Constitution, recognized by Katzenbach v. Morgan, and whether there's still any room today for the principles of the Warren Court.

Audio clips are from Oyez.org

Episode Transcription

Will Baude:    Welcome to Dissenting Opinions, a podcast by the Constitutional Law Institute at the University of Chicago Law School. I'm your host William Baude and each episode will have top legal minds discuss a Supreme Court case they believe is misunderstood.

[David Currie Audio]:       Section five, the Congress shall have power to enforce by appropriate legislation the provisions of this Article.

Will Baude:    Thank you David for joining me for this conversation. As I think I explained to you when I tried to rope you into this. The basic idea for this season of the podcast is to talk to people about Supreme Court cases that many people think are mistaken or set of been passed by or given up on, but that have some underappreciated virtues. And I know the decision we've talked about is Katzenbach versus Morgan. I think, well was one of the things we can talk about I was going to say, I think this case is no longer a good law, but maybe we could talk about that too. So I thought we'd just first talk a little bit about just what it is for, people who are listening who don't have it at the tips of their tongues, and then what's happened to it, why it's been passed by, and then why that's a mistake and why it has these virtues. So, can we start with what it is?

David Strauss: Sure. Katzenbach against Morgan was the case decided by the Supreme Court in 1960... I think it was 1966.

Will Baude:    That's what I have.

David Strauss: It involved the provision of the Voting Rights Act. It was a very narrow provision of the Voting Rights Act. What it did was to say that, if you had literacy in Spanish, which was defined by certain educational qualifications you were entitled to vote, even in a state that would otherwise require literacy in English. Now, to some extent that specific issue has been superseded because a later version of the Voting Rights Act outlawed literacy tests across the board. But at the time literacy tests were legal or constitutional and legal. And there were a number of people, this is people in New York city. A number of people in New York City who were disqualified for voting. They were American citizens. They were from Puerto Rico. They had perfect literacy in Spanish, high educational qualifications, but they couldn't test the English language literacy test. And this provision of the voting rights act gave them the right to vote. It was challenged by some other New York voters who said that giving them the right to vote diluted their vote and that Congress did not have the power to do this.

[Case Audio]:       The upshot is that Congress is largely responsible for the present predicament of Puerto Ricans residing in the states who are educated and otherwise qualified to vote, but who are denied the voice in the political process solely because they do not read and write English. It was therefore quite natural that Congress should feel a moral obligation to remedy a problem of its own making when the affected states declined to solve it themselves.

Will Baude:    Yeah so, the Supreme Court says they do have the power to do this. This is something Congress can do because it's part of enforcing the 14th amendment. Right?

David Strauss: Right. That's what was the interesting part of the case, the part that is, I think now actually longer good law and that raises the questions Will that you asked it at the opening about whether this is to be lamented, that it's no longer good law. The court gave a couple of reasons, two reasons. One of which really has not really not given much traction at all and does not present such interesting questions. The other of which presents very interesting questions. One reason the court gave was, maybe Congress concluded that people from Puerto Rico were being discriminated against in New York and this would give them additional political power. So it was a tool to fight discrimination. There are lots of obviously tricky things about that, about empowering people to vote, who would otherwise not be empowered to vote because you think they are being discriminated against. And that's kind of faded from the scene quickly.

            The more interesting part of the opinion and the one that really raises your question. The question that you asked Will. The court said pretty clearly not a hundred percent clearly, but pretty clearly that in enforcing the 14th amendment, Congress is not limited to taking steps against things that the court itself thinks violate the 14th amendment. Congress has the power to determine that some things violate the 14th amendment, violate the equal protection clause, whether or not the court on its own motion so to speak would agree with that. The Congress could certain things as constitutional violations beyond what the court considered to be constitutional violations. And that was really the really interesting part of that Katzenbach against Morgan and the part that I think is worth thinking about in the frame that you outlined.

