19 Episode results for "Warren Court"

Listening to Quarantunes

Slate's The Gist

37:58 min | 5 months ago

Listening to Quarantunes

"The following recording may contain explicit language. I can't get more explicit than may say it may. It's Thursday April sixteenth. Twenty twenty from slate as the gist. I Mike PESCA almost three weeks ago on face. The Nation Treasury Secretary Steve Mnuchin was asked by host Margaret Brennan. About some of the assistance people can expect from the federal government. There'll be enhanced unemployment insurance and three as you said there'll be these these checks in the mail or direct deposit it's really bridged liquidity for people as they go through these difficult times bridge the quality for about eight weeks. Well I I think. The entire package provides economic relief overall for about ten weeks. Today Steve. Mnuchin was trending on twitter. Why we're prompted. It was that clip tweeted out by someone named Brianna Westbrook whose twitter bio says at Bernie Sanders National Surrogate Vice Chair at Democratic Party Arizona organizing with GSA that's the Democratic Socialists of Phoenix Westbrook. Tag The clip with the words Steve Mnuchin thinks Americans can live on twelve hundred dollars for ten weeks but that is not what Steve Mnuchin said. That is not what this funding does so for adults making less than seventy five thousand dollars they get twelve hundred dollars plus a five hundred dollars benefit per child. That's for people still working for people who are still employed in fact for people who may be making more than they did. Last year it stimulus money given to everyone who is in the middle middle class or lower to add on to your regular income now. The government also provides an uninsured benefit of six hundred dollars per person per week and that is also for ten twelve weeks. It is in addition to whatever state benefits. They may be getting so no. One anywhere is expected to live on one hundred twenty dollars a week or twelve hundred dollars for ten weeks. It is dishonest. It is inaccurate to describe that as what Mnuchin is saying and it's also wrong for the public to spread the word that that is all the benefits amount to look. I know people hate Steve Mnuchin because of his policies and his own wealth and his wife and his face all the reasons people have to hate Steve Mnuchin but Steve Mnuchin never said he expects people to live on twelve hundred dollars for ten weeks. Not only did he say he clearly doesn't expect it which is why he negotiated a package. That gives you six hundred dollars a week if you're unemployed in twelve hundred dollars for everyone even if they are employed as long as they're not making over a certain threshold do want to say that people who didn't file taxes don't report income or of course are here illegally and can't do that they won't be getting federal money. That is true so what happened. Was I tweeted? I don't know why I did this but I tweeted to some of the prominent people who were perpetuating this incorrect assessment incorrect description. Lie about what Steve. Mnuchin was Katie Hill? The former member of Congress did not answer an activist and Bernie Sanders. Delicate named Raphael off did respond and he tried to argue that his calculations were correct. Then he changed the subject to the fact that a lot of people like gig workers won't be covered by the stimulus. Okay fine but what you actually said was and I'll quote Rafael. Chenoweth tweet adjusted annually. This means mnuchin believes Americans can't survive on sixty two hundred forty dollars annual salary or three dollars twelve cents an hour. No doesn't believe that he never said that. And when I pressed Rafael Shimmy Nov Bernie Sanders. Delegate he dropped the subject within hours Marianne Williamson retweeted the Westbrook tweet stating mnuchin thinks people could live on one thousand two hundred dollars a week and she called him. The modern marie-antoinette Rashid to leave. Retweeted it approvingly. And called for minting a trillion dollar coin an retweeted gleefully dunking on Mnuchin with an arrested development quote. And that's it that's it. That's where we stand. What does accuracy matter WANNA say? Trump is horribly inaccurate. Almost all the time. Yes he is and he never stops. WanNa say the intent of worrying about workers? Getting money in a tough. Time is a laudable warrior. Laudable goal indeed it is but sorry. This is propaganda and twitter. Makes IT UNSTOPPABLE? It also seems to me that self identified DS adherence people with Red Roses and their twitter feeds and elected officials. Who here to that. Philosophy are less restrained from spreading lies if it helps their agenda that is a factor that bothers me given our media environment with its susceptibility to misinformation. It must be very tempting to want to exploit those flaws. Maybe you tell yourself. You're only fighting fire with fire but it still bothers me. It continues to bother me. I'd rather be guided by the principle of always trying to tell the truth to him in liars then to try to become a liar for what I tell myself is a worthy cause on the show today though the Supreme Court might be phoning it in there never really phoning it in and neither have the forces that have shaped the court Adam. Coen's new book is Supreme Inequality the Supreme Court's fifty year battle for a more unjust America. Yeah you earn them. A more unjust a less just America from the justices. Cohen makes some interesting points. Don't believe me you could hear of right now. Support for the gist comes from our friends at rocket mortgage by quicken loans. Home today is so much more than it was yesterday but at rocket mortgage home is still all about you during these challenging times. We're all experiencing the top priority at rocket mortgage is the health and safety of the communities they serve and while things are changing quickly every day. One thing they will never change is their team's commitment to giving you the best mortgage experience possible. That's why you need mortgage support. Their team of experts is there to answer questions and offer solutions. They understand that hardships happen. And they're here to help whether that means working with you to save money on the mortgage you have or finding a new way to navigate payments if you have questions. The team at rocket mortgage has answers. They know how important your home is to you because you are important to them if you need mortgage assistance to home loan. Experts at rocket mortgage are available to help twenty four hours a day seven days a week from their home to yours. The team at rocket mortgage is with you visit rocket mortgage dot com slash. The gist to learn more call for cost information and conditions. Equal housing lender licensed in all fifty states and M L S CONSUMER ACCESS DOT. Org Number thirty thirty where we think of the Supreme Court. We usually think directly of amendments and rulings that they make that are applied or applicable to the amendments abortion. And the right to bear arms and free speech but of course supreme court rulings affect every aspect of our society and this is pointed out in a new book by Adam. Cohen Supreme Inequality the Supreme Court's fifty year battle for a more unjust America. I E it didn't just happen by accident. Hello Adam thanks for joining me. Oh great to be here so the interesting things about the book. There are many chapters. There are two twin premises one was eye opening and I totally buy one. I kind of disagree with a little bit. But we'll get to all of that but when you write battle for a more unjust society assess the intention of the Supreme Court making our society a little less equal okay. It is a battle and it's not entirely their bad one of the points of the book and the reason I use that fifty year timeframe is something very specific happened in one thousand nine hundred sixty nine. Richard Nixon is elected. There is at the time the Liberal. Warren court has been in place for about fifteen years and issuing rulings like Brown v Board of Education Maranda. Which said you've told you the right to Remain Silent Gideon. V wainwright which guaranteed poor people. The right to a lawyer. So That's the Warren Court going along on this very liberal path in the law Nixon is elected. He says he's going to change the court and boy does he. In nineteen sixty nine. He replaces earlier in the chief justice. Warren Burger an avowed conservative. Who LIKE HIM WANTS TO UNDO THE WARREN COURT? And then in three years he gets a total of four appointments creates a totally different court. That was intentional. And all the way through the last fifty years. There's been alive intention on the part of conservatives in keeping the conservative majority right and if we think we're living in a justice where the chief executive maybe oversteps his bounds and tries to influence the court. I think of the example that you talk about. Which is Abe Fortas? I didn't realize just how nakedly political his experience was. Yes and you know. A lot of us are very familiar with America garland situation. And how because Mitch? Mcconnell wouldn't allow a hearing on Maryland and there was no vote America Ireland that the Democrats were prevented from creating liberal majority. Which America would've but flashback about fifty years and something very similar happened with a forty eight for this was a member of the court when Earl. Warren said he was going to step down. Lyndon Johnson decided he would nominate a four to be the next chief justice the Senate does not confer a variety of reasons and the clock then runs out so at that point. Johnson's not able to replace or award with anyone else. And that's how we ended up with Warren Burger but then for this is still on the court when Nixon comes into office. He's looking for a way to get as many nominations as possible. He's literally checking on the health of some of the older dresses and he looks at eight four two semi thinks boy. He was weakened by his denial confirmation for chief justice and there was a little scandal brewing minor that eight Ford is was accepting payments as a consultant to a foundation run by financier. Who got into legal trouble for just didn't do anything legally wrong broken laws? He broke new court rules but Nixon saw that as a political opportunity and actually has his Justice Department investigate for US investigate for his wife over different matter that she was not guilty of threaten. Both of them with jail unless for two steps down four does does step down. Nixon places him with a conservative. And that's how the conservative court was initially built. That's an amazing story to observations. One is you say it's comparable in a way. It is to Merrick Garland but in another way. The merrick Garland the way that played out was positively genteel compared to Nixon thuggery. I mean they really Dean investigates him since we could charge you with a crime. This is really putting more than a thumb on the scale to you know evoke a justice metaphor but the other thing is if as you write in the book John Mitchell Attorney General. Threaten a four days and four just was scared and then later. I think Mitchell sad or it was generally agreed that these were kind of trumped up charges no pun intended but it does make me question for legal mind if he thought this Supreme Court justice if he was duly threatened by the threat of legal action. What are we to make of his accurate? Well he actually was a great truss in the most liberal justice and he was responsible for some great rulings including a decision. I really love the Tinker Decision. Which upheld the right of high school students wear black armbands during the Vietnam War so I think he was actually a great legal thinker. He was right to be scared. Remember the people were going after him. We're really thugs. John Mitchell. The attorney general ends up in prison for Watergate crimes. If he thought these people might put him in jail put his wife in jail. I don't think he was entirely wrong. They were also using the press to sully his name all the time and a certain point Ford is just gave up and I. I kinda see why he did okay. So let's talk about a couple of other things and we'll get you campaign finance. That's the one where I kind of questioned some of your premises education. I don't think people realize that the unequal education system that we have is directly influenced by core cases. And it didn't have to be this way. That's exactly right. In the early nineteen seventies. There was a strong movement to say public schools within state have to be equally funded from district to district. It makes perfect sense. The equal protection clause says the government must treat all people equally and that should include. If they're going to run public schools. They run equal ones. So courts were beginning to rule this way at quite a rapid clip state courts and federal courts and a Federal District Court in Texas ruled the Texas had to equalize funding between rich and poor school. District's it goes up to the Supreme Court and the bedding was at the court would likely affirm it because that was the way all the Wa was headed instead five to four. The court says states do not need to equalize funding and interestingly it was because eight force was removed from the court if Florida's had not been driven off Nixon. He would have provide the fifth vote to equalize funding in every state in the country. Now would that have changed everything. It seemed that it will but when I look at State Court there are State Court decisions. That essentially have ruled funding mechanisms illegal and not much changes. Some changes in there are some success. Stories Kentucky is a particular success story but in fact that's sort of an example of why a federal ruling was so hard if we'd had a federal ruling that every state had to do this we would have transformed education nationally all at once instead. It's been this state by state battle with state courts. Which in many ways don't have the same power as federal courts to enforce their rulings. And then we've had love recalcitrants from legislatures. I think we'd all done this. As a nation in the seventies led by the Supreme Court we would have equal funding and absolutely there are studies showing that the level of funding has a big impact on whether a kid goes to college goes to a good college how much he earns when he it graduates whether he ends up in prison. This stuff does matter. Yeah Yeah and less. We would think that's so big and all the Supreme Court does issue somewhat symbolic rulings like we talked about tinker okay. What was the big lift at a cost? Millions of dollars to institute that other case you cited Gideon v Wainwright. I mean there's probably been billions of dollars spent essentially enforcing that case. That's a huge ruling as you say because every locality around the country needs to come up with lawyers for because just to find a reality and that's the reality you operate under an even if it costs money this is because the Supreme Court did Decree It. Okay so another aspect. We're getting a finance contract law. It seems like there's a lot more wiggle room. If you know the history of the court the courts have always cited for the Warren Court. Always sided big business. But there's a lot more legitimate wiggle room. Things that could have happened and didn't or decisions that were plausible and with indices of established. Legal thinking that the courts could have opted for that really may have changed the picture of poverty and contracts. Yes so in the sixties. The Warren Court was actually on a real campaign to change the place of poor people in the law in in our society and the issued. Some major rulings. The first case I started the book with is a case. In which a woman in Selma Alabama a widow with four kids sues because her welfare and her kids wealth has been taken away because there was quote a man in the house she two boys who occasionally visited and they said that means you lose your Welfare Supreme Court rules nine to nothing. No the man in the house rule is illegal so the court was doing these sorts of things but then when Nixon takes over the court we begin to see a very sharp turn and the court rules against the poor again and again something that continues to today so the ideas maybe the poor could have been considered protected. Class like black people are like gradually now Gay Or transgender. People are becoming in some locales but it doesn't seem to me. This is a little different from protected. Classes based on race gender sexual identity. It does seem that this would be a bit of a bigger leap than talking about not firing someone because they're Hispanic. I think that's right. There are many ways in which being poor is different from some of those other categories including the it's not an inherent quality right. The same person could be rich the next day if they win the lottery so that that's true but it is also true that the court was inching towards the idea of making the poor protected class and I think it would have made a big difference because the main test the court uses for recognizing protected class is whether someone is a discrete and Schiller minority. Whether they're a minority that has its own sort of group quality and also if they can't really effectively achieve their ends to the political class certainly true of the poor. If the poor been made a protected class there are a lot of rulings that might have come out the other way that I think should have come out the other. Yeah by the way. That's something that actually should be debated and would be an interesting thing for someone to introduce especially given our progressive moment but it does seem to me that that would be an example of a court which had a similarly taken affirmative steps to do something progressive failing to do so so failing to do something. That's plausibly progressive is a little bit different than some of these other rulings where they just sided with the interests of business in a way. That doesn't even seem to be that consistent with the constitution. I think that's right. I mean sometimes you know in the old days people like to say oh. The liberals are these judicial activists. They Wanna read things into the constitution to advance their goals. But now we see conservatives do it just as much they just do it for different causes so yes. Warren Court wanted to create new rights under the Constitution for the poor but look at what the later. Conservative court has done. One example is there's a whole area of low around punitive damages where there's been a lot of cases where juries of awarded rightly very large punitive damages against defendants like Exxon for the Exxon Valdez. Oil Spill state farm for the case the Supreme Court heard what state from did was just outrageous to one of their policyholders. And the were pretty large jury awards punitive damages to send a message and the court created out of whole cloth. This idea that the ratio between actual damages and punitive damages should be ten to one or less they read then through the due process clause Tomi where in the due process clause you see anything about a ten to one ratio so as I say conservatives are just as willing to quote makeup rights in the Constitution. If it's for people they like or at corporations they like or what about this tendency in business today where to get hired by business or to contract with them as a contractor. You have to sign away so many right so many rights of arbitration. That seems to be and the courts have upheld this time and time again and it doesn't seem to be it. Seems like you can make a very solid constitutional case. That this is an abridgement of the individual's right absolutely there are a number of cases where liberals on the court held just that but the Conservatives have the majority and this is so important glad you mentioned it because people don't realize the degree to which in the fine print of everything they are signing right now is language saying you don't have the right to go to court anymore you have to go to arbitration. By the way you can't go to arbitration part of a class you have to go on your own and the arbitrators that preside over. These arbitrations are very much biased in favor of the corporations. It's expensive to go to arbitration and Literally Wall. I was writing the section of the book about arbitration. I got an email from my bank chase saying any conflict you going forward is going to go to arbitration and you don't have the right to go in his class. Well that is an enormous change. We used to believe that you have the right to go into court. Yeah Yeah that's why we created this thing called the class and a class action. Okay so let's get to campaign finance and so far. I think the things you laid out where I opening and really do go at the heart of equality and you're right there is. I mean it's absolutely true that our that our tax code is a major determinant of inequality in the country but to get to the tax code. You say it's been influenced by the politicians who are voting for the tax code. The politicians voting for the tax code have often been funded in rulings like citizens united. The court has ruled that you can't put limits on funding. I think that's a little bit of a daisy chain that even if you're mostly right every step the totality of conclusion. I do not buy that. We have the tax code. We have because of funding of campaigns. Full Stop Well. Let me push back a little bit. If you remember. When president trump came in one of the first things he did was passed. The trump tax line who was being voted on in the the end of two thousand seventeen there were polls taken at that time showed what polls show which is that average voters want higher taxes on the wealthy that the say that again and again and again now at the same time when that vote was occurring the campaign contributors were more outspoken than ever saints. Republicans unless you pass this tax bill and cut. My taxes cut taxes for the wealthy. I will stop making contributions and when I do a powerpoint about this book when I go on the road I actually show an article from the hill the publication in which Lindsey Graham says how many calls are getting from be contributors saying they will stop making contributions and Lindsey. Graham says to his fellow Republicans in Congress. If we don't pass these big tax cuts for the rich are will dry up and a lot of incumbents will lose their seat to me that proves the point well. I don't think it proves the point. I think it may be indicates that there is something to the argument. Here are some counterarguments one. The Democrats who all voted against it and even the median Democrat who wants a more progressive tax system often get enormous contributions in fact frequently get enormous. Contributions another factor. I was just thinking about this. Okay we have the federal level. That's one question. What about the state levels fifty laboratories of democracy so I looked up the most progressive states in terms of the state tax code and I looked up the worst election laws in terms of contributions. There are some states literally. You could game on. You could contribute anything. New York state is almost that way. There's no way to track who donates and the limit limit on donating to governors forty four thousand dollars California the limit on donating for governors twenty nine thousand dollars but those are the wanting to most progressive tax codes in the country. There seems to be very little correlation between allowing money to slash into politics and the actual vote on the tax code that those politicians enact it's a fair point. It's definitely complicated picture. I would like to see what it would look like if we actually had very strong campaign contribution limits which the Supreme Court struck down and the arguments had to be made to Congress based entirely on the merits and people saying I'll withhold my vote rather than the sort of. I'm going to withhold my contributions that we got in two thousand seventeen. I wonder if the votes would not be different. I think that they would be yeah. It's it's a fine supposition but to constitutionally say that this is part of the battle for the more unjust America. I mean not citizens united but I can't believe I'm telling the experts so this is for my audience like as you know buck leave Vallejo which was what. Open the door to the CITIZENS UNITED RULING. Your longtime veteran of the ACLU THE ACLU was on the side of not having any limits on contributions. It's pretty unclear that the issue of limits on contributions is on the side of justice or liberalism. Yes the ACLU has not had a great record on that for a bunch of us at the ACLU who always disagree with that position. I I just for me I was probably enacted like way before you got. There was when everything subject to change and we couldn't get any movement but there was a case while ago which the Supreme Court challenge to a city law that put limits on soundtracks in neighborhoods and the argument was free speech. I have the right to have a truck late at night and wake up my neighbors and all that and of course the court said no. You have the right to speak. You can speak where you want. You don't have the right to the amplification. I think. That's the same approach the courtroom taken to the money question. They should have said you've the right to make any argument. You wanted a political election. It would be a violation the first amendment to stop you from saying anything the right to amplify your speech through dollars and be on every single. Tv and every Facebook account in the country. That is not a First Amendment right. That's amplification yeah so that would have affected a lot of people say oh citizens. United Bloomberg Citizens United didn't Affleck Bloomberg that's original ruling Buckley. Vallejo did because it was about contributing to your own campaign but you know. Bloomberg didn't win. It's just one factor but also as a factor is trump was outraged by hillary and Mitt out raised Obama and in each case the policies for more progressive taxation. Were the ones who actually raise more money right. And I think we're going to hear many people pointing for many years to the fact that spent so much money and didn't get very far as a reason. Why hey money and politics? Isn't that big a deal? But if you think about it. People will continue to raise huge amounts of money and spend it because they believe money makes a difference. Yes though to be intellectually consistent. You'd also have to say when Bloomberg gives tons of money to the causes that progressives like like climate causes or every town for gun safety that also maybe implicates the you know Donation and citizens united ruling. Yes I mean if they're just talking about issues like we support gun control fine but if they're contributing to candidate which is what they do. Which is rice at to go against the NRA? We absolutely have to contribute directly. It makes me very queasy. I don't like the idea that our politics is turning into. How many billionaires can you get on each side of of of an issue and that's what it's turning into that's not democracy? We need to try to get to a place in which everyone has an equal say. Okay so I recently read and I'm sure you to the Wall Street. Journal reported that within the Aclu there's a discussion and the discussion is about free speech. To what regard do they pursue First Amendment Cases? This happened after Charlottesville and the official policy of the ACLU is whenever there is a first amendment free speech issue without fear or favor we will pursue that case but there are people a lot of people within the ACLU who put in a memo and part of the memo. Is We have to take you know. We only have so many resources. And we have to take into account the content of the speech and if the speech is impactful to a marginalized community. That's the sort of case we shouldn't take if there are other cases to take what do you think of this and do think that one day the ACLU will be saying. These are the sort of free speech cases we will fight for and these are the sort of free speech cases. We won't it does worry me and I think that the ACLU like Roberts has to worry about not being perceived. Partisan I think one of their great strengths has historically always been that. They're on the side of civil liberties are not seen as just an adjunct of the Democratic Party. When I was there lurking back in the recesses of the when was that what was the time period. I mean I was there in eighties and early nineties. But back in the recesses of everyone's memory was the skokie case right where the not yesterday for the Nazis and we thought that was a proud moment for the even though obviously none of us supported Nazis. I think Jeff Morton that the ACLU always be seen as standing for the bill of rights and not for partisan views. So is this a generational divide. This is how it's been reported from what I understand there. There is some of that and also I just think we are in a much more partisan nation than we ever have been in every way. Congress's more partisan right there no more virtually liberal Republicans conservative Democrats. I think we're seeing partisanship everywhere and I think the ACLU seeing it as well. It's true but doesn't the ACLU even the younger generation of which you and I are not apart see that it is an advantage in the marketplace and advantage for their brand advantage for their credibility to not be seen as partisan to stand up for the Illinois Nazis or the Charlottesville Nazis. I'm sure that helps them with the other stuff. I'm sure some heat a painting entire with a brush but it does seem like maybe fewer of them do than previous generations. Supreme inequality the Supreme Court's fifty or battle for a more unjust America. The author is Adam Cohen. Thanks so much for joining me. My pleasure the following message is brought to you by Samuel Apps so many industries are being devastated by the cove nineteen closures but perhaps none of quite as severely as the restaurant industry this includes bartenders servers kitchen staff. Who Don't have the opportunity to work from home. Thankfully Sam Adams along with nonprofit Greg Hill Foundation have created restaurant strong fund to support these restaurant workers who are so important to the social fabric of our lives. Sam Adams has launched this fund to support these workers and kickstarted fundraising efforts across the country. But they need your help. The restaurant community is struggling and you can help them by donating to the restaurant. Strong Fund at Samuel Adams Dot Com. Sam Adams got it start thirty five years ago in bars and restaurants the ones that took a chance on revolutionary beer from serving beers to celebrating life. Sam Adams has supported the restaurant industry for all that time. The restaurant strong fund is Sam Adams way of saying thanks and that they stand with restaurant workers during this unprecedented time to donate to the restaurant strong fund in support of these restaurant workers. Who Need Your help please visit? Www DOT SAMUEL ADAMS DOT com. You can donate their the Boston beer company. Boston Massachusetts Savor the flavor responsibly. And now the SPIEL. You probably got him. They were sent you on your phone as an attempting bomb in these chaotic times. Or maybe they came from the same helpful people who are telling you to drink hot liquids or to watch out for five G. Don't burn any of the towers. They might have said for them. I'm just saying these messages. Come texts they come in emails. They definitely come on. Social Media. They are corona pandemic song parodies and they're uniformly terrible. There's the Adele one. It's me I'm in California. -treme going out to eat just stumble with cheese or are shaken baby back ribs from Chile. Hello can you hear me? I am shouting out. Neighbors who I used to live to see when we were outside and free. Is there something now to watch? Besides the news and finding dory the social disease to be too San dime free. There's the theater girl singing fiddler on the roof mask maker. Burs the beach boys one twenty. And there's this fifth grade kid parodying Leonard Cohen's Hallelujah. Yes he's not really parodying Hallelujah. Because the chorus this parody song is also Hallelujah. Hallelujah rip apart. A fifth graders musical talent. I am not nice guitar playing. Am I going to rip apart his lyrical writing choices? I am but mostly I am complaining about everyone sending these around pretending they're funny or enjoyable so many of these parodies. I mean you know what the real viruses it is severe acute respiratory syndrome. Current virus to that is the real virus that has killed more than one hundred forty two thousand worldwide but songs are not good and the shame of it is the opportunities are out there. For instance shorthand for the acute respiratory syndrome curves to corona. We call the corona and there was this hit song in the eighties. My Show Rhona. That song had screamingly. Good Guitar licks. You can't screw that up. Only this guy did journey. Yeah take a lesson from New York City even during a pandemic you gotta pay attention to the meter. I don't care if the world is falling apart words. That didn't rhyme. Pre outbreak still do not rhyme stinky distance phone from Rei. Those are terrible lyrics terrible lyrics and a time of coming together and doing the best we can but just because something is familiar please note. Paradise tes doesn't mean it's fantastic or even slightly above average or worthy of more than twelve seconds. I played on my show to market. These songs are less merriment and more men mint now. You might say. Come on Mike. These are tough times for Paradis. Well actually that should be ripe times for a parody just A. We're all desperate for laughs to find a way to feel good about our predicament. Be More than ever. We have a shared frame of reference. And see everyone's on Youtube. It should not be that hard. I'll give you some free ideas. Remember this one. Bette midler social distance. That's social instead of from a distance. Take fat run with it. The actual lyrics are so bad. You can't do worse than them. From a distance the world looks blue and green and the snowcapped mountains white from a distance. The ocean meets the Stream and the Eagle takes to flight. Bette MIDLER had to be paid extra. Sing this track. I would assume that does not seem like it fits in with the Bette. Midler worldview and mask maker asked maker. Okay that's fine. You could have gone with. Here's the theme from Flash Gordon. And then when they get to the good parts you say that's it. That's the news the part where they have the movie dialogue. You play them. Surgeon General or state officials endorsing mask wearing. Or how about this? Imagine Anthony Fauci singing this next one. It wouldn't just be a parody. It would actually embody the best practices of public communication. So what I the official said. Don't a mask then. They changed their recommendations. That pivot didn't go down so easily. Don't you think it would have worked better as expressed with a motown backing track? Okay give me one. More chains sticky contagion. Won't you please take it out of my lungs? Oh Darling I was blind to tell you tell you now since I see communities spread I want your masked now baby mass who asked get it. I went there are so many ripe targets and ninety five left balloons down with P. Katy Perry's fireworks but as tribute to Debra perks. Yes I know it's burks not burke and firework not fireworks but the original lyric rhymes firework to what you're worth so what's worse. These are fine ideas and I urge no one to take me up on them or if someone does and they record it and it hit your inbox. Don't over hype it. Don't give it five stars. Say this is fine. If this is what you need you know I say. Leave the parody to weird Al because no one could have thought of word. Crimes Are Amish Paradise or even another one rides the bus and even if we could think of that we don't have the accordion chops to pull it off. I leave you with one parody. I think did work an English family from Kent Singing Elaine I don't know if that was a truly great song. But you've got to keep the kids busy somehow and it clearly killed a weekend and also please note that it has been at least eighteen days since they recorded that version of one day more and it looks to be several days or weeks more of this quarantine and these parodies. And that's it for today. Show Margaret Kelly's the gist associate producer. She enjoys the Billy Joel Parody. Don't wait for answers. Don't take your chances. Don't ask this guy. Daniel schrader just producer can hear the people sing. Yeah everyday at seven and it still freaks them the hell out every single time the gist. If I wanted to criticize a fifth grader for his musical parody I have my own. You know that Song I fall apart by Post Malone you know how that rhyme with INSTA- cart it's being workshop to my house. Pro Debra do Peru and thanks for listening.

Supreme Court America Steve Mnuchin ACLU Richard Nixon Warren Court Warren court Conservative court Congress Adam Cohen twitter official Bette MIDLER Federal District Court Mike PESCA rocket mortgage State Court John Mitchell Sam Adams Welfare Supreme Court
2308 - The Supreme Court's Fifty-Year Battle for a More Unjust America w/ Adam Cohen

The Majority Report with Sam Seder

1:19:46 hr | 6 months ago

2308 - The Supreme Court's Fifty-Year Battle for a More Unjust America w/ Adam Cohen

