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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning. Happy Friday, everybody. Here we are again, I'm going to start the show exactly the way we did yesterday by saying this is a Supreme Court decision day. The second to last Friday in June, like the second to last Thursday, is a big decision day almost every year. As many of you know, they release their decisions just after ten o'clock. We are watching their feed once again this morning to see any of the big ones who are about to come down. Presidential immunity from prosecution for Donald Trump. Can social media platforms remove content they deem to be false? Remember, conservatives want the platforms not to have that editing right.

Can states deny gun permits to people with domestic violence orders of protection against them? The gun right side says the right to bear arms should apply even to people with orders of protection against them based on their risk of committing domestic violence. We're watching for those and a few others, and we'll tell you what we learn immediately when we learn it. We will even go to special coverage. Just a heads up in the event of one of the rulings.

If we get the presidential immunity ruling today, I'm going to step aside and we'll be handing off to NPR in Washington for special coverage with Nina Totenberg and others, and the greater resources they can bring to bear at the network. Just letting you know that might happen, and in fact, that might happen any minute.

None of the others that I just mentioned were announced yesterday, but a few others were less headlining, but still important and interesting, and we'll talk about a few of those now, as well as set up for the more marquee cases that we might be hearing about momentarily with our guest who's been good enough to be on SCOTUS standby for us all this month. Aziz Huq, professor of law at the University of Chicago. He's also the author of the forthcoming book, The Rule of Law: A Very Short Introduction. Professor Huq, ongoing. Thanks for your availability and wisdom and welcome back to WNYC.

Aziz Huq: Thank you for having me again, Brian.

Brian Lehrer: Before the Supreme Court has the chance to dictate our topics for this segment, can I get your take on something else in the news today? I think my producer told you I was going to ask that may eventually reach the Supreme Court. The state of Louisiana, as you know, just enacted a law that requires all public schools and any school that gets state funding, as I understand it, so that might even include some private schools, to post the 10 Commandments in every school classroom. Here's a tiny clip of the Governor of Louisiana, Jeff Landry, at the signing ceremony this week.

Jeff Landry: If you want to respect the rule of law, you got to start from the original lawgiver, which was Moses.

Brian Lehrer: See, he stole your book title, The Rule of Law. The ACLU already says it will challenge this in court on First Amendment grounds. First Amendment, where it says the government shall not establish any religion. Professor Huq, do you see this as an open and shut case, as a lot of our listeners probably do, or a more legally complicated one?

Aziz Huq: There is a 1980 ruling from the Supreme Court holding that states are not permitted to display the 10 Commandments in classrooms. However, there are more recent cases, including a pair from 2005 in which the court closely divides on the question of display of the 10 Commandments in non-classroom situations. One was in a courtroom and another was in a public monument.

Even since 2005, in those two closely divided cases, the court has moved considerably to the right, particularly on questions of the Establishment Clause, which is the element of the constitution that prohibits the federal government of states from establishing a religion. I think that the Louisiana move here is a deliberate effort to give the new conservative majority in the court an ability or a opportunity to overrule that 1980 case. I think that based upon the most recent decisions of the Roberts Court on the Establishment Clause, I think that they have a reasonable shot of doing so.

The Roberts Court has not indicated, I believe, or not rested any ruling in the last decade-plus on the Establishment Clause. Every Establishment Clause challenge that's come to the court has been rebuffed. Now, this I think, is a quite different case because the open ambition of the governor and the legislators here is to recognize a particular religious tradition as central to the law. That's what the governor just said in the clip that you played. I think that in that openly sectarian ambition has been absent in other public display cases, or at least the state has tried to cloak it, and there's been enough ambiguity that the court has been able to say, "This isn't really religious."

Brian Lehrer: He's just going out there and saying flat out, "This is religious. Our law comes from our religion and, in fact, our religion,"-- his religion. That may give the ACLU more of an opening.

Aziz Huq: That's right. The fact that there is nothing here except for an ambition to advance what I think is properly characterized as a Christian nationalist agenda changes the facts or changes the complexion of this case in ways that create an opening for the ACLU, but you have to remember that six justices on the Supreme Court are either indifferent or outright hostile to the Establishment Clause.

