EP. 322 — How Many Hard Rights Can One Supreme Court Take? with Professor Melissa Murray

Jameela: [00:00:00] Hello and welcome to another episode of I Weigh with Jameela Jamil. Now, I know that we normally stick to mental health issues, but when it comes to politics, specifically what’s happening in the United States of America, it feels adjacent to mental health given that the outcome of this election will significantly impact how everyone is going to feel.

And so whether you’re in the United States or not, I think a lot of us are very interested because the leader of the USA, chosen in November, is going to have a massive knock on effect across the entire world and also across the media and social media. And I don’t know about you, but I’m finding the discourse very splintered and very divisive and it just tends to be a bit of a clusterfuck of divided opinions and people on the left can’t agree with each other and people on the right can’t agree with each other and centrists arguing with each other and there’s so many barking opinions online and very few of those opinions are held by people who actually know exactly what they’re talking about and it’s very rare that [00:01:00] they speak with full context and history, and it’s very, very, very rare that people zoom out and look at the bigger picture.

It is a crisis of this generation, the way that we focus on just the now, and while I see why that’s beneficial, because then we put pressure on the right people, it also means that we just don’t seem to have a fucking plan. We don’t have a cohesive plan that we can all generally agree on. And when it comes to the presidential nominee, there is obviously, uh, for the liberals, um, there is obviously a lot of, uh, uproar because she’s not everyone’s ideal favorite candidate.

But, uh, people are so focused on what’s wrong with her that they’re forgetting to focus on what’s wrong with the opposition. And so in today’s episode, I wanted to invite on an expert who’s so much smarter than me, who’s got so much experience in not only understanding American law and also understanding American politics, but specifically the Supreme Court, because we cannot take our eyes off the Supreme Court.

They are making wild decisions that are quietly impacting [00:02:00] tens of millions of lives and soon to be more depending on who the next president is, and so, it felt like the sane thing to do, to have a very frank conversation with her about exactly what’s going on, and what’s at stake if we make the wrong decision because we are impassioned about one subject more than other subjects. And this woman is so intelligent and she speaks in such an accessible way that helps dummies like me understand huge concepts like what’s going on in the incredibly tricky and almost by design complex American legal and political system.

Her name is Melissa Murray, and she’s a leading expert in family law, constitutional law, and reproductive rights and justice. She’s also one host of the Crooked Media podcast, Strictly Scrutiny, which is all about this subject and very, very accessible, again, and incredibly helpful at breaking all of this shit down.

But in this episode, we talk about Melissa’s hope right now for the U. S. politics compared to the start of the summer. She [00:03:00] had a lot of despair, but now seems to feel hopeful. We spoke about what’s at stake in this election regarding reproductive rights, violence against women’s rights, LGBTQIA rights, Supreme Court reformation, etc.

She raises awareness in this episode about some of the things the Supreme Court are doing that they isn’t making the media, things that we really need to be paying attention to and she explains the ramifications of that. And she also raises the lack of civics knowledge that US voters have and how they misunderstand who does what in government and therefore don’t really pay attention to anything other than the main nominee of each political party, rather than thinking of the judges and the governors, etc.

In this episode, we talk about what a harrowing time this is and how profoundly we need action and we need cohesive togetherness. We all need to come together and have a plan and execute that plan before history is changed permanently. And so if you feel as though you are unsure as to what to do this November because there’s a lot of cultural peer pressure and also very valid reasons to [00:04:00] want to pause, all of which I understand, um, then this might be an interesting episode for you or you might want to send it to some friends who feel like they’ve come down very hard on one opinion that is relevant in one area, but then doesn’t serve the entire country or the entire world in other areas.

And so listen, it’s always scary for me making these kinds of episodes. I’m an English person. I find weighing into American politics absolutely terrifying, even though I’ve been living there for the last 10 years, because I know it’s kind of not my place, but I, I care about America. I care about Americans. I care about my American audience. And I care about what this message sends across the rest of the world. So it felt like my duty to at least answer so many questions that I see that you have in my DMs, and I am not the person to explain those things to you because I am just a silly, celebrity ish person, so I instead am good at asking the questions of the actual clever, educated people, and I’ve done that this week. So please enjoy the excellent Melissa Murray.[00:05:00] 

Melissa Murray, welcome to I Weigh. How are you? 

Melissa: I am great. Thanks so much for having me. 

Jameela: I’m so happy that you’re here. I’m horrified by exactly how young you look because I’ve only been reading about you and listening to you and the amount you’ve achieved in your life by this point um, frankly, how dare you?

Melissa: Well, I’m pretty old actually, um, so this is all a ruse um, I’m, I’m, I’m, I’m definitely on the older side of things. My kids say that I’m on the B side of life, so. 

Jameela: Haha! Oh my God. Why are kids the worst? Why are they so amazing? 

Melissa: They’re so, I mean, I keep telling them, like, because 

Jameela: The put downs. It’s happening. 

Melissa: The put downs are terrible. Um, I told them, you know, because of you, I can neither jump nor laugh extravagantly the way that I used to before these [00:06:00] two natural births. And I still have to suffer these indignities on a regular basis, so there we are. They’re savage. Kids are savage. 

Jameela: My good God. Where do they learn it? Is it the internet? Is that why they’re better than we were? Because I never used to be able to read my parents for filth like this. 

Melissa: Well, we had immigrant parents. That’s why. You can’t read your immigrant parents for filth because, like, they always have to have the upper hand. 

Jameela: They have all these slippers, shoes. 

Melissa: They have slippers, spoons, and they literally left the only country they knew so you could have a better life. And so they always win. 

Jameela: A hundred, a hundred percent. Yeah, that’s completely fair. Thank you so much for coming on to this podcast. I am thrilled to have you. I think you are so brilliant and I think your work really speaks for itself and right now more than ever, I, I need you. We need you, but I need you, because we have a terrifying election coming up.

We are generally in a terrifying condition in the United States, and I feel as though there is a sort of fatigue that I know you’ve spoken [00:07:00] about amongst, especially young voters. And right now, because I’m an English person, I’ve only got so much that people will tolerate me saying about the United States, even though I’ve been living there since two thousand and fifteen, but I’m not someone who can vote yet. I don’t, I’m not a citizen, so I need you, who’s not only an actual, you know, citizen of America, but also a professor of law at NYU and an amazing authority on the constitution and the Supreme Court and all these different things. I’m so grateful that you’re here so that you can speak the sense that I can’t.

