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Kai Wright: It's Notes From America. I'm Kai Wright. This is our new pop-up politics edition every Thursday until election day. I am basically hitting up my friends and colleagues who I think are super smart on a particular question that's coming up in the campaign and picking their brains. This week I'm on the call with Elie Mystal. He is, of course, The Nation magazine's justice correspondent and the world's most passionate evangelist for throwing the Supreme Court as we understand it, into the dustbin of history and starting over. Hey Elie.

Elie Mystal: Hi Kai. How are you doing?

Kai Wright: I'm all right.

Elie Mystal: This is my week.

Kai Wright: This is your week. There's a lot of weeks that are your week, but this is truly your week. Speaking of which, let's just get right into it. I want to talk to you about Kamala Harris, but obviously, we start with Joe Biden's court reform plan. Kamala Harris has embraced it as her own as well. It includes term limits, an enforceable code of ethics, and a constitutional amendment to reestablish the idea that presidents can actually break the law. Just from the top line, how does this plan, setting aside all the politics of can it be done and all of that, just on the ideas themselves, how does this plan compare to what you have been screaming about for the past several years? How do you rate it?

Elie Mystal: Oh, Kai, I don't want to start there because that would have to make me start negative. I don't want to start by saying that this plan is moderate weak sauce compared to the real goal of court reform. Because while it is, that would idle over the important part here, the significant part here. Which is that Biden has been the greatest enemy to court reform that we've had to overcome in the Democratic party for quite some time. If you go back to 2020 primary, when 1800 Democrats, the [unintelligible 00:02:08] where everybody was running for president. Joe Biden was the most against court reform.

Kai Wright: He was.

Elie Mystal: He spoke for it, not just himself. He spoke for a number of centrist, moderate milk toast Democrats, the Chris Coons' wing of the party, if you will, who were also dead set against court reform. For Biden to now come out and say, "You know what, we should do something." That's a big deal. That not only gives Kamala Harris cover to adopt his plan and perhaps go further if she's actually elected, it gives that whole centrist moderate wing of the party cover to actually start taking this seriously, and that is critically important.

With that as context-- I have kids and your kid takes their first step and you clap and you're like, "Oh, good job, little guy. You took your first step. We're so happy for you." You know he's going to fall flat on his face 10 seconds later. You know he's not ready to go run the 100-meter dash in the oly-- You know the limits of what that child is able to do, but you clap anyway because taking the first step, falling on your face, that is actually also part of the process.

Kai Wright: Of saying in public things that were unthinkable a minute ago now sitting president is like, "Hey."

Elie Mystal: I applaud Biden for these measures. I'm sure we'll get into it, these are good ideas.

Kai Wright: Let's do. Term limits is the big top line in what Biden and now Harris are proposing. Talk to me about term limits. You wrote about this and that it's actually complicated to think about whether or not it is a good idea and how so. Tell me about term limits.

Elie Mystal: Look, term limits are extremely popular. It's a close to a 70-30 issue in this country. People are very in favor of term limits. The way that these plans would work is by holding justices to an 18-year single term. Now, if you do the math, that works out to a president getting to appoint a new Supreme Court justice to replace a Supreme Court justice once every two years. Which means that the point of term limits isn't just to cut the lifetime power of any individual justice. It's to make the balance of the Supreme Court more in line with the winners of political elections as opposed to the losers in their battle with the Grim Reaper.

The justice is now changed on a regular schedule as opposed to when somebody chokes on a ham sandwich. That's critical. That's why people like it. It's a really good idea. There are some problems with it. First, let's just talk operationally. There are currently three justices on the Supreme Court who have already served more than 18 years. John Roberts, Clarence Thomas, and Sam Alito. Are they all going to go?

Kai Wright: Do you understand it as the idea as it's articulated, is that those three, if this were somehow passed, you're like, "If you've already over 18 years, it's retroactive. You got to go now." That's the idea--

Elie Mystal: If it's retroactive, then you have to start staggering with the most powerful justices on the Supreme Court. Is that really what you're going to do? If it's not retroactive, if it's prospective-- Donald Trump just finished appointing a bunch of 50-year-olds to the Supreme Court who aren't going to age out, aren't going to voluntarily retire for the next 20 or 30 years. Your 18-year term limit, if that doesn't apply, that 52-year-old Brett Kavanaugh, what are you really doing here? You're changing the court for my grandchildren, not anybody alive today.