Will Baude:    Yeah. That's what I really want to talk about. So the Supreme Court says, literacy tests are constitutional and then Congress says, no, we think they're not constitutional. And then the court says, well okay, you win. If you think they're not constitutional, I guess you're right. Even though we thought otherwise. That's interesting. And I guess then the last piece of background before we talk about the merits maybe is, now I think we both agree this is no longer good law. So Congress can't do that anymore. Why is that?

David Strauss: Yeah, I think that is right. The case of City of Boerne, which was the case involved in the constitutionality of the Religious Freedom reformation act, Restoration Act sorry, reformation religions natural pairing, but not in the case of that particular statute. Congress in that Supreme Court in a case called the Employment Division against Smith, had said that laws that burden religious exercise but aren't targeted religious exercise or ordinarily unconstitutional. That was a change from the previously existing law, which had said those laws have to pass something like strict scrutiny. Congress was unhappy with that passed RFRA, that statute that restored the earlier regime and the Supreme Court said, no we've interpreted the first amendment to say that these laws are generally okay, Congress, you can't counterman that and say that they require special justification. That really only had application to state and local laws because of course Congress can do whatever it wants in changing the regime that applies to its own laws. But as the state and local laws, RFRA was unconstitutional because Congress had redefined the constitutional right and the court said, you can't do that.

[Case Audio]:       Congress' power on section five extends only to forcing the 14th amendment. Legislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power. However, Congress does not have the power to decree a substance of the 14th Amendment's restrictions on the states. One of the line between measures that remedy and prevent unconstitutional actions and measures that may accept change and the government mean law is not easy to determine. And Congress must have wide latitude in determining where it lies. The distinction exists and it must be observed.

Will Baude:    We said that these laws are not burdens on religion. You can't say they are. So that's sort of the reverse of the Katzenbach versus Morgan situation.

David Strauss: Right. Now I should say that, it wasn't Katzenbach versus Morgan wasn't really locked in ever, even in a few years after it was decided it wasn't clear the court was firmly committed to that position. But any embers that it might have had were extinguished by City of Boerne, the RFRA case.

Will Baude:    Yeah. Okay. So now let's talk about why this is maybe a good idea. I mean so the naïve view, and you'll know this is the naïve view and you'll know this isn't even my view, would be something like well, Marbury versus Madison says that the courts are in charge of interpreting the constitution and Cooper versus Aaron in the Little Rock controversy just a few years before Katzenbach made clear that the Supreme is the ultimate arbiter of what the constitution means and nobody else gets to question them. So if the Supreme Court says literacy tests are fine, like the constitution says literacy tests are fine. That would be the naïve view.

David Strauss: Yeah. Well, a couple things to be said about that on a couple of different levels, I suppose. One is that in real life, the idea that Congress can enforce existing constitutional rights or exercise constitutional rights that the court agree exist, or exercise powers that the court agree exist. But can't go beyond that, that line erodes. So the idea that Congress can, let's take a different example but connected to this. Congress can regulate commerce among the states, as long as it's really regulating commerce among the states, you can't redefine commerce among the states. Well, I mean to a large extent, that's be an artificial line. Congress has done a million things in the course of exercising its commerce power and the idea that no, no, it has always stayed within a definition of the words of the text that the court provides and has only acted within that, that's a fiction.

            I mean, when Congress and Congress' decisions about what to do in regulating commerce have the effect of in practice defining that power. So it's not as sharp a line, not as big a step as it might seem. I guess the other thing I'd say is to put Katzenbach against Morgan in the context in which it was decided, which is in a way both makes it more interesting and maybe makes it less interesting in the sense that it might belong to a bygone era, which was, this was the height of The Civil Rights Revolution. The Supreme Court had an away taking the first step in Brown against Board of Education. Congress then in the mid sixties, began enacting Civil Rights Laws. And it was very clear that the Supreme Court at the time, the Warren Court, could not out of the way fast enough that it was eager to hand off the project getting rid of Jim Crow in the south, eager to hand off that project to Congress, not just willing to not just deferential. It was dying for Congress to get into the act.

