The Rachel Maddow Show, Transcript 06/29/15

Guests:
Dahlia Lithwick, Roberta Kaplan
Transcript:

RACHEL MADDOW, MSNBC HOST: The old man in the mountain fell down in
New Hampshire. There`s a job opening there. I`m just saying.

HAYES: Really?

MADDOW: Yes, they had to – they put him back together with
aggregate and glue for a long time. Now the old man in the mountain is
kind of gone.

HAYES: Right.

MADDOW: It`s very awkward. Anyway, thank you. Thanks, Chris.

And thanks to you at home for staying with us for the next hour.
Happy Monday. Lots going on.

You thought the Supreme Court made huge news on Thursday? Then even
huger news on Friday? Well, they continued to make fairly huge news today.

And then after they made their fairly huge news this morning, and
everybody thought they were done for the day, they made even more huge news
this afternoon.

So, there`s a lot going on in the news today in states all over the
country, in part, due to the role that the United States Supreme Court has
been on over the past few days into this morning and this afternoon. We`re
going to get to all of that tonight. It`s a big show tonight.

But first things first – because I think we know each other well
enough now that I can safely say that I know when you tune in to this show
every night at 9:00 Eastern, it is because you are reasonably expecting
quite a lot of this.

(BEGIN VIDEO CLIP)

EMCEE: Brazil.

Brazil and her friends recently invited a homeless man to spend an
afternoon with them. They gave him new clothes and took him to eat in a
restaurant and say the experience brought her great joy. Presenting
Brazil.

(END VIDEO CLIP)

MADDOW: They took him to eat in a restaurant.

Welcome to THE RACHEL MADDOW SHOW unofficial taxonomy of beauty
pageants for people who wouldn`t otherwise know.

Let`s just get this straight right here. Let`s get this sorted, OK?
What you`re watching here now is Miss Universe. The winner of last year`s
Miss Universe contest was Miss Colombia. The first runner up, the woman
who will have to fulfill Miss Colombia`s duties if she`s unable to do so,
first runner up was Miss USA.

Now, the way you get to be Miss USA, the way you get to represent the
United States of America in front of the whole entire universe, at the Miss
Universe pageant is that you have to win the Miss USA beauty pageant
contest thing itself.

So, Miss USA, this is important, Miss USA is not the same thing as
Miss America. Do not mistake one for the other. I once mistook Miss USA
for Miss America or maybe it was vice versa, but, boy, was I sorry.
They`re very different things. Miss USA, Miss America, totally different.

For example, there is no talent competition in the Miss USA pageant.
So, there`s no baton twirling, there`s no flute playing, there`s no puppet
that dances in clogs. That`s the kind of thing you see at Miss America.
No talent competition in Miss USA.

To be Miss USA, to try and win the chance to be Miss Universe, you
don`t get to show any particular talent or skill. You just have to compete
in evening gowns, there is a swimsuit competition, but there is also an
interview. And sometimes the interview is hard.

(BEGIN VIDEO CLIP)

IAN ZIERING, ACTOR: In recent weeks, the U.S. has released five
detainees from Guantanamo in exchange for one U.S. soldier held captive in
Afghanistan. The U.S. policy is to leave no soldier behind. Do you think
it`s fair to sacrifice or swap lives in order to uphold this policy?

CONTESTANT: I am glad that we got our guy back. However, I do not
feel it was right that we subject ourself to these acts of terrorism. I do
agree with our guy being back, but however, I do not think we should
subject ourselves. Thank you.

(END VIDEO CLIP)

MADDOW: Nailed it.

So, that`s Miss USA. Miss USA is part of the Miss Mniverse
organization.

It also includes something called Miss Teen USA. To compete in Miss
Teen USA, you have to be between 14 years owed and 18 years old and you
have to be really good at saving all your after school ice cream scooping
money to spend on those evening gowns. Those evening gowns are not cheap.
Take it from me.

So, that`s the umbrella of Miss Universe pageants. Miss Teen USA,
Miss USA, Miss Universe – not to be confused with Miss America.

The very first Miss Universe was from Finland, pageant as you can
tell from this photo, has been around for a long time. It`s been around
since 1952.

But it`s only in the last couple decades, it`s only since 1996, that
that family of beauty pageants, Teen USA, USA, and Universe, only since
1996, that those pageants have been partially owned by this man – real
estate developer Donald Trump. He bought a stake in that family of beauty
pageants, the Miss Universe family of beauty pageants in 1996.

And since that year, being in the beauty pageant business has been
one very visible part of Donald Trump`s public profile. Mr. Trump has a
lot of different businesses, sure, but one of the things he does is he co-
owns these beauty pageants. I was not always clear on that fact. Now I
know, and now you know.

And this is another thing that he does. This is a reality TV show
called “The Apprentice.” You have probably heard of it. I didn`t really
understand the premise, but the premise of “The Apprentice” is that Donald
Trump asks people to demonstrate their business skills by doing businessy
type activities quickly and under duress. Quick, market this product. And
then he fires people at the end of each episode.

