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New York State Bar Association General Counsel David Miranda hosts a lively roundtable with political strategist Liz Benjamin and constitutional law professor Vin Bonventre. They discuss the swing to the right of the US Supreme Court through its rulings handed down in the Spring of 2022.
Join NYSBA’s 118th President David Miranda each week as he interviews some of the biggest names in law and politics. Each week he discusses all things legal – and some that are not. You have the right to remain listening.
David Miranda:
Welcome to Miranda Warnings roundtable, discussing legal issues and current events. I'm joined on the roundtable by Liz Benjamin and Professor Vin Bonventre. Liz is the managing director at Marathon Strategies, a public relations and communications firm, and former host of Capital Tonight, a political and policy show focusing on New York State politics. And Professor Vin Bonventre, distinguished professor of law at Albany Law School and publisher of the New York Court Watcher devoted to commenting on the U.S. Supreme Court and the New York State Court of Appeals.
David Miranda:
Today on Miranda Warnings roundtable, we take a look at the SCOTUS spring 2022 term, with cases dealing with abortion rights, the right to carry a concealed weapon, and religion. They prominently led a most consequential SCOTUS term. Welcome Liz and Vin.
Vin Bonventre:
Good to be here.
Liz Benjamin:
We're all in person, actually. It's too bad no one can see this.
David Miranda:
It is great to have you both.
Liz Benjamin:
Don't you think you should be live streaming it? That would be so cool.
David Miranda:
It's great to have you both live. This SCOTUS term, I want you to give me one word or phrase to describe this term.
Liz Benjamin:
You amended it. That's very kind of you. Word or phrase, right?
David Miranda:
Right. It could be more.
Liz Benjamin:
We had a little pre-discussion about this, because we prepare for this podcast. It's appropriate, and I think I said historically crazy. Historically crazy, which is true. It was definitely historic, and also off the wall.
Vin Bonventre:
What do you mean off the wall? That's if you happen to disagree with them.
Liz Benjamin:
No, I don't disagree. I think that it was really significant. I mean, from a precedent standpoint alone, just merely on the abortion decision, that was significantly a real overturning.
Vin Bonventre:
Well, you think it's off the wall because you don't agree with what they did.
Liz Benjamin:
No, that's not true. I am saying from a fundamental ... I'm not even a lawyer. Just to be clear, I might be the only person here who's not a lawyer. Even if you setting aside the ideological question of abortion and the right to abortion, which is not enshrined in the constitution, P.S. It has more to do about privacy. We can talk about that later or has only to do about privacy, because I don't think that the founders had any intention of enshrining the right to abortion in the constitution. It really was a significant, from a fundamental standpoint of legal precedent, a departure. Just a departure.
Vin Bonventre:
Well, there's no question about that.
Liz Benjamin:
Okay. That's not historic, in and of itself?
Vin Bonventre:
Yeah, but it's not off the wall.
David Miranda:
And so how would you describe this term?
Vin Bonventre:
The term I've been using is roaring backlash. Finally, you've got this six conservative majority, and they are now being able to overturn much of what the court began to do in 1954 with Brown versus Board of Education, through the '60s, right, with the living constitution, making equal protection, due process, and liberty mean what it hadn't previously meant. And we liberals cherish those landmarks of the living constitution. The six on the court, especially the five true believers, they've always hated the living constitution and they're now engaged in finally making that backlash concrete.
Liz Benjamin:
None of which is a surprise, though, right? I mean, they have been chomping at the bit for years to do this.
Vin Bonventre:
Yes, you're right.
Liz Benjamin:
This was exactly what the conservatives, in all of their, and I will say brilliance, to be honest, they have always played the long game. The liberals, and again, I'm not counting myself among them. Vin is a card carrying member. But it's true. It's true. The reality is that the conservatives have been playing chess while the democrats or the liberals play checkers for decades now. They saw the forest for the trees when it came to redistricting. They controlled state legislatures and understood that this is where the rubber would really hit the road, and if they could control this ...
Liz Benjamin:
I know it's a little bit of a departure, but they have redistricted Ohio to the point where the legislature is so radically conservative that it's not even in keeping with the majority. And, of course, I'm channeling the New Yorker article, which some people may or may not have read, but that's where this comes from. Very smart article, if you haven't seen it, Jane Mayer. But they're passing legislation that isn't even near in keeping with the majority of the ideology and the opinions of the voters, and such we have something similar. You would see abortion alone when you look at the public polling, the majority of this country. And Kansas, Kansas for God's sake, rejected this decision, and yet it stands, because the conservatives have been plotting this and putting the pieces in place for years. And then the liberals go, "Oh, my God, how did this happen?" How did it happen? You were asleep at the switch. That's how it happened.
