Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning everyone. If you started your weekend thinking the big stories of last week were the indictment of Donald Trump, the Supreme Court election in Wisconsin, and the expulsion of the two Black lawmakers from the Tennessee legislature, and hey, it's Good Friday, Easter weekend. Everybody's off except the essential service workers and the priests what else could happen? If that was your very reasonable thought process, late Friday afternoon, early Friday evening, well, you were wrong.

As most of you have surely heard, by now, a Trump-appointed judge in Amarillo, Texas then issued a ruling that would ban the abortion pill Mifepristone for all women, even in states like New York, New Jersey, and Connecticut, where abortion is legal. Then an Obama-appointed judge in Washington State issued a ruling that same night that contradicted the Texas ruling for 17 states. Connecticut is one of those a little bit more protected states now, but New York and New Jersey are not. Minnesota Senator Amy Klobuchar, a member of the Judiciary Committee, was on Morning edition today referring to the Texas judge.

Senator Klobuchar: He did a really weird thing. There's a six-year statute of limitations that covers when you can start appealing these things after they've been decided. This just hasn't been used in a way that he's used it before. Even the lawyers challenging it noted that they hadn't seen anything like this before. In the Fifth Circuit, which is yes, conservative, you could see them using something like that as a reason to at least stay this beyond the week so it doesn't take effect or in fact, ruling the other way. Then the Supreme Court, same thing.

Brian Lehrer: Supreme Court, same thing. Keep that in mind. It may become relevant in a matter of days. Democratic Senator Amy Klobuchar of Minnesota. Abortion rights even more on the brink. The Tennessee expulsions, Trump's incitement after indictment, who you're going to call Better Call Mystal. With us now Elie Mystal, the Nation Magazine's Justice correspondent, and he writes their column called Objection. He was the legal editor for Season 1 of More Perfect Radiolab series about the Supreme Court, some of you will remember. He's the author of the book, Allow Me to Retort A Black Guy's Guide to The Constitution, which is currently a finalist for this year's American Bar Association's Silver Gavel Award. Elie recently tweeted his thanks to all the incredibly bad Supreme Court decisions that made his book possible. Elie, thanks for coming on. As always, welcome back to WNYC.

Elie Mystal: Hi, Brian. Hi, happy holidays. I was the listener that you're talking about, man. I was well into my fish sticks on Good Friday when the Texas News dropped.

Brian Lehrer: Your article on this in the Nation is called the Zealot Judge has Ordered a Nationwide Abortion Pill Ban. To be blunt, as you were well into your fish sticks, you speculate that the fact of this ruling coming on Good Friday was not a coincidence. Take us there.

Elie Mystal: Yes, because the judge in Texas, Matthew Kacsmaryk, is a religious wingnut. He was elevated to the Supreme Court by Donald Trump, in part because of his religious zealotry against abortion. He had been a longtime anti-abortion, anti-gay, anti-LGBTQ lawyer who worked for Christian-aligned causes to try to enforce a certain level of bigotry towards the LGBTQ community and also against abortion rights. That's why he was put on the bench. Then when you read his decision in this abortion case what you see is a bunch of-- It's going to sound like I'm being hyperbolic and I'm not, but what you see is wackadoodle fake science and Christian theology laced through his decision.

Just in the question of how these people get to court in the first place. You had Klobuchar on talking about how this technically should be violative of the statute of limitations. Man, there's no good legal argument for why a conglomeration of Christian interest has a right to sue the FDA at all.

Brian Lehrer: Listeners, some of you are no doubt bursting with some of this. We will open up the phones right away for your reactions too. Also, questions about the Mifepristone rulings questions definitely welcome, because this is a very confusing legal situation that we hope that Elie can unpack for us. 212-433-WNYC, 212-433-9692. You can also call about the Tennessee expulsions, the Wisconsin Supreme Court election, which is actually relevant to the abortion issue, Trump's incitement after indictment. That's probably enough for Elie, I usually say, or anything else relevant to Elie Mystal, justice [unintelligible 00:05:18] that's probably enough.