"You are listening to a Free Berge of majority report with Sam Cedar to support the show and get another fifty minutes daily program. Good Jordi Dot. Fm Please Roti is Monday. March Thirtieth Two thousand twenty my name Sam Cedar. This is the five time award. Winning majority broadcasting live in. Step two and step injustly ravaged to want to now in the heartland of America Downtown Brooklyn you on the program today. Senior writer for Time magazine former member of the New York Times editorial board Adam Cohen on Supreme Inequality Supreme Court's fifty year battle for more unjust America. Meanwhile YEP and cases rise New York jump extends the guidelines. Chinese airline brings needed supplies to New York state. Back in Washington phase for stimulus being trapped and trump rejects oversight and stage three. Meanwhile trump revises the idea of winning calls one hundred thousand deaths and in wake of a shutdown Seattle Seattle. Seattle show's decline. In rates of infection. In New York are primary has been bumped from April to June. Rikers island has the highest infection rate in the world as an explosion of cases hits a Louisiana Federal prison at least a dozen students at Liberty University. That's Jerry Falwell's university have corona virus after returning back to campus new poll out by consolidating his Democratic lead but dropping against trump while trump pulls the reservation status the Watana a tribe in Massachusetts to help his gambling buddies and also suspends EPA enforcement and privatise meat inspections. That was a busy Friday card delivers on strike. Nationwide New York Amazon Warehouse Workers Plan One two. And lastly little pat on the back for Sam trump insisting on signing all of those stimulus checks all this and more on Today's Program Ladies and Gentlemen Welcome to the show appreciate you joining us We are in now. This constitutes week. Three of our remote broadcasting as it were webcasting podcasting casting We're getting a little bit better at it. Still some distractions here or there. And I'm still working on the set here but I upgraded a little bit of the lighting and That in bother to shave or cut my hair come air but We also just want to say I I. We've gotten so many nice emails and it is really appreciate. It's nice to hear from folks and it. It makes it just a little bit easier to do this. Under these circumstances when people write in and say you know I appreciate you know. Appreciate the chance to listen and it makes things a little bit more normal To have you guys doing what you're doing. So thank you very much for that and Obviously thank you matt. Brendan who are Working remotely in Jamie working remotely and Michael and everybody else. Who's coming on it it? It's an of course kyle who has been relentless in his upgrades for us. Both things that you can see and things that you can't see in terms of the way that we are working and we now are streaming our audio live. Kyle has the ability to to just. I don't know like you you conceive of something that would make the what we're doing easier and you know three hours later. I did it just sort of nuts in a way but all right. Let's let's get to our plugs in notices. We've got a lot to cover today. Obviously and you know I just a little bit insight into what we're thinking in terms of the way that we're trying to program the show on one hand I am reading about the the horrors that are going on in New York City right now in hospitals. I mean. Obviously everybody's staying at home. It's very weird experience. I think for for folks where a lot of this you can't see except for occasionally video or you see these stories on twitter. There are pictures of refrigerator. Semis essentially that are functioning as temporary morgues tents up there. I have friends to our doctors friends who are married to doctors who are all on call and they're sending back you know messages. Mount Sinai's looks like a war zone. These different hospitals in in New York and and then of course there are reports that this is start to see more that it's spreading You know to places like New Orleans and in Albany Georgia but now it's starting to come across to other places. There's a real concern in Florida. Because of course the governor. They're sort of refused to acknowledge what's happening Texas. And you hear these isolated stories of a rural areas someone from A county upstate. New York Keer sent me a a link that had Basically the a Google spreadsheet that was tracking and you can see these clusters in small towns where clearly the people didn't take it seriously and there happened to be someone there who had it. Maybe they had traveled may became. Who knows and these small towns? Do not have the the capacity to deal with this. They don't they simply don't have the infrastructure and so we're at the start of something again that I think is going to be ongoing. And we'll talk a little bit more about masks in the plugs and notices but with all that said. I got a little sidetracked. We're going to endeavor did to keep doing the type of program when we've been doing for years we may you know as of late during the primary season we were starting to do one or two more. Newsday's one one extra maybe a week. We're GONNA keep trying to do interviews some of which will have to do with corona virus. Saga which will have to do with how we rebuild our economy after this and and others that are you know we will return to normalcy or some facsimile and we will still have a lot of the issues that are were were present before and in many respects. They'll be worse so we're going to continue to bring on a range of guests. Sometimes it'll be a little bit off topic from the news of the day that is in everyone's forefront of their minds and and sometimes it won't so that's what we're trying to do here and You know a lot of books got pushed because of this. But we're still we'll still working on it and we and we will see now. It is time for our coverted nineteen plugs in notices for March Thirtieth. Two Thousand Twenty. And here we go first off. I can't remember who told me to remind everybody. But the census you have been mailed. The census go online or mail. It back whichever you do but fell out your senses forms. Hugely hugely important hugely important is going to be a real challenge this year. In addition to a Republican administration trying to make the census as incomplete as possible. This is just going to add to that. So make sure you've got your your your your senses. Roger sends us a links to videos. They made to make two kinds of face shields. Heavy duty face shields for medical personnel and disposable. Face Shields. If you're going out you don't have a mask. Faye Shield is a great way to shield your face. There's two different videos air tomorrow. I may actually even do a demonstration how to make your own mask. There's a lot of data that shows that societies that have been pushing wearing masks have had a much less of a problem in part because we don't know a symptomatic transfer is is big and we don't know if we have it or not so if you go out and wear a mask and becomes part of like societal norms. During these times it's much easier. You can make one easy with a t shirt. Just double layered up but we will I've seen a couple of examples of it. We'll find that out. Also the prepared dot com is a site which is sort of preparation but very reasonably so in fact. I had read there about two months ago. That toilet paper will be the first thing. That's that runs out And so they have a a blog on how to disinfect packages from Cova nineteen. I can tell you that my practice is not as rigorous as theirs. But it's highly the stuff outside for at least in twenty four hours. Then I go and I use work gloves. Take the stuff out. I dump it on the floor. Throw the box the edge of the porch. And when I'm done I turn the gloves inside out. I leave them outside for like three days and I rotate gloves. And then I wash my hands and then I do the same thing with the plastic on the inside if it has been shipped within the past seventy two hours but Go there we've got a link on how you can disinfect. Those packages better safe than sorry. Better safe than sorry. We also link from Mike who provides a volunteer on-demand messenger courier group. They're working on a website but for now it's an instagram page. That's Cova nine thousand. Nine Hundred Messengers Dot Com. Soria from Austin writes Austin's couch. Potatoes furniture has converted its furniture production line to manufacture personal protection equipment masking gowns for the city trying to keep stocks for individuals in the area in need the doing it for free the materials. They were using pillows with certified to work. They're not making a penny off this but materials are running low. They're taking donations to fund restocking and longtime listener am happy now is offering coaching services to our listeners. Half rate and by the minute for those who want fifteen or thirty minutes due to money constraints. She also has a podcast. Happy Health H. APP health and we'll be updating it with tips and tools for those who can't afford anything now if you let her know that you're an MR listener. She'll give the Sami discount half rate at one dollars per minute. Include the link to my most recent podcast and You can check that out. Her information is below. Its M happy. Dot Com H. A. P. P. E. DOT COM. David writes. Hi Everyone. I'm writing on behalf of Luna Video Games. I'm a customer. There's like the show they responsibly closed. As soon as stay home order was issued they sell Retro Style Video Games which are largely physical media and fill space. That helps keep a part of our recent history going you have. There's a site Luna Video Games. Dot Com their links for curbside service merchandise in a go fund me to help employees. Austin says I create three D computer models in print product samples. I do parametric ENMESH MODELING BUSINESSES. Slow now that my clients are closing. I can design and print anything now working on a three D. printer ventilator and would like help for resources to help prototype it more to work on all files of V one or online for free. I will post version. Five soon sprinting. Now that's at thing I've verse Com as always all these links will be in the podcast subscription Zaman crew. My brother works for Barnes. Cincinnati name urban artifacts. It's been shut down but they ship their beer. They do small batch showers and fruited beers. The website is artifact merch dot com. I like those sours left his best We also have another Lincoln there for how to make your own a mask from Hong Kong scientists It's at SC MP DOT COM will. Put the link in there. I believe you use like paper. Towels and Rubber bands every little bit helps Re Foundry ry transform incarcerated people to repurpose discarded materials into home furnishings. Mentors them in their own business career. you can check it out at refounded dot org. They could use some help. The soup kitchen in Mile writes in Costa Mesa has been feeding the elderly working a foreign homeless since one thousand nine hundred eighty six. Someone cares kitchen dot org. There are federally registered Charity Charity. They're in desperately need paper. Napkins toilet paper paper players small disposable cups etc Adam Ron Keough rights how Some T. Shirts T. Spring Dot com stores run keough designs check that out. Freelancers Union has a guide on HOW TO APPLY FOR COVERT PAID. Sick leave for affected freelancers. We'll put a link to the freelancers union dot org on our site. There's also go fund me for help. I'll hourly workers and another guy who is this a Nema sorry Nema has developed a platform for crowd source three D. Printing of parts of covert nineteen Little ships of dunkirk. They have Named it after Operation Dynamo. Our platform connects local hospitals to nearby volunteers with Third Three D. Printers these volunteers will three D. print the necessary parts for respirators etc etc and. Send them to the hospitals. Anybody who has a three D. Printer can join. The web site is volunteer to list available jobs in their local area. You can go to operation. Dynamo D. Y. N. A. M. O. DOT ORG and we'll put Nemo's e Mail on the Description as well if you have any questions. And that is the plugs and notices for March thirtieth. If you have some send us at majority reported gmail.com dot com put into the link plugs in notices and we will read it just trying to get stuff out there for people the meantime you gotTa wear it you get a bite you get where some close my daughter. She spent all our time trying to buy new clothes right now and in the world of clothes shopping as you know. There are no consistent sizes. Why should we dry it out to guess if a medium is really a medium constantly have to return close purchase online and find something per fits perfectly well stitch fix is a personal style and company that makes getting the clothes you love effortless? It's a completely different way to shop. That's all about you. Every time to get started go to stitch fix dot com slash majority. 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I had never heard of them. Either and I'm back on the thermal cruise up here because you know I'm getting a little bit My you know I'm wearing the not going so much collared around the House and I love it the other thing. I got a mock a mock neck sweater not into it not into put it back in the bag sent it back. It was easy peasy. That's the way this works folks. You can get started today. It stitch fix dot com slash. Majority don't knock me I. Just I'm not a mock crew guy. He got twenty five percent off. When you keep in your fix that stitch fix dot com slash majority for twenty five percent off when you keep everything in your fix stitch fix dot com slash majority Argon. Take a quick break when we come back. Adam Com colwyn on supreme inequality WE ARE BACK. Sam Cedar on the majority report on the phone. It is a pleasure to welcome to the program. Adam Cohen. He is a former member of the New York Times. Editorial Board is a senior writer for Time Magazine and author of Supreme Inequality Supreme Court's fifty year battle for a more unjust America. Welcome to the program Adam So let me just start off. I should tell you Because I think to a certain extent. Your Book is to dispel the myth of the progress that has been made by the Supreme Court across society in some areas. Yes in UH. There is no That it is a universal. I I hope if I've done my job correctly over the years that that skepticism already exists here amongst audience but So with that said let's just start before we get to the last fifty years. Let's talk about the fifteen or so years prior to that Give us a sense of the Warren Court and where the Supreme Court was from fifty. Three do I guess about Sixty Nine sure so the Warren Court begins earl. Warren who has been the Governor California is appointed chief justice and that is this period of an activist court that many of us grew up in school learning about associating with the Supreme Court thinking outside. Things always works In nineteen fifty four with Warrants FIRST YEAR ARRIVING COURT HANDS DOWN. Brown versus education and After that begins we slow but eventually fairly successful project of desegregating schools in the south and the same time. They are transforming many other areas of law. This is the period in which we got the Miranda decision. Which leads to tell you that you have the right to remain silent before the question. You we got giddying Wainwright wainwright which promised every poor criminal. Defendant the right to a lawyer. We got Decision striking down the poll tax. We got decisions striking down Force prayer in public schools so in many many areas. The Warren Court was Transforming Society for the better When you say activists I mean what made the Warren Court activists? Well the Warren Court was not afraid to strike down laws or to Issue orders to institutions when it's thought unconstitutional things going on so for example Striking down laws. We just didn't south segregating not just schools but you know Jim. Crow segregated every aspect of society. The court was willing to strike those laws down in the way that the court had not been before. But also you look at the decision like Gideon B wainwright guaranteeing every indigent defending the rights to aware. That's a huge thing with that is imposing on every jurisdiction in the country and affirmative obligation to come up with lawyers for people that was inexpensive ruling for every city and county and state in the country. The Warren Court wasn't afraid to do that when they thought it was a constitutional rate that had to be vindicated. And let's just I so there's really two different elements to activism in this context. One is A willingness to strike down laws and really in some ways act contrary to a Legislators legislative will based upon the Constitution. And then the other is to create mechanisms or requirements to protect constitutional rights. As in like you said in Gideon I think that's right exactly and these were thing that the court had done at some time in the past it it more often that the conservative direction In nineteen twenties court was being activists to strike down progressive legislation including laws against child labor. But here in the sixties Starting fifties mainly the sixties. We had a liberal quote was actually willing to do this activism on behalf of the most disadvantaged members of society. Okay and so that before we had towards like the the the the Nixon era and Abe Fortas. And I want to get there but Tell us about Shapiro. V Thomson because in some ways. This is like I don't know what those like a parallel universe. This case Has Far more resonance right through the years Yeah You know what you what you saw. Also with the Warren Court which was amazing and Shapiro was an absolute enabled. It was the court was willing to go to that. We're welfare recipients. This was you know the poor were so often disparaged supreme court rulings and the idea welfare was really looked down upon suddenly in the sixties. You get a series of decisions including Shapiro absolutes in sixty nine. We're the court is aggressively saying No people have some kind of a right to welfare and it it shouldn't be taken away from them arbitrarily denied them arbitrarily in Shapiro. It was a matter of So we've moved to a new state. They moved to Connecticut and Connecticut had a awaiting a residency requirement. That you had to be there for year before you got welfare. And some people put people move their for their first year. Wouldn't get welfare. The Supreme Court struck down now. There were those who had hoped that they will do it. Even more expansive ways come up with some kind of broader rights welfare or something like that according to do that in Shapiro it grounded its decision on the rights to travel but still it was a very very important decision that in practical terms delivered welfare to a lot of people who are being denied it and I guess I guess my point is that that's the type of case. Because we're we're starting to see like analogs of this case in the Roberts court where you start to slowly Develop a line of cases that begins to expand or contract. writes in some fashion and that that Shapiro case could have been radically the building blocks of expanding the State's obligation to its citizens. That's right and you know one of the things I talk about. In the book is there was h really robust movement in the sixties of poverty. Lawyers who were there were many of them around the country and they were very wind. Chill who were an academic? There were a lot of poverty. Law Academics will working Wyndham who were trying to establish much broader right so actually in nineteen sixty nine. The same year that Shapiro. B Thompson decided Frank Michelman who was then a young Harvard law professor constitutional epicenter. He's still a professor there now. Really very disgust much discussed article in the Harvard Law Review the first article in the Supreme Court issued that year argument there was actually perhaps a constitutional right to subsistence to things like food and healthcare from the federal government. And that was the high watermark but those arguments were being made and some people hope that Shapiro Thompson would be the case in which the court embrace that kind of broader idea about Economic Rights didn't do that but as I say it did still deliver a victory for poor people and it and it didn't do that I mean there's obviously we we we could never know the counterfactual but part of the reason why it definitely there was no chance of that happening was because of personnel changes on the Supreme Court. So the let's move into now the era that you're writing about Or the beginning of it and this is Nixon has the opportunity to fill four court. Seats would talk about Abe Fordis- because I'm not sure that folks remember this little bit of history sure so necas elected and he's very eager to change the Warren Court and the liberal conservative one and he's literally asking people about the health of the older liberal justices on a pretty regular basis looking for any possible opening. And he also fixated on trying to remove them in any way he can't even for this was justice in the Supreme Court. We've been put there by Lyndon Johnson he and Lyndon Johnson were old. Old Friends went way back in forty have been his election lawyer and close advisor When Warren goes to to Johnson in nineteen sixty eight and says You know I'm GonNa be retiring soon. The election was going on. Warren was afraid that Nixon would be elected and that Nixon would take over the court or warns says to Johnson. You know I'm going to sit down. These appoint a liberal successor. Johnson decides to elevate a fort is from regular addresses social justice to Chief Justice the Senate rejects that so Nixon comes in and he's not only getting Phil or Warren's very important seated she she's justice but he sees that in for this has been weakened by his rejection from the Senate and Nixon exploits that opportunity in a really You know blood thirsty and illegal Dirty tricks way He begins threatening for this through his Justice Department With criminal prosecution threatens for this is rife and criminal. Prosecutions then thing is Florida's had engaged in some ethical Close calls things that did not violate the law did not violate any court rules. They didn't look very good. They provide an opening for Nixon For this had been investigated she was a lawyer a partner same law for and then investigated for a matter involving litigation which he was cleared out but Nixon was able to use those openings. He sent Yo John Mitchell has attorney general was later and self in prison for Watergate crimes boost to the supreme court and TRIES TO BULLY EARL WARREN. And anyway all this threatening this improper use of Justice Department. 'cause the Justice Department is of course not supposed to be used To threaten people with prosecution to change the recorder and Nixon was using it as a political tool It works eight four two steps down and Nixon gets one of the four say nominations. He's able to get in just three years and that proves critical to changing the court from Liberal Warren Court to a conservative one and in the book I talk about several very important citizens that were five to four In in the early seventies that Ford has had remained on the court as he should have liberals would have one and we will always have had much more robust rates than we have today. We should also say there as far as I know. There's no there's very little ethics rules that bind a Supreme Court justices I know that. Just because I've been following Clarence Thomas. His career For the past couple of years and conflicts of interest and whatnot. And so I. It's an interesting I mean. How much did what happened with. Fordis- inform the way that the Senate would would approach appointees nominees. Well you know the rejection of footage for chief justice was considered you know that was a milestone and I think it did pave the way in some ways for you know liberals to do things like reject Judge Bork down. The road So I I think I think it it aged meeting somebody boulder role for the Senate but But I think that you know in in in my looking back on it. The real tragedy works is over lost opportunities that we have there to have a liberal court to last longer. And what's incredible is that what is his name is really never mentioned now. you know if you go to a loss to. Yale law school where where was graduate of the most brilliant graduate of your law school? He's just not talked about. He's considered in the BARRASSO and It's an overreaction. You know he did some things. The main issue got Got In trouble for was accepting money from a foundation that was run by a Wall Street financier but it was a good foundation and judges injustice. Who actually did do consulting work at the time. It sounds a little strange now Although we do judges and justice certainly do a lot of speaking occurrences but there there. Just wasn't that much that terrible but the idea that Ford is now considered a liberal harassment. He's very much a conservative embarrassment. Because he's really mean exhibit in how the Conservatives used skulduggery to take over the court and sixty nine much as they used it. You know half a century later with Merrick earl to hold onto the liberal majority. So that's the Ford is next project. I think people should know but it's just not when the people are talking about off Okay let's move on to the cases that that follow this right wing. Takeover of the court We've cases like San Antonio School district versus Rodriguez that we can talk about and Milkin be Bradley Alati case and dangerous re Williams. Where where do you WANNA start in terms of an in some ways? We have sort of different Tracks depending on what the issues are right and then I to you mentioned are absolutely critical and I say that you know not only because When I graduated from Moscow I became public interest lawyer for the ACLU Southern Poverty Law Center. And I worked on education tastes and I was really me and my colleagues working in the shadow of these cases because those two rulings Rodriguez nineteen seventy-three and Milliken nineteen seventy four really close the door to Progressive Reform in education. Coming from the Supreme Court Rodriguez was a case in which poor Mexican American Stevenson parents in Texas sued Texas because there were such enormous funding disparities between rich and poor school. This baited maybe education say very equal. They made the very logical argument that if the government is going to provide education to children The equal protection clause says do that equally government is supposed to treat its citizens equally. They won the Federal District Court level. Three Court judge unanimously ruled for them. It gets up to the Supreme Court and in nineteen seventy three. The court rejects their case. Five to four and you know that one of those five votes is is the vote that would have been for. This is but was instead a conservative. You voted the other way. So that meant that all around. The country makes states were able to continue to unequally fund their districts. And that's very much true today. As as I think. We all know that rich districts. Spend a lot more on their students in poor districts and there's strong evidence that leads to different life outcomes for children from those districts then the next case just. I just want to stop there for moment. 'cause we spend a lot of time on this program talking about The implications of of of of kids coming from poorer districts lower income areas and the how property taxes Perpetuate these disparities in the schools You know there's a lot of stuff. Obviously that happens at home when you're talking about lower income kids. They don't have the same opportunities of for educational experiences outside of the home. They have the necessarily more nutritional challenges but the way that we fund schools is so problematic. So in this instance in terms of San Antonio School district versus Rodriguez. This would have been a situation where there would have been an obligation of of San Antonio or really ultimately of the federal government or states right to basically come up with a different scheme in providing funding for schools right that would have been like the baseline they wouldn't have been able to say you know you. GotTa pull away from Real Estate taxes. But they would have said that is you know you gotta come. I if you want to come up with another way of funding but funding would be sort of like I order measure of of providing equal schooling to people right. That's right every state under that would have been required to come up with a funding system that ensured equality as you say die matron that it wasn't reliant on the higher ability of some districts to use property taxes and others. And you know I actually think if the players had one in that lawsuit and got equalize funny over time I think we would have evolved. Hopefully something bigger. Which is the idea of ensuring equity in education because we actually know that if you spend the exact same money On a rich school on a poor school. You really still shortchanging the poorer school right because of the poorest crank is going to need. They need more social workers and they need more bilingual teachers so many more needs. And actually we have an idea of equity where every school gets funded you know properly so that In effect the level of education they're able to provide is equal and that would mean spending more money import districts so we couldn't move in that direction of an obligation on all sixty seats and it's tragic that it came within one vote of of winning. Yeah stunning Light so then let's move on to to Was IT Milkin? V Bradley that you wanted to talk next. Yea critically important case So the next year. Nineteen seventy four The the end of Lacey Pe- brought a lawsuit in Detroit on behalf Black Schoolchildren in Detroit Trying to indicate their right to an integrated education which was being vindicated across the south in the wake of Brown v Board of Education. And you know. Ironically by the by the late sixties We we found that the schools in the south were becoming more racially integrated the ones in the minority in places like Detroit where we saw so much weight freight that effectively weights being educated in the suburbs and blacks were being educated in cities. So this lawsuit said That these black students in Detroit were just as entitled to Educate Education as the kids who were getting in the south and the only way to do that in in a city like Detroit was to come up with a metropolitan area Remedy so it was to say That we'RE GONNA WE'RE GONNA or somehow move kids around The whole metropolitan area and not respect the district lines because the school district lines became racial The the win that case in the District Court in Detroit and the I'd federal judge there comes up with really great remedy which is to create essentially a pie shaped Pie Slice shaped school districts. So every school district has part of the city of Detroit in it and part of the suburbs as well and what does created was A lot of school districts in the metropolitan area that all precisely reflected the racial composition of the whole metropolitan area which was between seventy and eighty percent white The rest largely black. So this isn't that everyone will be going to a largely white school district but everyone in metropolitan Detroit we'd be getting an integrated education that ruling by the Court of Appeals The next step and then it gets up to the Supreme Court and again five to four. They say nope. There's no obligation of any remedy across the district line. So if blacks are trapped in Detroit and were unable to give him an education because there aren't enough weights and each weight too bad so the combination of these two rulings mutually ensured. We would not have equality of education this country. 'cause one said you don't have the right to equal funding for your district and the other said if you're in a big city where so many minority students were you've no right to integrated education and again if eighty four been there. It would have been fired for the other way. So those are the key education rulings that have obviously implications Through the decades that followed and and and continue on today and I think in many respect also Made our education system so susceptible to the Corporate Reform Movement. That we have more or less just sort of passed through And which also did a tremendous amount of damage to our education system. And the other sort of I guess I twin horse of the apocalypse of of inequality as you as you outlined it is Has To do with our campaign. Finance system and really what that ultimately means is the failure of politicians to be responsive to the issues sets and the needs of ordinary people as opposed to monied interests. Exactly right and you know I talk about how the World Report that came out in twenty eighteen By Thomas Ticketing other on this. And they said there were two main drivers of inequality in the United States one was educational inequality which we just talked about. The other said was the lack of progressive taxation. Which you know. The top tax rates have gone down so much In in recent decades and that really is both of these are attributed to the Supreme Court and the reason are terrible unfair taxes attributable pinker is just what you said is that starting nineteen seventy six. The Supreme Court just begin striking down campaign finance law after campaign finance law and as a result the Supreme Court ensures that wealthy individuals and later corporations really have undue influence Congress in the legislatures and it really did starting nineteen seventy six when the same conservative court decides that money equals speech and they struck down. It was after Watergate. Congress actually passed a very strong campaign. Finance law really would have changed the role of money in our society and the Supreme Court strikes down strikes down the limits on expenditures. And says you have a First Amendment right rich person to spend as much money as you want to get someone elected. And that's really been the undoing of our democracy Let's talk about some of the Those you know those cases in the sort of the the The I guess the like you say Buckley v Vallejo is the most important one. Just give us a sense of what was involved there and then I guess we could talk about Obviously that that goes through a series of other cases to get to citizens United Buckley. V Vallejo is the original sin in that regard right and So as I as I said after Watergate there was just tremendous tremendous popular pressure on Congress to pass campaign finance or for reform because people forget now but watered the Watergate scandal dishes being about breaking into the Watergate Hotel. There were major major campaign finance improprieties uncovered of corporations. You know delivering money to the committee. Re like the president in paper bags and things like that so Congress does pass this very strong reform. It gets challenged by James Buckley the then. The New York's conservative senator and some other people The D. C. Circuit Court of Appeals in Washington. Dc which is the case. I actually uphold the entire law and quite reasonably says. This really isn't about speech. You know this you know that giving money to campaign isn't really speech and it also has very strong language about how this is very very important for Congress to act to protect our election so that was a great ruling from the DC circuit. It goes up to the Supreme Court and they reverse and as I said. They created this framework. That you know Is still with us where they said. Okay well if you're giving money to a campaign that could lead to some. You know our fear of corruption. So we're going to allow regulation of that but if you're just spending money on your own to elect the candidate these no worry about corruption. And they they struck that down and that basic framework has remained with us over the years. But it's allowed so many loopholes because as we know there's now a tremendous amount of spending from PACs Super Kayaks and Rich people on their own To Get Candidates elected that doesn't need to be direct contribution to the campaign and and Yes there have been cases over the years. They've expanded these struck down. You know reasonable attempts to come up with other ways to limit the role of of of money in campaigns and ultimately lead to citizens united which you know people know was taking this a whole step further the idea that corporations have the right to use their own treasury money And the amounts of money corporations. Of course you know enormous and and really So much larger than vigils have to use that to elect candidates as I give it the right to speak you know. A corporation isn't really sort of entity we think of as speaking we've always people speaking but anyway that created such an enormous new loophole that the floodgates have been opened ever since. And none of this had to happen. This is over Supreme Court. Mealy denaturing our democracy There's a whole host of cases that follow their Boston bank versus Belotti in Massachusetts and and others. But I wanNA talk a little bit about a couple of other Cases that In areas which you write also contribute to the inequality that we have Limits ON CLASS ACTION SUITS A. Let's talk about that a little bit. That is One of my one of my colleagues as it were But it just talk a little bit about how that lends itself to Inequality in the in the short inequality income inequality sure you know Access to the courts has many aspects to it. And you know one is literally being for file a complaint but you also have to be able to bring a lawsuit that gives you some reasonable chance of proceeding and winning so for poor people for working class people it is so expensive litigation and to hire a lawyer and certainly to go up against the major corporation essentially it. You almost can't do it unless you have class action you know. There's certainly some exceptions but so when women who had very strong factual basis for saying they were being discriminated against By Walmart wanted to sue they really had to do as a class action. You know an individual woman who says that she was repeatedly turned down for management when newly arriving network but international anyway. She's not to be able to hire a lawyer and see Walmart and get anywhere. She just doesn't have the resources so those need to be class. Actions and that case actually existed Many many women who worked for Walmart. I did get together and brought a class. Action Charging Walmart systematically winning They proceeded as a class. And when it got to the Supreme Court and Supreme Court issued a terrible willing In class actions and said that That women had failed to show that there was enough commonality to their claims that even though they were all claiming Sex Discrimination of very similar kinds hard to be promoted. They were being underpaid off that because they didn't show that they were all affected by saying the same manager or something very specific. They couldn't be class. So you know the court you know in the core issue that ruling in terms of you know what what are what does communality. Meaning THE CLASS FROM THOSE WATER. Sort of legal niceties about that. But essentially they were closing the door on large class actions. And as I say when you do that you really give large corporations like Walmart. A free pass because unless workers can band together in pretty large groups to. They're not going so is that is there a way can can congress fix that? Kink I mean is that is that I mean when the Supreme Court ruling that. There's not enough commonality right that that everyone's harm has to be the same or that the way that the harm was Inflicted must be exactly the same as opposed to the Walmart just sort of turned a blind eye to You know managers who were paying women lasts or being or was consciously paying women last. But in some instances it was twenty percent less some instances it was you know fifteen percent less whatever it is But it can congress step in or is that what what in that case Dukes Walmart. Is that a specific. Is there a is there? There's something in the constitution that they found. I mean what what what is the? What is the the basis for that ruling? Yeah I know it was. It was a federal rules of procedure. that governments class actions yes congress could step and Congress has stepped in in response to some of the other cases. We might talk about you. Know other worker Cases like notably the Lilly ledbetter. I swear up where the Supreme Court really went to great lengths to deny A women's equal pay claim and their Congress did step in and they they passed the Lilly. Ledbetter it it's hard to get Congress to act a lot of these issues and you'll cope. Influence is so great that where we've actually seen was for decades. The Tort Reform Movement was strongly pressuring Congress to do things like make it harder to bring class actions and It's you try to impose limits on punitive damages and things like that so there there's something that It would be nice if Congress acting on but so much of pressure is coming from The corporate world and large donors that it's just a matter of stopping them from making the law worse and we need this in court to stand up for workers when they can and of course we also have you know the the rash of voter restrictive Laws that have been upheld by the Supreme Court and in addition I mean really the sort of I guess. The original sin of that was to Gut Section five of the voting rights. Act which was the formula in which we determined which states needed pre clearance from the Department of Justice to change their voting laws in any fashion. And I think we've had dozens of instances over the past six or seven years that the Supreme Court basically gutted a section five and you talk about judicial activism is. I mean the the Scalia at all were were were disparaging of the Senate reauthorizing that act. I mean it was. That was really stunning Can you talk about that for just a bit? Because the there was no more clear cut a case it seems to me of judicial activism. Then then then the their assault on the voting rights act they basically said that Senate was too too cowardly to actually diaw is it? You know you're exactly right. I mean when you look at just you know abominable decisions that has to be Very high on the list. You know 'cause also remember what the Voting Rights Act was. It was the crown jewel of the civil rights movement. You know for years. Our country was embroiled. In civil rights movement. Many people died fighting for the right to vote. Congress PASSES RIGHTS ACT EXPRESSLY. To You know to vindicate the Rights at the Civil Rights laws about. It's passed by a bipartisan Congress. It has to be reauthorized. So it is authorized Year after year by bipartisan. Majorities in Congress he'd signed into law we are authorizations by both Democratic and Republican Presidents George W Bush signed reauthorization and said very nice things about the act so It's it's hard to think of a log that was more sacrosanct and then when you add even constitutionally Congress gives The Constitution gives Congress very special authority to regulate election so congresses at the height of its power here. And we all remember Chief Justice Roberts at his confirmation hearing said that he got a job should be an umpire calling balls and strikes so the idea that they would strike down this particular wise tonight as active as you can imagine and then when you look at the grounds on which they did it The Roberts talked about the equal dignity of your states and it was just a meet up doctrine. And it's not just me saying that Judge Judge Richard Pose Ner of the southern circuit. Who was appointed by Ronald? Reagan is a big conservative. He wrote a piece or Afterwards in a popular journal same the constitutional ground that the court had struck down the the Pre clearance rates was made up. That didn't exist so the idea that they would do that was just outrageously activists and you know clearly results-oriented five conservative justices. Just don't like voting rights but then as you say they were also in other voting cases like the Indiana voter. Id Case like the you know years of cases of car about partisan gerrymandering. They kept saying well. You know we really have to leave it up to localities. The legislature to election officials. We don't want to intrude and defend the rights of voters since amazing how they take such a hands off approach when it comes to baby hoping more people to vote but when they have the opportunity to really gut the voting rights act. They do it on absolutely crazy round and it's hard to look at the going cases and see anything other than that. I've conservative justices. Who just seem to always rule in the way that will maximize Republican vote in elections. They are ruling the way the Republican Party wants. And you know I think really shameful now the the the way that the court has been acting really in the past ten years more or less I in regards to voting voting rights is it seems to May from my perspective very similar to the way that the court acted starting in like eighteen ninety three and began to sort of in in the wake of reconstruction Began to to allow these The states essentially to chip away at voting rights and in fact the voting rights act was sort of the culmination of basically saying like the the court as over the years. Just a eviscerated At least the intent of the Fourteenth Amendment and You know going in and others following reconstruction we what what does that say about the court as an institution I mean and and then I wanNA pivot off of that as to what we can do about it because I mean if the court the it seems to me that there's been this sort of like dance right where the ideas that lawyers in particular in legal institutions want to maintain and and and society at large on some level. Although I don't feel like the right has done that. Want to maintain this this aspirational image of the Supreme Court as not political and as being guided by these these principles and these laws and the constitution. When in fact like the it it seems to me that the interpretation of these laws is. There's a lot of wiggle room in there. And it can fundamentally changed the kind of society we have. If that's the case what what. What can we do in terms of reform? Okay so a couple of thoughts. One is from the beginning of your question when you drew the analogy each. I think that's exactly right and one of the points. I'm making the book. Is that the war in court. That we began by talking about really wasn't anomaly. Right that was a little treat of time in which the court was actually standing up for the underdog but if you look at the rest of the history of the court you know in during Before the civil war they were upholding. Slavery Madrid Scott Decision after the civil war. They weren't upholding segregation in plus versus Ferguson. During the progressive era they were striking down progressive. Laws like the Child. Labor was during the new deal. They were striking down the EARLY NEW DEAL LAWS. Until you know your threatened to pack the court so We have had really a court that has stood up for the powerful. Almost for the entire history of the Warren court wasn't exception. What do we do about that? Well there are a lot of proposals out there know there. There are reasonable. People are saying if you Democrats were to win in the fall and and to take the houses that they should pack the court and that would actually not be so difficult You know a lot of reforms of the court requires constitutional amendments ending to the number of justices. Those not did not originally begin as nine. And with Congress to amend the law and make it twelve or fifteen and then you know our our next president could Appoint you know more liberal justices There are others. Who really think that. If you do that you destroy court because every every party that has majority will do that when they can. And we then just conceded that so completely political branch. You know And they're also talk about you know maybe having retirement ages because you know when the constitution was written you know. We didn't have many people living in their eighties. And those are very different ideas. How long justice. Who would serve? But I do think that there's no substitute for just winning the political battle. You know the Democrats need to win this next election. And they need to appoint justices the way the Republicans have been very good at You know it is. It is a battle for political control of the court and the Republicans have done better. They did better with Ford is they. Did it better with Merrick. Carlin and they do better the time their retirements better. Anthony Kennedy slip down to make sure that there could be a young Replacement for him. And you know We GINSBURG and Stephen Bride did not do that. During the Obama Administration the Democrats really need to play to win. Take back record all right out of let me let me just challenge you a little bit here and I say this as someone who was raised by a pack of lawyers and and and did a year of law school and still remains fascinated by all these things like where does where does that begin right like you just use. Examples of how Kennedy basically orchestrated this whole thing to get cabin on there. You know and and there's been various different reporting about it and we. We could probably argue to what extent he did but certainly Ginsburg brier refused to sort of contemplate. The idea that they would step down and sort of like put that type of strategy in their forefront of their minds have certainly the prerogative And you know the the idea that we need to to win the political battle but we we hear stories of like you know what was done with Fordis- in the idea of like Merrick Garland and I see Chris coons going on the air. You know six months ago and saying if we win back the Senate the first thing we should do is reinstated institute the Filibuster for for for justices. I mean this is like a what point do in this comes from lawyers and I and I understand it right. I mean like I say I was raised by a lot of them. At what point do does the sort of the broader institution of law as opposed as distinct from? Let's say the conservative movement and all the lawyers who make up Who are who? Who who serve that have been to Diagram. Covers both of them? At what point did they say we're going to give up the ghost on the Supreme Court not being a political body because it seems to me that you know you've outlined that at the very least the Republicans it more aggressively gave up? That goes fifty years ago. But I you know. I think you can argue that coming out of reconstruction they had given up that ghost. It's just that The the the Democrats the laughed. They don't seem to sort of be able to let go of that vision of the Supreme Court. I think that's right. And I think as a result you know they're bringing you know a watered down to a nice site. I mean you know I Mcconnell has been very clear you know he. He refused to have any Hearings at all for Maryland and then. He went out of his wages. Hello Kentucky Audience Dot long ago of course if there were a vacancy in the last year of trump administration we would certainly so I mean he is. He's thumbing his nose at Democrats and basically saying you know we don't play by any rules. Were not trying to be ethical principle. It's all about power for us and I think liberals need to get more in that mindset and you know you do think about you know will rogers saying. I'm not a member of an organized. Political Party Democrat. I'm there's a way in which. Republicans are just better at organizing themselves to to win tower so I don't know that for a fact that Anthony Kennedy you know talk for the White House about his successor also. Been reported certainly did anything like that. But you know it does appear that. He did resign at a time when he wasn't that that old he wasn't a terrible help was the last moment he knew that a. Republican president can name a successor with for sure or Republican Senate. Republicans tend to do that in this statistics on how they're just much better at passing their conservative seats onto conservatives that just isn't the Democratic Mindset. And you know if we want to once again get rulings on happened people we care about. I think we need to think in those. You know really a very calculating as much more I mean. Where does that start because you know the the right? The voters are also a lot more tuned in to the implications of the court. I mean there's as you know of the myriad of reasons why Donald Trump but for is to why. Donald Trump won one of them very well could be because Mitch. Mcconnell kept that seat open and And and so we're where does it start like? I guess what I'm asking is you know why aren't you? I don't mean to pick on you. But why aren't you coming out and saying we got to pack the court? Give up the ghost. This is a political body and this at the very least will Force voters who vote from the center to the left to understand the implications of the court because they clearly don't now yeah I hear you and You know I'm not quite there in court packing but I see that that's the way decimate us but I think you know where we could all agree is it needs to be much more central to this political campaign like a lot of us are very upset that we watched these debates and the Supreme Court does not come up right the the boundaries often ask some pretty ridiculous questions it should be. There should be much more focused on the Supreme Court. The Democratic candidate should have talked about it and talked about it in a way that actually got to the swing voter. I mean in my book. I show how the court has really hurt The middle class right. I mean if you want if you want to be a member of the union if you want to have a minimum wage if you want your politics not to be controlled by the richest one percent by corporations you need a different Supreme Court and this should be front and center And you know by and say he would name in African American woman to the court great but hello talking about naming justices who'll stop the socratic takeover of a lot of our society that that should be much more in the democratic playbook every day Adam Cohen the book is Supreme Inequality the Supreme Court's fifty year battle for a more unjust America. We will put a link to the book on the site at majority dot. Fm thanks so much for your time. Today I really appreciate it. I joined by while there. It is folks need motivation to go and vote for someone other than Donald Trump. In the fall I don't know why you would at this juncture. But if you do that's a good one that's the one that I've been harping on hopefully keep our fingers crossed and we won't he won't be failing another supreme court seed he's already Fell one hundred eighty plus federal judgeships across the country. Lifetime appointments. We already are at a five four. You know a lot of people are talking about that. How do I pronounce his name? Isaac Cianjur Chart near In The New York New Yorker magazine did. Is there a visceral another a person and in his Questions and this guy Epstein is Richard Epstein who is a big conservative legal thinker and Neal gorsuch apparently is just a huge fan of this guy and I mean he's a lunatic and it's really just a matter of time before these five Supreme Court justices get more aggressive the worst case scenario and that happens when they're six of them And then maybe seven. Frankly I mean I think it's it would be stunning if Ginsberg and Briar made it through another four year term. I don't even know that they're gonNA make it through this one. But I mean you know and discussion as far as I'm concerned but Your mileage may vary but you hopping on what's going on here. Some rustling charter stealing your bit. Sam which is to let Libertarians. Just talk and express themselves son of a bitch son of a bitch. Yeah exactly. That's what it was. And then he just it it really is. I almost feel like I wanna read that out loud because it is so hilarious. Maybe we'll do that. I don't know we got. We got to think about what we're doing for For April first and You know tomorrow marks my sixteen th year anniversary in In radio you know. I'm not a radio anymore. let's Oh I got one more thing to add to the Plugs and Notices and I'll drop this in again tomorrow but I want to just read it now. Jamie's good friend. Had A store called cult party and it was co-op it was a close due to the Pandemic there are small business and they run as a CO OP. And they were broken into over the weekend and Stuff was stolen. They may not survive. You can go and help out this This co-op at Gofundme E. DOT COM and Google for cult party robbery. We will put We will put this in the In the The the description and then we will read it again tomorrow. They are ineligible. Apparently for most of the Kobe stimulus programs because they're run as a co OP. Which is also crap show ridiculous A reminder folks this program relies on your support if you If you can afford it at this time if it does not create any financial insecurity for you at all You can become a member of join the majority report dot Com if it does or if you think it will don't do it and if you if it does or you think it will and you still want the extra content because you're sitting around at home maybe you've lost your job. Maybe you're having a care for somebody. Whatever it is. Send us an email at majority reporters at g mail DOT COM and We will hook you up. 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The No McKee show and also on Youtube. No Mickey Const. She is Down in Arizona dealing with All the the stuff going on down there I watched a log where she went into to get tasked she is with her. Mom or mom is immuno compromised They are staying at You know they're her grandparents old house. Apparently they pass away a couple of years ago. check it and We'll be talking to know McKee. Maybe tomorrow actually Also don't forget T. M. B. S. is Tomorrow night man tomorrow night you can check that out a Patriot dot com slash T. M. B. S. or the Youtube Channel YouTube dot com. Michael Brook Show Jamie you there. Well Jaime you could check out the Anti Fatah patriotic dot com slash the Anti Fodda and Matt. What's happening with you? You've just upgraded. You're just yeah. Yeah we're going to zoom a record. The widow renter episode of literary hangover. That's been delayed due to this pandemic but we're GONNA do whatever zoom and also I will be appearing onto the serfs serfs YouTube Channel Twitch. One of the two they're interviewing me tonight at five thirty eastern. So wow all right. We got a quick break head off to the fun half left is that Jamie and I may have a disagreement. Yeah you can't just say whatever you want about people just because you're rich. I have an absolute right a mock them on Youtube. He's up there buggy with I am not your employer negativities. I'm sorry I didn't mean to upset you nervous. A little. Bit upset riled up. Yeah maybe you should rethink your defensive at your booking idiots. We're just going to get rid of you all right dude dude dude dude dude You want to smoke his joint. Yes do you feel like you are a dinosaur shit exactly? I'm happy now so win win. It's a win win win Listen to me two three four five times eight four seven nine zero six five. Oh one four five seven to thirty eight six twenty seven one half five eight three point. Nine billion wow. He's the ultimate. Mathur don't Uc left-wing limbaugh. Everybody's taking their dumb juice to them dance rand. Paul had my first coil. Scene with an opening moves to my repertoire. In this world yes. This is a perfect moment. No wait what do you make under a million dollars? You're not paying fuck you. You belong in jail. That you're a horrible Bertha Part GonNa take quick break. Take a moment to talk to some of the Libertarians out. There whatever vehicle you want to drive to the library what you're talking about his gibberish japs elastic. I'm feeling more chill already. Donald Trump can kiss all of our asses. Sam Hey Andy you guys ready to ship ler was such an idiot must agree death to America. Wow unbelievable got a really No worries I wanNA just flesh out a little bit. I mean look. It's a speech issue. If you don't like me. Hey thank you for calling into the majority report them will be with you shortly.