David Miranda:
Well, they had the votes. They had the votes.
Liz Benjamin:
But they didn't have to have the votes.
David Miranda:
Well, but let's look at that, though, right? Because we've got a 6-3 supermajority of conservatives, right? There's no swing vote anymore.
Liz Benjamin:
Yes, it's Kavanaugh.
David Miranda:
Maybe. Maybe.
Liz Benjamin:
Or the Chief Justice.
David Miranda:
Right? When it's 6-3, you don't need a swing vote. And you look at what happened when Obama tried to put on Merrick Garland when there was an opening and it was delayed, delayed, delayed, because it was too late, supposedly, in February. But then there's an opening for Trump to put on Amy Coney Barrett in September before the election. And so there's two seats, right? There's two seats. Instead of it being 6-3 conservative, it could have been 5-4 liberal for one reason. They had the Senate. They had the Senate. They had the votes.
Vin Bonventre:
Republicans were playing hardball. Republicans were playing hardball.
Liz Benjamin:
Yeah, but they've been laying the groundwork for a long time.
Vin Bonventre:
I love the fact that you said chopping on the bit because I think that's a great ... They're no longer chomping at the bit.
Liz Benjamin:
No, they are realizing-
Vin Bonventre:
They are there. They've been chomping at the bit because they have hated those landmarks, which we ... And yes, I think we all love the landmarks. That is, for example, making rights of the accused from the Bill of Rights applicable to the states, equal protection, protecting more than just white men. Right? Also protecting women, which was not intended.
Liz Benjamin:
What concerns me, and I think this is something that should concern everyone, is the failures in reporting that tropes that are repeated or errors that are repeated and then become part of the public understanding, which are false. There is no right to an abortion. There are no rights that are taken away that gives you a right to abort a child, a fetus.
David Miranda:
Well, there was a right to have an abortion under Roe V. Wade. There's no constitutional right.
Liz Benjamin:
Right. There's no constitutional right.
David Miranda:
Of course, and also, guess what? There's no constitutional right to marriage equality or constitutional right to privacy.
Liz Benjamin:
That's correct. That's correct.
David Miranda:
It's not mentioned in the constitution. Education isn't.
Liz Benjamin:
But interracial marriage is okay. Just to be clear. That's all right.
David Miranda:
Is that mentioned in the constitution?
Liz Benjamin:
But it's okay for some reason. I find that interesting.
David Miranda:
Education is not mentioned in the constitution.
Vin Bonventre:
Can I clear some confusion up, because it seems like we're a little confused and probably because of Liz. She got us down this path.
Liz Benjamin:
It's always me.
Vin Bonventre:
First of all, the constitution is not a catalog of rights. It was never intended to be.
Liz Benjamin:
The Bill of Rights is a catalog of rights.
Vin Bonventre:
And we nearly didn't have a Bill of Rights because James Madison and a whole bunch of them were saying, "As soon as we start listing some rights, people are going to say, 'Oh, it's not mentioned.'" Right? And chomping at the bit and finally winning? Winning. The conservatives have won that argument. So now everybody thinks, "Oh, if it's not mentioned, that's weakness." No, it is not. Most of our fundamental rights are nowhere mentioned in the constitution, the right to marry, the right to have children, the right to have sex with your spouse, the right to have a friend, the right to go for a walk. Just about all our fundamental rights are nowhere mentioned in the constitution. That is a moronic argument that the liberals have allowed the conservatives to take over and win on. It sounds so appealing.
Liz Benjamin:
Right, because then you would have to presume that the founders knew, were prescient enough to know things like, "Someday day we're going to have TikTok," or, "Someday we're going to have the internet." Right. So the idea of having a living constitution or a document that allows for interpretation, it has to occur or you actually can't operate as a modern society.
Liz Benjamin:
What's interesting, though, is that the state's becoming ... What did they say? The Petri dishes of democracy? Is that the saying? New York has-
Vin Bonventre:
It's as good as anybody.
Liz Benjamin:
But New York has played such an interesting role in, for example, the concealed carry permit. That's in New York. The reason that this whole thing is where it is now is because of us, which is kind of interesting. I mean, the outcome wasn't what we wanted it to be. But the states have played ... Everybody forgets that the battles, and this is where you get on your high horse soapbox moment. People say, "Oh, why should I vote? My vote doesn't matter. I live in New York. It's a liberal Democrat dominated state." No. Well, first of all, the current governor's only 14 percentage points ahead, which is nothing really in the grand scheme of things. But your vote matters at the state level because who you send to the legislature and who you send to the board and who you put on the bench in your state trickles up eventually to become a really significant thing at the national level over time.