Or tweet @BrianLehrer. Let me follow up on where you were just going because I think you were pointing out, I read your article that the judge's ruling that says, "Women harmed by Mifepristone might be too traumatized by their abortions to bring the suits themselves. Therefore, it doesn't matter if women aren't filing this suit, but rather an anti-abortion activist group is." How sexist and patronizing is that is the question I really want to ask. The question I have to ask is, what's the legal basis of that idea?

Elie Mystal: Again, it's bunk. It is wackadoodle. Look, most people can understand that you can only sue when you have been harmed. That's a basic law 101 principle. You can only sue the government if the government has done something to you. If you're going to argue that the abortion pill is somehow illegal or unconstitutional or whatever, obviously you would want somebody who claims to be harmed by the abortion pill. They didn't have that, all right? They didn't have people who had, had medically induced abortions willing to challenge the FDA on this.

This fake Christian group, this fake doctor group, they call themselves the Americans for Hippocratic Medicine, it's just a front organization for a lot of the Christian conservatives causes that we've seen running around our legal system before. They sued on behalf of women who were harmed, which they couldn't find any, by the abortion pill. The judge allowed them to sue, yes, Brian, on this theory that women who actually got chemically induced abortions might be too traumatized, ashamed, or regretful to effectively sue the government. That was their legal argument to give this group standing.

When you say is there precedent for this? This is not something that happens. This is not a normal thing that happens and again, you already had Klobuchar on, nor is suing the FDA. Remember folks, the abortion drug that we're talking about Mifepristone, this was approved in 2000. This is a 23-year-old FDA approval of medicine that they're challenging two decades later. There's no precedent for that. There's relatively no precedent for any judge anywhere overturning the scientific decision made by experts at the Food and Drug Administration about whether or not something is safe.

You can imagine some other judge in Texas ruling that kale can't be sold in stores because we don't like the seaweed. That wouldn't be a thing but it is a thing when they have the opportunity to control the bodies of women and pregnant people.

Brian Lehrer: Gee, I guess and again, the question I would like to ask is if he can make an argument in an actual court ruling that the women who theoretically could have been harmed by Mifepristone were too traumatized to bring a case on their own behalf. Couldn't we make an argument that many conservative evangelical men are too traumatized by seeing women having equal rights in order for the men to be rational under the law? Isn't that an equal and opposite argument that somebody could bring into court?

Elie Mystal: Can I make the argument that children are too dead from gun use in this country, that they can't bring the suit against the NRA so I'll do it? Why can't I make that argument? Of course, the reason why we can't make these arguments is because conservative judges are the ones in charge and so they're only going to accept the arguments that promote their pet causes and wackadoodle bigoted theories, and this is one of them. Again, there is a reason why conservatives supported Donald Trump. There is a reason why Donald Trump put these judges on the court. He didn't do it for nothing.

These are the outcomes that these judges were designed to make. This is why they have their jobs and Kacsmaryk is just one of the more reactionary ones. Remember he was handpicked by force-birthers to do this work. Texas as a federal system, has a weird system, and most federal systems like you sue in the federal court in New York or even state court in New York it's a random selection of judges, Donald Trump's learning that right now, that get pulled out of a pot. In Texas, you get the federal judge that covers the little district or town where you file the papers as if it's 1878. If you file a law suit, a federal lawsuit in Amarillo, Texas, you are guaranteed to get Matthew Kacsmaryk, which is why they filed it there. Again, it's judge shopping at a very-- it's not even sophisticated, but just at a very bold level. They filed it in Amarillo so they could get the judge who would accept their crazy arguments and then do the thing.

Brian Lehrer: One could say, we have Trump-appointed versus Obama-appointed judges making opposite rulings. We haven't even talked about the one that came later Friday night in Washington State protecting the rights to mifepristone in 17 states. Is it different interpretations of Federal Law or just that one supports abortion rights and the other doesn't, which could contribute to people's disillusionment with the courts as just another arm of partisan politics rather than something that's supposed to be outside of that realm?