Before we get into it, tell me, how are you? There’s a lot going on. 

Melissa: There’s a lot going on. I think I’m better than I was a month ago. I think a month ago I felt pretty despondent about the state of affairs in the United States and the world more generally. And I think I’m now a little more hopeful. It feels like people are getting engaged with this election cycle in the United States and that people really [00:08:00] understand that this is kind of a do or die moment for us um, certainly for American women who have in the last year and a half seen a major retrenchment of our rights, like our daughters will have fewer rights than we were born with. And I think the stakes have never been higher and people are really starting to appreciate that and starting to get excited about this election and the options that we have before us because the choices are really stark. 

Jameela: So what I presume you’re talking about is Kamala taking over from Joe Biden, um 

Melissa: Yeah. 

Jameela: And now entering the presidential race properly, and so you feel hope? Is that what you’re saying? 

Melissa: I do. I think it’s really been encouraging to see how enthusiastic people have been about this new revamped ticket, um, full credit to Joe Biden for seeding the stage. That could not have been easy, but truly a selfless act. I think that was [00:09:00] geared at ensuring that we have a democracy going forward, that, you know, that they’re is the best possible chance for democracy and the will of the people to prevail and the rights that people have enjoyed to endure. 

Jameela: And so when you say everyone, I think it’s also important that one of the things I really wanted to talk to you about is the fact that what I am seeing amongst liberals, amongst young people, amongst almost especially people of color is a huge resistance to Kamala that is scaring the shit out of me because while I understand not agreeing with everything that a candidate has done or is doing or is a part of, and I can definitely relate to that as someone who comes from a Muslim country and you know who is horrified by what’s happening in the Middle East and is quite upset with the United States um, I can understand where people are coming from but I have been vocally anti Trump in this moment and pro whoever would keep [00:10:00] him out of office. And I fear that also what we’re watching is a lovely but incredibly idealistic approach in which we think that we would be able to get our candidate of choice to say all of the things that we want them to say in the way that we would like them to say it, and that doesn’t take into account the powers that be, the lobbying, the amount of hurdle someone has to be able to gather support at that level of politics. And so Bernie is an example of someone who said a lot of the things that a lot of the younger generation really agree with and die hard stand by, but Bernie is not anywhere near a position of being a candidate for this because that’s what happens also partially when you are anti, you know, the entire system, the way that Bernie is, and I’m a big Bernie fan, but I, uh, I also recognize that there are certain games you have to play. I was talking the other day on the [00:11:00] Internet about the fact that Obama said that he, you know, ran against gay marriage, in his time leading up to his presidency, and then he was the one who legalized it, so I think that we might be naive to sacrifice the future of our democracy over not getting every single thing that we want said explicitly before someone even has a chance in power.

Melissa: That’s a really good way to think about it, um, whether or not in this moment, where the prospect of profound harm to certain groups is just right there. And it’s very clear whether we ought to make the great be the enemy of the good. You know, I think one of the things we have to recognize, I think many people do recognize is that, you know, the Democrats are a big tent party. There are lots of different constituencies within the Democratic Party. It’s really hard to address them all in a way that feels satisfying to all of them all of the time. I think it’s really different on the Republican side. I mean, like, they are in line and they know what they want and it’s the same thing. And I think it makes it [00:12:00] much easier for them to sort of coalesce and get themselves together. It makes it harder, I think, for the Democrats to do that, given the big tent nature of it. But, you I am actually really encouraged by the prospect of really pushing your leaders, um, whether it’s during the campaign or after the campaign when they’ve been successful. You know, Bernie Sanders, as you say, was the person talking about student loan relief. It wasn’t Joe Biden. Joe Biden as a candidate was not talking about that at all, but it was such a clear and defining issue for a major constituency in the Democratic Party in 2020, young people, that it had to become part of Joe Biden’s domestic agenda, and it did become a huge part of Joe Biden’s domestic agenda.

Joe Biden forgave student loans for a huge swath of the population, and then a Republican controlled Supreme Court struck it down, and he then went back to the drawing board and tried something else, but uh, the [00:13:00] resilience, the durability of that plank of the platform, that was because people pushed once he was in power and moved him. And that’s a really important lesson to learn, like, he didn’t start out there. That wasn’t where he was. That was Elizabeth Warren. That was Bernie Sanders. It wasn’t Joe Biden. But he got there and he got there because people voted for him. People voted for the ticket and then they pushed while he was in power. And I think that’s an important lesson. It doesn’t mean that the person you wanted didn’t get elected. This is over. We just have to think of new ways to engage them and to show them that our voices are really important and need to be heard on certain issues. 

Jameela: And to not sacrifice the chance for our voices to be heard because I think we’re getting so hyper focused and trust me, I find it very hard not to be. As I said, coming from where I come from, I find it very hard not to hyper focus on this issue, but I am, I forced myself to zoom out because there are hundreds of millions of people in the United States who are affected [00:14:00] as of November, or as of, I guess, January, technically, um, immediately, uh, effective immediately, and in perpetuity, you know, the other candidate has said explicitly that if his, you know, if his supporters vote this one last time, it will have, it will be the last time he’ll get it quote unquote fixed, and, and that, that just sounds like a authoritarian Regime, then that we are looking at. 

Melissa: I mean, there are, he has friends in the press who try to play it in other registers, like that’s not what he means. But I think it’s hard to hear something like that and not understand, you know, if you vote for me, everything’s going to be okay, and we’re not going to need to vote again because I will, I’ll be a dictator. I mean, he said that, he’ll be a dictator from day one. If you look at Project 2025, which is the transition plan for the first 180 days of a new Trump presidency, it reads like a fascist playbook. So, you know, I don’t think the [00:15:00] stakes could be higher. I know people think that when people talk about this, they’re being hyperbolic. I don’t think it’s hyperbolic at all. I mean, if you read Project 2025, what they are proposing in terms of domestic policies, what they are proposing in terms of financial and economic policies, policies with regard to bodily autonomy and family policies, and then the foreign policy, I mean, it’s literally everything that you would hate as a progressive or just your ordinary run of the mill 60 year old liberal like you don’t want any part of this and if if we open the door to it, they will walk through and they were not successful the first time, but they won’t fail twice.