Vin Bonventre:
Well, the New York law that was overturned, I mean, doesn't exactly have a beneficent pedigree.
Liz Benjamin:
No.
Vin Bonventre:
Right? The Sullivan Law was enacted in the early 1900s to make sure that my ancestors, the Italian immigrants, didn't have guns. And it's been used in more recent years as an excuse to arrest Black men in minority neighborhoods. So this notion that, "Well, you can't carry a gun unless you have a license." First of all, let's back up. We have this lie, the Heller case, where the majority of the court's speaking through your favorite justice, Antonin Scalia.
Liz Benjamin:
We go way back. We've been hunting, actually, me and Scalia. We hang out.
Vin Bonventre:
I [inaudible 00:10:46] plenty of time.
Liz Benjamin:
He has.
Vin Bonventre:
But Scalia says, "Okay, forget about the entire first clause of the second amendment." The second amendment protects an individual's right to bear arms. I mean, that is just a lie. There may be one of those unenumerated rights of individuals to bear arms, but that's not what the second amendment is. Second amendment is about protecting the states against-
Liz Benjamin:
Can't you not have it both ways, then?
Vin Bonventre:
Huh? What?
Liz Benjamin:
You're sort of wanting to have it both ways.
Vin Bonventre:
No, because I think it can ... No. Look, liberals, forget about it, liberals. Unfortunately or fortunately in the history of this country, the framers, the founders, most Americans think that there is a right to have a gun. That's just the way it is. But that's not what the second amendment is about. Right? So that's a lie. But once you construe the second amendment as protecting an individual's right to bear arms, you've got a fundamental right, and government better have a darn good reason before it limits that. What did New York do? Well, that's because this is an old, old law, the Sullivan Law. New York says that the individual has got to demonstrate why he needs to exercise-
Liz Benjamin:
They.
Vin Bonventre:
... his fundamental rights.
Liz Benjamin:
They need to exercise their.
Vin Bonventre:
Yeah, they. I'm sorry.
David Miranda:
But here's a question.
Vin Bonventre:
My wife does the same thing.
Liz Benjamin:
I know.
David Miranda:
Why can't the state require that? So we're hearing in the Supreme Court in Dobbs says, "Well, you know what? Let's leave it up to the states. Let the states decide what they want." Now in Bruin, the state-
Vin Bonventre:
But you know they don't buy that argument.
Vin Bonventre:
I don't buy it at all, but it seems directly contradictory. Now, in Bruin, the state did decide. We have a legislator that said we have this concealed carry rule. And then the Supreme Court says, "No. No, we know better now."
Vin Bonventre:
I never bought this argument that they believe in states' rights. Of course they don't, and they don't think things ought to be left up to the states. If states do what they like, "Oh, states' rights." If states don't do what they like, "Oh, no states' rights." Whether you have gun control, whether you have campaign finance laws, whether you have affirmative action, please, the conservatives don't give a damn about state's rights any more than the liberals do. That's just another thing they throw out there.
Liz Benjamin:
Well, it's a hot button. It's a little red meat for the more academic minded conservative.
Vin Bonventre:
Well, I mean-
Liz Benjamin:
I mean, most average people don't know what states' rights are. If it went out on the street and polled a bunch of folks about states' rights, I hardly think that they would be like, "What the hell are you talking about? I don't know what that is."
David Miranda:
It's intellectually dishonest.
Liz Benjamin:
It is intellectually dishonest.
Vin Bonventre:
It's totally intellectually dishonest.
David Miranda:
Because it's applied when it suits them and not applied when it doesn't.
Vin Bonventre:
Well, sure, but I mean, both liberals and conservatives on the court have done this for a long, long, long time. When the states do something the liberals like, all of a sudden they're all for state sovereignty. I mean, come on. Give me a break. But look, the Dobbs decision is one of the worst decisions to come out of the court. And I'm not talking about the result in the case. I'm talking about the supposed legal analysis. It is totally fraudulent. Samuel Alito is smart enough. He knows it's a fraud. This notion that there is no right of a woman to control her body because it's not mentioned in the constitution. Like I said, that's a total salacious argument. And the other one, the nation's history and tradition. Is he kidding? You really want to enshrine the nation's history and tradition?
Liz Benjamin:
No.
Vin Bonventre:
Racial segregation.
Liz Benjamin:
Nope.
Vin Bonventre:
Second class citizenship for women.
Liz Benjamin:
Nope.
