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Good evening.
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This is Clive Stafford Smith yet again, and I have to issue a government health warning on this, which is for the first time ever in two years.
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I'm going to talk mainly about the law today.
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As a lawyer, I don't like to do that because really what we're talking about is power.
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It's not about law.
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But I just thought it would be nice to look at the structure of the last few months and under Trump and see, because at the beginning of all this, I was asking the question, you know, is the Constitution going to survive under Trump?
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I always thought it would myself, because it's a great document.
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And the whole point about my series of lectures is to try to get the British to see they really need something similar.
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And we'll see how we're doing.
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I mean, obviously it's been a big challenge for any structure in the United States having Donald J.
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Trump as president.
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And the question is on the table after 16 months who's winning, Donald Trump or the Constitution?
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He has certainly made an effort to get around it and ignore it in many ways.
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But the question today is whether rumors of the death of the Constitution are exaggerated, and whether, in fact, any obituary that people's written is a bit premature.
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So let's just look at it.
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I mean, our problem was originally always going to be this: that there are six conservatives, including two who were appointed by Trump himself, as opposed to three liberals.
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It is not surprising to those of us who understand gender generally that the three liberals are all women, and they're there on the right-hand side of your screen, and the conservatives are on the left side.
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And the general notion as we entered Trump world was that the six conservatives were going to basically dismantle the Constitution.
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So what we're going to do today is go through and see if that's happened in the last 16 months or not, and then try and figure out where it goes from here.
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Before we get to the current court, I think it's important to look at history.
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And I thought I would just Google the five worst Supreme Court decisions of all time.
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And there's surprising unanimity in opinions as to what they are.
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I'm not sure I agree with them.
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I think there are some serious contenders out there for the worst Supreme Court decision of all time.
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But these are the five that came up.
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The first two both involved the Supreme Court acting as historically it generally has done, which is to pull against the tide of politics.
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So as the U.S.
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came towards civil war in 1860-61, there was all sorts of arguments about slavery and about, you know, the Missouri Compromise and about how to keep a majority in Congress in favor of the slave owners and so forth.
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And Dred Scott versus Sandford was a case in 1857, which was totally notorious, deserves its notoriety, where the Supreme Court held that basically African Americans were not citizens and that they didn't have to be counted in the US.
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And that was when there was vast wathes of the US that had slavery.
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And you know, you have to remember that notwithstanding all the pious things that people said, at the time that the US achieved independence, all 13 colonies had slavery.
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And even though there were people who were vehemently opposed to it even then, they were in a minority.
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And some of the things they did back then, for example, you look at the Thirteenth Amendment, the Thirteenth Amendment that supposedly abolished slavery actually has an exception for people who are duly convicted of crimes.
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In other words, you can have slavery, involuntary servitude, in prison.
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And that still exists to this day.
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And that came about as a result of a document written by a notable anti-slave person who was trying to get a compromise between pro-slave people and anti-slave people.
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And thought that the best way to do that was to let everyone have slaves in prison.
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Pretty bizarre, but Dred Scott was horrendous too.
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And that was 1857.
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Dred Scott was such a contentious case back in its day that it is thought to have been a significant contributor to the Civil War that broke out just very few years later.
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So that was one that I think has earned its place in the annals of dreadful decisions.
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Second one on race early on is Plessy versus Ferguson.
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And Plessy was the case in 1896 where there was a big backlash after the Civil War.
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We all know about that.
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The Ku Klux Klan was out there.
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It was a brief time in the South when the Republicans, who were the ones who were opposed to slavery as opposed to the Democrats at the time, the Republicans were fighting to give African American citizens rights, and the former slave owners were fighting back.
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And you see this all across the U.S.
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I mean, actually, one of the interesting things about prisoners in prison is where I used to do a lot of work in Angola, which is the Louisiana State Penitentiary.
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It was called Angola because it was a prison, it was a plantation of slaves who were basically brought from the country or the part of Africa called Angola.
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As soon as the Civil War was over, it was turned into a prison, effectively, and it was a privatized prison.
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The woman who owned it, because her husband died, sold it to a former Confederate officer who turned it into a prison and then started leasing out the prisoners to do work.
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And all those prisoners, of course, were vast majority black prisoners.
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And you know, one of the things you see, if you've ever seen the film 14 Days in May, about one of my clients is in Parchment Penitentiary, which is the Mississippi equivalent, it was still, when that film was shot in 1987, it was all black slaves effectively working on Parchment Farm with white people on horses, guards with shotguns making them do their work.
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So a lot of it, you know, plus ça change, a lot of it hadn't changed a whole lot.
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Plessy versus Ferguson was part of the retrenchment against civil rights for the freed slaves.
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And it was the case that held that separate but equal was okay.
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Now, obviously, separate but equal was a way to keep our white kids and black kids apart, and the white kids got the good schools and the black kids didn't, and so forth.
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And even toilets were separate but equal.
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When I first went to the Louisiana State Penitentiary, and this would have been 1983 or something, there were two toilets outside the front gate, two sets of toilets, and they said white and coloured, white and colored on them.
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And those were relics of separate but equal.
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And this was a decision of Plessy versus Ferguson in 1896, and that didn't really get overruled until 1954, when the Supreme Court, led by Chief Justice Earl Warren, who was appointed by um by President Eisenhower, a conservative Republican.
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And the Warren Court voted 9-0 in Brown versus Board of Education to do away with Plessy versus Ferguson and to say separate but equals not equal.
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And of course, the president Eisenhower said some very rude things about Earl Warren, who he thought was a dumbass, I believe was one of the descriptions he used.
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And this was another example of the Supreme Court going against the sign of the times.
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In Plessy versus Ferguson, the US had been moving towards equality, the US pushed back and made it less equal.
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1954 was a pretty racist time, pretty conservative time, and the Supreme Court pushed back with a liberal decision to overrule Plessy.
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So those are two really, really meritorious winners of the worst decisions of all time.
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The next one you've probably never heard of, but I think it earns its place.
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This comes in at number three in the list, Buck versus Bell 1927, the era of eugenics.
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And eugenics was another of those moments in time when we were just being unbelievably racist.
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And you see a lot of echoes of eugenics today in the arguments made by these deranged people.
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I mean, I've got to say, I don't know how Stephen Yakshley Lenin gets to argue that white people in Britain are so superior.
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Yeah, I'm afraid I look at him and I think this just can't be true.
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But back in the 20s, there was a huge push towards eugenics.
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And you know, it ended up happening in Germany, of course.
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And you know, what the Nazis did was not just about Jewish people, some of my people, but it was also about mentally disabled people, it was about anyone that society considered subnormal, uh, that we should get rid of these people.
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And the the issue set forth, these this is a direct quote from Buck versus Bell, the superintendent of the state colony for epileptics and feeble-minded was ordered to perform the operation of salping ectomy.
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I'd never heard of that word, but we now know it means, upon Carrie Buck for the purpose of making her sterile.
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So what we were doing back there in the eugenics building right there was sterilizing people so they couldn't have children under that age-old notion that we now use for welfare queens and other terms like that that are pretty racist, um, that we shouldn't let them breed because this just creates uh an underclass of fundamentally stupid people.
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You've got to feel a bit sorry for the epileptics, too, that they're thrown in that.
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So Buck versus Bell was a terrible decision and didn't last very long, I'm glad to say.
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The fourth on the list is Koromatsu versus United States, 1944.
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I'm surprised this makes the list.
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I'm pleased it does, because the next two, I had some personal dealings with overturning them.
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But Koromatsu versus United States happened in World War II.
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You remember that Pearl Harbor had been December the 7th, 1941.
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Huge Americ anti-Japanese sense in America, somewhat understandable.
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Um, an awful lot of the Japanese people who came to America were coming to get away from Japan.
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They weren't coming to support the Japanese war effort.
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And they'd been in America for a long time.
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Koromatsu put them all in internment camps.
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And in 1944, the US Supreme Court said that's fine, and basically suspended everyone's civil rights during the war, which, you know, is a real problem.
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Now, Koromatsu took a long, long time for everyone to criticize it.
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Uh really, there wasn't an apology issued for almost 50 years.
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Um, but then we had Rasul versus Bush, which was exactly the same thing, uh, except even worse at some level.
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We took a whole bunch of people who we called uh enemy combatants or aiding the enemy.
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Everyone in Guantanamo was actually alleged to be aiding the enemy, which we said was a capital offense.
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Turned out we were wrong in 98% of cases at least.
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Um, but we sued on February the 19th, 2002.
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Uh Guantanamo was opened on January the 11th, 2002.
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We sued a little over a month later to try to overturn the sort of attitude that had existed in Koromatsu.
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And it took two and a half years, but we got to the Supreme Court.
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It was a conservative Supreme Court even then.
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We were outvoted even then by the conservatives.
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But we won.
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And we won because it was just so reprehensible.
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And we also won because coincidentally, just before the decision, um the Abu Ghraib photographs came out.
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And this is a crucial part of a lot of what happens in law, which is suddenly the eyes of the conservatives get opened to how crazy some of these people are and how they're trampling on the US Constitution in a way that they just shouldn't do it.
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And so we won in Russell versus Bush, and we were able to get in there.
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Uh, I it became my Caribbean resource of choice.
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I've been there 42 times.
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I've represented 87 people there, and we got them all out.
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And that was great.
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So Koromatsu was a bad decision.
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I don't know if it really merits its rank as the fourth worst of all time.
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Now, the fifth one, I have a dealing with this as well.
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This this is a terrible decision, but again, whether it's actually the fifth worst of all time is interesting.
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Bowers versus Hardwick was the case where the issue of whether we could criminalize sodomy came up.
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Now, obviously, this was uh a concept of homophobia.
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And, you know, for a long time there'd been crimes of uh homophobia where you know gay people were criminalized, and that was true in Britain too.
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But by the 1970s, the Equal Protection Clause had come into play, and so the Georgia legislature was confronted with that very difficult uh American dilemma of um of whether to be hypocrites or not.
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And they had a choice.
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They either had to strike down the sex laws for everyone, uh, which meant that they were going to legalize gay sex, or they had to criminalize uh the same actions for everyone, because under the Equal Protection Clause they had uh they couldn't differentiate.
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So, and it was a wonderful quote, you know, by Mark Twain, who said 50% of Americans condemn what they themselves practice, the other 50% practice what they themselves condemn.
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Um and this tends to be the way.
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And so, sure enough, the Georgia legislature made all sexual acts except for the missionary position between consenting married adults, um, made that criminal offense, which meant there's an awful lot of people in trouble.
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And uh Michael Ballis was the Attorney General of uh of Georgia, who I knew quite well, and I'm I'm uh amused to point out that he later went down on a sex charge.
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Um but Hardwick uh was a gay guy who uh sued on that.
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And it ended up being a close 5-4 decision written by Justice Powell saying, since time immemorial, this has been the case, you know, we can't force the states to say that gay sex is legal, so therefore I'm afraid it's illegal for everyone.