“The Apprentice” has been on television for more than a decade.
There`s also a version of “The Apprentice” in which the contestants are now
the regular people, they are celebrities. The celebrity version of “The
Apprentice” goes like this.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: I`m not sitting here screaming and ranting and
raving. That`s not my style. I`ll have a conversation with him later,
should I survive.

DONALD TRUMP, THE APPRENTICE: No, no, later, should you survive.
That`s right. Should you survive? Should you survive?

UNIDENTIFIED MALE: Should I survive.

TRUMP: You think he should?

UNIDENTIFIED MALE: I absolutely do.

TRUMP: Do you think he should survive?

UNIDENTIFIED MALE: Yes.

TRUMP: You do? Then, Kevin, you`re fired.

(END VIDEO CLIP)

MADDOW: Oh, Kevin.

So, that`s the celebrity one. It`s basically “The Apprentice” except
the people who are competing are people you might have seen on TV before,
including a guy who looks a lot like Geraldo Rivera, but I`m quite sure
that can`t be him.

In the celebrity version, instead of competing for a job with Donald
Trump, the celebrity people compete for donations to charity. So, now you
know. A simple taxonomy of the way this person exists in public life.

For the last couple decades, Donald Trump has been known as a
businessman, as a perennial maybe politician, but he`s also been an owner
of and a star in these TV events and these TV shows. All of which aired on
a TV network called NBC. NBC aired every one of Donald Trump`s TV
properties – until today.

Today, NBCUniversal, and I should said we here at MSNBC are the part
of NBCUniversal. Today, NBCUniversal cut all ties with Donald Trump. So,
NBC will no longer air Miss Universe or Miss USA. Donald Trump will no
longer participate in “The Apprentice” or in the “Celebrity Apprentice.”

This is the statement from NBC today. Quote, “At NBC, respect and
dignity for all people are cornerstones of our values. Due to the recent
derogatory statements by Mr. Trump, regarding immigrants, NBCUniversal is
ending its business relationship with Mr. Trump.”

Now, the derogatory statements NBC is taking issue with, those were
apparently the statements he made when he announced his presidential run.

(BEGIN VIDEO CLIP)

TRUMP: When Mexico sends its people, they`re not sending their best.
They`re sending people that have lots of problems. And they`re bringing
those problems with us. They`re bringing drugs. They`re bringing crime.
They`re rapists, and some, I assume, are good people.

(END VIDEO CLIP)

MADDOW: The Spanish language network Univision was first to say that
they would no longer be airing Mr. Trump`s beauty pageants after he made
those remarks in his presidential announcement. Today, NBCUniversal
followed suit.

Mr. Trump reacted to the Univision news by blaming the Mexican
government, and also by vaguely threatening to sue Univision.

He reacted to the NBC statement like this. Quote, “As of today,
Donald J. Trump is no longer affiliated with NBC. Mr. Trump stands by his
statements on illegal immigration, which are accurate. NBC is weak.” I
continue. “And like everybody else, is trying to be politically correct.
That`s why our country is in serious trouble.”

In the most recent national FOX News poll of Republican presidential
contenders, former Florida Governor Jeb Bush comes in first place. The
person who comes in second place is – ding, ding, ding, Donald Trump. The
Mexico sends its rapists to the United States guy, second place in national
polling right now, which means not only that Donald Trump`s comments got
all of his TV shows booted off the air, they also at the same time gave him
a huge bump among Republican primary voters in terms of who they might want
to be president.

But in very specific terms, that polling also means if things keep
going the way they`re going with Donald Trump polling at the top tier of
Republican presidential candidates, he is definitely going to earn a spot
at least on the first debate stage for the first Republican presidential
debate in August. That first debate will be moderated by FOX News.

FOX News has set the criteria for the debate. They say only the top
ten candidates in an average of five national polls leading up to that
debate will be allowed on the stage. If things keep going for Donald Trump
the way they have been going, they keep going anything close to the way
they have been going. Now, he is going to be taking up a precious podium
on the debate stage.

And it`s a zero sum game. It`s a zero sum game. They`re only going
to take the top ten. If he`s there, his presence will mean that somebody
else will not be on the stage who would have otherwise made it.

Donald Trump may be there on stage in Cleveland, Ohio, for that first
Republican presidential debate, trying to earn the Republican nomination
for president. He at this point will likely be there.

But this guy will not. This guy is the governor of Ohio. John
Kasich, sitting governor of the all important swing state of Ohio.

He`s served in the Ohio state legislature, in Congress. He`s now the
governor of the state, but judging by his poll numbers right now, there`s
no way he`s going to be able to make it on the stage for that first debate
even though it`s in his home state.

Donald Trump has a great chance. The governor of Ohio, in part
because of Donald Trump, not so great a chance.