Brian Lehrer: It seems to me, and I'm no lawyer, but you have to look no further than the first commandment out of the 10 to see why this would be an establishment of religion. The first commandment is, "I am the Lord your God. You shall have no other gods before me." People in minority religions might worship a different God than the one that that refers to, and the state is commanding them not to worship a particular God. Why is that not the simplest First Amendment case there could possibly be?

Aziz Huq: I think there's two reasons for thinking that this is not a simple case. Even though as you say that contents of the 10 Commandments are plainly not just religious, but sectarian in nature. For example, people of the Hindu faith are not believers in a single God. This is a very, very plain statement that repudiates their beliefs. The same is true for Buddhists or for sects.

I think the two reasons why or how the court might get around that are, first, the court might say that anyone who challenges the display of the commandments lacks standing. This was a legal doctrine that came up in the abortion bill case. It's a legal doctrine that says, if you're going to challenge a measure, you need to have material skin in the game. The court might say something like, "Look, nobody who sees these texts on a wall is really harm by seeing these texts." That's the first legal theory that they might employ.

The second legal theory is to look to traditions in the United States and to say that whatever the Establishment Clause commands, it does not demand that American states give up practices or traditions that they have engaged in durably over time. The display of the 10 Commandments is a tradition that is sufficiently durable in time. It's lasted long enough that it is immune from constitutional scrutiny. This is an idea that has, for example, been used to authorize legislative prayer, which again, has an openly sectarian character.

Brian Lehrer: One more thing about this, and tell me if this is too much in the weeds for you to have a take on it, but do you know if-- By the way, the Louisiana Law includes size requirements for the 10 Commandment postings, you say people will see these, people will see these. Because the Louisiana Law includes size requirements for the 10 Commandments postings no smaller than what they call 11 by 14-inch poster size and with large readable font.

This is not just in every school building, but in every single classroom in the state where there's public funding. Everybody will be exposed, everybody will see it. My question in the weeds is, if you know if it's the original Jewish Book of Exodus version which says in full, "I am the Lord your God who brought you out of Egypt, out of the land of slavery. You shall have no other gods before me." That's very specific to the Jewish people. He didn't bring Christians out of in Egypt or Muslims out of in Egypt, even though Christians and Muslims today recognize the 10 Commandments. Is that brought you out of Egypt, Exodus version, what would be posted?

Aziz Huq: I don't know that level of detail. I will say that my understanding of earlier cases where, for example, the 10 Commandments were displayed in Texas, and then in a Kentucky courtroom, those cases did not involve the older Jewish text. They involved a text that came from the explicitly Christian tradition. I think that the point that emerges from your question is, even when one chooses to display something that is arguably an element of American traditions like the 10 Commandments, let's assume that that's the case for a second, one has to make a choice as between different sets. One has to make a choice between, first of all the Jewish versus the Christian articulation of the 10 Commandments.

Then it's my understanding, although I'm not by any stretch and expert on this, that different strands of Christianity, Protestants and Catholic, have different articulations, different translations, different inferences from the text of the 10 Commandments themselves. To the extent that the law is specifying the precise content of the 10 Commandments, it's making a choice between different faiths and different denominations. No doubt that will be an argument that challenges to the law will bring that this is not just an impermissible establishment, it is what's called a sectarian preference.

You are preferring one sect of Christianity over other sects of Christianity, and also Jewish or Muslim understandings of the 10 Commandments.

Brian Lehrer: One listener writes in a text message, "The hypocrites are worried about Sharia Law being imposed as state law. Well, I guess as long as it's their religion." Writes that one listener. My guest is University of Chicago Law Professor Aziz Huq. All right. We'll see how that plays out in court in the future. Now as we wait for this morning Supreme Court rulings, let's go on to some of what they did yesterday. They ruled for example, on a Trump era tax law that from what I'm seeing more progressive Americans might actually like. What's the case, and would you agree with my take?