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We just hope they wouldn't be that stupid.
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Um, but one of the amusing things about dear old Justice Powell, he wasn't a bad guy, he voted against us in another case that I think really qualifies for the top five, McCleskey, someone again who I helped represent, but the really difficult work was done by others, where they did a study on racism in the death penalty, and we proved that if you're black and kill a white person, you are exponentially more likely to get the death penalty than vice versa.
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And he wrote that opinion 542 and later said that was his worst decision.
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And I think it's a close call between that and Bowers versus Hardwick.
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His law clerk uh came to talk to our death penalty conference one time and told the amusing anecdote that uh the justice, when he was thinking about Bowers versus Hardwick, was agonizing and saying, I don't know whether I've ever even met a gay person.
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And his law clerk was gay, but was firmly closeted and hadn't told him.
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Um and that was all very amusing, but nevertheless that case came out against it.
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I then had a whole series of oral sex cases, which were immensely amusing, uh, where I represented people who were doing hard time in Georgia prisons for consensual oral sex.
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First guy was a guy called Jim Mosley, who was um who was in a divorce.
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His wife was having an affair with a lawyer, she wanted the kids in the divorce, the lawyer said, you know, have him arrested.
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She lures him over for one last fabulous night of sex, then cries rape.
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Her sister comes forward and says, This is all nonsense, my sister's lying.
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So they end up getting rid of the rape charge.
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But in the meantime, poor old Jim had confessed to our consensual oral sex.
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Uh, and he ended up getting convicted and getting sent to prison for five years.
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And that was the law in 26 states at the time that you could get locked up for this consensual stuff.
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And I represented old Jim, and we had a lot of fun doing it.
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We called it uh tonga lingus prohibitum, that the state thought was the real Latin phrase, and they started calling it that.
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We accused them of cunning linguistics.
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We had a section under the First Amendment about how this was a protected form of oral expression.
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We had a section under the Eighth Amendment, which is proportionality, that you if you take bestiality, necrophilia, and public indecency and run them all consecutive, uh, you get more time in prison for doing this heinous act with your spouse in the privacy of your bedroom than you do if you do it with a dead horse out in the middle of the courthouse square.
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And if you wait until your spouse dies, only necrophilia, half as much time in prison.
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So that was totally ludicrous.
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We made everyone laugh at their idiocy, and thankfully in Lawrence versus Texas, the Supreme Court overruled our bowers and held that that was all silly.
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So these are the top five in history, supposedly.
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And so when you're thinking about how the Supreme Court's doing today, you have to set it in that perspective.
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And the question we ask ourselves is: can these nine people really compete with those sorts of stupid decisions?
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And I think we'll see that they can't, they're just not up to it.
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Um, it's not that the conservative majority haven't done some pretty stupid things.
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So last term uh they did say, in a decision, it was just idiotic, that in order to preserve his role, the president of the United States is immune from any criminal offense while he's president, that would include murder or genocide.
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And, you know, that's a very, very stupid decision.
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It's it run it builds on a series of decisions that have been made by all courts for a long time that gave immunity to judges.
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And that's where a lot of it came from.
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And judges are sitting there thinking they should have immunity because their decisions piss people off.
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I gotta say, some of the things I do piss people off, but I don't seem to have immunity.
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And neither do the people who murder people, who what they do pisses everyone off, and they don't get immunity.
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But judges do, prosecutors do, defense lawyers don't.
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Police get uh a lot of immunity, not total immunity, um, because apparently they need it in going around beating people up on the street in America.
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So this was a stupid decision.
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But the truth is it actually doesn't make any difference, right?
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It brings the presidency into disrepute when Donald Trump insists that he doesn't have to pay taxes and can't be taxed and whatever.
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Um, but it doesn't actually make a big difference.
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So this is a sort of this is probably their worst decision so far, while Trump's been around this time.
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But, you know, it really doesn't rank.
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And when you look at the this term, this term started last October in 2025.
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Um, and there have been 30, there have been 35 cases when I wrote this a week ago.
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There have now been 38, and actually it was getting better.
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The last three decisions of two of them have been good.
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Um, but of the just looking at the 35 cases when I had to write this under the edict of Gresham, um there have been 22 unanimous decisions.
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That means that all nine of these people, the conservatives and the liberals, all agreed on something.
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I don't agree with everything they agreed on.
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I think some of the things they do in the Supreme Court is pretty stupid.
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But at the same time, you can't say that this fracturing court is uh is making a massive difference.
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I think they are genuinely doing what they think their job is.
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Now, a more interesting aspect of it is these two guys, the guy on your left is Chief Justice Roberts, who's a conservative, but I think he's struggling to be a Chief Justice.
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The guy on your right is Clarence Thomas, who's actually been a justice for the longest, and even if I'm in uh danger of contempt of court, I think he's an idiot, and I think he's the most dangerous and unwise person.
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He's a guy who wants to overrule all of these cases about gay marriage, about whether they can illegalize being gay, whether Bowes versus Hardwick was right.
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He thinks he'd overrule that.
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He'd overrule, you know, whether you can have condoms and contraceptives.
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The only one of the liberal opinions that he wouldn't overrule is the one that the anti-miscegenation law, which made it illegal for a black person to marry a white person and vice versa.
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And the Supreme Court struck that down.
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He wouldn't overrule that, and it's just worth pointing out he's married to a white woman.
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But I have no time for Clarence Thomas.
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I think he's very dangerous and not terribly smart.
00:22:44.240 --> 00:22:48.319
I don't agree with Roberts a lot, but I think he's trying to do the right thing.
00:22:48.400 --> 00:23:00.000
And the way you see it is this: when a case is written by a particular justice in the Supreme Court, it's allotted by the most senior justice in the winning party.
00:23:00.319 --> 00:23:05.599
So Roberts has been on the winning side in all but a couple of cases so far this term.
00:23:05.920 --> 00:23:10.000
He has allotted 12 of the 25 cases to liberals.
00:23:10.079 --> 00:23:12.079
So the liberals are getting four each.
00:23:12.720 --> 00:23:16.319
Then 13 have been allotted to the six conservatives.
00:23:16.400 --> 00:23:17.599
They're getting way fewer.
00:23:17.759 --> 00:23:22.880
Now another telling point is that Thomas has had five of those 13 decisions.
00:23:23.039 --> 00:23:36.480
And that's because when Roberts has been against Thomas, Thomas has appointed himself as the one to write the opinion, because he just wants to write something as extreme as he can possibly get away with.
00:23:38.400 --> 00:23:43.759
That illustrates two things to me, that you know, I'm afraid Clarence Thomas is what we all know him to be.
00:23:44.480 --> 00:23:52.400
Chief Justice Roberts is struggling to be a Chief Justice where the Supreme Court maintains respect.
00:23:52.559 --> 00:23:56.160
And I think that is always a job of the Chief Justice.
00:23:56.319 --> 00:24:13.920
And it's best illustrated by the massive loss that the Supreme Court gave to Donald Trump, which was learning resources versus Trump, which was a weird name, but it was the case where the Supreme Court turned back Trump's tariffs.
00:24:14.079 --> 00:24:15.680
It was a six to three decision.
00:24:15.759 --> 00:24:18.160
It was written by Chief Justice Roberts.
00:24:18.400 --> 00:24:28.079
Both of the conservatives who were appointed by Trump were in the majority, who they joined the three liberals, and they struck down the tariff six to three.
00:24:28.240 --> 00:24:30.960
It was a huge, huge loss for Donald Trump.
00:24:31.039 --> 00:24:36.640
And what that was, there was nothing that really compelled them to do it except for the Constitution, right?
00:24:37.039 --> 00:24:50.880
And the Constitution says that certain powers are in the executive, that's the president, certain powers are in Congress, and the majority said, well, these powers are in Congress, and Trump just can't do it.
00:24:50.960 --> 00:24:56.720
And there has to be a vote in Congress, which I think is an incredibly important part of democracy.
00:24:57.119 --> 00:24:58.559
So that was a great decision.
00:24:58.720 --> 00:25:11.279
And you know, one of the illustrating factors of this is unlike in Britain, you'll remember, I'm sure, the case where we took to the European Court of Human Rights where the prisoners should have the right to vote.
00:25:11.519 --> 00:25:19.519
And I don't think when Moses came down from Mount Sinai, there was anything on those tablets that said that prisoners should not get to vote.
00:25:19.599 --> 00:25:20.160
They need a vote.
00:25:20.240 --> 00:25:22.799
They're the people who trampled on more than anyone else.
00:25:23.200 --> 00:25:35.440
But when that decision came down, David Cameron, then Prime Minister of Britain, said it made him feel physically sick and that on his watch they were never going to enforce that judgment.
00:25:35.680 --> 00:25:50.960
Now that's contempt of the rule of law, and it is an attitude we see in Britain because we don't have a real constitution and we don't have a real notion that Parliament's not supreme when it comes to individual liberties, but the courts are.
00:25:51.839 --> 00:26:06.160
But even though Donald Trump railed, he was rude when he gave a speech to the joint houses of Congress, he was rude about his own justices, who did that, but he still had to follow it.
00:26:06.400 --> 00:26:13.039
And they've paid back$166 billion in these tariffs.
00:26:13.119 --> 00:26:26.160
And that's cost every man, woman, and child$488 in America that has had to be paid out of the US exchequer back to people who were wrongly tariffed.
00:26:26.559 --> 00:26:31.119
That's pretty amazing, and it's pretty much the enforcement of the US Constitution.
00:26:31.200 --> 00:26:36.880
And it is by far the most significant, in my view, decision of this term so far.
00:26:37.119 --> 00:26:40.079
There are a few more to come, but nothing that quite matches it.
00:26:40.160 --> 00:26:42.400
And it came out the right way, which is fabulous.
00:26:42.640 --> 00:26:56.480
Now, there are a bunch of other cases that have come down, and again, they're surprisingly favorable to what I would view as the US Constitution, as opposed to simply to me, to my clients.
00:26:56.720 --> 00:27:17.680
Doyle Hamm is on death row, uh, not there for doing a nice thing, but he is very much borderline mentally disabled under Atkins versus Virginia, which obviously Clarence Thomas and Samuel Alito want to overrule, but that's the case that says you can't execute mentally disabled people.
00:27:18.799 --> 00:27:21.680
The Supreme Court uh upheld that.
00:27:21.920 --> 00:27:24.240
Quite a narrow ruling, five to four.
00:27:24.400 --> 00:27:28.480
But again, the Supreme Court uh stopped that guy from being executed.
00:27:28.559 --> 00:27:37.519
And generally, in the criminal cases where these guys are not really our friends philosophically, the majority of them have gone our way.
00:27:37.680 --> 00:27:43.839
Now, that's not to say that the Supreme Court is not um trying to let people get executed.
00:27:44.000 --> 00:27:44.559
They are.