            And the more it could encourage congressional action the better in the views of those justices. And I think if you think of it that way, that the interpretation of the constitution, there's no reason for not to be a joint project. Multiple institutions can play a role. And it's sometimes it will be not only okay, but really a very good idea for a popularly elected institution to be playing a role in the interpretation of the constitution.

Will Baude:    So why is that? So maybe this is a historical context question, but like why was the Warren Court so eager to hand it off? Now we've drunk so deep at the waters of judicial supremacy from Justice Kennedy to John Roberts that, now it's easy to imagine the court saying, no, no, we got this. This is our job guys. Thanks for the help. But the court saying, we got this. We're the champions of civil rights in America. So why didn't they feel that way then? Why did they want congress's help?

David Strauss: Yeah, great question. I think it's worth trying to recapture the outlook of that generation, the generation that really blew justices on the Warren Court, and not just the justices, but the legally elite and legal culture more broadly at that time. This was the sixties, which means these people came of age during the new deal. The formative experience for them was the courts overreaching, as they all believed in the new deal and being slapped down as a result of its overreaching. So you had that as really the central organizing, really the central organizing principle of their views of the role of the court.

            And then comes the attack on Jim Crow. Then comes, what are we going to do about this racial segregation, the south which really something needs to be done about that? And that created a lot of tension for this generation, that we have sort of lived by the rule that the court should stay out of divisive social issues, that complicated questions of social policy, politically inflammatory issues are for the democratic process, not for the courts. But here we are confronted with this moral and we believe legal excrement's that we need to do something about. It was a real source of tension for them in a way that I think for the current generation, including us, is much less severe because we have the both sides of this are not as prominent in our thinking.

            Both the idea that when the court overreaches it's going to get slapped down and was there. Something needs to be done about a system of racial oppression in part of the country. And for them, the perfect solution was, well, if Congress will do this great. That is the ideal solution. That's exactly what we want. It's not ideal for the courts to be doing this. That was a necessary, necessary evil is overstating it, but only a little overstating it. That was something we had to do. The ideal state of the world is one in which Congress deals with this. And in some of the deliberations of background against Board of Education, some of the justices were quite explicit in saying that the only reason we think we have to do this is because Congress will not. And in those circumstances, when Congress is willing to step up in and do something, the idea that they would say, no, no, no, this is our business. Unthinkable. Was not going to happen.

Will Baude:    So this is what's so weird is obviously even today, the Civil Rights Act, the civil rights era is recognized as a major important sort of precedent and as a heroic time in American law. But now the heroism is all Brown. The heroism is, the Supreme Court stepped in and enforced the constitution of equal rights. And then, of course Congress came into and that was good, but like the main story, the like people get one con law classes, maybe not yours or mine, but I don't know maybe yours, is that Brown, that was the shining moment in American law. And then the Civil Rights Act cases are not even good law anymore. Well, I think you saying it should be backwards. We should say really the central heroic moment is Katzenbach versus Morgan, Congress bravely going in there, the court letting them. And Brown is also good, but that's not the model. Is that right? And how did we get it backwards?

David Strauss: Well, I wouldn't want to disparage the contribution that Brown made because I think the perception of that generation that, even though we would rather not do something, we really have to. I think that perception could well have been right. I mean, there's lots of counterfactual questions raised by that. That may have been right. But I do think that what's gotten backward in a way, and this might come across as maybe more partisan than I mean it to be. What's gotten backward in a way, is people view the Warren Court as irritably activists, that they were judicial imperialists, that they among all... The idea that judicial supremacy was really dominant for them. The idea that we run the constitution, we control the constitution. That was their animating principle. That is quite wrong. One of their animating was, we want Congress to be doing this if possible.