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Unjust America

The Book Review

1:02:13 hr | 7 months ago

Unjust America

"Hi I'm Tara Parker Pope Creator of well the healthy living section from the New York. Times if you're looking for simple ways to build healthy habits join the each day for the well minute our new flash briefing skill on Alexa to get started search for my well minute Alexa APP and tap enable then ask Alexa to play your flash briefing to hear your daily challenge if you need detailed instructions go to ny times dot com slash voice. Be well and I'll see you soon to start this journey. How does the Supreme Court consistently rule against the interests of the Poor Adam? Cohen will join us to talk about his new book. Supreme inequality are we really preparing our kids for life in the modern world? Madeline Levine will be here to talk about her book ready or not. Plus we'll talk about what we and the wider world are reading. This is the Book Review Podcast. From The New York Times. I'm Pamela Paul. Adam Cohen is here now to talk about his new book. Supreme inequality the Supreme Court's fifty year battle for a more unjust America. Adam thanks for being here pleasure. That's a very ominous and pointed. Subtitle I want to get into that in a moment but I want to start. First with your last book before this imbeciles because it also looked at some pretty grim history an American court history and talk a little bit about that book and how you got from there to here. The last book missiles was about an infamous 1927 Supreme Court Case Buck Versus Bell in which the court actually upheld eugenic sterilization. It said that the state of Virginia could sterilize this poor young woman just because they thought that her jeans were bad and that she was feeble minded so it was one of the worst cases in Supreme Court history. I thought it wasn't appreciated enough so I I was happy to China late on that but as I was writing that book it did occur to me that many of the same themes in that book about how the court really favors the powerful over the week and the rich over the poor are just as true today and I thought why not take it into a modern context so this new book is looking specifically at how. The Supreme Court treats the poor the disadvantaged but during a more recent period than the previous correct and picked a very interesting period and framing that. I think people don't think about enough but the last fifty years it's not just an arbitrary a half century. It's that something very specific happened. Fifty years ago Nixon was elected in nineteen sixty eight and he had a vision which was to end the liberal. Warren Court entered. Replace it with a conservative court. It's amazing how quickly he was able to do that in three years. He got four appointments to the court and completely shifted court. That had actually been on the side of the week and the the poor and criminal defendants and folks like that and shifted into a conservative court that we live with today. So there's really a fifty year period from when Nixon took over the court right. Now that has all been a right wing court with right wing chief justices and in that time. They've done a lot of damage so when people say the Boring Court. It's kind of shorthand for a liberal. Maybe more activist to use the phrase the time US period during the courts history. But what were some of the major decisions that happened under when when Earl Warren was the Chief Justice so the Warren Court really is as as you're suggesting quite legendary when he came in in nineteen fifty-three within a year they handed down. Brown versus board of Education which not only was this milestone in that it began the process of desegregating education but also he managed to make it a unanimous decision so it was really an amazing start for his tenure and then throughout the Warren years he they handed out like the Miranda decision which said that you have a right to remain silent if to be told that if you're arrested and you have a right to a lawyer in Gideon v Wainwright and then actually they were doing things for actually for poor people welfare rights decisions. They were striking down the poll tax. So this went on for quite a while and as I say it really ended on a dime Nixon came in Richard. Nixon have lead begun to look more liberal compared with more recent Republican presidents and I feel like he started almost having like kind of revisionist Nixon moment but not so here. You say well I hear people say well Nixon. You know favored the environment. But no Nixon was as we've heard before a terrible terrible man and he really was in respect to this fifty appeared on the court because not only did he make these appointments. They completely shifted the court but one of the things I really try to shine a light on is that he used dirty tricks to create this conservative. Majority that we still live with now. What is that specifically? Well he got four points because one of the four vacancies was there. He created a Manning. Fort Abe for this was the most. Liberal member of the court ruled in favor of the poor and students and civil rights. Nixon wanted him off the court and Nixon actually engaged in some crazy dirty tricks where he investigated for this for Fordis- had done some things that were ethically a little dubious but they did not break any laws. They did not break any court rules. Other people did similar things. He had a financial arrangement with a foundation. Which isn't great but also isn't grounds for removal from the court but Nixon had his attorney general Mitchell who ended up in prison himself for Watergate. Crimes go to the court and threatened for this through the chief justice and the threat. Was that for this would be criminally prosecuted and that his wife would be criminally prosecuted for some other thing. That she didn't do Fordis- ends up. Resigning under this pressure. And that's one of the four CS and as my story unfolds in the book it becomes a critical seat because some decisions that completely changed the course of American legal history couple in particular about education that have made our education system very unequal would have come out the other way if Nixon had not bullied and threatened for this off of the court. Who did he replace him with? You replaced him with justice. Blackmun at that point was quite conservative. Harry Blackmun everybody but we now know him as the liberal. He was at the of his life and he wrote Roe v Wade but in the beginning he was known as one of the two Minnesota twins he had been childhood friends with chief. Justice Burger in Minnesota and he voted with him in a conservative way for quite a while so that was a vote that ended up being against the students against equality in these education cases before we get to those education decisions were the other three. Nixon appointees to the court burger is a new chief justice then he appoints blackman and then to arrive on the same day. Lewis Powell and ranked who was at that point a rather obscure Justice Department official and of course leader goes on to become chief justice all names. We still know today. But we perhaps don't know these education cases. So what were they critically important? So in one thousand nine hundred seventy three. They decided to case called Rodriguez v San Antonio Scoreboard. This was such important case. There was a big movement nationally to say that the equal protection clause says that when the government runs public schools. It has to run them. Equally has to fund schools equally across the state. So this was a lawsuit brought by poor Mexican American parents and kids in a school district in Texas suing over the fact that just a few miles away there was a very wealthy school district that spent much more on its kids and they argued that the equal protection clause said funding should be equal for every student in the state. It won the Federal District Court level and I in fact. This claim was winning across the country in state courts and federal courts and academics. Writing books about how of course equal protection requires equality of funding. And then it gets up to the Supreme Court and because of these new Nixon appointees because Fordis- had been replaced five to four. The Supreme Court says the equal protection clause does not require equal funding. Change the course of education history dramatically. And as I say it's really because a seat was stolen and we would have different public schools today. We would have schools in which every kid got equal educational opportunity so that was the first one and then a year later it was a critically important desegregation case called Milliken V. Bradley and with this was about. Is the court actually doing a pretty good job of integrating the South after Brown versus board of Education? Took them awhile but it was. It was really happening. The civil rights movement wanted to come north and integrate the schools in the north to do that. They wanted to integrate metropolitan areas. Because places like Detroit with white flight. The Detroit City school system was heavily black and then the suburbs were heavily white and the CPI representing black school kids in Detroit argued the only way we'll be able to get an integrated education for kids in the cities is to create an intra district remedy. That would take in the city. The suburbs again. This one at the district level the District Court Judge in Detroit. We've got a really nice plan. In which every school district. They create new school districts of wooden follow. The urban suburban line would reflect the racial composition of the whole metropolitan area. So every school district would in that case be seventy percent white so it wouldn't be this case of taking white kids from the suburbs and sending them into the inner city all on it would have created an integrated system for the whole Detroit area. The judge ordered that the Intermediate Court of Appeals upheld it and again five to four because of Nixon's changing the court the Supreme Court reverses it and says if you're on the other side of a district line if you're in the suburbs you are free from any integration order pretty much and that was that was seventy four so that within two years because of Nixon's quick change of the court education largest ricocheted in a very unequal direction. I want to go back to that. First case for a minute in Texas so was the inequality because the funding was based on local property taxes. Yes and there was state funding as well but with the leaders of the school. Kids were arguing is. That isn't how it should be. You know the education system is a state system right. The state is in the business of providing education and there was state funding. There was some kind of an equalization formula. Didn't really equalize it. But they just said it shouldn't be a local matter. The State of Texas is educating kids and the State of Texas under legal protection clause has educate everyone equally but yes the Supreme Court in this five to four ruling written by justice. Powell says local controls. What's important that we need to let the localities decide what they wanted together. These two decisions basically negatively affect both the poor and minorities yes and continues to this day. You know one of the things I talk about. The book is imagine if it were different. Imagine if the court had said every student in America has the right to an equal kind of education equal an integrated and there is a lot of social science data. Showing that if you are at a school that is underfunded if you're at a school that's hyper segregated. You're going to have worse outcomes. You're more likely to be unemployed as an adult. You're more likely end up in prison. Things like that. Imagine if in nineteen seventy three and seventy four we had said no every kid in America has a constitutional right to the same start in education. And as I say we came so close five to four and if they have brought these cases a little earlier before Nixon had been able to completely shift the court. They would've won all right from one depressing outcome to another let's talk about income inequality because obviously there are many causes to income inequality often those conversations come down to you. Know Discussion of tax policy and economic policy but you say that the Supreme Court exacerbated income inequality through decisions that it made. What are some of those decisions we think about the near record levels of of income and wealth inequality we have in America today? People tend to think about first of all large. Social Forces like globalization automation. But then they also look at policies generally from Congress and the president. Would I argue in the book is we are not paying enough attention to what the Supreme Court is done to promote inequality so one thing I do is i? I point out that in. There's something called the world inequality report which is done by. Thomas pickety and other economists and in two thousand eighteen they looked at inequality country by country around the world in the United States. They said there were two main drivers of this huge increase in inequality one was unequal educational opportunity and the other was regressive taxes or insufficiently progressive taxes so unequal educational opportunity. As we've just discussed really it's it's it's milliken and Rodriguez. The Supreme Court decided we would have on an equal educational opportunity. They could have made the other decisions for our tax system which is is really not progressive. And they we've kept lowering and lowering the highest tax rate on the wealthy. That's directly attributable as I argue in the book to the Campaign Finance Decisions Right. I mean in early Nineteen Seventies. We didn't have this idea that money was speech that people had a right to contribute or spend an unlimited amount of money on campaigns. The Supreme Court created that right and by doing that. We now have a system. Where big money and with citizens united they extended to corporations big money is now so influential in campaigns that really the rich control government particularly on tax policy if you look at the trump tax law that just passed a couple years ago. Poll showed the voters very much opposed it and they they saw that. It was directing the biggest savings to the wealthy but the campaign finances liked it very much. And we're requiring it and they were saying publicly we will stop contributing money. If you don't pass this tax bill. The reason we have that tax bill and the Bush tax cuts and others before that is because of the Supreme Court giving so much power to the rich and political campaign. I think people are familiar with citizens. United and a lot of the discussion recently has been specifically about that decision. But you're also talking about earlier with regard to campaign finance. What were those decisions? And when did they happen absolutely so great people use now they use it as a shorthand for? That's when everything went wrong but right in fact things were terrible before it really started in one thousand nine hundred ninety six case called Buckley versus Vallejo. And that's the case with the Supreme Court said money equals speech. They didn't have to say that in fact is another case where the court below in that case the DC Circuit Court of Appeals said. The opposite they said money doesn't equal speech and in fact that when Congress passes a law putting pretty heavy limits on campaign contributions and campaign spending. They're allowed to do that because they're trying to ensure that the democratic process works the DC circuit had it right but then the Supreme Court comes along and verses that says money is speech and in that case they struck down all the limits on campaign expenditures. They kept the ones on contributions. But once you say that rich people can spend as much as they WANNA campaigns. You've really opened the door. To huge amounts of special interest influence and then over the years they struck out more and more regulations at and it got worse and worse but it was really you know people say that the original sin in campaign finance law was that statement by the court in Nineteen seventy six. That money equals speech about came out a couple of years ago that I'm sure you're familiar with the corporations. Adam Winkler which looked at kind of the long view of history of corporations kind of acquiring rights and protections in the same way that individuals have an imagined. There's some overlap in terms of what you're talking about in this book in that you're saying that. The Supreme Court very often ruled in favor of corporations corporate America. Can you give some examples of that? There are quite a few one thing that I found particularly maddening and I wrote about this as a journalist. Dan was happy to revisit. It in the book is the Supreme Court has really eviscerated punitive damages. It used to be that when corporations did terrible things you know the Exxon Valdez spill. There was a case of the court. Heard where an insurance company just completely screwed over a policy owner and said we want you to take this case to trial but we will protect you and we will pay all I. If there's any judgments you'll pay everything. They totally lie. And they don't pay everything and the poor man and then it turns out that there were internal records. According to some of the evidence in the case that the insurance company was particularly targeting its customers who were weak in some way vulnerable and this was a guy who had to had. I think some strokes or had cerebral palsy. So they're corporations do terrible things and the one one of the main ways we have to keep them in line is. Juries are allowed to punitive damages as they did against an insurance company as they did in the exile case. The Supreme Court came up with this. I think completely made up doctrine that says the due process clause says the punitive damages have to be in a ratio of something like nine to one to actual damages. So you end up getting the Supreme Court is saying when we have one hundred twenty million dollar punitive damage award against an insurance company. We're GONNA take it down to nine million dollars. That's a huge huge gift corporations. And if a jury can't keep them in line with punitive damages who do bad things and so one thing that. I contrast that within the book is almost the exact same time. The Supreme Court was asked to rule on three strikes. And you're out where the laws were sending people to jail for fifty years to life for shoplifting. A few things and the Supreme Court said No. That's not a constitutional alisher so the same time as they're saying the due process clause says we can't punish these poor corporations with these large punitive damage awards. They're saying well. We can send someone to prison for fifty years for shoplifting videotapes. So that's just one example of how this is a court that's been very very concerned about us not harming or hurting or disrespecting corporations and really not concerned about people in many cases so those are cases of individual people. I want to talk about one other area that touches on corporate rights which is worker rights and unions and was this period during which there were decisions that were ruled in favor of corporations and against workers rights absolutely and you know the very beginning of my book when I was writing the introduction. You think like how do I want to start? How do I tell the story? How do I really show what this was all about? And it's exactly what you're saying. What they did to workers begin with three stories of individual workers who terrible things were done to the work. The first woman I write about. She was the only African American woman in the catering department at Ball State University. The woman who directs her today uses horrible racist language around her. Sambo slaps her at one point and another colleague talks about her relatives in the clan and threatened her. And it's just horrible horrible fact pattern. And she sues ball state and the Supreme Court rules five to four. Well you know ball. State isn't liable for the actions of that supervisor because she wasn't really a supervisor although she controlled her activities on a day-to-day basis. She couldn't hire and fire. So it's three cases at the beginning of the introduction of the book where the court has found these little technical ways of saying that corporations that have treated workers horribly are not going to be liable so that and then also on a bigger scale. There's a famous case of just a couple of years ago. The case where the court said that government unions can't require non members to pay fees for being represented and that Janice case is is doing terrible damage to the public sector unions which are actually now larger than the private sector unions. So that one ruling which I think the law is entirely made up in is really really a blow to the whole American labor movement so the courts been very busy in this regard so when these kind of decisions get made when laws like this get passed in Congress along these lines. People often say if they're on the side of labor or the poor they will say well. This is lobbyists corporate lobbyists spending a lot of money and these people in Congress are behold into them in order to get reelected Supreme Court. You're on it for life so that can't really be the sort of force behind all of this. Presumably there is some kind of ideological basis for these kinds of decisions. If you could describe it kind of distinctly what the justification is on the part of these justices and making those decisions I mean? How would you describe it? How do you think they would describe it? They always talk about how they're really ruling on the law. And we look to the original intent or we we try to get the attention of the Congress had enacted a piece of legislation. We're just trying to read the statute in. Its most common sense way. They always say we're just doing law. But I think it's very clear that they're doing politics. And the way we know that they're doing. Politics is look since Nixon ran for office. Saying I'm GonNa find some justices who are going to change the court and make it conservative. That's what all these Republican presidents have done. There was no question when trump made his appointments. That we're going to look for. Who's the best interpreter of laws in the country? No they were going out to conserve saying we promised to find you. Someone who is going to think the way you do on issues like abortion issues like corporate rights and so forth. So what is that mentality? They're looking for. I mean. I think we would say conservative Republican values but I also think this comes out of the first book we talked about earlier. My Book Imbeciles. I think there are just people who by nature are more sympathetic. To the strong over the weak they identify with hierarchy. They want the people on top to have a lot of power and they're fine with crushing the people at the bottom. That tends to be the I. Think the psychology of the Conservatives on the quarter. They would never say say presumably. That's not how they went to smile. Anyway no chief justice Roberts is very religious man and went to mass every Sunday when he was at Harvard Law School and Harvard College. No they don't see themselves that way but if you look at their decisions somehow when it's a corporation when it's a rich person they're there but when it's a poor person black people in the Voting Rights Act. Somehow it shakes down five to four along those lines so many more questions to ask you not enough time. I want to ask one final question which is moving forward. We have a supreme court. That's gone through a lot changed very recently. Two new members on the court or search and Cavanaugh. There's been a lot of kind of prediction about what changes going come. Maybe not as much conversation about what their approach might be to issues around poverty and class. What do you see happening under these under this particular court? My guess is they're lying low until the election but I think there are five votes right now to do some rather dramatic things you know one thing that people have not focused on much is I think there are now five votes to declare. Affirmative action unconstitutional at something. Roberts is wanted to do. That would be a huge change in our society that would absolutely affect poor people and certainly minorities a lot. There may be votes for other things like that and then I think you know. This election is so crucial because justice. Ginsburg God bless. Her is still there but you know they're going to be some more appointments. You know probably in the not too distant future and if trump is reelected we could see a court that is much more right wing activists really going after the social safety net. You know maybe striking down things like food stamps and social security. There's some radicalism that could come if things change much more all right so at least according to this book and to your argument not looking good. Well everything can change on a dime. Maybe we'll get a president who makes a bunch of liberal points and we'll be back in the war in here. I don't think so but you know let's try to end a positive all right. Thank you so much for being here my pleasure Adam. Cohen's new book is called Supreme Inequality the Supreme Court's fifty year battled for more unjust America. So here's a request for our listeners. I get lots of feedback from you. Some complaints lots of kind words. Really appreciate it. You can always reach me directly at books at NY TIMES DOT Com. I will write back but you can also if you feel move to do so review us on any forum where you download the podcast. Whether that's I tunes or Stitcher or glue play or somewhere else. Please feel free to review us and of course email us at any time. Madeline Levine joins us now from San Francisco. Her previous books are the price of privilege and teach your children well and her latest is called ready or not preparing our kids to thrive in an uncertain and rapidly changing world. Madeleine thanks for being here pleasure. I WanNa talk about your subtitle and a few phrases. In particular you describe the current environment as rapidly. Changing and uncertain. Technology is obviously an obvious kind of big change. That's going on so I want to get into that but first let's talk about some of the other changes in terms of the economy and demographics change and climate change. Where that's leaving kids today? A in the economy has had a very significant impact on how parents parenting you know if you see things as either winners or losers. Which is what has happened in this country in terms of wealth than and not having enough money then you you know parents are used to having their kids. Outperform them do better Have a better life. And that's not happening. And I think that it makes parents go back to what I would consider kind of an outdated scheme paradigm Schema of parenting. Because it's all we know but we certainly want to protect our. This all comes out of a need to protect or a feeling that this is the way to protect kids from falling socio-economically Which is what is happening in the country in terms of climate change. Well that's incredibly unfortunate that that's happening. It's an area in which I see. Kids being increasingly active and proactive Willing to stand up and take a role at a time when I had started to feel that. Kids are becoming increasingly passive. Soy See that as a positive I think you're the first person to offer anything positive out of climate change. So thank you for that because it's something that I think about. I mean that it starts move very young age. Used to watch nature documentaries as a child and it would just be like the wonderful grizzly bear but now every nature documentary even for very young children will say you know there are very few left and sort of have a lot of kind of gloom and doom. And you think it's it's interesting to think about the way that this might impact kids. Who even as they're learning to appreciate. Nature are also imbued with fear that it's going away. I think it's their imbued with the fear about just about everything whether it's mass shooting so the climate or the economy which is part of what's driving these increasingly high rates of anxiety when price privilege. It was one out of five kids had anxiety disorder. Now it's one out of three and one out of three adults as well by the way so I didn't mean to say that climate change is a positive. I WanNa be clear about that. It's a horrible thing but I I think it's the one issue that has mobilized kids and going forward when times are very uncertain. Optimism is critical because otherwise you kind of fall into despair so the fact that kids have taken this issue on and see nature. You're absolutely right through a different Lens than we did. You know we saw those things and took it for granted they unsan. They have a responsibility to continue to be able to see nature so I think that their interest in it every kid. I know I have three sons. Every kid I know is aware of climate change because it will impact them incredibly. If there's not something done and instead of feeling helpless about it most of the kids I know feel they can make a difference and are not passive. I liked that well. Let's go back to the anxiety not not to bring us back to a trouble place. But that's a lot of what your book is about you talk about the increase in anxiety disorders. Also I think probably just kind of general sense of anxiety. You know the incident so that is very high but not just among kids. You pointed out among parents and I'm interested what you find about the relationship between those two anxieties parental anxiety rubbing off on kids. Are we helping to unintentionally exacerbate our children's anxieties so the answer is yes and I think it works in a particular way? Everybody's nervous right and there's a difference between being nervous or anxious which we're supposed to be some of the time it's our early warning signal and having an anxiety disorder so when the World Health Organization uses that number one and three. They're not saying well. You're anxious because you just read the headlines they're saying you're impaired and I think the reasons for these higher rates are many but let me step back one minute and add to the conversation that anxiety disorders have thirty to forty percent genetic component. So it's known that we all carry in us off as many of US carrying us the possibility of having an anxiety disorder what decides whether or not that will actually turn into a disorder. That's the whole field of genetics which is where the environment meets the genetic and triggers the gene so since there are these rising rates. And they'll I wrote the press privilege like I was writing. Get Maybe fifteen years ago came out twelve years ago. Our genetics haven't changed in the last twelve years. So that in kept look the environment for the reasons why these things are escalating and I think the environment has evolved in a way that makes anxiety more likely and when parents are anxious which we have reason to be anxious but not to have anxiety disorders anxiety itself makes us aware puts us a little bit on guard anxiety disorders Jones and the relationship between the parents and the kids is. I'm a mom and I'm struggling with my own anxiety and then my kid says I'm really scared. The dog's going to bark at me. Or I'm really scared of the sleepover. It's going to be all the popular kids or I don't want to go to sleep away camp because it's not my bed and the parent who's already anxious doesn't need any more anxiety in their life doesn't have the bandwidth to handle it and so says to the kid will. We don't have to go by. The dog will go around the block. Or you don't have to go to that sleepover. Let's have it at our house or you don't WanNa go to sleep away camp. That's fine you can go to camp in the neighborhood. Each one of those things being afraid of a dog or any part of that which are normal developmental concerns of childhood and adolescence. Every time we accommodate to them. Because we're already anxious and we don't want our kids to be more anxious because they're so pressured at school and they're so pressure to perform but every time we accommodate to a normal Bella Pencil Challenge. We rip away the possibility that that kids can master it on their own and I think that running theme of let me accommodate to the things that make you anxious in all the wrong ways right. We're not in front of schools with picket signs. Saying you know nine hours of sleep. American Academy of Pediatrics says. It's mandatory. We're not doing that. We're attending to our family. We're hunkering down and we're giving pass or accommodating anxiety and all the wrong ways and just to add one thing too that we know that when we treat a kid for anxiety we do well but when we treat a kid and the parent for anxiety we do twice as well is that because that accommodation for those easily maybe not easily but those opportunities to confront and overcome fears. Are we avoiding those? Because so many of the things that provoke anxiety like climate change like the economy. Like the changing demographics and changing opportunities for kids more difficult in many ways. Is it because those things are so big that we can't help our kids out necessarily with those and so we are helping them out in these other ways that feel more within our control yes to some degree? But it doesn't fully explain why for example. We're not saying you have to go to bed at eleven o'clock or you need to talk to your teacher. You're taking three. Ap courses or your counselor. I really don't want you to take four I mean there's a whole bunch of other interventions that we could be making that were not And I think that we intervene in these small ways. Because you're right it's manageable anxiety and the relationship to uncertainty is that when things are uncertain we make a particular kind of decision and those decisions tend to be overly reliant on our community quickly made and not critically thought out because uncertainty doesn't feel good to the brain right so we're trying to solve it as quickly as possible so if we can solve it by driving around the block. That's a pretty easy fix for the uncertainty of well. She walks past. She's going to be upset. And then I don't know what I'm GonNa do and she's going to cry and so we tried to get out of uncertainty really really quickly but in doing what's right in front of us you know. What what you've said is true. Those are the things that are right in front of us. They're easy to accommodate too. But they take away the capacity to learn to manage which is why we now have all these emerging adulthood programs this past year. I've probably sent six kids to what's now called emerging adulthood programs and. That's for kids. Who just happened. Learned how to manage themselves their emotions or make the bed. When do kids go to a program like that? What age that usually like twenty to twenty six that age group? Those are kids who have been for the most part accommodated throughout their lives. I recently was in Silicon Valley and had one of the. Ceo's down there ask me. This question does my child need to learn how to make a bed which I thought was an incredible question to ask and I asked him why he s and he said well. I don't have to make my bed. I have staff. So what does my kid needs to learn how to make a bid and what's missing from his analysis is hopefully kids not living with him for the rest of their life and they'll go out in the world and their girlfriend or their college roommate will say what else matter with you. Go make the bed. That's skill set that normative skill set of knowing how to do stuff and that includes managing how you feel not smoking weed all the time to manage how you feel and night using other substances to manage how you feel but being able to manage yourself is something that. I'm seen which I never saw before. Twenty years ago there wasn't programs. There weren't programs for emerging adults because most kids knew how sort of basic foundational set of skills for managing themselves and their feelings. That's an interesting comment because that's coming from someone who lives in Silicon Valley who has a staff to make his bed which we all don't do and and your practices in Marin County. Are these problems that primarily affect kids who come from privileged backgrounds as a kind of upper middle class upper class white problem because a lot of kids you know no one there to make their bad if they don't. I think that was the original assumption when I read the press privilege and there was a tiny run on the book because it was because of the title of privilege and it became really a best seller your timeshare seller why because it wasn't really just affluent families at all so do. I feel that these are issues for kids in poverty. They've got a whole bunch of other issues and their families have a whole bunch of other issues that I don't think I'm covering but they do think I'm covering issues for the majority of families whether it's working class or middle class or upper middle class or affluent just for transparency. I lived in San Francisco Not Valley but the kids. I see range from kids from working class families to the wealthiest families in this country. And this push to accommodate kids. I see regardless of socio economics in my practice last question again. Back to the subtitle. It's very interesting that you choose. The word thrive you say preparing our kids to thrive in an uncertain and rapidly changing world rather than succeed and that seems like a significant difference in that people. Maybe sometimes mix those ideas up. But what do you mean? By thrive success has been very metrically considered trade. We talk about grades and colleges and cars and raises and all those kinds of things that have become the markers of success. I've spent thirty five years treating kids and you can have all these markers of success. Which was what started this with my interest in this. We had always felt that socioeconomic status parental interests were protective of mental illness. And now they're not and that was the original question. I was trying to answer so over this period of time. I've come to believe really strongly that as long as we stay focused on a limited notion of success. If we had a bigger tent success I might have said to succeed but I don't feel that we do. I feel we have a narrow view of success and that that in no way ensures that kids are going to do well and so at the heart you know what everybody wants to their kid for them to grow up and be healthy and have good relationships and find something they're interested in and that's thriving and use it because the word success to me has come to mean and to and to the parents I see has come to be a metric based which is only one piece of doing well in life thriving is definitely a goal. We can all agree on Madeline. Thank you so much for being here. Thank you my pleasure man. Levine's new book is called ready or not preparing our kids. To thrive in an uncertain and rapidly changing world Uh joining us now to talk about what we're reading my colleagues Tina Jordan Berry Glenn and Concepcion Leon guys a power line all right. Let's start with you. Tina what are you reading this week? So I'm reading a very old ruth. Rendell novel called Vanity. Dies hard which I actually picked up at my libraries. Most recent book sale. I love the book sales. I find all kinds of treasures there and this time I found. Someone's complete paperback collection of Ruth. Rendell and I'd read many of her later novels and her Inspector Wexford series. But I for some reason hadn't picked up or seen a lot of her novels written in the nineteen sixties in this one I believe is only the second standalone she wrote so she's just getting started and it's about a wealthy thirty eight year old woman. When you start the book you'd think that she's middle aged she's described as a pleasant blue eyed Englishwoman. No longer very young and never worth a second glance. What Year was this published? Sixty four I believe so that probably was middle aged then right. So she's married. Her husband is ten years younger. His name is Andrew. She's lavished expensive gifts on him car. A Gold Watch. We know he's very handsome but in typical rendell fashion as she builds this picture of this woman and the picture perfect little English should village. She lives in with its gabled buildings. You know and charming high-street with window boxes filled with flowers malice starts to creep in in the tiniest of ways and I don't know what's going to happen yet but I watch alice the main character as she. You know steps into her house and look in the mirror and starts to fuss with her hair and her brooch and her scarf if she's attractive enough for her twenty nine year old husband and what has happened is that one of Alice's best friends has gone missing and she's on a mission to find her and she stopped the point of the book that I'm at she's been stopped by her husband. She's ill and she can't get out of bed and her husband seems very reluctant for her to leave the house and he doesn't want to call the doctor either. So bad sign the thing is. I'm sure it's not going where I think it's going very. What are you reading mainly what I've been reading our newspapers magazine articles blog posts anything on the election. And you know with all the twists and turns. It absolutely drives me crazy. So I've had to retreat from that and I've retreated to two of my favorite authors Emmanuel career and Hannah aren't all people and they are both wonderful relief from current events in in a in a certain sense and let me begin with career a few weeks ago. We published a long essay review by Robert Gottlieb on careers latest publication which is a collection of his pieces journalistic and otherwise called ninety. Seven thousand one hundred ninety. Six words is the name of the collection so why I read that and it reminded me of how much I liked career and it also reminded me that I've read everything by him except for a couple of the early novels and one of his later books called my life as the Russian novel. Let me begin by saying the times had run an article couple of years ago which dot leap quotes saying that. Career is the most widely admired nonfiction writer in France. The most widely admired fiction writer being Michelle Welbeck's who is also widely admire in any case in careers case. I've just been consumed by him for ten or fifteen years now really ever since the book that made his name. The adversary came out and one of the problems I have is. I don't quite understand why his writing is riveting and yet if you ask me to explain what rips me or a reader. I'd have a very hard time doing it. One of the obvious things to say is that he picked subjects that are really outlandish or trade but if that were all that mattered one could just say. He's a kind of tabloid sensationalist. There's something in the writing and something has to do with. I think his personal intrusion into his books his his books are always personally revelatory as well as dealing with the subjects at hand. Pamela seem to be itching to say something I know you like career. I mean I think that while. He writes about the extremes of experience. He doesn't do it. As a kind of you know lurid observer he engages with them and shows the way is in which we as readers as observers as writers in his case. Kind of grapple with these incredible extremes. I entirely agree though. I wouldn't want to deny the LURID aspect I think that really is part of the appeal. I mean we have to say we all have tabloid reader inside of us. Whatever else we have and and there is that aspect to it. But there's something in the voice that one inherently trusts partly. It's because he's so honest even when the honesty is describing his own really sometimes terrible deeds or even more his embarrassing deeds. Embarrassment always being worse than committing crimes. And he's very good at that now getting to my life as the Russian novel. It has all of that yet. I found myself disappointed by it. It's not the book that I would recommend as the I read of career. There is somehow a way in which the voice is not trustworthy. And I'll just pick one aspect of that. Which is it really begins. With another of these traits subjects Amana Hungarian who was described as the last prisoner of World War? Two he was kept in a Russian hospital. Sanatorium for over fifty years and somehow it was discovered that he was there and sent back to Hungary and he was clearly crazed half crazed psychotic. Whatever after all those years he had never learned rush in the fifty or so years he had spent in that sanatorium. And so try to imagine what this man's life was an includes the horrendous fact that he had a leg amputated at one point maybe unnecessarily because there was no communication with doctors or the Russians who were present so the book begins with that. And that's fine. That's typical career territory. But he decides he will go back to the little village the backwater place where this Hungarian had been kept and it's a completely nothing environment. There is no there there and yet he decides to go back to make a movie and much of the book is a description often hilarious of his efforts to film nothing and yet you don't trust it because at least I as a reader kept saying you idiot. Of course you're going to be frustrated in this. What did you expect to happen when you went back? So there's a way in which the confidence one has in careers voice or again. My confidence in his voice. In the other books specially something like lives other than my own isn't present in this one. I think that what he does and I'm curious to hear your thoughts is he combines the raw honesty of a really great memorised with the observational. I of a journalist and the imagination of a novelist. And it's rare to find those three all in one book and I think that one of the things that interested me about reading the recent asset collection is that you see the essay that sparked the book. The adversary and it wasn't an essay. Really it was. It was a report in the elevator or another French publication news publication. And even when he's writing what's essentially a news report. You can sort of see his hill in those three ways. But what's missing from the original report of this murder? This person who was supposed to be a doctor for the World Health Organization but in fact had never even gotten a medical degree and had deceived everyone for two decades and his family before killing them. All is that in the first one in essay. You can see the sort of questions that he's beginning to ask. But even in the very first paragraph he changes something when he writes the book that I think kind of crystallizes what he does so well. Which is that the very first line of the adversary is something along the lines of on the morning when so and so. I can't remember the non Dr Phil. Doctor's name killed his wife his two children and his parents and then tried to kill himself. I was going to a PTA meeting with my wife or partner. And so what he does in that moment is he is connecting those two events bringing himself into it and showing the disparity between those two but also involving himself and so. It's it's what I think. He does so well as he is constantly asking the question. Why are we so fascinated with these lurid murderers or whatever they might be? What is it draws us to them? And what does that say about us? And that's what he's constantly trying to get at in his work and gottlieb points out in that essay for us is that he was having trouble writing that book the adversary until he inserted himself into it and so the career personality persona really is an important part of what he's about in those qualities that you mentioned as I say I have a hard time describing. Why find him just so gripping for me? He's just the best nonfiction writer going in France or America for that reason but one of his literary models is someone who combined all of those qualities and that's Mon ten and so so I think you're right and that's close at least as I could come to describing the fascination he holds for me Concepcion. You are not getting away from the news cycle in reading. What are you reading? So I decided to lean into politics and I'm reading the ones we've been waiting for. A NEW GENERATION OF LEADERS WILL TRANSFORM AMERICA BY CHARLOTTE. Alter who is a Time magazine political reporter and the book is as the title pretty much implies about a sort of new generation of millennial leaders and so each chapter is dedicated to one millennial coup has gotten into politics and argument of the book is essentially or part of the argument. Rather is that generations are sort of shaped by the most important events in their life. So for instance like nine eleven like the Iraq war and so it's all about what shaped these millennial leaders and what the future will look like under them in twenty and thirty and forty years. I haven't gone to that part so I can't tell you what the future will look like yet but what's been interesting to me about reading. This is that I think that I I tend to not really think about the things that happen in my lifetime is part of history they are and obviously. I'm sure in you know twenty or thirty years. I will be able to look back at them. That Way. But like nine eleven. It's like I. I remember that like it was yesterday as we all do. And so it doesn't feel very far away. And so I think of things that are like in the sixties and the fifties as far away and obviously giving myself up as a millennial as well. Yeah I mean it's funny because when people talk about Jan which is my generation and they always say that the biggest event the most formative event for that generation is the challenger explosion which I didn't remember at all I know well he used to work longtime ago for a magazine called American demographics. Which was you know? Basically obsessed with generations so I felt very alienated from gen-x which I guess is a genetic thing to be. What do you feel like? The events are for millennials are what is she identifier. The people in that book identified as the monumental pivotal events is at nine eleven and the Iraq war nine eleven in the Iraq war for sure and then there's a one of the early chapters talks about Harry Potter and it also talks about how previous events in previous trends with like in previous generations also shaped our generation. Pamela what are you reading? I'm going to still go over my vacation reading. I'm still working on on that. That backlist now. So one of the books that I read was Eighty Smith's as a collection from two thousand eighteen feel free. I talked on a recent podcast about her story collection. Grand Union and it's really interesting to read these two books together because they cover much of the same period. The stories were written over. You know I think ten or twelve years possibly longer actually because it was her first story collection and these also overlap the same time period. I think and I know. Most people think of Eighty Smith in terms of her novels and W and on beauty and of course the white teeth but to my mind she feels like a natural essayist in the classic definition of what an essay is in that. It's it's an attempt you know sort of coming from the the French to say and she does. I think something similar to what Gio Tolentino doesn't her essay writing which is that. She's not writing polemics. She doesn't know necessarily what she thinks when she's going in you can feel her kind of working out her thoughts on the page and for me as a reader at least it. It's incredibly engaging way too right because she's not telling you what to think she's bringing you along and you're going through her process with her and she's really present in a number of these essays. I think I'm just GonNa talk about one of them generation y. Which is W. H. Y? A A question mark which was a sensibly really a review of the social network. The David fincher film about Mark Zuckerberg or the character Mark Zuckerberg and the launch of facebook. Which came out in two thousand ten so that makes this a ten year old essay and yet everything that she's writing about you know she could be talking about today in terms of the way that social media affects people and I'm just GonNa read from one section. She's talking about the way that facebook becomes monetize and selling people to advertise are selling our data allowing us to sell ourselves. Is it possible that we have begun to think of ourselves that way? It seems significant to me that on the way to the cinema while doing a small mental calculation our old. I was when at Harvard. How old I am now. I had a person one point. Oh panic attack. Soon I will be forty than fifty then soon after dead I broke out in Zuckerberg's sweat. My heart went crazy. I had to stop and lean against deliver been. Can you have that feeling on facebook? I've noticed and been ashamed of noticing that when a teenager is murdered at least in Britain or wall will often fill with messages that seem not quite to comprehend the gravity of what has occurred. You know the type of thing. Sorry Babes missing you hoping in you is with the angels. I remember the jokes we used to have. Ll piece XXXXX. You could read it now and it doesn't feel out of date at all. In fact it feels like she knew everything way back before other people did and the essays are divided by type. There's some literary criticism. There's a section of visual art criticism. One of the pieces I really liked was called brother from another mother which was her review of. Get Out I actually think that essays are what she does best. I don't know if any of you read her novels. I have read her that I think and I've read the essays to which I love and I agree with you. It feels almost like you're in the room with her and her brain is sparking all these ideas and you're just sort of reading along in your insider head and it's interesting to also see the ways in which the same things that she's exploring. These things really do appear in that story collection and the story collection often. The stories feel more like essays and when I interviewed her asked her about that about sort of form and and does she know what form something is taking before she goes into it and she's really not that deliberate about it. I mean with the exception of novels. And she's working on a novel today which takes place in Russia in the eighties. So that's something to look forward to and the other book that I read while traveling I read on an airplane and it really is the perfect airplane book in length and format if not in substance. It's not a thriller. It's the cost of living by Deborah. Levy and Lee has been talked about on this podcast before she's been nominated twice now for the booker and I are finalised booker twice. And this is non-fiction. This is a memoir. And it's really about how do you get by as a writer and so it's a subject of interest to writers than people who know them and it specifically about how you get by as a woman writer? She is writing this. This takes place about twenty years ago. I think are from now or maybe fifteen shortly after her divorce and she's raising two daughters who are older. But it's still about that sort of poll between work and childcare obligations and the same time. Her mother is ailing and what I didn't expect. Was I sort of thought of her as someone very serious. But she's really quite funny and she has a really great moment. There are a number of them but one of them involves her mother at the hospital unable to eat anything. And so she's getting these ice lollies from Turkish market and her mother prefers certain flavors over the other and cheese talking. I should go into the ICEBOX and look and she said. I'd the door open and search for the lollies triumphant when I found the lime good if I found strawberry acceptable when I found the orange I'd always by two and then cycled to the hospital down the hill where my mother was dying so she goes into the span in her mother's really desperate and they don't have any of these flavors and all they have is bubble gum which they know that her mother will despise and she just throws like an at bat kind of Tantrum in the shop and then later on. She writes after her funeral in March. I thought I should go back to the newsagent and explain my weird behavior to the Turkish brothers. When I told him about the last weeks of my mother's life they were so upset. It was their turn out to speak. They shook their heads inside and groaned after a while. The oldest brother said if you had told us. The brother who wore fashionable jackets picked the conversation. If you said something we would have gone to the cash and carry and bought a ton for you while the third brother whose voice was higher pitched than his older brother some his hand to his forehead. He knew it was something like that. Didn't I say she was buying them for someone who is sick? They all looked angrily at the freezer. If it was personally responsible for the horror of the bubble gum lawley being the wrong sort of Lawley in the last few days of my mother's life. That's very good. I love that great it just it has number of moments like that. That are just perfect to get back to your earlier point though. How did she get by the writer? It's something that obviously we're all interested in. Well she's very prolific. Those of us who have seen her galleys come across him. Interest rates at an incredible pace to some extent. Explains why. There's a book that I just finished which I'll talk about an hour later episode Wallace. Crossing to safety and that book takes place. It's two couples and it's during the depression and one of them is a writer just trying to get by where academic jobs are really rare and writing pays very little and he says I wrote Book Review After Book Review Enter Booker. Few desperate for the money. I think that as we all know writing this is not an easy way to earn a living and never has been. George Orwell has a classic essay on being a book review or and and the books and all these ridiculous subjects piling up on his desk. But I also think of some of the things that Mary McCarthy has written about when she was starting out in in the thirties as a reviewer and what always struck me when she described her life then was that somehow seemed easier than you could get by as a book. Reviewer may be if you were took being Mary. Mccarthy to get buys a book reviewer but it didn't seem to be difficult. She could live in the village. She would write her reviews. She had her life. She wrote theater reviews as well and I sometimes skip talks. Now as I'm sure we all do to students and others and one of the questions invariably is you know. What does it take to be a freelance writer? And I tend to be fairly discouraging. It's not the way it was in. Mary McCarthy's time. I say to the students you should really either have a trust fund or a steady Gig as a teacher because you need to have income that pays the rent. Well they do it for the Glory Berry all right. Let's quickly run down the titles before we go. Tina you read. I read Ruth. Rendell's vanity dies hard Emmanuel career. My life a Russian novel the ones we've been waiting for a new generation of leaders will transform America Charlotte. Alter and I read Zadie. Smith's feel free and the cost of living by Deborah Levy. Alright thanks everyone remember. There's more NY times dot com slash books and you can always write to us at books at NY TIMES DOT Com. I write back not right away but I do. The Book Review. Podcast is produced by the greed. Pedroso from head stepper media with a major assist for my colleague John Williams. Thanks for listening for the New York. Times I'm Pamela Paul.

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Man Cave Happy Hour  Ardberg Gelnmorangie At The Sugar House- Episode 37

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38:26 min | 1 year ago

Man Cave Happy Hour Ardberg Gelnmorangie At The Sugar House- Episode 37

"You're listening to the podcast detroit network visit w._w._w. Dot podcast detroit dot com for more information. They said hey welcome to the monkey said hey hey welcome to medicaid and drink a fine whiskey and smoke really finds john. It's time for happy hour. It's the man dave happy hour whiskey cigar spirits stories that go along with it. I'm jamie flanagan again. I am matthew fox and we are downtown downtown detroit. What a one of our favorite destinations. We loved you. Shoulda cities and we're at the sugarhouse warren court town. Yes it's the sugar house. We're we're getting our irish on. Yes we. We're gonna get our scottish. I'm scott sean tonight. Special guest with us tonight yet national brand ambassador <hes> mhm cameron cam george absolute end you represent both art beg and glenmorangie absolutely were orangey moral when war war orangey glenmorangie an art bag two very iconic distilleries from scotland. Yes i fell in love with both of them quite quite early. In my bartending career. Actually limo was the first whisky that i ever fell in love with and i have not looked back ever since stuck scottish. Absolutely i bounced around. I fell in love with quite a few different american whiskey and i. I had my love affair with the scala's well but honestly i it's. It's always been about scott's from me so came right back to it are bag. I visited out at five years ago and fell in love with that distillery that place as the people and now five years later. I get to be national ambassador for for my favorite brand on the planet as pretty amazing. So what led you to you being a brand ambassador. Is there a college degree behind. This was years it drinking a blend of the two scotches. What is it yes. Yes so just kind of a little bit about me. Actually no it wasn't a college degree. I ended up deciding. I was finished at university. <hes> is going to school in portland and i moved home. My mom is a very tough love kind of human being so she decided you know what now you can't live here. You gotta get a job you you gotta find a way to put food on your table and so i started washing dishes at a dive bar and i found out that i love the way that bars made people feel there about community there about people desiring to be a part of something more than just themselves and i also fell in love with you know spirits as well <hes> after working on the dive bar i i went into kind of a craft cocktail seen <hes> started working at a lot of well known craft cocktail bars in seattle washington my home <hes> you know from there to start learning a lot more about spirits about the intersection of culture and you know encapsulating time in a bottle. That's what whiskey is in so i just fell in love with that like i. I developed a very strong passion for it so stuck with it. You have to be a people person to do what you do as well absolutely. We'll have to want to note it. You want to get to know people. Absolutely you have to be able to talk on a level and doing what you do today. You know you can talk. I love for novices the making happy hour all good. We're here to learn. I appreciate all the knowledge that you bring to the tonight. Com my question for you very for for you right. Now is what led you down to pick the cocktails tales <hes> so far tonight absolutely now so the two cocktails featuring right now the riptide which actually has a little bit of glenmorangie and some art beg as well well. It's a little bit of guava glenmorangie aims to make one of the lightest and cleanest in most floral styles of desolate on the market <hes> they make what i lovingly refer for two as breakfast whisky so it's such an incredible bullet hole and catchphrases outta here exactly time in a bottle. Um i love this exactly. Glenmorangie makes very likely just very approachable very <hes> floral style of scotch and then it's older brother actually because ard beg actually predates he dates glenmorangie distillery are beg makes us very just large untamed just beast of a whiskey right so those two things working in tandem. I can do some really beautiful things. Some of the nuance that i love about our bag is that it's not only just smoke and gloom and doom. We actually aim to make what is in effect the lightest spirit spirit on iowa as well so that's why are beg goes so well with citrus. You're like looking at me. Like what do you mean right so it's heavily heated also the only whisky distillery with what we call a purifier on our stills so that purifier actually allows us to kind of fake. Some of the reflux glenmorangie achieves naturally actually because they have very tall stills actually the tallest in all of scotland right around sense eight three exactly so the ones that glenmorangie came and and <hes> that were not installed by the maitland brothers who actually built the distillery were actually installed late in the seventies right <hes> at ard beg however the purifier the piece of equipment that i spoke about a little bit earlier. There's actually no written record of when that went onto the stills at our so. That's part of the lure of the distillery. Hillary is that you know we don't know when this went on but we've actually had it <hes> on the stills essentially every iteration of the stills that we've done at our back career even now going through an expansion two new stills are being added. The spirit still that's being added at art bag actually also have a purifier as well it because we were commenting as we were trying the welcome cocktails and we always love when there's welcome cocktails. We know we know we're we're in trouble spots but <hes> we were noting that the manhattan made primarily with yard bag job. You're a sucker for really you love them and really light that and then it's like a little cucumbers garnish <hes> until you really. You're not expecting that light rash especially when you have a scotch taste manhattan and i tasted it. There's a lot of pete but it's not it's not happy exactly yeah and you know again like that. Even though art art big art biggest such a kind of a p._d. Paradox of a whiskey right and the most heavily pitted whiskey and regular production. That's my rapper named by the way p._d. Paradise paradise the era that is that is gold and it should be and i look forward to the album petty and when you put that out right yeah exactly so yes actually hard bag. You know we do utilize a fanatic barley base of about fifty five five to sixty five parts per million right so essentially females are these like water soluble <hes> kind of like heavier organic compounds that will essentially attach apps themselves to the outside of the husk of barley throughout the multan process specifically in the drying phase right so when you go to dry barley. That's actually really being molten right. What happens is for the first sixteen. Hours are molten facility port ellen d- ellen maltings is going to take pete right so peat moss. That's essentially just decaying plant matter that lives in a carbon neutral like a carbon rich environment so it doesn't decay all the way so it's got a lot of organic <hes> <hes> few souls that can still be ignited and burned so when you burn that over the first sixteen hours some of that smoke that pete smoke carries forward what you call <hes> female solo females attach themselves to the outside of the malted barley and that's what gives you the mathematics and the flavor of mope right all right exactly my mind is i love. I love the information so so art. Begging glenmorangie are the affiliated or you just are they. How are they connecting. They are brother sister brother and brother sister and sister however you want to refer to it these these two distilleries will forever be linked okay nine thousand nine hundred ninety. Seven glenmorangie company came in and actually purchased art. Beg beg had been essentially closed since nineteen eighty-one while at least from eighty one eighty nine and then again from ninety one until ninety seven the distillery was actually set to be knocked down and be demolished glenmorangie came in and bought it and do you want to take a guess at how much watch they spent to buy the distillery lower scale or exactly one. Uh one of the other was scheduled for destruction. I'm gonna go low. I'm gonna say under a million. Maybe maybe seven fifty. I wonder under seven point five mill. You basically be exactly right so about seven million along yup. Seven million a large part of the purchase was actually for some of the whiskeys that had been sitting there throughout some of the seventy seventies and they've been sitting dormant during the eighties as well right barrels yup. Yeah stop was sitting in barrels for for quite a long time because there was just no activity at the distillery rate because the whisky industry was quite honestly taking a nosedive up. The clip whiskey had lost a lot of popularity. People were drinking vodka. <hes> single malt specifically there were mass closures across the industry so art beg suffered ended up closing and glenmorangie is kind of the light at the end of the tunnel that kind of pulled us out of darkness. Oh goodness okay so they will be <hes> intertwined. So you have a master distiller doctor dr love. He's got a doc. Dr bill lumps yes so dr bill is <hes> is he. The master distiller distiller at both locations. Yes <hes> dr bill doesn't work out of either distillery. His actual office is in edinburgh at at what we call it the cube pugh the cube cues you yeah i liked jacqueline so the cube is essentially the the the i like the crown jewel in the mad scientists crown you know so that's where he does all of the nosing of each whiskey that are begging glenmorangie put out and have put out since nineteen ninety five. I believe is when he started at when he started with glenmorangie company so he is in effect. The head of our whiskey creation creation team <hes> he does have a brilliant young man by the name of brendan mccartan who is his right hand and then jillian who is essentially the other right hand. There's no left hand in this situation. That's exactly yeah so the three of them are the whiskey creation team behind our big and glenmorangie. Each distillery does have a distillery manager that oversees day to day production and production of the new make spirit all right and so. There's there's several offerings from from each of the distillery. Yes and we have to in front of us one from each. We asked you give us a little something right. We enjoyed the cocktails immensely but let's let's is try the naked soul see what we got so let's start with. Where should we start so i would say let's start with the glenmorangie kintu ruben ruben <hes> so glenmorangie ramona's quite an interesting whiskey. That's just gone through a very fun facelift saw the original cancer. Ruben was actually part of what we call the e._m. Are range extended matured range right e._m. Are so so at glenmorangie they are the masters of finishing whiskies essentially since the mid sixty s one thousand nine hundred sixty seven they started experimenting with secondary aging of new of spirit in secondary barrels so meaning take a barrel or they'll take new new made spirit put it into ex bourbon barrels and then pull pull that out of the ex bourbon barrel and put it into another style of cask so they started that when they started essentially messing around with sherry casks kimes rubin is not a sherry cask finish. It's actually a ruby port cast finish life so we've taken that with that. We've laid down for ten years and then put it into woobie podcasts. For how long does it hang out in the ruby forecast so realistically this first batch of kings ruben is between eleven and and eleven and twelve years in ex bourbon and about two and a half to three years okay and the port calf the color. Yes is gorgeous. It's shocking <hes> it's yeah i mean the guy the color on this i it's got an amber. Look to it over into very clear pending the light hitting. It sounds like you get a rose glare. They're here and they're nailed it. You absolutely nailed that. That's one of my favorite elements about pouring this whisky is not only the way it looks in glass or the way that it looks <hes> you know as you're essentially in the bottle but as it how it looks when it's coming out of the bottle into your glass you get this perfect like ruby red almost almost grapefruit undertone that sits and kind of rides along the copper the amber notes as well. It's just a beautiful whiskey to look at in the sonnets. It's it's shockingly beautiful so now when i knows this because we got one to split here matt. You're getting sloppy seconds. I should have thought i had sorry i should've grabbed uh-huh so as as nosing this one. What should i what i look for yourself so first john foremost. I think that it's clearly an unmistakably glenmorangie. You're gonna get a lot of elements of like white flour a little bit of lemon peel jasmine jasmine as well but but then you're going to start to notice something deeper something a little bit darker something a little bit richer that is actually the ruby port cast kind of shining through a little bit better knows news it myself. That's very sweet on know exactly nailed it. Irene nice pull out like a little bit of like chocolate as well as some dark like cigar notes think i actually maybe it's just the fact that i had a couple of cuban cigars last night but like yeah stays on your palate exactly yeah maybe it is but i do get this like you know almost nutty driven kind of characteristic to the whiskey as well as some residual sugar as well. That's kind of lingering around the rim of the glass. You know james peak guy. He likes his pizza so he's facing right now. I'm curious j. mary. What do you think of the pete on this. It's not overpowering okay. It's in there air. It's it subtle the pete in this is actually a little more for me right now. It's subtle. I had a sip and a half <hes> not super p._d. Finishing it's hanging out there. There's it's finishing as it's finishing honey. He's very sweet is one of one of the things things like to point out and this is kind of a cool relationship between the two whisky distilleries is that i firmly believe that these distilleries make a ten year org base whiskey that is actually very similar to each other. We just go about it by doing the exact opposite thing from each other at every possible. Turn so hello glenmorangie highland ard beg think isla glenmorangie definitely think unimpeded. It's an unimpeded whiskey. Beg think heavily heavily pleaded glenmorangie angie thinks stainless steel fermentation are bag. You have to think about the oregon pine wash facs right and then they are the masters finishing while art beg utilized this whole components that are age aged separately so the reason that i mentioned that there is because yes glenmorangie isn't unimpeded whiskey but they're especially in keen to ruben there are some traces traces of smoke smoke isn't only tethered to pete right smoke can actually come from the interaction of spirit moving in and out of the charlet uh-huh layer inside of an expert barrel right because those barrels are toasted and then chart as well right so some of that smoke can actually be because of the barrel influence that's right so there is actually a finale content to glenmorangie. It's just really really really really love yeah. I wasn't getting much in here at all it was he was very very very very. It's slow. I get a little bit of be sipping on all kinds discuss tonight already to scott for me always always taste yup scott because my pal it sucks what any scotch really sent feels p._d. To me this has a different element yup. This is something that i that i want to actually go and buy right now. Absolutely it can home. You should one would ship one someone start to drink in the evening. Would it be at the beginning of of the evening the evening after dinner. What would go well with one more into whiskey fans. Hear me and hear me now. Drink whiskey. Whenever you feel like drinking whisky drink whisky however you feel like drinking whisky. No one should tell you how to enjoy your glass of whiskey every every dram. It should be personal to how you enjoy it. I didn't ask you that question. Just every talk to answer is the same thing they're likely treated. Aubrey wanted to see how you want but <hes> i would for me. Personally keeps ruben. I absolutely love with steak. Yeah i love it with a steak. I love it with bone marrow whereas like something like the glenmorangie original tenure that glenn mo- does i'll generally drink that the high balls. That's kind of like refreshing cocktails before going into my meals but again. That's just me personally everybody has everybody has a different relationship with with. I i just <hes> so i was going to say what would you pair this with what type of food or or or root word or snack repair this with grammar. I would say absolutely absolutely something. That has a little bit more weight to it. I mentioned like steak as i was saying that i was actually thinking like pork chop with some sort of like blue like like some sort of like blueberry like cram on top of it or something like that as well <hes> anything that is like both rich and has kind of fruit notes at the same time that was he'll go a long way with exactly they're hogging do save some for me. Guys welcome to the man came regrets. Eh sorry man for himself. In the dow closed mouth. Don't get fed as my mom's all right so we have another one on the table absolutely and it was really funny because we both matthew and yeah we do weddings and parties and stuff on the weekend. I teach eleazer banker i._d. Radio stuff we bugged weddings and he's got a writing about it. Oh yeah asking there. Let's get double over here enemy great guy ah so before we ship matthew off. What do we have in this other one whiskey number two. We're not we're not any of course. He's going to be lit when he goes to his brain. So we're good won't even even better. They will be able to smell it. Yeah i was gonna say they found a tic tac off to you but he's very jovial all right. So what are we going. So actually you know it's very interesting that you kind kind of mentioned you know. They won't be able to smell you over the phone right because this whisky is aromatic as all get out. You know this is just an incredible whiskey to me. It's already jumping coming out of the glass. Actually as i was walking behind you over here to sit down and do this. I can actually smell the coming out of the glass even there right so our big ano is an interesting listing whiskey. The bag actually released in two thousand seventeen. It's the newest addition to our core range. That's actually why i selected it. It's also the world whisky of the year. In terms of best isla whiskies best peaty whiskies and best non age statement whiskies as well all right so hard bag has done very very very well this year it. It's it's an incredible dram that and oh yeah exactly. It's like think of it like saying i know with a scottish accent i i know. I know you sit on the list here. Absolutely so it's the second one right there on the less light here yep exactly the one with all the awards next to the aso so and those are only from this year as well. <hes> are bag. This year was actually named world whisky distillery of the year which is back to back two thousand eighteen and two thousand thousands in one thousand nine hundred whiskey distillery the but our big i know like i was saying is the newest whiskey and our core range this very interesting and the reason that i selected it is because it's a perfect perfect example of the nuance that are able to create within the piedmont category so this draws on whiskies that have spent their whole life in a marriage orig- different barrels. You have some whiskey that spent its whole life in first and second fill bourbon barrels. You have some whiskey that spent its whole life in essentially pedro jimenez sherry cast and you have whiskey spent his whole life in virgin american so those components are aged separately but then they're brought together to create a new whiskey risk and so that's really the large difference between how are begging glenmorangie work glenmorangie masters. Finishing whiskies are big masters. There's an assembling whiskey's right now. <hes> it so <hes> doctor doctor bill is <hes> beating up a crew. He's a busy man. <hes> making these blends all right so this is a blend. It's it's it is by definition a single but it's a vetting of different barrels okay right so blend would lead us to believe that it would be either a single malt from multiple different distilleries or essentially essentially usually single malt that has been teaspoon into grain whisky right. That's what blend would imply again. We refer this to this as a batting because these are. This is a single malt from a single distillery okay. It's just different barrels different styles of bills that are being brought together. It's got some amazing legs on it has really credible legs to it right a lot love that is actually because of the first and second fill bourbon but more importantly actually the virgin american okay so virgin american oak is very high or american oak in general is very high in compound called lignin right okay so lignans essentially are broken down into smaller chains things like vanna lynn right so that's why when you drink something like a bourbon you think custard you think vanilla. You'd think toffee right. Let's because of american oak and it's lignin content right plus. I've i never heard that word licnen before all honesty. We've had a number of shows. That's was ever mentioned the word licnen again. That's that's what kind of gives you that. That's why people are like all bourbons so sweet. There's no sugar added to bourbon whiskey. It's actually just the interaction of chemical compounds that exists within the wood and then the new you made spirit right right 'cause alcohol's a solvent right so it breaks things down it pulls flavors at pull's compound extracts things out of that would right right right right. 'cause i always get a vanilla feel out of eddie irvine that exactly because ashes were my politics. It's nice out educated. Well it is. It's perfectly educated because you're getting the the main yeah you're getting. You're getting that <hes> that vandal in and that is a key indicator of american oak right so this whisky is designed to be soft up front front. It's supposed to be very inviting almost supple right so i get like kind of mold honey almost fresh. I get like fresh malted barley a a little bit of chocolate. Maybe some blackberry a little bit of fresh cracked pepper and then that smoke it's almost incendiary right like the it came out the very the i'm feeling that and then the smoke is in there but it's not not overbearing it is it is a perfect landing yeah exactly that smoke just really comes on the hits pitney ruinously ethanol flavor getting i. I had none on on the first one little in this but not bad. I mean you're you're. You're absolutely a little bit on this one. Not i didn't really get any but the pete is like rounding it out and that goes for just a moment appeared is just pete's still hanging out. Absolutely you know it's very interesting. Even though we only utilize one recipe to create art begs new made spirit. It's essentially that same recipe that fifty five to sixty sixty five parts per million in terms of its phonology content we're able to create whiskies that appear less smoky or more smokey or more complex based on the barrels that we're utilizing to create those whiskey's right so in the case of ano- ano- actually tastes smokier to me then the ten year does even though it software up front again back to that kind of p._d. Paradox such an unloving p._d. Paradox i'm i'm planning on going on a t._v. On a t-shirt love it he'll lies turntables with a bottle i was that was that was so delicious. I completely forgot what we are about to taste. Just blindly took a sip of it. I was it gets my juices flowing yeah citing whiskey your knowledge cameron. Thank you so much you lost ark and oh and the glenn marine orangey. Oh my oh my goodness now. This is real. You know that's one of the things i'm a full on proponent that whiskey should be less dark and scary and kind of mysterious place. We should have fun with our whiskey. We should encourage people to make cocktails. Whiskey should bring people together. It's not built to divide people. Whiskey should be a unifier where are these. He's available <hes> so we're here in the metro detroit area but nationwide readily available readily available. It's so these are both whiskies that exist the core range of of both houses so we make these whiskey's three hundred sixty five days a year every single year <hes> you will. There will never be really shortages on on either of these. I guess i shouldn't promise that dr bill keep up the good work. Don't allow shortages now that i promise that people are exactly exactly yeah but right now pretty readily readily available. Yeah all markets sylvia look around. You'll find it and only camera thinking of course you cannot your your timing. Thank you very much really appreciate it. Thank you for having me on and <hes> yeah keep up the good work. I think you very much yeah cheers jirga again quickly so great conversation with cameron the spirits rights such glenmorangie right got the same <hes> they're checking glenmarie morand wasn't then ranch for orange orange range our bed roll off the pallet eventually will yell said we're here downtown detroit in one of our favorite places to be you downtown detroit and in downtown detroit in courtown one of our favorite places to be the sugarhouse. Stay certainly my favorite and with us. Eh jason jason leonard so jason. What do you do here at the sugarhouse well. I started off as a barbeque at the house over four years ago. Currently i work in marketing for the hospitality group the detroit optima society that oversees the sugar house and some other bars and restaurants within the city of detroit including <hes> rain company the peterborough bad luck on his john's muny tiki bar up sorry. I got distracted now. I can't remember who i didn't say <hes> <hes> grabs right across the street <hes> so we've got all those properties currently but i did our time here for a number of years. I still work on the whiskey program and and the marketing so it's it's really fun so the sugar i mean they have a few properties <hes> but tell us about the sugar house because i have some eight years running are your anniversary is coming up october seventh. We're super excited see -troit's original craft cocktail bar so do it right nominal job. Thank you dave. Wikowsky is the sole owner here the sugarhouse he's got a variety of different <hes> partners that work at some of the other properties <hes> after the fact but at the sugar you know david is a former michigan detroit area. Originally <hes> traveled working working chicago for a number of years. He had a a blog <hes> that was really popular supernet cocktail so you knew back to detroit <hes> just really wanted to introduce <hes> <hes> detroit to craft cocktails that he was familiar with so i remember there's an anecdote of him a lot of his friends where you know giving him shit for you know are you opening up and ultra lounge martini bar and nobody really understood. I guess at the time of what the craft cocktail here craft cocktails entailed so it's been great great. I've kind of started off. I guess as a more of a prohibition speakeasy <hes> people are still trying to wrap their heads around exactly what you know cocktails tails represented with fresh ingredients and a range of spirits <hes> quality care all that good stuff so <hes> the the space is great because courtown here. We're downtown detroit. People neighborhood courtown is just <hes> just <hes> right adjacent to where the former tiger stadium used to be and then they open this massive massive comerica park thing and they tore down you know briggs stadium stadium tiger stadium they tore it down and it was really kind of a coin toss as to what was going to happen to courtown because the the bars and restaurants down around here have you really relied on the tigers in tiger stadium and so when the stadium moved about a mile half three miles over it was really what's going to happen in court town in detroit. Wait wasn't on its juggernaut return. That is on right now. It was it was really a coin toss at that point and they jumped in and around that time when they jumped in <hes> in open this up you know the mercury bar slows barbecue. There's there's some good eats around here and then you got the sugar house with some some great great food the atmosphere the space itself you know the yeah. It's very art deco yeah at that. I'm not i'm not were you part of this whole show i i don't have anything to do with the design the lovely wall of no i mean heavily wallet data. The lovely while death has grown over time. If you go back far enough you could find some pictures of the first year where there's like. Maybe thirty miles in the back bar but that was solely up to david labor of love lived upstairs. <hes> davis generally really involved with the design actual physical construction so he built this place lisa pretty much you know obviously with help but his vision his <hes> his manual labor and as well as <hes> e- actually bartend initially so that was going on eight years. I've been here about five years little over five years so you know when i started here to speak to the growth of courtown i mean there is a point where i think we didn't even have a sign on the door and people were wondering is it just kind of like the overflow of slows slows was conic detroit institution but even up to five years ago cars were getting stolen. I was gonna say you come down. Come down to make sure you take all your shit out of your car because your window who is most likely going to get popped but now that's not the case so that's i've had i've had my window cracked in front of saint andrews more than once back in the mid nineties that you the go-to. That's going to be a thing for but i i remember saturday night. The city is changing working in literally cars. Get so on right on michigan avenue and you're like you felt so bad but you know even and in the last two three years <hes> it's really accelerate and you've got ford purchase a train station over there as well as investing in a number of the blocks here you guys are poised for greatness here at the sugar house. You guys have events that happened there. Every so often you do live jazz bands as well. That's it's cool. Cool new is our monthly jazz. Feature was lucky as a friend of the show she's amazing. I think you know i've been fortunate where we wanted to be a friend of the show. I work out so we we know our. It's like i said i teach high school and the guy was he's my student teacher. Idiot his wedding. She was a maid of honor and saying at the wedding and we've known each other from the bars and pubs and stuff and i know she she is awesome. As it's a good it's a good thing if you're in detroit you know look look. Look it up because that's a good. That's a good goal where performs amazing. I've had the pleasure to see her at a number of locations but there's something special about her in the space assize intimacy sort of sunday night you know her voice is amazing. I think the interesting thing about what we do here is this is technically called the jazz jams because what she does she's always singing but she opens it up to any musician that wants to come in to step in so you know people come in and come out and really isn't interesting in a way yeah brandy looking glass. 'cause that's my jam. I imagine soon the and that's my that's my karaoke now never mind it's different because our bartenders here. You're bartenders. Yes pretty cool. They're up there. Shaking it up and tell me what your bartenders because it seems like you've got a pretty cool array of folks behind the bar. Oh yeah i mean as a i came up through the sugar system myself all saris of barbeques server bartender manager and honestly you know sugarhouse has been recognized when asked why here's bus bars <hes> <hes> you know in america. It's a nationally recognized craft cocktail program. So standards are really high. It's a it's a strenuous program that you got to stick with and <hes> <hes> but the result the result is that you you got a lot of really talented people and passionate about what they do. I mean it's one hundred and one classic cocktails our menu one hundred one class cocktails seasonal a rotating menu. I think at any given month we pull the product mix we could have three hundred and fifty unique cocktails that people make so in addition to you know over six hundred spirits on the backfire so you've got to put the work. Even you know you got to put the work in before he step behind the bar but what that does is it creates a system where again like your passion about spiritual parish about hospitality. You're passionate about <hes> cocktails. You get behind the bar and that's what we do. We create memorable experiences through hospitality. Sugarhouse set the bar very very high and so everyone's trying to. I'm trying to do the same thing or trying to mimic what you do. I think people are trying to mimic was what's happening here because it is it is very cool. Well i mean. Can we do to this day. I'm surprised me for five years straight. We've been doing mixologist sell out every month so you know people come in and because if people wanna make these cocktails paper clip a couple there what the hell you got your crinkly scissors yeah you cut that out and it's no judgement you know no. No it's fun. You guys teach that and it's fun onto. Come down and and do that so <hes> there was something else i was going somewhere else. It escaped me the cocktails. The recipes is that that are behind the bar that was going to say who's welcome at the sugarhouse. Oh everybody that's that's what i was kind of getting ahead with. There's no judgement. I mean maybe they're at twenty one and over and that's it twenty one over yes as the game on other than that game on you know. I'm an old fart. I like what hey three now. Are you sure absolutely absolutely as uh-huh hipster judgment. No no absolutely not you know. I mean you know if somebody wants to come in order that in front of your face with a smile and hopefully by the time you're sitting there you say hospital it is it really is hospitality. We strive to create memorable experiences aspect and if what is in the glass but the smile on your face then we're happy it now hopefully if we you know if you order jagan coke and you're happy by the time you're sitting there enjoying that jack and coke <hes> you know the person next to you or down the the bar are having conversations. You're seeing things being smoke. You're seeing things been lending fire hearing conversations about interesting things maybe by your second or third drink. You're willing to step in and try something a little bit different and then there's no television to watch your here's another wiz bars that i love because there's not there's not as there's that except except for recording this silly thing. I haven't touched my phone since we've been in here so i haven't even tweeted the pictures. I've taken yet so i'll tweet when i got out of here. It's a love of friends. There's love spirits is a love about you know just connecting and having drinks be a part of an experience well jason. Thanks for inviting his down. Thanks for bringing the at the art in the glenmorangie guys in here cameron. Let us talk to cameron <hes> thanking us for setting up the man cave shop in the face. You're really we really appreciate it and <hes> you know we'll be back to address. Kidman thank you.