John Kasich is set to announce his presidential run toward the end of
July. We learned today he`s due to announce on July 21st. And that timing
may be a good strategic choice for John Kasich. At least it seems like
he`s trying to give himself the best possible chance of getting into that
debate.

If people are getting a bump in the polls after their announcement,
if you`re trying to get a bump in the polls between the day of your
announcement and the days preceding the debate, maybe it`s his best shot.
FOX News has set their criteria in a way that could get Donald Trump into
the debate easy but not the sitting governor of the state where that first
debate will be held.

Declaring on July 21st, two weeks before that FOX Debate, maybe he`ll
get enough of a bounce that it will start appearing for him in national
polls. Maybe. It`s his best chance.

But it`s probably also his only chance. Things have to go great for
John Kasich.

So, this is what the Republican field looks like right now. John
Kasich will announce July 21st. And of course, tomorrow, we`ve got a big
announcement from a really interesting candidate this year, this was a
video that New Jersey Governor Chris Christie put out today on the eve of
his announcement tomorrow that he will seek the Republican nomination for
president.

And honestly, you can tell it`s nicely shot. Even just from the
snippet, it`s a good video, it`s well-edited, well-put together. It`s
about his mom, Chris Christie talking about what his mother told him on her
deathbed. It`s nice.

And, you know, it seems like the whole Chris Christie campaign, the
Christie for president motto, for example, “Telling it like it is”, is all
going to be about this feeling of Chris Christie`s bluntness, his honesty.
He tells it like it is. He`s a straight talker.

And that sort of is Chris Christie`s strength, his political brand.
He`s great in front of a crowd, he can be charming. He has been able to
turn his blunt political style into a political strength.

He`s been able to use it to set himself apart from the other more
diplomat politicians and make other politicians` diplomatic manner work
against them. It works for him. And that is why the debate issue for
Chris Christie is maybe even more a matter of political survival than it is
for any other candidate.

Chris Christie has to get into that first debate because that is the
one place he really might be able to shine. That`s his whole presidential
sales pitch, right? He tells it like it is. He`s a good talker. He`s
real, not like those other guys. You see him against the other plastic
politicians, and you`ll like him the best.

Right now, Chris Christie is doing terribly in the national polls.
On average, he comes in ninth or tenth place. He`s sort of in John Kasich
territory.

But if you look at his home state polls, if you look at his approval
ratings right in New Jersey, the national polls actually look really rosy
by comparison. Chris Christie`s polling right now by his own constituents
is terrible and it keeps getting worse.

This most recent poll, I mean, this is an all-time low for him in
terms of disapproval ratings in New Jersey. The largest proportion of
responders to that recent poll said they, quote, disliked everything about
Chris Christie. They could choose him or his policies, but they chose to
say they disliked everything about him.

And now, today on the eve of his presidential announcement, the
largest newspaper in New Jersey has just published an editorial the likes
of which I am not sure I have ever seen before.

Look at this. This from “The Star Ledger”, the Newark paper. It`s
called, “After 14 years of watching Chris Christie, a warning: He lies.”

Quote, “Most Americans don`t know Chris Christie like I do, so it`s
only natural to wonder what testimony I might offer after covering his
every move for the last 14 years. Is it his raw political talent? No,
they can see that. Is it his miserable failure to fix the economy, solve
the budget crisis or even repair the crumbling bridges? No. His opponents
will cover that if he ever gets traction.

My testimony amounts to a warning. Don`t believe – don`t believe a
word the man says. Don`t misunderstand me. They all lie, and I get that,
but Chris Christie does it with such audacity and such frequency that he
stands out.

When Chris Christie picks up the microphone, he speaks so clearly and
forcefully, that you assume genuine conviction is behind it. Be careful
though. It`s a kind of spell. He`s a remarkable talent with a silver
tongue, but if you look closely, you can see it`s forked like a serpent`s”,
says the largest paper in his state.

Chris Christie is going to formally join the race for president
tomorrow. Something tells me the papers in his home state are just getting
started on that idea.

(COMMERCIAL BREAK)

MADDOW: One thing to keep in mind about the next election is that
unless it is a huge Democratic wave year, which is possible but it`s really
hard to do, unless it`s a huge Democratic wave, this guy is still going to
be speaker of the House after the next election. It`s almost a foregone
conclusion no matter what else happens in the next election, Republicans
are going to keep control of the House and John Boehner is going to stay
the speaker.

And that`s because the game is rigged in their favor. And it`s not a
conspiracy. It`s not a secret. It`s the way we do things.

The Constitution says we have to do a census of the country where
everybody gets counted. That`s done once every ten years.

The last census year in 2010, Republicans had a great year that year.
They won seats in the House, in the Senate, they won governorships. They
want control in a bunch of state legislatures and that ended up being
crucial because they used Republican control in the states to draw new
lines after the census for congressional districts. They drew new
congressional district maps that guaranteed that more Republicans would win
seats in Congress from those states.