Elie Mystal: I disagree with the premise of your question because what Kacsmaryk did was not an interpretation of Federal Law, at least it's not a valid interpretation of Federal Law. This is not a situation where two reasonable people coming from opposite sides of the political spectrum may disagree on the finer points of corporate finance. No, this is, are women capable of suing for themselves? Yes. No. This dude said, no. Can you sue the FDA 20 years after a drug? This dude said, yes. That's not an interpretation, that is an outcome that this man wanted. In terms of what happened in other courts, in terms of what happened in Washington, yes, this is an attempt, I think, by the Washington federal courts to make a directly contradictory ruling. Why? To force the Supreme Court to intervene.

Now, this is where it starts to get a little bit legal technical, so I'm going to try to keep people out of the weeds. Basically, we have a system where lower court federal judges do have the power to issue nationwide injunctions, and if you don't like that, remember that's one of the reasons why there's no wall. This happened to Trump, it happens to Biden. This is the system. Whackadoodle rulings are supposed to be kind of quickly appealed to the Supreme Court. On there, and we've talked about this before, Brian, the shadow docket.

The emergency appeals process is there for basically death penalty cases and situations when a lower court judge has made an egregious error. This is what the Supreme Court does.

If the lower court judge is a liberal, or appointed by Obama or whatever, and makes a ruling against a conservative cause the Supreme Court will fast-track that on the shadow docket and strike it down within a couple of days until there is a full hearing on the merits.

If this decision is made by a conservative judge against liberal interest or to promote conservative causes, the Supreme Court might well get around to hearing that case, but years later, because they will not take it on their emergency shadow docket, they will slow walk it so that the awful opinion lasts for a period of time. That's what we saw in Texas with SB 8, the Texas Bounty Hunting Law. That was a horrible decision. Supreme Court should have overturned that immediately and said they slow walked it so it was relevant until the Supreme Court could get around to revoking abortion rights outright in Dobbs v Jackson Women's Health.

The points of the Washington decision is to create an immediate, what's called circuit split. Now you literally have two different laws, not depending on where you live, but depending on who you listen to. That's an intolerable legal situation and the thought is that this will force the Supreme Court to make a ruling on Kacsmaryk's abortion bill decision right now. They can't slow walk it, they're going to have to get in the game, this week, next week to give just some clarity to what the law is.

Brian Lehrer: Ann, in Jackson Heights, you're on WNYC with the Justice correspondent for The Nation, Elie Mystal. Hi Ann?

Ann: Hi. Morning. Sorry, I'm a little bit nervous, so I'm going to try and get through this.

Brian Lehrer: It's all right. We're all friends here. [crosstalk]

Ann: My question is essentially why states like New York, New Jersey, and California were not part of the Washington case because it seems to put women and pregnant people more at risk. Was this just an oversight by the AGs or the governors and then secondarily I thought of this when I saw Mark Levine's tweet about how the [unintelligible 00:15:22] hospitals in New York City were going to continue to fight for women and then after this they do mifepristone only.

It got me thinking can states just ignore and do the who recommended mifepristone and just ignore the ruling without any ramifications so that women and pregnant people in the states that were not part of the case are protected. I'll take my answer off the air.

Brian Lehrer: Those are great questions. In fact, Alexandria Ocasio-Cortez was talking about this idea of just ignoring the ruling on CNN yesterday, and we're going to play that clip coming up. Elie, what's the answer to Ann's first question about, why weren't New York and New Jersey, and California in on the more liberal side of the suit to protect mifepristone?

Elie Mystal: Yes, it's actually more of a quirk in how the laws are written, I think than an oversight by New York and California. They didn't join the suit because the law at issue that was basically whether or not the FDA can be forced to remove drugs, blah, blah, blah, blah, blah. That's not really an issue in New York and California. They didn't join the suit. You could argue that perhaps New York and California did not fully anticipate what this guy in Texas would do. I feel it's less of an oversight and it's a quirky thing about how that law worked and you can't-- hindsight's a bit 2020 on that scale.