00:27:44.720 --> 00:27:49.440
And this has been coming for a long, long time, and it's been happening for a long time.
00:27:49.599 --> 00:27:51.759
And a lot of that's rooted in the reality.
00:27:51.839 --> 00:28:00.799
I mean, I cannot tell you how many times I've petitioned the US Supreme Court at, you know, an hour before midnight on an execution night.
00:28:01.039 --> 00:28:11.279
And there was a time at the height of these executions in the 90s and the late 80s and early 90s, where we were doing this to the Supreme Court two or three times a week.
00:28:11.440 --> 00:28:20.960
And the members of the Supreme Court were in their 80s, many of them, and they were having to make these life and death decisions late at night, two or three times a week.
00:28:21.039 --> 00:28:27.759
And this is a big deal to these people, and it's not surprising, it's a big deal to me, let's face it, we were litigating them.
00:28:27.839 --> 00:28:36.880
Um, but at the same time, I always thought there was a huge osmotic pressure towards um not being as well behaved as they used to be.
00:28:36.960 --> 00:28:46.799
And the Supreme Court's been going that way for many, many years, and now they're not our friends when we've got a death row client close to the end, and they haven't been our friends for a long time.
00:28:46.960 --> 00:28:53.200
Uh, so we haven't had one stay, last-minute stay from the Supreme Court this year.
00:28:53.440 --> 00:28:57.039
And, you know, we've only had one or two dissents from the Liberals.
00:28:57.119 --> 00:29:01.519
Uh, so this is true of all the Supreme Court, but we're still winning cases.
00:29:01.599 --> 00:29:12.960
And you go to the criminal cases, you know, we've won a lot of them, and the majority of them have been 9-0, which means even Clarence Thomas and Alito have voted for us.
00:29:13.119 --> 00:29:20.240
You know, the first one was Ellingberg, which was a thing where the victims, the defendant had to pay uh money to the victims.
00:29:20.400 --> 00:29:22.160
You know that's a populist thing.
00:29:22.400 --> 00:29:28.799
And the Supreme Court ruled 9-0 that that was an ex post facto punishment, and you couldn't do it.
00:29:28.960 --> 00:29:34.960
Uh, then there was a double jeopardy case as to whether you could get two charges for the same offense.
00:29:35.119 --> 00:29:39.039
Um, you know, actually, Burlington versus Missouri is the old case on that.
00:29:39.279 --> 00:29:44.799
Lots of courts had gone against us on that, but the Supreme Court ruled 9-0 in our favor.
00:29:45.279 --> 00:29:51.279
Um, Boe versus United States is a highly technical case on habeas corpus.
00:29:51.599 --> 00:29:52.880
I thought we were going to lose that.
00:29:52.960 --> 00:29:58.079
We won at 5-4 with uh Roberts and Kavanaugh joining the Liberals.
00:29:58.240 --> 00:30:10.880
And perhaps the most surprising in that group was Pitts versus Mississippi, a 9-0 win, saying Mississippi couldn't put a child behind a screen and couldn't make a child testify by video.
00:30:11.039 --> 00:30:16.240
Things that we do normally in Britain, because there's no confrontation clause, are 9-0.
00:30:16.559 --> 00:30:18.400
The Supreme Court said you couldn't do that.
00:30:18.480 --> 00:30:34.960
And actually, since I wrote this, there have been two other great decisions, surprising decisions, one on Batson versus Kentucky, on racism and jury selection, where they slap down a prosecutor I know in Mississippi yet again, the same prosecutors in the Flowers case.
00:30:35.200 --> 00:30:45.279
And then another one is on Giglio versus United States, which is on prosecutors basically knowingly presenting perjured testimony.
00:30:45.440 --> 00:30:47.839
And they they they slap that down too.
00:30:48.000 --> 00:30:50.000
So the Supreme Court's really doing their job.
00:30:50.079 --> 00:30:51.200
There have been some losses.
00:30:51.359 --> 00:30:55.359
You know, there have been two or three losses on Fourth Amendment grounds, which we always lose.
00:30:55.519 --> 00:30:58.559
Um, although I wish we had a Fourth Amendment in England.
00:30:58.720 --> 00:31:00.319
Uh, that's search and seizure.
00:31:00.400 --> 00:31:05.920
I wish people, cops weren't allowed to just stop black people on the streets like they do in this country.
00:31:06.079 --> 00:31:07.920
You know, you're not allowed to do that in America.
00:31:08.000 --> 00:31:16.000
We all know the cops do bad things in America, but we get to sue them and we get to put a stop to it in many, many cases.
00:31:16.160 --> 00:31:19.839
Um, but we've lost a few of those things, but not many.
00:31:20.079 --> 00:31:23.759
Now then you have the First Amendment, and these are very, very interesting.
00:31:24.079 --> 00:31:29.599
The conservatives in the Supreme Court like to say they're First Amendment um advocates.
00:31:29.759 --> 00:31:31.759
And I think they genuinely are.
00:31:31.920 --> 00:31:40.079
Uh, and these cases actually reveal to me that some of the conservatives are more First Amendment oriented than the Liberals.
00:31:40.240 --> 00:31:42.319
And I fall with the Conservatives.
00:31:42.480 --> 00:31:45.680
I think the only answer to bad ideas are better ideas.
00:31:45.839 --> 00:31:49.039
You can't censor people just because you don't like them.
00:31:49.119 --> 00:31:54.640
I'm not going to censor Stephen Yaxley Lennon for saying racist, unpleasant things.
00:31:54.880 --> 00:31:56.960
I just think we need to laugh at him.
00:31:57.200 --> 00:32:08.400
Like the, you know, the led by donkeys people with that fabulous uh screen where they had the you know all the benefits of immigration with a Union Jack on it.
00:32:08.720 --> 00:32:12.240
Um so these are the four cases that have come out this term.
00:32:12.480 --> 00:32:21.839
The first choice women's resource centers is a 9-0 win for a non-profit organization that basically is counseling women not to have abortions.
00:32:22.000 --> 00:32:28.720
Now, you know, I think women have a right to abortions, but I suppose people have a right to counsel them not to if they want to.
00:32:28.880 --> 00:32:39.440
I hope we can disagree with that politely and support the women who want abortions and not, and you can't force people, thankfully, to go to First Choice Women's Resource Center.
00:32:39.680 --> 00:32:54.720
Then there's Mirabelli versus Bonta, which is there are there was a law in California that said you couldn't a child could say its own gender without reference to the parents.
00:32:54.960 --> 00:33:07.759
Now, I think again, we're on a very interesting journey at the moment in terms of gender recognition, in terms of transgender things, in terms of agender issues, and I think it's fascinating.
00:33:07.920 --> 00:33:21.440
Um, I have pretty strong views, and you know, I come from an era where we were incredibly stupid on this, and I have been corrected by people, and they were right, and and I I'm glad they corrected me.
00:33:21.680 --> 00:33:24.960
And I believe that people can be whatever gender they like.
00:33:25.119 --> 00:33:26.240
I disagree with my son.
00:33:26.319 --> 00:33:28.720
If someone wants to say they're a cat, I don't care.
00:33:28.880 --> 00:33:30.079
That's up to them.
00:33:30.240 --> 00:33:44.400
Um, this law um was uh was struck down in California so that now you can't as a child say what gender you are dispositively without your parents being involved.
00:33:44.559 --> 00:33:50.880
You know, that's probably okay, um, uh but the liberals voted against that.
00:33:51.119 --> 00:33:53.039
Then the this Charles vs.
00:33:53.200 --> 00:34:04.240
Salazar, 8-1 on conversion therapy, where the Supreme Court said that you can't ban people as psychologists from trying to convert gay people.
00:34:04.400 --> 00:34:12.639
Now, I hope we all agree that trying to convert gay people to not being gay is just fundamentally stupid and wrong.
00:34:12.800 --> 00:34:22.559
Um, but again, I don't see that we can say you can't do that, because if we say you can't do that, then they're gonna forbid me from all sorts of things that I want to say.
00:34:22.639 --> 00:34:30.800
Uh and actually the only person who voted against that uh was was one of the liberals who said this is a medical issue.
00:34:30.880 --> 00:34:37.039
And you know, maybe you're right, maybe you're wrong, but frankly, I think they have a First Amendment right to say whatever they want to say.
00:34:37.280 --> 00:34:39.440
And then the last one was interesting.
00:34:39.519 --> 00:34:50.960
It was a religious Christian preacher who was preaching on the sidewalk, who was banned from doing that in Mississippi, our city of Brandon, I know Brandon well, it's a pretty repressive place.
00:34:51.039 --> 00:34:54.400
I'm amazed they banned a Christian minister.
00:34:54.800 --> 00:34:56.559
But that's not their style at all.
00:34:56.719 --> 00:34:59.599
But the Supreme Court struck that down, and of course that's right.
00:34:59.679 --> 00:35:04.480
Again, I'm not Christian, I don't believe that stuff, but the guy has the right to do it.
00:35:04.719 --> 00:35:10.239
So those have been interesting, and they've been, in my view, correctly decided.
00:35:10.400 --> 00:35:21.360
And I think the Supreme Court is enforcing the First Amendment in a very strong way, and the vast majority of them are either unanimous or pretty much unanimous.
00:35:21.519 --> 00:35:22.159
That's cool.
00:35:22.400 --> 00:35:23.519
That's a good thing.
00:35:23.760 --> 00:35:37.760
Now, then when it comes to what everyone was saying, which is this court is gonna be split down the middle, six, well not quite the middle, six conservatives, three liberals, uh, and it's just gonna go to hell in a handbasket.
00:35:37.920 --> 00:35:38.960
It's just not true.
00:35:39.119 --> 00:35:49.039
Of the 35, the first 35 cases, and now the first 38 cases, there have only been two where it's been a 6-3 decision against the liberals.
00:35:49.280 --> 00:35:50.000
Only two.
00:35:50.239 --> 00:35:55.679
And the one that everyone says, woe is me on, is Louisiana versus Calais.
00:35:55.920 --> 00:36:02.400
Now, this is a bad decision in some ways, but it's a decision I think the Conservatives are gonna live to regret.
00:36:02.800 --> 00:36:09.199
Um, because what the Supreme Court said, and you know, on the face of it, you can see where they're coming from.
00:36:09.360 --> 00:36:23.440
I don't agree with them, but they said that the Constitution forbids all racial discrimination, um, meaning that we can't have affirmative action because that's discrimination against white people.
00:36:23.679 --> 00:36:35.119
Now, I think they're delusional because the fundamental, it was written by Alito, who's the guy just above Thomas in the picture, uh, and he is someone I disagree with on almost everything again.
00:36:35.280 --> 00:36:56.320
Um, and I think he's fundamentally wrong on this, because it's this fantasy that um is imbued in some of these white conservatives, that somehow we white people are such victims of dreadful discrimination, I've got to say, you know, give it another 20,000 years, and that may be true, but it's just not true today.