And if you do that and enough states in this country, it becomes
almost structurally impossible for Republicans to lose control of Congress.
I mean, in 2012, more votes were cast for Democrats than Republicans. More
people went to the polling place on Election Day in 2012 and voted for a
Democrat to be their member of Congress.

But it didn`t matter. The Republicans still got a big majority in
the House because the congressional districts were drawn in such a way to
guarantee that Republicans win no matter how the voting goes. And even
when Democrats overall get more votes, Republicans overall get more seats.

Well today, at the United States Supreme Court, the justices of the
Supreme Court ruled 5-4 in favor of a less totally biased way of electing
our Congress. In Arizona and in California and a few other states, they
don`t draw the congressional districts by the usual totally partisan
process that`s designed to help one party and hurt the other.

In a few states, including Arizona, which was the case today, they
have a bipartisan, balanced expert commission that draws the districts
instead of letting the politicians do it. It`s a way that`s supposed to be
fair to everyone instead of just picking one party to win.

Republicans in Arizona sued because they wanted the process to be
more partisan. They`re in control of state government. They wanted to
draw the congressional maps themselves to help Republicans more.

But the Supreme Court today upheld the districts being drawn instead
in this bipartisan expert good government technocratic kind of way instead.
And so, that immediately affects Arizona.

But it`s also a signal to good government types and reformers all
around the country that you can do your congressional districts in a better
way. You can stop rigging the game, if you want to. No pressure.

Just in case the Supreme Court wasn`t making enough news already,
these past few days, today they did hand down that ruling on congressional
districts being decided in a technocratic nonpartisan way and that being an
OK thing to do. They also blocked the EPA from regulating emissions from
power plants. They blocked Texas from implementing its new antiabortion
law, which was supposed to go into effect the day after tomorrow, and that
would have probably closed almost every abortion clinic in the state of
Texas.

And they also today announced they`re taking up a hugely
controversial affirmative action case also from Texas, a case that will
definitely be a national flash point for the court and the country over the
next Supreme Court term.

And, and, and, and today on the last day of their term, they also did
something that I think has never been done before, at least not in modern
times. You know Pete Williams, the NBC justice correspondent. When it
comes to the courts and the law, Pete Williams, frankly, has seen
everything. And he is legendary for being completely unflappable.
Everybody else will have their hair on fire about something, and Pete
Williams is like, eh, don`t you remember this also happened in Alabama in
1947?

I mean, exclamation points turn themselves into semicolons and
periods when they see Pete Williams coming. He`s the calmest man on earth.
He is Mr. Nonplussed.

But today, from the court, he filed this, “A very unusual display of
passion today in the courtroom. I can`t remember the last type this
happened and neither can anyone else around here.”

I mean, coming from anyone, that would be intriguing. Coming from
Pete Williams, that`s like a flash bang grenade. He never says anything is
a big deal.

But what happened at the court today was kind of a big deal. At
least it was strange. And it happened in the big death penalty case.

This was the case about the specific lethal injection drug that was
used in three different screwed up executions in three different states
last year.

In January last year, it was Ohio, where a man was struggling and
gasping and choking and heaving for more than 20 minutes.

Then three months later in April, it was in Oklahoma. That`s where
it took more than 40 minutes, and again the guy was writhing and gasping
and speaking when he was supposed to be unconscious. That`s the one where
they called off the execution in the middle and tried to stop killing him
because something was going wrong.

Then, three months after that in July, it was in Arizona. That`s
where it took them more than two hours to kill the guy. Witnesses say they
saw the man gasp and choke more than 600 times.

In all of those cases, the same thing happened. The person they were
killing was initially knocked out – at least it seems they were knocked
out. But then the person did not stay unconscious. The guy came back and
appeared to be writhing in pain and conscious of what was happening to him.

And all three of those screwed up executions last year all used this
drug, Midazolam, as the drug that was supposed to make the guy unconscious.
Now, this drug is not an anesthetic. It`s basically just supposed to relax
you, calm you down. It`s in the same class as like valium or Xanax.

Well, the case the Supreme Court ruled on today on the last day of
its session, this case they ruled on today is whether or not it`s
constitutional to carry out a lethal injection execution specifically using
that drug. And the five conservative justices on the court ruled that it
is constitutional. Midazolam is OK.

Justice Alito writing for the majority argued it is constitutional to
use that drug to kill people in part because the prisoners who brought this
lawsuit didn`t suggest any better idea, got to do it somehow. From the
ruling, quote, “Because it is settled that capital punishment is
constitutional, it necessarily follows that there must be a constitutional
means of carrying it out.”

That was the majority opinion. That was the ruling.

Justice Sonia Sotomayor did not join that opinion. She was having
none of that. She argued in dissent, quote, “If the death penalty is
constitutional, the court reasons, there must be a means of accomplishing
it and some available method of execution must be constitutional. But a
method of execution that is barbarous or involves torture or a lingering
death does not become less so just because it`s the only method currently
available to a state.