There was a good argument that Kacsmaryk, even though I would argue always say that of course, Republicans are going to do, whatever the worst thing there is to do, assume that a Republican judge is going to do it and govern yourself accordingly. There were reasonable arguments that he would never do it because it's so crazy for him to have. If you believe those arguments, you wouldn't take that threat quite as seriously as others did. In terms of her second question, like you said, I think you want to play the--

Brian Lehrer: Yes. I'll play that right now. Listeners for the 98% of you who did not spend your Easter morning watching the Sunday morning talk shows, here's an exchange between New York City Congresswoman, Alexandria Ocasio-Cortez and CNN's Dana Bash on CNN State of the Union yesterday. The congresswoman is floating the idea here that the FDA could just ignore the Texas judge's ruling and continue its approval for mifepristone. Listen.

Congresswoman Alexandria Ocasio-Cortez: The Trump administration was ordered to fully reinstate the DACA program, and they, in a complete defiance, did not do that. The courts rely on the legitimacy of their rulings, and when they make a mockery of our system, a mockery of our democracy, and a mockery of our law, as what we just saw happen in this mifepristone ruling, then I believe that the executive branch, and we know that the executive branch has an enforcement discretion, especially in light of a contradicting ruling coming out of Washington,

Dana Bash: Should that apply if the Supreme Court upholds the Texas judge's decision?

Congresswoman Alexandria Ocasio-Cortez: I think one of the things that we need to examine is the grounds of that ruling, but I do not believe that the courts have the authority over the FDA that they just asserted.

Brian Lehrer: Wow. Dana Bash with AOC. Elie, do you know the DACA president she's referring to there? Do you think ignoring such a ruling would be right? AOC kind of backed off a little bit there would asked if that should also apply to a Supreme Court ruling, not just this one federal judge in Amarillo, Texas, but she didn't really back off.

Elie Mystal: [chuckles] No, because that's not how AOC rules. Look, again, there's a danger of legal literary here that I'm trying to avoid, but the slight difference between the DACA situation and this one, I think makes this one a much stronger case for the federal government to ignore it. The DACA situation was, the court said, reinstate DACA and Trump was like, "No." He had no legal reason for saying no, he just refused to do what the court ordered him to do, was like executive nullification of a ruling. I think that is bad, or at least I think that is dangerous. We get into a dangerous world when people are simply-- executives are simply ignoring court rulings.

While that seems to would be good in certain situations, you can only imagine what states like Texas, what people like Governor Abbott or Ron DeSantis would do if they felt empowered just to straight up ignore rulings they don't like. You don't have to go there for the FDA to ignore the Kacsmaryk ruling. Because in the abortion pill situation, there is no argument really that Kacsmaryk and the federal district court in Texas has jurisdiction over the FDA approval process.

Again, I keep saying there is only the most ridiculous argument that they have court jurisdiction over an FDA approval process that happened 23 years ago. This is different from saying like, "Just ignore the court and if you don't like it," this is saying the court has no standing here. The court has no grounds here to determine for the FDA what it can approve or not.

You can argue it has standing to determine what can be sold or not. You can say that Kacsmaryk has jurisdiction over CVS and Walgreens. The FDA approval process is the FDA approval process. It can approve or not approve whatever it likes. There's not a lot of grounding here to say that a judge can backseat drive the FDA approval process, especially when the -- this guy, again, he grew up as a Christian conservative lawyer.

He ain't a scientist. He's not a doctor. He doesn't know anything. The experts at the FDA do. Again, I keep saying, you can imagine other things that the FDA approves or disapproves think about smoking. The FDA can approve cigarettes, then people can sue the cigarette companies and we can have a lawsuit, and the cigarette companies going to have to pay, but the court doesn't say, and so the FDA must outlaw to back-- That's not that kind of thing. Ignoring this ruling, I think is actually in a different and stronger category than ignoring, than what Trump did with DACA.

Brian Lehrer: Rosa in Perth Amboy, you are on WNYC with Elie Mystal, justice correspondent for The Nation. Hi Rosa.