detroit ruben ruben pete smoke scotland scott sean courtown matthew fox sugarhouse sugarhouse warren court town portland brand ambassador cameron michigan seattle jamie flanagan Dot dave scala multan
Episode 114: Court of the Last Resort

#SUNDAYCIVICS

51:45 min | 3 months ago

Episode 114: Court of the Last Resort

"It's time for class gimmicks just doesn't begin an indoor an election day. This is Sunday civics the horn for the civically engaged with political strategist L. Joy Williams Sirius Xm's urban view. Welcome welcome. Welcome to Sunday civics the home for the civically engaged I'm your host, your civics teacher and your neighborhood political strategist L. Joy Williams and I hope you and your family are safe healthy and well well, this morning we're going to get right into it. I have a full on civics lessons. So get ready to take notes and listen attentively we are talking today about the supreme. Court. Yes. I know the scenes like some indepth American governments topic that you. Should be learning in a chair with chalk chalkboard or dry race board in front of you but I assure you what is happening on a daily basis on the Supreme Court does have an impact on our lives and we do very much have a say. So war, there are levers that we can pull to ensure that our voices more heard in that body it may seem to you to be a shadowy figure that there are nine people off to the side. From the day to day realities of each and every one of us that make these decisions sometimes they're good and sometimes in the case of upholding the affordable care act or marriage equality, you know you can say, Yea Supreme Court like they're of holding the rights and the laws of the land and. You're like Booze Supreme Court. If you have anything to do or have paid attention to the citizens united case in sort of describing that corporate entities have the same rights as people or any of cases that have been defined recently, there's sometimes there's mixed reaction and this is indicative of the Supreme Court across history that there are some cases that have been decided that have been outright horrible. There's a mix history that the supreme court has, but then you're thinking about the elderly, what real impact will I have or can I have on a Supreme Court? You can directly go out there and talk to Supreme Court justice. You didn't elect them. They don't come before hearings before the people and you have an opportunity to talk to justice cavenaugh or Clarence Thomas about the decisions that they made very obviously hard to remove them. They are subject to impeachment and it's not as if. You as an individual can go and start impeachment proceedings. Right. What we do know is that the Supreme Court is equal branch of government to the executive branch, which is the presidency as well as to Congress but there are some things that we can do. There are some levers we can pull by the people that we elect to Congress particularly to the Senate, and that's why quite often a lot of people try to focus our efforts on making sure that we have a Senate that is. Representative of the people and as you know justices are appointed for life. So it's not as if these terms you know you can wait out something waiting out something is waiting a whole generation. So if you have an unbalanced supreme court, you know that can last a very long time. So I brought someone to have a conversation with us about the Supreme Court to give you a basic civics understanding of the Supreme Court, their power, their responsibility, and talk about what actual Supreme Court reform. Looks like and then lastly what our power is to influence change in this situation, and so the person I brought I've actually been waiting to get him on the show for a very long time but L. E. Miss. Mom. Is joining us. He is at the nation right now he's actually the nation's justice correspondent and he covers the courts, the criminal justice system and politics. He was the force behind their column objection. He's a graduate of Harvard and Harvard Law School don't hold that against him. Before he was there, he was executive editor of above the law and he's frequently been on I. Think we've only been on a couple of times on MSNBC and he's also heard here on Sirius Xm. So grateful to have him on the show. Ellie thank you so very much for joining us for this conversation. Thank you so much for having me. So I've been trying to get you on the show for a very long time and as your stock is rising in the streets. I'm so glad you restore in two minds e. Is it. that. I want. I don't want all these white people know. That I mean that's how I feel as well about like not doing too much. You know it was like I want to do too much like in east and then have people like at my office protests me because you know I said something that was true. But rubbed your feathers the wrong way to go to the CVS and peace. Well, as I ask, every guest has us for the first time I want to hear and listeners want to hear the story of your first civic action. So my father was involved in local politics on Long Island. He was a campaign manager for a lot of county legislatures, and then he eventually ran for the legislature. Late legislature can solve many one and he later resigned in disgrace. Over charges of election fraud because he committed to watch. How Long Arc there with my family history. But so my first civic action is hopping on my bike and handing out mail writing around the neighborhood, handing out mailers or my dad's political candidates. You know like you should the mekzine she's great like as you know, seven eight year old kid on a bike. So Canvas and petitioned handed out literature at train stations and I hated all of it, which is why I, right. and. That's why we can't see you out on the streets campaigning for a candidate anymore. It's. That will poison for me. Like I love I appreciate the work. The canvassers do so much 'cause I've done that job and that is a hard job is walking up to strangers houses in the middle of the day. They don't want most of them don't WanNa. Talk to you half them like actively are angry that you're there and trying to advocate your candidate that is hard hard work and I appreciate all the people who can do it and do it I that that that is not work that I can do anymore. Well. Yes to all of the canvassers on election day workers, and particularly for those of you who have been doing this at least in the recent election had to do this in the middle of pandemic and you talking about not wanting to approach people you as a canvasser not wanting to do that in how you do that in a safe environment particularly. Given the pandemic we're experiencing. We just saw with the elections at least this week in New York but going into November as people will be gearing backup for the presidential and shout out the canvassers, the campaign workers who are thinking of how campaign and how to engage voters. During this time I can tell you from personal experience that it was a hard road. But I WANNA move to the topic of why I wanted you here. So as you know on Sunday six to educate using the current political landscape to give people you a context of how the levers of government and civics overall move and one particular pieces is actually a second part of a four part of the courts that we're doing on the show because there's so many different levels. But one I believe that people have the greatest misconception either misconception don't. Know is that of the supreme. Court it seems for most people this distant shadowy group of people who make decisions that are random and they really don't understand. Because at some point, you can be like Yay the Supreme Court when the case of the gay marriage ruling or upholding affordable care act or things of that nature and then other times you can be like blue the Supreme Court win they got the voting rights act or in recent cases that we've. Seen, the courts do. So I think people don't have a particular grass on that and also because they don't directly interact with this body. So let's start from the beginning give us a context if you will or our listeners a basic civics understanding of the Supreme Court happy to, and this is as opposed to gathering signatures in front of supermarket like I made this my life's work instead, right the Supreme Court is the third ranch and I always start there. Because people understand how important the other two ranches, right people cover the other two branches talk about the president and the Congress. The Supreme Court is a CO equal branch of government with those two is just every bit as important as those other two. It is every bit as constitutionally required as those other do, and it is arguably the ultimate check on both of the other two branches. So it's Super Borton and nobody talks not nearly enough people talk about. The second thing I like to point out is that the constitution while doing a great job of giving rules, rules and regulations for how the Congress is supposed to act, and the president's supposed to act. The constitution is incredibly silent about what this report is actually supposed to write. It basically just says, Hey, we're a constitution article three we not a sprint court connoisseur figure out what that means peace like that's. The power of his court is not constitutionally described. The number of justices on the Supreme Court is not consciously described. It says that the justices will be appointed for life essentially doesn't say how many or the qualifications or anything like that. I like to always like at cocktail parties thrill non-lawyers reminding people that you don't actually have to be a lawyer to be on the spring or. Like literally anybody could be appointed, could do could be on Supreme Court. So. So it's so it's just as constitutionally important as the other two branches of government, but it is not as constitutionally fleshed out as the other branches of government. The branch of government has fleshed out what the Supreme Court is in our system is the Supreme Court. The Supreme Court has. Known the Hamilton, the as that song I wrote my way out like the supreme. Court wrote its own mandate essentially. It's power to review the constitutionality of. Laws Congress and signed by the president that was invented by. itself, an eighteen o one K.'s called. Marguerite amount. that. That was not a thing that's in the constitution right the reason why point out. It's important. Understand that the way the Supreme Court is supposed to work is off of something called precedent. In our legal system we give laws. Force in effect credibility if they are old. Right. We expect the supreme. Court. To in almost every case, follow the laws as it has interpreted the laws in the past There is a legal theory that that that that that. We like finality in the law and we like for the lot of as unchanging possible because we like to know what the law is. GonNa be the next day right like I. Can understand that like I need to know you know is this illegal or not? Whether or not I can. Run run in the street because if I can one day and I can't another then I can live with that right so So we start the Supreme Court to follow president but that means so many of the rule so many of the regulations That, we think in the society as constitutionally mandated are actually interpretations of law made by the Supreme Court. Right? So I mean you can pick pick a pick an issue like I'll pick. Second take any issue that she want how that issue kind of impacts people on the ground how the issue affects. Your Day to day life is most likely because of how the Supreme Court has interpreted a law as opposed to the black letter textual statute or constitutional provisions that they're looking at. One of the one of the ones that I think is is easy for people to understand is the constitution says in like four five places, everybody is entitled to due process of Law and we all think. That area or trial or? Don't and the difference between if you get a hearing her, if you don't get here, has nothing to do with that tax due process of law and has everything to do with how the Supreme Court interprets to due process of law right? So the Supreme Court says like, yes, everybody gets to do process except round immigrants while suddenly. immigrants and new people to this country don't have the same process rights as White anglo-saxon people from this country right. So that's one of the easy ways understand how much the supreme court can really affect our day to day lives, and then the last civics point that I will make is that these people are completely unaccountable. They are not elected. If they're not elected officials, they are appointed for life and they can only be removed through impeachment, which is the same process that we just saw for right that that same process of Congress voting and then having a hearing in front of the Senate where they have to vote circuit convict. The person is the only way to remove a supreme court justice for their entire lots. So it is critically important that we understand coors pointing who is doing the confirming and what kinds of people are being elevated supreme to the Supreme Court because they're they're they wield power for generation man. All the things that you must do to. His Boy. Guys. Who is the? Welcome back to Sunday civics I'm your host Joy Williams here on Sirius Xm urban view Channel One, twenty six, and we are talking to Ellie missed all about the supreme court civics lesson that maybe you didn't get in American government class. So I'm going to return back to the conversation with L. for us to learn more. So I. WanNa step back a second because I, think that was a a a great overview and highlights for me a number of instances that have always been a bit troubling for me about the Supreme Court, the first one. As me and my trustee constitution and bill of rights they keep on hand all the time as teacher right so I your point about that they're really the constitution establishes the court, but it actually doesn't it give Congress the power to determine how it's organized and what it's made up. For instance, you mention right now we have nine members in that has been the going thing. It's not required that we have nine members or even that we couldn't have more correct. Absolutely. The current number of justices was set by the Judiciary Act of eighteen. We get it. We get it. We get it. POSSIBLE WAR Judiciary Act, which set the number of justices at nine. I think the founding there were six, and at one point was many as ten and now nine. And we could be eleven tomorrow if Congress passed. Constitutional amendments and you're not you don't need. All you need is congress passed I president cited booms, Eleven, justices, or twelve or nineteen my bipolar my preference would be migraine So yeah. So the number of justices is not defined by the by the Constitution and particularly you mentioned about it being a Co branch of government and we do spend a lot of time talking about the presidency in about Congress and I've. Done you know greater in depth conversation particularly talking about how we've expanded the power of the presidency sits in existence and how Congress itself has weakened itself by granting certain things to particularly the presidency but they have I mean correct me if I'm wrong. Congress. Hasn't done that much in terms of Supreme Court whereas we've given a lot of power over certain time to the Executive Ranch Congress hasn't done the same for the court. No, but the Supreme Court has done for us for itself and that's the problem. Is it not? Well funny that you should say. This is actually A. The before times and by before times I mean before Donald Trump ripped the mask off the Republican Party. and expose it for the kind of collection of racism white supremacy that I believe it's always been trump really is made that. Before that the debate between allegedly liberal Supreme, court watchers, and allegedly conservative Supreme Court watchers was exactly this issue. How much power should the Supreme Court? Should supreme or basically do everything it can to find a way to interpret laws that Congress passes as constitutional as legal as as right or should the supreme or be kind of the last bastion of defence for minority rights and I say minority rights in in a in a numerical sense more than I think the other shoe branches of governments are subjected to popular wealth congress elected every two years president elected every four years. Senate left every six years. These people swing have to put their finger in the air which way the wind's boy because the Supreme Court is projected for is appointed for life. They are protected from a popular well and there is an argument that they that because of that protection well, they should be the people who protect the the minority from being overrun by the journey of the majority right That is a debate so and it comes up all the time for instance, every Civil Rights Act. Every time we get civil rights. It's it's it has. A large part been a popular no state. Let's say Mississippi. You know saying something horrible as of course know the Warren Court saying no no no. There are GONNA be protection of minority rights here. There was this time in our history from eighteen seventies up until about nineteen, seventy nine. Where the Supreme Court was. A protection of minority. Rights. That's now flipped around a little bit though right now, a lot of times the minority rights that are being that this record is trying to protect is the minority position that like Gatien to be treated like people or minority position that black people shouldn't be allowed to right all that corporations are people or that corporations are people. So. So it's Ebbs and flows, but but one of the core arguments between a generally liberal person in the generally conservative person is this question of how the legal term of Art is activist how active Supreme Court be in striking down laws of Congress that they find on constitution. So I go back to my arguments with my professor backing college about how the Supreme Court season who who they. Are Fighting for right if you think of an individual justice on as each case is presented before them, what are from what position are the viewing their interpretation? Is it about upholding this American exceptionalism of the founders who crafted this document and this document is holy law and cannot be adjusted to change although the actual says it should be changed to meet but what you know whatever? Is it about the people that they are viewing and sort of the interpreted at. So I go back to that same question that same debate with my professor about who should the Supreme Court justices be thinking of when they are listening to cases, reviewing cases and making a decision? Is it based upon again this text that cannot be Is Holy and can never be changed or adjusted or is it focused on the people who live within that place have to answer that one and I think most legal scholars and lawyers would agree with me although very few. Number one the Supreme Court needs to treat each case as an individual case and not a larger fight in this ideological battle right? The. One of the only rules that we have the Supreme Court is that they have to hear what's called actual cases or controversies controversies. That's why you can't you don't have. Advisory Opinions, springboard you don't you never see conversation again. Do you think this is legal or not they never they're not allowed to literally not allowed. You are not allowed to give us that they're only allowed to deal with the case when there's an axel wide issues. But why has been asked there's victim or plaintiffs, and now they can decide right and I think that it's important to always remember that these are actual cases. The more I feel the law is better all the. More it holds in the particulars of each individual case as opposed to looking at each case as a proxy for this kind of long term culture war ideological battle between the two sides I. Think we get better law actually we focused when we pinned down on the details of the case. So that's number one we were thinking about will they should be thinking about the price and the defendant like that to be should be. Do they. Come on. This. This is the NFL. They don't most of us are. They'll give a good goddamn quite rightly. What's time is a good goddamn about the individual people in. Baugh right. You know when I hear that this you know bigoted cake. Baker doesn't live a big. For a gay couple I might. This is about gay rights. I do not care about the baker, the candlestick maker. And massage like that. So then that kind of gets your second question like what? What what is the standard of interpretation right now liberals and conservatives have two different US on conservatives the current wants this wasn't always true of. Even in my lifetime, but it has now become orthodoxy on the right believes interpretation of the Constitution that I looks at the actual text and sees if naked determine if the text is clear, just sign up the text is never cleared that you go to law school to learn for three years how any word is not clear I mean, I've live long I'm old enough to remember when Bill Clinton debated the definition of the Word Ed. Is never clear but anyway, they say like Oh exodus and if the tax is a clear, then they they they look towards the original intent of the law as it was defined by the people who wrote it. So if you're looking at the First Amendment, they're going to go back to the founding. They're going to go back to the civil wars as so on and so forth. they say that this now they say this is the right way of interpreting the Constitution and It just so happens that every time you do that Republicans way isn't that amazing every time you look at the original of the gut student turns out the Republican Party is right would've thought. That's the Conservatives. The liberals tend to view the constitution I think this related to. Living breathing document, we should interpret the laws as we understand them today not as it was understood, you know one hundred years ago If you're talking about Second Amendment, the right to own a semiautomatic tank is quite different than the rights on the muscular we should understand that. The liberals I suffer from a lack of ideological. Clarity is not the right word but lack of ideological cohesion conservatives have like a good slogan good tagline. Good Way to make Republicans win all the Times. I'm liberals don't really have that and it's partially because of what I started. One of the things to me that really defines a liberal judge Moore Conservative judge is that liberals tend to look at each case and controversy as a particular case or controversy look at the particulars of issue and that kind of lessons the ideological cohesion on the left as opposed to the right. One I mean one could. Argue in this has been, you know I'm used to make this joke about the second amendment that you know the Second Amendment entitles you to a musket and not you know a semi automatic weapon right but even thinking of the interpretation of that of the original intent was to you know one didn't have like an army, and so you know the ability to gather people to fight back against tyranny was necessary. But then also you know because we the founding was based upon tyranny right? The right of people to be able to protect themselves from that ever rising again one could argue right black people have the right in more than anybody. To have that protection because of the historical abuse that black folks have experienced particularly from law enforcement and other government entities. I haven't had enough drinks to make this argument fully. I I am always pretty close I'm always like two Tequila shots away from basically arguing that no law no constitutional made before eighteen, sixty five applies to me because I didn't get a Goddamn set. And so One of my. Vision is that the amendment that matters is the fourteenth amendment. That is the the does the work of extending due process rights to me and people who look like me and my family that is the amendment that does the work of making a full citizen that is the that protects need from all the racist bullcrap that was in your your constitution from the found right and so any interpretation of the constitution or where I said has to be streamed through a full deep understanding of what the Fourteenth Amendment is I like to call the Fourteenth Amendment, the Constitution to win. Yeah. Well, and I think that's an important point particularly as we. Talk about the supreme. Court. Because if you do an American government class or class there, obviously all of these decisions that were made from the Supreme Court that we would deem backwards now but they were precedent they were law at that time and quite frankly a number of those old bad laws that the supreme. Court. Upheld sometimes reappears in modern conversations in modern arguments and so what do you do with a entity that still has instill uses and employers sort of still using those kinds of bad what we would call bad decisions in current times know quite frankly joy this is. All the way believed that the all African American, especially that all African American law students have to confront at some point. As, I said the Supreme Court precedent the log doesn't work without the we we have to have overstocked for decisions that were made in the past in order for the entire system to work however, any black person especially black person that has gotten themselves. All the way law school knows straight up that some presidents were just. Right that's that if we always upheld precedent, they be changed and so there's always I. Think for African American Boston there's always that tension where the kind of professors immersed obviously. Respect. President is respect president and you you gotta be able to sit there and wait now. Respect president when it's right and what's you boyer's Obama that what did you say we only respect president that is good. That is morally valid whatever you WANNA put it. You fundamentally oppose yourself to basically the legal alice you've you. So a happens to lawsuit. Happened to me my first semester went all year happens to different philosophies at different types in their lives and their careers. But I think it does pretty much happen every where you kind of like end up being anti-establishment simply because you remember that the moral The moral outcome of certain Supreme Court. Decisions is every bit as important as the legal outcome of certain. Kennedy. Welcome back Sunday civics I'm your host. They'll joy Williams here on Sirius Xm urban view Channel One twenty six. So I want to go back. To some of the phrasing that people may hear about the Supreme Court and give definition or define what that means to folks off quite. Yes quite often we hear the phrase, the Court of the last resort what does that mean? That means what I was saying before about how they are the become the minority protector right? The the numerical minority protector. If you cannot win unpopular elections if you are being overrun by Tarango majority, the Supreme Court is your last best hope to protect your rights over the screams and shouts of Jar Ken Supreme Court, decisions be appealed no no no that that's important. Understand the Supreme Court what does Afraid Court says law because there is nobody else to? Talk to you. If you do not like US Supreme Court decision to you have two choices one pass a congressional law explicitly overturning the court opinion if it's about a statue to pass a constitutional amendment specifically overturning court opinions if it is up if it is illegal if it's a constitutional competition, right so arguably what the, let's say, the pro-life site, arguably what the pro-life side shook spent. The last thirty years doing is trying to get popular support for constitutional amendment instead of what happened to pastor years, which is just trying to five justices nor. So Don't ask me about. Well to that point I did have a question about that because the other thing that people talk about are the courts being politically weaponized and particularly in a Supreme Court standpoint as you refer to abortion rights, that is one in which often described to people that number of cases end up being brought in order to make it back to the Supreme Court to revisit this issue, explain how that happens. Well, first of all I would argue a little bit off the author out out of the center here but I would argue that the supreme court has always been politically weaponized is just that why people didn't notice that. Grit Scott. Position Eighteen fifty seven said the black man had no rights that a white man was done respect that's politically weaponized to me but to. But. Why people would say that it was and I was just law. So it was only in the seventies with a war with is dozens about abortions and civil rights whatever that way he was. Swimming. But anyway Sorry. What was? The question is how the Supreme Court is weaponized, which you answered, but particularly using example of abortion rights, how that is used in lower courts with the hope of getting back to the Supreme Court to revisit this issue. Yeah. So one of the things that's happened is that because the Warren court was so kind of affective extending rights to people who have been traditionally denied them women people of color solid. So forth, the right wing of the country. Learned. That in order to get lasting change in order to bring back Jim Crow in order to to to to put women back in the kitchen you had to have. You couldn't just do it with statutes exa congressman electing a president had to. Supreme Court justices right That's the kind of fair out wait seventies, early agents and then Reagan. Elected a bunch of a bunch of Johnson's and a lot of lack of a lot of the Republicans that Reagan of waiting ended up kind of being either like actual liberals or like berry moderate. Centrist kind of people and not walked rigged Republicans and that just that just made Republicans that just that just locked biggest lost their mind. And started kind of demanding that only the most kind of heart or partisan. Conservatives be elevated. To. The level of of Supreme Court judge in they kind of figured out while forget that for the Supreme Court might as well do that all the other lower federal courts we've been focusing on this from nets but remember there's an entire federal. Judiciary. That is appointed in the same three-quarters. Court is appointed by the president confirmed by the Senate that goes all the way from like you know the the Chief Justice John Roberts to the federal district. Judge. In your town who is in charge of let's say. Handling Voting, voter, discrimination cases right on conservatives realized that they want to have their eyes and it's almost always guys. It's almost always white guys. They want to have their guys throughout the judiciary in order to uphold and support the Republican Jenna. So this and they and that sparked quite frankly the Democrats have been real real slow on the uptake on this issue. Democrats acting like we just want good judges not liberal conservatives. Good I like no, we want some conservative judges Oh. So my my position of so my position that's very much my position it's just like I don't believe it should be balanced either like I don't think it should be extreme this way or that way we need bowel. Sweet. That's that's a that's a pie in the sky. that. I've used if there is an elephant on one side of the see-saw standing in the middle of a seesaw and saying, we're happy about the does. You need to put your own donkey or Eight doctors on the other side of seesaw, and that's how you get out. Right like the Conservatives have have shifted have gone so hard right. They shifted the the overton window here on to such an extent that simply a pointing the best interest judges you can buy that. That's that's unacceptable this point. So I you know I disagreed with for instance President Barack Obama when he nominated Garlan obviously. I support America as opposed to nothing bank. Course, trench but I I. was entirely too centrists for what the moment called for Norlin was not the opposite of Scalia. We need who? Who's the person that he might have replaced. We need to start nominee any democrats stop nominate certain harmony actual liberals, actual hardcore, progressive people to balance the crazy conservatives that Republicans have successfully infused throughout the judiciary. And we've got some great candidates. No, don't don't give me Merrick Garland. Give me sherline idol. Head of the EP we. Will Give me her to to balance out the neal. Gorsuch is in the capital of the world I WANNA see right. Give me Pam Carlin. Who of people saw during the area's just tearing the Senate to shreds with her intellect and wits an you know an education Jimmy her don't give me some milquetoasts white man who? Well Tells White men get a lot of privileges. You can find him anywhere. In any position. So ultimately, the quite another question is whether or not the court can be reformed. Yup. Yup. I is. That the constitution is relatively silent or what it does on what asking number of us. On and there are tons of of ways to reform it. I've written in the nation about this. One particular piece I read about was talking about the transparency of what the court does because traditionally, there are not cameras allowed in the decisions they just recently within a number of years I believe released in certain cases, not all the audio of actual discussions and you have argued before that, you kind of greed that sort of having that around the clock coverage would sorta produce a lot of political grandstanding from a different size which we see in hearings happened all the time you know quite whether it's Republicans or. Democrats sometimes I'm watching it and I'm like I. Get it. Okay. The cameras on you fine can get back to the can we get back to the issue at hand here? So is this argument of like, yeah, you don't WanNa create another like court TV situation but at the same time, there needs to be greater transparency about what is happening on the court from ongoing basis. My official position cameras in the courtroom is that I think putting cameras in the courtroom would do all the harms all the people say. They would you and those harms are worth it would be terrible. There'd be granting they're stupid the validity granted all throughout the court if you put cameras in the courtroom and yet we still need cameras in the courtroom because people get get to know should get to know what happens in again, the third co equal branch of government like we just have to deal with the backs that cameras will make people stupid because people deserve to see what's actually going on. So I'm four cameras in the courtroom even the. Way Agree it's there will be downsides that mullet might I have to reform one straight up the number of just like that not just because Mitch McConnell stole not just because the Republicans nominated and confirmed alleged attempts to rapists who belongs closer to jail than on the bench. But because nine is nine is a limiting number. In plural site, we should have more representation on the court for everybody we should have more law schools. Do you know most people do not there are nine court S.'s that represent two loss? You single person on Spring Court went to either harborview that as a Harvard Grad let me tell you. That's ridiculous. That's. That is bad news. we should have you can't get more representation and diversity both. Ethic Gender and intellectual diversity. You can't get that with nine nineteen with a much better number for that. So my my name reforms are reform the number of. Standing number of. The court and have ethics rules. One of the things that people usually are surprised when I tell them the Supreme Court is the only court in that country. The operates without ethics guidance every other court, every other federal court steak or whatever have you their rules of what judge can't do what the judge can't to carry judge talk your facebook. Yes there sprint. No. They, they make it up from they have no guidelines for recusals, right? So Clarence Thomas has wife is a big time conservative lobbyists she lobbies on cases that end up before her husband's court in any other court in the country Clarence Thomas would have to recuse himself from those cases but not the supreme. Court, because there are no rules for when Supreme Court justices have to recuse themselves they can make it up as they go having actual ethics rules to. Apply to the Supreme Court especially perhaps in issues of sexual harassment. especially. Issues of of self of self-dealing you know. would be would be crucial and I would do a lot for not just transparency government or whatever would do a lot to expose what the Conservative Party has become. When it comes to the kinds of people that dominates the to the high scoring land. And then lastly, I would ask because for those who are listening right here all that we are describing in terms of the court and reforms. And not just on the Supreme Court level but as you mentioned further down but what real power do we as individuals have to influence this reformer? This change is this is the only resort to press against Congress to do this. Now, even Congress, it's just the Senate, right? You, we have to look senators who are on our side issues. But when we say that we don't have a lot of power I would simply point out that one of the great successes of the conservative movement and my wife's. Has Been The republican ability to tie these social cultural issues that their base cares about directly into the Supreme Court I. Am of the opinion that Republican voters are smarter than Democratic leaders in fact, I of the opposite of. However you can go to any dine her truckstop whatever in this country, you can find any mad hat to was Yoko in this country and he will tell you that he's got permission call her Mitch McConnell GonNa. Put the right doses on the court stop them clears kissing each other. This, he will tell. Books Oh you that he has no idea what the does or why or or any of the things that we talked is no idea about any of the things that we've just talked about but he knows that he needs to both for Republican senators to have his culture war issues represent the Democrats have failed embarrassingly to make that connection for our bass boats. So if you care about clenching transits, which is something that Democrats care about you don't know that you. Will get nothing on climate change if you allow Republicans to run the Supreme Court, because all their deregulation stop all that all that stuff is like it's just about banking laws and what that's all about a ruining the power be EPA to ever do anything. That's all about ruining the power of the federal government to ever brain corporations polluters to heal right it's a one-to-one connection but most democratic voters don't know that if you WANNA. Do Anything on gun regulation anything all. You have to have a liberals on the Supreme Court because if you don't, you'll just get a slew of these conservative pro-gun lobby decisions that advisory any attempts at reasonable gun. So. Democrats needs to Democratic leaders. Democrat establishment needs to do a better job of making the once alum connection. Democrat voters on how important it is and how that's why they have to do things like vote for Hillary over Joel style right they. Have I have heard people and I'm not joking I have heard people say that they're going to vote for Joe Biden 'cause a little blot whatever. And Maybe the Democrats just to lose another election before the revolution. Are. You. Do you have any idea? What Happened Ruth? Bader GINSBURG is eighty seven years. Old Stephen Briar is eighty one years old. It is unlikely that these two will make it through another trump administration. You think the Supreme Court is bad right now it's five four conservative Democrats. What do you think's GonNa Happen Seventy two Four generation because again, these people are for life there's nothing we can do. There's nothing that we that we have that. We'd like the next thirty years that we can get through. If the court is seventy, two conservative and Democrats just don't do a good enough job explaining that people which is why you have a job essentially. An. As as I mentioned, this is why I wanted to bring this conversation to those who listen to the show to understand that context and I think you provided very succinctly what the power is of this branch of government and what's at stake for those of us who believe that we can tune it out and that it doesn't have any direct effect on politics on our day to day lives one can. In many of argued before that, you know the presidency doesn't have an effect on your direct everyday life the state you know state government does and that's true. But we can also see how having a idiot as the president does affect your everyday life in that sense does impact whether or not you have a very liberal or progressive state legislature and governor. Or not right think about new. York, right you know very somewhat progressive even though people think all of New York is New York City it is not. We do have another places of the state in Long Island upstate sort of a very diverse a political populous but at the same time even having a governor who is who says he's a Democrat He's The. Sort of an says he's a progressive and operates in there that you can see the direct impact that having idiot as the president has on the state of New York particularly in a pandemic situation, it has an impact in terms of our economy. It has an impact in terms of the wealth and wellbeing of our people even when you have a local and state government that. It you know you believe that sort of creates a buffer between national politics. The same thing with the Supreme Court in that. Yes. You may have a in believed that you have insulated yourself by electing you know certain people in your state and local government and that the Supreme Court does not have an impact on your day to day life but then you can see decisions. Such as corporations being people or having the same rights on how that would fringe on state laws and your day to day life. You see that as it pertains to the EPA and living in communities that are not being reliant on the EPA in order to protect your air and water you could see how that has an impact also your voting rights as many estates. are highlighting voter issues and problems and discrimination all across the country not having a fully functioning voting rights at how that has an impact on your voting rights. So the supreme, the Supreme Court itself while you may not be able to see what is happening on a day to day basis whereas these cases are decided and presided over, it does have a direct impact on your life. On. This because I just Wanna I just need to emphasize this point. You can see it right and you said exactly right joy. You can see it with voting rights. A lot of your listeners will have seen and been outraged by the fact that Kentucky Open polling place for six hundred, thousand people in the predominantly black area of Kentucky many religions were outraged by that. Your are the kinds of people were like, what can we do to stop this right the time the stop that was in twenty thirty. That happened what we saw in Kentucky this week happened because John Roberts in twenty thirteen eviscerated the voting rights act. This is not Donald. Trump's fault. This is not Mitch McConnell. They're the beneficiaries but this happened because Supreme Court decision in two, thousand thirteen. So if If, we don't care if we don't focus we don't vote. And we focus of the Supreme Court. This is what we saw. Kentucky is what we'll see again and again and again stay. Thank you so much for that point and thank you so much for joining me finally. Faith. And I hope you'll be back and we'll talk a more as the or national race starts up or restart again as all of these primaries are finishing up and we get to the real deal in hopefully have a new administration talk about what they ain't doing either I can't wait to going back to just being loyal opposition. Baking so much. Thanks so much to Ellie for joining us for this end of conversation on the court of the last resort, the Supreme Court and reminding us that we actually do have some power in this situation particularly as it pertains to the senators that we elect and we'll have a say. So on confirming justices as it pertains to the president that we'll be recommending justices for confirmation. So we want to make change to the supreme, court. We have to push the Senate to do so and we also have to make sure we have a president in place that will bring up for confirmation judges that will balance out the. Court, as it exists right now. So we'll be back next Sunday with more of Sunday civics with more civics, lessons for you to go out and educate others about the issues. We discuss here on the show. Thankful to all of you who listen shout out to all of you who tweet facebook in message me about more information or suggestions for additional topics that we should discuss on the show, keep them coming and we'll develop a whole show to address some of the things that you are outlining for us. We'll be back next Sunday with more of Sunday civics here on Sirius Xm urban view Channel One, twenty six where talk becomes.