00:36:56.639 --> 00:37:00.639
I am what is called an OWPM.
00:37:01.199 --> 00:37:07.440
That is a phrase that you may not have heard of because I made it up, but it means old privileged white male.
00:37:07.599 --> 00:37:17.280
And I taught my son when he and I were talking about my mother's gambling that you don't need to get into gambling, Wilf, because you've already won the greatest lottery in life.
00:37:17.360 --> 00:37:27.280
And thank goodness my son, when he was eight, said, Oh, you mean I was born a privileged white male in a privileged country where we have all this riches that we did nothing to merit?
00:37:27.360 --> 00:37:29.840
And I say, Yeah, that's exactly what I mean, Wolf.
00:37:30.000 --> 00:37:39.119
Um, and you know, I teach my students that it's not just the slave owners who were made wealthy by slavery, it was a whole country.
00:37:39.360 --> 00:37:40.960
And we need to recognize that.
00:37:41.039 --> 00:38:02.000
And the idea that somehow you can snap your fingers and say, oh, well, everything is hunky-dory in America, we don't discriminate against black people anymore, or whomever else, it may just be the people coming across the border from Mexico at the moment, too, or the Islamic people who we all put in Guantanamo.
00:38:02.159 --> 00:38:05.360
The idea that all of that is fine is just stupid.
00:38:05.599 --> 00:38:24.239
Um, but the Supreme Court has now said that not only is that the case, that you can't have majority black districts to ensure that there is black representation in Congress, but they say, and Alito goes one step further and says that the essence of democracy is you can have gerrymandering.
00:38:24.719 --> 00:38:31.920
So if you as a political party want to rig the system to favor yourselves, you can do that.
00:38:32.079 --> 00:38:42.880
And the way it operates in America is that you rig the system because the state legislatures get to divide up the districts in your state.
00:38:43.039 --> 00:38:52.079
And so they can set it up so that it's rigged to have a majority of Republican or Democratic voting districts.
00:38:52.239 --> 00:39:02.079
And Texas started doing that, so obviously uh Governor Newsom in California said, well, if you're gonna do that, we're gonna do that too, and we're gonna do it for the Democrats.
00:39:02.159 --> 00:39:04.800
Uh and now the Supreme Court said you can do that.
00:39:05.039 --> 00:39:12.559
Now, the Republicans are all excited by that because right now they've got 28 states where they have a majority.
00:39:12.800 --> 00:39:24.559
But what they need to remember is that if you go over the last 50 years, the Republicans have only had a majority in any state in 10 years of those 50 years.
00:39:24.719 --> 00:39:27.440
Most of the time, the Democrats have had the majority.
00:39:27.679 --> 00:39:41.920
When so it means that this decision, the moment that the Democrats get a majority in your state, this is going to just turn around and backfire on the Republicans, and it's just going to get re-gerrymanded.
00:39:42.000 --> 00:39:44.880
And the Democrats won't do it the way the Republicans will do it.
00:39:44.960 --> 00:40:01.760
The Democrats will pretend to do it on a sensitive basis, and they won't be allowed to mention race because the Supreme Court would strike that down, but they'll be able to take all of those things into account, and we will see very much our Democratic majority gerrymanded districts.
00:40:01.920 --> 00:40:05.519
And at that point, I think the Republicans are going to be in trouble.
00:40:05.599 --> 00:40:09.519
And they're going to be in trouble now because of Donald Trump.
00:40:09.679 --> 00:40:18.800
Because what you've seen politically in the last few months in the last couple of years is Donald Trump just going after the people he doesn't like.
00:40:18.960 --> 00:40:27.519
So, for example, a Republican, long-term senator in Louisiana, just got ousted because Donald Trump didn't like him.
00:40:27.760 --> 00:40:38.480
And so they've lost a moderate, respected Republican, and they're going to have a nutter as the person running for Senate.
00:40:38.719 --> 00:40:46.239
What this is going to do is massively improve the odds of the Democrats, particularly if the Democrats get a little bit of gumption.
00:40:47.280 --> 00:40:53.440
Because what happens always in America is in the primaries, people vote on their parties.
00:40:53.519 --> 00:41:02.639
And the reason Donald Trump won was because the Republicans all voted for Donald Trump rather than the wishy-washy other people running.
00:41:02.800 --> 00:41:06.800
And that's the right wing of the Republican Party voted for him.
00:41:07.280 --> 00:41:12.960
And the same tends to happen with the Democrats, but they're not as left-wing as the Republicans are right wing.
00:41:13.199 --> 00:41:26.960
So now what we're getting is a bunch of candidates who are from the Trump fringe of the Democratic Party, who, when they get to the general election, they have to face the whole country instead of just the Republican nomination.
00:41:27.199 --> 00:41:38.400
The Republican nomination is sometimes as little as 2% of the electorate, whereupon now they have to face the whole electorate, and that's when they lose.
00:41:38.559 --> 00:41:51.920
And so the more that Donald Trump trumpifies the Republican Party, the more likely it is that they're going to lose these states, the more likely it is that Louisiana versus Calais is actually going to benefit the Democrats.
00:41:52.079 --> 00:41:58.639
Now, I still think it's a bad decision, but it's a bad decision that I think will backfire on the people who wrote it.
00:41:58.880 --> 00:42:06.880
So overall on this, the uh I think the rumors of the death of the US Constitution are vastly exaggerated.
00:42:06.960 --> 00:42:13.440
I think the Supreme Court of the United States is generally doing its job as well as it was ten years ago.
00:42:13.679 --> 00:42:17.599
I I've never really agreed with it, but I've said this before, and I'll say it again.
00:42:17.679 --> 00:42:27.280
I've had five cases go to the US Supreme Court of mine, uh, always either someone on death row or the Guantanamo prisoners, and we've won all five.
00:42:27.360 --> 00:42:33.440
And it's not because I'm so great, it's because the Supreme Court does its job more often than not.
00:42:33.679 --> 00:42:39.199
And they they voted in all of those cases in favor of someone who was genuinely hated.
00:42:39.360 --> 00:42:41.519
And you don't see that in Britain.
00:42:41.760 --> 00:42:42.400
You just don't.
00:42:42.559 --> 00:42:45.440
You don't get it because there's not a constitution to enforce.
00:42:45.519 --> 00:42:52.559
And so I think in the US, while we're going through a bad period, I think it's going to swing back as it always does.
00:42:52.719 --> 00:42:57.199
Um and I think it'll swing back much quicker due to the madmen in the White House.
00:42:57.440 --> 00:43:14.559
But um, but I'm not I'm worried about England because if uh this chap becomes prime minister and does some of the things that he talks about, and he's being pushed to the right further himself by uh by Rupert Lowe, who I was in school with.
00:43:14.719 --> 00:43:19.760
I was senior to him, and uh I wasn't terribly impressed with him at the time.
00:43:19.920 --> 00:43:29.920
Um but Britain doesn't have much protection for that, and we do have the potential for some of the very same uh dreadful concepts.
00:43:30.079 --> 00:43:39.760
Uh so I think what all of this does is reinforce the need in Britain for vigorous protection of the rights of hated groups of people.
00:43:40.079 --> 00:43:56.400
And we don't have that constitution that we need, so we're gonna have to use other methods, and those other methods mean that you need to educate yourself about who's being trampled on, you need to respond to it by standing up with them, and you need to have a sense of humor.
00:43:56.719 --> 00:44:09.760
Because, you know, those right-wing nutters, they don't mind it if you and I hate them, because frankly, that just reinforces their sense of self, but um, they don't like to be laughed at, so we should do as much of that as we possibly can.
00:44:10.000 --> 00:44:16.159
Anyway, that's shorter than normal because I didn't think you could stand listening to me talking mainly about the law.
00:44:16.239 --> 00:44:18.159
Uh, but thank you very much.
00:00:04.000 --> 00:00:04.879
Good evening.
00:00:05.440 --> 00:00:15.039
This is Clive Stafford Smith yet again, and I have to issue a government health warning on this, which is for the first time ever in two years.
00:00:15.119 --> 00:00:17.199
I'm going to talk mainly about the law today.
00:00:17.359 --> 00:00:21.920
As a lawyer, I don't like to do that because really what we're talking about is power.
00:00:22.000 --> 00:00:23.440
It's not about law.
00:00:24.079 --> 00:00:38.719
But I just thought it would be nice to look at the structure of the last few months and under Trump and see, because at the beginning of all this, I was asking the question, you know, is the Constitution going to survive under Trump?
00:00:38.880 --> 00:00:43.200
I always thought it would myself, because it's a great document.
00:00:43.359 --> 00:00:51.920
And the whole point about my series of lectures is to try to get the British to see they really need something similar.
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And we'll see how we're doing.
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I mean, obviously it's been a big challenge for any structure in the United States having Donald J.
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Trump as president.
00:01:01.759 --> 00:01:06.640
And the question is on the table after 16 months who's winning, Donald Trump or the Constitution?
00:01:06.719 --> 00:01:12.400
He has certainly made an effort to get around it and ignore it in many ways.
00:01:13.439 --> 00:01:26.480
But the question today is whether rumors of the death of the Constitution are exaggerated, and whether, in fact, any obituary that people's written is a bit premature.
00:01:27.120 --> 00:01:28.480
So let's just look at it.
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I mean, our problem was originally always going to be this: that there are six conservatives, including two who were appointed by Trump himself, as opposed to three liberals.
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It is not surprising to those of us who understand gender generally that the three liberals are all women, and they're there on the right-hand side of your screen, and the conservatives are on the left side.
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And the general notion as we entered Trump world was that the six conservatives were going to basically dismantle the Constitution.
00:02:08.240 --> 00:02:16.240
So what we're going to do today is go through and see if that's happened in the last 16 months or not, and then try and figure out where it goes from here.
00:02:16.719 --> 00:02:23.039
Before we get to the current court, I think it's important to look at history.
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And I thought I would just Google the five worst Supreme Court decisions of all time.
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And there's surprising unanimity in opinions as to what they are.
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I'm not sure I agree with them.
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I think there are some serious contenders out there for the worst Supreme Court decision of all time.
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But these are the five that came up.
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The first two both involved the Supreme Court acting as historically it generally has done, which is to pull against the tide of politics.
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So as the U.S.
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came towards civil war in 1860-61, there was all sorts of arguments about slavery and about, you know, the Missouri Compromise and about how to keep a majority in Congress in favor of the slave owners and so forth.
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And Dred Scott versus Sandford was a case in 1857, which was totally notorious, deserves its notoriety, where the Supreme Court held that basically African Americans were not citizens and that they didn't have to be counted in the US.
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And that was when there was vast wathes of the US that had slavery.
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And you know, you have to remember that notwithstanding all the pious things that people said, at the time that the US achieved independence, all 13 colonies had slavery.
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And even though there were people who were vehemently opposed to it even then, they were in a minority.