Aziz Huq: This is a case called Moore. The Moore's owned equity in a foreign company. The equity they owned had gained in value, but they had not brought it back to the United States, and therefore they haven't been taxed. This is actually quite common. It's more common among corporations than among individuals. They hold money overseas and they thereby avoid paying US taxes on it. The 2017 Tax Cuts and Jobs Act pressed by President Trump dramatically cut corporate tax.

In order to make up for that, imposed a one-time levy on Americans earnings held in certain corporations overseas. The Moore's, who have that kind of asset, challenge the tax on the basis that it fell outside of Congress's power under the 16th Amendment. The 16th Amendment enacted in 1913 permits Congress to impose an income tax. Essentially the Moore's argument was, "Look, this is not income until it is in the pocket of the tax holder." Now, the important thing to understand about this case is that, on the face of it, it's about this one provision about the 2017 tax law.

In fact, the case or the legal challenge was one that would have dramatically destabilized the US tax code and put large new constraints upon the government's ability particularly to collect corporate income tax. Why is that? Because a rule that money can only be taxed when it is realized, when it's in your pocket, would enable all sorts of tax evasion and circumvention measures. You just create an entity, and you hold the money that you have earned in the entity long enough for you to avoid high taxes.

Indeed since the beginning of the income tax in 1913, Congress has recognized this and has enacted many, many different provisions in the tax code that rest upon the taxation of an entity rather than an individual. Partnerships, something called the S-Corp, foreign corporations that are closely held by Americans, certain claims of futures contracts. All of these are addressed in the tax code, and all of those provisions would've been cast into constitutional doubt by the challenge brought by the Moore.

No doubt that was the point. No doubt the point was to dramatically limit Congress's power to collect taxes. The Supreme Court rejected that challenge 72. The important fact however, is that the Moore's argument that there is a hidden requirement that money be actually in your pocket before it is subject to the income tax was rejected only by five out of the nine justices. Four out of the nine justices are willing to say, "We think that there is what's called a realization requirement, which by the way would've destabilized the US tax code, potentially thrown the country into recession, and made it extremely difficult to fund even the federal government's ongoing commitments in let's say the next 5 or 10 years.

Brian Lehrer: Just those little consequences.

Aziz Huq: Moore was really a bullet dodged, and it is really startling to observe that two justices, Justice Thomas and Justice Gorsuch explicitly say, "It's not our job to save the country from fiscal calamity" and seem to be perfectly willing to drive the country off that cliff.

Brian Lehrer: Who were the two on the bubble who voted partly against?

Aziz Huq: The two on the bubble were Justices Barrett and Justice Alito. They would've upheld the 2017 law in question, but on a theory of what counts as an income tax on realized income that is, I think, difficult to pass, and had it become the law of the land, it may not have hobbled the federal government moving forward, but it would've created an immense amount of confusion. I think to the extent that it's an interesting opinion, to the extent that it's of interest, it's going to be a concurring opinion that will baffle and engage tax lawyers for at least weeks or maybe years to come.

Brian Lehrer: On this notion of realized income, couple of things, and here's why I think it might be important for our listeners to hear you expand a little bit on what that means. Does realized income mean, not just the money that somebody might have in a stock that's appreciated over time or in their retirement 401(k)s or whatever, but only when they withdraw that money, that that's only when it's realized income?

Aziz Huq: My understanding of the way that the tax law works is that there is in the law not a single definition of the term "Realized." Let me give you one of the earliest examples. A partnership, so many of your listeners will be either members of partnerships in the law context, in the medical context, in the business context, or they'll work for a partnership. A partnership is in some sense a separate legal entity, but for many purposes, including tax purposes, money that is earned by the partnership is treated as money that is earned by the individual partners.

That is the tax law sees through, it pierces the legal form of the partnership and treats what happens to the partnership as things that happen to the partners. The law makes a decision about whether to see through legal forms like a partnership, like a corporation, like a futures contract in different ways, in different circumstances. What's driving those decisions about whether the tax law sees through a legal formality and says, "Yes, this is really your income."