Jameela: A hundred percent and they’re much more organized than we are as a party as you said earlier like they fall in line they tend to agree. We couldn’t be more self cannibalizing and more at odds with one another and the last year in particular, it feels like the last four years, but the last year in particular or nine months let’s say more specifically [00:16:00] have absolutely obliterated any kind of, you know, even even groups uh within the group that used to be united now no longer are and everyone’s so at odds with each other, and I think, what I worry about is that people will feel peer pressured by influencers and large groups online who are saying you are not allowed to support this woman because of the party that she stands with and what they’ve been doing. And I’m scared that that peer pressure is going to lead to people back, like just fully checking out because they don’t feel like they have the confidence to maybe combat that conversation and so then they check out and that’s kind of what adds to maybe not the fatigue, but the other side of that, which is the fear of participating because you don’t feel like you can be your full self and right now that that that voice is very, very strong online. I don’t know if that’s what your algorithm is showing you, but mine is showing like a huge pushback. And anytime I say anything in vague support of just not voting for someone [00:17:00] who isn’t, who wants to be a dictator, I get a lot of personal pushback. So how do we, how do we overcome this conversation so that we can actually get ourselves to a practical place?

Melissa: I mean, that’s the question. I mean, how do you meet people where they are, understand their concerns, recognize that those concerns are completely valid and that, you know, what is happening is horrific and, you know, we should have a ceasefire and then also be able to pivot and say, well, you know, here is a way forward. It’s not exactly as you would want it right now, but maybe it is a better path than the alternative. And I think these are sort of places where I don’t know, maybe it’s helpful to have people who have sort of been there, kind of done that. I mean, like I remember when people voted for Ralph Nader in 2000 and it siphoned votes away from Al Gore, and you know, a lot of people who did that talked about how there was nothing different between the two parties. There was no difference [00:18:00] between George W. Bush, no difference between Al Gore and George W. Bush. When, in fact, we learned for eight years, there actually was a huge difference between the two of them. And I know now, you know, we think of George W. Bush as, you know, very warm and fuzzy and he’s fighting with the poncho. 

Jameela: I don’t. But yeah. Haha. 

Melissa: Some people do, and he’s definitely become, you know, softened over time. 

Jameela: Sanitized. Yeah. 

Melissa: I mean, like, and certainly in comparison to what’s followed. But those eight years of a Bush II presidency were absolutely pivotal. Like George W. Bush put in place the seeds of what is now a 6 to 3 conservative supermajority on the Supreme Court. He replaced Sandra Day O’Connor with Samuel Alito, and the consequences could not be more stark for American women, for minorities, and so there was a big difference, and in my view, voting for Nader because you, you know, like you just couldn’t stomach either party was kind of like selling out all of these people whose [00:19:00] lives were absolutely going to be changed by that election because you couldn’t see it or you couldn’t see how the differences between those two candidates were actually profound for certain groups.

Jameela: I also think that, you know, a lot of the people who are speaking with great influence live in protected housing and they have passports and I think a lot about the people that I have met or that I know who are undocumented, who will be the first people punished in the, like effective immediately, they will be kicked out, like found, like 

Melissa: Yeah. 

Jameela: Kicked out the country. Project 2025 stipulates that the military will be brought in to remove at least 11 million undocumented migrants from South America immediately. Like that’ll be one of the first things that they do, and that’s just in California. I think that 11 million. So I do worry that we’re just that we have a [00:20:00] habit of not being able to zoom out in our political party and it’s something that I’ve I have at times been too afraid to say but in the last few years have become less afraid to say because I can see where we’re going and I think you bringing up the Al Gore moment with Ralph Nader versus George W. Bush is so incredibly important because a lot of these people weren’t alive or politically engaged. I sure as shit wasn’t, uh, during that time. So many people, you know, have really only become politically engaged ever in their lives in the last maybe eight years. Trump made multiple generations who didn’t give a shit before, give a shit, and we’ve never seen voter turnouts the way that we have, uh, it’s been historic, the voting turnouts that we’ve had, so I think that that’s a, that’s a story that isn’t being told enough, that I think is incredibly pivotal, and you think about climate change and all the different things that Al Gore would have stood for, and maybe we wouldn’t have the Middle Eastern clusterfuck that we have now, like, had we not had George W. Bush in power back then. So I think one of the main ways that we can have this conversation [00:21:00] effectively is to just right now you and me go through some of the things that you are an expert in what’s at stake, right? And I think that that is the most helpful, effective way to make this point. So let’s start with reproductive rights. 

Melissa: Sure

Jameela: I know it’s something that you talk about all of the time. What are we actually looking at if we have a Republican leader, this Republican leader specifically? 

Melissa: The landscape for reproductive rights is already grim. Uh, I, I know some people think that it could not get any grimmer, but it could, it could get more grim really, really quickly. So we’ve already seen what a Republican appointing justices to the Supreme Court can do. Now we have a 6:3 conservative supermajority. It’s that conservative supermajority that overruled Roe v. Wade and Planned Parenthood v. Casey, withdrawing the right to an abortion that had existed for roughly 49 years, right? So they eviscerated [00:22:00] that right with the stroke of a pen. That was because they had the votes to do so. They hadn’t had the votes to do so before Donald Trump, but he got them the majority, the super majority they needed, and, and there you are. Um, currently there are a number of cases that are going to head to the Supreme Court that will continue undermining and eviscerating access to abortion. So there was a case involving Mifepristone, which is the second drug in the two drug medication abortion protocol that was before the court in this last term. The court ultimately kicked that case out on a jurisdictional question, so it never actually addressed the merits of whether the Food and Drug Administration’s approval of Mifepristone had been proper, which means that this case can now come back to the court. And, you know, I think the court punting on this case on a jurisdictional question was likely to avoid the political fallout of eviscerating access to medication abortion during an election year, so they kicked the can down the road a little bit. The can’s going to come back to the Supreme Court [00:23:00] in the next couple of years. There’s another case involving the Emergency Medical Treatment and Labor Act, EMTALA, and that’s a federal law that basically says that if you are a hospital in receipt of federal funds, which is most hospitals because they serve Medicare and Medicaid patients, you have to provide life saving emergency treatment to everyone who presents at your hospital. And that life saving emergency treatment includes abortion treatment if that’s what’s necessary to stabilize the patient. And it doesn’t matter if you have one of these draconian abortion bans. That was the case that was before the court today. Did the federal law that required this emergency life saving treatment conflict with the state law? Yes. And if in the case of that conflict, which should prevail the state law or the federal law? The court didn’t address that question. It kicked the case down the road on a jurisdictional issue again, I think because of the looming election and how salient [00:24:00] abortion rights are for so many voters. But there is a case from Texas that’s going to make its way back to the Supreme Court in the next year and I think, again, this conservative supermajority will have a lot to say about whether the federal government can limit what states do with regard to emergency abortion. 