US Supreme Court Supreme Court Booze Supreme Court president Senate Congress Warren Court Mitch McConnell Ellie Spring Court professor L. Joy Williams Clarence Thomas Harvard Donald Trump
How The Supreme Court Has Contributed To Income Inequality

The Diane Rehm Show

36:40 min | 7 months ago

How The Supreme Court Has Contributed To Income Inequality

"And why IT DIANE ON MY MIND. Supreme Court and economic inequality. My guess journalist Dan Lawyer Adam. Cohen says over the past fifty years a conservative Supreme Court has consistently in favour rich Cohen. Says we see this hand example. After example from ruling set make it for racial minorities and the poor to vote to decisions? That loosen restrictions. On how much. Money corporations and the wealthy can contribute to political candidates. At Cohen's new book is titled Souprayen Inequality Surpreme Court Fifty Year battle for more unjust America. I spoke with him earlier this week. Adam Cohen and before we begin talking about your book I'd be interested in your comments on the singling out of Supreme Court Justices Soda. My Aura en Ginsberg by president trump. What are your thoughts on that? Well it's very troubling. I think it fits into a larger pattern of him attacking the rule of law but in this specific case. It's really terrible because such my or did nothing wrong. She just wrote a dissenting opinion. That wasn't aimed at him at all. It was just a very proper disagreement with the majority Ginsburg made some comments a few years ago. That are really Not Important Right now. It gives the sense that he's trying to establish some groundwork for attacking the court if it does anything That he doesn't like down the road so these were troubling words. What AT HIS ARGUMENT. That both should recuse themselves from any cases having to do with him. It's ridiculous you know as I say I did nothing wrong. She pointed out Some inconsistencies in way the way in which the majority has been treating cases of the federal government brings. That's absolutely her job. She's supposed to do that in a descent. She did nothing wrong Ginsburg made a stray comment a long time ago. But it pales in comparison to some of the things that other justices who've done and even now we're learning reportedly Clarence Thomas. His wife is playing a major role in going after trump critics. If we if the press accounts are right you know what Ginsberg and and so am I have done are not things that should lead to recuse at all. So what kind of impact do you think his words might have? Well I think his idea is to undermine the credibility of the court so there are some cases coming down that could potentially have have have an impact on him on Having having to disclose his finances and things like that if the court doesn't rule the way he wants he can then say look. I told you that the court is filled with my enemies and I asked them to accuse themselves and they didn't so it does seem like he's laying the groundwork for first of all rejecting the the logic of anything that comes down but maybe even rejecting any orders that come down from the court so it's definitely not the way we want to hear the president talk about the Supreme Court. What do you think the role of the chief justice should be in a situation? Well yeah I mean it's it's disappointing. That Chief Justice Roberts has not said anything it would have been a great occasion for him to step up and say you know that the justices Ginsburg have done nothing wrong and that there's no need for them to recuse themselves. You know the thing is that refusal is left up to the justices themselves. It's not like there's some law or guidebook that you can go to so There's no rule that Ginsberg and complaints you and say look. We didn't violate thrill because there aren't rules so it would be a good moment for the chief justice to step up and say you know there's really no call for recusals so They shouldn't do. The president will continue the comment. I'm afraid he will because as I say it fits into a larger pattern of his contempt for the rule of law. We've seen him attack a lot of judges. We've seen him tweet about his friend. Roger Stone's case in about them being too tough on him we've seen him just in general try to undermine a lot of our legal norms and you know the Supreme Court is the big Enchilada so if his goal is to go after our legal norms attacking the liberals on the court is absolutely something one should predict more of an looking now toward your book. You write that wealth inequality in this country is once again where it stood in nineteen twenty nine just before the Great Depression and that over the last fifty years the court itself has played a major role in this trajectory. Talk about how sure. I think we all know that wealth inequality income inequality have been rising very rapidly. Is that something that gets talked about a lot? It's become a major focus of the current presidential Democratic primary. So the question is. Why is it happening? And there are some larger forces that people point to things globalization right so we've got rising middle classes in countries like India and China. That are to some extent redistributing some wealth nationwide worldwide. We've got automation is having an effect. Some jobs are being eliminated. People also point to policies from the government that Congress and the president come up with things like the tax cuts the Bush tax cuts. The trump tax cuts Welfare reform but in all of these explanations what I believe is lost is the important role that the Supreme Court is played the Supreme Court we just think of as deciding cases between two Libyans but they absolutely set policies overall for our country in some ways they're an architect of the way in which country will evolve and I would point to two things which I do point to. In the book the World Inequality Report Twenty eighteen which looked at inequality around the world said that. In the case of the United States there have been two main drivers of growing inequality economic inequality in in the last few decades. One is an equality of educational opportunity. The other is a lack of progressive taxation. If we take each of these the lack of equal educational opportunity. There are some specific cases. Particularly one cloud Rodriguez we San Antonio School Board nineteen seventy-three where the Supreme Court had an opportunity to say. The government must provide equal funding to all students. That you can't have more money. Go to rich school districts in poor districts by five to four vote they said no the inequality is fine and then the next year in a case called Milliken v Bradley. They said that if schools are very segregated in the city if you know Detroit is almost all black. There's no obligation to come up with Desegregation order that goes over the urban suburban line and that made it impossible to actually integrate the large school systems. So those were two ways in which the Supreme Court has laid the groundwork for educational inequality the tax lack of progressivity is directly tied to the Supreme Court rulings on campaign finance. You know going back to the seventies and the case called Buckley versus Vallejo. The Supreme Court said that money is speech. And you can't regulate it that much. The and they've opened the door in case after case it isn't united to all of this. You know endless flow of special interest money allow that money comes from wealthy people and one of the things they've bought with that is lower taxes for the wealthy and we saw that when trump tax law was being debated in. Congress in twenty seventeen poll showed that the American public wanted higher taxes on the wealthy but we saw news stories in which wealthy contributors were saying drew Republican Congress members unless you pass big tax cuts for the wealthy. I'M GONNA stop contributing money. That was what one out Congress into the wealthy campaign contributors not to the voters so as I say. The Supreme Court's two lines of cases in education and campaign finance. I think we're major drivers of our current inequality at Saint knee court has not been conservative in all areas. I mean we think about Roe v. Wade we think about same sex marriage but you're talking specifically about economic issues and public education. That's exactly right. You know the the the book is really focused on how. The court has driven economic inequality. But I would say that. We shouldn't get too excited about some of the the the courts social rulings and yes Roe v Wade absolutely was a major breakthrough You know so was same sex marriage. Although they came late to that they came late to the gay rights movement. You know people forget now but in nineteen eighty six at a time when the court really could have made a difference in gay rights they issued a terrible decision Bowers v Hardwick that upheld a conviction of a man for committing sodomy. In his home the police raided his home interested him in his own bed. You know the the nation was I. Think head of the court on some of these issues but in any case. Yes there's there's been some progress on some of the social issues but what they've done to the poor in the middle class has been terrible so tell me about the cases coming up. Now before the court that could even further create this inequality. Well I think we're likely to have a sort of quiet spell through the election. I just get a feeling the court doesn't WanNa get you know too enmeshed in the politics of it but there are a few things that could be coming down the pike one is the court only very narrowly upheld obamacare by a five to four vote that remains in endanger. I think and certainly if the president is reelected and gets one more appointment to the cord and you know there are some quite old justices like like Ruth Bader Ginsburg if he were able to fill one of the liberal seats I think we would lose obamacare another case. That's headed up to the court again. It's not going to get there. Immediately is the Harvard affirmative action case. Where a group of Asian American students challenged affirmative action. Harvard the District Court Judge Upheld Harvard's Affirmative Action Plan as the Supreme Court itself in the nineteen seventies in the the Baki affirmative action case. But if that case where to get to the Supreme Court now and it's headed that way even with the current court. It's not clear that there are five justices on the court who will now vote to uphold affirmative action. Roberts has been outspoken about not liking race-based remedies. Well if the Supreme Court says that affirmative action is unconstitutional that would have a major impact on our society and definitely have large economic impacts because affirmative action. Although it's not been perfect has been a major driver of racial minorities entry into the larger economy and that could change. So those are I think some big things to worry about? But if president trump were to get one or two more points in a second term. I think we're talking about even the potential go after other parts of the social welfare state beyond Obamacare so. I don't think we're likely to see a big impact before the election but there definitely are clouds on the horizon. What how questions who are guarding president? Trump's own finances your. I mean that that's going to be an issue that I think we're all going to be looking at to see how the court you know how much the court insists on him answering to a judicial body asking him to turn things over and you'll one we talked about the question of whether Justices Soda my are and justice. Ginsburg should recuse themselves and they should not but you know one thing people lose track of is that president trump has appointed two of the justices are who will make be making these decisions. And You wonder what loyalties you know justice gorsuch and Justice Cavanaugh. Have to the man who appointed him. So it'll be interesting to see how tough they're willing to be now by and large. This has been a court that has been very quick to Give the trump administration what it wants and we. We saw that Just recently with this public charge ruling. Where the trump administration has put in place a a wealth test for immigrants which was challenged in the lower courts and the challenges one and the Supreme Court stepped in in very unusual way and blocked the drugs that were in place nationwide and then a separate one in Illinois in that was what just sort of Meyer was objecting to in that to send that trump got so agitated about what she's objecting to is the fact that the court seemed to be not allowing the regular judicial process to play itself out. Where where if there's a ruling from a lower court it gets appealed to an intermediate court in those up to the Supreme Court. She was saying that she thinks the conservative bloc is stacking the deck in favor of the administration so that may also be a warning sign. That maybe they're just going to be inclined towards ruling for a president that they like. I think it's something to worry about. How important is that case? In regard to trump's finances and Deutsche Bank can all the rest is very important. Because you know as they say we don't know what we don't know so It would be very important to get more transparency on these things. But but it's not clear as I say that that we're going to because you know one one thing we've seen with the court is you know we'd like to think that they are neutral legal actors that they don't take politics into account but you know many of us never really bought that and I I went to law school before Bush versus Gore. And I I didn't believe that they were neutral legal actors even when I was in law school but when the Supreme Court decided Bush versus Gore I think for the whole nation It was a real wakeup moment. Because if you remember in two thousand with all that mess in Florida and wasn't clear who had won the state in there for who had won the presidential election and there were votes. That hadn't been counted. I think the nation looked to the court to be objective and to come up with a legal solution to the problem instead. We got such a political decision. There was no compromise. There was no attempt to forge a nine to zero a consensus opinion. We got the five conservatives all voted to stop the counting of the votes and to put Bush in office. And if you remember one of the most Troubling parts of the Bush versus Gore ruling from the Supreme Court was they actually said in it that this opinion cannot be cited in the future they were basically saying it's not really law. It's a political decision. So why do I mention that now because that was a moment where we saw that when push comes to shove the the court has been quite willing to act in an expressly political way so It's quite possible that in any of these Cases that are really challenging trump and his presidency. And you know it's an issue going into the election but even afterwards because he's been impeached. Once you know these are cases that could a- Reveal things that might put him in political. Apparently again we'd like to think the court is just going to call it as it sees it on the law but as I say I think we now know. The court is very likely to make political decisions. More my conversation when we come back now. Here's my conversation with Adam Colon. He's a former public interest lawyer. His new book is titled Supreme Inequality The Supreme Court fifty your battle for a more unjust America. The chief justice himself has said several times. He wants his court to remain neutral. He wants his court to be seen historically as one that acted fairly and responsibly. So the question comes now that president trump has challenged the court and the Supreme Court chief justice has pushed back against that. How you think that might affect the way. The court go could be a factor. And you're absolutely right. This chief justice has said from the beginning. We all remember that at his confirmation hearings he very said that he thought the role of judge was to be an umpire calling balls and strikes. You know not to be a better but that I think a lot of that has been rhetoric and has not really been the reality of the way he on the court has ruled. And you know give you several examples of that one of the most shocking decisions that the court has made in recent years is a few years ago they they struck out the heart of the voting rights. Act Yeah now. The thing about the voting rights act is it's hard to think of a of a law that is more central to the American psyche. Right so the the civil rights movement which was such an important part of twenty century history. One of the jewels of the civil rights movement was the Voting Rights Act. I mean you know. We had people who were murdered. Martyred fighting for the right to vote marching for the right to vote. And after those you know southern voting rights protests we get the voting rights act of nineteen sixty five it has been such a revered statute. It was written in such a way that it had to be reauthorized Every number of years and it's been reauthorized again and again by bipartisan. Majorities in Congress. The reauthorization have been signed by Ronald Reagan by George W Bush. This is about as as close as we have to sort of national scripture. The Voting Rights Act and the Supreme Court came along a few years ago and struck down the pre-clearance requirement which is a critical part of it. Which said that if election officials are going to change the rules to make it harder for minorities to vote. They have to get approval first because we know that very often that has been done in order to remove the polling place to the white neighborhoods all that so so that was written into the law. It's very important Partha. This Supreme Court struck that down under the leadership of John. Roberts under what I have to say. It was a completely made up. Rationale Justice. Roberts site is something that he called the equal sovereignty of the states. Well it just isn't really illegal doctrine and it's not just me saying that it's not just liberals civil rights supporters saying that Judge Richard Posner who is a very respected very conservative judge. Who was appointed to the seventh circuit in Chicago by Ronald Reagan? Judge Posner wrote in slate magazine. After that decision came down he said you know this doctrine of equal Saudi states does not exist. I've never heard of it because it doesn't exist so think about that that Roberts was willing to strike down one of the most revered bipartisan laws that so critical to our voting these on a made up doctrine that even judge. Posner says made up so to me that shows a level of activism that is not consistent with him saying hey I'm just an empire but also think about it. Voting is critical to power in our country. Right voting decides whether we're going to have democratic presidents or Republican Presidents Democratic Congresses or Republican Congresses. This has been very focused on making it harder for people to vote. Hard from minorities minorities vote harder for poor people. Vote Harder for Democrats to win elections and look at the way in which he not only took office. Umpire's mask but you know picked up. A Bat. Went went to home plate and Swang for the bleachers on a voting case. And you know we shouldn't let him get away with saying. Hey I'm just someone who is you know a neutral observer and doesn't think judges should be very involved in things because when it's an issue that they care about the very very involved Adam take conspiracy to the war in court and what happened when Richard Nixon was elected. Sure so the Warren court was really an amazing moment. In American history and in America Judicial History or Warren is appointed in nineteen fifty three within a year the court under his leadership issues Brown versus board of Education requiring integration in schools across the south. It's hard to think of a more important and transformative decision than that so that was of the prelude. But there's a lot more to come under Warren. The court becomes a real of force in the nineteen fifties and particularly the nineteen sixties for democracy and reform and more inclusive society and that goes across every aspect of our society. They did things like require that poor. People who are accused of crimes are entitled to a government appointed lawyer. If they can't afford one in a case called Gideon v Wainwright they required the Miranda warning. So that when the police want to question you they have to. I tell you that you have the right to remain silent. So that's criminal justice but they also were Expanding the rights of poor people. They were striking down some really unfair discriminatory rules against welfare recipients There used to be a rule. The man in the house rule that if that if a woman and her children were on welfare if the woman had a boyfriend who visited occasionally they would lose all their benefits. The Supreme Court struck down. So they're they're fighting for poor people for racial minorities. Continue to integrate the The country I notch schools but other other institutions they are reforming some of our major Institutions like prisons and mental hospitals. And making them you know treat people better be fair I. It's it's hard to describe the way in which the the Warren Court change the country. Then Nixon runs for president in nineteen sixty eight on a promise to end the war in court and replace it with a conservative court. He's elected narrowly over Humphrey in a very difficult election. A lot of which turned on the Vietnam War and he comes into office and he has an amazing opportunity to do that. as it happens. Warren is resigning and Johnson had tried to fill that seat with a liberal successor He wanted to elevate Abe Fortas who was on the court and was an old friend of his to make him chief justice the Senate rejected for this and then Johnson ran out of time. So Johnson Leaves Office. Nixon comes with the chief justice position about to become vacant as Warren steps down so Nixon is able to replace Warren with Warren Burger. Who's a conservative? So that's one seat in the leadership that he's taken care of but then Nixon also gets three more appointments in the next three years so he gets four points in three years and he's able to appoint four conservative justices who completely changed the direction of the court and one important of the story which I think has been lost to history and in my book I tried to really tell it and bring it back is Abe. Ford is when he's rejected for chief. Justice remains on the court as just a regular justice and he's a he's the most liberal member of the court. He's very important part of the old Warren Court majority Nixon wants to take his seat. So the thing is Nixon realizes that for this has been weakened by being rejected by the Senate for the position of chief justice he also finds out that Ford has has a relationship with a nonprofit foundation though setup by rather unsavory Wall Street investor so Nixon has his Justice Department. Investigate fordice's ties to the foundation. The Ford is took a job as a consultant To the foundation while he was on the court and the foundation worked on civil rights and religious liberty. It's unusual thing. It looks a little odd today. But other justices and judges have done that and There was no suggestion that for this was doing anything improper. Yeah but Nixon use that to begin investigating Florida's and also had his department investigate fordice's wife who is a lawyer at the firm focus had been at who had been investigated for some alleged improprieties and withholding documents in the case. But it'd been cleared of that but in any case John Mitchell who is Nixon's Attorney General who later himself goes to prison for Watergate crimes Mitchell's a bad guy. He's a real. You know a hardball political player. He goes to the Supreme Court. He talks to Warren before leaves basically threatens Fordis- and fortresses wife With Criminal Prosecution for his his looking at the possibility that he might normally be removed from the court. He and his wife might end up in prison for gives him. He resigns his. Yeah even though as I say there was no basis for it. John Mitchell who had been White House counsel under Nixon leader wrote a book in which he said. Look you know Mitchell. Got Very lucky. 'cause even he knew that he didn't really have anything on. Ford is but that Got Nixon. One of the four seats that he gets in three years and that proves critically important. Because I mentioned that Rodriguez case in which the Supreme Court ends up saying. We don't need to equalize funding. Between rich and poor school districts that was a five to four decision and afford US had remained on the court if Nixon had not used his dirty tricks and threatened him and driven him off for this would have been there to cast the fifth. Vote in favor of the poor. School children in Texas would have equalize funding. Our entire country's educational system. Might well be different. But for the fact that Nixon drove for off the court you know illegally and improperly so it's a very sad footnote because people look around at the unequal education. We have now and they're very rich school district and very districts. No one really is thinking you know if Nixon had not driven Ford US off the court. We'd have a very different lineup. Young interesting you know it strikes me that Republicans have been absolutely hell bent on controlling the judiciary. And I'm not just talking about Supreme Court. I'm talking about cords all over country. Why do you think? Democrats have not been as active or persevering in doing this same thing. Well you know. We always like to quote Mark Twain. Who said I'm not a member of an organized political party? I'm a Democrat right. Republicans are just very good at this. They're very disciplined and on message as you say they've been very focused on the Supreme Court. Trump actually sent out a tweet while back then I quote in the book where he tweeted. We must always hold the Supreme Court so they have a focus on it and they're disciplined and They're just better at it. So one example of the discipline is Commit remember that Anthony Kennedy step down a couple years ago from the Supreme Court. And when he did he appeared to be perfectly good health. He wasn't that that old. And why did he step down? Well looks a lot like he realized that when he stepped down with the last moment he could be sure that trump would be able to appoint his successor with a Republican Senate. The election was coming up. And you know the Democrats could have taken the Senate. So that could have put a roadblock. He made sure that he was able to hand his seat off to a fellow conservative. Which is what happened now. Do we see that with The Democrats not so much Ginsburg Brier who are well. Along years could have stepped down at the end of the Obama Administration and ensured that you know young successors were put in place. They didn't do that. And that's that's fairly common so the read it which Republicans are able to make sure that they hold onto their seats is just much higher but as you say it's a it's a much broader thing. It's it's also happening at the lower levels of the federal judiciary and some of that. Is You know someone like Mitch. Mcconnell is just an expert at both slowing down the process so grinds incredibly slowly when the time comes to confirm democratic presidents appointments and then speeded up to rocket speed when its Republican appointments. And they've just been good at that and they often appoint younger people. I mean Clarence. Thomas was quite young when he was appointed Repair GINSBURG was was around sixty when she was appointed Thomas was in his forties. So they really think of every trick in the book and it has worked because you know one of the things I talk about in the book. Is You know if you look at the last fifty years in elected Offices we have had democratic presidents. We've had republican presidents. We've had you know Obama and we've had Reagan. We've at George W Bush we've had Clinton Congress has switched back and forth between parties both the Senate and the house have gone back and forth Blue Red Blue Red. The Supreme Court has been conservative for fifty years. There's been a conservative chief. Justice Burger and it was rehnquist now as Roberts and there've been five conservative votes behind him for fifty years that's something that the Republicans were able to achieve through alive tactics. And some case you know I. I say Dirty tactics. I mentioned the theft of the four deceit which was critical creating this conservative court. They took that liberal seed away but then look at. The MERRICK garland nomination. Where if Merrick Garland who Obama nominated to fill Justice Glossy if Mayer Carlin had been confirmed and he was eminently confirmable he was on the DC Circuit Court of Appeals. He was a very respected judge. He was not even you know particularly left wing he had a history of working for the FBI so if he had been confirmed as he should have been that would have been the end of the conservative majority. We would have a liberal majority on the court for the first time. Which is why Mitch. Mcconnell was not going to happen. Talks about the shift and you call epochal. When Brett Kevin was sworn in so bread Kavanagh's nomination confirmation had I think two very important impacts on the court the first was that traumatic confirmation hearing. You know it's just not the way things normally happened that someone is being nominated to be one of the highest judges in the land and you get someone like Professor Ford who steps up and says you know. He sexually assaulted me when we were in high school. And you know her. Testimony was compelling riveting and poll showed afterwards that most of the American public believed her not him despite that because of the aforementioned Mitch McConnell and the majority that the Republicans had in the Senate Cavanaugh gets confirms were confirming someone who most of the American public fake did something quite terrible so that that's one traumatic thing and it's traumatic because remember. This isn't just you know he's he wasn't being nominated to be our chief scientist or our chief air traffic controller. Important jobs as they are he was being now made to be a member of the Supreme Court that is is the bastion of justice in our society. To sort of someone you know. Allow the American public. Thinks you know committed a heinous crime against a woman being that role very troubling. So that's one part of the of the of the of the nomination and when you add the fact that Clarence Thomas is still on the court and Anita Hill testified his confirmation about some of the things that she said he did that. Two of the five members of the conservative majority had been credibly accused of of harassing women very troubling. So that's one part of it. But the other part of it is the conservatives have really wanted not only a conservative majority but a really pure conservative majority and it's always troubled them that the one of the five Conservatives at any time as always been not entirely pure by their point of view. They've been a swing justice so there was a wild at Sandra Day. O'connor was disappointing. Them because she would. You know not always vote the party line in in abortion cases or an affirmative action cases then when she left the court. Anthony Kennedy became that figure of torment for them because he was not a reliable vote particularly are on gay rights issues but also on on some others including affirmative action. So they've always wanted to get rid of that wavering conservative and replace them with pure conservative. There was some thought among conservatives that with Kelly's retirement that His replacement Could be that critical fifth vote and we've yet to see exactly how cavanaugh will shake out but it may well be like. I mentioned earlier that you know. There's some thought that if The Harvard case another case like that goes up to the Supreme Court. There may not be five votes to hold that affirmative action as constitutional that would be an ethical decision. If they made it they weren't able to under with Kennedy on the Court Kennedy. It was actually not a big supporter of affirmative. Action did not vote With liberals very often in anything involving race or civil rights but in the end when push came to shove he was not willing to say that. Affirmative action was unconstitutional. Cavanaugh could provide the fifth vote to do that. So and also you know Kennedy. Was the key vote on gay rights. We talked about same sex marriage. Things like same sex marriage were voted in by the Supreme Court because the four liberal supported but then Kennedy has always been a supporter of the constitutional rights of the LGBT community. And it's been a very surprising to salmon horrifying to Conservatives with him gone now. It's not clear that cavanaugh will be the same. I mean it's possible we haven't seen yet but it could be that they now have the phone even to maybe reverse the same sex marriage. Roy's we we just don't know we don't know so the question finally becomes. Do you think voters are paying attention to the Supreme Court as they think about what's happening in November. I'm afraid not enough and I would say NACHOS voters on that list but I would say the media you know on my twitter feed and it may tell you the sort of people I follow but whenever I'm watching presidential debate on twitter you know. Some of the people were saying. Why is there not a question about the supreme here and it's true we could gain the same questions over and over again so I would like to see the media? The debate moderators are the candidates. Step up and make this a major issue because it is a major issue and you know some of the things we've talked about here. I mean this is a court that could end affirmative action. It could end The constitutional rights of gay people to marry it could do more damage To middle class and poor people including it could strike down obamacare. These are huge huge issues. And this should be much more central to the campaign and I would. I'd like to hear everyone talk about it at an. Thank you so much. My pleasure and that toll for today find us on facebook and twitter or send us an email dior podcast at w. a. m. u. Dot Org art theme music is composed by Jim Bromberg and then lions Furka Wunderle. This show is produced by hyper BECCA. Kaufman and else and brody her engineers this week our Clip Gallagher. And my kid. Thanks for listening all. I'm Diane Rain.

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Words Matter Library: Battle for the Marble Palace

Words Matter

50:20 min | 1 year ago

Words Matter Library: Battle for the Marble Palace

"Welcome to words matter with katie barlow and joe lockhart. This is the words matter library. Our guest today is award-winning author lawyer journalist michael lavelli his latest book look battle for the marble palace for this earl warren lyndon johnson richard nixon and the forging of the modern supreme court is our subject today my clothes also contributor to forbes where he also writes on the supreme court white collar crime and politics michael billion welcome to words matter thank you. It's a pleasure to be here now. In the interest of full disclosure disclosure i did my graduate work in twentieth century american jurisprudence at the university of virginia so this is a topic that i'm especially interested in but this is a book that will or should be of interest was to anyone who cares about the direction of our country. The professor that i was a teaching assistant for david o'brien would begin every semester with one question on the board with right what is law and u._v._a. You can imagine every undergraduate either saw themselves as a future supreme court justice attorney general or at least a williams and uncommonly partner right and so we'd let four or five of them give their textbook fairly well rehearsed or at least from their fathers or mothers at the dinner table answer and then professor brian would turn to me and i'd say for the purposes of this class law is what five people wearing black robes sitting marble building on capitol hill sega's and in your book obviously is not about the evolution of legal thought or case law. It's about something that's really really important which is supreme court nominations and answers one of the seminal questions for us here words matter which is how did we get here so having just lived through the brett cavanaugh nomination. I think everyone understands the importance. In the current state of supreme court nominations explain why you we decided to write this book and why you decided to focus on this particular nomination and how it all went down right. That's a great question. I was looking through the senate's its website years ago two thousand eleven and they had a list of all the nominees dating back to george washington and what i noticed that was so astonishing donna shing for me and i and i and i'm a lawyer and so i knew something about the supreme court at least was that up through the late nineteen sixties nominees were confirmed with ease often within days or weeks. One of them was confirmed in a day after he was nominated. The hearings would be very short. Sometimes a matter of minutes or hours. They were no litmus test us no background checks and more often than not the senate confirmed nominees through a voice vote where they just yelled out yea or nay in unison and i said wait a minute. How did it come to this combative process that we have to in this day and if you look at the list you'll see a dramatic change that takes place in nineteen sixty eight. You have the first time that <hes> nominees filibustered and then right afterwards we also have a series of events that kind kind of entrench the changes the revolutionary changes that took place that year you have a series of rejections under two different. Presidents have adjust resigned under scandal for the first. It's time and you have a justice nearly impeached for the first time since eighteen o four so you have a process that was very easy smooth almost cavalier where the senate largely rubber-stamp nominees and then all of a sudden you know all hell breaks loose if you will and you have this very combative sequence of events and that's it's really cast a shadow on how we go about selecting nominees inventing nominees and political calculations we make and in confirming injustices which wasn't the case up until the late sixties as i mentioned a professor o'brien whose seminal book is stormcenter the supreme court in american politics which is a book you cite in their work and while brian argues that the supreme court has always been at the centre their decisions have always been at the center of this political fight in america and nominations escaped it. Why do you think it is right that that's a great question for some reason whether whether it was f._d._r.'s court packing attempting to thirty's or earlier as a matter thread scott around the civil war was a little bit but it wasn't wasn't like as you mentioned again. We're gonna get into some of the numbers because i think they're really important to make the point. But why do you think it was was it that the senate just looked at it and said look presidents win elections and they get to pick their nominees. I think there was a lot more deference to the president's power to appoint justices but i also think a lot of those events were one time events for that political era dread scott comes then you have the civil war of the civil war amendments and it kind of fades from memory f._d._r. Tries to pack the cordon in the thirty s and then the court kind of switches and starts approving a new deal measures and that moment also fades so i think that's why people didn't focus so much on who gets to be on the court because these the tumult surrounding the court kind of came and went yeah. You mentioned these voice votes. That's and again. I i read your book and then i went through and i wanted to really go through the statistics. What's amazing is those i ninety seven justices between donald republic nineteen sixty eight sixty seven two thirds want seventy percent over two-thirds where approved by voice vote. I think it's also telling the last voice vote. We had was nine hundred sixty five eight four. That's right you point this out so again. I'm going to stick on this for a second just because is this more of they change in. The senate rather than the court or is it. Both it's both what happened. When earl warren became chief justice in fall of nineteen fifty three and the court as you had said had been at the center of political controversy before but what change under his tenures chief justice was now people started to let's see the true power of the court the court in its past had been kind of a blockade against the legislator branch against the president but now it was seen as is something that could sort of circumvent the political process to push some kind of public policy so you obviously brown v board. Which is you know the groundbreaking ruling rolling ending segregation but the court's rulings in ending the excesses of mccarthyism and banning prayer in school and ending the mala a portion legislative districts and all its law and order criminal procedure rulings like miranda which is the most famous or infamous depending on how you look at it. People started to see wow look how much you could get through the political process without having to go through the usual legislation or without having to win an election and once people saw that on the left and underwrite they said well if we can control the court and we could do this for ourselves right so if you're if you're a liberal or democrat at the time you're thinking we could continue to perpetuate that what we couldn't do through congress or the state governments we can do through the court and on the right. They said we'll wait a minute look how much they're getting past the political process simply he by having five or six justices support these kinds of rulings. Why don't we do that as well and you get that thinking you go straight from that to citizens united right through the second amendment cases that we've seen in recent years where instead of trying to get a majority or supermajority in congress and within the electorate in general all people now think well why don't i just get five justices to agree to my position and that understanding really started to take place in the fifties and sixties and because of that people started to say well wait a minute. If there's so much at stake the court has no longer just that sort of backstop that might block congress blocked president. It's now something that could actually enact. It's own agenda well. Then then it's going to be an all out war over who gets to sit on on the court so that was that was the calculation that was made into into change you have and i think that's why the confirmation process blew up the way that you pointed out in book and it's it's an interesting thing you know. He talked about hearings. We have these now kavanagh bork all these all the hearings clarence thomas obviously being one of the most famous but that process even even in itself didn't start in two hundred years ago nineteen twenty five and the first two were kind of more giving them a chance to respond to criticism. The first. I real supreme court senate. Judiciary committee nominating hearing was one thousand nine hundred eighty five john marshall harlan the second first time that a jurist was worry nominee was put in front of that panel to answer questions and i think again to the point you're making it's not an accident. That was the first nomination the nation after brown versus board of education and the nomination. We're gonna talk about little bit was the first nomination for chief. Justice says that same one so. I think that that's absolutely right. You've talked about earl warren knee interesting things. I just want to sort of drive some of these characters to lay the groundwork because i think people are familiar. No earl warren was was had previously been the governor of california. He'd been the republican vice presidential nominee with thomas dewey and writing forty eight and i think he was the last chief justice <music> who did not have any prior to destroy experience and probably will be the last one ever. Yes i would agree with that. One of those rulings was gideon. Versus has written wainwright which is something you talk about talk a little bit about the case in a before this his role before he was on the court in that case right the case involved giving indigent defendants in a criminal criminal case the right to a lawyer that would be funded by the government and that's something that the states were not obligated to do and there was no one representing the defendant in the case so the court appointed abe fortas to represent this position and he made and this was in ninety six three he made an astounding oral argument a lot of the justices said it was the best argument that they had heard and ultimately when they ruled in gideon v wainwright they created added that right to a lawyer for a in a criminal defense setting not at the federal level but at at the state level as well and it was a groundbreaking case one of the groundbreaking criminal criminal procedure rulings of the warren court and it really shined a national limelight on florida's he had it already been known as this really brilliant lawyer has colleague call them a brain surgeon and legal circles a a really good attorneys known as a lawyer's lawyer and he was known as the lawyers lawyers lawyers so he he was just this really really smart brilliant guy but that case really started to give him a national profile and ultimately a couple of years later hands up on the supreme court as an associate justice us. It's one of the most remarkable stories of somebody coming in associate justice on the supreme court explained the circumstances of how a ford has got there. They're certainly presidents had looked to the ideology a potential justices before johnson but he's the first president to really look at it the way we do now in this very calculating way and and you could see this if you look at his immediate predecessors harry truman selects four justices and there are all kinds of centrists and you wonder why would a democrat not pick liberals to the court eisenhower picked five justices and two of them end up being the liberal titans of the supreme court earl warren and william brennan. I think that eisenhower was asked in his last year in office what his biggest mistake was and he said he made two of them and they're sitting on the supreme court warn and brennan. That's right you consider the biggest mistake of his presidency and and j._f._k. Pigs byron white again centrist justice so you wonder from a modern perspective these appointments look foolish foolish or at least befuddling for us right because now we're we're like oh if we ever republican of course he's gonna pick someone to the far right and the democrats are gonna pick someone to the far left and so on. They didn't think it that way but johnson was sort of the first president to start to think that way in many ways he he and nixon set up the template for later president so it's nineteen sixty five. He's he's enacted. The sixty four civil rights act the voting rights act is on its way the great society john one reelection margin right and he's at the height of his popularity of this power and he's got control over congress. You know they're doing his bidding and he was known as the master of the senate and obviously controls the white house. He was worried about what the court might do. He knew the great society would be tested in the courts just as the new deal was remember what happened with f._d._r. And the earlier you mentioned the civil rights things but you also had medicare medicaid when you had your whole social agenda unrivalled since the nineteen thirties that's right and so he wanted a court that would shield his legislative achievements. He also wanted to perpetuate the liberal legacy that url worn had started and finally he kind of wanted to spy on the court l._b._j. Very machiavellian alien guy and and so the problem was there were no vacancies so he created one then you think we'll hukou that be president has no direct influence over justice assist but l._b._j. Being l._b._j. And what was called the johnson treatment has powers of personal persuasion really kicked in and he convinced arthur goldberg who had been an associate justice justice from nineteen sixty two only been on the court for three years. He convinced him to resign so that he could become the ambassador to the u._n. Now again you think again well. Why why would anyone do that. It's certainly an important job to be ambassador u._s. u._n. But it's not lifetime tenure like supreme court sometimes. It's only a few months daniel patrick warning in a man who i worked with wrote. A book called a dangerous place about his time at the u._n. So no it's it's it's the furthest thing i think from a lifetime appointment that's right and and if you're a lawyer i mean the supreme court. Is your final destination right. It's it's idealized place for for your career but johnson convinced gold-bearing. He said you're going to be my second. Secretary of state. You're going to lead the negotiations in vietnam and then he even hinted that when he run for reelection sixty eight which ended up not doing but that goldberg berg would-be as vice president so none of these things came came to fruition goldberg was very disappointed at the u._n. But within just a few days of johnson starting this campaign if you well goldberg resigned and johnson had the perfect man he wanted to fill the spot was ape fordis- he'd been his longtime lawyer friend as well as political adviser adviser and as i said he was a renowned lawyer at the time so he knew he he'd have a first rate jurists and he knew that fordis- was a liberal who would protect his <hes> is legislative legacy as well so so that's how he kinda maneuvered portis onto the court in another interview i listen to you the hosts sorta disparaged goldberg uncalled him a sucker or a fool or and there's certain truth to that but also i think to your point and i do a little defensive. Arthur goldberg is again that senator daniel you know patrick moynihan started his career working in that labor department for secretary goldberg but johnson politicizing the court as you mentioned was so unthinkable that i think to a certain extent that goldberg just was blindsided by the whole idea that he would be wanting to do this and really believed as you said that johnson treatment would would've had ford is done for l._b._j. Legally i think he represented him in important chapter and l._b._j.'s life talk about talk about it here yes in the forty eight election l._b._j. Was in the house and now he was running for the senate in texas and it was sort of a part of his career where he he didn't make it then you know you only have windows of opportunity. If there's a strong incumbent you really can't run especially in the senate in the south at that time right yes right people were entrenched for decades a lot of these southern senators so it was his window of opportunity to finally jumped from the house to the senate and really become a national player in politics and pretty much. If you got the democratic acknowements you're going to win the general election so it came down to the primary and he had a i think eighty-seven vote lead and there was a lot of controversy over those votes were found in a couple of robert cow goes through this in his books suspicious circumstances earning johnson nicknamed landslide lyndon ironically but so was his lawyer in that case yes and then went to got adjudicated in the courts and fordis- represented him and ultimately prevailed and johnson became he won the primary and then he he easily won the election and then within just a couple of years he becomes majority leader and by the mid fifties. He is now one of the central players. There's in washington and has robert caro's pointed out the most accomplished and powerful majority leader in the twentieth century if not ever so that forty eight election really really propels him to the national limelight and without that it's unlikely that he would ever become a vice president and then and then president so force was there in in the biggest political battle of his life and as i said he represented johnson on his financial holdings was his personal lawyer he was confident he came up with the idea for the warren commission mission to investigate the j._f._k. Assassination he helped write a lot of johnson's speeches so they were really close personally and politically and as i said even legally by representing him so so it was a very close relationship and and that's also in part why he selected florida's to replace earl worn in nineteen sixty eight when warne was ready to retire tire to then become a chief justice this so let's get to that earl warren who had served from nineteen fifty-three as you said presided over the warren court next to john marshall marshall the sigma significant tenure of chief justice he let it be known he announced his retirement in june of nineteen sixty eight johnson has already said he's not running for president president and so- johnson goes to nominate essentially like you said his personal lawyer to the exalted position of chief justice what happened right. Everyone assumed that focus would be <hes> a shoeing partly for the reasons you had stated earlier that it only been one rejection since eighteen ninety four justices those were confirmed or rather easily and in fact in nineteen sixty five when fordis- was confirmed an associate justice it was through voice vote and it was it only took two weeks then he testified for about three hours so there were no background checks the the senate judiciary committee investigating the f._b._i. Then investigate him none of the things that we do today took place then an and then johnson even though he wasn't going to run for reelection he was still known as the master the senate so everyone just assumed that he was going to be confirmed and someone had told me that he was so confident that he had his clerks start to take over some of the administrative tasks that a chief justice would normally do on the court so what they did not suspect back was the intensity of the opposition and that intensity arose from southern democrats who still very upset fuming over a brownie aboard as well as conservatives in the senate and really they didn't have a problem so much with fordis- yes he was a liberal jurist but there were other liberals on the court he was the proxy was the heir apparent to warren and because warren had evaded all of their tax on the court for the preceding fifteen years. Here's our so they now saw okay. We can't reach warren. He's beyond our grasp. We tried time and again to restrict the courts jurisdiction or pass constitutional amendments to to overrule the court's rulings countless speech after speech condemning the court. All of those things were unable to hinder the warren court's progress so finally in in nineteen sixty eight strom thurmond was one of four does his main opponents in the senate they come to the realization that the only way to influence the court is to control its members and that's where you get this unprecedented break with protocol break with traditions and the norms and the customs that had governed the judicial selection process and all of it is unleashed unleashed on florida's who in a way is the colorado damage to earl warren's legacy and you mentioned strom thurmond who is who served so long. I used to explain well. He was elected to the south carolina state legislature in the franklin roosevelt sweep of nineteen thirty two. He ran for president as a dixie crap and he won in a couple of states in one thousand nine hundred forty eight right and by nineteen sixty eight. He's no longer a democrat as he said he is. Southern senator from south carolina the the embodiment in the senate at least at least one of them of the segregationist south and what traditions and what conventions shinzo of protocol does strom thurmond break there are more. There's more than once you go through them because i think they're really interesting again. We seek strom thurmond. Make another appearance almost twenty years later in the robert bork hearings more than twenty years later in the clarence. Thomas hearings talked to us about strom thurmond and what he did right right and as you said so by nine hundred sixty eight he's becomes republican and becomes a republican king maker in the south so some of these things are gonna sound familiar and he didn't just do it alone. There was a michigan she can senator robert griffin who's now not as well known and howard baker and the southern democrats so he didn't do it alone. James eastland who's been in the news recently as well. Yes he was a <hes> chairman of the judiciary committee but strengthen the point person on these attacks and first thing they said was that l._b._j. Was a lame duck sounds familiar right what mitch mcconnell said in two thousand sixteen with barack obama's nomination america arlen. Let's focus on that for a second because again in preparation for this. I went back and i count eighteen. Eighteen justices had been nominated or confirmed during an election year and we say l._b._j. Was a lame duck. There had not been another election. He was still the president right. He was the president till january twentieth the at that point but there were even three simple supreme court justices including john marshall who was in american history the most important chief justice again next or a warrant it sort of back and forth right have that argument of who's the best but he was appointed when by john john adams when john adams had lost the election already to thomas jefferson so as in the last days of office unless as this thing was not only a ridiculous argument well. How did the opposition not push back on that. You know they try the lame. Duck argument was kind of used to delay delay a quick confirmation and and they knew i mean you you see an internal memos. They knew that this was the specious argument but they were grasping for anything to slow slow down down a quick confirmation for florida's so and and it's not an argument i'd ever seen before. You've done all the research. You've never seen it before. That's right and again. If if if that was the case you have eighteen justices who fall into that category or in some version of that that's right and just to give you a how how revolutionary visionary this was in october fifty six eisenhower's running for re election. We don't know if he's going to win the elections about a month away. He appoints william brennan as a recess appointment. I mean think about that. No one no one complained said okay. That's fine recess appointment to send it didn't approve them until months later after after the election so imagine if eisenhower had lost i don't he's the lamest ducks then right because now brennan is picked by an losing president so but no one thought that that was the problem problem and this is playing out in the summer of nineteen sixty eight we mentioned warren said it was june twenty eighth. I said as as most supreme court justices who who retire they wait until the end end of term right they announced their retirement then you go into the summer of nineteen sixty eight we've already had the assassination martin luther king already at just a month before the assassination of robert kennedy right and we go into that democratic convention in chicago. That was famously uproarious. The party was divided. Do you think they were delaying because they really thought they could. They were gonna win sixty eight. Is that why they did or did. They just wanted to lay for the sake of delay. I think they really thought that a good chance of winning. The presidency and nixon fueled them. He didn't overtly say hey sabotage florida's and i'm going to pick a conservative to replace worn but he constantly attacked the court throughout his campaign and he implied that hey should should get rejected. I'm going to pick the kind of justice that conservatives -servative want and pat buchanan wrote in his memoirs. I believe it was in his memoirs or in a memo. He said nixon wanted for his his nomination killed but he didn't want his fingerprints fingerprints on the murder weapon so it wasn't an overt campaign but it certainly was understood that fordis- gets rejected and buchanan was an aide to nixon at this time going on to be a speech writer and commentator on presidential candidate himself. That's right so that certainly was the understanding that reject florida's nixon's going to pick the kind of person that conservatives will be happy with that. The warren court's enemies will be happy with so they were certainly incentivised by that so what other parliamentary procedure deeds strom thurman employees that had never never been done before right now. The biggest one was a filibuster. No supreme court nominee had ever been filibustered before it would just unheard of as as we said earlier they were mostly voted voted on by this voice vote gays so this was something that had never been done and in the beginning ford has had a lot more support you see in the especially in the white house files dell's they have these vote counts where the white house staff kind of predicts prognosticate how the senate will vote on probably the only white house where those vote counts were actually the accurate. Yes yes and you know l._b._j. Was this masterful vote counter so he would insist that his aides were were really good at this process so in late june when l._b._j. Announces for his his nomination they have more than seventy senators support all the way back then he did take more than a simple majority actually net filibuster. You had that two-thirds yes yes it was more than sixty which is now you have to have about sixty seven so they had seventy and then you could see the filibuster also get delayed a quick quick confirmation and throughout july august september you see those vote counts dwindling so it goes down to the sixties and fifties and kind of tapers around in the in the the high forty s so no one had done a filibuster before the stakes now we're so high and just earlier that year thurman had written this small book call the faith we have not kept where it's jeremiah like he complains about everything that he thinks went wrong in america and he blames the court as the central institution that ruined america for the what he called the moral decay of america and he called the court the chief fountain of lawlessness and in that book he also points out in several memos and and things that he wrote the constituents the only way to control the court is to over the confirmation process so he'll go to any means possible. I'm not just like i said but others as well how to control the confirmation process and if it requires doing a filibuster and shattering all you know precedent and protocol tradition governing the confirmation process then then so be it even with all the flack they got they were willing to go through with it especially as they saw their side gaining more and more votes throughout out the summer then they had all the more reason to continue with that <hes> with that process you mentioned the some of the characters trump thurman happy cannon john nixon ford had been appointed to the seat that was held by arthur goldberg who had been appointed to replace felix frankfurter who'd been appointed needed to replace louis brandeis how much of this if any had to do with florida's would have been the first jewish chief justice of the supreme right. That's a great question and it was tough to find an exact answer. Certainly there was quite a bit of antisemitism directed at him within the american population and i had a chance last fall to go to the national archives it takes fifty years to open up the senate judiciary committee files and i would say eight tenths of nine tenths of the letter senate judiciary committee were an opposition to focus and a lot of it had and either overt or implied anti anti semitic undertones they accused him of being part of an international communist conspiracy and used a lot of terrible words to describe his jewish faith so that was certainly there within the populace within the senate james eastland and others were known to not necessarily be a overtly friendly to to the jews <hes> in the american government but you didn't necessarily see it overtly and certainly they were wise enough to not something like that overtly and you mentioned communism before before they came up with the dog whistles on race. I think that one of the dog whistles they come up with with communism. Talk a little bit about just this opposition to that warren court around around the mccarthy era because i think it's i think it's important if you look at anything from the fifties and sixties the communism pops up everywhere even issues that you wouldn't think it should matter. It's like this ubiquitous enemy within an existential enemy so in the fifties under mccarthy you had all these government <music> actions loyalty oaths background checks congressional committees were running amok ruining a lot of people's lives and reputations and the supreme court had largely a given its approval to those tactics into early fifties but when warren stepped in again by nineteen fifty-six fifty-seven in a series of rulings. They don't do it in one sweeping case. It's not like boundary board but it's a lot of smaller rulings that basically put an end to the excesses of mccarthyism so they say just because because someone used to belong to the communist party twenty thirty years ago doesn't mean that they should be blacklisted or they circumscribe the power of congressional committees. They were no longer longer allowed to simply ruin. Someone's reputation. They changed the way courts would adjudicate cases against someone alleged communist behavior so they issue these rules in the fifty six fifty seven and led to huge backlash and mccarthy was still alive. I there's a hearing where james eastland is the <hes> subcommittee chair and mccarthy's the witness and he says you know one ruling after another the warren court is supporting communists and and they're legislating from the bench that was a big thing that they kept repeating not just in the south south but throughout the country they're legislating from the bench and there was such a big outcry editorials or riding in the kremlin has its best friend in the supreme court and of course strong firemen airman and now conservatives from the midwest and the west coast now joined the south in condemning the war in court and ultimately came to a head in nineteen nineteen. Fifty-eight congress has the power to decide the courts jurisdiction. They're very few cases where the court from the constitution has jurisdiction and there were a bunch bunch of bills that were going to circumscribe to really undercut the courts jurisdiction and the house pass these measures in overwhelming numbers and it came down to the senate and l._b._j. Was then the majority leader and he pulled off his machinations and you know his masterful strategy and the one bill that was going to be passed. There was enough support for it. He managed managed to derail it by one vote so so that came to a head in nineteen fifty eight and if you look at ten years later when ford is nominated. It's all the same parties are having a rematch they'll l._b._j. Is there earl warns there and all the warren court's enemies in the senate now find an opening to finally went out one of these battles that they they kept losing again and again whether it was in the senate or as i said in trying to pass constitutional amendments so communism was a big part of that as well as the criminal procedure rulings the apportionment rulings a van school prayer and so on so now this is their chance of nineteen sixty eight to finally get their revenge against the war in court so you have the lame duck argument you have the use of the filibuster and one of the most fascinating parts about reading your book was the film festival yes that was it's fascinating sad amusing all at the same time so obscenity pornography was a big culture war issue of the day and was a very difficult for some imminent issue you for the court you have this sexual awakening in the sixties right but at the same time about three quarters of americans didn't want pornography and their communities so you have a real clash of cultures and the court was stuck in the middle because it was trying to balance the first amendment rights of adult materials like hugh hefner but at the same time allow allow communities to protect themselves from having this kind of stuff in their neighborhoods so it was a very nuanced difficult position but strom thurmond didn't care for nuance now now. He wasn't much from you know he. He wasn't an so what he did was he had charles keating and associate come and testify against the court of member charles getting was involved into savings and loan scandal in the one thousand nine hundred eighty years later right yes but in the sixties he was the head of the leading anti obscenity group in the united states and those witnesses testified that the court it was sort of the the champion the savior pornographers throughout the country and these purveyors of smut look to the court for support and this really shocked a lot a lot of people and it started to hurt for his reputation in the public which had originally supported his confirmation and then thurman doesn't stop there the white house in response sends warren christopher who was a bill secretary state but at the time he was the deputy attorney general so he's trying to explain the nuances the first amendment to the senate judiciary committee and while he's doing this thurman is flipping through nude magazines during his testimony so you can imagine this earnest in a lawyer making this case about the first amendment and thurmond's kind of mocking it by flipping through these magazines and then finally thurman doesn't stop there he says why don't we watch some of these <hes> adult movies that the court has shielded from sensors and at first the judiciary committee says no way out of your mind. We're not going to do that but he goes ahead anyway. He gets. It's a he rents a coin-operated projector and there was no proper theater room so they kind of broadcast the film on wood panel wall and it erupts ups into what was called. The ford is film festival. They watch a couple of dozen movies over chairman. Let this happen. <hes> yes chairman. Let it happen. He started watching somebody who's moves. He started he he went and sent some of the staff to go find the more racy movies if you will in either obscure films that no one had ever heard of and by september serve nineteen sixty eight four labeled mr obscenity and the public. It's not just in the senate. The public really turns against him because of the film on festival and because of the issue of pornography which he had very little to do with but again he is the proxy he is the target for all the vengeance directed at the warren court and in a way directed at american liberalism at the time so he kind of pays the price for it and all the things that broke with protocol that in the filibuster are probably the the biggest ones you you can think of and so it worked. Yes it worked what happened after that. What happened with fordis- and play at the end of the the end of the store right right so in in october one the filibuster vote is held and and there's nowhere near the two thirds majority to overcome the filibuster so ultimately fordice's fordice's nomination is withdrawn and earl warren stays on as chief justice and four to stays on as an associate justice and people thought you know he'd still have a long career on the court even though he's suffered this you know humiliating blow but what happens is just a few months later. There was a reporter at a life magazine who uncovers covers some <hes> shady financial dealings. That force was involved. It wasn't illegal but it was questionable questionable. Yes he was he had taken echina- position from a foundation where he would get paid twenty thousand dollars a year in perpetuity and after he died it would go onto his wife those payments and that's a lot of money honey that was more than half his salary and it was really just for a few hours of work a year so it seems shady. The problem was the head of the foundation louis wolfson. He was one one of the original corporate raiders and he was one of the first people convicted of <hes> white collar crime another one of your specialties yes by robert moorman volvo people just ah passed away. You know you have this potentially unethical behavior right because wolfson is being investigated and being indicted and prosecuted and he's friends ends with justice that he's paying much more than what normally would would get paid for this kind of job and so this ended up in life magazine in the spring of nineteen sixty thirty nine the nixon white house at the same time knew about this and started investigating florida's as well and they start pressuring him. They start hinting that all there's more to come and it's good this is going to be a big scandal and nixon sends the attorney general john mitchell to visit what earl warren and sean some of these underlying documents that showed the the payments that ford has had received i like i said it was nothing illegal but it seemed really dubious and so the court itself felt embarrassed and felt that its reputation was at stake and they kind of asked for us to step down and ultimately the pressure of everything that was building and there were there was talk of impeachment. Did you know that started to get going in the house so he resigns in may of nineteen sixty-nine just a few months after this feat in the in the senate just a few months earlier so his career which seemed so promising just less than a year earlier in june. Everyone assumes that he's going to become chief justice less than a year after he's not only not not chief justice. He's now off the court and his name took on such a negative reputation has old law firm wouldn't take him back in fact they removed his name was arnold fordis- this important they removed from the law firm and he continued to practice but he never reached the lofty levels of being this political adviser and legal wise men in washington that he had before joining the court so it was it was a tragic ending to his career and then what nixon do he now has two appointments to the supreme court talk about what nixon did and how those went down weeks months and years after so nixon kind of builds on what l._b._j. Was already doing so as i said l._b._j. Was the first president to really look at the justices from this ideological standpoint that we do today. Nixon was the first president to really look at how the selection of a justice would help his electoral prospects and if you think about that you think well president to some extent but again not to his extent not the way we do now where if you look look at sort of what donald trump that in two thousand sixteen right he had a list and he was basically telling his supporters pick me and i'm going to replace the late justice scalia rather rather than letting hillary clinton do it right. It was a very overt promise so nixon again was the first person to kind of do that in the sixty eight election and he woud southerners southerners by making that promise so he now has two openings one is the outgoing earl warren who finally did retire at the end of the nineteen sixty nine term in the summer of nineteen sixty nine and then for folks who had resigned. He picks warren burger to replace worn. He's confirmed quite easily from minnesota he had been on the d._c. Circuit scene. There's a noncontroversial selection but for ford is is pick. He picks a southern judge named clement hanes worth and now the liberals and the senate are out for for revenge. They said well we. We saw what you did afford us. We're going to do that to your pick. <hes> and hanes worth was a respected judge but he was seen as maybe maybe not friendly on civil rights cases so again they were using some of the same tactics use against us to now torpedo hanes worth and the a big thing that happened was this was the first time that interest groups special interests really came into place at n._w._e._a. C._p._i. and the a._f._l. C._i._o. Which were huge players in washington at the time join forces and led by senator birch by from indiana they torpedo hanes worth so now you have the the opening still there nixon goes on in picks gerald cars well another southern judge for four days opening and he's doing this because that was part of his pledge to the south during his campaign that i'm going to pick a jurist who's going to be more favorable or at least more sympathetic to the south view on civil rights. The senate liberals does and again led by the end of the a._f._l. C._i._o. Go after cars well and he was seen far more dangerous on civil rights than hanes toys and aunt something else that they used against him and that was he wasn't known as a good judge he was the district court judge in recently had become an appellate judge that his rulings things were overturned on a far larger scale than most other judges a._b._a. Ratings we talk about now yes and and and he got very lower rating and the thing was up to that point outside of the a._b._a. The the legal community haven't really participated in the supreme court nomination process but now you had these ad hoc groups start to chime in and say you know this guy is completely unqualified. The the dean of yale law school testified during the confirmation hearings that he would be the worst qualified qualified nominees to the court in the twentieth century and then there was an astonishing memo i found and it was signed by more than one hundred clerks to supreme court justice at the most prestigious job you can get out of law school and they said we feel carswell is unqualified now. Some of the names were renowned that the time like dean aitchison who had been secretary estate under truman and some of the names came very renowned later such steven briar no one knew him at the time but he signed it as well so you have these clerks the brightest young legal minds at at least disavowing cars well so nothing like that ever happened before where now you're getting these outside groups to really participate and have a huge impact in the confirmation process so cars gets rejected as well so now you have to rejections in a row and finally harry blackmun is a is nominated and appointed and he too who was seen as someone that was acceptable to liberals into these special interest groups so you had almost a year where there was no ninth justice afford a seat was empty for career and he had it reminds you a lot of justice. Scalia died in february of two thousand sixteen. Same thing happens where you have about a year where there's an opening because of of the revolutionary things that took place so but nixon didn't mind to defeat so much. He was embarrassed by it. He was upset that republicans didn't support him in confirming trying confirmed these two but it played into his southern strategy it played into his use of nominations for his electoral prospects and there are memos in the nixon white house that show that those two selections even though they were ultimately defeated played the biggest role in increasing his popularity in the south so in sixty eight election he wins some border states george wallace a third party candidate won the deep south by seventy two. It's a clean sweep of the south for nixon so again the way we look at nominees now where it's not just about ideology. It's about partisan politics about presidential campaigns right. That wasn't hasn't done up until nixon really started to do that and if you go back all the way to f._d._r. In nineteen thirty six months before he's going to try to pack the court it's the nineteen thirty thirty six presidential election and he doesn't campaign against the court at all. He doesn't say oh elect me and i want to <hes> select justices that are going to support the new deal and even fellow democrats urge them to but he refused to do that. Nixon does that in the sixty eight election and then as president really builds upon that and then you see wait a minute. That's what modern presidents do now reagan's certainly did that and like i said donald trump's is maybe the biggest embodiment of using the nomination process and the pledge of campaigning and based on who you're going to nominate for his <hes> electoral gains so nixon kind of started that as a model and now now you're seeing it move to the degree under under trump. One of the ironies of black men was. What is your opinion did he did. He go on to write roe v wade so he didn't get his southern. The judge got another minnesotan like burger right and it turns out that <hes> you had another justice who probably disappointed their president. I have to say after reading it. I you completely convinced me that this is exactly what happened and how it happened and even to the point where i had just forgotten. Jimmy carter didn't have a supreme court nominee. One of the things that i found really interesting was sent in that fifty years while seven of those have been ride call contentious which i say double digit opposition rise in it you you also had six either defeated as you mentioned two of them or withdrawn in cases like harriet myers or ginsburg ripe i douglas douglas ginsburg and and you know you go back to american political history and in the one hundred years before that i think he'd had more justices get nominated confirmed and refused to serve then you had that kind of contention and finally i guess the most depressing statistic that i found was in the twenty five years and steven briar who you've mentioned his confirmation. We've we've had zero nominees who received only single digit opposition so i guess it begs the question. Can we ever go back. Will it over though back or is. Is this the new normal i would say in the near future. This is the new normal because the court is now just politicises as it's ever been and when people people look the court for instance to change policy on abortion no matter where you stand on that issue if you say to yourself if we are five people we're going to win. We're going to prevail on on whether we pro choice or pro life. That's very dangerous for the court. That's going to politicize it no matter what we do if we give it that kind of power and if we allow it to decide a lot of issues that let's say are better suited for the electric or the political process to decide. It's going to stay the same. Unfortunately i thought the garland nomination nation was an opportunity to kind of back away from this. If you look at garland he was left of center but he wasn't as liberal as some of the other potential people obama almost could've picked and he was sixty three years old which by modern standards is pretty old nominee usually now they're in their forties fifties because presidents wants someone there who served sir twenty thirty years. I i did the calculation. If brett cavenaugh lives as long as oliver wendell holmes he has another thirty nine years on the court right right so you had a president in speaking younger and younger justices said that they would serve a long time so i thought obama by picking someone who's not as liberal more center liberal justice potential justice and someone who is a little older was kind of offering a compromise. Yes i'm not going to pick someone who republicans will really dislike but garland may be will be a compromise. I think it would have been great if that compromise hadn't been accepted it would have toned down what we have but the fact that he didn't really get rejected the mcconnell came up with the whole lame duck argument really embittered both sides even more and then you have the attempted filibuster against neil gorsuch and of course the really really testy nasty exchanges between red cabin on the senate democrats last fall so it got worse and i thought that was the opportunity was garland really compromise. Pick take someone who both sides could could live with but not be ecstatic about and the fact that that fell through. I don't see much hope in the near future because a lot of this is reflective -flective of politics outside of the corden politics outside of the court has now very rancorous partisan so i don't see the court being shielded from that in the near future. I don't see that in in today's political environment maybe five ten years down the line. It's it's possible so anybody who knows anything about writing books can read your book and know that you started this for brad. Kavanagh nomination probably a while long before yes yeah so as you sat there last summer watching this play out were you surprised rised by the rancor and by just the ugliness of that process somebody who had been immersed in this for as long as you had i was to some extent that because part of it was <hes> these televised hearings whereas the forest were not whatever i saw to read in a transcript but when you see it on video it it was really <hes> it was surprising how ugly and how contentious and how mean spirited it had gotten and what was surprising was in a way fordis- kind of sat silently as people use them for target practice whereas cavanaugh was willing to speak out so that was the biggest change the tone of the conversation but have the nominee right. Yes it was it was who was doing the talking who was doing who is launching a lot of these attacks was the nominee himself which which hadn't been the case with four or the nixon nominees who kind of like i said sat and took took the took the punishment so that that did surprise me and as i said seeing it on video and hearing it with your ears rather than reading it on a sheet of paper yes that that did surprising but it did also echo back to what happened some fifty years earlier and it was exactly on the fiftieth anniversary which made it so ironic that you had these two contentious nominations almost today exactly fifty years apart so that that did echo allowed. I said wow look at the look at the things that repeat themselves <hes> you know in history and even even fifty two years later so it was both surprising but also illuminating the parallels between the two michael pavilion. The book is called battle for the marble palace. Abe fordis- artist earl warren lyndon johnson richard nixon and the forging of the modern supreme court it is a wonderful book is well researched. It is a great read and it's really really really important as we go into two thousand twenty pick this up. Thank you so much for your time and thank you so much for joining us. Thank you for having me. It was a pleasure thank you for listening listening to words matter. Please rate and review words matter on apple podcasts and other podcasts providers breath.