If all available means of conducting an execution are cruel, then
conducting that execution will constitute cruel and unusual punishment.
Under the court`s new rule, it would not matter whether the state used
Midazolam or instead to have petitioners drawn and quartered, or slowly
tortured to death or actually burned at the stake.”

So, in the court today, in the actual physical Supreme Court in front
of everybody, Justice Alito read the majority opinion for the court. And
then Justice Sotomayor, after him, she read her dissent, the blistering
dissent, they only really read aloud from the bench when they`re fired up
about it.

But then, after Justice Sotomayor read her burning at the stake
dissent, then it do the even more dramatic because after she read her
dissent, then Justice Stephen Breyer said he wanted to read his dissent,
too. That never happens.

And his dissent went even further, saying that he believes the whole
death penalty, no matter how you do it, is probably unconstitutional. Over
40 pages in this elaborate and forceful dissents, it`s got charts and maps
and everything. Justice Breyer lays out a case by case that, quote, “The
death penalty in and of itself now likely constitutes a legally prohibited
cruel and unusual punishment.”

So, Justice Alito reads the opinion. Then drama, Justice Sotomayor
reads her dissent out loud, and then even more drama, Justice Breyer reads
his dissent out loud too and says the whole death penalty is
unconstitutional, you guys.

And then, not just more drama, but unprecedented drama because after
the opinion gets read out loud, and the dissent gets read out loud, and
then the other dissent gets read out loud, then, but wait, there`s more.
Justice Scalia said he would like to read something out loud, too.

Four justices all going at each other out loud from the bench.
Justice Scalia read what was technically a concurrence, but it was
basically just a rebuttal to Justice Breyer who said the whole death
penalty is unconstitutional and has to go.

And that drama, the four justices all addressing each other from the
bench, that is what Pete Williams today called a very unusual display of
passion. Something no one could remember seeing at the court.

The inimitable and as far as I`m concerned, omniscient Dahlia
Lithwick was there at the court today when all this happened. Even before
Justice Scalia started talking, Dahlia`s take was whatever was happening at
the court today, I`m going to quote her, she said it was notable and really
weird.

And then, once Justice Scalia popped up to be the fourth justice to
speak out loud on the case, Dahlia just bottom lined the whole thing. She
said, quote, “This was very odd.” You see she italicized the word very,
emphasis on the word very.

This was a weird day at the Supreme Court and I`m not sure I totally
understand it. Luckily joining us now is Dahlia Lithwick, senior editor
and legal correspondent for “Slate Magazine.” Dahlia is cited by name by
Justice Breyer on page 21 of his dissent today.

Dahlia, congratulations. Thank you for being here.

DAHLIA LITHWICK, SLATE MAGAZINE: Thank you, Rachel.

MADDOW: Is that just like another day at the office for you? I`m
cited in this Supreme Court opinion? Like that`s no big deal.

LITHWICK: No, that`s a pretty big deal. I have to say, being cited
for writing one of thousands of articles that nobody reads about how much
the death penalty sucks in a dissent that says, nobody is going to read
this because we lost, the death penalty sucks, is a little meta, but I`ll
take it.

MADDOW: I read all of your articles and blog posts about how the
death penalty sucks.

Let me ask you. You went out of your way to say this was a weird
moment in the court, kind of a weird day in the court, the way the rulings
came down, then you said this was very odd what Justice Scalia did today,
specifically.

What was so odd about what he did?

LITHWICK: I think he invented a new form today, Rachel. Usually,
when they read, as you said, almost nobody ever reads from their dissent
aloud. Usually, you afford the courtesy to whoever wrote the majority
opinion, you move on. More and more we`re hearing people read from
dissents, and, in fact, Chief Justice Roberts for the first time last week
read one and surprised everybody.

But now, we`re getting one dissenter reading and then another
dissenter reading, and then Scalia doing some sort of spoken word dissent.
It`s not clear he was reading from a summary.

I kept sort of peering at him to see if he was reading. It didn`t
track what he wrote, which was, as you said, just an all-out assault on
Justice Breyer, but he was kind of randomly bringing in the marriage cases
and how there the court usurped state prerogatives and here they were doing
it again. It was very, very strange, it was as though he was just –
here`s some stuff that makes me grumpy. And he was saying it.

MADDOW: So, to be clear, though, you`re saying he didn`t read
something. He just kind of gave an off the cuff speech about what he
didn`t like?

LITHWICK: Well, it`s really hard to say. Usually, when a justice
does a summary opinion, they hand it to the press office and they hand
those out so we can see the discrepancies between what was said in the
summary and what`s in the opinion. We didn`t get one today.