Jameela: So that being thrown out today means that that was an opportunity for us to be able to override state laws for life saving care to be given to anyone who is pregnant and needs a life saving abortion. And we’ve seen so many of those cases hit the media. God knows how many cases aren’t making it to the media of people who are in, like, very clear danger for their safety and a doctor either refuses to do it or pauses for so long because they have to wait to find out if they can be allowed by the court or by state, um, that then the woman either almost dies or then has to travel out of state, but then she can’t come back into the state because she’s gone and done something that’s technically illegal in the state. So that that was the [00:25:00] opportunity to perhaps overturn that, and that’s now gone, down the road again. 

Melissa: I think this court was never going to say that the federal law preempted any state laws that conflicted with it, so I think it was more of an opportunity to eviscerate the federal law and allow states to do what they liked. And again, this would lead to more and more women being bleeding out in parking lots as they waited for doctors to determine whether or not their circumstances were exigent enough to require an abortion. But I think what the court did and sort of punting on this case was just delay it so that it wouldn’t become a salient issue in the election. I think the court saw in the wake of Dobbs how access to abortion really got women fired up and they went to the polls with rose death on their lips and they were mad as hell. And I think the court didn’t want to be part of that electoral discourse. I don’t think they wanted abortion to be part of that electoral discourse, and so they kicked it down the road. It’s going to come back. And so that’s just two issues [00:26:00] involving the Supreme Court that’s going to be faced, what we’re going to be faced with.

There are lots of other issues of nothing to do the Supreme Court that can have massive consequences for access to reproductive freedom. So, for example, everyone has talked about the prospect of a nationwide ban on abortion. If the Republicans win the presidency and win Congress, then it’s a Republican Congress can write a new law that bans abortion nationwide, even in blue states, where it’s currently permitted. And a Republican president, Donald Trump, will sign that into law. That could totally happen if the Republicans win both houses of Congress and win the presidency, but even if they don’t win both houses of Congress, even if they just win the presidency, there is an 1873 law that was passed in a fit of peak during the Victorian age about women basically controlling their sexuality. And this law prohibits the transmission in interstate commerce and through the males of any article that could be used [00:27:00] for quote unquote immoral purposes. So that’s materials that could be used for an abortion, like abortion pills, for example, it could be materials that could be used for a surgical abortion, like a speculum. It could be contraception. This law was capacious. It prohibited the transmission and mailing of pornography and all kinds of things, and it’s never been repealed. It’s no longer enforced, but it’s just sitting there on the books like a zombie waiting to be resuscitated. And in project 2025, Donald Trump and his minions have talked getting the new Republican Department of Justice to begin enforcing this law, which is known as the Comstock Act, to begin enforcing it as a nationwide ban on abortion and possibly some forms of contraception. And their point is really clear, we don’t need Congress to do this. This law already exists. All we need is a president who’s willing to and an attorney general who’s also willing to begin enforcing this [00:28:00] act and suddenly we’re in business and we can no longer ship pills through the mails from jurisdiction to jurisdiction. We can no longer ship things like literally specula, which are used not only in abortions, but also in pap smears and random standard gynecological care. Anything that might be used for an abortion, we can no longer send it, and that literally cuts off so much access across the nation. So that’s just at a base level in the first 180 days, that’s something that could happen. They have also argued for what they called increased abortion surveillance. So they want physicians, doctors, hospitals to report to the department of health and human services, who is having an abortion and where and how possibly for use in prosecuting those women or prosecuting the physicians who provide that kind of care. So there’s that. They’ve also talked about menstrual surveillance, um, documenting and reporting when women have their menstrual cycle so it’s easier to [00:29:00] track if and when they have actually had an abortion.

Jameela: I know my app is asking me so many more questions than it has ever asked me. 

Melissa: Delete your app. Delete your app and get a calendar. 

Jameela: How crazy and how sad that this is where we’re at, that you can’t track your own fucking period. Also, what if you have PCOS, so therefore you have irregular periods? Like these kind of things are so, so insidious and terrifying.

Melissa: That’s the point. I mean, it’s insidious, it’s terrifying. And here’s the thing, even if they don’t make good on this, the fact that they’re pushing this direction creates such a climate of fear and uncertainty that if you were a physician practicing, if you were just concerned about staying on the right side of the lot, you would really hold back. If you weren’t sure what was going to be done, you weren’t sure where the government was going to go with this, you might just decide, I’m not going to do anything, and 

Jameela: Well, because they, they get the bigger, the bigger sentence, right? It’s held mostly against the person who performs or aids the [00:30:00] abortion.

Melissa: I mean, but the point of all of this is, look when you create that kind of climate of fear, even if you don’t actually do anything, you have the effect of chilling what might actually be lawful conduct or just chilling conduct more generally. People aren’t going to do certain things if they think that there’s going to be a really profound consequence for it. That’s kind of what they want, right? So even if they stop short of prosecuting the Comstock Act fully, the fact that it exists and people think they’re going to enforce it will chill conduct, chill behavior, and stop people from performing abortions or sending abortion pills through the mail. And that’s as effective as having an actual ban.

Jameela: Well, especially because then those days, hours, and minutes can lead to sepsis of a woman who desperately needs a life saving abortion, you know, these moments, these moments of pause are so literally, I mean, we can see exactly what’s happening. We have heard so many countless testimonies from women whose lives have been risked. Like these are [00:31:00] mothers who just, who wanted the baby even, who couldn’t, who didn’t have a viable pregnancy, who almost bled to death. 

Melissa: Well, I mean, here’s, here’s the irony. One of these women in Texas who had her fertility actually compromised her future fertility compromised because she couldn’t get an abortion when she needed it to deal with a miscarriage. Now she wants to continue expanding her family and she’s looking at IVF and they’re also trying to limit access to IVF. You know, we have Senator Tommy Tuberville of Alabama talking about we need to expand families, but we also have to limit IVF. I mean, it’s like, “are you there, Tommy? It’s me, it’s me, Margaret,” and here’s how IVF can actually expand your family if you’ll just allow it to. So, this is not a pro family agenda. It’s not a pro life agenda. It’s an agenda of control and coercion. 

