Amicus on what it feels like to be the legal representative for the resistance.

The Supreme Court Term RBG Is Calling “Momentous”: An Amicus Podcast Transcript

The Supreme Court Term RBG Is Calling “Momentous”: An Amicus Podcast Transcript

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Oct. 19 2017 1:41 PM
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A “Momentous” Supreme Court Term?

Read what the ACLU’s national legal director told Slate’s Amicus podcast about the high court’s fall term.

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This is a transcript of the Sept. 30 episode from AmicusSlate’s podcast about the Supreme Court. These transcripts are lightly edited and may contain errors. For the definitive record, consult the podcast.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Dahlia Lithwick: Hi, and welcome to Amicus, Slate’s podcast about the Supreme Court and the law. I’m Dahlia Lithwick. I cover the courts for Slate and this coming week brings the opening of the 2017 term at the highest court of the land.

This is a term that promises to be one of the most consequential you’ve seen in a long, long time. On the docket, we have cases that will determine the future of our voting rights, partisan gerrymanders, class action lawsuits, the civil rights of gay couples, the president’s travel ban, the future of public sector unions, and more. So, at a speech last month, Justice Ruth Bader Ginsburg used the word “momentous” to describe what’s coming down the pike, and I don’t think she was exaggerating.

So, it is with some delight that this week we turned to David Cole. He’s the legal director of the American Civil Liberties Union and I think the busiest man in America and he’s here with us to preview some of these cases and to give us a little bit of a sense of the state of civil liberties in the country in Trump’s America. Of the cases on Trump’s docket, so far the ACLU is already involved in five, that number is likely to grow. David’s fantastic book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, is just now out in paperback. It serves as a bracing reminder that the courts alone do not make law, we help them. So, David, it is a joy to welcome you to the podcast.

Cole: Thanks for having me, Dahlia.

Lithwick: So, to be clear, this country has witnessed a sea change from last October to this one. Now, we have nine justices. Last term we had eight. Now, we have Neil Gorsuch. I think a safe vote for a lot of Trump’s agenda and whereas the last term saw the court saying, “We don’t want to take any blockbuster cases. This year, there’s no blockbuster case that’s not on the menu.” So, in case after case, David, it seems that you are facing off against this administration and I think that the ACLU keeps pledging, “We’ll see you in court, Mr. President. We’ll see you in court”—you’re about to. Can you talk a little bit about how weird it is to be the law firm for the resistance right now?

Cole: Well, it’s particularly strange for me because I took this job as the legal director last summer when the executive director, Anthony Romero, said to me, “Just imagine what it will be like running the ACLU Supreme Court practice under a liberal Supreme Court.” He said, “You’ve been practicing constitutional law for 30 years under a conservative court. What an opportunity,” and of course, at that time, we all thought we would have a liberal Supreme Court. Hillary would win. She would appoint Justice Scalia’s successor and, for the first time in four decades, there’d be a liberal majority on the court.

Everything changed on Nov. 8, and we are in defensive mode, to be sure, but we’ve taken up the fight at the ACLU and, in some respects, the job is more important than it ever was because it’s precisely when we have administrations like this one that civil liberties and civil rights are most under attack, that groups like ours and many others in a civil society that work alongside of are most needed.

Lithwick: Is it problematic for you in any way for the ACLU to be in such a strange combative posture with the administration? It’s not typically quite that stark. Is this different institutionally, or sometimes this is just what has to happen?

Cole: You know, we are a nonpartisan organization. We sue Democratic presidents as well as Republican presidents. We sued Obama and plenty of liberals are pissed off at us for doing that. We’re suing Trump in a number of places and now people and liberals are happy about that. It’s the nature of the work. If your purpose is to defend civil liberties and civil rights, then when an administration comes in that has very little respect or even, it seems, understanding, of basic civil liberties and civil rights, our work becomes much more important. But we do, it’s important at the same time that we maintain our nonpartisan identity where we defend the Bill of Rights. That’s what we defend, not the Democrats, not the Republicans, but the Bill of Rights.

Lithwick: Now, I have one precatory question before we dive into the cases, David, and that is, in many of the cases that we’re going to talk about today where the ACLU has brought litigation, we actually have the strange situation where the Justice Department under Trump has changed posture and, in some cases, breaking with decades of precedent. How do the courts feel about a justice department that tacks exactly in the opposite direction when a new president comes in? Is that something that is in any way on the court’s radar, “Huh, that’s weird. The Justice Department is on the other side,” or is that just not something that courts think about?