            And the evidence for that is, that if you look at the Warren Court cases that have been overruled or sharply limited by subsequent courts with more conservative leanings, they obviously have an overruled Brown, they celebrate Brown. They haven't overruled Miranda, in fact, given the opportunity, Justice Rehnquist celebrated Miranda. They haven't overruled school prayer. They haven't overruled one person one voted, at least not yet. What have they overruled? Well, they've overruled Katzenbach against Morgan. They've cut back on Congress' power under the Congress clause. They've cut back on Congress's power under the 14th and 15th amendments. That's where you see really serious inroads on the work of the Warren Court. It was the work that deferred to Congress, not the work that set up the court as a dominant interpreter.

Will Baude:    Yeah. Maybe not partisan enough. The thing that puzzles me is, so you'd expect from that for judicial supremacy to be a kind of conservative idea because it's the conservatives repudiating the Warren Court's deference to Congress. And for the opposite of judicial supremacy, I guess departmental to be a kind of liberal idea. But it seems like no, judicial supremacy is an everybody idea. And the idea of questioning judicial supremacy is not current in any circles. And on the rare occasions, I try to question judicial supremacy. People look at me like I have two heads. And I think in Boerne, am I right? Do I this right? That none of the dissenters, nobody who wanted to uphold the Religious Freedom Restoration Act wanted to do so on Katzenbach. Nobody said, I think Smith was right for us, but it's okay for Congress to overrule it. I think the only people who dissented were people who thought Smith was wrong and they were relieved to have Congress backing them up.

David Strauss: I think that's right. And I think this is why Katzenbach against Morgan might belong to a bygone era. I think you can identify a couple of era's and could speculate an answer to your question, why is no one sort of taking the anti-judicial supremacy view today? We might be on the edge of an era in which some liberals will. But I think you could see sort of the Warren Court era as an era of both elite bipartisan consensus on the need to do something about civil rights and a Congress willing to do things. Congress was not paralyzed. A Congress that was willing to enact quite aggressive pro civil rights legislation. Then we moved into an era whereas it's much more and more difficult for Congress to pass things. And where the court actually, the sort of Rehnquist Court to a degree, you can see them as consciously or not executing a very deft political balancing act, where no one really wanted to trash the courts.

            The conservatives didn't want to trash the courts because they were doing very well on issues like Affirmative Action later, things like gun rights, and on limiting congressional power. The liberals didn't want to trash the court because of Roe against Wade. So we had this, and because a lot of the liberal losses were not unequivocal losses. They lost on Affirmative Action to some degree, but not completely. And on lots of issues, those courts kind of managed to strike what looked a canny political balance, whether that was what they were consciously doing or not. So I think that's why no one really had a stake in going after the court in the sort of seventies, eighties, nineties, two thousands. That might be changing. And I could see now that the courts, to the extent of court solidly conservative, I can see a revival of the idea among liberals that has been a historically of course, a progressive idea that the courts are not our friends.

Will Baude:    Yeah. So does the court half, and this is the Congress half, which you sort of also getting into, right? So the premise of Katzenbach versus Morgan, that there's a Congress out there that can be expected to enact swooping legislation taking its constitutional responsibility seriously also seems bygone. And is that, I mean you know but so many questions about that. When does that happen? How do we get it back?

David Strauss: Yeah, well that's a huge question and it actually, it sort of dominates administrative law as well as constitutional law. What do we do about a Congress that seems unable to enact law actually addressing today's problems? So we have climate change addressed through the Clean Act Act, which was a statute enacted for an entirely different set of problems and et cetera, et cetera. I think that's what the causes of congressional paralysis are, whether it's party polarization or just sort of internal problems within Congress, I don't know but it's clear it exists. And if you think about some of the things the court has done recently, that even if you think they were good things or the court's been asked to do but hasn't, it'd been much better if they bit that by Congress. I mean, if the same sex marriage had been legalized by an act of Congress, that would've been a Katzenbach against Morgan situation.