Vin Bonventre:
No citizenship rights for LGBTQ persons. Please.
Liz Benjamin:
But don't we then ... Remind me, and I should know this, but I don't. Did the court decline to take up vaccine mandate cases? They did, right?
Vin Bonventre:
It has gotten a bunch of them.
Liz Benjamin:
But it's not yet taken any of them up. Correct?
Vin Bonventre:
Oh, it has. It has decided quite a few of them.
Liz Benjamin:
And has said?
Vin Bonventre:
It's gone both ways.
Liz Benjamin:
Right. So again, the logic here really, I fail to understand the logic, which is to say a woman doesn't have the control over her own body, I guess, because their argument would be, well, there's another life involved. My rejoinder to that would be, yes, there's a lot of other lives involved if you don't mandate vaccines.
Vin Bonventre:
That's right.
Liz Benjamin:
And similar public health argument.
David Miranda:
They found in favor of the vaccine mandate before Amy Coney Barrett was on the court. And then later, nearly identical case came on, and they found against it.
Vin Bonventre:
Right. But then they also found in favor of the vaccine mandate when the Biden administration imposed that on facilities receiving Medicare and Medicaid funding. They invalidated it when the Biden administration attempted to impose that on all businesses, private businesses with more than a hundred employees. So they're all over the place with that depending on the facts.
Liz Benjamin:
So then the broader picture, let's broaden that out. The broader picture about ... It's a fraudulent argument in Dobbs, which you just said. They are on both sides of the fence when it comes to vaccine mandates. The question then is doesn't this all undermine the veracity of the court? I mean, I guess the court has long, any court, I guess, has long harbored the right to reconsider its precedents and say, "Okay, this is no longer the meaning."
Vin Bonventre:
Thank God.
Liz Benjamin:
Right, thank God. But then to be waffling around within the same year on the same issue really undermines, I mean, to the degree that anybody has any confidence in the court anymore, which I think the leak really significantly undermined quite a bit, and then subsequently filed by the decision, the abortion decision, but still really undermines. These people, are they sane? Are they even talking to each other? Are they reading what they wrote not so terribly long ago and applying it to the next thing that seemingly should find the same result? What's the definition of insanity? Trying the same thing over and over and expecting a different result.
David Miranda:
Yeah. I mean, it's not insanity. It's a deliberate effort and is intellectually dishonest, right? So they're saying we have the votes. Doesn't matter necessarily how we get there. As long as we have the votes, we can do it. And that's what they've done, certainly in Dobbs. And the question I have that you touched on is if this philosophy that's been upheld now by Alito in Dobbs, if this is applied, if it's not mentioned in the constitution, what else is now at stake?
Liz Benjamin:
Well, Kavanaugh says nothing. He's going to hold the line. Thank goodness for Justice Kavanaugh.
David Miranda:
Well, Thomas doesn't say that. Thomas.
Liz Benjamin:
I know. I know what Thomas said. I know.
Vin Bonventre:
But that's because they realize that the analysis that's used by Alito in his opinion is nonsense. It's not going to apply to these other things. Why not? Who knows why. But if you actually did apply the analysis in the Dobbs majority opinion by Alito, it's not in the text and it's not part of the nation's history and tradition, then of course, contraceptive rights are out. Women's rights are out. Desegregation is out. Interracial marriage, that's out. Right to marry for anybody is out. Just about everything is out. That's why this is total and complete nonsense.
Liz Benjamin:
So the thing is there, the answer is a legislative solution, right? That's basically the only answer. And we don't have the votes for a legislative solution in terms of those folks who believe in enshrining abortion rights in statute from a federal standpoint. And we're about to see a really significant, we believe, loss in the House. The Republicans look like they're going to take the House. Unclear what's going to happen in the Senate. And so what's playing out, then, at the political level, so if you think of the judicial level supposedly on high ... It's supposed to be above politics, but of course we know it's not. And then subsequently the congressional legislative level, and then beneath that the political level. In the third subdermal layer of politics that is occurring is this crazy thing that's playing out where Merrick Garland that you just brought up is exacting revenge on Donald Trump, sort of. He's he's getting back or something. I'm not even sure what's happening.
David Miranda:
No, I would say that I don't think this is an exactment of revenge.
Liz Benjamin:
No, I know, but that's what it's being read as.
David Miranda:
This is applying the law.
Liz Benjamin:
I understand what it really is, but I think that you could look at something and say isn't that ironic the way that things are playing out now on that particular political stage.