Cole: Oh, I think it’s something that courts definitely think about and I think it comes at considerable cost to the legitimacy of the Justice Department when they reverse course so dramatically in so many situations. There was just an argument in the 2nd Circuit earlier this week, an en banc argument on whether the prohibition against sex discrimination in Title VII includes sexual orientation and the EEOC was on one side of the podium arguing that the statute does cover discrimination based on sexual orientation and the Justice Department, for the first time, was on the other side of the podium arguing that it doesn’t. The first question the court asked was, “You put us in an odd position with the Justice Department and the Executive Branch basically on opposite sides of the podium.”

In two of our cases, the administration has really broken radically from precedent. In the Masterpiece Cakeshop case involving the gay couple that was denied a cake, the administration, for the first time in history, is backing a constitutional exemption to a nondiscrimination law. The Justice Department, one of its principal responsibilities is to enforce nondiscrimination law, as in Title VII, Title IX, Title II, these are laws that prohibit discrimination in employment, in public accommodations, in education. Their interest in is in enforcement, not in creating loopholes, and yet there they have supported the First Amendment loophole asserted by the baker who doesn’t want to bake the cake for the married couple.

Lithwick: So, let’s talk about Masterpiece Cakeshop. I think it’s one of the cases that has garnered certainly the most interest among nonlawyers because, as you say, this really does pit, just dissenters, on the one hand, against state antidiscrimination laws that are trying to protect, in this case, same-sex couples. Can you lay out for us just briefly why these cases all seem to get batted away at the appeals courts and indeed, in Masterpiece Cakeshop, the Colorado Supreme Court didn’t have a lot of patience for the argument that the cake bakers have a right to opt out of these neutral antidiscrimination laws? Can you lay out for us a little bit what this case is about and how it makes its way to the Supreme Court?

Cole: Yeah. It’s essentially about a gay couple that wanted to celebrate their wedding and went into the Masterpiece Cakeshop, a bakery open to the public in Denver, and as soon as the baker learned that they were celebrating a same-sex wedding, not an opposite-sex wedding, he turned them away without even discussing what the cake might look like or whether it would have any message on it —wedding cakes generally don’t. He turned them away and said, “I don’t bake cakes for same-sex weddings.”

The couple sued and said, “This is a violation of the public accommodations law in Colorado which applies to businesses that choose to open to the public and says you can’t discriminate with respect to your customers on the basis of sex, race, disability, sexual orientation.” The baker defends against this by arguing that he has a First Amendment right that the baking of the cake is an artistic act of creation, it should be protected by the First Amendment and because he should not be compelled to essentially speak in support of a wedding that he disapproves of, he should be able to discriminate against the same-sex couple. That’s essentially the claim and he claims that his objection is founded in religion and so he also asserts a free-exercise defense.

Lithwick: This is an example of this creeping speech masters everything, of a piece with how we’ve eviscerated campaign finance laws and other laws. You present it as a speech claim and you say, “Now, you’re forcing me.” He presents himself as a cake artist and says, “You’re forcing me to speak against my will,” and in a weird way, this is of a piece with this march of First Amendment claims that seem to eviscerate everything else.

Cole: You know, yes and no. I mean, I think it’s very unlikely that he will succeed in this. There have been First Amendment objections to antidiscrimination laws for decades and they’ve all lost. People objected on the basis of religion to integration orders and the courts rejected them out of hand. People objected to requirements that they hire women or that they allow African Americans to eat in their restaurants on First Amendment free association grounds and again, the courts rejected them out of hand. I think that’s likely to be the case here.

The basic question when the government is regulating conduct that is expressive, let’s give him that baking a cake can be expressive, the question is not whether the baker thinks he’s expressing something, the question is what’s the government regulating? If the government’s regulation is focused on conduct not on communication, then the courts apply a very, very lenient scrutiny because otherwise, anyone could assert a First Amendment objection to any law that they said they had a political, moral, ideological, or religious objection too.