Jameela: Can you explain that to me? Because I think what happens is that in the discourse, we’re like, They’re banning abortion [00:32:00] and they’re banning IVF, so we don’t even know what it is that they want. Do they want to expand the population of America? Are they saying they’re worried about birth rights? And so then it scrambles people’s minds and then they just move on from the conversation. So can you even fathom the logic behind it? 

Melissa: Yeah. No, I mean, it is pretty straightforward. So, you know, they object to abortion because they believe that the termination of a fetus is akin to murder. The problem with IVF is that to do IVF, you have to fertilize a bunch of ovum, use sperm to fertilize a bunch of ovum, and then you, you implant multiple embryos into a person in the hopes that they will take and a viable pregnancy will result, but sometimes multiple ovum actually stick, and it turns out in order to maintain a successful pregnancy, you actually have to eliminate or reduce the number of embryos in the womb. So you know, you may implant five and all five take, and then you actually have to [00:33:00] decide, okay, I can’t actually support quintuplets with my body, so I’m going to selectively reduce and eliminate three. In their view, the selective reduction is a termination of those three fetuses. That’s murder. And so that’s the problem with IVF. The fact that it requires in many cases the elimination or reduction of embryonic tissue in order to sustain a viable pregnancy. And that’s a problem, right? So they’re upset about that aspect of IVF, even though for many families, IVF is the only conduit to family formation. And that’s also relevant because another reason why they’re opposed to IVF is because it is the principle method by which same sex families can have children. And the prospect of same sex families is one that really I think sticks in the conservative craw because it defies the logic of the traditional male breadwinner female dependent nuclear family [00:34:00] model, which Project 2025 is all about promoting and supporting to the detriment of any other family form, including same sex families. 

Jameela: And speaking of same sex, I think a lot of people feel as though same sex marriage is also on the chopping block, should we continue moving in the direction we’re moving.

Melissa: I mean, I think it’s certainly the case, but even if they don’t get all the way to overruling Obergefell v. Hodges, which is the 2015 Supreme Court case that legalized same sex marriage in the United States, even if they don’t go that far yet, there’s a lot they can do in the interim to just make it really hard for same sex couples to live their lives.

So just a few terms ago, the Supreme Court decided a case called 303 Creative v. Alenis. And this was a case involving a website designer who said she had dreams of making wedding websites, but her Christian faith really prevented her from providing those services to same sex couples. She wasn’t [00:35:00] actually making wedding websites at the time. She just had an inkling that she might want to, and no gay person had asked her to make a website for a prospective same sex marriage, so that wasn’t the case. I’m like, I’m saying all of this to make clear, like, I’m not exactly sure why this case was at the Supreme Court or why the court decided it because it wasn’t clear that this website designer had been injured. She hadn’t been asked to do anything with which she disagreed. In any event, the court blew past that requirement that, you know, you actually have to fulfill certain requirements to be in federal court, and they decided this case on the merits and said that, it violates your right to free speech if the state requires you as a business owner to provide your services to anyone who requests them. So a standard public accommodations law that prevents business owners from discriminating against me on the basis of race or the basis of gender or religion. You as a business owner now can say, my Christian faith precludes [00:36:00] me from providing the service to you as a matter of free speech. The state cannot compel me to endorse a message like I like gay marriage when I don’t.

And so this kind of decision is going to, I think, take root. It’s already, I think, undermined and upended these kinds of public accommodation laws that have really flourished in every jurisdiction in the wake of the civil rights movement. This idea that yes, you’re a private person, yes, you have private beliefs, but if you are doing business in the public domain, you’re selling socks or whatever. You got to sell to everyone who wants socks. It doesn’t matter if you don’t like black people or you don’t like Jews or you don’t like this person. If you’re selling socks in the public domain, you got to sell them to everyone else. Now the court says, except gay people, like your religion, your speech rights mean that you don’t have to sell to them.

And I think if you think about that kind of prospect of a million different service providers saying, You know what? I don’t do that for gay people. You can [00:37:00] really narrow the range of public life that same sex couples feel comfortable navigating. So you may not overrule same sex marriage entirely, but you can make it really hard for same sex couples to exist in the public sphere.

Jameela: And I know that Biden would like to reduce the amount of time that Supreme Court justices reign supreme in court, um, can you expand a bit on that and whether or not you think that’s something that Harris would continue the work of? 

Melissa: So Joe Biden, a few days after stepping back from the campaign trail and ceding the floor to Kamala Harris announced what I think had been in the works for some time, and that was his proposal for Supreme Court reform. It’s a three part proposal. Um, I will just say at the outset, I think the three proposals are important, but they’re relatively modest. These are not burn it to the ground [00:38:00] proposals. These are very modest proposals. The first is for term limits for Supreme Court justices, so each justice would be limited to an 18 year Supreme Court term. And then that would, I think, help lower the temperature on these Supreme Court appointments. Like every appointment wouldn’t feel quite so pregnant, no pun intended, with, you know, possibility in peril. Um, you know, you won’t be worrying if like, is this the person that’s going to be the vote to overrule Roe v. Wade? It all gets lowered a little bit. The temperature gets lowered. So that’s the first proposal, and most constitutional courts throughout the world have term limits for their justices. Like we, the United States are the outlier here, so this would just bring us in line with other democratic systems. The other proposal is to require the Supreme Court justices to adhere to a binding code of ethics. So Clarence Thomas would have to give up his emotional support billionaire. Sam Alito would have to recuse himself in situations [00:39:00] where someone to whom he’s given an interview for the Wall Street Journal is actually on the briefs in a case that’s before the court. Again, a very modest proposal. Lower court judges in the United States have to adhere to a code of ethics. It’s pretty thin. I mean, these are not draconian requirements, but the Supreme Court is not even subject to these very thin requirements. This would require the justices as well as the lower court judges to be bound by something that is more restrictive in terms of what they can do as an ethical matter.

Jameela: How insane that the more power you wield, the less restrictions are on you, the less anti corruption measures taken. That’s insane. 

Melissa: It’s, I mean, it is insane. Um, if you actually saw what this court was doing in terms of their cases and limiting the reach of anti corruption statutes, maybe it seems a little more comprehensible. Like this is a court that has made it open season for grift and corruption. And, you know, when you look at what [00:40:00] Clarence Thomas and Justice Alito have been doing, like, maybe it makes sense. 