David Miranda:
But let me ask you a question. You raised the legislative action portion with respect to Dobbs, right? So the court is saying, "Well, it should be up to the legislators, whether it be the state or federal." And I want to ask two questions here. What if Congress decides we're going to say abortions are illegal across the country, and what if a liberal Congress says abortions are permitted around the country? What would this Supreme Court hold on both of those? The Supreme Court, I submit, would say, "Oh, if you're going to make it illegal, that's covered under the commerce clause. If you're going to make it legal, it's not covered under the commerce clause and it's unconstitutional." I think that this Supreme Court-
Vin Bonventre:
This Supreme Court.
David Miranda:
... on the same exact issue would determine completely different.
Liz Benjamin:
It's not going to happen. It's not going to happen, but it is an interesting, because given the peripatetic nature of the court, which we were discussing just a few minutes ago, and given the fact that the court doesn't seem to hold itself to any particular standard on its own decisions and logic that would therefore be construed from one related case to another, it could very well go in the direction that you're suggesting. The problem is there's not going to be the votes for any congressional solution anytime soon, so I don't think there's any danger of that.
Liz Benjamin:
What there is a danger of are things like laws that criminalize the crossing of state lines seeking an abortion, because we are now an abortion sanctuary state. And there are all of these various different funds and efforts to assist women who might be in states where they can't access abortion services, or at least easily access abortion services, to come to states like ours and receive the healthcare that they require or desire or need, whatever it be. I mean, in some cases, even if it's an instance of rape, you can't even access abortion services. So those legislative actions I think are going to be what's litigated next.
Vin Bonventre:
I think you bring up a really fascinating topic, and that is how much will this court allow with regard to restrictions on abortion and restrictions on assisting, aiding and abetting abortions? Remember, the court only held that the federal constitution does not protect the right to abortion. The court did not say that states are allowed to do anything with regard to limiting a woman's right over her own body. It didn't say that. And I think that if you have a state with a law that is far too strict, you're going to get Roberts' vote with the liberals, and you may also get Kavanaugh's vote and maybe even Amy Coney Barrett's vote. I think you might get those votes. So for example, if Texas or one of these other states was going to prosecute someone who helped someone cross state lines to get an abortion, I think you're going to get one or two votes to join-
Liz Benjamin:
They already are saying that they will, right?
Vin Bonventre:
Yeah. I know they will. And I think you'll get one or two votes on the United States Supreme Court to say, "No, you can't do that. That's in violation of the fundamental right to travel," which by the way is another one that's not mentioned in the constitution, all of you who like to on your summer-
Liz Benjamin:
Why are you looking at me?
Vin Bonventre:
Because you're the one that brought this up. It's not enshrined in the constitution. Yeah, because that's what Ben Franklin said, right?
Liz Benjamin:
He went to Paris.
Vin Bonventre:
Well, yeah. And so was TJ, both Ben Franklin and TJ. Look, Jefferson.
Liz Benjamin:
I didn't know you were on such intimate terms with him.
Vin Bonventre:
No, of course they were in Paris. Who wouldn't rather be in Paris than to be in the summer in Philadelphia?
Liz Benjamin:
[inaudible 00:23:46]. Yeah, I agree. I agree with you. Rein us in. Rein us in, Miranda. Come on now.
Vin Bonventre:
Good luck. So I think we have to remember that all the court said in Dobbs was there is no fundamental right for a woman to get an abortion. It did not say that states or the federal government could put any limits whatsoever on a woman's free choice or travel. It didn't say any such thing. And at that point, it is going to have to balance how reasonable these restrictions are.
Liz Benjamin:
How long is it going to take for those cases to get there?
Vin Bonventre:
I don't think it's going to take too long. I'll bet you're going to see them in two or three years.
Liz Benjamin:
That's a long, long time for women who are right now under the gun.
Vin Bonventre:
Yeah.
David Miranda:
Why not sooner? I mean, we're seeing legislation going into effect already.
Liz Benjamin:
It has to work its way up through the legal process, doesn't it?
David Miranda:
It does.
Vin Bonventre:
Well, you might actually get some decisions from the non-existent shadow docket, right? Because we've had several justices deny that there's such a thing as the shadow docket. But you may get some decisions from the court upon emergency applications to stop the enforcement of some of these unreasonable state laws. I think you might well be seeing that in certainly much less than two or three years.
David Miranda:
What are we going to see in that? What right is going to be taken away next?
Vin Bonventre:
What?
David Miranda:
What right-
Liz Benjamin:
Well, other cases that are pending that are decisions.
Vin Bonventre:
You mean LGBTQ rights? You mean interracial? What do you mean?
David Miranda:
Obergefell, right?