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And some of the things they did back then, for example, you look at the Thirteenth Amendment, the Thirteenth Amendment that supposedly abolished slavery actually has an exception for people who are duly convicted of crimes.
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In other words, you can have slavery, involuntary servitude, in prison.
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And that still exists to this day.
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And that came about as a result of a document written by a notable anti-slave person who was trying to get a compromise between pro-slave people and anti-slave people.
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And thought that the best way to do that was to let everyone have slaves in prison.
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Pretty bizarre, but Dred Scott was horrendous too.
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And that was 1857.
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Dred Scott was such a contentious case back in its day that it is thought to have been a significant contributor to the Civil War that broke out just very few years later.
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So that was one that I think has earned its place in the annals of dreadful decisions.
00:05:02.879 --> 00:05:07.040
Second one on race early on is Plessy versus Ferguson.
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And Plessy was the case in 1896 where there was a big backlash after the Civil War.
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We all know about that.
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The Ku Klux Klan was out there.
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It was a brief time in the South when the Republicans, who were the ones who were opposed to slavery as opposed to the Democrats at the time, the Republicans were fighting to give African American citizens rights, and the former slave owners were fighting back.
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And you see this all across the U.S.
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I mean, actually, one of the interesting things about prisoners in prison is where I used to do a lot of work in Angola, which is the Louisiana State Penitentiary.
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It was called Angola because it was a prison, it was a plantation of slaves who were basically brought from the country or the part of Africa called Angola.
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As soon as the Civil War was over, it was turned into a prison, effectively, and it was a privatized prison.
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The woman who owned it, because her husband died, sold it to a former Confederate officer who turned it into a prison and then started leasing out the prisoners to do work.
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And all those prisoners, of course, were vast majority black prisoners.
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And you know, one of the things you see, if you've ever seen the film 14 Days in May, about one of my clients is in Parchment Penitentiary, which is the Mississippi equivalent, it was still, when that film was shot in 1987, it was all black slaves effectively working on Parchment Farm with white people on horses, guards with shotguns making them do their work.
00:06:48.800 --> 00:06:53.279
So a lot of it, you know, plus ça change, a lot of it hadn't changed a whole lot.
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Plessy versus Ferguson was part of the retrenchment against civil rights for the freed slaves.
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And it was the case that held that separate but equal was okay.
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Now, obviously, separate but equal was a way to keep our white kids and black kids apart, and the white kids got the good schools and the black kids didn't, and so forth.
00:07:16.480 --> 00:07:19.199
And even toilets were separate but equal.
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When I first went to the Louisiana State Penitentiary, and this would have been 1983 or something, there were two toilets outside the front gate, two sets of toilets, and they said white and coloured, white and colored on them.
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And those were relics of separate but equal.
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And this was a decision of Plessy versus Ferguson in 1896, and that didn't really get overruled until 1954, when the Supreme Court, led by Chief Justice Earl Warren, who was appointed by um by President Eisenhower, a conservative Republican.
00:08:00.800 --> 00:08:10.560
And the Warren Court voted 9-0 in Brown versus Board of Education to do away with Plessy versus Ferguson and to say separate but equals not equal.
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And of course, the president Eisenhower said some very rude things about Earl Warren, who he thought was a dumbass, I believe was one of the descriptions he used.
00:08:24.959 --> 00:08:31.360
And this was another example of the Supreme Court going against the sign of the times.
00:08:31.439 --> 00:08:38.720
In Plessy versus Ferguson, the US had been moving towards equality, the US pushed back and made it less equal.
00:08:38.960 --> 00:08:49.360
1954 was a pretty racist time, pretty conservative time, and the Supreme Court pushed back with a liberal decision to overrule Plessy.
00:08:49.440 --> 00:08:56.720
So those are two really, really meritorious winners of the worst decisions of all time.
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The next one you've probably never heard of, but I think it earns its place.
00:09:00.639 --> 00:09:07.679
This comes in at number three in the list, Buck versus Bell 1927, the era of eugenics.
00:09:07.759 --> 00:09:14.799
And eugenics was another of those moments in time when we were just being unbelievably racist.
00:09:14.879 --> 00:09:20.159
And you see a lot of echoes of eugenics today in the arguments made by these deranged people.
00:09:20.240 --> 00:09:27.120
I mean, I've got to say, I don't know how Stephen Yakshley Lenin gets to argue that white people in Britain are so superior.
00:09:27.679 --> 00:09:32.720
Yeah, I'm afraid I look at him and I think this just can't be true.
00:09:33.759 --> 00:09:38.480
But back in the 20s, there was a huge push towards eugenics.
00:09:38.639 --> 00:09:42.559
And you know, it ended up happening in Germany, of course.
00:09:42.639 --> 00:09:58.879
And you know, what the Nazis did was not just about Jewish people, some of my people, but it was also about mentally disabled people, it was about anyone that society considered subnormal, uh, that we should get rid of these people.
00:09:59.120 --> 00:10:14.000
And the the issue set forth, these this is a direct quote from Buck versus Bell, the superintendent of the state colony for epileptics and feeble-minded was ordered to perform the operation of salping ectomy.
00:10:14.159 --> 00:10:20.159
I'd never heard of that word, but we now know it means, upon Carrie Buck for the purpose of making her sterile.
00:10:20.320 --> 00:10:43.600
So what we were doing back there in the eugenics building right there was sterilizing people so they couldn't have children under that age-old notion that we now use for welfare queens and other terms like that that are pretty racist, um, that we shouldn't let them breed because this just creates uh an underclass of fundamentally stupid people.
00:10:43.759 --> 00:10:47.360
You've got to feel a bit sorry for the epileptics, too, that they're thrown in that.
00:10:47.519 --> 00:10:52.720
So Buck versus Bell was a terrible decision and didn't last very long, I'm glad to say.
00:10:52.960 --> 00:10:57.840
The fourth on the list is Koromatsu versus United States, 1944.
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I'm surprised this makes the list.
00:10:59.679 --> 00:11:05.279
I'm pleased it does, because the next two, I had some personal dealings with overturning them.
00:11:05.600 --> 00:11:09.919
But Koromatsu versus United States happened in World War II.
00:11:10.240 --> 00:11:15.120
You remember that Pearl Harbor had been December the 7th, 1941.
00:11:15.440 --> 00:11:21.279
Huge Americ anti-Japanese sense in America, somewhat understandable.
00:11:21.440 --> 00:11:28.480
Um, an awful lot of the Japanese people who came to America were coming to get away from Japan.
00:11:28.559 --> 00:11:31.919
They weren't coming to support the Japanese war effort.
00:11:32.080 --> 00:11:34.799
And they'd been in America for a long time.
00:11:35.039 --> 00:11:38.399
Koromatsu put them all in internment camps.
00:11:38.639 --> 00:11:50.240
And in 1944, the US Supreme Court said that's fine, and basically suspended everyone's civil rights during the war, which, you know, is a real problem.
00:11:50.399 --> 00:11:54.720
Now, Koromatsu took a long, long time for everyone to criticize it.
00:11:54.799 --> 00:11:59.279
Uh really, there wasn't an apology issued for almost 50 years.
00:11:59.519 --> 00:12:06.240
Um, but then we had Rasul versus Bush, which was exactly the same thing, uh, except even worse at some level.
00:12:06.399 --> 00:12:12.320
We took a whole bunch of people who we called uh enemy combatants or aiding the enemy.
00:12:12.480 --> 00:12:18.480
Everyone in Guantanamo was actually alleged to be aiding the enemy, which we said was a capital offense.
00:12:18.799 --> 00:12:24.320
Turned out we were wrong in 98% of cases at least.
00:12:24.480 --> 00:12:29.360
Um, but we sued on February the 19th, 2002.
00:12:29.600 --> 00:12:33.360
Uh Guantanamo was opened on January the 11th, 2002.
00:12:33.519 --> 00:12:40.720
We sued a little over a month later to try to overturn the sort of attitude that had existed in Koromatsu.
00:12:41.120 --> 00:12:44.559
And it took two and a half years, but we got to the Supreme Court.
00:12:44.639 --> 00:12:47.120
It was a conservative Supreme Court even then.
00:12:47.279 --> 00:12:51.120
We were outvoted even then by the conservatives.
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But we won.
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And we won because it was just so reprehensible.
00:12:55.200 --> 00:13:02.000
And we also won because coincidentally, just before the decision, um the Abu Ghraib photographs came out.
00:13:02.080 --> 00:13:17.120
And this is a crucial part of a lot of what happens in law, which is suddenly the eyes of the conservatives get opened to how crazy some of these people are and how they're trampling on the US Constitution in a way that they just shouldn't do it.
00:13:17.279 --> 00:13:21.279
And so we won in Russell versus Bush, and we were able to get in there.
00:13:21.440 --> 00:13:24.480
Uh, I it became my Caribbean resource of choice.
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I've been there 42 times.
00:13:26.159 --> 00:13:30.639
I've represented 87 people there, and we got them all out.
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And that was great.
00:13:31.840 --> 00:13:33.919
So Koromatsu was a bad decision.
00:13:34.080 --> 00:13:39.440
I don't know if it really merits its rank as the fourth worst of all time.
00:13:39.679 --> 00:13:43.039
Now, the fifth one, I have a dealing with this as well.
00:13:43.120 --> 00:13:49.360
This this is a terrible decision, but again, whether it's actually the fifth worst of all time is interesting.
00:13:49.679 --> 00:13:56.559
Bowers versus Hardwick was the case where the issue of whether we could criminalize sodomy came up.
00:13:56.720 --> 00:14:02.320
Now, obviously, this was uh a concept of homophobia.
00:14:02.559 --> 00:14:11.519
And, you know, for a long time there'd been crimes of uh homophobia where you know gay people were criminalized, and that was true in Britain too.
00:14:11.759 --> 00:14:26.480
But by the 1970s, the Equal Protection Clause had come into play, and so the Georgia legislature was confronted with that very difficult uh American dilemma of um of whether to be hypocrites or not.
00:14:26.639 --> 00:14:27.840
And they had a choice.
00:14:28.000 --> 00:14:46.320
They either had to strike down the sex laws for everyone, uh, which meant that they were going to legalize gay sex, or they had to criminalize uh the same actions for everyone, because under the Equal Protection Clause they had uh they couldn't differentiate.
00:14:46.559 --> 00:14:59.679
So, and it was a wonderful quote, you know, by Mark Twain, who said 50% of Americans condemn what they themselves practice, the other 50% practice what they themselves condemn.
00:14:59.840 --> 00:15:02.000
Um and this tends to be the way.
00:15:02.320 --> 00:15:19.039
And so, sure enough, the Georgia legislature made all sexual acts except for the missionary position between consenting married adults, um, made that criminal offense, which meant there's an awful lot of people in trouble.
00:15:19.279 --> 00:15:31.279
And uh Michael Ballis was the Attorney General of uh of Georgia, who I knew quite well, and I'm I'm uh amused to point out that he later went down on a sex charge.