Rosa: Hi. Big fan of your show. I just have to say before I ask my question that I absolutely love-- I'm sorry I didn't catch the speaker's name. I love your energy. I love how enraged you are because I am, and I have no way of showing it. I'm just glad that you're on the radio talking about this as passionately as you are.

Brian Lehrer: His name is Elie Mystal, M-Y-S-T-A-L. He's justice correspondent for The Nation. For anybody who's interested, he's the author of the book, Allow Me to Retort, which is up for a Silver, whatever they call it, award from the American Bar Association. Rosa, go ahead.

Rosa: Thank you. I'll be sure to look into it. My question is, should everything go wrong, the worst, I guess, how long would it take for mifepristone to be illegal from, I guess like, if there was a ruling on it, making it illegal to it being completely off the streets or out of pharmacies rather?

Elie Mystal: Hi, Rosa. Good question. I don't know. What I can tell you is that as of now, Kacsmaryk stayed his own ruling for seven days, basically to give people an opportunity to appeal the Department of Justice on behalf of the FDA. Has already appealed to the Fifth Circuit. Unfortunately, the Fifth Circuit is ridiculously conservative. It's the most conservative appellate court in the country. I don't think there's going to be a lot of success there. If the FDA loses at the Fifth Circuit, then they will appeal the Supreme Court. Then we're in that shadow docket emergency appeal situation where the court will have an option to either take the case in a quick emergency faction or slow walk it for a year or two, I believe, based on the Washington decision, that they will take it quickly.

Then we will see what the Supreme Court does. If they rule against the abortion pill, that's when we get into really these questions of should the FDA follow? Will pharmacies follow? Will doctors follow? I think it's very likely that if they lose at the Supreme Court, either quickly or after a long time, you will see most come like this. You'll certainly see the manufacturer of the drug pull back because they don't want to get sued.

I think you'll see most doctors stop prescribing it, and you'll certainly see most pharmacies stop carrying it. I don't know when all of that happens, but it will start the process of taking this away for sure, if the Supreme Court rules against them. As Brian sign posted in his open, we don't know that the Supreme Court is going to go for this. Again, I keep emphasizing how just ridiculous this man's ruling is. While yes, conservatives make ridiculous ruling, religious wing nut conservatives make particularly ridiculous rulings, all of those people are on the Fifth Circuit. There's not going to be a whole lot of relief there.

We know we have certain people of that persuasion on the Supreme Court who also have put their religion ahead of the law in the past. Justices like Sam Alito, the author of Dobbs v Hole Woman's Health. Clarence Thomas bought or not, Clarence Thomas also agrees with the kinds of wackadoodle theories that Kacsmaryk does. I just counted to two and to win, you gotta count to five. I do not think that this ruling is something that John Roberts will go for.

Look, I am no fan of John Roberts. I don't think that he is moderate in any way. The difference between John Roberts and the other conservatives is that John Roberts wants to bend the law to Republican principles as far as he can without breaking it. The other conservatives don't care about breaking it, but John Roberts does care about breaking it. This is the decision that breaks the law, that breaks down normal legal processes, including issues of standing, including issues of jurisdiction that we've already talked about.

I don't think that Roberts goes for it. It's three liberals Sotomayor, Kagan, and Ketanji Brown Jackson. That's three. Roberts, that's four. Then I just got to get one more. Can I get Kavanaugh, who likes to think of himself as more moderate on some of these issues? Can I get Gorsuch who is-- Gorsuch is not as against abortion as some of his other Christian conservative colleagues. He doesn't like the government and doesn't think that the administrative state deserves to exist, which is problematic on its own accord. I don't know if he has that crusader fire in the belly to do this like a Sam Alito.

Roberts might be gettable there. I don't think Barrett's gettable, but some of the people that I talk to think Barrett's gettable. You only need to get one of Kavanaugh, Gorsuch, and Barrett to join Roberts and the liberals and I think the Supreme Court doesn't go for this particular version of the abortion pill, nationwide abortion pill ban. I do think there's hope. I just don't know to Rosa's question the timeline on that hope. I can't-- it eludes me.