That's one operational problem. The second operational problem is what happens when again, it's every two years. The president is elected and then a justice has to retire because it's been 18 years, so they nominate the successor. What if Mitch McConnell is in control of the Senate and just decides not to confirm the successor?

Kai Wright: You know what? I hadn't thought about the confirmation process. You can just gum it up in the same way they already do.

Elie Mystal: What happens then? It's not like it hasn't happened before. What if Mitch McConnell says he's just not going to confirm a justice nominated by the president of the opposition party for their two justices during their four-year term? What do you do then? There's nothing obvious that you can do to stop that. That's another problem. The third problem, which is probably the easiest to fix in some way, what if a justice gets hit by a bus during their 18-year term? Does the replacement have to be a person from the same party? Does the replacement get to simply finish out the original 18-year term? Does the replacement get that and then a new-- You see what I'm saying, Kai? There are some just--

Kai Wright: You could argue all these things through when you wrap it out, but is it even constitutional?

Elie Mystal: Let's say you fix all that, then you get to the actual constitutional problem. The constitutional problem is that Article III of the US Constitution says very clearly, judges will serve while in good behavior. Good behavior has been interpreted to mean for life. The life tenure is actually one of the only things the Constitution says about the Supreme Court and says about federal judges. Article III is super short, but it says life tenure.

Kai Wright: Does it say life tenure or that's how we understand it?

Elie Mystal: It says good behavior.

Kai Wright: How does good behavior become life tenure in our understanding? Without getting too far into the weeds.

Elie Mystal: The reason why it's been interpreted that way is that the only way to determine that they're not in good behavior is through the constitutional process of impeachment.

Kai Wright: Got it.

Elie Mystal: If they're not in good behavior, impeach them. If they are in good behavior, they get to hold their offices-

Kai Wright: Got it.

Elie Mystal: -is how the scholarship works on this. Which, if we understand what the constitution says, then the prospect of forcing a justice out after 18 years who doesn't want to go, can be seen as facially unconstitutional for the lower federal courts, for other federal judges, which are protected with life tenure by the same constitutional clause. We have a workaround. It's a statutory workaround called senior status.

After the judges have been on the lower courts for a certain number of years, and they reach a certain age, they're eligible to take senior status. That is like a semi-retirement and senior status judges are still allowed to hear cases and they still keep their full salary, hence they still hold their offices, but they vacate their seat so the president can appoint their replacement. That's how senior status works, and it is constitutional. Thing is, it's also voluntary, and we will regularly see fellow judges hanging on after they've accrued enough time to take senior status, hanging on until a president of their preferred party is in power to replace them. That happens all the time.

Kai Wright: If history has showed us anything, Clarence Thomas is not voluntarily doing a thing.

Elie Mystal: Going from a world where you have voluntary retirements to this new contemplation of forced retirements, it's simply difficult to see how that works constitutionally. Then here's the [unintelligible 00:09:59] I could make an argument that it's constitutional. I don't know if you want to get into it. I have a super witty argument for how it's constitutional.

Kai Wright: I know. I have participated in debates with you where you have made constitutional arguments for the most ridiculous things as a fun. I believe that you can do that.

Elie Mystal: I can do it. I can just hit the bank shot off the glass, into the-- I can do it, but I'm not the person you have to convince, and I don't have to convince you, Kai. Somebody has to convince John Roberts that it's constitutional because, in our ridiculous system, it is the Supreme Court that gets to decide which Supreme Court reforms are constitutional or not. I can make all the wackadoodle arguments I want to about how term limits could be constitutional. If John Roberts and five of his friends don't agree, guess what? Term limits aren't constitutional.

I roll back to the issue where the three justices that have served more than 18 years now are Roberts, Thomas, and Alito. Who is going to walk into their courtroom, tell them term limits are constitutional, tell them that means they have to get the hell on gone, and have them say, "Yes, that makes sense. Oh, well." That's not going to happen.

Kai Wright: Why do you think that Biden-Harris would begin to push these ideas that are so obviously not going to work out?