00:15:31.440 --> 00:15:36.960
Um but Hardwick uh was a gay guy who uh sued on that.
00:15:37.200 --> 00:15:52.240
And it ended up being a close 5-4 decision written by Justice Powell saying, since time immemorial, this has been the case, you know, we can't force the states to say that gay sex is legal, so therefore I'm afraid it's illegal for everyone.
00:15:52.399 --> 00:15:54.559
We just hope they wouldn't be that stupid.
00:15:54.720 --> 00:16:20.559
Um, but one of the amusing things about dear old Justice Powell, he wasn't a bad guy, he voted against us in another case that I think really qualifies for the top five, McCleskey, someone again who I helped represent, but the really difficult work was done by others, where they did a study on racism in the death penalty, and we proved that if you're black and kill a white person, you are exponentially more likely to get the death penalty than vice versa.
00:16:20.720 --> 00:16:26.159
And he wrote that opinion 542 and later said that was his worst decision.
00:16:26.320 --> 00:16:30.639
And I think it's a close call between that and Bowers versus Hardwick.
00:16:30.879 --> 00:16:47.840
His law clerk uh came to talk to our death penalty conference one time and told the amusing anecdote that uh the justice, when he was thinking about Bowers versus Hardwick, was agonizing and saying, I don't know whether I've ever even met a gay person.
00:16:48.240 --> 00:16:52.960
And his law clerk was gay, but was firmly closeted and hadn't told him.
00:16:53.039 --> 00:17:00.000
Um and that was all very amusing, but nevertheless that case came out against it.
00:17:00.240 --> 00:17:12.880
I then had a whole series of oral sex cases, which were immensely amusing, uh, where I represented people who were doing hard time in Georgia prisons for consensual oral sex.
00:17:13.119 --> 00:17:18.319
First guy was a guy called Jim Mosley, who was um who was in a divorce.
00:17:18.480 --> 00:17:25.279
His wife was having an affair with a lawyer, she wanted the kids in the divorce, the lawyer said, you know, have him arrested.
00:17:25.440 --> 00:17:30.720
She lures him over for one last fabulous night of sex, then cries rape.
00:17:30.960 --> 00:17:35.599
Her sister comes forward and says, This is all nonsense, my sister's lying.
00:17:35.920 --> 00:17:38.960
So they end up getting rid of the rape charge.
00:17:39.039 --> 00:17:44.960
But in the meantime, poor old Jim had confessed to our consensual oral sex.
00:17:45.599 --> 00:17:49.759
Uh, and he ended up getting convicted and getting sent to prison for five years.
00:17:49.839 --> 00:17:57.599
And that was the law in 26 states at the time that you could get locked up for this consensual stuff.
00:17:57.759 --> 00:18:00.720
And I represented old Jim, and we had a lot of fun doing it.
00:18:00.799 --> 00:18:08.880
We called it uh tonga lingus prohibitum, that the state thought was the real Latin phrase, and they started calling it that.
00:18:09.039 --> 00:18:11.279
We accused them of cunning linguistics.
00:18:11.519 --> 00:18:16.880
We had a section under the First Amendment about how this was a protected form of oral expression.
00:18:17.119 --> 00:18:38.160
We had a section under the Eighth Amendment, which is proportionality, that you if you take bestiality, necrophilia, and public indecency and run them all consecutive, uh, you get more time in prison for doing this heinous act with your spouse in the privacy of your bedroom than you do if you do it with a dead horse out in the middle of the courthouse square.
00:18:38.240 --> 00:18:42.960
And if you wait until your spouse dies, only necrophilia, half as much time in prison.
00:18:43.200 --> 00:18:44.960
So that was totally ludicrous.
00:18:45.039 --> 00:18:55.039
We made everyone laugh at their idiocy, and thankfully in Lawrence versus Texas, the Supreme Court overruled our bowers and held that that was all silly.
00:18:55.200 --> 00:18:57.680
So these are the top five in history, supposedly.
00:18:57.759 --> 00:19:04.160
And so when you're thinking about how the Supreme Court's doing today, you have to set it in that perspective.
00:19:04.400 --> 00:19:13.359
And the question we ask ourselves is: can these nine people really compete with those sorts of stupid decisions?
00:19:13.599 --> 00:19:17.519
And I think we'll see that they can't, they're just not up to it.
00:19:17.759 --> 00:19:22.160
Um, it's not that the conservative majority haven't done some pretty stupid things.
00:19:22.319 --> 00:19:38.720
So last term uh they did say, in a decision, it was just idiotic, that in order to preserve his role, the president of the United States is immune from any criminal offense while he's president, that would include murder or genocide.
00:19:38.960 --> 00:19:41.599
And, you know, that's a very, very stupid decision.
00:19:41.759 --> 00:19:49.680
It's it run it builds on a series of decisions that have been made by all courts for a long time that gave immunity to judges.
00:19:49.839 --> 00:19:51.359
And that's where a lot of it came from.
00:19:51.519 --> 00:19:56.799
And judges are sitting there thinking they should have immunity because their decisions piss people off.
00:19:57.039 --> 00:20:00.880
I gotta say, some of the things I do piss people off, but I don't seem to have immunity.
00:20:01.039 --> 00:20:06.319
And neither do the people who murder people, who what they do pisses everyone off, and they don't get immunity.
00:20:06.480 --> 00:20:09.839
But judges do, prosecutors do, defense lawyers don't.
00:20:10.079 --> 00:20:19.119
Police get uh a lot of immunity, not total immunity, um, because apparently they need it in going around beating people up on the street in America.
00:20:19.359 --> 00:20:21.279
So this was a stupid decision.
00:20:21.359 --> 00:20:24.400
But the truth is it actually doesn't make any difference, right?
00:20:24.640 --> 00:20:33.519
It brings the presidency into disrepute when Donald Trump insists that he doesn't have to pay taxes and can't be taxed and whatever.
00:20:33.680 --> 00:20:36.640
Um, but it doesn't actually make a big difference.
00:20:36.720 --> 00:20:41.759
So this is a sort of this is probably their worst decision so far, while Trump's been around this time.
00:20:42.079 --> 00:20:44.319
But, you know, it really doesn't rank.
00:20:44.480 --> 00:20:50.319
And when you look at the this term, this term started last October in 2025.
00:20:50.720 --> 00:20:54.960
Um, and there have been 30, there have been 35 cases when I wrote this a week ago.
00:20:55.039 --> 00:20:58.000
There have now been 38, and actually it was getting better.
00:20:58.160 --> 00:21:01.920
The last three decisions of two of them have been good.
00:21:02.319 --> 00:21:13.680
Um, but of the just looking at the 35 cases when I had to write this under the edict of Gresham, um there have been 22 unanimous decisions.
00:21:13.839 --> 00:21:19.279
That means that all nine of these people, the conservatives and the liberals, all agreed on something.
00:21:19.440 --> 00:21:21.359
I don't agree with everything they agreed on.
00:21:21.440 --> 00:21:24.559
I think some of the things they do in the Supreme Court is pretty stupid.
00:21:24.720 --> 00:21:31.599
But at the same time, you can't say that this fracturing court is uh is making a massive difference.
00:21:31.680 --> 00:21:34.480
I think they are genuinely doing what they think their job is.
00:21:34.640 --> 00:21:47.039
Now, a more interesting aspect of it is these two guys, the guy on your left is Chief Justice Roberts, who's a conservative, but I think he's struggling to be a Chief Justice.
00:21:47.279 --> 00:21:59.519
The guy on your right is Clarence Thomas, who's actually been a justice for the longest, and even if I'm in uh danger of contempt of court, I think he's an idiot, and I think he's the most dangerous and unwise person.
00:22:00.079 --> 00:22:10.720
He's a guy who wants to overrule all of these cases about gay marriage, about whether they can illegalize being gay, whether Bowes versus Hardwick was right.
00:22:11.119 --> 00:22:12.880
He thinks he'd overrule that.
00:22:13.039 --> 00:22:17.200
He'd overrule, you know, whether you can have condoms and contraceptives.
00:22:17.519 --> 00:22:30.799
The only one of the liberal opinions that he wouldn't overrule is the one that the anti-miscegenation law, which made it illegal for a black person to marry a white person and vice versa.
00:22:30.960 --> 00:22:33.519
And the Supreme Court struck that down.
00:22:33.680 --> 00:22:37.599
He wouldn't overrule that, and it's just worth pointing out he's married to a white woman.
00:22:37.839 --> 00:22:39.920
But I have no time for Clarence Thomas.
00:22:40.079 --> 00:22:43.440
I think he's very dangerous and not terribly smart.
00:22:44.240 --> 00:22:48.319
I don't agree with Roberts a lot, but I think he's trying to do the right thing.
00:22:48.400 --> 00:23:00.000
And the way you see it is this: when a case is written by a particular justice in the Supreme Court, it's allotted by the most senior justice in the winning party.
00:23:00.319 --> 00:23:05.599
So Roberts has been on the winning side in all but a couple of cases so far this term.
00:23:05.920 --> 00:23:10.000
He has allotted 12 of the 25 cases to liberals.
00:23:10.079 --> 00:23:12.079
So the liberals are getting four each.
00:23:12.720 --> 00:23:16.319
Then 13 have been allotted to the six conservatives.
00:23:16.400 --> 00:23:17.599
They're getting way fewer.
00:23:17.759 --> 00:23:22.880
Now another telling point is that Thomas has had five of those 13 decisions.
00:23:23.039 --> 00:23:36.480
And that's because when Roberts has been against Thomas, Thomas has appointed himself as the one to write the opinion, because he just wants to write something as extreme as he can possibly get away with.
00:23:38.400 --> 00:23:43.759
That illustrates two things to me, that you know, I'm afraid Clarence Thomas is what we all know him to be.
00:23:44.480 --> 00:23:52.400
Chief Justice Roberts is struggling to be a Chief Justice where the Supreme Court maintains respect.
00:23:52.559 --> 00:23:56.160
And I think that is always a job of the Chief Justice.
00:23:56.319 --> 00:24:13.920
And it's best illustrated by the massive loss that the Supreme Court gave to Donald Trump, which was learning resources versus Trump, which was a weird name, but it was the case where the Supreme Court turned back Trump's tariffs.
00:24:14.079 --> 00:24:15.680
It was a six to three decision.
00:24:15.759 --> 00:24:18.160
It was written by Chief Justice Roberts.
00:24:18.400 --> 00:24:28.079
Both of the conservatives who were appointed by Trump were in the majority, who they joined the three liberals, and they struck down the tariff six to three.
00:24:28.240 --> 00:24:30.960
It was a huge, huge loss for Donald Trump.
00:24:31.039 --> 00:24:36.640
And what that was, there was nothing that really compelled them to do it except for the Constitution, right?
00:24:37.039 --> 00:24:50.880
And the Constitution says that certain powers are in the executive, that's the president, certain powers are in Congress, and the majority said, well, these powers are in Congress, and Trump just can't do it.