Here, what is Colorado’s interest? Its interest is in assuring that all customers are treated equally without regard to their status. They don’t care whether the service that’s being provided is a widget or a cake or a photograph. They’re interested in prohibiting discriminatory conduct, not expression. That’s why I think the courts have batted away these cases below. It’s certainly worrying that the Supreme Court decided to take up this case. But I think at the end of the day, they’re likely to reject the claim.

Lithwick: I want to talk about voting, David. Our last show we talked a lot about Gill and partisan gerrymanders, but there are other voting issues, including voter purges. So, can you talk a little bit about voter purges and the ACLU’s relationship to the Ohio case, Houston vs. Philip Randolph?

Cole: Right. So, in this case, we’re co-counsel with an organization called Demos and we are challenging a practice that Ohio put in place that, essentially, knocks people off of voter registration rolls if they fail to vote. So, if you don’t vote in midterm, and more than half of the population does not vote in the midterm, Ohio presumes from the fact that you didn’t vote in the midterm that you must have moved out of the jurisdiction and therefore, you’re ineligible to vote. So, they then send you a notice in the mail and if you don’t respond to that notice and then you don’t vote in the next two elections, you’re knocked off of the rolls even if the Ohio’s own records demonstrate that you have not moved.

So, our client, Larry Harmon, a military vet, voted in 2008. He then sat out the midterm in 2010. Ohio assumed that he must’ve moved even though he was continuing to pay his taxes from his residence. He’s lived in his residence for 15 years. They said they sent him a notice. He doesn’t ever remember receiving a notice. Who checks their mail these days? He wasn’t excited about the 2012 election, didn’t vote in the 2014 election, and then tries to vote in 2015 on a marijuana initiative, marijuana legalization issue, he wanted to vote against it, and he’s told, “You’re off the rolls. You can’t vote,” even though he had never moved.

So, our argument below, supported by the Justice Department, is that under the Motor Voter Law passed 20-some years ago, Congress said specifically, “You cannot knock people off the rolls for failure to vote,” and yet that’s essentially what Ohio is doing here. We won below, but Ohio sought review. The court granted it and the Justice Department, which had supported us below and which had taken the same position we took in our case for the last 20-some years since the Motor Voter Law was passed under Democratic and Republican, administration under Trump, they reversed course and now have come in on the side of Ohio and say, “It’s perfectly fine to knock people off the rolls for failing to vote.”

Lithwick: I guess that inflects on this larger conversation we’re having right now nationally about vote fraud, voter ID, the commission that’s supposed to be ...

Cole: Right.

Lithwick: How do you persuade listeners that this stuff, although it seems like it’s eye-glazingly dull and process-y, this is actually incredibly important? I mean, I think Masterpiece Cakeshop that you just described, like, I get it, I get it. I understand these issues, it’s visceral. All this voting stuff seems like it’s so technical and probably won’t affect me. What do you tell folks when they’re thinking about what the ACLU is doing about why these voter cases are really signally important right now?

Cole: I think they’re critically important because, for the health of the democracy, you need to have people express their views. You need to make it easy for, encourage, facilitate, the democratic exercise of voting for one or more candidates and so many of the practices that we challenge, like the voter ID laws, like voter suppression measures like this purging effort, are designed to discourage people from voting, to stop people from voting, to stop the citizenry from expressing their preferences.

That’s completely inconsistent with the bedrock principle of democracy and yet, what we see time and again is one party seeing that the demographics of the country are going against them and instead of trying to alter their views to attract some of the younger people, some of the newer demographics in this country, to their side, they employ measures that suppress the votes and are designed to suppress the votes disproportionately of young people, of poor people, and of minorities.

I think in the long run that is a suicidal strategy for the Republican Party, but that’s the strategy that they have chosen. I think it’s also fundamentally anti-democratic and we are opposed to it because it’s fundamentally anti-democratic, not in the big D Democratic Party sense, but in the small d. This is what we are as a nation.

Lithwick: David, let’s turn to Carpenter vs. the United States. This is another one of those cases that I actually think may be the most important case of the term and I know I have now said that about seven cases in the past two weeks. But Carpenter is one of those cases that really requires the justices, some of whom are in their 80s, to understand, in a deep way, cellphones, and information, and privacy. This is not about constables and Justice Scalia’s construction of what would Madison think of surveillance. Can you talk a little bit about Carpenter and a little bit about whether you have a sense that the justices really understand the order of magnitude of the privacy incursion that’s on the line here?