Elie Mystal: Because they're popular. They want to be popular. They want to be popular.

Kai Wright: Let me put it differently. In terms of the road to actual reform, if term limits is pretty basically not constitutional, how do we see these as actual steps forward towards reform then beyond the cultural opening of the door of the conversation towards it?

Elie Mystal: I think for two reasons. One is my read on the American people. Again, these reforms are popular. These reforms are viewed as moderate and common sense. The American people, for the most part, still think that the Supreme Court is swayed by common sense. I think that one of the important things about these reforms is that we need to pass them and then we need to watch the Supreme Court reject them before people will really understand what we're dealing with. I say this as a veteran of the abortion wars.

I say this as a person who came on this program, any program that would have me for years warning that if you elected Republicans and you allowed them to control the Supreme Court, abortion would be taken away. People were like, "Maybe. That sounds kind of hysterical."

Kai Wright: "The court's more reasonable than that."

Elie Mystal: There are lots of people who simply didn't believe that the court would do it until they did. Then so they did it. They were like, "Oh, my God, what's happening?" I told you eight years ago what was going to happen if we kept down this road of action. Similarly, with term limits and ethics reform, I think people need to see the court do what I say it's going to do because I can scream about it as much as I want.

People aren't going to believe me until it happens. When I say people-- That's the second part of the answer. I don't just mean the American people. I also mean elected Democrats.

Somebody has told Biden, I believe, that these reforms have a chance of passing SCOTUS. Somebody has told him that. I don't know who that person is, and I don't know what that person is smoking, but something--

Kai Wright: Do you think he actually thinks it could work?

Elie Mystal: I think Biden thinks it could work. I don't think Biden is cynical enough to put forward a plan that he knows is dead on arrival. He knows that it's difficult to pass it right now, but I think Biden believes that if Congress passed term limits, the Supreme Court would abide by them. Biden is wrong, but Biden won't know he's wrong until he's no longer president and John Roberts tells him he's wrong. I do think that there is a cadre of elected Democrats, Dick Durbin, probably in this category as well, who needs to do it and then see SCOTUS reject it before they will be willing to do the thing that will actually work.

Kai Wright: Which brings us to the real meat of the matter. What about Kamala Harris? Where do you put her in what she thinks about these reforms?

Elie Mystal: Everything I've seen, read, heard, and know about Harris tells me that she is a Supreme Court realist. That she does know what we're up against. She does know who we're dealing with. I think that Harris will support these plans because they're popular. I think she will absolutely try to get these plans passed. I think where I would worry about Biden if he was running for and was elected to a second term is that this is a test balloon for him. [unintelligible 00:14:59] when he's functionally a lame-duck president at the end of a long four years.

It won't be a test balloon for Harris. She will try to get this done, especially ethics reform. Harris has been a champion of ethics reform throughout her entire career, and including in the Senate. I think ethics reform--

Kai Wright: Tell me about that. Tell me about her championing ethics reform.

Elie Mystal: If you think about the For the People Act, where does that really come from? That comes from very much Harris's work in the Senate that she was pushing in 2018. The big blue wave, we're going to have H.R. 1 ethics bill that we all talked about before Democrats retook the House in the Senate in 2018. A lot of that work was Kamala Harris. She was a huge supporter of that bill. She was a huge help in crafting it based on her experience as a state attorney general. Remember, the only reason why that bill didn't pass is because Joe Manchin is a sentient piece of pole as opposed to a senator.

Kai Wright: Because of Joe Manchin. What was in the bill? Remind us what was in that bill.

Elie Mystal: H.R. 1? That was all about stopping public corruption. That was all about putting real penalties for public officials who take bribes or find gold on vending machines or however, that's supposed to work right now. It was a real ethics reform bill. H.R. 1, in fairness, did not have a SCOTUS ethics component. H.R. 1, 2018, you have to remember, this is a time before ProPublica.

Kai Wright: I'm told that's [unintelligible 00:16:32] Clarence Thomas was hanging out with Nazis and buying things.