00:24:50.960 --> 00:24:56.720
And there has to be a vote in Congress, which I think is an incredibly important part of democracy.
00:24:57.119 --> 00:24:58.559
So that was a great decision.
00:24:58.720 --> 00:25:11.279
And you know, one of the illustrating factors of this is unlike in Britain, you'll remember, I'm sure, the case where we took to the European Court of Human Rights where the prisoners should have the right to vote.
00:25:11.519 --> 00:25:19.519
And I don't think when Moses came down from Mount Sinai, there was anything on those tablets that said that prisoners should not get to vote.
00:25:19.599 --> 00:25:20.160
They need a vote.
00:25:20.240 --> 00:25:22.799
They're the people who trampled on more than anyone else.
00:25:23.200 --> 00:25:35.440
But when that decision came down, David Cameron, then Prime Minister of Britain, said it made him feel physically sick and that on his watch they were never going to enforce that judgment.
00:25:35.680 --> 00:25:50.960
Now that's contempt of the rule of law, and it is an attitude we see in Britain because we don't have a real constitution and we don't have a real notion that Parliament's not supreme when it comes to individual liberties, but the courts are.
00:25:51.839 --> 00:26:06.160
But even though Donald Trump railed, he was rude when he gave a speech to the joint houses of Congress, he was rude about his own justices, who did that, but he still had to follow it.
00:26:06.400 --> 00:26:13.039
And they've paid back$166 billion in these tariffs.
00:26:13.119 --> 00:26:26.160
And that's cost every man, woman, and child$488 in America that has had to be paid out of the US exchequer back to people who were wrongly tariffed.
00:26:26.559 --> 00:26:31.119
That's pretty amazing, and it's pretty much the enforcement of the US Constitution.
00:26:31.200 --> 00:26:36.880
And it is by far the most significant, in my view, decision of this term so far.
00:26:37.119 --> 00:26:40.079
There are a few more to come, but nothing that quite matches it.
00:26:40.160 --> 00:26:42.400
And it came out the right way, which is fabulous.
00:26:42.640 --> 00:26:56.480
Now, there are a bunch of other cases that have come down, and again, they're surprisingly favorable to what I would view as the US Constitution, as opposed to simply to me, to my clients.
00:26:56.720 --> 00:27:17.680
Doyle Hamm is on death row, uh, not there for doing a nice thing, but he is very much borderline mentally disabled under Atkins versus Virginia, which obviously Clarence Thomas and Samuel Alito want to overrule, but that's the case that says you can't execute mentally disabled people.
00:27:18.799 --> 00:27:21.680
The Supreme Court uh upheld that.
00:27:21.920 --> 00:27:24.240
Quite a narrow ruling, five to four.
00:27:24.400 --> 00:27:28.480
But again, the Supreme Court uh stopped that guy from being executed.
00:27:28.559 --> 00:27:37.519
And generally, in the criminal cases where these guys are not really our friends philosophically, the majority of them have gone our way.
00:27:37.680 --> 00:27:43.839
Now, that's not to say that the Supreme Court is not um trying to let people get executed.
00:27:44.000 --> 00:27:44.559
They are.
00:27:44.720 --> 00:27:49.440
And this has been coming for a long, long time, and it's been happening for a long time.
00:27:49.599 --> 00:27:51.759
And a lot of that's rooted in the reality.
00:27:51.839 --> 00:28:00.799
I mean, I cannot tell you how many times I've petitioned the US Supreme Court at, you know, an hour before midnight on an execution night.
00:28:01.039 --> 00:28:11.279
And there was a time at the height of these executions in the 90s and the late 80s and early 90s, where we were doing this to the Supreme Court two or three times a week.
00:28:11.440 --> 00:28:20.960
And the members of the Supreme Court were in their 80s, many of them, and they were having to make these life and death decisions late at night, two or three times a week.
00:28:21.039 --> 00:28:27.759
And this is a big deal to these people, and it's not surprising, it's a big deal to me, let's face it, we were litigating them.
00:28:27.839 --> 00:28:36.880
Um, but at the same time, I always thought there was a huge osmotic pressure towards um not being as well behaved as they used to be.
00:28:36.960 --> 00:28:46.799
And the Supreme Court's been going that way for many, many years, and now they're not our friends when we've got a death row client close to the end, and they haven't been our friends for a long time.
00:28:46.960 --> 00:28:53.200
Uh, so we haven't had one stay, last-minute stay from the Supreme Court this year.
00:28:53.440 --> 00:28:57.039
And, you know, we've only had one or two dissents from the Liberals.
00:28:57.119 --> 00:29:01.519
Uh, so this is true of all the Supreme Court, but we're still winning cases.
00:29:01.599 --> 00:29:12.960
And you go to the criminal cases, you know, we've won a lot of them, and the majority of them have been 9-0, which means even Clarence Thomas and Alito have voted for us.
00:29:13.119 --> 00:29:20.240
You know, the first one was Ellingberg, which was a thing where the victims, the defendant had to pay uh money to the victims.
00:29:20.400 --> 00:29:22.160
You know that's a populist thing.
00:29:22.400 --> 00:29:28.799
And the Supreme Court ruled 9-0 that that was an ex post facto punishment, and you couldn't do it.
00:29:28.960 --> 00:29:34.960
Uh, then there was a double jeopardy case as to whether you could get two charges for the same offense.
00:29:35.119 --> 00:29:39.039
Um, you know, actually, Burlington versus Missouri is the old case on that.
00:29:39.279 --> 00:29:44.799
Lots of courts had gone against us on that, but the Supreme Court ruled 9-0 in our favor.
00:29:45.279 --> 00:29:51.279
Um, Boe versus United States is a highly technical case on habeas corpus.
00:29:51.599 --> 00:29:52.880
I thought we were going to lose that.
00:29:52.960 --> 00:29:58.079
We won at 5-4 with uh Roberts and Kavanaugh joining the Liberals.
00:29:58.240 --> 00:30:10.880
And perhaps the most surprising in that group was Pitts versus Mississippi, a 9-0 win, saying Mississippi couldn't put a child behind a screen and couldn't make a child testify by video.
00:30:11.039 --> 00:30:16.240
Things that we do normally in Britain, because there's no confrontation clause, are 9-0.
00:30:16.559 --> 00:30:18.400
The Supreme Court said you couldn't do that.
00:30:18.480 --> 00:30:34.960
And actually, since I wrote this, there have been two other great decisions, surprising decisions, one on Batson versus Kentucky, on racism and jury selection, where they slap down a prosecutor I know in Mississippi yet again, the same prosecutors in the Flowers case.
00:30:35.200 --> 00:30:45.279
And then another one is on Giglio versus United States, which is on prosecutors basically knowingly presenting perjured testimony.
00:30:45.440 --> 00:30:47.839
And they they they slap that down too.
00:30:48.000 --> 00:30:50.000
So the Supreme Court's really doing their job.
00:30:50.079 --> 00:30:51.200
There have been some losses.
00:30:51.359 --> 00:30:55.359
You know, there have been two or three losses on Fourth Amendment grounds, which we always lose.
00:30:55.519 --> 00:30:58.559
Um, although I wish we had a Fourth Amendment in England.
00:30:58.720 --> 00:31:00.319
Uh, that's search and seizure.
00:31:00.400 --> 00:31:05.920
I wish people, cops weren't allowed to just stop black people on the streets like they do in this country.
00:31:06.079 --> 00:31:07.920
You know, you're not allowed to do that in America.
00:31:08.000 --> 00:31:16.000
We all know the cops do bad things in America, but we get to sue them and we get to put a stop to it in many, many cases.
00:31:16.160 --> 00:31:19.839
Um, but we've lost a few of those things, but not many.
00:31:20.079 --> 00:31:23.759
Now then you have the First Amendment, and these are very, very interesting.
00:31:24.079 --> 00:31:29.599
The conservatives in the Supreme Court like to say they're First Amendment um advocates.
00:31:29.759 --> 00:31:31.759
And I think they genuinely are.
00:31:31.920 --> 00:31:40.079
Uh, and these cases actually reveal to me that some of the conservatives are more First Amendment oriented than the Liberals.
00:31:40.240 --> 00:31:42.319
And I fall with the Conservatives.
00:31:42.480 --> 00:31:45.680
I think the only answer to bad ideas are better ideas.
00:31:45.839 --> 00:31:49.039
You can't censor people just because you don't like them.
00:31:49.119 --> 00:31:54.640
I'm not going to censor Stephen Yaxley Lennon for saying racist, unpleasant things.
00:31:54.880 --> 00:31:56.960
I just think we need to laugh at him.
00:31:57.200 --> 00:32:08.400
Like the, you know, the led by donkeys people with that fabulous uh screen where they had the you know all the benefits of immigration with a Union Jack on it.
00:32:08.720 --> 00:32:12.240
Um so these are the four cases that have come out this term.
00:32:12.480 --> 00:32:21.839
The first choice women's resource centers is a 9-0 win for a non-profit organization that basically is counseling women not to have abortions.
00:32:22.000 --> 00:32:28.720
Now, you know, I think women have a right to abortions, but I suppose people have a right to counsel them not to if they want to.
00:32:28.880 --> 00:32:39.440
I hope we can disagree with that politely and support the women who want abortions and not, and you can't force people, thankfully, to go to First Choice Women's Resource Center.
00:32:39.680 --> 00:32:54.720
Then there's Mirabelli versus Bonta, which is there are there was a law in California that said you couldn't a child could say its own gender without reference to the parents.
00:32:54.960 --> 00:33:07.759
Now, I think again, we're on a very interesting journey at the moment in terms of gender recognition, in terms of transgender things, in terms of agender issues, and I think it's fascinating.
00:33:07.920 --> 00:33:21.440
Um, I have pretty strong views, and you know, I come from an era where we were incredibly stupid on this, and I have been corrected by people, and they were right, and and I I'm glad they corrected me.
00:33:21.680 --> 00:33:24.960
And I believe that people can be whatever gender they like.
00:33:25.119 --> 00:33:26.240
I disagree with my son.
00:33:26.319 --> 00:33:28.720
If someone wants to say they're a cat, I don't care.
00:33:28.880 --> 00:33:30.079
That's up to them.
00:33:30.240 --> 00:33:44.400
Um, this law um was uh was struck down in California so that now you can't as a child say what gender you are dispositively without your parents being involved.
00:33:44.559 --> 00:33:50.880
You know, that's probably okay, um, uh but the liberals voted against that.
00:33:51.119 --> 00:33:53.039
Then the this Charles vs.
00:33:53.200 --> 00:34:04.240
Salazar, 8-1 on conversion therapy, where the Supreme Court said that you can't ban people as psychologists from trying to convert gay people.
00:34:04.400 --> 00:34:12.639
Now, I hope we all agree that trying to convert gay people to not being gay is just fundamentally stupid and wrong.