Cole: Sure. I think in the long term, this probably is the most important. This and Gill, the partisan gerrymandering, are really, to me, probably the two most important cases of the term because Gill is really about the future of our democracy. This is about the future of privacy. It’s really about whether privacy survives in the digital age. The specific facts of the case concern cellphone location data, when you walk around with your cellphone. For it to work, it has to connect up to cellphone towers.

The cellphone providers, the companies that provide with the service, keep records of every time your phone connects up to one of those towers, which is every time you get a call, receive a call, receive a text, send a text, or even when your phone just checks to see whether you’ve gotten a new email, which happens almost by the minute. They keep records of these for months, sometimes over a year at a time, the phone companies do.

The government, in this case, who suspected Mr. Carpenter of being involved with some armed robberies, ironically, of cellphone stores. So, they got from the cellphone provider of Mr. Carpenter four months’ worth of this location data. That is, everywhere he had been with his phone 24/7 for 4 months.

Lithwick: No warrant.

Cole: No warrant whatsoever, and they claim that they don’t need to get a warrant. They don’t need to get any, under the Constitution, they don’t need to have any basis for suspicion or get any approval to get this kind of information on anyone because, they say, when you walk around with your cellphone and provide this information to the cellphone provider, you are voluntarily disclosing your whereabouts 24/7 to a third party and you, therefore, assume the risk that that third party will then turn it over to the government.

This is an extraordinary argument in the digital age because, of course, almost everything we do these days is shared with some third party. I mean, think about it. Every time you search something on Google, you’re sharing with Google what you’re inquiring about. Every time you read an article online or look at a page online, you are sharing with that website and with your internet service provider what you are reading. Every time you send an email, you are sharing with the email provider the contents of that email.

So, if you took this third-party disclosure rule, which is what the government is relying on, and applied it to the digital age, privacy would be dead. The question in the case really is, “Should the Fourth Amendment Doctrine evolve to ensure that privacy remains, notwithstanding the development of technology that has made it possible for the government to get information about our private lives that it never could have gotten in the past?”

It does require them to understand the magnitude, but I think they will. They’ve taken up two cases previously where the government has said, “Look, apply analog-era precedent to the digital age,” woodenly, without any acknowledgement that the digital age is different, and in both cases, one involving a GPS tracker on a car and the other involving a search upon arrest of a cellphone.

In both cases, the court, essentially, unanimously rejected the government’s argument and our argument is, “Look, privacy needs to be protected even as technology advances and the way to do that is to ensure that people have an expectation of privacy that is as capacious as it was for the first 200 years of our country before the development of the digital age.” And that’s essentially what the court has done in these other cases and we were very hopeful that they’ll do the same thing here.

Lithwick: David, can I ask you an ontological question about Carpenter before we move on?

Cole: Yeah.

Lithwick: David’s like, “No! It’s too early for ontological in the term.” Here’s the problem with Carpenter and these privacy cases and that is, what do you do when— and I know Justice Scalia always writes about this and it’s important—the American people have no expectation of privacy anymore. They don’t care. As it contracts, the zone of what is private contracts, right? So, it seems to me that Carpenter is just one of those difficult cases because I’m not sure the American people care that all their cell data is out there being handed around, or am I too cynical?

Cole: I think so. I think people still care about privacy. People say this all the time, “But my kids still close their bedroom doors and want privacy from their parents. They still put passwords on their accounts and their computers. They don’t want anyone in there. They block me from their Instagram.” So, I think people understand the value of privacy, and in particular, I think people, while they may expect or accept that in order to have all the benefits of the digital world, they essentially have to provide information to some corporation somewhere.

It’s very different to have that information freely available to the government. Google can send you ads that you might find annoying, but the federal government can lock you up. It can open investigations on you because it has decided that it doesn’t like your political views and those investigations might be tax investigations that have nothing to do with your political views on the face of it, but the way they got to you was by determining who you’re hanging out with, what you’re reading, and the like.

You know, these things are not just hypothetical. This is what we lived through in the McCarthy era. It’s what we lived through in the civil rights era, where many of the leading civil rights, and women’s rights, and peace organizations were under active surveillance by the FBI and active efforts to interfere with their actions simply because they were engaging in democratic activism. So, you need privacy in order to have a democracy, and the fact that technology has advanced so that Google has our information doesn’t mean that we simply give it over, lock, stock, and barrel to the federal government without constitutional constraints.