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Buried Treasure: The Fight Over Fortas

Skullduggery

25:07 min | 1 year ago

Buried Treasure: The Fight Over Fortas

"No fifty years ago this month. Something extraordinary happened at the supreme court. That is almost completely forgotten today. A Justice resigned in a cloud of scandal. It had never happened before. And it hasn't happened since yet the resignation of Abe Fortas barely a year after president Lyndon Johnson had tried to elevate him to the post of chief Justice was no isolated event. It was the combination of a furious political battle over the future of the court that may have changed history conservatives in the Senate, including states rights advocates and die hard. Segregationists had gone to the mat to block fordis- seeing his elevation to the post of chief, as a way to start rolling back years of liberal, rulings, by the retiring chief, Earl warn, it was the first time a supreme court nomination triggered a full-scale ideological battle setting the stage for confirmation fights that have continued to this day. It was a battle that only ended. What forces foes found embarrassing personal details in his background thus setting another precedent? We'll discuss the fight over Ford us with the author of a new book on the subject battle from the marble palace on this episode of buried treasure. Because people have got to know whether or not their president's across. Well, I'm not a crook. I told the American people, I did not create arms for hospital. My heart and my best intentions still tell me that's true. But the facts and the evidence tell me it is not. I did not have sexual relations with that one. There will be no lies. We will honor the American people with the truth, and nothing else. Michael Isikoff chief investigative correspondent for Yahoo news. I'm Dan Kleinman editor and chief of Yahoo news, we are joined now by Michael, Bob alien, the author of battle for the marble palace. He's also writes for Forbes dot com about the supreme court. Michael, welcome to the bike cast, thank you. It's a pleasure to be here. So this was such a fascinating read, because it's a subject that I dare say, very few people. Remember at all yet, as you make the case out. It was a pretty important one. What prompted you to want to write a book about the Abe fordis- confirmation battle, right? What I was a lawyer, and I am a lawyer, and I always assumed that it was the Robert Bork nomination in one thousand nine hundred seven that kind of created the current confirmation battles that we have to stay, but I was looking through a list of supreme court nominations dating all the way back to George Washington and something confused me about the. List throughout most of the twentieth. Century, people would get confirmed in days, not weeks, sometimes in, in a single day and next to them, they would have a the votes the vote count. And a lot of times it said V, so I- scroll down to the bottom on thinking, what does V stand for and stood for voice vote? The Senate acts expeditiously and usually unanimously where the Senator simply say yea or nay, and I said, how could it be this cavalier this nonchalant? And the more I looked into it. The more I realized that this was the turning point, the confirmation fight over eight forty nine hundred sixty eight really created the template for the modern confirmation battles we have to stay. So that's what got me interested in the subject. So set the stage for us. Tell us who Abe Fortas was how he came to be on the supreme court in the first place and why he became so controversial right? So Abe Fortas was a brilliant lawyer. He graduated second at Yale Law School worked in various new delay. Agencies and after World War, Two was co founded one of the premier law firms in the country, and he was known as a brilliant. Lawyer, he was called a brain surgeon buys colleagues, the person you called when all else failed and he was also a political fixer. He was on the boards of five corporations. And if you wanted something to navigate through Washington's political regulatory labyrinths, he's the guy, you called, and he was also Linden Johnson's personal lawyer, and close friend Johnson in nineteen sixty five wanted to put someone on the court, who would continue the Earl warns liberal legacy who would also protect and shield, his legislative legacy is accomplished moments from constitutional scrutiny just as ObamaCare was tested in the courts. He knew that the civil rights legislation the great society bills would be tested in the courts, and he wanted to make sure that they were people there who would safeguard his legacy. And finally, he wanted to spy on the court. So. The perfect person for him was a he's liberal. He's brilliant, and he's very close to Johnson, both personally and professionally very close. So the biggest problem he had actually nineteen sixty five was getting an opening there were no vacancies and most presidents would simply wait for someone to retire. Right. But not LBJ. He coaxed Arthur Goldberg who was then an associate Justice. He convinced him to become ambassador to the UN. That must be one of the dumbest job trade. Yes, in history, it is in hindsight. And it was then to Washington's pundits in a rolling Evans at the time they were wondering what how did this happen? How did he get Goldberg to step down right here on the Warren court to be UN ambassador? Right. Well, he told him he made promises that he was never going to. He told them you're going to be my second secretary of state that you're going to be the point man Vietnam, you're going to bring peace to southeast Asia. And he said when I run for reelection and sixty eight you'll become vice president, he gave them a version of what they call the Johnson tree bullied him into doing it, but he did also have to twist a Boorda's arm to take that job. Right. That's right. I was just going to say about Gobert, what a sucker fell for that. But yes, he, he was not the second secto state, or, or anything of the sort. And then, yes. So now he had this vacancy and only took four days to convince Goldberg to resign, but for. Didn't want the job. He was making about two hundred thousand dollars in private practice, and lot of money back, then, yes. Yes. And about five times, what a Justice made and he'd liked working behind the scenes, he knew he'd have to give up a lot of his the things he enjoyed doing as a Justice, so he was reluctant to join his wife didn't want him to go on the court and so- LBJ kept, you know, using the treatment on Florida's, but Ford is having known LBJ for so long was pretty good at rebuffing him. And finally, in July, sixty five Johnson calls them and says, look on finalizing speech, it's going to be the first big troop deployment to Vietnam and come to Oval Office and help me finish it. So Ford us goes they finished the speech, and they're walking over to the East Room for Johnson's press conference. And Johnson says again Abe, I'm going to put you on the court and for two cents. No MR president. I can't do it. And finally Johnson says, look, I wanna send fifty thousand troops to Vietnam and I'm going to send you to supreme court, whether you like it or not. So you can either. Or common watch it in person. So for this never said, yes. He he ended up on the court. Okay. And then he's on the court from sixty five to sixty eight and Earl Warren who'd been the chief all these years, let's be known that he'd like to step down and Johnson taps fordis- to replace him. Why Ford us at that point? Right. Well, for many of the same reasons he wanted someone who would continue warns liberal legacy and someone who'd be really good at doing it a brilliant lawyer in Florida's had proved himself to be a very able Justice in those three years on the court. And to some extent, I think he wanted to set up his friend to be chief Justice and also to be the first president who appointed a Jewish person to be chief Justice fordis- had the unofficial Jewish seat, which it started with Louis Brandeis Felix Frankfurter Arthur, Goldberg and LBJ felt proud, just as he felt proud that Thurgood Marshall was the first African American on the court. He. Was proud that he would have the first Jewish chief Justice as well. Could you tell us about just very briefly about forty jurisprudence was indistinguishable from the liberals on the Warren quarter? Or is there anything unique about what he had done in those first three years pretty much? I think he agreed with Warren more than eighty five percent of the time so they were very close. I think he was friendlier. He was known to be more friendly to corporations than the traditional liberals on the court. Like Earl Warren, and William Douglas and so on. But otherwise in terms of the big issues of the day civil rights being the biggest of them criminal procedure cases like Miranda. He was very much in lockstep with the other liberals on the court. Okay. So, but this nomination runs into a buzzsaw in the Senate tell us about who is fighting for us and what their motivations were the primary people opposing the nomination were southern Democrats and conservative Republicans and strong, Thurman who had starred as. The democrat, but by then was a Republican was sort of the point man on this as well as Robert Griffin. He was a freshman Senator from Michigan not very well known today, but he came up as an early opponent, and their main grievance was the Warren court had offended so many people who we now, call conservatives, you start with Brown v board, which, of course, made warned the number one villain in the south due to the desegregation order, but in the late fifties, the Warren court had kind of put an end to the excesses of McCarthyism, and that offended a lot of people in the sixties you have the one person one vote rulings that changed practically every legislative district in the country if you have the criminal procedure rulings like Miranda, you have the court opening up to society to adult materials, what many considered obscene and smut, and they banned prayer in schools, which is actually the, the most unpopular ruling of Warren court, enduring more tenure. So you have a lot of people who are very upset at the court. They've tried to neutral. Allies. The Warren court for good fifteen years, and they just haven't been able to because the court is kind of shielded from legislative action. You can have all angry speeches in the world you want, and really strong, Thurman made many of them. Okay. My favorite part of the book is you mentioned pornography. The Thurmand bringing up the smut that the warned court had allowed in the pornographic movies, and he plays them for the Senate Judiciary committee. Tell us about those extraordinary hearings in which Strom Thurmond is playing pornography films of pornography at the Senate Judiciary, and it was a extrordinary and Thurman did everything he could he broke all protocol all norms. And one of the things he did was what turned out to be called the is film festival. And he said, why don't we showcase the American public what the court has been shielding from sensors, and so the judiciary committee said, no, we're not going to let you. This but he did it. Anyway. He got a room in the Senate that in have a theater, and he got a coin-operated projector, and they didn't even have a screen so he broadcast the film on a wood-paneled wall, what was the phone, I believe it was called owed dash seven some obscure movie that used to play in Los Angeles. And the penny arcades they're compared to today's standards would be very tame. But a lot of people were offended by this. And then he said, well, why don't we do more? So for over a period of about forty days, they watch dozens of movies, and it kind of became a running joke, like, oh, we're going to have the Thursday night special twenty senators which with their aides, the house got jealous that they were in on these movies with them. And then four to Scott labeled Mr. obscenity at the end of it, and it really was the big point in his confirmation that the tide tilted against it. But there were also allegations of corruption for lack of a better word, but it was at the pornography issue that did a man as opposed to some of the questions those other questions. Well, they all did. But the pornography issue in terms of the public's attention in public sentiment really -uilt opposition strength. But the other issues of of corruption of him being too close to Johnson. I mean it is he doesn't. He didn't have the traditional resume for a supreme court Justice at that point. Right. Being a political fixer representing some unsavory clients, as opposed to coming out of the academy or a law school, or having a kind of a more Agust reputation as a lawyer. So he, he was vulnerable in that sense. In some ways, wasn't he? Yes. And his biggest volubility was he didn't stop advising Johnson case. He lied to the Senate Judiciary committee hearings about his communications with Johnson because the senators wanted to know how often are you talking to Johnson? How much do you communicate to him about what's going on in the supreme court and Ford is basically said, not at all right? Which was not at all. True. Right. Right. In fact, they met eighty times in those three years he was in. Mortis while he was on the supreme court, and he attended more cabinet meetings than Goldberg who was supposed to attend the cabinet meeting. So, so he got caught for that. And then he had this course at the American University law school for which he was getting paid fifteen thousand dollars for I believe it was a seven week course, and that was about seventy times, what they would normally pay a professor. So you could say, well that's a bit shady. But it got shadier in that his partner had set up their former clients to fund, the course so it seemed like a backhanded way to pay him. So before we get to the corruption, I, there's something else about this battle that echoes today, and that is that Griffin Robert Griffin. The Republican Senator from Michigan said that Johnson should not get to name a chief Justice because he was a lame duck shades of Barack Obama and mirror. That's right. That cut at that time, because this is an election year nineteen sixty eight that's right. And, and look, it was a the argument work, but it was very specious because presidents had long appointed people in their last year in office. In fact, is in. How're had appointed William Brennan in nineteen fifty-six about a month before the election as a recess appointment, which will be on heard of now, now that would lead to constitutional warfare, right? And it had been done historically, a half a dozen presidents had nominated about fifteen justices. No one had ever made this argument before. And then we see it repeated as you said in two thousand sixteen with Mary, garland and Obama, but that kind of stopped the early momentum that the Ford us nomination would have had, and then these arguments about corruption and being Johnson's crony the pornography, all of that kind of snowballed against them. But the lame duck argument was sort of the first step to slow down for his moment. Remarkable things about this story as it was nineteen. Hundred sixty eight so much is going on in the country. The Vietnam war, the presidential election, the assassinations of Martin Luther King, and Robert Kennedy this. The forest nomination to be chief was kind of almost a second tier story. Right. And I think that's why it's been forgotten they because they are so many newsworthy events that year dramatic events as you said, with sassy nations and riots, the chaos at the democratic convention in the my Lai massacre, the Prague Spring, I mean, you name it, so I think that's part of the reason why it's been kind of lost a history in that it got lost in that in that mayhem that turned out to be nineteen sixty eight and yet momentous in so many ways, and so many precedents. The first supreme court Justice to be done in by filibuster. That's right. That was the first time anyone had attempted that and they succeeded. And, and again, you see parallels to today. You have the lame duck with garland. You have Neil, Gorsuch, where Senate Democrats in two thousand seventeen. Try to filibuster him. They succeeded against fordis- in sixty eight so there's another parallel there. And no one had thought that something that would be reasonable or normal. But again, they kind of shattered all the precedents that governed the confirmation process to defeat him. So make the case that you make in the book that this is where the kind of judicial confirmation wars began. I mean walk us through the evolution from fordis- to today. Right. You have this big battle, as I said with filibuster all these arguments that had never been made before forces defeated by the filibuster. And we has chief Justice. Stays on the Gulf of what happened to him later. And then if it had just stayed there, and maybe it had gone back to what it used to be. This would have been a blip, we've had testy confirmation battles before. But what happened was within two years to Richard Nixon's nominees. Or also rejected again. Using these unprecedented arguments and tactics and Hayworth in g herald cars. Well, that's right. Two southerners and then within that as well. Force resigns on there are just cloud of scandal. And then Nixon says, you know what I got four to resign. Why don't I go try to impeach Justice? William Douglas, no Justice had been impeached since eighteen o four. So again, going back to the systemic look, almost everyone's confirmed within days, senators rubber-stamping, and now you get all these succession of rejections, you get one Justice to resign on scandal. Another one nearly impeached and all hell breaks loose, essentially. And then the template is kind of established. I don't think anyone. Do that at that time, but a lot of these tactics Lori emerge in later generations. Yes. But now it's not a straight line. Right. Because, you know through Bork and then beyond because there are a number of supreme court nominations that go through easily. I mean Justice Scalia, for example is confirmed. I think ninety eight to nothing before Bork. So it's more of an evolution. Yes. And what happens? Is this a little bit like a bull market in the stocks, right? Where it was going up generally, but it doesn't go up every day. Right. It goes up and down. So whenever there was a nominee who was more appealing, or if the opposition in the Senate didn't feel like they had the political power to stop them. They did go through quite easily. But now more than ever you see it. That's less and less the case. Okay. Let's talk about his resignation and how that came about because although some of this, I guess, the college course had come up during the confirmation fight over chief Justice. It's only later after that. That life magazine reporter gets a whiff of something more serious. And that is that fordis- has put on the payroll of a foundation set up by a stock swindler, who is litigating his case likely to end up in the supreme court. That was pretty serious stuff. Yes, tell us who the stock, swindler was, and the arrangement that he set up for, for this white collar criminal was a man named Luis Wilson. And he was wanted to I a corporate raiders in America, and one of the first people pursued for white collar crimes, and he had set up a foundation and he liked eight forty he was very fond of him. And he brought forward us on board for a salary twenty thousand dollars a year, and that salary would continue for his life, even after he passed away a lifetime pension of twenty thousand dollars walis on the supreme court. And in fact, it would transfer to his. Wife even after he passed away. And it was really that's that's half his judicial salary. Okay. And it was really just for a few hours of work. It wasn't as if he was there, this, the day-to-day president or something like that. So it seems shady he did as for us for help on his case Fornace did not help him. But just appearance of impropriety was very dangerous. Could somebody so brilliant as fordis- have entered into such an obviously unsavory arrangement? Yes. That's one of the magic questions. I don't have the complete answer for, because it is this guy was was renowned for being an advisor to others. Like his wisdom, was what people look to. And this was a very unwise decision part of it is that he was always worried about money. He grew up poor and to him. He felt like he'd never could have enough money. So part of it was a money grab and part of it, you know, he was so smart. He was already advising John. Johnson while sitting on the court he felt like he can do any job you throughout him. So he had a lot of genuine philanthropic interests. So he thought he could do that through this foundation. So he said, well, I could be sitting Justice, I, I could be writing speeches for LBJ and I could do philanthropy altogether. I'm good enough to do it, and he and he was, but he didn't realize all these potential conflicts of interests. So let me ask you about the Bork, an allergy because it seems to me that there is some difference between what happened Bork and what makes Bork unique and what happened to Ford us, it is. I think the case that there was an eight ideological battle, but also Bork, was primarily almost exclusively fought on ideology engine philosophy. They didn't really have allegations of corruption. Right. I mean the difference. Yes, yes. The primary opposition to forest inspiration was ideologically. But that wasn't really grounds that you could. Rely on in the sixties because that just wasn't done back then. So they found these other weaknesses vulnerabilities. Sure. Their motive. And you can be sure by the way, that if Ted Kennedy had found those kinds of vulnerability on four they would've used them. Yes. Yes. But it's an interesting historically that back then ideology wasn't enough. That's right. That's right. People consider that sort of off limits to some extent. And so, yes, Bork, is primarily attacked for his ideology and the many of the same people are in both battles Strom. Thurmond. It was he on the judiciary committee in, yes. Right right through. That's right. That's right. Hill. He changes roles. He was the point man opposing forces and now one thousand nine hundred seventy becomes the point man in the Senate defending Bork. And he says, you guys are doing all these outlandish things you shouldn't do that. And people brought back the language from his speeches in one thousand nine hundred and said, no, we're doing the same thing. And in fact, Joe Califano who's Johnson's domestic adviser wrote an op-ed saying, you know what if anyone disagrees with Bork, they should not only oppose him based on ideology. They should actually start a filibuster. So a lot of this, the parallels existed and some people said to Thurman, wait a minute. Look what you did. The Ford is we're not doing anything near that. And there was no board film festival for. So we're not doing anything close to that. So yes, it was primarily based on ideology, but they had it in mind, especially the people who were in the Senate, like, Ted Kennedy, and, like, Thurman, that this was a sort of a, a rematch of that sixty eight battle. So there. There's a supreme irony in this, which I'd like to cap off the discussion with which is forest resigns from the court Nixon has trouble replacing the seat. That's right. Hanes worth and cars, well, and who does he end up with as the nominee who gets confirmed to replace a fordis- Blackman, Harry, Harry Blackmun, the author of Roe versus way, the opinion that conservatives today, still a rankled about. So even with after all, that ideological fight over fordis-, the Republican president ended up with a nominee who Republicans today are quite dismayed about law, unintended consequences. That's right, Michael billion. It is a great read battle for the marble palace. Thanks for joining us. Thank you for having me. Thank you. Michael. Thanks to Michael Bellion for joining us on this episode of bury. Treasure don't forget to subscribe to skulduggery on apple podcasts or regulus, dear podcasts and tell us what you think legal review. Sure. To follow us on social media at skulduggery talk too soon.

Lyndon Johnson supreme court Ford Senate Robert Bork president Senator Arthur Goldberg Earl Warren Warren court fordis Abe Fortas marble palace LBJ Senate Judiciary committee Thurman Michael billion Abe fordis Richard Nixon
Terry v. Ohio