Vin Bonventre:
You mean contraception?
David Miranda:
Why can't Obergefell now be overturned.
Liz Benjamin:
There's no case that's pending right now on Obergefell.
Vin Bonventre:
No, no, no.
David Miranda:
I think there is.
Vin Bonventre:
But what there are, there are cases in which you have individuals who don't want to respect same sex marriage. They don't want to cater to them.
Liz Benjamin:
Bake the cake.
Vin Bonventre:
They don't want to flower them, bake a cake, whatever the heck it is. So you're going to see those where you have, "Well, this is my freedom. I don't want to serve same sex couples." And then you're going to get that. And then you're going to get justices who have to say, "Wait a minute. Are there protections for same sex couples or not?"
David Miranda:
Right. But guess what? You look at this court, you look at the spring 2022 court, and they said consistently in that court if there's a case about religion-
Vin Bonventre:
Religion [inaudible 00:26:17].
David Miranda:
Religion wins. Religion wins every time.
Vin Bonventre:
Well, that's religion.
Liz Benjamin:
I understand. But then you would have to make the argument-
David Miranda:
But if they say, "It's against my religion to make a cake for someone that wants to get married."
Vin Bonventre:
Well, that's your favorite justice, Neil Gorsuch.
Liz Benjamin:
How many favorites can I possibly have? I thought Alito and I were buddies. Now it's Gorsuch and I. It's not the case. Not the case.
David Miranda:
Right? Religion wins.
Vin Bonventre:
For Neil Gorsuch-
David Miranda:
The religion clause is held to a higher standard.
Vin Bonventre:
Well, it depends what you mean. If by religious liberty you simply mean free exercise for traditional Christians, yes. If you mean the separation of church and state, no, because Gorsuch does not believe in the separation of church and state. Neither does Thomas and neither does Alito. All those landmarks separating church and state, well, they're basically gone they've been diluted so much. In fact, as Justice Sonia Sotomayor said, "Basically it's a constitutional violation now to separate church and state." This court refuses to respect states that are trying to keep church and state separate.
Liz Benjamin:
So what's on the docket? The affirmative action case is on the docket, right?
Vin Bonventre:
That's right.
Liz Benjamin:
What else is on the docket that's coming up that is potentially going to further challenge some of these rights that exist that we're speaking of now? Affirmative action isn't actually a right.
Vin Bonventre:
Well, you do have the case pitting freedom of religion, free exercise of religion against LGBTQ rights, because you have somebody who does websites or does videos of weddings and absolutely refuses to do so for same sex weddings.
Liz Benjamin:
For same sex couples.
Vin Bonventre:
So you do have that. You're going to get more gun restriction cases. States like New York are going to come up with smarter laws than the Sullivan Law. They're going to come up with smarter laws, and those are going to be challenged as well by the extreme gun rights people.
David Miranda:
Well, New York did, actually.
Liz Benjamin:
They already did.
David Miranda:
They held a special session right after the case came down and they said, "Okay, we can't regulate who gets the gun. We can regulate where the concealed carry is allowed," and they had a long list where you could ... There's 100 square feet where you're allowed to have a concealed carry.
Vin Bonventre:
Right. But some of those restrictions are questionable as well. Isn't there a restriction you can't have open carry anywhere in the Adirondack Park? Isn't that like that because that's a public park?
Liz Benjamin:
Well, you can't ... Oh, I don't want to say this, because I actually might be wrong.
David Miranda:
It should be on the list. I assume it's going to be challenged.
Vin Bonventre:
I would imagine something like that is going to win. I mean, the Adirondack Park is ginormous. I think that-
Liz Benjamin:
Bigger than any other national park.
Vin Bonventre:
Yeah. I think that the legislation that controls individual right to bear arms has got to be very particularized [inaudible 00:29:21].
Liz Benjamin:
Well, but also, I mean, not to go too far down the rabbit hole here, but the Adirondack Park is different from most national parks in so much as it's a working park.
Vin Bonventre:
Yes.
Liz Benjamin:
There are communities. So to say you can't carry in the Adirondack Park-
Vin Bonventre:
The entire Adirondack.
Liz Benjamin:
In the blue line are people with houses and guns who hunt. I mean, that's not a realistic. It's not the same as to say, well, in Yosemite, you can't carry.
David Miranda:
Well, you are allowed to carry in your home, of course.
Liz Benjamin:
Right. So that doesn't-
David Miranda:
It's not taken away.