Lithwick: I have to confess, I’m still stuck back at the part where I’m imagining being the kid of the legal director of the ACLU and how many locks I would probably have on my ... I guess, now is a good time to also note that just this week, you’re now facing another, the ACLU has just jumped into another controversy about folks who are organizing Trump protests, whose Facebook information is being sought, right? So, this is not just happening in Carpenter at the Supreme Court. This is the ACLU saying, “Wait, you can’t go around just getting all the information on folks who signed up for and organized a Trump protest.” So, this is very much, I think, a part of the new world that you’re living in.

Cole: Absolutely. You know, one of the great things about the internet age is that it makes possible political activism that was not really possible before. So, if you think back to the early days of the Muslim ban, when 300,000 Americans across this country went out to airports to demonstrate against the Muslim ban one day after it had been put in place, that was entirely organized over the internet, over social media. It was essentially a spontaneous uprising, but it was only possible because of the communication that is possible now through social media.

So, it’s critically important that we be able to use these tools to engage in the work of citizenry of fighting for our rights, but to do that, we have to also have an assurance that the government doesn’t have free access to every aspect of our most personal lives. We’re not saying that the government can’t get this information. We’re just saying that in order to get this information, they should have to have probable cause, and go to a judge, and demonstrate that to the judge that there is actually reason to believe that Mr. Carpenter was engaged in armed robbery and therefore, this information would be useful to help establish that. That’s all we’re saying.

The alternative view was captured in the first case of this kind to reach the Supreme Court. It was the Jones vs. the United States, which involved the government putting a GPS on the bottom of a suspected drug dealer’s car and then following him 24/7 for a month. The government argued, “But look, we’re only following him in public. You already held in the analog era that we could follow someone from point A to point B using a beeper without invading privacy, without triggering the Fourth Amendment because the person is going in public. We’re just following him in public from A to B to C to D to F, et cetera,” and as Justice Scalia said during that argument, “Zero plus zero plus zero plus zero plus zero equals zero. If there’s no invasion of privacy going from A to B, there’s no invasion of privacy going from A to B to C to D to E.” That was the government’s argument.

Therefore, they said, “We don’t need to have a warrant, we don’t need to have any individual suspicion.” And at one point during the argument, Chief Justice Roberts said, “So, if you’re right, does that mean that the government could put a GPS on the underside of each of the justice’s cars?” The government’s answer was, “Yes,” and at that point, you knew they had lost the case and they did in fact lose the case, nine–nothing.

So, you know, the consequence of saying the Fourth Amendment doesn’t apply, is that the government can get this information about you, about me, about the justices, about people as to whom it has no basis for suspecting them of engaging in any criminal activity. I think we all share an interest in keeping the intimate details of our lives away from the government even if we don’t have anything particularly to hide.

Lithwick: Let’s turn to the travel ban. You just mentioned it, David, and I think without a doubt it was the case that made everybody sit up and say, “Holy cow! We’re not in Obama’s America anymore,” and folks watching the 9th Circuit oral argument, a blank screen. It has really deeply engaged, I think, the country, and yet, this past week, the Trump administration issues 3.0 and everybody’s confused and slightly bored and maybe now, this religious animus argument is gone because, “Look, they’ve added Venezuela.”

So, here we are. I’ve described this case as “constitutional whack-a-mole” because every time the ACLU is about to smack it down, the ban itself changes. The court just this week, in response to 3.0, has asked for more briefing, and I know you’re doing your briefing, but can you give me some sense of how you stay ahead of a case in which the executive order itself just keeps changing?

Cole: Yeah, it is a moving target to be sure, and I only learned of the court’s order putting off the argument and requesting further briefing at the very close of a nearly three-hour moot court for the oral arguments. So, it’s anticlimactic in some way and frustrating in some way if the case does not get argued, but we challenged the first one and it was struck down. They put in place the second one. We challenged the second one and it was struck down, and we are fully intending to challenge the third one.