            So those in the courts not prepared to say there's a right to same sex marriage, but Congress is. Can Congress do that? That's the Katzenbach against Morgan question. And there might be other ways to legalize it by through various workarounds. But that really abhors that question, or the sort of progressive attack on capital punishment, which especially racial disparities of capital punishment, that really like a task sort of, if you think about it from the way that people on the Katzenbach against Morgan were thinking about it, that is tailor made for Congress, that sort of problem. It's a racial discrimination issue, to some extent regional. It requires some kind of nuance remedy. That's a legislative task. And because Congress hasn't been willing to step up to do that, the attack goes through the courts. And I think for a time when both sides were getting something that might have been a stable equilibrium, but I'm not sure it's it is anymore.

Will Baude:    And I guess I've always wondered, and this is just speculation. Do you think that like Boerne itself contributes to this? Now the doctrine expects so little of Congress, because we tell Congress, look you all can do nothing. You can just yell at each other, refuse to pass any legislation and we will let the executive branch solve all the big problems. The court will step into all of the major hot button issues, so you're sort of relieved responsibility. If the court had stuck to something else and said no, this is really your job and we'll let you do it, but we'll wait for you, would they have risen to the occasion or is that too cute?

David Strauss: My instinct is that's asking too much of them. I mean, this is as you know, this is one of the traditional attacks on judicial review in general, that it causes this kind of legislative, not really paralysis, but more like lassitude that we don't need to think that much about the constitution because the courts will take care of it. Some of that certainly goes on, but I think the causes of this in Congress run deeper than the courts will solve this problem. And that as I say, that you're right, that that's got to be part of it, but I think it is deeper. I think if there had been a way for Congress to deal with same sex marriage, a way internally that Congress had the culture and mechanisms to deal with that, it would've happened. And the idea that no, no let the court solve it would've been a minor factor. That's my instinct. But who knows?

Will Baude:    Yeah. So then I guess the last set of questions I have is sort of like, how would this work if we still did Katzenbach today. And again, maybe the truth is we can't because the conditions are no longer right for it, but I don't know, so I take it. I mean, so would the Religious Freedom Restoration Act be constitutional? Would section five of the Voting Rights Act be constitutional? I mean, would there be anything that Congress has done that this voter struck down that it was right to strike down or would it be sort of a green light across the board?

David Strauss: I think both of those would be constitutional as well as some other things that Congress didn't do that we could imagine it doing. The real question, and it's one that the opinion Katzenbach against Morgan tried to deal with in a footnote. The real question is, what about a law that could be characterized as coming back on constitutional rights. So in Katzenbach against Morgan, it certainly looked like an expansion of the franchise. On the other hand that people suing said, no, no, no, you're actually unconstitutional restricting our voting rights. So if for example, Congress were to pass a law that authorized Affirmative Action and circumstance in which the Supreme Court would not. What do we do with that? Is that okay? Because Congress has spoken on a constitutional issue and the court to defer or is it proper for the court to say yeah, you can expand constitutional rights, but you can't trample on people's, cramp obviously loaded word, you can't contract people's constitutional rights.

            Katzenbach against Morgan actually drop the footnote saying, we're going to use a ratchet and expansions are fine contractions or not. Sometimes that seems to be workable. You have pretty clear intuition at least that something's in expansion, but often it's not. And that would be the question. I guess what I think this comes back to, this again goes back to the difference between the Warren Court and I would say today's court, is a court with a clear idea of what its mission is. And I think the Warren Court's idea was, our job is to protect groups that are not getting a fair shake out of the political process. And the quintessential example of that group is black people in the Jim Crow south. And maybe there are other examples too, but that's the paradigm.

