Dunking On Trump's Lawyers Might Not Be The Win You Think It Is
Nov 11, 2023
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The podcast explores the potential impact of Donald Trump's legal woes and political trials. It discusses the historical significance of political trials, the challenges of determining appropriate venues for these trials, and the decentralized nature of the US legal system. The chapter also delves into the focus on the historical right to bear arms in a Supreme Court case and introduces the case of Zaki Rahimi, highlighting the controversial implications of his eligibility to possess a firearm.
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Quick takeaways
The defense lawyers in the trial resort to politically-tinged defense lawyering, shifting blame onto historical figures rather than addressing the modern implications of the case and avoiding responsibility.
The Supreme Court's reliance on originalism in the gun rights case fails to account for changing social and political landscapes, risks perpetuating social hierarchies, and raises concerns about the effectiveness and fairness of addressing modern problems.
During the oral arguments, the court's focus on historical analogs and interpretations of the Constitution overshadowed the severe domestic violence offenses committed by the defendant, raising concerns about the court's ability to provide justice for victims and society.
Deep dives
The problem with politically-tinged defense lawyering
The defense lawyers in the trial are resorting to politically-tinged defense lawyering, focusing on historical arguments rather than addressing the facts of the case. This allows them to distance themselves from the clear consequences of their client's actions and avoid taking responsibility. By invoking originalism and the intentions of the founding fathers, they shift the blame onto historical figures rather than addressing the modern implications of the case. This strategy not only diverts attention from the actual facts of the case, but also undermines the ability to hold domestic violence offenders accountable.
The dangers of originalism in the gun rights case
The Supreme Court is considering a gun rights case using the Bruin test, which relies on originalism as the basis for analysis. However, the test fails to account for the changing social and political landscape, as well as the need to address modern issues like gun violence and domestic partner violence. Using a strict interpretation of historical analogs, the court risks perpetuating social hierarchies and disadvantaging marginalized groups. The focus on historical intent rather than the present realities of gun violence raises concerns about the effectiveness and fairness of the legal system in addressing modern problems.
The disconnect between the court's questioning and the facts of the case
During the oral arguments, there was a noticeable mismatch between the focus of the court's questioning and the actual facts of the case. The justices seemed more interested in debating historical analogs and interpretations of the Constitution, rather than addressing the severe domestic violence offenses committed by the defendant. This disconnect raises concerns about the court's ability to effectively address and provide justice for the victims and society as a whole.
The limitations of originalism in shaping legislation
The reliance on originalism as a guiding principle in interpreting the Constitution and shaping legislation raises questions about the ability of elected officials to respond to modern problems. The narrow focus on historical intent restricts the ability of legislators to enact laws that address current societal needs and protect the well-being of their constituents. The constraints imposed by originalism can hinder meaningful progress and lead to a lack of responsiveness to the pressing issues of the present.
The need for a reevaluation of originalism
The gun rights case and the broader debate surrounding originalism highlight the need for a reevaluation of this legal framework. Originalism has the potential to perpetuate inequality, limit legislative action, and prioritize historical intent over modern realities. Finding a balance between historical understanding and contemporary needs is crucial for a legal system that can effectively address the complex challenges of today's society.
If we are to take Donald J. Trump seriously (and at this stage it’s surely a fool’s errand not to), then the rule of law and democracy are on the line if (when) he becomes the Republican nominee for 2024. What role will the former President’s many many legal woes play in the coming months? A clearer picture is emerging after testimony for the prosecution wrapped in the civil fraud trial against Trump and his adult sons in their roles at the helm of the Trump Organization in New York City this past week. That picture is of a political candidate claiming to be the victim of an unprecedented legal witch hunt. In other words, as the trials proceed within the courts, a political trial is underway on the courtroom steps, at campaign stops, and in the media. On this week’s show, Dahlia Lithwick is joined by Professor Eric Posner, of the University of Chicago Law School, author of The Demagogue's Playbook: The Battle for American Democracy from the Founders to Trump, to discuss political trials - their history and their risks.
Next, Dahlia is joined by Madiba Dennie - attorney, columnist, professor, and deputy editor at Balls and Strikes - to recap oral arguments in United States v Rahimi, the big gun case considering whether adjudicated domestic abusers have a right to keep and bear arms.
In this week’s Amicus Plus segment, listeners will have access to an extended version of Dahlia’s interview with Madiba Dennie, analyzing whether election results are moving some of the justices away from the all you can eat originalism buffet.