So, was he actually reading? Was he glancing down? I can`t say.
What I can say is, it doesn`t read like his dissent, like his concurrence
reads. It`s just quite – it was quite a different style. And he was very
mad about marriage.

MADDOW: On this substance of the death penalty ruling today, as I
understand it, had this gone the other way, this could have very much
changed the implementation of the death penalty in this country. This
basically leaves the death penalty intact as it is. Logistically, there`s
still a lot of questions as to whether or not it can be continued to be
carried out the way it is because of access to drugs.

Do you think this actually made the death penalty legally stronger
today, or did it sort of just leave it status quo?

LITHWICK: Oh, I think it made it stronger. It said to the states,
you know, as long as your protocol doesn`t offend some threshold which is
not knowable anymore, then you`re OK, and we`re not going to micromanage
you.

And I also think that it`s really interesting that only justices
Breyer and Ginsburg signed off on that much narrower dissent saying it`s
always going to be unconstitutional because there`s no way to make it fair.
Justices Kagan and Sotomayor certainly signaled they want to make it fair
in Oklahoma. They really don`t like Midazolam, but they`re willing to be
open to finding a better protocol.

So, it seems as though the general force of the opinion is states can
go ahead and experiment with their cocktails and you know, do your best,
and as Justice Sonia Sotomayor said, the fact that the prisoner may in fact
experience something that`s akin to being burned at the stake which is how
she described it – well, that`s not really in violation of the Eighth
Amendment.

MADDOW: Wow, stunning.

Dahlia Lithwick, senior editor and legal correspondent for “Slate
Magazine”, congratulations on the footnote. Thanks for being here, Dahlia.

LITHWICK: Thanks, Rachel.

MADDOW: All right. We`ve got lots more ahead tonight, including the
fascinating pushback against some of last week`s huge Supreme Court
decisions and lots of politics.

Stay with us.

(COMMERCIAL BREAK)

MADDOW: If we used the five stages of grief to gauge how red state
America feels today, after enduring a week of some of the biggest liberal
victories in modern American history, it would appear that deep red states
are still toggling roughly between denial and anger. Denial and anger, I`d
say bargaining, depression, acceptance are stages that appear to be still a
ways off in the distance for some of the red states.

The new reality that red states are trying or not to wake up to what
they`re trying to do to stave off reality as best they can, that fairly
dramatic story is next.

(COMMERCIAL BREAK)

MADDOW: On Friday, the United States Supreme Court cleared up what
has been the chaotic and confusing and constantly shifting question of who
in this country is allowed to get married and where. The highest court in
the nation on Friday said that gay marriage is legal in all 50 states, much
simpler than it used to be. Marriage equality, all 50 states, done,
settled.

We got that landmark clarifying ruling on Friday, and we got to throw
out all of our old maps showing all the places where your rights faded in
and out as you crossed state lines.

But then, this is the news in Alabama today. “Alabama in legal knots
over gay marriage.”

Alabama Chief Justice Roy Moore first told local justices in Alabama
that they could not give licenses to same-sex couples to get married for
the next 25 days. Then he said, actually, they just didn`t have to give
people licenses for the next 25 days. To which one county judge responded,
quote, “I`m not real clear what this ruling is saying. It`s very unclear.”

So, you think this was simple, right? But in Alabama, some counties
have been going ahead and marrying people like the Supreme Court says they
have to. Other counties have decided not just can gay people not get
married there, but if gay people can get married, then actually nobody will
be allowed to get married there.

At least two Alabama counties are saying they`re out of the marriage
business all together. They`re not doing marriage licenses for straight
people or for gay people. They`re so upset by the gay people developments.

Other counties say they haven`t made up their minds yet. They`re
waiting for Judge Roy Moore`s special made-up 25-day waiting period to be
over, and then who knows what will happen.

Alabama is not the only state where stuff like this is happening. In
Texas, “The Dallas Morning News” is trying to pin down every single county.
There`s hundreds of counties in Texas. “Dallas Morning News” trying to pin
them down updating this map as they go, as they figure out what rights are
being applied in which counties.

Several of the states most populous counties are going ahead with
marriages for same-sex couples but some counties aren`t.

That`s Texas, complicating matters further is that the state`s
attorney general is basically encouraging county officials that they ought
to defy the Supreme Court ruling.

And then there`s what`s going on in Mississippi. A lot of county
clerks in Mississippi are issuing licenses to same-sex couples, but the
Mississippi governor apparently still thinks there`s some way to stop this
thing or at least delay it. Governor Phil Bryant of Mississippi has now
written to the federal district court there asking the court to keep an old
stay in place even though the Supreme Court has ruled and been very clear
about the implications of their ruling.

So, you have sort of a stand-off between all of these Mississippi
couples who just good told by the Supreme Court that they have the
constitutional right to get married and the governor of the state saying
wait right there, indefinitely.