Jameela: I know it’s a big question, but could you expand on that slightly? Because I think a lot of people aren’t actually aware of that because we only hear the most dramatic cases, but there are a lot that also the media don’t report on, you know, who knows why?

Melissa: No, so I talk about this all the time, you know, like I am a legal analyst for MSNBC. And, you know, they want the big cases, but there are lots of little cases that the court hears over the course of the term, and when you sort of cobble all of those little cases together over multiple terms, like a bigger tableau emerges. This year, one of the cases the court heard was a case called Snyder v. United States. And the question in Snyder was whether, um, it violated a federal anti corruption statute for a small town mayor to have received an almost $10,000, I think more than $10,000, gratuity or tip from a trucking company after the mayor awarded the trucking company a lucrative municipal [00:41:00] contract. Felt like a quid pro quo, seemed a little bit like a bribe, but, you know, the mayor was like, it’s just a tip. And the trucking company was like, it’s just a tip for a job well done. I have never tipped anyone $10,000 for anything, but you know, maybe I just don’t fly in those circles. But many people thought that, you know, this was a clear violation of this anti corruption statute. The Supreme Court did not see it this way. They read the terms of that statute to permit that gratuity or tip, and they have done that consistently with a lot of these statutes that are aimed at limiting opportunities for public graft, public grift, um, corruption more generally, and they basically have made it safe for public officials to do a lot of things that I think most of their constituents would find objectionable because they sort of smack of corruption or graft and one of the things that was [00:42:00] so perfect about this particular case was Justice Katonji Brown Jackson, the only black woman on the court, wrote a dissent to Snyder and the opening part of her dissent, which was perhaps the world’s most perfect jurisprudential subtweet was, you know, this, this is a decision that only this court could write, like only this court could view it this way. And she was calling out not just this decision that opens the door to corruption in municipal government, but also the fact that these guys with their emotional support billionaires hanging out on private jets and going on free vacations, they’re the ones who see no problem with this. And, you know, I think if you think about it in those terms, it’s, that’s not a surprise, but they’ve done this consistently over the course of the last 10 years in a number of cases.

Jameela: And this is to pave the way for, you know, where we’re at now, where there’s consideration of Trump, you know, being able to make it so that he cannot be tried for anything he does [00:43:00] in his presidency, right? Am I, have I got that right? 

Melissa: That’s perfect. And, um, this is the third prong of Biden’s three part proposal for Supreme Court reform. So, you know, we have the first two proposals relatively modest. I think the most significant and considerable of the proposals is a proposal to draft and ratify a constitutional amendment that would overrule Trump v. United States, which as you say, is the Supreme Court’s recent decision that expands the scope of presidential immunity for criminal acts, like we’ve never had a decision from this court about whether a president could or could not be criminally liable. I, I think part of the reason we’ve never had a decision like that is because we’ve never had a president who engaged in criminality. Like, you know, we’ve had decisions on civil liability. Can the president be sued over things that he or he has done in office or outside of office? But we’ve never had to grapple with what do we [00:44:00] do if the president has been adjudicated a criminal? And so we now have that situation because of, you know, who we have had as a president and the Supreme Court in this decision essentially said that it’s very difficult to separate out the president’s personal conduct from his official conduct and in circumstances where he is being held liable for his quote unquote official conduct, he is immune under those circumstances. Like he can be held liable for things that fall into his personal purview, but they kind of suggest that what is personal and what is public or official is a pretty thin line, and in fact, most of what the president does is going to be official. And if you take that view, that almost everything the president does kind of smacks of official conduct, that opens a wide berth to a president to get down to some serious [00:45:00] criming with very little repercussion, like all of this is going to be considered immune. The case obviously had lots of implications for the federal cases that were currently pending against Donald Trump at the time the Supreme Court took this up. Many people, myself included, talked about how even before the court issued its decision, they had already granted Donald Trump de facto immunity because they waited so long to decide that case and basically made it impossible for those federal cases to be heard before the November 2024 election. But I don’t think any of us were expecting a sweeping decision of the sort that the court finally did issue on the very last day of the term, granting the president such wide and almost unparalleled and untrammeled immunity to do things. I mean, we’ve never seen anything like this. There is no precedent for it. It goes [00:46:00] against all constitutional design. The idea that, you know, the reason why we have a written constitution is to divide up power so that no single actor can consolidate too much power and become uncontrollable or ungovernable, and yet the Supreme Court decided in this opinion to give the president the powers of a king. And that as much as anything is on the ballot in this election. Are we going to have a president who’s not predisposed toward criminality? Are we going to have a Supreme Court that recognizes that there are limits to what you can allow the government and government actors to do? 

Jameela: It’s so harrowing that I don’t even know how to process the conversations we’re having because they feel like they’re something out of a cartoon. Like it, it feels as though if someone had made the movie of this, you know, six years ago, ten years ago, everyone would have panned the movie because they would have said, [00:47:00] “This would never happen in the United States of America. This is not a believable film. This is obscene and hyperbolic.” And it’s like we’ve, we’ve surpassed hyperbole’s capacity, even like you, you couldn’t have exaggerated to this point 10 years ago. 

Melissa: I think we are at an existential point. Like, I mean, this is an inflection point. I think that’s why so many people are so exorcised. I think that’s why we’re seeing all of these kinds of infighting and, you know, internecine disputes within the Democratic caucus because the threat is real.

Jameela: But wait, why is that leading to more infighting? Why is that not, given that we are talking about an existential threat, why is it leading to less unity when we know that that is the only thing that we’ve got right now over the most unified, comparatively unified possible political party? I don’t understand. I can’t get my head around it. 