What drives that decision is really a calculus about, are there good reasons for this legal formality, or is the legal formality here really intended or really will it work as a way of evading tax law and nothing else than a way of evading tax law? I hope that makes sense.

Brian Lehrer: Just one more thing on this, the reason that I said at the beginning of this stretch that I read that progressives might like this ruling, besides some of the things that you already said, is because there are progressives in Washington like Elizabeth Warren, Senator from Massachusetts, who want the government to enact a wealth tax so they tax not just income, which a lot of the wealthiest Americans can evade income taxes in various ways, but they tax wealth so billionaires today in particular would be taxed more than they are in most cases, something Elizabeth Warren and others would very much like to see happen.

There is discussion about in Washington and that this ruling, the way it came down from the Supreme Court yesterday, keeps that more possible. Would you say that?

Aziz Huq: I think that there was always a strong constitutional argument against the wealth tax. In essence, there's a rule that taxes on property have to be apportioned by population between the states. I think that that argument is mentioned and endorsed by both the majority and the dissenting opinions, even though it's not the subject of the case. I think that those mentioned probably strengthen the constitutional argument against the wealth tax, even though the legal reasoning of the case with respect to the 2017 Law, doesn't really touch upon that issue.

Brian Lehrer: My guest, if you're just joining us, is University of Chicago Law Professor Aziz Huq, as we talk about cases the Supreme Court ruled on yesterday, the Louisiana Law signed by their governor this week, requiring that the 10 Commandments be posted in every publicly-funded classroom in the state, and significantly, we are waiting to see if any of the really big cases that the Supreme Court has not yet ruled on this term, which we're expecting either any minute or any day, comes down during this segment. It is this ten o'clock hour, and often on this segment last Friday in June in the ten o'clock hour when they announced the biggest decisions.

We can take your phone calls if time permits if we don't get any of these biggest cases. 212-433-WNYC, maybe on the 10 Commandments Law that we talked about at the beginning of the segment from Louisiana that's going to be constitutionally challenged or this tax law or any of the others that either came down or that were anticipating. 212-433-WNYC, if time permits. 212-433-9692, call or text. Before we go on to the next case that the Supreme Court ruled on yesterday, Professor, they've already released a couple of rulings this morning and none of them are these biggies that we mentioned at the top of the show, presidential immunity and abortion-related cases, social media-related cases, other things.

What's going on? Why are they waiting so long to release the cases that much of America is sitting on the edge of their seats waiting for?

Aziz Huq: Just to give the court credit, it did, literally while you were talking, release the Second Amendment opinion and upheld the measure or the law that criminalizes the possession of a firearm by a domestic violence perpetrator.

Brian Lehrer: Okay. Let's talk about it. Do you have an instant take where you were able to see something that you can comment on? Again, I'm just going to basically repeat what you said so listeners are very clear if they haven't been following this one what was at issue. It was whether the right to bear arms should even apply to people who have domestic violence orders of protection against them. Correct?

Aziz Huq: That's right. There is a federal statute that says if there is a domestic violence protective order applied to you, that you are not permitted to possess a firearm. The person challenging this law had a domestic violence protective order, went up to his partner in a supermarket parking lot, I believe, and threatened her, and then shot somebody who tried to intervene. From brief review, very, very brief review, the court here upholds the measure by finding analogies to the domestic violence person violator in possession law in earlier federal and state statutes.

I think that the way one reads this measure or the way one reads this decision, and I'm not able to do this right now, I think it tells us two things. The first thing is about how far the court is willing to go with respect to its Second Amendment project. Second, there's actually an interesting question of method and the way that Supreme Court opinions get decided that has produced some conflict among the justices and it will be interesting to see how that plays out here. With respect to the scope of the Second Amendment, I think the immediate thing that is telling in the Rahimi judgments is that there is only one dissenter as far as I can see, which is Justice Thomas.