But in Mississippi, those couples who want to marry, they have on
their side exactly who you would want on your side in a case like this.
They have Roberta Kaplan. Roberta Kaplan is the lawyer who took Edie
Windsor`s case all the way to the Supreme Court two years ago. She argued
the justices should overturn the federal Defense of Marriage Act, and as
you know, she won that case.

And then right after winning that case, Robby Kaplan went to
Mississippi where she argued in federal court that Mississippi`s ban on
same-sex marriage was unconstitutional. Roberta Kaplan, fresh off the
Supreme Court made that case in Mississippi, of all places, and she won.

And now, with that landmark Supreme Court ruling on Friday, Roberta
Kaplan is right back in this fight, to make that Supreme Court decision not
just lasting and simple law, but present day reality right now, even where
opposition to equality has been tireless, entrenched, and fierce, and
occasionally deliberately confusing.

Joining us now is Roberta Kaplan who successfully argued the case
that struck down DOMA.

It is nice to see you, Robbie. Thanks for being here.

ROBERTA KAPLAN, ATTORNEY: Nice to see you, Rachel. Thanks.

MADDOW: Did I get that right about what`s going on in Mississippi?

KAPLAN: Yes, pretty much.

MADDOW: In terms of the big picture here, I feel like we`ve got sort
of dead enders. I sort of feel like there`s people who are slow walking
the inevitable.

KAPLAN: They`re mad about marriage, I think that`s what you said in
the last segment. Some people mad about marriage.

MADDOW: But it does – I don`t feel like – as a non-lawyer, I look
at this and don`t feel there`s legal ambiguity here. I think it`s just
people catching up.

KAPLAN: Yes, there`s no legal ambiguity. And it`s going to be very
clear. I don`t think there`s going to be much of a battle.

We`ve seen – even before there was a clear Supreme Court case,
Supreme Court decision, in states where there were marriage, states like
North Carolina, et cetera, there`s usually one county, two counties, and a
bunch more, and then every county caught up. I think we`re going to see
the same thing in Mississippi, in Texas, in Louisiana, and hopefully even
in Alabama.

MADDOW: If they dig in in a place like Alabama, or in a place like
Mississippi, or certain parts of the state, how does it get resolved? Do
these things have to go back all the way through the courts or does some
federal judge somewhere just stop it?

KAPLAN: Well, in the fifth circuit, I think the fifth circuit really
wants to clarify things. The fifth circuit issued on its own orders in all
three cases asking the parties to say to the court their position on
whether, which the court concluded on whether the Supreme Court case was
controlling. And they said they believe it was controlling, and given the
fact it`s controlling, the Fifth Circuit said, so what do you want us to
do? What kind of order would you like us to issue?

And so, that letter went out today. The plaintiffs in Texas and
Mississippi have submitted answers. We`re waiting for the governor in
Mississippi to submit his answer, but I think the Fifth Circuit is ready to
act.

MADDOW: In terms of – in the places where there is the most
political resistance and the most sort of political showboating around
these things, what is the sort of horizon, the time horizon in terms of how
long it will take to resolve these cases, worst case scenario?

KAPLAN: Yes, look, that all dependents on the Fifth Circuit, but I
think it`s only a matter of days. I`m hoping even we`ll get a ruling
tomorrow. I think it`s only a matter of days.

As you said, Mississippi has 82 counties. It`s a little bit less
than Texas, and a bunch of those are already married people. As we have
seen over the last few years since Windsor, once people are married, you
know, those are the facts on the ground. It`s pretty hard to stop it.

MADDOW: How do you feel overall about how things are?

KAPLAN: I have never felt better, pinching myself every five
minutes.

MADDOW: Do you have – how did Edie react to Friday`s ruling?

KAPLAN: So, Edie – you know, Edie cried. I think that Edie, even
when we won Windsor, she just turned 86, and I don`t think she thought she
would live to see this day. I think she thought it would happen, but she
might not be alive to see it.

So, the fact that she was alive to see it and so thrilled to see this
in her lifetime, she really wept.

MADDOW: Do you feel –

KAPLAN: So did I, but I thought it would happen in my lifetime but I
would be older than I am today.

MADDOW: Well, do you feel like – I mean, you were involved in some
difficult, strategic discussions and difficult strategic fights within the
movement and among different types of lawyers, people with different types
of approaches. Do you feel like sort of everybody is vindicated because it
came out the way everybody wanted it to come out in terms of how this was
fought for? Do you feel like there`s a lesson to be learned in terms of
what the next fights are or what we`ve just been through about how it works
so long?

KAPLAN: The ultimate lesson that should be learned, and you had Mary
Bonauto on, and she`s probably the best, is when you think you have a legal
case to bring, and you have a constitutional right to be vindicated, you
have to bring that case. You may not win all the time. Mary didn`t win in
the beginning, we didn`t win in New York, but ultimately, we won.

And you have to change not only minds but you have to change hearts.
That`s what he this movement did.

MADDOW: You have to push even when it`s not a consensus decision.