Melissa: I just think the moment feels so profound and I think for some people, it’s like the [00:48:00] profundity of it, like that can’t be real. Like, so when Melissa Murray says like, no, this is a battle for the soul of this nation, whether we become a democracy or not, whether we become Gilead from Margaret Atwood, The Handmaid’s Tale. I think there are some people who are like, that’s such hyperbole. That could never happen. Let’s get back to talking about why we don’t have candidates who are more attuned to a progressive agenda or more attuned to X or Y or Z. And I just think that the threats seem so over the top that it’s just really hard for people to believe that, in fact, they really are threats, but I think they are. Like full disclosure, maybe I’m wrong about some of this. I haven’t been wrong yet. I mean, I testified in the middle of the Senate Judiciary Committee that Brett Kavanaugh in 2018 was going to be a reliable vote to overturn Roe v. Wade and people acted like I was on crack, like, what was I thinking? Such hyperbole. So overwrought. Like, you know, [00:49:00] all of this. I was right. Again, I think this feels profound. It feels existential because it is. And the fact that it feels so existential and so profound, isn’t a reason to discount it. It’s a reason to lean in and try and fix it. But I think for many people, it just seems so abstract and it can’t be real, but it’s totally real.

Jameela: And so what else are some things that you think that this like sort of Gen Z and millennial audience need to know as to why we need them so engaged right now? 

Melissa: First of all, this isn’t, I don’t want to be like, you know, the old lady telling you like kids, this is what you should do. I mean, I think there’s a lot we can learn from this generation about political engagement and how to do it and how to get people on board. I mean, 

Jameela: I know all I’m saying is that those people who showed up and, you know, made history, etc. with their voting turnout, they feel very, they feel as though they didn’t get what they wanted out of the presidency that they fought so [00:50:00] hard for. 

Melissa: Right. 

Jameela: So how do we ask them to do this again? 

Melissa: There are a couple of things that I would emphasize, you know, one, and I don’t mean to say this and like, I don’t mean to be pedantic about this, like, we don’t understand basic civics in this country. And so, you know, there are a lot of people who are like, you know, I, I voted and I lobbied and I registered voters and I got out the vote because I cared about student loan relief and I didn’t get it. I’m like, you actually did get it. The president did give it to you. It was the Supreme Court who took it away, so blaming the right actor, I think, is really important. And I just think we don’t have the same basic level of civics knowledge or engagement. Like, who’s doing what I think is sometimes that gets lost in the shuffle.

And when the Supreme Court overrules student loan relief, we think of it as Joe Biden’s failure when it’s actually not Joe Biden’s failure. It’s the Supreme Court’s victory over the Biden administration, right? So kind of figuring out [00:51:00] who did what. You know, I talked to a fair number of black men who, you know, talk about how much they’re intrigued by Donald Trump because during the pandemic, Donald Trump signed the stimulus checks and those were really meaningful. People started businesses. They were able to keep their homes. And I have to remind people, like yes, he signed the stimulus checks after he was against giving the stimulus checks, like the stimulus checks were the result of a Democratic Congress refusing to let this country grind to a halt because of the mismanagement of the executive branch during the pandemic. Donald Trump signed it grudgingly, and all those checks went out, but that was a legislative endeavor that he finally had to get on board with. That wasn’t, you know, Donald Trump’s largesse, like writing checks to you from his checkbook out of The Apprentice, like, the only person who apparently got checks written to them was Stormy Daniels. So, I mean, those kinds of things, like, who’s doing what? Who’s responsible [00:52:00] for what policies? How do laws get passed? How do they get overruled and repealed? All of that, I think, has to be much more clearly presented, so people need to know who’s responsible, and that’s, I think, a really important part of it. So I do think, though, that this generation, what’s so exciting about getting them engaged is that they are a sleeping giant of the electorate. If Gen Z came out and voted in full force, they could swing this election. And I think if they stayed engaged, they could sway the direction of public policy in this country. I mean, we saw it with student loan relief. Nobody was thinking about that but Elizabeth Warren and Bernie Sanders and neither Elizabeth Warren nor Bernie Sanders was in the Biden administration. And yet that became one of the biggest domestic successes of the Biden administration. And it was because Gen Z insisted that it had to be, and good on them. [00:53:00] That’s how you do it. That’s how you get the administration to focus on your issues. You show up and you stay on them. 

Jameela: And so I guess those young people are probably thinking, and it would be fair for them to think this that well, if we have all this power that we can sway and we can change things, why isn’t everything changed? Why isn’t everything changing, especially now to this specific hot issue that is stopping people from wanting to even participate in this election at all, which is the Middle East. 

Melissa: Let me sort of say more generally, um, again, this goes back to like, understanding the landscape. Again, gerrymandering is a huge problem in this country. I think a lot of people don’t understand. 

Jameela: Can you explain what gerrymandering is just for anyone who doesn’t know? 

Melissa: Gerrymandering is the process by which political parties try to consolidate their basis of support and their power at the state level in state legislatures and in Congress by redrawing the districts to maximize their representation. [00:54:00] This is not a Republican problem. It’s not a Democrat problem. Both parties do this. What it does mean is that there’s distortion in the electoral landscape. So, you know, why do you have a majority of Americans favoring greater access to reproductive rights, but you have some of these states passing the most draconian abortion laws that we’ve seen in a generation? Because of gerrymandering, because elected representatives in the state legislature, where there is gerrymandering, don’t actually have to be responsive to the majority of voters. They just have to be responsive to the district as it’s been drawn. And often those districts have been drawn to maximize the power of one group over another, and so there’s tremendous distortion in the electoral landscape. This is compounded by voter suppression laws that make it harder for certain constituencies to actually show up and have their voices counted. When you have that kind of distortion, it means that even when you have a big turnout, you may not necessarily [00:55:00] see your electoral enthusiasm translated into the policies that you want because all of this is being filtered through representative government that are beholden to certain constituencies, but not to others. And the point I think of gerrymandering is not simply just to consolidate electoral power for one particular party, but to cultivate disaffection among the group that has been sidelined. Like you showed up, you showed up in great numbers, but I’m paying attention to them. I’m not paying attention to you. Why would you show up in the future? Like, you’re not dumb. You have like plenty of other things to do with your time. If you consistently show up, but you don’t see your enthusiasm being translated into the kinds of policies you want, you will stop. You will become disaffected and you will recede from the public sphere. That’s part of why gerrymandering is so effective. It consolidates power in the moment, and then it pushes those who would object to the sidelines and keeps them there. [00:56:00] I think we have to understand that, like, that’s one of the reasons why you’ve got to stay in the game and you’ve got to recognize that this is a marathon and not a sprint. You want to have a voice? You’ve got to keep showing up because like they want you to be disaffected. They want you to give up. They put all of these rules in place around voting. You can’t stand, you can’t have a chair in line, you can’t give water to anyone because they want people to give up and go home. That’s why you need to limber up, stretch, pack a lunch, get in line, stay in line, and you know, that’s a metaphor, not just for what you do on election day, but what you do every day thereafter. You have to keep showing up because they are counting on you becoming disaffected and leaving. 