Liz Benjamin:
Yeah, that'll be challenged. Look, I think we passed abortion rights legislation more to, as I mentioned, assist women in making trips if they need to come to New York to receive services that they can't get elsewhere. And then we did pass gun legislation. I'm sure it will be challenged, to your point, David. But I also think that it took a number of years for this particular case to wind its way through the fine grinding wheels of the legal system, and it's not going to be anytime soon that we see anything overturned as a result.
Vin Bonventre:
I'm not so sure. I think-
Liz Benjamin:
It's so depressing. I leave these feeling so depressed, man.
David Miranda:
Really?
Liz Benjamin:
Yeah. I feel like you should serve drinks or have snacks or something. Something encouraging. Can't you say something encouraging? Say something encouraging, man.
Vin Bonventre:
I'll say something encouraging.
Liz Benjamin:
Good. Let me just think about that for a minute.
Vin Bonventre:
It's just very, very ... Hey, look. The new Justice Jackson, I think that's encouraging. That's a bright light. I don't think that's going to make much of a difference.
Liz Benjamin:
It means zero difference.
Vin Bonventre:
No, but-
Liz Benjamin:
It sends a message. Broke a serious glass ceiling moment, that's sure.
Vin Bonventre:
I think that the same thing that happened to Sandra Day O'Connor and Anthony Kennedy has already happened with the Chief Justice, pushing him over to the left. And I think the same thing's going to happen with Kavanaugh, and I won't be surprised if the same thing does happen with Amy Coney Barrett.
Liz Benjamin:
You are so optimistic on that. She is not-
David Miranda:
There's no indication.
Vin Bonventre:
But she's smart.
Liz Benjamin:
No indication. I will say, well, what the indication is-
Vin Bonventre:
She's smart and she's not angry.
Liz Benjamin:
Understood. Well, you don't know that, but she may be just hiding it really well.
Vin Bonventre:
No, no, you're right. You're right. You're right.
Liz Benjamin:
I think that if there is any silver lining, then you do bring up a good point, which is to say that history indicates to us that once individuals get on the court, they have the possibility and the room for evolution. Now, I think it's overly optimistic to expect that some of these folks who are quite young, I mean, might soften in their old age and become more reasonable or less strident. It's possible. History demonstrates to us that once you get on there, you no longer feel beholden. But the decisions that we've seen indicate that they very much are continue to be beholden to the grassroots expectations of the conservatives who put them where they are.
David Miranda:
Right. It's quite to the contrary of them softening. I mean, look at Alito.
Vin Bonventre:
Well, Thomas and Alito, they're not going to soften.
Liz Benjamin:
No.
Vin Bonventre:
They're not going to soften. They're getting more and more hardened as the years go on. And Gorsuch, I just find him to be utterly hopeless. But although he's sufficiently dimwitted that he may be persuaded to go different directions.
David Miranda:
Is that what it is?
Vin Bonventre:
What?
David Miranda:
You have to be dimwitted to be persuaded?
Vin Bonventre:
No.
David Miranda:
Well, you've persuaded me.
Liz Benjamin:
Wow. Wow.
Vin Bonventre:
But Kavanaugh's just in his 50s. Barrett is 50. I think there is hope for them. I think there is hope.
Liz Benjamin:
How old is Jackson?
Vin Bonventre:
Oh, the new Jackson is 52.
Liz Benjamin:
Yeah. Young. So young. And the likelihood that they-
Vin Bonventre:
We don't want her to change.
Liz Benjamin:
No, no, no. I'm just curious. The likelihood that this president gets another bite at the judicial appointment apple is nil, right?
Vin Bonventre:
No. Who's going to retire?
Liz Benjamin:
Nobody.
Vin Bonventre:
Nobody's going to retire.
Liz Benjamin:
I mean, look, we are all who knows. It's written somewhere. We all go at a time that we're not predicting, but it doesn't look like anybody's going anywhere at this point.
David Miranda:
Chief Justice Roberts? He's had enough?
Liz Benjamin:
You think? Oh, come on.
David Miranda:
Maybe.
Liz Benjamin:
You give up the Supreme Court? Well, never. He's been sidelined. He's been marginalized. He's been embarrassed and perhaps had his tail between his legs right now, proverbially speaking, but he ain't going anywhere. You give up a lifetime appointment on the most powerful bench in the world ostensibly? No.
Vin Bonventre:
I think he's just too capable, and I think he is too much of an institutionalist to give up. Unless there's some problems with his health.
Liz Benjamin:
I think he plays the long game. Again, there's-
Vin Bonventre:
Yes, and he does.
Liz Benjamin:
You have to.
David Miranda:
Him leaving wouldn't change things all that much, either.