Brian Lehrer: Rosa, thank you for your call. When you talk about the administrative state and somebody like Gorsuch, was it Gorsuch or Kavanaugh? I forget. Not even believing the administrative state should exist it--

Elie Mystal: Yes, that's Neil.

Brian Lehrer: Here's another Amy Klobuchar clip for Morning Edition today because she points out, it's not just the FDA's opinion that mifepristone is safe in addition to being legal. Listen.

Amy Klobuchar: I look at the fact that the American Medical Association, which isn't like a radical group, they actually said immediately in a very strong statement, there is no evidence that people are harmed by having access to this safe and effective medication. We have got decades of proof to support that statement.

Brian Lehrer: Senator Klobuchar on Morning Edition. Doesn't the judge, or wouldn't the Supreme Court need to look at the premise that there is actual harm being done to women using the drug over the 20-year legal existence of this drug in the United States? Maybe even compare it to the harms physically to women, the risks to women, according to the record of pregnancy and childbirth compared to mifepristone, especially pregnancy, and childbirth that would be forced upon them by the state. but at least the AMA and other medical experts assessment that in the real world, even if the FDA did violate some procedural loophole, something in the year 2000, that the real world shows that this is actually safe.

Elie Mystal: You don't even have to go to childbirth. Mifepristone is more safe than viagra.

Brian Lehrer: [laughs]

Elie Mystal: The drug that can be used to end an unwanted pregnancy is more safe than the drug that can be used to cause an unwanted pregnancy. I would like somebody to note that. My problem--

Brian Lehrer: I saw that in your article too, in The Nation, but what are you comparing there actually?

Elie Mystal: There were statistics that I just pulled from Google, from a CNN article, I think, saying that five people out of X will die from mifepristone and eight will die from viagra out X. Again, both drugs are extremely safe, but here's my problem. Clarence Thomas in his most recent opinion on liberalizing gun laws in New York State Rifle Association v Bruin, he wrote that judges should not, and I repeat, should not look at statistics and data while making their decisions, because they should just be governed by the law, not the actual facts on the ground.

He is literally in a see no evil, hear no evil mind space when it comes to rulings. I know they're at least three or four judges on the Supreme Court that agree with him. The objective fact that mifepristone is safe might not matter to a number of justices on the Supreme Court. Moreover, let's go back again to Kacsmaryk's decision. Where did he find that mifepristone was unsafe?

Because, again, all of the real medical evidence says that it's entirely safe. As you point out, Brian, not just here, but globally, mifepristone has been legalized around the world and been shown to be safe. Kacsmaryk said, and again, can't make this level of paternalism and sexism up, Kacsmaryk said that the FDA did not fully consider the psychological effects of having a successful abortion on the women and pregnant people who take the drug.

Brian Lehrer: It might be relief in a lot of their cases.

Elie Mystal: Where are your stats? How do you find the data on whether or not a person who terminated their pregnancy is sad or regrets it? There is no data. In part, because many of them don't. You see my problem?

Brian Lehrer: Yes.

Elie Mystal: Their argument is so nebulous that it's actually difficult to hit it with facts because it's not fact-based, it's vibes based, It's-

Brian Lehrer: Theocracy.

Elie Mystal: -Christian conservative outcome based. It's not grounded in science or data or facts.

Brian Lehrer: We'll continue in a minute with Elie Mystal. Stay with us.

[music]

Brian Lehrer on WNYC as we have a few minutes left with Elie Mystal, The Nation magazine's justice correspondent. Some of you remember he was the legal editor for season one of More Perfect Radiolab series about the Supreme Court. He's the author of the book, Allow Me to Retort: A Black Guy's Guide to The Constitution. Those of you who are new to Elie Mystal, hearing him this morning, and want to hear more about his book, he was on the show for a book interview for that. You can go and look it up and listen to the download.