Jameela: Perfectly said. That was perfectly said. And thank you for saying it like that. And I think that that’s kind of what I was thinking about while you were talking about the chaos of it, how no one really knows that the Supreme Court is often [00:57:00] responsible for blocking things or these person are responsible, those people, we don’t have a real cognitive understanding of everything that’s happening on a civic and municipal level.

Melissa: To be fair, Democrats have been dumb, dumb, dumb about how they talk about the court. Like I remember in 2020 during the Democratic National Convention, there was this, you know, reel of Joe Biden’s successes as a senator, his legislative successes like he passed the Violence Against Women Act. He passed this. He passed that. And I was just watching the whole thing thinking like in the Violence Against Women Act, a big part of it was invalidated by a 5 to 4 majority of the Supreme Court, and that was also invalidated by a 5 to 4 majority of the Supreme Court. So, yes, you can be incredibly successful in your legislative agenda and then have it all undermined and shot to shit by the Supreme Court, and so we need to make the court part of electoral politics. 

Jameela: For sure. In the chaos, I have missed this Violence Against Women Act that got thrown out by the Supreme Court or blocked by the Supreme Court? 

Melissa: Part of it did. So [00:58:00] the Violence Against Women Act was passed in the 90s and it did a lot of things. It was a really huge act, um, some of it was funding for domestic violence shelters. Some of it was funding for self defense classes for women, but part of it was what was known as Section 13981 called the Civil Remedy, which basically allowed victims of gender motivated violence to sue their attackers in federal court. It gave them a federal cause of action. And, um, one woman who was sexually assaulted on a college campus sued her attackers on the view that this civil remedy existed and many states weren’t prosecuting either domestic violence or sexual assault as rigorously for lots of different reasons, um, you know, the difficulty of providing proof, um, not believing women when they came forward with these kinds of claims. And so this civil remedy allowed you to take your attacker and to sue them civilly for it. Um, and the Supreme court [00:59:00] said that this violated principles of federalism, that there was no authority for Congress to pass such a law either under the Commerce Clause, which had traditionally been a vehicle for civil rights law or under section five of the 14th Amendment. The Violence Against Women Act had been a kind of signature legislative achievement of Joe Biden when he was a senator from Delaware, and that piece of it was a big part of it that was going to help get justice for victims of gender motivated violence, and the Supreme Court stepped in and said, “Hold my beer. I don’t think so.” 

Jameela: So if you have one last message to the people listening to this, given the fact that we are two and a bit months out from possibly the entire political future of the United States, what do you want people to know and think about?

Melissa: A couple of things. Um, one, get in line and stay in line. This is going to be a marathon. It doesn’t end on election day. It continues if, [01:00:00] you know, you make your voice heard on election day, you make your voice heard before election day, encouraging other people to get out there and to get engaged and to vote. And you get them to stay engaged and you stay engaged because that’s how you move these political constituencies. Like you’ve got to stay on them. You’ve got to keep telling them, like I have literally been to the White House emphasizing the importance of staying on reproductive rights like, you know, do not give up on this like we need to, and this administration has actually been better than most. I think we like, I think part of it is obviously Roe v. Wade was overturned, but even before then, they got it. I think part of why they got it was because people kept pressing like this court is going to overrule Roe v. Wade. We have to stay on it, and they kept pushing, very different from the Obama administration, which, you know, had a majority in both houses of Congress and could have codified the protections of Roe v. Wade and didn’t like, it wasn’t a priority.

The Affordable [01:01:00] Care Act was a priority, and maybe that was the right priority. Like the Affordable Care Act provides health insurance for Millions of Americans who otherwise would not have it. Um, and it was an important legislative victory that has become deeply entrenched in our system. But what if we had stayed on them about reproductive rights? What if we had been unwilling to sort of say, okay, like, we’ll let this take care of itself. What if we’d stayed on them? Maybe we wouldn’t be where we are right now. And so that to me was a lesson. Stay on them. Keep going. Um, I think, even as we have big tent politics, we have to think about being multiple issue voters and to generally focus on how do we get to the good, even if we can’t get to the great and this isn’t for everyone. And if there are people are like, I absolutely can’t do this. I can’t cast my vote in that way. Those are your convictions. I totally respect it. That’s [01:02:00] not how I’m thinking about this election. I’m thinking about my daughter and I’m thinking about people who don’t have an opportunity to vote. Like, you know, I’m the daughter of immigrants and I think about the immigrant families, whether undocumented or documented, whose lives are going to be completely upended, who will either be unceremoniously shipped out of this country or refused entry because of a change administration, so to me, the stakes couldn’t be higher. And I’m trying to think beyond my own purview about what’s important and what I want this world to look like. And you know, maybe that’s not for everyone, but maybe it is for some people, and, you know, I hope that we can think about what is this community we share together and what do we want it to look like together.

Jameela: Melissa Murray, thank you so much for coming on today. I really appreciate you and you make me want to read more. 

Melissa: Can you tell that to my children? I would like them to read more too. 

Jameela: Hahaha! 

Melissa: Thank [01:03:00] you. It’s been so great to be here. 

Jameela: Oh, thank you so much for being here. You have put this in ways that are very hard to argue with, and I think for those of us who don’t feel as confident or as educated as you are, to be able to send this episode and your words out around in these next pivotal few months is a huge gift to all of us, so thank you. That’s exactly what I wanted from you and you above and beyond delivered. So I appreciate you very much and good luck to you in this fight. I know you’re closer to this than I am because of where you work and what you do and who you’re trying to galvanize and inspire, um, and so best of luck to, to all of us really. 

Melissa: To all of us. Thank you for having me. 

Jameela: Thank you for coming.

Thank you so much for listening to this week’s episode, I Weigh With Jameela Jamil is produced and researched by myself, Jameela Jamil, Erin Finnegan, Kimmie Gregory, and Amelia Chappelow [01:04:00] and the beautiful music that you are hearing now is made by my boyfriend, James Blake. And if you haven’t already, please rate, review, and subscribe to the show.

It’s such a great way to show your support and helps me out massively. And lastly, at I Weigh, we would love to hear from you and share what you weigh at the end of this podcast. Please email us a voice recording, sharing what you weigh at iweighpodcast@gmail. com.