            And otherwise our job is to get out of the way and let democracy run. And one person one vote comes out of the same place, let democracy won but make sure it's democratic. So if you approach things with a relatively clear sense of your mission, that will help you with these problems, not solve every single one of them. But is this a law that is either neutral or helping groups that otherwise would get mistreated by local majorities? If so, we're going to get it out of the way. Is this a law that actually is beating up on disadvantaged groups? If so, we're going to step in. That's not perfect. And there are going to be arguments about, is this group really getting beaten up on. But if you have a clear sense of that, it helps. If you don't, then you have these conundrums about whether this law is helping or hurting and the instinct to say, well, that we're just going to decide ourselves. The court will be correspondingly stronger.

Will Baude:    I mean, I wonder if that too is one of those things that works its time. So it's easy at that time to see sort of what the paradigm cases are of groups being beaten up by the political process, but even like RFRA. So obviously it's passed because of this view that lots of sort of, especially like minority religions in particular places get screwed over in the various processes. So, your storefront church gets hassled by the zoning board and so on. But I take it people also objected to RFRA would say, this is really beating up on atheists. You know, one more special privilege for religious people who are the vast majority of the United States. So even RFRA, you could see as cutting back on the rights of non-religious people, the most despised minority in religious politics.

David Strauss: Yes. You... I'm sorry was that-

Will Baude:    Yeah. It seems like the con is there too.

David Strauss: Yeah no, absolutely. And I mean, the other thing about RFRA actually now that you say this, which I should have said before, but you raised the point, what RFRA really did, I mean we talk about Congress taking the lead. In a sense RRA didn't take the lead. It just dumped the problem back in the laps of the court. It just the hold the court, keep doing what you were doing before, which is you decide when some law intrudes too much religious exercise, which the court really had kind of done a little, but only sort of half-heartedly in the years leading up to when it just decided to get out of that business altogether. So in a sense, RFRA really, and answer your question that City of Boerne, maybe the right answer is in a way you could see the court saying in city of Boerne look, I mean, you're just telling us to go back to what we wanted to do before we decided not to do what we want to do before.

            We don't have to listen to you to tell us to go back to that. And it wasn't Congress saying, no, no, here's how we want this problem to be handled. And one way to understand if it were consistent with the language of RFRA, you could give RFRA an interpretation that said no, this is designed to protect groups that are otherwise not going to be able to protect themselves. It's designed to protect atheists, designed to protect Muslims. It is designed to protect religions that are perceived as weird. That's who needs protection. Mainstream religions, they don't need the help of the courts. Now, RFRA doesn't lend itself to that language but I think that's where you would go. If you wanted to take an approach constant with what the Warren Court was doing.

Will Baude:    Right. Well, I take it that too could change, right? You could say what used to be mainstream religions eventually become unpopular. If they secularized society enough, then eventually the mainstream religions will be the disadvantaged groups again.

David Strauss: Yes, absolutely. And I actually think one way to understand the lessons of the civil rights era is that, it was what you were suggesting in your question a minute ago Will, was those lessons really are confined to that era where we had a very good sense of at least among elites of who the group was that was getting treated unfairly. And one perverse lesson of that era is now everybody wants to be that group. Everybody wants to say, no, no, no, we are today's black people. We are the black people, the Jim Crow era today. So you get obviously on one side LGBT people who I think have a good claim to that, on the other side people that I don't think have a good claim to that, but they think they do, such as gun owners, victims quote, unquote of Affirmative Action will say, no, no, no, we're the ones getting discriminated against.

            And as you say, religious people who perceive that society's becoming increasingly secular and religious commitment of any kind is being disparaged, looked down on and they think of themselves as the victims. I don't think that's right, but you can draw a line from the thinking of the civil rights era to today. And as you said, the sanctification of Brown against Board of Education, now everybody wants their Brown against Board of Education. Everybody wants the case that will exalt their rights and recognize no, no you're getting discriminated against your right. You're being mistreated. And I think that, I don't know the way out of this, but I think that a case can be made that this is a bad consequence of over reading the lessons of the civil rights era.