The abortion pill rulings, we should say before we go, were just the latest bit of high legal and political drama last night, and not even what we originally booked Elie to talk about today. We know that several states blocked parents of trans kids from giving permission for puberty-delaying drugs. The Wisconsin Supreme Court election flipped control of that state's high court to the liberals for the first time in 15 years, apparently, largely because the people in that swing state won abortion rights and the Tennessee legislature expelling house members Justin Jones and Justin Pearson for protesting for gun safety laws on the house floor. Here's Justin Jones yesterday on NBC's Meet the Press.

Justin Jones: I think the most resounding message we're hearing from the White House and across the world and people across this nation is that this attack on democracy will not go on unchallenged. That the Tennessee House Republicans' attempt to crucify democracy has instead resurrected a movement led by young people to restore democracy, to build a multiracial coalition. We are in the midst of a third reconstruction here, beginning here in Nashville.

Brian Lehrer: Justin Jones also using Easter for a few analogies there. Elie, there are so many layers to the Tennessee expulsions. Politics, race, lack of precedent for expulsions on those flimsy grounds when people had only been expelled before for bribery or sexual misconduct. How are you reading it?

Elie Mystal: There's one metric that ties the room together. The rug that ties the Tennessee room together is what Republicans do with power. One of the virtues of the Republican Party, I got to say at this point, Brian, is that you get what you pay for. They promise to do the anti-democratic stuff, and when they get the opportunity, they do it. They promise to do the bigotry, when they get the opportunity, they do it. They promise to do the sexism, when they get the opportunity, they do it. They do what they say they're going to do.

The Tennessee House is just the latest example of Republicans using raw power, just raw straight-up power to do the racism. I was shocked and I am rarely shocked by racism. Been a Black man in this country for 44 years. Very little surprises me anymore. I just caught my breath when they expelled the two Black men, didn't expel the white woman for the same thing, and then argue with straight faces because the Black people protested too loudly, whereas the white lady apologized.

I thought they would just have to expel the white woman just to keep the beard on, just to keep the appearance of equality on, but no, no, no, no, no, no, that's how bold the Republicans have gotten that they feel they can do the racism just right out in the open and then tell you that it's really about a bullhorn. It was shocking to me, but as Justin Jones pointed out, as Justin Pearson, the other young Black man that was expelled has pointed out, you make a martyr, that cuts both ways.

What they have done, perhaps inadvertently, is raise these two young men to a national prominence that no ordinary State House legislative rep would normally be entitled to. They usually don't invite those people on meet the press. They are now. I think Pearson all over the weekend already announced that he's going after Marsha Blackburn, the US Senator from Tennessee. Tennessee is a hard district to win, just ask Al Gore.

The point here is that they have raised the profile of these men and they've raised, I would hope, the profile of their cause, which let's not forget, was trying to stop the gun lobby from killing children in school. It's not like these brothers are out here protesting, I don't know, they [crosstalk]--

Brian Lehrer: This was another thing that jumped out at me from the expulsions, that if people are going to make a case about anybody being traumatized and giving them a little bit of leeway, this was after the Nashville School shooting that killed three 9-year-olds and three 60-year-olds. To have an emotional outburst that maybe includes a bullhorn by your elected representative from Nashville on the floor of the Tennessee House, and to throw them out for that, there's just no rope there.

Elie Mystal: Brian, there's a lot of rope there. There's a lot of modern rope there. You got to also remember, Tennessee has a history with this. This is the same state that tried to make it legal for you to run over protestors with your car if they were blocking your way in response to Black Lives Matter protest. Tennessee is not hiding the ball right now. The question is whether or not there are enough White Tennesseans to ally with the people of color in Tennessee to take down the Republicans in the state.

So far, and I mean historically so far, the answer has been no. We'll see if there are white citizens in Tennessee that can look at what they have become, that can look at what they are supporting, can look at who speaks in their name and say enough is enough. I am not hopeful that that will happen, but I'm also a pessimist, so I hope I'm wrong.

Brian Lehrer: Elie Mystal, I know a lot of our listeners appreciate your Harvard Law School-educated brain and all the analysis this morning, but also the catharsis you provided to many in these last 40 minutes. Thank you for coming on with us.

Elie Mystal: Thanks so much for having me. Have a nice one.

 

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