Liz Benjamin:
No, because there would be ... No. So I think you have to believe he is a smart guy.
Vin Bonventre:
Yes.
Liz Benjamin:
And you have to believe that he plays the long game and he's like, "Okay, maybe I can work on these people." Things worth change. You don't know what's going to happen from one day to the other. Nobody could have predicted, for example, the January 6th riot. That was not something that anybody thought was in the cards. Perhaps we should have be paying closer attention, but that's a different podcast.
David Miranda:
Well, speaking of which, the thought was that Chief Justice Roberts was working to peel off Kavanaugh-
Vin Bonventre:
That's right.
David Miranda:
... on the Dobs decision, and that's why the decision, the early decision was leaked. And it turned out that the actual decision was very close to the early decision.
Liz Benjamin:
Well, apparently not.
David Miranda:
And I haven't heard anything about what-
Liz Benjamin:
It's not convincing.
David Miranda:
I haven't heard anything about the leak. What happened to that investigation?
Liz Benjamin:
Oh, they put somebody in charge of it who had no idea what the hell they were doing.
Vin Bonventre:
There are nine justices. They've each, because they have so much work-
David Miranda:
How many? Let me write this.
Vin Bonventre:
There's not-
Liz Benjamin:
I'm sorry. Mr. Math over here. Let's make sure that we are paying attention to Mr. Math. I'm sorry. Nine, which is six plus three-
Vin Bonventre:
Nine.
Liz Benjamin:
... which is 10 minus one.
Vin Bonventre:
And they each have four, four times nine. Come on, Liz. What's four times 9?
Liz Benjamin:
36.
Vin Bonventre:
Okay. 36. The chief has got an extra one.
Liz Benjamin:
I had to think about that for a minute.
Vin Bonventre:
That's 37. So 37 clerks plus nine justices is what? 46 of them. 46 of them.
Liz Benjamin:
46 humans.
Vin Bonventre:
46 of them, yeah, and they happen to decide about 60 to 65 cases.
Liz Benjamin:
It's a lot.
Vin Bonventre:
So they're not exactly over worked. Oh, come on.
Liz Benjamin:
No, it's a lot.
Vin Bonventre:
No respectable lawyer works that little.
Liz Benjamin:
That's a lot of cases.
Vin Bonventre:
These people don't do nothing.
Liz Benjamin:
You are saying that the Supreme Court decision is tantamount to the garden variety decision that's made at the state supreme court level.
David Miranda:
Are you saying the Supreme Court's not working hard enough?
Vin Bonventre:
No, they're not working hard enough.
David Miranda:
That's what you're saying?
Vin Bonventre:
They're not working hard enough. They hardly decide any cases whatsoever. And in fact, throughout their history, they decided a heck of a lot more cases than they do right now. Supreme Court was deciding 135 cases a year and Scalia said, "Oh, that's too many. I can't even draft my own opinions now. I've got my clerks writing the first draft, and then I edit them." Oh, Lord. So now they're down to about 60 a year. Please.
Liz Benjamin:
135 to 60 is a real big drop.
David Miranda:
That is a big drop.
Vin Bonventre:
And before that they were deciding over 200.
Liz Benjamin:
Well, maybe we don't have as many significant cases that need to be decided anymore.
Vin Bonventre:
Yeah. I know. There's so few big issues around.
David Miranda:
Maybe they should do a little less. We might be better served.
Liz Benjamin:
Yeah, we might all be better off if they just-
David Miranda:
Maybe just get down to two or three, we'll be all right.
Vin Bonventre:
That's why these guys are giving speeches. They're writing articles. They're going on trips. Please. These are not hardworking people.
Liz Benjamin:
Well, I would argue, just to play devil's advocate, that there is a benefit to having them out on the road. So the American people can see them. How many people do you think can name all nine justices?
Vin Bonventre:
You mean like to go and speak to the Federalist Society?
Liz Benjamin:
Sure.
Vin Bonventre:
Okay. Most people, normal everyday people, are not members of the Federalist Society and they don't go to those meetings.
David Miranda:
Are you an everyday person?
Liz Benjamin:
No.
Vin Bonventre:
No.
David Miranda:
I think you're like once a month is probably enough.
Liz Benjamin:
And once a month person.
Vin Bonventre:
No.
Liz Benjamin:
That's a wonderful place to cut it off.
David Miranda:
This has been wonderful to have you both on the Miranda Warning roundtable talking about the United States Supreme Court. Thank you both, Liz and Vin.
Vin Bonventre:
Just a blast. Thank you so much for inviting me.
Liz Benjamin:
Thank you. Thank you, David.
David Miranda:
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