00:34:12.800 --> 00:34:22.559
Um, but again, I don't see that we can say you can't do that, because if we say you can't do that, then they're gonna forbid me from all sorts of things that I want to say.
00:34:22.639 --> 00:34:30.800
Uh and actually the only person who voted against that uh was was one of the liberals who said this is a medical issue.
00:34:30.880 --> 00:34:37.039
And you know, maybe you're right, maybe you're wrong, but frankly, I think they have a First Amendment right to say whatever they want to say.
00:34:37.280 --> 00:34:39.440
And then the last one was interesting.
00:34:39.519 --> 00:34:50.960
It was a religious Christian preacher who was preaching on the sidewalk, who was banned from doing that in Mississippi, our city of Brandon, I know Brandon well, it's a pretty repressive place.
00:34:51.039 --> 00:34:54.400
I'm amazed they banned a Christian minister.
00:34:54.800 --> 00:34:56.559
But that's not their style at all.
00:34:56.719 --> 00:34:59.599
But the Supreme Court struck that down, and of course that's right.
00:34:59.679 --> 00:35:04.480
Again, I'm not Christian, I don't believe that stuff, but the guy has the right to do it.
00:35:04.719 --> 00:35:10.239
So those have been interesting, and they've been, in my view, correctly decided.
00:35:10.400 --> 00:35:21.360
And I think the Supreme Court is enforcing the First Amendment in a very strong way, and the vast majority of them are either unanimous or pretty much unanimous.
00:35:21.519 --> 00:35:22.159
That's cool.
00:35:22.400 --> 00:35:23.519
That's a good thing.
00:35:23.760 --> 00:35:37.760
Now, then when it comes to what everyone was saying, which is this court is gonna be split down the middle, six, well not quite the middle, six conservatives, three liberals, uh, and it's just gonna go to hell in a handbasket.
00:35:37.920 --> 00:35:38.960
It's just not true.
00:35:39.119 --> 00:35:49.039
Of the 35, the first 35 cases, and now the first 38 cases, there have only been two where it's been a 6-3 decision against the liberals.
00:35:49.280 --> 00:35:50.000
Only two.
00:35:50.239 --> 00:35:55.679
And the one that everyone says, woe is me on, is Louisiana versus Calais.
00:35:55.920 --> 00:36:02.400
Now, this is a bad decision in some ways, but it's a decision I think the Conservatives are gonna live to regret.
00:36:02.800 --> 00:36:09.199
Um, because what the Supreme Court said, and you know, on the face of it, you can see where they're coming from.
00:36:09.360 --> 00:36:23.440
I don't agree with them, but they said that the Constitution forbids all racial discrimination, um, meaning that we can't have affirmative action because that's discrimination against white people.
00:36:23.679 --> 00:36:35.119
Now, I think they're delusional because the fundamental, it was written by Alito, who's the guy just above Thomas in the picture, uh, and he is someone I disagree with on almost everything again.
00:36:35.280 --> 00:36:56.320
Um, and I think he's fundamentally wrong on this, because it's this fantasy that um is imbued in some of these white conservatives, that somehow we white people are such victims of dreadful discrimination, I've got to say, you know, give it another 20,000 years, and that may be true, but it's just not true today.
00:36:56.639 --> 00:37:00.639
I am what is called an OWPM.
00:37:01.199 --> 00:37:07.440
That is a phrase that you may not have heard of because I made it up, but it means old privileged white male.
00:37:07.599 --> 00:37:17.280
And I taught my son when he and I were talking about my mother's gambling that you don't need to get into gambling, Wilf, because you've already won the greatest lottery in life.
00:37:17.360 --> 00:37:27.280
And thank goodness my son, when he was eight, said, Oh, you mean I was born a privileged white male in a privileged country where we have all this riches that we did nothing to merit?
00:37:27.360 --> 00:37:29.840
And I say, Yeah, that's exactly what I mean, Wolf.
00:37:30.000 --> 00:37:39.119
Um, and you know, I teach my students that it's not just the slave owners who were made wealthy by slavery, it was a whole country.
00:37:39.360 --> 00:37:40.960
And we need to recognize that.
00:37:41.039 --> 00:38:02.000
And the idea that somehow you can snap your fingers and say, oh, well, everything is hunky-dory in America, we don't discriminate against black people anymore, or whomever else, it may just be the people coming across the border from Mexico at the moment, too, or the Islamic people who we all put in Guantanamo.
00:38:02.159 --> 00:38:05.360
The idea that all of that is fine is just stupid.
00:38:05.599 --> 00:38:24.239
Um, but the Supreme Court has now said that not only is that the case, that you can't have majority black districts to ensure that there is black representation in Congress, but they say, and Alito goes one step further and says that the essence of democracy is you can have gerrymandering.
00:38:24.719 --> 00:38:31.920
So if you as a political party want to rig the system to favor yourselves, you can do that.
00:38:32.079 --> 00:38:42.880
And the way it operates in America is that you rig the system because the state legislatures get to divide up the districts in your state.
00:38:43.039 --> 00:38:52.079
And so they can set it up so that it's rigged to have a majority of Republican or Democratic voting districts.
00:38:52.239 --> 00:39:02.079
And Texas started doing that, so obviously uh Governor Newsom in California said, well, if you're gonna do that, we're gonna do that too, and we're gonna do it for the Democrats.
00:39:02.159 --> 00:39:04.800
Uh and now the Supreme Court said you can do that.
00:39:05.039 --> 00:39:12.559
Now, the Republicans are all excited by that because right now they've got 28 states where they have a majority.
00:39:12.800 --> 00:39:24.559
But what they need to remember is that if you go over the last 50 years, the Republicans have only had a majority in any state in 10 years of those 50 years.
00:39:24.719 --> 00:39:27.440
Most of the time, the Democrats have had the majority.
00:39:27.679 --> 00:39:41.920
When so it means that this decision, the moment that the Democrats get a majority in your state, this is going to just turn around and backfire on the Republicans, and it's just going to get re-gerrymanded.
00:39:42.000 --> 00:39:44.880
And the Democrats won't do it the way the Republicans will do it.
00:39:44.960 --> 00:40:01.760
The Democrats will pretend to do it on a sensitive basis, and they won't be allowed to mention race because the Supreme Court would strike that down, but they'll be able to take all of those things into account, and we will see very much our Democratic majority gerrymanded districts.
00:40:01.920 --> 00:40:05.519
And at that point, I think the Republicans are going to be in trouble.
00:40:05.599 --> 00:40:09.519
And they're going to be in trouble now because of Donald Trump.
00:40:09.679 --> 00:40:18.800
Because what you've seen politically in the last few months in the last couple of years is Donald Trump just going after the people he doesn't like.
00:40:18.960 --> 00:40:27.519
So, for example, a Republican, long-term senator in Louisiana, just got ousted because Donald Trump didn't like him.
00:40:27.760 --> 00:40:38.480
And so they've lost a moderate, respected Republican, and they're going to have a nutter as the person running for Senate.
00:40:38.719 --> 00:40:46.239
What this is going to do is massively improve the odds of the Democrats, particularly if the Democrats get a little bit of gumption.
00:40:47.280 --> 00:40:53.440
Because what happens always in America is in the primaries, people vote on their parties.
00:40:53.519 --> 00:41:02.639
And the reason Donald Trump won was because the Republicans all voted for Donald Trump rather than the wishy-washy other people running.
00:41:02.800 --> 00:41:06.800
And that's the right wing of the Republican Party voted for him.
00:41:07.280 --> 00:41:12.960
And the same tends to happen with the Democrats, but they're not as left-wing as the Republicans are right wing.
00:41:13.199 --> 00:41:26.960
So now what we're getting is a bunch of candidates who are from the Trump fringe of the Democratic Party, who, when they get to the general election, they have to face the whole country instead of just the Republican nomination.
00:41:27.199 --> 00:41:38.400
The Republican nomination is sometimes as little as 2% of the electorate, whereupon now they have to face the whole electorate, and that's when they lose.
00:41:38.559 --> 00:41:51.920
And so the more that Donald Trump trumpifies the Republican Party, the more likely it is that they're going to lose these states, the more likely it is that Louisiana versus Calais is actually going to benefit the Democrats.
00:41:52.079 --> 00:41:58.639
Now, I still think it's a bad decision, but it's a bad decision that I think will backfire on the people who wrote it.
00:41:58.880 --> 00:42:06.880
So overall on this, the uh I think the rumors of the death of the US Constitution are vastly exaggerated.
00:42:06.960 --> 00:42:13.440
I think the Supreme Court of the United States is generally doing its job as well as it was ten years ago.
00:42:13.679 --> 00:42:17.599
I I've never really agreed with it, but I've said this before, and I'll say it again.
00:42:17.679 --> 00:42:27.280
I've had five cases go to the US Supreme Court of mine, uh, always either someone on death row or the Guantanamo prisoners, and we've won all five.
00:42:27.360 --> 00:42:33.440
And it's not because I'm so great, it's because the Supreme Court does its job more often than not.
00:42:33.679 --> 00:42:39.199
And they they voted in all of those cases in favor of someone who was genuinely hated.
00:42:39.360 --> 00:42:41.519
And you don't see that in Britain.
00:42:41.760 --> 00:42:42.400
You just don't.
00:42:42.559 --> 00:42:45.440
You don't get it because there's not a constitution to enforce.
00:42:45.519 --> 00:42:52.559
And so I think in the US, while we're going through a bad period, I think it's going to swing back as it always does.
00:42:52.719 --> 00:42:57.199
Um and I think it'll swing back much quicker due to the madmen in the White House.
00:42:57.440 --> 00:43:14.559
But um, but I'm not I'm worried about England because if uh this chap becomes prime minister and does some of the things that he talks about, and he's being pushed to the right further himself by uh by Rupert Lowe, who I was in school with.
00:43:14.719 --> 00:43:19.760
I was senior to him, and uh I wasn't terribly impressed with him at the time.
00:43:19.920 --> 00:43:29.920
Um but Britain doesn't have much protection for that, and we do have the potential for some of the very same uh dreadful concepts.
00:43:30.079 --> 00:43:39.760
Uh so I think what all of this does is reinforce the need in Britain for vigorous protection of the rights of hated groups of people.
00:43:40.079 --> 00:43:56.400
And we don't have that constitution that we need, so we're gonna have to use other methods, and those other methods mean that you need to educate yourself about who's being trampled on, you need to respond to it by standing up with them, and you need to have a sense of humor.
00:43:56.719 --> 00:44:09.760
Because, you know, those right-wing nutters, they don't mind it if you and I hate them, because frankly, that just reinforces their sense of self, but um, they don't like to be laughed at, so we should do as much of that as we possibly can.
00:44:10.000 --> 00:44:16.159
Anyway, that's shorter than normal because I didn't think you could stand listening to me talking mainly about the law.
00:44:16.239 --> 00:44:18.159
Uh, but thank you very much.