Will Baude:    Yeah, right. People in native Hawaii. You constantly read cases of people wanting to... I've read Democracy and Distrust when I was in college and thought it was the most brilliant constitutional law thing I'd ever read. And then of course, at some point in law school, I guess I had a version of this transformation where I said, okay well, it makes sense. If I knew which groups were supposed to be winning in the political process or not supposed to be losing in the political process, I would definitely intervene to help them. But I guess, I don't know how you're supposed to figure that out outside of the civil rights era. I don't know how you're supposed to figure that out without sort of the kind of substantive views that we're talking about here. Like how am I supposed to know whether it's atheist or Christians or gun owners or LGBT people or all of them who are the sort of undeserved losers.

David Strauss: Yes. I think that's the problem. And I'm of two minds about this. The defense of that is at least that focuses the issue. At least it says, that's what we should be talking about. Not about, you're not going to let this, but not about what the framers are up to or anything like that. That's what we should be talking about is, is this a group that really needs the protection of the courts or should they look to the political process, and then sort of a coral of that as well, if the political process comes along and does something, get out the way, and that brings us back to Katzenbach against Morgan.

Will Baude:    Yeah. Right. So I guess that's it maybe it focuses the question, but maybe it focuses the question too much. Maybe now it focuses everybody on self victimization and-

David Strauss: I think that's exactly the risk. I think it's exactly the problem. I could see arguments for both sides and no, no, let's... At least that focuses the question. At least that gets us asking that question and people actually have to make a case for why that group needs the aid of the courts, why gun owners need the aid of the courts when they really seem to do okay in the politic for example. But at least to focus to that question.

            And I mean, as far as for example, LGBT rights, or at least the rights of gays and lesbians, I think it was a fair question raised by the chief justices dissent in the same sex marriage case. Why this wasn't something that could be done through the classes. Now, you do have a problem with unilateral disarmament that you could see where it'd be unsatisfactory to say to a group, you guys show through a political process, whereas everybody else gets to use the courts. That's not acceptable, but whether it'd be a better world in which people try to achieve this through the political process instead of the courts is an open question, of course raises the question where the political process is up to the job.

Will Baude:    So the last question I have is a little bit of a tangent, but it's just inspired by something you said about sort of the Warren Court's mission and how having a mission made it easier for them to cut through all this. Do you think this current Supreme Court has a mission? And if so, what is it? Or are they mission less?

David Strauss: I don't think they do. It's a puzzle I've had about the so-called conservative courts for a while. You could see various possible missions, but I don't see them being consistently applied. You could see for example, various pop missions I would not agree with at least they're coherent. So you could see them being libertarian. But small government across the board, which would mean not so friendly to capital punishment, not so friendly to immigration enforcement, as well as not so friendly to various kinds of regulation.

            Now I don't agree with that, but at least the idea that that's our job would be plausible. You could see a pro-federalism mission. But not if it comes to Affirmative Action or gun control. You could see a sort of deference the democratic process mission, but as we've just discussed, that's not it. All of those would be plausible. And at time plausible conservative missions at one time would've been identified as conservative missions. I just don't see that. And it is one of my many objections to originalism is I think it is a way of concealing the lack of a coherent vision of what the Supreme Court should be doing in a society like ours.

Will Baude:    So I won't try to claim the Supreme Court even has originalism with its mission exactly. But wouldn't that at least be a mission? At least our mission is to try to enforce the original deal as best we can figure it out. I mean nefarious mission but-

David Strauss: If it were possible to do. I mean, I don't think that's a coherent view to the extent of you may coherent its results that no one's going to accept. That's obviously a separate conversation that maybe you and I have had on a couple occasions. But I just don't see that as a coherent and plausible mission.

Will Baude:    Yeah. Okay well, we can have that debate again another time.

David Strauss: Yeah, definitely.

Will Baude:    Thank you, this was terrific.

David Strauss: Thank you.

Will Baude:    Special thanks to Barbara Flynn Currie and David Currie for the reading of the constitution in our introduction. Be sure to hit subscribe and follow us on Twitter at  UChicagoConLaw.