This is not entirely—well, the whole thing is unprecedented, never before has a president sought to basically put up a sign saying “Muslims keep out at our border”—but the government responding to decisions declaring their actions unconstitutional by revising and putting out a new version is not unheard of and in fact, one of the leading establishment clause cases involves a display of the Ten Commandments where the ACLU challenged the display of the Ten Commandments. It was declared unconstitutional.

Then the city displayed the 10 Commandments in a slightly different way with the Bill of Rights up there as well and argued that that changed things and the court declared it was unconstitutional. Then they did it yet again, and put up a whole bunch of other things, and tried to essentially say, “Look, we’re masking or denuding the religious character of our actions by the stuff we’re putting around it.” The court ultimately struck down the third one as well and the Supreme Court said, “Look, the way you analyze these things is you have to look at the government’s actions through the lens of a reasonable observer who understands the history and context of what’s going on here.”

Our view is that what the president has done here is essentially sought to launder his impermissible purpose, which is the purpose of targeting Muslims. The travel ban 3.0, essentially for most of the clients, just extends the ban. It is still targeted predominantly at majority Muslim countries, most of them 90 to 99 percent Muslim, and adding North Korea, from which people don’t come anyway to the ban, and adding a few government officials from Venezuela on limited visas that they probably don’t have even use anyway to travel here, doesn’t change the fact that the target here are Muslims. The statutory arguments that we advanced, in which the courts have accepted, namely that the president was acting beyond his statutory authority by targeting people on the basis of nationality when the statute prohibits that, remain the same. So, we were going back to district court to challenge the travel ban 3.0.

Lithwick: The fact that courts are, at the end of the day, David, fundamentally small-c conservative enterprises, they don’t want to get into smackdowns with the president. Does the fact that this keeps getting laundered to make it slightly more palatable, to make it slightly less over-the-top give the court some basis to just throw its hands up and say, “OK, you’ve got us. We’re exhausted. It’s not that bad,” or in your view, is the court going to be responsive to the arguments that you’re making, which is, “Look, there’s still this underlying religious animus that is going to affect even if they fix it a fourth time, it carries through,” or do you think that the courts by design, by their own nature, are just going to be happy to have a reason to get out of this?

Cole: Well, look, I agree that courts are small-c conservative. Law is small-c conservative. It moves in incremental ways, but I also think that the very core definition of the judicial role is to act as a check against executive branches and legislative branches that exceed their authority and that is their reason for being. That’s why we give judges who don’t run for reelection so much power in this country, and in essence, the government’s argument in the travel ban case is courts should defer blindly to the president in the immigration area. They should close their eyes to all the things he has said, all the things he has tweeted, all the things his aides have said, which is essentially, “This is a Muslim ban and we intend to use it as Muslim ban, because he’s the president and because he’s acting in the area of immigration law.”

I don’t think the courts take that kind of argument lightly because it essentially negates their reason for being and we saw that in the enemy-combatant cases in the early years of the War on Terror where President Bush similarly argued that because this was detaining the enemy, treating the enemy during unarmed conflict, the courts have no role to play and four times the court rejected that position and asserted its own role at the same time as it was protecting the rights of those charged as enemy combatants.

Lithwick: David, can we talk for a minute about Jennings vs. Rodriguez, which is another case that the ACLU is in, that raises questions about the immigrants’ rights when they’re fighting their own removal by the government?

Cole: Yes. So, this case is being reargued this term. We argued it last term, fairly early in the term, and the court asked after the argument for supplemental briefing on the constitutional questions in the case and then never, I guess, was able to reach a result that they could find a majority for and so they asked for reargument, which I think everyone assumes means that the court was split four to four on at least some of the issues in the case. It’s not clear that they were split on every issue four to four, but if they’re split on any of the issues four to four, now they have Justice Gorsuch, they set in three arguments so that they can resolve it finally.

The basic question of the case is “Can the government subject a human being to prolonged detention without showing that they have any need to detain the person and without providing any hearing at which the person can demonstrate that there’s no need to detain him?” This involves people who are put in removal proceedings and are fighting their removal proceedings, as everyone has the right to do, and certain categories of people who are put in these removal proceedings are subject to what’s called “mandatory detention,” that is, they are locked up just because they’re in the removal proceeding for the duration of that proceeding even if that proceeding takes three, five, seven years.