Elie Mystal: H.R. 1 did not have a SCOTUS ethics requirement. I promise you, H.R. 2 in 2025, if it comes to that, will be hyper-focused on a SCOTUS ethics reform bill. I absolutely believe Harris will champion that and do everything she can to make ethics happen. In the process, I do think she will try to get term limits passed. Now, when we talk about the passage of these bills, let's remember as well, what it really requires is killing the filibuster. The Washington Post, when they were talking about Biden's proposal in a follow-up article, the Washington Post very casually said, "To pass these bills, you need 60 votes in the Senate." No, you don't.

Kai Wright: You need 51 votes unless--

Elie Mystal: You need 51 votes in a Democracy, you idiots. The only reason why you think you need 60 votes is because the Senate holds dear to this anachronistic antebellum segregationist tradition of the filibuster. To pass anything to deal with the Supreme Court, you're going to need to break the filibuster. I think that's another reason why these proposals are important because they are so popular, that when you look at this, and when you look at--

Again, if Harris wins and Democrats control the House and the Senate, the surely coming national abortion rights legislation, you're going to have to break the filibuster to do it. This is the start of that process as well. I think Harris--

Kai Wright: Maybe he's killing two birds with one stone?

Elie Mystal: Yes, let's go. Then the problems with reform, if you pass these bills, despite all the political effort to pass them, SCOTUS still rejects them, I think that's going to piss a lot of people off, including electeds, and open the aperture on real reform as opposed to simply popular ideals.

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Kai Wright: Let's take a break and come back and talk more about Harris in general and your thoughts on her time on the judiciary committee and what we can expect for her in the world of courts. We'll be right back.

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Kai Wright: I'm on the call with Elie Mystal, The Nation magazine's justice correspondent, supreme court reformer in chief in the public conversation. Kamala Harris's big rise to national attention really was her time on the Senate Judiciary Committee. That's when a lot of people beyond California started to pay attention to her. What stood out for you most in that era of her time?

Elie Mystal: She understands how these people think. There is a separation in our politics between people who basically believe the Supreme Court press clippings. Think about the Susan Collins, I'm sure he's learned his lesson thought process. The Susan Collins like, "He said he wasn't going to overturn abortion rights, surely he wasn't lying to my face in the middle of a confirmation hearing."

There's those people and then there are people like Harris, as I said before, who are Supreme Court realists, who understand the political motivations and machinations of both liberal and conservative justices, who can cut through the legalese and understand what they're really saying and what they're really going to do when they're granted lifetime power. Harris is one of those people.

For what it's worth, she's also surrounded herself with other legal realists. If you look at the other people in her campaign, some of them are actual court reformers, which is not something I could say about the Biden administration. Some of the people close to her are also legal realists who understand how important Supreme Court is and understand how often the justice just straight up lie to our faces.

Kai Wright: Politically laying aside the Biden proposals, the specificity of that, you feel like based on who's around her and what you've seen one way or the other, she's going to be picking a fight about court reform?

Elie Mystal: I do think she's going to be picking a fight about court reform. It might not look like the way I'd pick the fight. [chuckles] For instance, I think she'll pick the fight legislatively. I mentioned earlier the national abortion legislation that is coming if Democrats win the trifecta. That will be designed to basically give Roberts and his cabal of conservatives a chance to save their court. A chance to save their nine-member court.

It will be written in such a way that it can be upheld constitutionally, but if the court wants to wild out and reject the national abortion rights legislation that will be coming, that will be another data point for, "Look, we gave them an opportunity. They failed. Reform." I think that's going to come across a number of pieces of legislation. I would imagine that a Harris administration will be the most interested in returning Chevron deference, which I know is this like in the weeds legal phrase, but the idea of the executive agencies get to interpret laws of Congress as opposed to the courts, the Supreme Court overturned that idea this summer.

I think a Harris administration and a Democratic leadership will bring that back in statutory form, and then we'll see what SCOTUS does with that. I think they're going to give SCOTUS a chance. One of the historical doppelgangers here, honestly, for where I think the Harris administration is going with this, is honestly FDR, because FDR, somewhat famously to a lot of laypeople, tried to pack the court and failed.

Kai Wright: Oh, right.

Elie Mystal: Did he fail? Because FDR was losing all of his New Deal cases by four. Then he threatened to pack the court. Then he started winning his New Deal cases, five to four. SCOTUS got the message that if they wanted to keep their nine-member cabal, they better come to Jesus on the New Deal. I think Harris is going to give the Supreme Court exactly that kind of opportunity. You see what I'm willing to do. Here's the abortion bill. Step back, because if you don't step back, court expansion is coming for you.