5-4

58:16 min | 6 months ago

Terry v. Ohio

"Number six or seven. John W Terry outtake. Hey everyone I'm Leon. Faulk CO creator of slow-burn and fiasco on today's episode of five to four. Peter Reaction and Michael Moore talking about Terry Ohio. A case that clear path to the police tactic we all know is stop and Frisk intended to be a quick check to identify hidden. Weapons or contraband. It's known as stop-and-frisk but communities of color say targets many and unfairly at that you're not Tober of nineteen sixty three a police officer in Cleveland. Ohio saw two men walking back and forth past a storefront in a manner. He found suspicious so he approached them. Patted them down and discovered they had guns when the men were prosecuted for carrying concealed. Weapons defense lawyer argued that the stop and Frisk had been illegal but in nineteen sixty eight. The Supreme Court ruled at the officers. Actions did not violate the fourth amendment. This is five to four podcast about how much the Supreme Court sucks. Welcome to five to four podcast where we dissect analyze the supreme court decisions. That have weighed down. American life like stones in the pocket of struggling swimmer steadily dragging him toward the bottom of the ocean while he flails helplessly toward the surface water slowly filling his. We've had the ocean eroding rocks. You've had rocks crushing always a water theme or rocks. It's pretty difficult. This is like my third metaphor and I am running extremely low. I am Peter. Twitter's the law boy. I'm here with Michael. Everybody and from Austin Texas High and together we are the only legal podcasters at any serious risk of disbarments. Today we are discussing Terry. V Ohio a milestone nineteen sixty eight case that firmly established the legality of stop and Frisk Practices by American police. A couple of things here. I we once again. Deviated from our namesake as this is an eight to one decision and you might think that calling our show five to four and then covering to non five to four decisions within our first few episodes demonstrates a complete lack of respect for our audience. That's yeah that's that's correct. I shouldn't have phrased it like but this is our first for a into criminal law and the Supreme Court has throughout its history managed to be particularly unconcerned with the rights of citizens who find themselves at the mercy of police and as results. Some of the most atrocious criminal decisions in the court's history. Were actually pretty uncontroversial from the justices perspective. This is a court led by Earl Warren. The chief justice from nineteen fifty three to nineteen sixty nine who spearheaded the courts push for civil rights quite successfully but nonetheless held here that a police officer could if they were quote reasonably suspicious of a crime or danger to themselves throw a person against a wall and pat them down also the episode where we make clear this podcast position on the police finally which is to make that position clear opposed opinion but we also want to be fair here. And that's why at the bottom of this episode. We'RE GONNA be talking to former police officer. From Staten Island Vinnie Stromboli the borough president of Staten Island by believe Vinnie. Strong bowls current position. We'RE GONNA BE GETTING PERSPECTIVE. You know Just sort of hear what the other side has to say so re I'M GONNA kick it to you for the facts of the case Okay Terry Ohio. We are in. Let me set the scene for you. It is a SEPIA toned nineteen sixty s Cleveland Street and a detective Martin McFadden. He's on his regular beat and he observes two black men. That's suspicious already. So the two men are John Kerry and Richard Chilton they are standing on a street corner and Martin McFadden will later testified that quote. They didn't look right to me at the time although he also testified that he doesn't know either man he's received absolutely no information about the men at all at the time that he first spots them and he never says before trial. He doesn't say what doesn't look right to him about these guys and actually at the hearing on the motion to suppress for this When the judge flatow assim what drew his attention to these two guys? Mr McFadden says straight up judge. I don't know so that's what we got so far. I know I know I think I know. I think all of us know I think McFadden nose so Yeah so what? He does say that he observes both of these guys. They're talking to each other and then alternately one by one going up to a store window and they're looking inside so like taken alone rate. That's not suspicious. But I suppose ostensibly that could become suspicious. Maybe depending on how quickly they're going back to the case in the joint but it depends on the com- if it was an ECLAIR shop and they're like what do you think about that clear. That one looks good. Yeah so he does. He thinks they're casing the joint and he says casing the joint and so immediately. I'm like in a league. It's like this those old like police detective shows or something and he's just like I thought they were casing the joint see these hoodlums gave me a real bad feeling see and the Virgin. And she's right you know. That's that's what it feels like. Mcfadden is trying to express oral argument. Mortar the justices asks where like the eventual arrest takes place in. The guy was like a haberdashery and I was like Oh there's a word that it's no longer different. It's just a place where haberdashery curse. That's my understanding shirt. Okay so like I said. They're walking back and forth. They're looking in the window taken alone. That's not suspicious but to him. It's suspicious so how many times did they walk over and look in the window? Actually we don't know we never will but I think it's important to figure out how many times they looked in the window. So what is the cops say in the police report? Yeah let it on us. So his police report which I have read the original He says that each guy walks up to the window three times now just wondering. Did he change number later at any point? You know. It's interesting that you bring that up. Peter this is why they call him the law. Boy I think he just has a sensor means so a year after his arrest happens because it does it leads to an arrest. Let me tell you a year later at the suppression hearing. He says that it was at least four or five times each than this goes to trial at trial he testifies. Maybe it was actually more than four or five times. But I don't know for sure because quote. I didn't count the trips and something to note here. Is that by the time this makes its way to the Supreme Court chief justice. Warren actually doesn't have these facts right. comes up with another number and says that the men did this five or six times apiece in all roughly a dozen trips. He says that up top then later in the opinion literally a number made out of whole cloth these men pace alternately along an identical route pausing to stare the same store window roughly twenty four times. Now we're at twenty four the math though. Initially it might look like like two times three. Okay that's six right. If you're like a real math guy you know but if you just feel it out if you if you separate yourself from the numbers you might realize that its twenty four times you know. You don't want to get to focus on the numbers I mean. He was probably scared he was he was sweating. Hard to count his. His heart was racing and it sure felt like they. Did it like twenty thirty time. You know two black guys across the street. You only have one gun on you. You're in that window looking in that window. Just lose track. I get so I think you know regardless important thing here. Is that like this entire body of law which we're about to talk about but like reasonable suspicion. Stop and Frisk. It stems from this case and is dependent on this fact which lake. Yeah they can't get right. That fact is like very central. Absolutely thing that goes on in this case. It's the whole reason that he initiates The intervention right where he steps up and ask these guys. Were there doing? Yeah Yeah So. He says that as part of what he's like suspicious of McFadden says that he thinks that they're casing a stick up but he also testifies in hearing on the motion to suppress that in his thirty. Five years is a detective in Cleveland. He's never observed anybody casing stick up. So he he he can. He can tell. Yeah and I think we have to focus like so much. Like what a fucking idiot this guy is. But I think it's because like it's a common theme and it's going to come up constantly in all of these cases so the story that settled on from the hearing on the motion to suppress and then at the trial and of course in Earl Warren's majority opinion is that McFadden stops these guys. He asked them their names immediately. Grabs John Terry and he frisks him. Mcfadden says at the suppression hearing that. He just patted down his outer clothing. But actually in the police report when you read it. He says I searched him so he's not using the same language about like just patting down or just frisking as opposed to a full search now just kind of backing up and giving some Lake Historical Context the Earl Warren Court of the nineteen sixties. It's known for its expansion of individual rights and defining the role of like what? An activist court is During the civil rights movement. So you probably the most famous decision out of the Warren era is Brown versus board of Education And in the criminal areas of law you have gideon versus wainwright which says like you have to be appointed a lawyer if you can't afford one You have the Miranda decision and you have map Ohio. Maranda of course says that the Fifth Amendment Protection against self-incrimination applies to interrogation by the police. So the confessions that they coerced and tortured out of you can no longer Just be accepted in court and the map. The Ohio case says that the Fourth Amendment Exclusionary rule which Peter will little bit that applies to the states. Yeah these decisions in the Criminal Realm like by the Warren Court are heavily heavily criticized by conservatives And they're criticize as coddling criminals so throughout the nineteen sixties crime is on the rise in the US Public fear about violent crime specifically is really kind of boiling over and a Supreme Court. That's at the center of desegregation battles and the so-called kind of Lake due process revolution is facing really harsh backlash from southerners from conservatives and the big critique that they're lobbing at the Supreme Court at this time is that this is judicial legislation. These guys are legislating from the bench. Impeach Earl Warren signs are popping up everywhere. And just more kind of like. That's cool though I disagree with but it's pretty cool it recognizes. Yeah Court today. Well if they started doing anything that helped defendant's rights right then. Yeah that would motivate a lot of A lot of reaction and just a another note about kind of like what's going on at the time between this case Terry. The Ohio being argued in December nineteen sixty seven and the court handing down. Its decision in this case in June. Nine hundred sixty eight Martin. Luther King has been murdered. And so has Robert Kennedy actually just days before this opinion comes down. So you know like Shit's hitting the fan so three cap here. We've got a COP who sees a couple of guys ostensibly casing store He walks up to them stops and frisks them finds weapons. They each have a gun. Right and Calls the wagon and then yeah the arrest them for it. Can't arrest them for a casing the joint because walking in front of the store and looking in the window even if you think it might be shady not a crime but it gets them on the weapons so the question is does this violate the fourth amendment. The Fourth Amendment says quote the right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. So for the moment has two parts right. The people have the right to be secure in their persons houses papers and effects from unreasonable. Search and seizure and warrants have to be issued upon probable cause. Oh with their affirmation etcetera so probable cause is the standard that you need to issue a warrant or to affect an arrest. It's unclear exactly what probable cause means whether it really means probable like literally more than more likely than not or it means something more than that So this brings up a bunch of questions. We'll dig into the vagaries of that later. Also worth noting though as Rianne and had kind of alluded to earlier the remedy for Fourth Amendment violations is not like a lawsuit against the cops or anything. The remedy is that whatever evidence they find is excluded from consideration right so if he found those guns obviously the guns themselves or the evidence that they had guns on them That would be excluded from consideration. That's basically it so there's no real negative impact for the cop if they violate the rights they just don't really have a strong case right so the opinion breaks down like this The narrow question is whether the stop and Frisk of these men was constitutional but it also poses the broad constitutional question of what exactly the standard for a stop and Frisk is and whether and when cops can do them constitutionally so the court says that while this is a search and seizure under the fourth amendment it was so brief and limited that it does not require probable cause the court says that this is constitutional under a completely separate standard called reasonable suspicion which is a standard that they entirely made up on the spot and they basically say sort of interesting. Because the court says the concern for the officer's safety outweighs the limited intrusion on the liberty or security of the citizen. At according to the opinion fourth amendment reasonableness applies to both the stop and Frisk. The officer needs reasonable suspicion that a crime is happening to stop the person and reasonable suspicion that the person is armed to frisk the person. So if you're paying attention and none of this is really clicking for you because none of these terms have any objective. No it right foot Gobbledygook. It's nonsense probable. Cause is vague to the point. Where like no lawyer or professor can really define it with any accuracy right and now the court has introduced an even vaguer standard reasonable suspicion and declared that these two operate cohesively side by side within the fourth amendment and that we can trust police to enforce them and reasonable suspicion. Taken on its own without context. It's not even just from the meanings of the word. It's not even clear whether that's supposed to be more rigid or more lax right standard. I mean what real reason is there to believe just based on the terminology alone if you just heard them that reasonable suspicion somehow a lower standard than probable cause. It's just sort of an odd almost intentionally vague sort of facing putting this cop sands at the end of the day at the end of the day. We can trust cops to enforce it. We're going to hear more about that again. From Staten Island Borough President Joey. Double peppers vinegar tally at the end when he calls in. So this brings us to the to the textualist argument against this decision Which is there's no real basis in the fourth amendment for the creation of a second lower standard right the reasonable suspicion standard that somehow freeze police of their obligation to identify probable. Cause before making. Stop or seizure. It's true that the fourth amendment refers to quote unreasonable searches and seizures. But what makes the most sense? I think to me And I think there's really no other way to read. It is that those two terms are linked right. A search or seizure is unreasonable if it lacks probable cause And as the descent points out. In what I think is its strongest point. If you read the fourth amendment any other way if you read it like majorities reading it. Then police on. The streets have more power to authorize a stop or seizure than a judge issuing a warrant a judge who would be informed by a police officer. Who's acting under oath? Right OF WHY. They need a warrant. That judge for some reason is less able or more restricted when they're trying to affect a warrant. It's absurd on its face. I think the majority doesn't address that argument at all right not at all and I think you can kind of compare Because it is the same court and the justices. They chose a completely different approach. Before this case when they decided the Miranda case the Miranda case comes down right and they say you know in order for people's self incriminating statements to be used against them they're waiver of their Fifth Amendment Right. There's a sort of series of like specific prophylactic rules to ensure people know what their rights are first and kind of curb the potential of police coercion right. So Miranda says like the police have to tell you these rights up front so the Warren Court is like thinking about this stuff right and they just don't even it's not even addressed here is. Is there any sense that they're just doing some real politics here? Where there's a point in the opinion where we're warn writing for the court says look black people complain that cops harass them and we're not here to question that but would excluding evidence from these types of stops really stopped police incense where I think that. Maybe they're like there's only so much we can do right. Maybe if we did this cops just ignore US and I. It would only undercut our efforts. I WANNA give them too much credit because this is a shit opinion. It's a shit opinion but the comparison right like they know. They're leaking with these issues deeply and here they stopped doing. It's true I mean the only thing I can really say the Warren Court's Defense and I'll say a once in never mentioned never defended again. Is that The scholarship on the relationship between race and policing was nothing near what it is today right through but when they're calling it out in the opinion explicitly obviously they have some set suit. Maybe Warren was concerned about getting called out on twitter by the head of the Police Union. They're pretty aggressive. It's a big risk. Now was a big risk. I think it's right that like the politics of the time are absolutely relevant. The court is being lambasted publicly particularly about what it's doing to like quote unquote like give criminals rights or whatever right. The public doesn't like that and I think like there's a feeling of own most explicit a tone in the opinion that like earl. Warren might just want to kind of wash his hands of it and we don't know what's happening behind the scenes. It could be that. Police Officers are sending Earl Warren The heads of of rabbits you know in the mail is a threat shirt. I don't want to say that they did that for. Sure on a podcast. But I think it's fifty so I think this brings us to the core issue here. Which is that when you start talking about the give and take between citizens rights and the so-called necessities of policing what you inevitably mean is we're going to give discretion to police officers and when you give discretion to police officers they will abuse it period. Right I mean not. Everyone agrees with this. But later when we have Tony bags more to Della The Staten Island Borough President. Former police officer on the show. He's not going to agree. But I I think that no joke. The research that exists and everything that every fucking public defender in the country has ever experienced shows that cops will abuse discretion when it's granted to them. This very case involves a police officer undeniably lying or at the very least being Incredibly Frivolous with the truth about what he saw. And the correct just re regurgitating. His statements and exaggerating them right as if they were fact despite the fact that they all contradicted the initial police report that he made now. Allow me to posit that. If a cop says he saw someone walked by store three times in a police report and then says it was four to five times at a later hearing and then at trial says it was maybe more but he didn't actually count and at night at no point has his memory or integrity question. It doesn't really matter whether he's being purposefully dishonest or not right. What actually matters that? He has a clear disregard for the truth to the point where he didn't even bother memorizing the basic facts of his own police report and he probably has this regard for the truth because at every level of appeal the court eats up what he says uncritically and will in fact embellish to prove his point right on until started three pieces now twenty four times that they that they were looking in this window. It's pretty amazing. How much this case? Sort of anticipates like the shape of things to come in issue. Is that when you basically put cops on the honor system and then tell them well? These are the things you need to see or say to make this legal is that they're just going to do whatever the fuck they want. And then after the fact they're going to say what you know they know are the right buzzwords of the magic words to make it okay and everybody just sort of plays along and we see it here with the exaggeration of the facts and we see pretty regularly in modern America. Yeah it's kind of beautiful. The exaggeration of the facts being able to see how it plays out in this really important case. Because it goes like Peterson. With what every public defender knows. Which is that like. Once these cases get court and once there is an opportunity to sort of question. Police Work Right. The court is always always always going to bend over backwards and do their work for them when cops are on the honor system. You know judges look at that and think I want to believe it because I'm on the honor system to and we're were together in that so even if you just take the court saying at face value the facts here. Don't meet the Reasonableness Standard that Warren says using right does nothing except these guys are walking up and down. The street looking into a window never gets more information before he stops them and start searching. I I mean the idea that he had reasonable suspicion that they were armed because their casing joint. Frankly now these guys are dumb. Ass Criminals Right. I mean let's be honest. They have guns on themselves at the time right. If you were smart criminal when you were a casing joint you'd probably not have any contraband on you and I mean even even that the the idea that someone is thinking about a crime actively doesn't really say much about whether or not they're armed. It certainly doesn't bring you up to reasonable suspicion. Whatever the fuck that is but the whole point of the term reasonable suspicion is that it can give the court to sort of leeway to be like okay something worth noting that in these cases. There's always going to be a gun. There's always going to be drugs right because if there are it there's no case. There's no evidence to exclude and there's nothing to fight in court. It's only when they actually find something is there's something to argue about something for a judge to rule on in something to create case law right and the other piece that's ridiculous in addition to the making up facts and not really fitting them to his his rationale warn. Can't you can't even string two sentences together in justifying this in a way that makes sense you know he says the officers suspicion that Terry and his buddy had weapons was reasonable because they appear to be right on the verge of committing a quote unquote daylight robbery and he says in nothing in their conduct until the police officer confronted them gave him sufficient reason to negate that hypothesis and then in his very next fucking sentence he says over the trio had to part of the original scene. There's nothing in the abandonment of the committed robbery at some point. Yeah I and so the stop occurs after the guys leave the exit the scene so we may well be that they were casing the joint and I think you know I guess they probably casing the joint. They absolutely shared left right then. If the sole fact which according to warn is the sole factor. That's giving you know. The officer grounds to search them for weapons is that it could be a daylight robbery. The fact that they left the scene and were exiting totally undercuts. That right and all of this is a signal that reasonable suspicion means that the court is giving a stamp of approval that any arbitrary police practices and basically saying that the only the most egregious police activity is going to be deemed unconstitutional right right and this vague standard has led us down a slippery slope over the ensuing decades stop and Frisk based on reasonable. Suspicion is now commonly validated on the base of quote furtive movements carrying suspicious objects which have included a pillowcase appearing to be out of place responding vaguely to questions by police. These are all things that have been held by courts to be reasonably suspicious and though the Frisk has to be for weapons purposes of officer safety if when patting down in individual and officer develops probable causes another crime say drug possession then they can continue to search the person search their car etc And police lie about this every fucking day like one thing leads into another eight. It's a cascading effect. You create a level of deniability with your initial reasonable suspicion. And then maybe you feel a bump in their pocket might be drugs now or you know it just one to the next in to conduct a fucking full search of their car or wherever they are like you know their their surroundings their friends. You grab onto one Extensively suspicious thing and then turn it into a massive search that is without question a violation of the fourth amendment if you had even the slightest bit of interest in what a unreasonable search would look like right. There was a a modern case. Quite famously about stop and Frisk and in it. There was some testimony from officers on what they thought furtive movements mean and so. I just wanted to read race. One explained that furtive movement is a very broad concept in could include a person changing direction walking in a certain way acting a little suspicious making a movement. That is not regular being very fidgety. Going in and out of his pocket going in and out of a location looking back and forth constantly looking over their shoulder adjusting their hip or their belt moving in and out of car too quickly turning part of their body away from you grabbing at a certain pocket getting a little nervous or stuttering. Nice I especially like are acting a little suspicious. I think lert standard of reasonable suspicion. Officer what was the reason for your suspicion like well. He was acting suspicious. Yana checks out Iran. Yeah in my own experience right like I've seen to police reports written by the same officer. One will say that like the suspect looked at me in a way that made me suspicious. The other police report will say the suspect did not look at me and that was suspicious. Anything can be reasonable suspicion. And what I think Comes out of this case? And all the subsequent cases on stop and Frisk really really clearly that Fourth Amendment jurisprudence teaches police how to write their police reports and it teaches them how to testify and what to say on the record. It does not teach police how to police better or properly right. See the stuff at work every day. The way police right there reports. It's fucking unnatural to the point of being obviously dishonest right. So police know that the word furtive is now accepted as reasonable suspicion. And so all police officers know to put furtive movements in there and by the way. What's the percentage chance that the average police officer knows what the Word Furtive Means Day definitely down zero of them do not a single police officer across the country knows it for? I would bet my life on that and not even think about it so I don't know if it makes people uncomfortable too like here. Police loss up furtive man. No I mean I know what it means. Now talk about it for sure like. It's yeah so I don't know if it makes people uncomfortable to hear US say like cops light but it's something that like I mean it's extremely calm verifiably common. I mean again. We're going to hear at the bottom of the episode from Staten Island. Borough President Johnny big lots fell cone and he's got a different opinion on this. I can't wait to that interview with no I look I. It's it's impossible to know exactly. How big of a problem police dishonesty is for a bunch of reasons right? Accused criminals generally signed plea deal so we never see the evidence in those cases. And you have the fact that a lot of lies Police reports testimony etcetera are just impossible to uncover. There's no there's no way to double check them or check them against anything else and finally have the fact that judges will almost always at least very frequently seal criminal proceedings aren't reviewable by the public. Right there's no. Large scale orchestrated effort. That I'm aware of to review the reliability of police testimony and I don't think they're really could be for those reasons right. There's too many missing data points but a good reference point The New York Times in twenty eighteen did an investigation into this and quickly uncovered twenty five verifiable and documented instances of officers lying under oath in the prior two to three years. This is a quote from the article in these cases officers of lied about the whereabouts of guns putting them suspects hands or waistbands when they were they were actually hidden out of sight. They barge into apartments and conducted searches only testify otherwise later under oath they have given firsthand accounts of crimes or arrests that they did not in fact witness. They falsely claimed to have watched drug deals happen. Only to later can't or be shown to have lied. Picks I mean just like an unbelievable fucking other people's freedom that like these fucking trash morons who have absolutely no respect for like other human beings let alone the Constitution. It's incredibly brazen. The Times reported that the primary reason the cops were doing. This was to skirt constitutional restrictions on searches and seizures chuck. They were an able to uncover these just by conducting interviews. They couldn't review the court records. Right which almost all sealed and they expressly note that this is almost certainly just a tiny fraction of the sort of the lies dishonesty that you see in testimony commonly. It's common enough. That cops have named for which I asked. You about ran. And you were familiar with testa lying. Yeah Which is a combination of the testifying in lying? It's about as creative as a name for lying during testimony you could reasonably expect from a cop. He doesn't know affirmative means but apparently I. Apparently this is like a well known term in the police community. Multiple cops verified it to the New York Times and other legal point. We WanNa make is what constitutes a stop under the fourth amendment isn't really sufficiently defined here or anyone anywhere else when stop occurs. It's considered a seizure under the fourth amendment and it's important because that's when the fourth amendment protections attach and before a seizure occurs. A person's is free to leave and interaction with police right. If a cop says hey how you doing you can walk away. You don't have to talk to them right. They'll shoot you like ten percent of the time but that's you know if you want to take that risk your freedom but once someone is Is seized under the fourth amendment. They can't leave. And in this case the court sort of disregards it right. They don't they don't really talk about stop. The the COP walks up to them starts patting them down. That's the frisk right right. But when he stopped is very important and the court really doesn't get into it. Not at all yeah. The court decides that Lake. The seizure of the person happens when McFadden grabs. -TARIAN STARTS PATTING HIM DOWN. But they could say that actually. These guys are stopped for purposes of the fourth amendment when McFadden Approaches Them. And ask them for their name right. It's kind of another way of putting that as maybe when he stops them right. I know I'm not on the Supreme Court you know I'm just a regular guy looking at words but stops you on the street. I would think that that's the stop saying the reasonableness standard applies once. He's already frisking the guy. That's that's problematic for a couple of reasons like I. It's indicative of a really deep misunderstanding about the power dynamics that are at play when cops approached people on the street which like. Let's not forget that this is nineteen sixty eight is a white officer approaching two black men and secondly right like delaying when this encounter can be labeled a stop is problematic because it opens the door for other cases to keep delaying when exactly a stop occurs so that fourth amendment protections don't attach until later and later and later in an interaction with the police and look the reality. Is that when a cop walks up to two people on the street and ask them their names you know tell them to keep their hands other pockets blah blah blah. That's a restraint on and that's should be where the France amendment is implicated immediately No one way be rich white men but other than rich white men. No one feels like they're this thickly. Free TO LEAVE RIGHT. That kind of interaction cops know that they use it. You know and the fact that Earl Warren of all people didn't see this is because look judges they don't interact with cops the way regular people. Yeah I think that's really it. They they don't know what a normal interaction with the police officer is like and they don't know what it's like to have interactions with police officers being normal part of your life right right so. I think it's time we address like the counterargument here. Cops have consistently made the argument that it makes their job more dangerous if they can't stop and Frisk suspects right that What they're doing is making sure that the people there Interacting with armed. You know if they don't do that they are at some risk From criminals rape let me. There's obviously a rich irony here. In how often cops pat themselves on the back for being willing to put themselves in danger but then turn around and claim that they need to be able to constantly interfere with civilians rights in order to protect themselves right. There's no question when you're being stopped by police. You're in some level of danger. They can and will physically restrain you. It's not unheard of that. These encounters ultimately see the use of violent or even lethal force by police officers so when the police say that they need to do this for their own safety. What they're really saying is that they want to transfer the risk of violence from them to you right and should go without saying that no organization that purposefully seeks to shift the risk of danger from themselves onto the general public can conceivably be seen as protecting the public. And I get. I don't WanNa get too into this because you know unless you're A seven year old. Who just got the first fuck in a classroom speech from mcgruff the crime dog? Or whatever you'd have to be an absolute fucking shit to think that the goal of the police is to protect the public but there is a deep hypocrisy there and a real distance between how police actually act and how they present themselves as acting right and around this time this is in the fifties and sixties is when we first saw like white flight. Right this is why people were were leaving urban areas for suburban or rural areas because of desegregation. They didn't want to be in the same communities as black people but they're also still making up. The majority of the police force that is supposedly serving and otherwise occupying these areas that are minority heavy right and so what you have is the population of white cops clearly. Do not like minorities you know and like maybe it's the very from those communities and you still see that today right like I mean we joking about you know our our guest from Staten Island. Who's coming soon? And I'm very pleased to hear from him but fucking. Staten Island is precisely where all the white people went. When they didn't want to deal with Black People Manhattan right and I think a good a good way to hold police accountable even though it would be politically. Tricky would be that whenever there's a credible accusations of police misconduct New York. Staten Island ferry just shuts down that week. That's it you can't Just to bring it back to the judiciary and Peter. You were saying about like the police hypocrisy about talking about the need for Officer Safety over. You know the sort of liberty and constitutional rights of the citizen. Judges are always going to do this. The court system is always going to do this. What it's going to do is say that balancing act is important to us the judiciary right officer. Safety is so important to us that there obviously has to be these limitations on the constitutional rights of citizens they never though ask like what the cost is of limiting citizens constitutional right for the violence that's inactive then on the community. They never like put that into the metric. I think we'll talk later about. Stop and Frisk specifically in New York City and how that's played out. I have experienced seeing. How police do this shit particularly in more rural communities and how that shakes out is officers are often in their cars driving on lake poor like county roads or whatever they see somebody walking because everybody walks in rural communities and people don't have cars and what whatever they can just say any of this stuff that we've said right so this person was not wearing a jacket and it was cold outside This person was Walking really slowly. This person was running and I didn't know why. So all of those things and so then all of the sudden. It's an interaction with a police officer. You're by yourself you know like nobody's around It's dark outside and that happens consistently to fuck with people into remind people that the cops have power and they're in charge and they can fuck with you whenever they want one particularly egregious case and the only reason that we knew it was agreed just as because there was working bodycam in this case this again was in rural Texas. A border town. An officer is called to a House. Because Dad says that his son needs a wellness. Check Right Can you guys go check on him? He was acting strangely earlier. The cops get to the House and the guy who ends up being my client says like fuck you guys. You're not coming in the house. Which is totally his right and cool super cool. What happens is an interaction through a bedroom window so my client is inside his house inside his own bedroom. And he's talking to the officer who's outside his bedroom And they're talking through the window. The officer is saying just come outside. We just WANNA talk. Just come outside. We just WanNa talk and over and over again. My client smartly asserts his right not to talk and not to come outside But at some point in the conversation the officer asks if there are any guns inside the house again this is rural Texas. Done every mother fucking how come with the House Right. Exactly my client says yeah. I have thirty six. That's for hunting. He starts talking about the guns. The officer at that point reaches inside pools him out through the window and arrests him. You might ask for what on what grounds on what grounds the officer then says that in that interaction when he reached in to pull my client out of his bedroom through the window that he was assaulted the officer might client is therefore arrested for a felony in Texas assault on a police officer. So sorry I would like to remind listeners of the text of the Fourth Amendment here which is the right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated. Seems like yeah you guys think when he reached into someone's house grabbed a person? Those are the first to write and removed him forcibly from the House that perhaps the fourth amendment was infringed. I'm just I'm just a lonely here again. I thought so and I thought to myself when that body CAM footage landed on my desk I thought thank God. We have the exclusionary rule right because this evidence this arrest this should all be excluded and they don't have a case because what the fuck while what we did have a hearing on the motion to suppress that evidence and I will give you one. Guess how it will work. This is why I don't do any sort of like important law that impacts people's lives and call me a sell out all right. I would absolutely be losing my Shit Day to day. I would be dead in a ditch over. Sure I would just now. You guys know why I am the way I am this. It ends up being a different standard right because this ends up. Being does the probable cause to arrest him but he. The judge says that there was probable. Cause a based on my client acting weird and they're being guns in the house Yeah so when the when the COP reaches in and grabs my clients arm and starts pulling him out. My client uses his other arm to start putting the window down. Reasonable Response Officer and the officer says that he's assaulted. Oh God all right before we get into some statistics on. Stop and Frisk. Yeah I'll talk about what Warren says about this. He calls the Frisk. A quote limited intrusion into the citizen's rights right but that misses out on how it plays in practice right later. The same population is consistently targeted for these searches. You can argue that one in a vacuum is limited intrusion into your rights but when you being frisked repeatedly maybe near your home certainly in your own neighborhood most likely every week every day At what point can we admit that? This intrusion is not limited right that it's not discreet that it's not it shouldn't be made in a vacuum. It's just a complete detachment from how this stuff plays out on the ground. We should talk about stop and Frisk statistics in New York City. Because if earl Warren could see and I have some faith in our warrant if he could have seen mayor Bloomberg's New York City. My hope is that he would have taken a step back from his position. Retirees Ohio yeah between January two thousand four and June two thousand twelve the NYPD conducted four point. Four million Terry stops the number of stops increased from three hundred fourteen thousand in two thousand four to six hundred eighty. Six Thousand and two thousand eleven fifty. Two percents of all stops followed by protective frisks for weapons weapon was found after one point five percent of these frisks which contextualized low because the standard is a reasonable suspicion. They need to be reasonably suspicious. That a weapon is on them. If what you believe is reasonable leads to an outcome of finding a weapon. One point five percent of the time. Is that a fucking reasonable suspicion right. That's fucking reasonable. So we're talking over a million people frisked where nothing was found nothing in my six year period. That's she's okay okay. Eight percent of all stops led to a search into the stopped person's clothing extensively based on the officer feeling an object during the frisk that he suspected to be a weapon or immediately perceived to be contraband other than a weapon. This must be high. Then this we've got an officer indication. They've felt some officer felt something right. Nine percent of the frisks turned up a weapon. Ninety one percent. If you're doing the fucking mad no weapon wait. In fourteen. In fourteen percent of the of the searches the the object was in fact contraband meaning that it was basically nine percent weapons five percent drugs. That is obscene. If you WanNa fuck and tell me that cops are unable to feel what a gun feels like ninety percent of the time and you should be immediately fucking fired from your position with the NYPD making like a hundred and thirty grand a year to go fucking like rats harass minorities folks. I'm going to lose it. I don't like the police. I mean look. There are two options. One is that they really fucking suck at this. Abject incompetence plausible. It's a plausible explanation. The elder that I think is probably more likely is that they just wanted to looking the guy's fucking pockets that they weren't happy that this guy you know. Maybe he was like giving him a little attitude. It was maybe a little defiant and frisk wasn't enough and they wanted to really fuck and get this guy and so they said they felt something and they went digging through shit just a theory. Maybe these COPs Feel like asserting their masculinity upon the around them And I've been given a platform to do so And all of the tools. They need to both do that and feel like they are free from any consequences. Legal or otherwise. It's just I'm just flipping Peter. That's a really interesting hypothesis in. I think You know the stats on the the race of people who are stopped and frisked are are particularly racial disparity. That doesn't sound. Yeah you know It's kind of remarkable but in fifty two percent of the four point four million stops on New York City streets during this time period. The person was black in more than fifty percent of those stops Thirty one percent of the stops were of a Hispanic person. And this fucking really broke. My brain ten percent were white people. Sh- grace imagine how shady the white people had to be acting French and I all ten percent had the same check box. And they're like little forum which was like hanging out with black people close association with Hispanics. That was the suspicious activity. I'm sure yeah and just to compare that to actual population of New York City in two thousand ten. It's thirty three percent white people too so Jackson and there's a point I wanna make really quick. Which is that these stats? Come from the stop and Frisk case in New York. Which found that? New York's practices were unconstitutional in violation of the fourteenth amendment. They said we thought like if we really just focus it on minorities than they would not bring weapons out like. Let's just do this as racist as possible. And it was definitely. Yeah you had a you. Had police like leadership basically admitting it was racist. You had the mayor Bloom Bloomberg pronouncing that right Mayor Mike Bloomberg. Yeah he Has had made several statements about it that seemed to indicate that perhaps it was targeting African Americans in the city So there was a strong equal protection case. It's worth noting. Though that the fourth amendment has been whittled down to fucking nothing right over the years yet setting aside all the racial shit. I'M GONNA put this out there. In my opinion four point four million terry stops in what eight years is incompatible with the fourth amendment? Yes that's it. That's the only number you need your not secure in your person as the fourth amendment guarantees if the cops on their fucking honor system can stop people at that rate with literally no consequences. That's exactly right when I think about these cases and when I think about the Times that I have had a hearing on a motion to suppress Very quickly lost those hearings and then right afterwards you see the judge Having lunch with laughing with the cop who just testified in the motion to suppress hearing the COP. Who violated my client's rights you get this idea that there is a cultural link between those two people. And it's because there is a cultural link between the two institutions so those experiences and this case Terry Ohio and its progeny to me Stan. Broadly for the proposition that the police function in our society is at once. Kind of like completely unfettered. It's a massive imposition. But at the same time it's unquestioned in this case is this weird forcing of constitutional permission onto a facially. Dangerous arbitrary set of facts. And it shows to me. How unworkable like our police systems are in a supposedly free society? So when you see what the police do. Every single day you realize there's no understanding or recognition that the very work of the police is to oppress and to enact and perpetuate violence on all of us. Nobody wants to think about that because it calls into question. Sort of everything about how we're policed in how we've set up these systems And so that's how they just sort of go to bed together and feel good about the money and authority because on the side of power. It always has been always will be view- you need to construct a counterbalance to that. And if it's not built and maintained then it won't be there and that's why our public defense systems are fucking travesty. In terms of judges at the federal level. I think even at the state level although it's going to vary from state to state being public defender or defense lawyer is not a great career path if you WANNA be a drudge but years district attorney US Attorney. You're on the prosecuting side. You're working hand in hand with cops. That is a fucking classic career pad to being adjudged and so a lot of these judges. Come from that background. They come from a background where they work with COPS. All the time. Something to consider is that there are multiple cities now who are trying to make a list of cops who are so regularly dishonest on the stand at trial that they literally have to be forbidden from testifying but these cops will not see to be cops. They continue to be police officers. Who are just incapable of union basic. Yeah there's no consequence other than you don't have to go to trial and lie your ass off in front of a jury right more all right. Let's next it's our next case. Is the National Federation of Independent Businesses? The sibelius better known as the obamacare decision which many people might remember as a win. Your hosted five to four. Have a different opinion very excited to explain to you why you're so wrong. Absolute five four is presented by Westwood One and prologue projects. This episode was produced by Kacha. Cova with editorial oversight by Leeann. Nathan and Andrew. Parsons Artwork is by teddy blinks at chips and why in our theme song is by spatial relations. All right I think it's maybe time to take some calls. We we've got an interview right. Look we've been working on this for weeks and we've got. We could get him. I didn't think we'd get them. But Staten Island borough president and Nypd Police officer for twenty six years retired Danny strong. Tony is going to call in and defend the police take sort of the other side. We have him on the line is. There's Danny Strong Tony here. Daily a talk at a lot of things about police say a lot. Well you don't know. Is these people. You don't know what they're gonNA do okay Danny All's or the other fringe Ma. Look I think at the end of the day I wanNA be. I don't want to talk about Jews that live down the street. Okay I'm not GonNa sit here and say racist stuff. Okay I look. All people were all the same. You know a lot of people use to save. That weren't why you know. Obviously that was wrong. Can you tell us about like? Do you really need to stop? And FRISK FOUR MILLION PEOPLE. If you don't frisk you know idea what's on them. Okay you walk up to someone you saying. Hey Hey hey what are you doing and they do? They have a gun. That got five gones. I don't know they look in one way. I'm looking the other way you never know. You never know what's happening down there. Look I got friends. Killed in the line of duty. Okay Too because the gunshots four because they try and eat two slices of pizza. I guess that was Danny Strong. A Tony we lost him in the middle there from the Westwood. One podcast network.

American police officer The Times Earl Warren Supreme Court Peter Reaction Martin McFadden President Ohio New York City Frisk Staten Island Terry Ohio John Terry Warren Court Cleveland Twitter John W Terry
The death penalty and the gopher frog

Today, Explained

22:05 min | 2 years ago

The death penalty and the gopher frog

"Robert Barnes. You cover the supreme court for the Washington Post Brett Kavanagh's I stay on the court is tomorrow. What's the first thing he's going to get to decide? Is it going to be something big, abortion gun control the environment, whereas you get, I'm afraid not I. It is not going to be a big introduction to the term. There's some criminal cases, some sort of small bore cases, you know, in in a way, this is a good docket for a new Justice and a court that probably wants to take down the temperature a little bit after some recent terms in which there were some very big social issues that came before the court as it stands right now. The court has a bit of a quiet docket one that's sort of built more for lawyers than for the general public. Well, let's hear about some of those cases. What do we got? Well, you know, one thing that'll be interesting as we'll hear about the death penalty. This is something that Brad Kavanagh's never really had to. To face as a judge before because the court he was on just doesn't really hear those kind of cases. There's a case about a inmate in Alabama who now has severe dementia Vernon. Madison has been on death row in Alabama for more than three decades in one thousand nine hundred eighty five. He shot and killed mobile police officer, Julius sheltie and cold blood. It's been so long since his crime. He doesn't really remember committing it. And so is it okay to go forward with his execution? The court argued that case last week Cavanaugh wouldn't have to be involved unless they split in some way, have an upcoming case about the death penalty in which the inmate is in such poor shape that the method of execution might be sort of excruciating for him, you know, causing like a brain hemorrhage. And so the question is, would that be cruel. In unusual punishment that is prohibited by the constitution. The court is doesn't take on the death penalty, sort of as the big issue anymore. It has these kinds of one offs, a lot of them, but kind of, you know, very specialized cases on the death penalty. And that's something that cavenaugh hasn't had to deal with before. And so he might get a lot of attention because people don't really know what his particular judicial philosophy is on the death penalty yet. Right? That's how it happens with these new justices a lot. We're trying to figure out where they come down and and where they are on issues that they may not have had to face in the past. And is there anything else that preceded cabinet joining them on the bench this week that happened last week that he might have to decide on? Well, yeah. Interestingly, there's the case of the dusky gopher frog Mr. Niebler Mr. cheese, Mr. chief Justice and may it please the court. The dusky gopher frog is a critically endangered species. That right now is. Found only in Mississippi. The Endangered Species Act says that the government has to identify land that these endangered species could live on. And so the government has identified some land in Louisiana, fifty miles away where no frogs currently live, the landowner is not pleased about this, and the courts seem quite split on it last week when it heard oral arguments, it might be that comes back before the court. When there's a case that's been argued, and then a new Justice joins the court. They will have to have a rehearing if that new Justice is going to decide it, I will have to say it might not be good news for the frog if they have to do that. Because in his time on the DC circuit Justice, cavenaugh has not been a big friend of the Endangered Species Act. Kind of this frog not come up at his confirmation hearing exactly. I think they had, you'll excuse me bigger fish to fry. Now the cavenaugh has been confirmed is a possible that the justices could take on some cases that they didn't take on beforehand because of the empty seat. The I think that's the real issue, and that's what we're going to all be watching because you know, the court has a lot of discretion over its stock it. I think you can see that the court has been putting aside some cases because they were uncertain about the future. At the end of the last term, they weren't sure whether Justice Kennedy was still going to be there or not. You know, he didn't tell them until the very last day of the term that he was going to retire. They didn't know who is going to replace him and they didn't know win. That would be. And so the court has put aside a few issues that I think will return. One of those is the issue of partisan gerrymandering, and whether when a state divides up the electoral map, whether. It can take politics into account when doing that. The court has never ruled that the partisan jerem entering is so bad that they threw out a states map. They punted on that issue last year twice, but it will come up again in from North Carolina and the courts going to have to make a decision about that. You know, the other issue that was is out there you remember masterpiece cake shop last year, which was the case about whether a shopowners religious beliefs sort of trumped the state's antidiscrimination law and whether he could refuse to make a cake for a same sex couple. The court sort of kicked that issue back to the states. I think it will come back pretty soon. And so those are areas in which cavenaugh could play a vital role. And if they do decide to take on some more cases, what's the process to take on those cases? Well, the cases are there. It only takes four of the justices to accept the case. You know, we now have four very conservative justices in Clarence Thomas Samuel Alito, Neal, Gorsuch, and now Brad Kavanagh. We only need those four to take case chief. Justice Roberts is a little bit more to the middle of the four of them. And so one issue that we'll all be looking for is whether that four wants to sort of take some of these big ticket issues and sort of forced the chief Justice to make a decision or whether they're willing to sort of let things cool off for awhile. I and do you think if the court doesn't take on the sort of big ticket issues, cavenaugh will still have an opportunity to make his presence known on the supreme court? Not that not that it's lost upon anyone that he's now there. Yeah, I'm sure he will. Remember his fifty three in east there for the rest of his life. So there is a lot of time for him to take these kind of cases and to weigh in. And as I say, you know, sometimes the court is forced into it. The reason that the court most often takes a case as because one of the lower appellate courts has interpreted a law one way. Another court has interpreted another way. You can't have that in a national system like this, and so the court may have to do it. You know, one of those could be the administration's revocation of the deferred action for childhood arrivals program. The so-called DACA case or the dreamers case, those are bubbling up and it may be that they decided in time that the supreme court really has to get involved this year whether they want to or not. Not bread. Cavanaugh starts dropping big opinions on the court now or in a few years, his appointments cements conservative shift twenty five years in the making. I'm Sean Rama's firm that's next on today. Explained. To my favorite things are bread and ice cream. And now there's a podcast from a bread person and I screamed person. The bread person is Aaron patinkin from oven Lee, which is an award winning bakery in New York City, and the ice cream person is Natasha case from cool house. It's the national ice cream sandwich friend that you might know. The podcast is called start to sail, and it's a show about what it takes to build a company for launch to exit, and it's host by these two people who built a bread empire and ice cream empire. Check it out. You can find it wherever you find your podcasts start to sail. Brad Kavanagh was nominated by president who lost the popular vote and confirmed by senators who represent less than half of the country more than half the country didn't want him on supreme court. That particular mix right there. That's a first, but vox is Matthew yglesias says, it shouldn't surprise anyone. He says the court has been building up to this moment for a quarter century. It was about twenty five years ago. We got the case of the United States v Lopez. This was a case about the gun free schools act in March of nineteen Ninety-two Alphonso Lopez, junior a twelfth grader at Edison, high school in San Antonio, Texas was arrested for carrying a concealed firearm on the school grounds. He was in violation of the gun free zone act passed by congress. And the defendant was basically saying it was unconstitutional to charge him with a federal crime for having a gun in near a school. Okay. And the supreme court ruled in his favor and and it was interesting because it sounds a little bit like a second amendment case, but what they actually made was federalism ruling and they said that the federal government simply did not have the thority to regulate this question of what kinds of guns can you carry around near school? And that was the first time in decades at the supreme court had sort of challenged Congress's authority to regulate the national economy and in became an important precedent was controversial at the time to anyone. Notice, you know, it made a bit of a stir when it happened, particularly because Justice Thomas concurrence, that was very sweeping. He said, you know, because the liberal justices had said, look, this is crazy, right at commerce has been regulating stuff for years. This is no different from all the rest. Let them regulate the majority said, no, no, no, this is extreme. We need to throw this out. Thomas said, no, the liberals are right. Congress has been regulating the economy for decades and that's all bad. And so we now have in Neal Gorsuch. In Samuel Alito and now potentially inbred Cavanaugh we have a new group of more hard core conservatives who may push this kind of restriction on Congress's regulatory thirty even further what else happened along the line of twenty five year shift that you talk about. So one of the big things that's come up is that courts have started to challenge what's known as Chevron deference. This is an old case from the Reagan administration. And the principal there is that executive agencies need to be given the thority to interpret the rules that govern them with some of difference from the courts. So congress puts forward fairly broad mandate that says, like EPA like, you should identify air pollution that threatens human health and make rules that will address that problem, right? So the PA at scientists, it's lawyers, it's collumnist they needed decide what to do. And the Chevron deference principle is that unless it's plainly unreasonable, you have to say, look, the agencies allowed to do what he wants courts and cavenaugh has been part of this from his work on the DC circuit. He's challenged a rule from the Obama administration to regulate mercury missions from power plants at the supreme court before cavenaugh has joined, it struck down elements of the Obama administration's climate change plan, and this is a very different. Approach to the regulatory state. And I guess if we're talking about the supreme court shifting to the right and and taking on more power over the other branches of government, it's impossible to not mention the fact that the hand of the presidency to George W Bush in two thousand this effectively ends. The lead is ended the election Peter literally one of the closest elections in American history. That's obviously a really big deal, right? I mean, it halted a recount that had been ordered by state level judicial officials in Florida. If you talk about the legitimacy of the court, when that ruling came down, there were a lot of takes like, boy, people are really not gonna look at the supreme court the same way after this. And then what happened was well Tivoli quickly. Nine eleven came along. Yeah, derby Bush's approval rating soared. Americans wanted to believe in American institutions again, and the whole thing kind of became forgotten. So between Bush v gore and now one conservative decision that comes to mind as maybe another sort of notch in this shift is citizens United. How does that factor in. Today, the supreme court issued a major and long-awaited ruling on campaign finance by five to four vote. The court swept aside the century-old ban on corporate spending in elections, the decision potentially transforms the influence of big money in government. Section earlier case, McConnell, verses f. e. c. which related to Mitch McConnell. The current Senate majority leader and was throughout the bulk of John McCain's signature campaign finance legislation. And basically what you had in both of those cases is congress will pass laws saying, we need to regulate how campaign finance works, and this is after all congress, their fashionable elected officials. They are saying, we feel that the way money is being used in politics is having a corrupting influence on the system. The justices are looking at it and they're tossing parts of these laws out there saying, no, you're wrong. That's not a legitimate anti corruption interest. And you know, this is troubling. I think if you talk to normal. People about why they're not geared up about the supreme court, but people are geared up about the integrity of the overall political system and money, and politics has a lot to do with people sort of plummeting faith in the system. But the reason for that is that the supreme court has thrown out Congress's best efforts to address people's concerns. So why haven't liberals been more openly upset about the stuff as it because all the focus goes towards Roe v, Wade and abortion. Well, so centrally O'Connor had quite liberal jurisprudence on the question of abortion, Anthony, Kennedy's. Dir abortion jurisprudence is actually a good deal more conservative than hers is, but he has still upheld the core ruling that states cannot ban first trimester abortions. So that's important to a lot of people on both sides of the issue. But you say it's more important to everyone than everything else? I would say it gets more attention than the rest. The other thing is that Kennedy authored a very important opinion about same sex, marriage equality, right in which he sided with the liberals. And that was a very big deal for a lot of people's lives. And a lot of attention was paid to those two specific issues. Abortion remains obviously a very. Important issue one in which Cavanaugh will probably swing the court to the right, you know, were progressive will take loss. But I think people should understand that most federal cases are not about those two topics. And on this whole sweep of economic regulatory matters. The courts have been in conservative hands for a long time and progressives are going to need to find a rhetoric and a politics that challenges the court's ability to strike down democratically naked laws. Would conserve as agree that the Roe v Wade decision in nineteen seventy three came out of court that was sort of activist in the same way, but but progressive. Yeah. I mean, I think that there's been a history of the court where a progressive majority came into being in the fifties and in the fifties and sixties really did push the envelope right, and struck down a lot of things advanced liberal causes. We then hand for the eighties, most of the seventies most of the nineties, a kind of equilibrium in which the reigning conservative doctrine was to push back on those Warren court era decisions, right? So police officers were given a lot more law and order thority kind of back abortion rights was narrowed. But more recently, we've seen a real in the twenty first century conservative ascendancy right in on the balance of issues. Conservatives have held a majority and they've been acting aggressively to. To take down the federal government's economic policy making abilities, how does that affect the legitimacy of the supreme court? I mean cabinet in his initial appearance before the Senate Judiciary committee said, you know, the supreme court must never never viewed as a partisan institution. A good judge must be an empire, a neutral and impartial arbiter who favors no litigant or policy. We're going to have to see what he does the same court. But I think you saw in his ruling on the DC circuit court of appeals. He always seemed to find a reason why regulators who were trying to curb business in some way or another couldn't do what they want. Now, Justice Cavanaugh is going to make America more comfortable place for big business and less comfortable place for activists, regulators want them rain business in, and that's something that you know people should have front of mind as they think about what the court is and why matters. So is this theoretical idea that the supreme court can be political and remain outside the fray of partisan politics such as dead now, I mean, that's the question, right? I mean, ever since the original Lopez world, I feel like there's been a dialogue between Justice Thomas who is saying, hey. Guys, we should go whole hog on this doctrine, right? Go back to gilded era. Gers Putin's that said, the federal government can do very little to regulate the economy and then more cautious voices who seem to be saying, look, we can chip away at federal regulatory authority, but we need to be chill about, right. And the question is always been as we've piled new justices on new conservative justices who've been raised in a new generation new way of thinking is, are they going to really push the envelope in the Affordable Care Act case for Republican justices lined up behind the idea that they would throw out like major welfare-state expansion, right? And people would have really noticed, right? It would have been a really big deal and it seemed like chief Justice Roberts blinked that he said to himself. No, like that's going to be too much at the same time. In that same case, they did strike down the Medicaid expansion, right? So they're getting much more. Aggressive, right? And and it's just sort of remains to be seen, are those voices of caution going to still be present among younger judges? Now, the Kennedys gone because we know Thomas wants to do it. We know Samuel Alito, Brad, Kavanagh. These guys who came up in the modern American conservative legal movement, right? Like this is what they're to do is to like put big points on the board for conservatives. And do you think Kavanagh's appointment might get progressives to pay a little bit more attention to what the supreme court's doing? Yeah. I mean, I think that this should put to rest the idea that the supreme court as an institution is a friend of progressive politics in America. It historically hasn't been. If you want to tell a historic roic story about the court, you think of course of the civil rights, Brown v board of education. Absolutely. Put in the eighteen seventies congress passed a Civil Rights Act that was actually quite expansive. And the reason that went away was the supreme court struck it down in the eighteen eighty. Right? So it was this gilded age jurisprudence. That is the whole reason we sort of needed the supreme court to ride to the rescue in the fifties. If you leave that relatively brief span of the Warren court, aside import has mostly been an elite institution and it has reflected a strong class abayas and been an impediment to sort of democratic self rule and control the on me. And I think with breath Cavanaugh on the court, people should at least be able to see that more clearly.