This is a case where the court has seems to have broken 8-1 against gun rights. That's a pretty clear signal that this case is not one that is right at the edge of the Second Amendment. It is pretty clear that we are well outside the scope of the Second Amendment. That tells us something. That's the first thing. The second thing, and this is impossible to tell based upon without having read the opinions, in a case involving New York's gun law a couple of years ago called Bruen, the Supreme Court, with Justice Thomas writing, introduced a new method into constitutional analysis which has come to be called tradition and history.

Basically, what Bruen said is, "Look, we're going to uphold a challenge gun regulation if it's consistent with the history and tradition of gun regulation in America." New York State produced a whole bunch of examples of instances in which there were parallel gun regulation to the handgun ban that was at issue in Bruen. The court, with Justice Thomas writing in that case, essentially danced a kind of peculiar weave, a ballet, around the historical examples that New York had given and constructed a counter-history, a libertarian counter-history of deregulated firearm ownership.

What I think Bruen told a lot of people was that the courts now going to not look at the founding or at the moment that a constitutional text was crafted and ratified, it's going to look across the sweep of American history, and gosh, doesn't this give the court a great deal of discretion to construct its own versions of history in ways that appeal to its normative priors rather than the normative priors of those who disagree? On first blush, it seems that Rahimi does not give that method up, but a big question will be how that method or how that approach is applied in ways that either cabin, or let loose, the discretion of the justices.

Brian Lehrer: As you said a minute ago, this Rahimi domestic violence gun rights case was voted on 8 to 1 by the Supreme Court. All right, listeners, you want to draw straws? Who do you think the one was? Was it Thomas or was it Alito? Was it Thomas, or was it Alito? It was Thomas, but reading from SCOTUS blog here, it says, "The court holds that when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment." Roberts, the Chief Justice wrote, "Since the founding, our nation's firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms as applied to the facts of this case, section 922(g)(8), it's comfortably within this tradition." All right. That's one major case down. We'll continue with University of Chicago Law, Professor Aziz Huq, in a minute.

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Brian Lehrer: Brian Lehrer on WNYC, as we continue with Aziz Huq, professor of law at the University of Chicago, an author of the forthcoming book, The Rule of Law: A Very Short Introduction, as we talk about Supreme Court cases in which rulings have been handed down this week, and those to come, as well as the new Louisiana Law requiring the posting of the 10 Commandments in every publicly-funded classroom in the state, and the constitutional implications of that. We can take your phone calls and texts on any of these things for a few minutes at 212-433- WNYC, 212-433-9692.

Professor Huq, that gun rights case we are now told was the last decision of the day. Here we are on what, June 21st? No presidential immunity decision, no Fischer, January 6th obstruction case, no Chevron doctrine case, whether the courts can review federal agency rules. So many implications from that. No social media cases on whether they can remove false content. The Moyle Idaho abortion rules case, no decision. [chuckles] I'll ask you what I asked just before we heard about the gun rights case coming in. What's going on?

Aziz Huq: The court is moving more slowly than it has done in previous years, even though it has a relatively small number of cases. My recollection is that there are 66 merits case on this year's docket, although I might be incorrect about that number. It's a relatively small number in any event. I think a really cynical take on this, which it's not possible to rule this out, but I don't have evidence for it, is that the Supreme Court or the conservative justices are in particular slow walking the presidential immunity case because slow-walking that helps the former president and slow walking that case in that case alone would look really, really peculiar. Therefore, many other cases are being slow walked at the same time. There's no evidence that that is the case.

The one thing that I would observe is that in the Trump ballot case, Trump v. Anderso,n, there is an extraordinary passage in the opinion of Justices Sotomayor, Kagan and Jackson, where they accused the majority in that decision of going out of their way to insulate not just the court from politically controversial cases, but to insulate a particular candidate from challenges to his eligibility for the presidency. That's a very unusual and personal accusation to make in the text of a Supreme Court opinion. I don't think it has received as much attention as perhaps it's warranted, but at least it's some signal that behind the scenes there's some quite high level of tension over Trump himself among the justices.