I think that's going to be the play and the setup. Again, it's not what I would do, because I would smoke it if you got them. I would throw everything I have at them immediately, whatever. That's me. Harris is going to try to pass these immensely popular bills and popular reforms and dare SCOTUS--

Kai Wright: With the threat of court packing. [crosstalk] The threat of expanding court hanging in the edge and-

Elie Mystal: Dare them to overturn it.

Kai Wright: -and dare them to overturn it. What about the lower courts?

Elie Mystal: Which they will. [chuckles]

Kai Wright: Yes, that's where we will be. I think you're probably right. What about the lower courts? In terms of just thinking about her as somebody who would be a president who's really hyper-interested in court reform generally and aware of what courts do to politics and policy, what would you expect to see from her? Both expect and hope to see from her on the lower courts.

Elie Mystal: We are in desperate need of lower court expansion. Beyond the partisan back and forth, and whatever, the judicial conference, which is an independent committee of retired and former federal judges has said that we need at least 75 more district judges just now, today to handle increased workloads. We expanded the lower courts fairly regularly every 10 to 15 years for the first 200 years of this country. The last time we did it was 1990 because that's about when the partisan gridlock got so intractable that neither party was willing to bipartisanly compromise for a lower court expansion package so we've been locked with this since the '92 [unintelligible 00:25:32] right before Clinton took office.

This is a huge problem. We are a large and litigious people. The simple caseload that we have in lower courts is reaching a crisis and an inflection point. I hope Harris looks seriously at lower court expansion. Let's put it like this. I know if Trump wins, Trump and McConnell will look at lower court expansion. That is already on the docket for them because there's an actual need and because with specificity, they want to break up the 9th Circuit Court of Appeals, which is viewed as very, very liberal and oversees just at this point, a huge number of states. Everything from Oregon to California, to New Mexico, to Hawaii, to Idaho.

Kai Wright: Oh, wait, I don't want to-- Because I did not take this in. There is an existing and expected plan that for the appeals courts, which are the next stage below the Supreme Court, the 9th Circuit is definitely the one that has driven a lot of progressive policy or blocked a lot of conservative policy. They have an idea of fracturing it basically in order to expand the appeals courts and then create a-

Elie Mystal: A hyper-conservative.

Kai Wright: -hyper-conservative appeals court circuit [inaudible 00:26:54]

Elie Mystal: Creating a hyper-conservative 14th circuit that would cover Idaho, Montana, and maybe roll in a Washington and Oregon and have that be the next 5th circuit, which currently controls Texas, Louisiana [crosstalk]

Kai Wright: Where we got all of these really wild conservative cases.

Elie Mystal: If Trump and McConnell win, not only will they split the 9th circuit, then this new 14th circuit that they create, that will be a blank slate of entirely Republican-fed sock judges that they can elevate and promote to those positions. That's what's coming if Trump wins. If Harris and the Democrats win, I don't know that they'll split the 9th circuit, but some expansion of the appeals court would absolutely be appropriate, but at the same token, I'm out here talking about Supreme Court expansion.

I'm talking about Supreme Court reform. That's a lot of court. [crosstalk] In a country that can't last much longer than one episode of Law & Order for the most part, and so you have to prioritize-- I don't know where lower court expansion will be on her priority list, but I would hope to see some movement there because I know that the Republicans have organized and are ready to go.

Kai Wright: In the Veepstakes, who's Kamala going to pick, you have weighed in on behalf of Pete Buttigieg. Which I was a little surprised about at first, because I was like, "Really? Pete?" I read your column on it. You got to an interesting point about him. Why Pete?

Elie Mystal: Because Pete Buttigieg is the Democrat most out front on court reform. [crosstalk] Pete Buttigieg, when he ran in 2020, centered his entire campaign around court reform. He had a plan. He called it Five, Five, Five. It was based on a really good law review article. I think his plan was unconstitutional, but that's not important.

Kai Wright: I totally forgot about it.