Our position is, “Look, this is a form of preventive detention. It’s like denying bail to somebody who’s facing a criminal trial. They’re innocent until proven guilty. These people have not been established to be removable. They have a right to fight their cases. If they pose a risk of flight or a danger to the community, then they can be detained preventively. But if they don’t pose a risk of flight, if they don’t pose a danger to the community, what is the point of detaining them?” Many of these people were detained for three, five, seven years and then won their cases. So they had the right to remain in the United states and yet simply fighting for that right, they have to sit in detention for three, five, and seven years.

So, our argument is that the Constitution requires that at some point, when detention becomes prolonged, at a minimum, the government has to have a hearing where it demonstrates that it has a need to keep these people locked up and that’s all we’re asking for. We’re not asking for release. We’re just asking for a hearing and we are proposing that the detention becomes prolonged as a constitutional matter at six months.

The government says, “No. We can lock them up without any hearing, without any determination that they pose a risk of flight or are a danger in the community for extraordinarily long periods.” At the oral argument last year, the government lawyer conceded that, “Well, maybe if they were locked up for 20 years, that might violate due process.” Remember, these are people who have not been convicted of a crime, who are simply adjudicating whether they have the right to remain in this country.

Lithwick: David, one last question before you go. Your book, Engines of Liberty, which is really a terrific read, is just out in paperback. I don’t think you foresaw this, but revised now for citizen activism in the Trump era, and the book is really about how, even though we think law gets made in the courts and in the Supreme Court, actually, citizen activism makes a huge difference. You mentioned the folks who came out to the airports when the first travel ban was issued. Talk a little bit about what it means to say that citizens actually can lay down markers about what the Constitution does and doesn’t allow.

Cole: Sure. The basic point of the book is that the ultimate defenders of liberty are not the lawyers that argue in the Supreme Court or even the court itself, but the people themselves, and particularly, the people themselves when they act in concert in associations, nonprofits, groups that consist of people coming together because of a commitment to a certain set of values and fighting for that vision over the long haul.

When you think about how did marriage equality go from unthinkable, which is what it was 25, 30 years ago, to inevitable, which is what it was when the Supreme Court decided it in 2015? It’s not that the arguments changed. The ACLU actually brought a case in 1972 making the exact same arguments that it made in 2015 and it got nowhere with that argument. It’s also not that the Supreme Court somehow got way more liberal. The court in 2015 is, if anything, more conservative than the court in 1972, which was the tail end of the Warren Court era.

What changed was the world changed, and the world changed not by happenstance but by mostly gay and lesbian folks and their allies coming together in organizations like Lambda and human rights campaigns, and GLAD, and the ACLU Lesbian and Gay Rights Project, and Freedom to Marry, and thinking about a long-term campaign to change American attitudes so that this argument, these same arguments, which were rejected out of hand in 1972, were winners in 2015. And the NRA did the same thing with the individual right to bear arms that had been rejected by the courts for over 100 years. Then the NRA in the 1970s began a campaign to change that and they worked incrementally, and they worked through citizen action, and they worked through the electoral process. They understood the democratic basis of constitutional rights.

So, that’s the theme of the book and I illustrate how nonprofit organizations and citizens coming together can in fact make constitutional law, can be the ultimate defenders of liberty. You know, in that respect, this is what I find most encouraging and hopeful about these dark times, and that is that we have never seen more citizen engagement, more citizen activism around basic civil liberties and civil rights in my lifetime. From the Women’s March, to the airport demonstrations, to the townhalls around the Affordable Care Act, to the demonstration defending the DACA Dreamers, it’s really quite remarkable, and we see it at the ACLU where our membership went from 400,000 before Trump was elected to 1.6 million today.

That’s a huge growth. We’re not the only ones who’ve seen that. What that reflects is that citizens are engaged and active and the end of the day, that will be our ultimate salvation. I think, when we look back on this period 10, 15, 20 years from now, we will see this as 4 years, maybe even less, but 4 years of a terrible president who tried to run roughshod over basic civil rights, civil liberties, constitutional norms, and the rule of law. But we will also see it as a time when the American people stood up, pushed back, organized, and defeated him, and I think, at the end of the day, those who are in favor of basic civil liberties and civil rights will be much stronger for it.

Lithwick: David Cole is legal director of the ACLU. His book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, is just out in the paperback. David, I cannot thank you enough. There’s no one I wanted to spend the first week of the term with more than you.