Brian Lehrer: Ultimately they vote. If they get five votes, then they have a decision. Why isn't it resolvable in that way after a certain point, even as they disagree emotionally, passionately, legally with each other?

Aziz Huq: Even if they're five votes for a particular position, even if there's a justice who has drafted that majority opinion, there are other justices who can draft either concurrences or dissents. The pace at which the opinions actually come out depends upon a collegial agreement about allowing everybody their time to draft concurrences dissents to respond to those concurrences and dissents in a majority opinion. There is an internal working process that entails give and take between justices who disagree in order to come up with the finished PDFs that get released on the morning of decision day.

Brian Lehrer: Right. Do you think that they might not release the immunity decision until July? Usually, the term ends on or about the last day of June, or the last Friday of June. There's no requirement that they end by then, but it's extremely unusual for them to go into July. I'm just thinking about the theatrics of this, and tell me if you think they even take this into account at all. Next Thursday and Friday would be the next presumed decision days. They could add some earlier in the week, but typically it would be after today, next Thursday and Friday.

Thursday night is that presidential debate, and I would think that they don't want to release the presidential immunity decision into the teeth of that, either the morning before it or the morning after it. Maybe they don't care at all.

Aziz Huq: I think it's really hard to know. As I read the calendar, they've scheduled a decision day for Wednesday, which I don't think is that much different. It's not clear to me that they think of-- they certainly think of the immunity decision as shaping the presidential race. I think it's hard to do otherwise. I certainly think the timing of that case, especially in contrast to the way that the court dealt with the presidential ballot eligibility case, is really striking and I think suggests a willingness to accelerate the court's workings for Trump, and a willingness to slow it down again to Trump's advantage.

Whether that translates into something around the presidential debates, I think is less clear. I think it's relatively unlikely that this ruling will say something about Trump personally. I think it's going to say things about the scope of whatever kind of immunity the court thinks exists, but the chances that the court excoriates Trump or implicitly pardons Trump for what he did on January 6th and the days leading up to it, I think that's very, very unlikely.

Brian Lehrer: Let's take a call on this. Shah in Brooklyn, you're on WNYC with University of Chicago Law Professor Aziz Huq. Hi, Shah.

Shah: Hello, Brian. Good morning. Good morning, Aziz. Respectfully, sir, the New York Times just ran an op-ed from Leah Lipman stating the exact opposite, that the court is blatantly with evidence nakedly slow walking Trump's case, and she cites President Nixon's resignation. From the time that the Supreme Court heard oral arguments to the time that he resigned, took 54 days, that was a rather momentous moment, I suppose, in jurisprudence and it took less than two months. This court is absolutely corrupt and is doing it nakedly in front of everybody's eyes.

Brian Lehrer: Shah, thank you very much. I guess, Professor, he's not convinced by the argument that it just may be that complex in this case for everybody to get their concurrences and dissents in order. Anything you want to add briefly to that skepticism, or did you read Leah Lipman's New York Times op-ed?

Aziz Huq: I did read my co-author's op-ed and I--

Brian Lehrer: Co-author?

Aziz Huq: I have enormous respect for Professor Lipman, she and I work on a legal casebook together. I respect her opinion. I think that she's looking at the same body of evidence that I am and that Shah is, and I think that both she and Shah, the caller, are willing to draw inferences from that evidence. I think I'm just being a little more cautious, but I want to recognize that the argument or the position that the caller just put on the table is absolutely a plausible inference that you can draw from the available evidence, the contrast between how quickly the court moves now versus how quickly the court moves at other times, and with respect to similar cases.

I think it is worth emphasizing that these are inferences from cop shows as circumstantial evidence rather than direct evidence of some kind of bad intent. I think we should be very careful always to distinguish between when we're inferring or guessing at the reason something is happening and when we know what those reasons are.

Brian Lehrer: Let's take one call before we run out of time on the Louisiana case, not before the Supreme Court, though. Maybe it will be Louisiana enacting a law this week that requires posting the 10 Commandments in all classrooms that have public funding, all public schools, and I guess other schools that get public funding at the state level. David at Old Bethpage, you're on WNYC. Hi, David.