Elie Mystal: What's important is that he had a plan. He cares. He talks about this all the time. He talks about how without Anthony Kennedy and the Supreme Court's decision in Obergefell that Pete's own family would be impossible. I think it is significant when you have people in power who fully understand-- Remember after they took away abortion rights, Clarence Thomas in a concurrence just wrote about all the other rights they were planning to take away.

It is significant to have somebody in power who reads that Clarence Thomas concurrence and knows they're talking about him and knows they're talking about his family and knows just how much personal pain and danger they are in if they let this conservative super majority have power for the next 20, 30 years. Pete Buttigieg-

Kai Wright: Has he talked about it that way?

Elie Mystal: -knows that. He talked about that way in 2020. Absolutely. That's why for him in this movement. Obviously, he's so well-spoken. He's such a nice young man.

Kai Wright: He's such a well-spoken gay man. [chuckles]

Elie Mystal: He's got all that going for him as well and I'm not dismissing that, I'm just saying I think that's obvious that he is a very smart and articulate politician. On this particular issue, which I believe is the most important issue facing the country, Pete Buttigieg is the other person that I look at and I think "You also know this is the most important issue facing this country."

Kai Wright: Last thing you have written about this past Supreme Court session as way more radical and way more consequential than all of us understand. I think you called it one of the worst. Why? Give us the breakdown of what we may not have taken in about why this particular session was so bad.

Elie Mystal: It's the Chevron decision. It's one thing for the Supreme Court to declare Donald Trump a king and immune from criminal prosecution. That is terrible, that is wrong, that affects one dude. When they took away Chevron efforts, again, this legal weedy term that looks at who gets to control the interpretation of regulation, executive agencies or the courts. They called onto themselves more power than they have since 1803 in Marbury v. Madison when they gave themselves the power to declare acts unconstitutional in the first place.

Now every single regulation from how many roaches can be in your food before they are declared safe to how many bolts the wing on the plane needs to how much lead can be in your water. Every single regulation now goes through the lens of Clarence Thomas and Sam Alito, and Sam Alito's wife's flags, and Ginni Thomas and John Roberts. They--

Kai Wright: The idea is that the court said, "We get to be the final word, not Congress."

Elie Mystal: Not the executive agencies.

Kai Wright: Not the executive agency.

Elie Mystal: Whenever there's a congressional vagary, the Supreme Court gets to decide what that vagueness really means. Now, there have been a lot of people just like, "Woah, Congress just needs to write better laws and be more--" First of all, shut up. All right. Have you looked at Congress? You want to tell me that Marjorie Taylor Greene has a real clear understanding of how much mercury you're allowed to drink before it makes a stup-- No. The Congress is not in the best position to write with the granular clarity that the experts at the executive agencies are, A.

B, there are things that by their nature are ambiguous and not the things that people would expect. A recent case dealt with this under the Clean Water Act, what's water? What defines water that can be regulated by the government? Is it a lake? Is it a pond? Is it a subterranean aquifer? Is it a pool? Is it a puddle?

Kai: That's literally--

Elie Mystal: [crosstalk] These are actually real questions. If you think about the Congress rights, the government has the authority to regulate clean water. How much more clear do you want Congress to be? But when somebody says, "Oh, Congress really meant oceans and lakes and rivers, not the little creek in my backyard that I'm dumping nuclear waste into." No, the creek is also-- Who gets to decide that? Under Chevron deference, the EPA gets to decide, the Environmental Protection Agency gets to decide what water is but after the summer, Neil Gorsuch gets to decide what water is.

Kai Wright: The point being that the reason you think this is so historically bad, even relative to all the awful things we have seen come out of the Supreme Court, is that it's a power grab. That they have now established that they really are the reigning power over both the executive and congressional branch.

Elie Mystal: Yes, literally--

Kai Wright: Taken to the extreme what you're describing is that this whole idea of three branches of government balancing each other is gone. That ultimately the court is deciding everything.

Elie Mystal: There is one branch of government, that branch is the Supreme Court, and that branch now holds a veto power over every other branch of government. The way that our country works as of this summer is that we go out and we vote for officials, and those officials get elected, and those officials pass laws and those laws are suggestions that the Supreme Court is now free to take or leave. That is the importance of what the Supreme Court has done.