KAPLAN: Absolutely.

MADDOW: Roberta Kaplan, thank you very much for your time tonight.
I know it`s been a big week.

KAPLAN: Than you so much.

MADDOW: Thanks.

All right. We`ve got much more ahead. Stay with us.

(COMMERCIAL BREAK)

MADDOW: Moment of personal privilege. That moment of welcome,
actually. Look. Ah!

Little baby Julie Rae (ph), you sure know how to pick a busy news day
on which to arrive.

Our beloved lighting director, Rachel, we all call “Monkey”, she
brought Julia Rae into the world on Friday, in the middle of the gay rights
decision and everything else that happened on Friday. Little Julia Rae is
the newest member of our family around here, and obviously the cutest baby
that`s ever been born on earth, truly the best new thing in the world.

We love you, Monkey. Congratulations. She`s beautiful. Julia Rae.

We`ll be right back.

(COMMERCIAL BREAK)

MADDOW: Ever since he launched what was supposed to be his long-shot
presidential campaign, Vermont Senator Bernie Sanders has been drawing
really, really big crowds. He`s also polling several atmospheres above his
expected trajectory.

Bernie Sanders is giving Hillary Clinton something that looks a
little bit of something that looks like a run for the Democratic
nomination. But it turns out in one key state, Bernie Sanders is the one
thing you cannot be if you want to succeed there as a Democratic candidate
for president. Bernie-mentum has hit a very interesting speed bump.

That story is next.

(COMMERCIAL BREAK)

MADDOW: Here`s one more thing to watch in presidential politics
right now.

We have recently been covering the big crowds that Vermont Senator
Bernie Sanders has been turning out around the country. Honestly, you`re
not going to believe me when I say this, but it`s true. He has been
turning out bigger crowds than any other presidential candidate.

As much as the other candidates don`t want to admit that, as much as
the Beltway looks at that and things that can`t possibly be true, he`s
turning out bigger crowds than anybody.

And yes, Senator Sanders is so far behind Hillary Clinton in national
polling that he cannot even be seen in her rearview mirror. But you know
what, as a campaigner, he`s been getting a very big liberal response in a
way that liberals and Democrats probably ought to find heartening. He`s
been getting a big fund-raising response, he`s been getting a big volunteer
response, a big response in terms of enthusiasm.

If you listen to reporters who are covering the campaign trail right
now, they will tell you that the Bernie Sanders crowds are really
legitimately fired up, compared to everybody else`s crowds.

And, again, yes, I can feel your hate mail pouring in. Yes, I know.
Hillary Clinton is probably going to win the Democratic nomination for
president, I get it. But it is also true that Bernie Sanders has
unexpectedly gone off like a rocket in the Democratic primary. And the
evidence of that is plain to see.

Here`s one thing to watch, though – because Senator Bernie Sanders
may have a problem. Specifically in one of the states where he is polling
very well – and that is the state of New Hampshire.

In New Hampshire, state law requires presidential candidates to fill
out a form. It is a form that the candidate is supposed to use to affirm
his or her party registration. On the form, the candidate has to affirm
that he or she is a registered member of the party in which he or she is
running for the presidential nomination. Senator Sanders obviously is
running for the Democratic nomination for president, but Senator Sanders
technically speaking is not a Democrat. He`s an independent socialist,
right? God bless you.

And we know that Senator Sanders is running for the Democratic
nomination. We know he would surely be happy to call himself a Democrat in
order to get on the ballot in New Hampshire obviously. The problem is,
it`s not clear how can he do that, because Bernie Sanders is a registered
voter in his home state of Vermont. In Vermont, you don`t register by
party.

So, even if he wanted to switch his party affiliation to Democrat in
order to be able to verily affirm that he is a registered Democrat, if he
wanted to switch his registration to Democrat to satisfy New Hampshire law,
there`s no where and no way for him to do that.

And that`s a glitch, right? It`s just a detail. But if, say, the
Republican majority on the New Hampshire ballot law commission or somebody
else at some point in the process tries to turn this into a thing, this
might be a thing. Bernie Sanders, technically, can`t run for the
Democratic nomination for president in New Hampshire if they don`t
technically consider him to be a Democrat. If this does end up becoming a
thing, the feel the Bern, Bernie-mentum that`s been breaking out all across
liberal America is really going to have something to go nuts about.

This is worth watching. Stick a pin in this one. As they say, watch
this space.

That does it for us tonight. We will see you again tomorrow.

Now, it`s time for “THE LAST WORD WITH LAWRENCE O`DONNELL”

Good evening, Lawrence.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY
BE UPDATED.
END

Copyright 2015 CQ-Roll Call, Inc. All materials herein are protected by
United States copyright law and may not be reproduced, distributed,
transmitted, displayed, published or broadcast without the prior written
permission of CQ-Roll Call. You may not alter or remove any trademark,
copyright or other notice from copies of the content.>