David: Hello, Brian. I've called before. I wanted to bring up one more point about the version of the 10 Commandments they're likely to display, which is that in the original Hebrew, correct translation of the sixth commandment is, "Do not murder," murdering and slaying being two different-- what so commonly translated as slaying is what we frequently see in the Bible. It would make no sense for the Hebrews to be commanded, "Do not kill," and then go and fight wars with the Canaanites, the Amalekites, et cetera, at all the Holy--

Brian Lehrer: You can kill in self-defense.

David: Right. You can kill an unjust cause. You can't just kill randomly because you feel like it.

Brian Lehrer: Thank you very much. That's a detail, but I guess if it was in the original Hebrew, and I've certainly heard that before, I think I heard it in Sunday school when I was a kid, that it would translate as, "Thou shalt not murder" as opposed to "Thou shalt not kill or slay." I don't know that that changes anything from a legal perspective. Maybe it would start a different conversation in the classroom, but anything you want to say about that?

Aziz Huq: Again, I think what the caller, David, is identifying is that it's easy to think that there is just one version of the 10 Commandments, but in fact, because of the branching tree of religious development from Judaism to Christianity to Islam, then within Christianity, there have been splits from the very beginning of the church and the monophysite view taken by the Coptic Church, the reformation, the emergence of Lutherism and Calvinism, et cetera. There are many, many versions of religious texts, even ones that look as singular as the 10 Commandments.

For the state to pick one version among many, is for the state to pick one kind of Christianity over others. That's not an accident. When Christian nationalists today advance their vision of the country, they're not neutral as between different versions of Christianity. I think that that kind of sectarian preference is, even for those who are strongly emotionally and spiritually committed to their Christianity, I think there ought to be a real cause for concern and worry when their faith, but in this particular one form, is being enshrined and established by the state in classrooms.

Brian Lehrer: Can I get your quick take before you go on one other ruling from the court that came down yesterday? The Sylvia Gonzalez case, allowing a claim of politically motivated arrest to go forward. It occurs to me that maybe, you tell me, this case has potential implications for appeals by Donald Trump of his convictions because, as everybody knows, he always claims the court findings on him are politically-motivated.

Aziz Huq: I don't think that there's any connection between the Gonzalez v. Trevino case and Trump's New York case. The question in the Gonzalez case is, under what circumstances can someone bring a a civil rights case under a post-civil war era statute that allows people to seek damages for constitutional wrongs? That post-civil war statute has been interpreted to include all sorts of ordinary law, rules of tort, of the ordinary law of wrongs, in its application. The Gonzalez case is about the inferences that can be drawn under the ordinary law of torts with respect to a certain kind of civil rights action.

It's the same issue-- it's not the same issue, but it's in the same domain of issues as the other case that was decided yesterday, which concerns when can someone bring a malicious prosecution damages action under the Fourth Amendment. What is surprising about Gonzalez and the other case, which has a name that I can't quite pronounce is, is that the Roberts course has generally been hostile to civil rights cases. Here were two cases where the court was on relatively inconsequential details of how particular constitutional wrongs are alleged sided with the plaintiff. That's a little unusual, but the stakes in these cases are pretty small.

Brian Lehrer: Aziz Huq, professor of law at the University of Chicago and author of the forthcoming book, The Rule of Law: A very Short Introduction. Do you have a release date, by the way? Consider this a in advance invitation to come on the show for a book interview.

Aziz Huq: It's at the end of September, so in time for the rule of law to be on the ballot.

Brian Lehrer: For the rule of law to be on the ballot, you mean in the broad sense of the potential reelection of Donald Trump?

Aziz Huq: In the broad sense.

Brian Lehrer: Good. This is a date for then, but also because of your generosity of your time, this is a date for next Wednesday, I guess, now that you told me that that's going to be a Supreme Court decision day, in addition to Thursday and Friday next week with all these big cases still hanging out there. I'll talk to you then, and thanks very much for today.

Aziz Huq: Thanks for having me, Brian. Look forward to it.

 

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