It can declare any act of Congress unconstitutional. It can declare any executive order unconstitutional. It can now declare any particular regulation unconstitutional. It can declare any state law unconstitutional. It can declare any local ordinance unconstitutional. It has literally done all of those things in the past four years. You tell me who actually runs this country? Us the people? The president? No son, it's nine people that nobody voted for in the robes that you now have to ask before you can understand whether or not your law is allowed to exist or not.

Kai Wright: That is some dark shit, Elie. [laughs] I just can't stop there so just to name that you believe that this particular thing is something that Kamala Harris, if elected is going to challenge.

Elie Mystal: She's going to have to because the upside here, Kai, there have been tens of thousands of regulations that have been upheld under the concept of Chevron deference and now all of those regulations are under threat. Even though John Roberts said, "Oh, this doesn't overturn the past 40 years of law," You know who disagreed? Leonard Leo, the Federal Society Svengali. He has put out a call and he said-- I am quoting him because I just wrote about this for a print piece, "We need to flood the zone with lawsuits questioning the constitutionality of blah, blah, blah regulations."

Flood the zone was Leo's own words. What's going to happen is that Republican state attorney generals in Texas, in Idaho, in Florida, in all of these red states, are going to sue, sue, sue, sue, sue to stop any regulation, be it a tax regulation, a financial regulation, an environmental regulation, a food and drug and safety regulation, any regulation they don't want. They're going to sue to give their boys on the Supreme Court a chance to overturn it. If the Harris administration and the Democrats don't pass legislation to reverse this decision, we are talking about a literal flood of lawsuits, deregulating the country one lawsuit at a time.

Kai Wright: I'm going to stop my effort to find a high note because you're a realist, you're not a man to get--

[laughter]

Elie Mystal: I do have a high note.

Kai Wright: All right.

Elie Mystal: The high note is that this is one time I think Democrats have gotten the memo. Again, I think Harris has gotten the memo. I think the people around her have gotten the memo. I think Harris knows, put it like this, there have been other presidential administrations where I feel like what I just said was not understood by the people in power. That is not how I feel right now. I am not telling you or your listeners anything that Harris and her people don't already know and that does give me hope. At least they know what they're up against.

Kai Wright: Elie Mystal, justice correspondent for The Nation magazine. Thanks for this man.

Elie Mystal: Thank you so much.

Kai Wright: Once again, everybody, every Thursday until election day I'm going to be jumping into the podcast feed here with a pop-up conversation about politics and this election. A lot of it is going to be trying to understand Kamala Harris's record and what we could expect from her on specific issues like court reform if she were to win. We knew a lot about Joe Biden. We know a lot about Donald Trump. Now we got to learn what we can about Kamala Harris in a relatively short time, amid a whole lot of noise and a whole lot of spin in every direction.

If there's something you want us to explore, hit me up. There's a few ways you can do that. You can email a voice note to notes@wnyc.org, you can DM us on Instagram @noteswithkai or you can just call and leave a voicemail at 844-745-8255, it's 844-745-TALK. Last Thursday we kicked off this series by calling up CNN's national politics correspondent Eva McKend, who was on the campaign trail with the brand new Harris for President campaign. She told us about a Zoom call that tens of thousands of Black women joined just hours after Biden ceded the campaign to Harris.

Since then, there's been a long list of similar Zoom calls organized around identities, Black men, white men, white women, et cetera, et cetera. One of our listeners, Kavita called to say she joined the one for South Asian women. Here's Kavita.

Kavita: Hi, Kai. It's Kavita. I just wanted to report back that I was last night on the first South Asian women for Harris call, there were about more than 9,000 women who had Zoomed in. On that Zoom call were the likes of a representative Pramila Jayapal, Mindy Kaling, actress Poorna Jagannathan, activist Valarie Kaur, and other really inspiring folks, and well as members of Harris's campaign and finance committee. It was really inspiring and galvanizing and really a call for volunteers and donations. I'm looking forward to being part of it and other

coalitions. Thanks for talking about this.

Kai Wright: Thank you for sharing, Kavita. Again, if you want to either react to something you hear in this series or give me an assignment for a particular issue on which you want to learn

more about Kamala Harris' record, speak up. 844-745-TALK. That's 844-745-8255 or email a voice note to notes@wnyc.org. Thanks, and I will talk to you later.

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