supreme court Justice Cavanaugh congress Brad Kavanagh cavenaugh Justice Thomas Warren court government Justice Kennedy Samuel Alito federal government Justice Roberts Alphonso Lopez DC Brett Kavanagh Robert Barnes Washington Alabama America Neal Gorsuch
CS 284: Clarence Thomas and The Reactionary Mind Pt. 1 feat. Corey Robin

Problematic Premium Feed

55:00 min | 3 months ago

CS 284: Clarence Thomas and The Reactionary Mind Pt. 1 feat. Corey Robin

"Hi How's it going? Everybody uses Trevor is the podcast champagne sharks which I'm sure you know and We have with us a special guest Corey Robin. Someone that you guys asked for a lot. A Doctor Cory, Robbins and Allow our guest introduce themselves and Let you know where to find him. He's about so Hi, thanks for having me on Quarry Robin I'm a professor of science at Brooklyn College and the Cuny, graduate. Center I. I don't blog that much anymore. But when I occasionally do on the Robin. Dot Com. Blogging is a lost art. I I used to blog I used to belong to, and many people got seduced by twitter and his. It's not the same. I think we really lost something by losing by giving that scene up to quickly so I admire. Appreciate anybody who has stuck with blogging even if it sporadically yeah, no I, agree. I mean I used to blog all the time, and now it's pretty much on social media and. I. Regret that because blogging is somewhere in between writing a you know a written piece of. In print, publication or web publication, and it's something in between that and twitter, and I don't get the chance to do with that much. Yeah and even the threads, the not the same you try and make a long forum because you're halfway through in real time, and like ten bad responses have already started coming at you before you even finish your thought, and yes, the the wild wild west I imagine it like seeing the simpsons coming down with pitchforks I feel like this. Is a lot of the time in a widow block. Comments Section wasn't really Kinda. Curate the discussion a little bit better to make it more constructive productive. Yeah, definitely, definitely I mean I usually try with those long threads on twitter, just to to write them all in advance and posted at once. You're not distracted by the comments while you're composing your. Your thoughts. Yeah, that's a feature. They added I'm I'm glad they did that, but I still have trouble remembering it out of out of habit. Knight's still do it the old way. Not Forget in I instantly regretted, but yeah. You're so yet to books I wanted to touch on both of them. What was interesting is I was planning to finish both. Both of them, but I ended up finishing one end doing most of the second, because even though the Clarence Thomas one wasn't that long I was making a lot of notes and thoughts in, so it wasn't a super long book, but it took me longer would normally take because I was pondering a lot about it and going off into other. Other! That's I was disturbed by how much I actually ended up kind of up like this was a there, but for the grace of God. Go I kind of feeling to reading the book and you know being I think most black people have gone through a stage where they have either fully embraced or at least flirted with black nationalism especially. If you're coming from a certain generation like on Clarence. Thomas talks about generation from the sixties, but you know in the early days of hip hop. In the late eighties, early nineties there was a strain of that, too. There was a conscious hip hop Afro, centric thing distinct going cycles, and I've even read on Thomas Tomasulo. Books and Thomas is an interesting one. That would be a book. I would love if you I'm not saying you. But I want someone to write that that the treatment that you give Thomas Soul. I would love someone to do that for. The treatment you gave I'm. I would I would love to do that for Thomas Soul as as well, but you know if you know anything about Thomas sowell interesting one. Throw it out there. Maybe, you found Wabi, searching the Clarence Thomas fees on means sheriff well me. Just a little factoid, which is in buried somewhere in the book is that? You Know Thomas Sola is a huge influence on Clarence Thomas and he was probably one of the were multiple factors. That turned Clarence Thomas to the right I, mean just so your listeners know that Thomas began his political consciousness was on the left, and he was black, nationalist, and a black nationalist militant as an undergraduate. and. He G. McGovern was too conservative George the George McGovern yeah. Yeah he did, and who was you know pretty left, wing, presidential candidate, nineteen, seventy, two, but and and Thomas. Really you know and people. Don't know this really about him. On was actually discussed at his Senate confirmation hearings when he was appointed to the supreme. Court but people got overshadowed by Anita. Hill but he was a campus militant, and he a firm believer in Malcolm. X. Was a huge influence upon him as where the Black Panthers on and in nineteen seventy mid nineteen seventies he he makes a turn to the right, and and a big influence on that turn was Thomas Sole. Whose Book Racing Economics came out I think it was in nineteen, seventy, five and and Clarence Thomas read it. Right away and this is the reason I was I was bringing all this up. Is that he? Clarence Thomas in. Missouri at the time in Jefferson City, which is the capital of Missouri and he, he makes the trip to Saint Louis to hear Thomas Soul, who's in town, debating this very little known a law professor by the name of Ruth Bader Ginsburg, so it's one of those kind of moments in history where somebody who dwelt several people who end up becoming quite famous are encountering each other, but but Thomas Oil was a huge influence at. For listeners who don't know use a an economist very right wing, economist and also began on the left, and was a Marxist, and then went to the University of Chicago so I. Agree With You. There is a whole story to be told there about Thomas Soul and somebody ought to do it. It's not going to be me. Because I, it probably retread a lot of ground. I'm sure you probably want to break in a different type of focus, you know one thing that they have in common that they have in common for sure is that it's not the cut and dried black conservatism that we have now this. This'll weirder more dumbed down version of that conservatism now where I think neither Clarence Thomas or Thomas so will could be a hero in. It looks like we're in this age of the diamond. Sill. What's what's her name I? Forgot her name. She's always a candidate Owen. On. The, yeah, this kind of like almost are buffoonish or the Kansas Owen kind of reminds me of Tommy Lauren in that. She's not very serious. She's more. Attractive, Face That, it should consider. A weathergirl something someone who's just kind of reading offer something you know both both kind of remind me of that whereas Thomas Seoul was. There's a kind of you. Talk about in your reactionary mine. It actually kind of going back and forth. But let me actually in mind when I teach you talk about how sometimes one things that people underestimate, but the right is the extent to which the right will use talking points or things from the left to get its a point across lake. How I'm I'm drawing a blank on his name, the guy who's always talking about campus conservatives, but but he'll he'll talk about how certain authors are underrepresented in the hand in that cultural studies. ARGUMENT TO OUT GET GET I. Think Irs in there. And yeah, I mean. Sorry go ahead! This GonNa, but it's it's a really important point. and I think oftentimes gets overlooked and I think there's there's two ways to think about this so again for you know the from listeners who don't know this book, the reactionary mind which I wrote almost ten years ago. looks at conservatism from the very beginning, which goes back. It's it arises in in during the during the French Revolution, and from the beginning, a conservative thinkers have always been deeply influenced by the very movement that they're opposing whether it be the French Revolution Abolition the new deal. The women's movement lack freedom struggle whatever it may be. One of the things that's interesting about conservatives is how how much they are imprinted by the very as I say the very movement that they oppose, and sometimes it happens in the way that you just described whether you know borrowing talking points, and it's very cynical, instrumental in strategic, and they're doing it very self consciously and I see throughout the book. How that I think the more interesting thing is, is that oftentimes conservatives are influenced by the left in spite of themselves and ended up mimicking its language, not self-consciously in strategically, but unconsciously and strategically, and that was your example Sega a Phillix Phillips shares. Phyllis Schlafly? Yeah, exactly remember example, yeah, and which you know, there's a there's a series on I. Think it's Hulu a called. Mrs America, which is about this, and it's actually quite good on this in an. You know that it's one of the things I found about her. was that in arguing against feminism? She oftentimes ended up using the language of. Of Feminism and sometimes again it was strategic, instrumental, cynical, but more interesting was when it was when it was not as it makes sense when you think about it amid imagine you're fighting within an enemy every day rhetorically over time parts of that worldview. We're going to be part of your own and I think this. What makes conservatism in any different? Different in any given age different from its predecessor. No, no moment Sir Eras, conservatism is going to look exactly like its predecessor. There's a very strong reason for that. Which is that the the movement that conservatism is opposing at any given moment in time is going to be different, so the conservatism that opposes the new deal is going to be different in. In part for the conservatism that opposes the black freedom struggle. Yeah, and and that point I think Kinda ties into why there were certain types of conservatives of different EHRLICH Thomas, so will because there was kind of idea that we like tolerant the left, or we want to like I feel like liberals very much in their tokenism are very into credentialing. And having their tokens be credentialed, you know so. It's kind of like a benign type of benign type of tokenism where you want the person to have certain degrees. You want the person to maybe be abby educated be in soil, so for example and Obama is like a dream for that type of liberal racism. You whereas I think underwrite. There was this kind of thing where you know because there are. Okay be more overtly racist back today. They wanted more straight up minstrels, or or whatever as their as their tokens and I feel like soul came in a Erin. I think Walter Williams and Clarence Thomas other ones where in the same with Dom Colin Powell Condoleeza, Rice where the right was trying to can go more into league death period from Lee Atwater to compassionate conservatism of George W Bush where they wanted to have their tokens be seen as hyper competent as the left Tokens, and so it was like a soul. was somebody who you know. He's a great economists and he can argue. Minute and and and policy and stuff as an economics as well as anyone, and and the the appeal of him was that he was supposed to be a that. He's black needs to shield for saying racist things, but he's also hyper, competent in and hyper smart, and I feel like that's a window where someone like Clarence. Thomas came in during that during that time to as opposed to say Ben Carson now like they're trying to get people as buffoonish as. Possible and in a way like Donald Trump. Himself as buffoonish so I was gonna say it mirrors larger moment of general buffoonery now I don't think black conservatives are that distinct in that regard from conservatives but I think you're right, and I would also, if I could add something to what you're. I think there's a larger reason for what you're talking about. which a lot! A lot of people have noticed this about conservative the. That there seems to have been a just general decline in its intellectual quality from say the Nineteen Fifties to the arts, and for many liberals and many never trump republicans. This is a source of great dismay, and they say oh. Conservatives usually be like William F. Buckley. They used to be so intelligent and and so on. And, so there's a there's a general distaste for the declining standards. Conservative interlocutors at which is an argument I don't. I don't really buy into, but I. do think the Kernel of truth. And it gets to what you're talking about is Is that in in every generations conservatism? It's always going to be at its most intellectually and politically potent right, when it's in the crucible of battle against a real left a when I say real left. I mean left. That has done what it set out to achieve so in the French revolution it was the dispossession of the aristocracy and the church to a large degree. abolition was the the emancipation of the over of slavery The new deal was really the. Partial dispossession of the business class, and in each of those eras, and each of those moments there's a conservatism that arises from real material, loss and stress. Real material loss that that understands that we got weed. The right Conservatives got beaten, and we got beaten for a reason, and we damn well better figure that out and come out of you. Would you include like the sixties and hippies and the defeat of Barry Goldwater leading to Ronald. Reagan is one of those examples or Or allure, I think that's an extended example, complicated question. You're asking and historians kind of debate this I mean I generally think of the modern American right as relief situated in the backlash I against the new deal, and then second against the black freedom struggle, the civil rights movement in the sixties, and so the studies were so these aren't just these these aren't electoral defeats that I'm talking about their real like I. Say real acts of material defeat with something major has been lost. In the Social Structure Us oh, the defeat of Jim Crow, Legal Jim Crow that would be the kind of defeat that I'm talking about and so conservative when it's faced with those kinds of defeats, and those kinds of acts of dispossession from the left a therefore, conservatives are forced to go back to first principles and say why. WHY DID WE LOSE? What happened to us? Where do we go wrong and out of that experience you? You get a whole explosion of conservative thought that's innovative and dynamic and inventive and create some of the greatest literature of the right that we know of the problem that conservatives today face and hear a lot of people in the left depart for my analysis, but I think it's true. IS THAT CONSERVATIVES ONE They were able to defeat the workers movement in the Labor movement and they were able to basically stop the civil rights. Rights movement in the Black Freedom Struggle. Now that's beginning slightly perhaps maybe to change today, but we can get to that later, but they were able to defeat. The right was able to defeat both the black freedom struggle in the labor movement, and coming, and then enjoy, and then enjoy the fruits of victory, and for conservatives that ironically poses a problem because they get comfortable in victory, and they get complacent in victory and life gets a too. Too easy for them in a way and then you start getting these kinds of clownish figures and trump is a symptom of precisely that the right during the nineteen sixty thousand nine hundred seventies would never thrown up a figure like trump in his clownish nece, and is profound lack of seriousness, because the right was deadly, serious about beating back a very powerful left, but once there's no more left to beat back the right gross comfortable. And kind of a good thing is a good example of that by the way when you sing it, it's forming in my head was the George W Bush years I remember especially that first term before Iraq went south, there was a real gloating young coasting under laurels attitude toward the whole Fox News seen I remember talk, radio and Fox News were so culturally dominant I mean like even liberal uses watch it because he just found it more entertaining even to hate watch. You do something about like the the that era of Hannity and Colmes Yeah. I mean I mean there was a daily show and that stuff but people he's really. Now more niche more niche as but at the time they people would really track what Bill Riley was saying. Even if was second hand through like Media or media matters likable. Read blogs just to know what to say last night. Even even like watch. It I want to see you why he said what is Sean Hannity, do like Oh Hannity and Colmes. Colmes, the punching bag whatever and was interesting was really felt. I remember a lot of liberals, folk, really despondent or demoralized, and and the right really felt on ascendant, and I remember how clownish beret before our eyes on Fox News was getting like people like handy when you'd be looking objectively. I mean the guys like total moron. You know but right. Yeah, and I made again. I I think you're absolutely right in in a way, the George W Bush regime was the the the apex of their power. And it was exactly that it was a moment. Where this tremendous of complacency set in and I've been. You know I think they've been on a downward trajectory. Since then which you know we could talk about the the reasons for why that is and that that's why you get the situation where we're in where they don't. They don't have any kind of real. Intellectual ideas and political everything is. is a retread of older ideas, so I mean. This is where I think the left goes really wrong with trump. They think he's inventing a new form of conservatism where they. They did up until a couple of weeks ago. Now I think. Everybody thinks he's on his way out. And the START I've always thought that he was recycling, and that that recycling of old stuff was a sign of conservatism. That's increasingly exhausted. And weaker and weaker, and again you have to know something about the history of the right to see this because the right that formed between the nineteen thirties, and then reached a you know power really with the victory of Ronald Reagan was a very different kind of right, not because they were smarter people, and not because they were better people with better manners it. They had to be a smarter because they were on the losing side and they wanted to. They wanted to win. And you know that struggle disciplines you and makes makes you. I guess it sounds like a right wing talking point, but there's a certain truth to it. That kind of political struggle really makes you work harder, because you can't take anything for granted and the right used to not be able to take things for granted and and and now I think they do, and and you do have some figures on the right who are nervous because they see the signs of weakening and They remind me a lot frankly of. Of John C Calhoun who was one of the big defenders of slavery in the architect of the southern position who, early on during the abolition, struggle, warned fellow slave masters. These people are coming for us. and they're going to. They're going to win. If we don't get our act together and so I. Think you know some people on the right. Begun to figure that out. Yeah, it's it's. It's really we see some have begun to. Figure that out do you think right now? We're in one of those complacency moments again absolutely. And so an interesting figure in this regard I is Ross out that the new times columnist who gets a lot of hate for good reasons, from liberals in the left, but I think one of the things that doubt that has been onto is that the right is in a steadily weakening position and that they're they're kind of. They're kind of people. In his account, the right are like people who are celebrated. Stay late at the party long after the party is over and don't realize that it's coming to an end, and nobody listens to him and the reason nobody listens to him on the right is because they say well look. We've got trump in the White House. We've got the Senate and most important of all. All we got the courts, but if you know anything about the history of the right, if the right isn't having to rely upon those kinds of institutions for its power, that's usually a sign that it's it's. It's heading for defeat. That's not a sign that it's a vibrant strong boom or that that's interesting. Can you impact for so if they're relying on which aspects the core the courts in particular so so let me step back a second. And you know the argument of the reactionary mind is is that conservatism is fundamentally of movement of reaction and movement of reaction against a social movements of emancipation from the left, and those movements of emancipated from the left change over time as I said the French Revolution Abolition the Labor Movement, the Black Freedom Struggle these movements change over time, and there's always a reaction against them and the one of the interesting things about the reaction against these movements, and I hinted it this. We talked a little bit about this earlier is that? The conservative understands that if we're going to regain power from Labor movement, let's say we're going to regain power from the civil rights movement. We can't simply just say the same old things that we used to say. We have to be as dynamic and as popular and as much of a mass movement as the movement that were opposing. The movement were opposing his change the rules. We can't go back to the old game. We've got to play a new game. And so that makes conservatism oftentimes I call it a mass movement of privilege. It's trying to restore a kind of article system. That's the key thing, but it understands that you have to do this in a way. That's a little bit more populist, a little bit more democratic, a little bit more majoritarian, a little bit more mass. It has to have a taste. Conservatism has to have a taste in. A taste in talent for the masses. So this is this weird thing about conservatism is that it's very much of an elitist movement of hierarchy and privilege, but it's it. It has sought to itself, and to try to be a mass movement of hierarchy employer privilege, and this is why racism for instance is so important to to to conservatism. It's not something that Donald. Trump invented it goes way back because. Because racism is a way of democratising privilege, the southern slaveholders understood this very clearly John C., Calhoun James Henry Hammond these people who who defended slavery in the old south. They understood if this institution of slavery is perceived as a kind of aristocratic institution, from which only elite few benefit were screwed. So what we have to do is to make all white men understand that they are part of this system to. And, that's you know in a in a way. Part of the jet part of Genesis of racism is it's a way of democratising privilege, so so that's the back dropped everything that I that I was saying before about the courts. So when conservatism comes to rely not on the popular vote and remember we've had three elections in the twenty first century, in which the conservative candidate one and two of those three elections, the conservative candidate lost the popular vote. That's unprecedented. That hasn't happened in this country since the nineteenth century so that's new and they were able to sneak in in two most. Most with the Electoral College, which is a very anti-democratic institution, and this is why, in, and so so they're relying upon not a majoritarian institution, but what's called counter majoritarian institution the electoral? College and it's secondarily what they're really relying upon long-term use control over the courts, and and you know people have talked about this a little bit, but you know what Mitch McConnell what has been his most important single minded focus from the very moment that trump was elected. Get conservatives onto the court. Get conservatives onto the court so the whole. You know this whole time throughout this pandemic. You know this is what? What McConnell is constantly trying to do is to vote on conservatives to the court now. Why is he doing this? Is He stupid? No, he's probably the only person on the Republican Party who has any understanding what's going on? And that is? He sees very clearly that the left and Liberals and Democrats are kind of getting more and more ascendant, and he understands if they lose if the right loses power in an election, they're gonNA have to rely upon one institution, and that's the judiciary and and so again. That's even more anti majoritarian. You know, so. They're planning to just basically strike down any. Any single law. that the Democrats could get through Congress and signed with the president in the White House and There's an irony here. which is you know for many liberals I would say they think trump one of the horrors they have of trump is that he attacks the rule of law and the constitution and the courts, but the irony is is that long after trump has left power whether it's in November or four years after that I don't know, but long after he's gone, his legacy will be protected not by a white racist majority. It will be protected by the courts. The judges whom he has appointed the very thing that liberals think of as their protector against the right, so it's a very strange work we live in. Is Very strange. Wouldn't it pushes? Always have and I don't know if this is a naive way to think or if it's something that maybe is true, but practically there's no way to do it, but when I find very interesting and ties into what you said is that there's kind of just acceptance as the way it is the court. Is this powerful, and that's just what it is and I feel like. At some point, the right in history from what I read used to be worried about the. Power of the court, and instead they've just kind of bought into it to like. Leave it as powerful as it is. Let's just be the ones to be in control of it and I was wondering. Does anybody whether on the left or right even talk with think about shrinking or taking back the power of the court, so it is. Is Not as powerful as it is. Is that just a horse that left us left? The stable is never coming back. No, I mean I think there are some left political and legal thinkers even who have really begun a Jedidiah. Purdy, WHO's at Columbia Law School is one and Sam. Moines is another. WHO's at Yale Law School. But I WANNA. Let's step back for a second there because ironically the right. The right actually way back when you know really saw the court as its protector against the legislature. And particularly during the gilded age between the eighteen eighties, in the Nineteen Thirties the supreme court was constantly striking down a worker, pro worker legislation, and the courts were constantly issuing injunctions to stop workers from striking so for many leftists and even many liberals. They did not understand they did not view the court as their friend. The court was the enemy and the goal of the workers movement was to try to put put the court back. Into a box and to constrain its power and and and and and this is a big battle that goes on in the end of the nineteenth century up through the nineteen thirties and forties, and then something does change and I think this is where the point you've just made comes in where with the Warren Court on a host of issues The court begins to reassert. Its power. And it's a liberal court. Actually actually begins the nineteen forties, and There's some great scholarship on this Jeremy Kessler whose at the Columbia. Law School as well has written about this, and so you know the court begins to a kind of a liberal court begins to reassert its power and conservatives. You're right, hate that and so you have a generation of conservatives, who really critique the power of the court, and then as you say at some point, they begin to change their tune now they really see the court as their ally and against so much so that this is the major this May Mitch McConnell's major agenda and you know trump has appointed. The number of judges trump appointed he. You know much much more than I think at this point any other president has in the past and so now I, think liberals and left are some of them are beginning to question whether or not We Really WanNA. Be Defending the court as friend because. This gets to the Clarence Thomas Clarence. Thomas has now been on the court the longest of any person he's the most senior justice, and he's only seventy two years old. I think maybe seventy three. He was appointed as a very a man He's GonNa be around. He could be around for you know if he's around for another ten years he'll be. Be. The longest serving justice in American history Yeah, and you know there's a very you know is a very the. They have five very solid five, or is it sex I can't remember losing count here. No, it's not so they're very solid. Five Republican justices and they want to hold on I think no, actually I'm wrong sex anyway. and and they're going to be here for a while you know. and conservatives have been very smart about this appointing very young. Justices a court. An enormous interesting to is that I feel that one of the things that works a lot to the establishment. Democrats these stablishment conservative wings of each party. Is that I think there's a certain type of person that in each camp bat is thinking. You know what let's just do a long ground game We don't WanNa vote for the lesser of two evils. Every time are right now. It's the it's. The liberals were in that camp. You know where people are forget Joe Biden. He's just old old school. Liberal centrist. Accommodation is politics we want we want. A real leftist you WANNA. Real radical were willing to lose and just have a long game like ready to be in for ten twenty or five count like what people I think Pearlstine claims that that was legacy of Goldwater that After Goldwater, there was multi decade ground game. You're willing to play and the thing that people are a lot of times. Let themselves get talked into as far as not. Not Thinking about the long game as they say, oh, but if Democratic president doesn't win, we're going to lose X. amount of seats to the items Supreme Court after every election now. That's kind of what we told like. You can never do. Do a long Brown game because the court. Is that important you have to? Every election ends up being lesser of two evils election because she can't let those seats go. Yeah, This is a and it's a real It's a real conundrum. the irony as you know at least when it comes to court now the two oldest justices are Ginsburg and Briar. You know they're well into their eighties so if The likelihood is if the Democrats win. They're not going to get more. Liberal seats are just going to get a replacement of of the seats. I wrote this. Thomas Book I finished it about a year and a half ago. One of the problems once you finish, a book is kind of all the facts at your fingertips. Fall off your fingertips, so I was just trying to kind of go through the court and figure out. How many seats the liberals have an seats. The Conservatives I still can't. Exactly this is probably a part of your brain. Just want select jettison the information, and so so immersed in. It well, it's true you know it's. It's like and I. Never Dishonest Book was a new thing for me because I had never written about the court or Legal doctrine or anything like that, so it's it's a strange world the the law. And it, I, I myself in it for many years, and also trying to figure out his relationship Thomas relationship with African American. Thought in politics, and so, but the the court stuff got disappears, but anyway. The point is is that this? This issue of controlling the court is is is dicey, because in some ways I think the real agenda for the left is to beat back the power of the court. It's not too. It's not to have a lot of liberals on the court now the dilemma around that. Is that in order to partially in order to beat back the power of the court, the coordinates to limit itself, and that's what happened. During the new deal. There were a lot of new deal. Justices were appointed, and they self-consciously limited the power of the court. So you need to have the kind of the right justices in order to do that, but it's it's. It's tricky so yeah, yeah, it, one thing one thing about the Clarence Thomas Book also surprised me was not just about Thomas, but in general I always thought that there was certain amount. There's a certain type of real pedigree of judicial appointment and intellectualism that usually had to have to be a supreme. Court justice and I was Kinda surprised. How various record justices in our history have knob barely even practice law base, yeah, and and Clarence Thomas had had one of those type of backgrounds. Backgrounds where he was kind of more into politics seems and he kinda just gravitated into being a judge Moore, because it was a way to enact or make headway into politics more than your any real curiae. It's actual curiosity about being being a judge. Yeah, I'm glad you raised that because it's a super interesting point, and I think the context for what you're talking about is. Is that we today we come to boot. Take it for granted that somehow another somebody who's on the Supreme Court is going to be as you say a pretty esteemed either legal scholar or jurist in have kind of long. Background as a jurist and I think at this point. Everybody on the supreme. Court has a jd from either Harvard or Yale Law School. Now, historically, though and many of them were law, professors before they became Supreme Court Justice Justices Historically. That's pretty odd throughout most of American history Supreme Court justices were political actors. And had political experience and were elevated to the court The Warren Court that we were just talking about Chief Justice Warren. He had been governor of California. That was his big claim to fame. He had a legal background had been attorney general I think as well of California but but he will. He governed Justice Marshall Chief, Justice Marshall is the burst, the big major chief justice who kind of creates the court in terms of its role, and all the rest of it. He had been an actor political actor in the with the with added Adams Administration so. There's a long history of that and in the modern era that's changed and in Clarence. Thomas is kind of a throwback to that older history. Because as you say, he wasn't a was by you know by no means a legal scholar. He had only been he he was elevated by George H W Bush to the Washington Court of Appeals you know about fifteen months before he was elevated to the Supreme Court and and that was it that was really his only judicial experience would he was was a political operative. And a kind of political I you know I wouldn't say political intellectual, but you know. He was somebody who reason his way to his ideas with this blend of black nationalism and black conservatism. And he you know the seventies and the eighties in in the political world and so it I think it makes his supreme court opinions of a little bit more interesting to be honest with you. There's a you know of all the justices I would say. He's one of the best writers which people don't realize. There's a clarity in pungency. He knows how to land a punch when he he writes in opinion i. mean you read somebody like Alito? Or GINSBURG or Brier? The kind of the securities you're always lost. Their opinions with Thomas. You always know where you are, and he doesn't. He doesn't hold back I mean I talk about this in the book, just the kind of rhetorical assault. that he launches knows exactly what he's doing. Lures terrible writers as far as being engaging. It's really bad. Yeah, exactly no, they are, and the the ones I'm talking about. It's not even just the lack of engagement you just like I literally cannot at any given moment in time. Yeah I mean they're. They're just sort of lost in their own words. So also also evening things like the constitution right, which which is the constitution is a very well written document, and if it, if you had lawyers today, let I'm not that great on history, but from my understanding a lot of people in that room we're not we're not lawyers are what the constitution original constitution, and it's a pretty well written clear document. If you had like today's type of lawyer Bureaucrat, try to create the Constitution that all the happened today it would be like a four hundred page document of just impenetrable right on circuitous took the credit mess I mean that's you know that's what happened has happened over the twentieth century, the constitutions that were written in the twentieth century, and to be extremely long. I wouldn't say necessarily the Constitution itself is so clear I mean it uses words that have kind of simplicity to them, but it's deceptive simplicity and a deceptive clarity that we don't really know what these words mean, and part of the reason why we have so many fights about the constitution part of the reason. Is that we don't actually know what is equal. Protection of the laws actually mean. What it says, Congress shall make no law abridging the freedom of speech. What does that actually mean? Or yet the freedom of speech so sudden that people think they understand, and then we actually like read free speech scholarship. It's amazing how much webby stand to beat a freedom of speech is eighth, not even reading in the language, and it's very constructed and recent. Yeah, no I mean. Yeah, I totally agree with you, but but my point is today would make it four hundred pages and it was still. Going to fight over. At the very least it's as confusing as it would be today or less confusing, but the very least it'll be shorter. Yeah, no, absolutely. You're absolutely right. Making it longer doesn't Inouye necessarily resolve the confusion, but but back to Thomas Though I. do think it It makes his opinions kind of interesting, and and they're much more political. I mean so much so that there are a couple of cases where he you know. His fellow conservatives will join him, and then at some point, they'll jump ship. You know because you can see. They're kind of looking around like Holy Shit. Where's he going with this? And it usually involves questions of race because you know. Thomas has a very strong vision of the centrality of race and racism. In American politics in the American legal order. And, that doesn't sit well with a lot of conservatives who want to make you know they they give lip service and you know the rhetorical. They claim that they're colorblind and Thomas. Has always made it very clear from the beginning that he does not believe that the United States is a colorblind society, and not only that he doesn't believe it ever will be a colorblind society. He believes in I wouldn't want to say the permanence because permanent is a very strong word, but it's almost close to the permanence of the word that popped into my head when I was reading, your book was our was trenscient. Gets. It's not a per it's it's not permanent, but it's very stubborn like you know it's. It's it's I. If it's not permanent these close to it, it's not gonna go go easily, absolutely and he. He does not think racism has has gone away now. This creates a lot of What I say this to people that creates a lot of confusion because they say well hold on a second. He seems to be always ruling against black people. oftentimes is, there's no doubt about it, but the I think that the foundation of his worldview begins with this very pessimistic view the possibility of racial progress. And he thinks that African Americans are are on a fool's errand to look to the state to look to the Democratic Party to look to politics of any sort as the answer to their predicament, and from the beginning with Thomas has sought, is to produce a kind of a change in in in the world view of African Americans. He's been very clear about this I mean. He understands that African Americans for the most part. Do not agree with him about a lot of this stuff he. He's very clear about this but he wants them to change. Their beliefs to understand that because white racism is so persistent as you were saying because it's, it's so. By the way trenchant was the wrong word that does not being what. I'm thinking of a different t word that that means stubborn and and very hard to uproot, but it wasn't trenscient I was I looked it up after I said didn't feel right I mean I knew what you meant, so maybe ten tenacious or something like that. There have been what I was thinking. Yeah? But but I know exactly what you're talking about and. That's what he thinks and he says well, if you if you. If you understand that anything's most black people would agree with him about that in his. He may be right about that If you understand that then you have to understand that the state government and the political process are not your friends, and will never be your friends and any white person, any white liberal, any white progressive. Who tells you that they want to use the state to help you is in fact, your enemy is in fact, your most dangerous enemy. And here there's a there's a certain strand of Malcolm X. thinking that's quite similar. Malcolm X. distinguish between the the wolf in the I think it's the wolf and the Fox. The line and the Fox you know the one that pretends to be your friend, and then stabs you in in the back of versus the one who's just quite open about their hostility to you. and Thomas has a very similar line in so for the Republican Party has always been the enemy. That is open in its hostility, and therefore it's clarifying for African Americans. Better Way, you're right, it is. It is wolf the wolf from the Fox. Okay? Yeah, actually I read as the word I was trying to think of It wasn't trenching. It was intractable. Yet that was what I was thinking, but. I made a note I was reading your. Book I put it here. It two of them weren't surprising, but the three things that I wrote data put. Mix meets. meets Thomas. Solos black conservatism meets Frank Wilkinson's afro-pessimism and the third part was that surprise me, but afro-pessimism by frank. Wilson's very much into the idea of how. How entrenched in in societal thought the? CAST. Status of of that people is and how hard it is to make people think think differently or or changed, and it almost has almost fatal this edge to it which Thomas so will doesn't really have Thomas Soul. There's a lot of time soul in. This time in Clarence, Thomas especially the Pros Thomas. Soul is a engaging writer as as well as one of the reasons why I ended up reading a lot of his stuff. Even if you do more research in Canada realized that there's something systems, a little bit of sophistry, some things don't hold up. He knows how to write very persuasively with. With Punch and engage your senses, but he's one of those people that I think a lot of our right wing. People like him in Vat he can. It gives the idea of bootstraps. a lot of a lot of the idea of institutional is structural. Racism is overstated, is just a lot of cultural and ethological type of forces know. A Moynihan's type of argument, and if he just get rid of that, and you know stop using racism accused or whatever and level the playing field as far as affirmative action, through harder circumstances or I guess going to fire black people will. Conquer, and that was definitely very much in what you described with parents Thomas. I wasn't surprised by that, but that fatalism is not really in in at all, but it is definitely in Clarence. Thomas I didn't realize that until you that I read you books, so the Malcolm X. Part as as as we as it sounds I. wasn't that surprised by when when I. When you mentioned the wolf and the Fox speech I was thinking that is that is right and the Thomas sole thing I definitely saw especially in the pros, but I was surprised by the fatalism. I did not know that about. Him, at all and I'm looking anything, but afro-pessimism. Yeah, no I mean you know I I didn't in the end. Get into this in the book, but I was reading quite a bit of the afro-pessimists Letter Literature when I was writing this and I had originally intended to engage more with that in just decided not to and and but I found an awful lot of stuff in in Wilkerson. In in Clarence Thomas? And you know this idea. This kind of the untolerable of anti-black blackness. That racism is this kind of thing that exists. I think Thomas Clarence Thomas at one point says you know it has. I can't remember. The exact quote has no roots. And by that you know. or it has roots that are so deep that you can't. You don't even know where it began or something like that. And the guy for pessimism. He's very very unafraid of invoking the original slavery is as the cause of things. Razz, lobbying conservatives really try to downplay the I want to make. It seemed like it was just You know a tough job, right? He does not do that. He's he's surprisingly very frank about yeah, and not only that you know he's also. An originalist claiming to interpret the Constitution as it was originally understood now when most white conservatives say that what they mean is the constitution as it was adapted adopted in seventeen, eighty nine. and which was a a slaveholders, constitution and Thomas first of all says that and admits that he's quite frank about that. It was a slaveholders constitution, but the other thing that commerce does is that he also says that the Constitution was fundamentally altered. We created a second constitution with the civil war and reconstruction with the passage of the thirteenth fourteenth and fifteenth amendments that in other words. Words the battle over slavery and emancipation, the black freedom struggle, the nineteenth century, fundamentally altered the Constitution a very different kind of constitution, and there are very few white conservatives who would make such a claim and so it's really interesting with Thomas is that for instance if you look at his second amendment, opinions on the right to bear arms, they are kind of history lessons in the centrality of. Black violence and white violence, the centrality of of people who were enslaved and then people who were free get control over arms and armaments. And he is in fact, he he. To things that are sort of interesting. It might be interesting to your listeners. First of all he quotes extensively from Herbert APP tekkers book on the history of slave revolts. Now for those of you who don't know her at decker was a member of the Communist. Party and he was one of the pioneering scholars he got this from. The Boys one of the pioneering white scholars on the history of slavery volts. Volts and how important they were, you know most white scholars tended to really downplay. Ignore this stuff and there he is in Clarence Thomas footnotes about the centrality of black revolt, armed revolt against the White Masters So that's one thing that's interesting, but the second thing in this came out in a case I don't know a year ago two years ago. where he's talking about the black codes. which were used to be back reconstruction? And He's against citing liberally from Eric Phone. Irs Work on Reconstruction Eric Founders, the great historian of reconstruction, still alive and with us. And I mentioned this phone, or I sent him an email about this, and he said Yeah, you know He's had a correspondence with Clarence Thomas Clarence Thomas is. Like no really knows his kind of civil war reconstruction history So you know that's a long winded answer to your question. In point about that, you know. The history of slavery is very important, and the battle over slavery is really really important. Thomas and informs a lot of his jurisprudence. Even on things the seem to have nothing to do with it, so his campaign finance jurisprudence will make mention of the fact and talk about the fact that kind. Pam Finance Law was written by a Ben Tillman pitchfork Ben who was a white supremacist who led programs against a black people in South Carolina and he talks about this. You know so so. This history is really important to him and is all over his jurisprudence all right y'all also so that is the end the part one goto again patriots dot com ports, slash, champagne, sharks, or click. The link in the show notes to get part two.

Thomas Clarence Thomas Thomas Soul Clarence Thomas Clarence Clarence Thomas Clarence Thoma Supreme Court Thomas trump Democrats Thomas sowell professor Thomas Tomasulo Malcolm Ruth Bader Ginsburg Donald Trump Thomas Sola president Warren Court Labor movement Fox News
2187 - The Hidden History of the Supreme Court & the Betrayal of America w/ Thom Hartmann

The Majority Report with Sam Seder

58:46 min | 1 year ago

2187 - The Hidden History of the Supreme Court & the Betrayal of America w/ Thom Hartmann

"You are listening to a Free Berge of majority report with Sam Cedar to support this show and get another fifty minutes daily program go to resort. He Dot S. M. Please Dhamma Monday Monday September thirtieth two thousand nineteen. I'm Michael Brooks on Michael Sam Hybrid Monday. It's Jewish holidays. The day's Sala Follow Sam making me be a bad half. Jew Jamie bad full Ju. We're working. He's repentant. Hopefully I went to my grandma's house last night. Thank you very much for a nice. I'm sorry Husham. That was my impression of Sam but I can't promise to speak nicer about Chuck Schumer on today's Thom Hartmann Sam just I interviewed him. Radio legend Tom -partment. They're talking about impeachment other important things going on in the news. Rudy Giuliani. He said that Mike Pompeo pushed him to open the just false investigation Joe Biden Ukraine does not to say that Joe Biden's ends kid didn't get a job that is clearly nepotism dropout Joe Dropout Joe Trump reportedly worked with two off the books lawyers to pressure you train in for damaging information about Joe Biden Schiff is planning on asking for documents from Rudy trump's on void Ukraine resigns New Partnership announced between California and China conciliated by former California Governor Jerry Brown on the climate crisis Barbados Prime Minister Cheese incredible she spoke with absolute courage about US interventionism in Venezuela at the UN General Assembly Lindsey. Graham is so indignant. Bernie Sanders has a lead in Nevada is time for a bunch of other candidates should drop out pieces and new speculation that a endorsement might be going in the right direction but it's all speculation all that and much much much more on today's majority report folks. I have never been somebody who has I like Robert De Niro. He's great. I think when he says F. Trump okay okay doesn't do anything for me the last time he did it at the tonys. What did do something for me. was that the these guys in. Staten Island took down like they're goodfellas posters authors in their houses like beat them baseball bats night. That was awesome that I loved but look it's cool. I have you know I'm also not judging any but like you know if that's your thing if it's Cathartic for you great obviously F. Trump I also if it personally upset trump. That's terrific but I don't care about this sort of stuff. It doesn't do anything for me. This did do something for me. This was Robert Deniro on reliable liable sources of Brian stelter now. There's actually a kind of serious point to be made here for what it's worth. I mean it's a serious point. We've made plenty of times but it's worth revisiting visiting and Brian stelter getting upset or I should say uptight is funny. Check this out. This guy is should not be president period and when you say that folks on Fox come after you I remember the Tony say that that I like that just like oh trump's John Fox but ever do like really really even have time for this stop it. I thought you're going to the contrast in demeanor. 's The contrast yeah well. I mean this is this is this is like a it's not exactly heat. I mean this is. This is a new movie. I mean this is the beginning of a trailer of like he was a neurotic newscaster who followed boring media stories. He was an ex con. Somehow mouth like basically Deniro needs that somehow it's like. Deniro has gotten out of jail and somehow has been allowed to leave the the mafia because he's like such a boss that they're just like bobby whatever's characters you can leave. It's no problem he is somehow scored an internship on CNN and probably through his son. His son is clean. His son is legit and wants his dad to get legit in the last phase of his career. He's interning on reliable sources says stealth a total wuss bag and like can't get the girl he wants something so stelter needs to teach deniro the news business business to meet his parole requirements and Deniro needs to teach stelter how to be a man. I just gave you the script all right the hell out of that sounds like a great movie all right. Let's watch this says. This guy is should not be president period and when you say that folks on Fox come after you. I remember the Tonys when he got up there and cursed a lot of racism awesome fucker. Kra So it's not an FCC but is still a Sunday morning well. We're used to go that lacey. Somebody how do we are. We are in a moment in our lives in this country. Where this guy is like a gangster. He's come along and he's said things done things we say over over and over again. This is terrible. We're in a terrible situation. We're in a terrible situation and this guy just keeps going on and on and on without being stopped. Let's break. Let's commercial with Robert De Niro in just a moment. I Love Deniro Sisley. Yeah whatever dude dude but you know. It's it's it's funny because I thought the Deniro did something. I think it was before the election that a bunch of people like I remember the most embarrassing thing more than more embarrassing things I've ever seen in my life was David axelrod quote tweeting it and being like he's in New York. You got a problem with that. It was just like it was so embarrassing that you needed to like. Put your phone down and go outside and take a walk and try to forget that that you saw that but in that interview I actually think that's very revealing because you know if what it's worth whatever else you want to say about Robert De Niro. He's that that's coming from the right place. We have have a disgusting dangerous president. He hasn't been held in check. He's grotesque. He just keeps going and going going. All of this is one hundred percent true and you're uptight because 'cause I used a boo boo word. Whatever dude do we know who deniro does support colors for me a little bit that would call her for me to but my my guess would be that he's probably my guesses. He's like a guy who's probably not gonna Taylor swift it. He probably won't even endorse until after the primaries near Mess with Katy Perry. Yes Deniro joined the essay. That would be awesome. Doubt Danny need to veto is closer to doing that but maybe he could get him on board. I feel like Danny Danny Devito India say oh what I mean I I'm not. I'm not trying to spread I. I just know that Danny devito he should join. Danny does a legit. Danny Devito is more close to like. Danny Glover like these are like serious like yeah all right. Sam Loves to read ADS. Let him bathe you in one three. It doesn't matter if you haven't barbecue and your backyard God I would love to have a backyard backyard. You have like movie nights out there. 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I I even have a sneaker coffee table book at my apartment and from the Gulf whereas you get those about New York's sneaker culture from the seventies to the ninety ninety was an exhibit at the came before the exhibit at the Brooklyn Museum. I point those look great. You should wear them. I do wear them but I had this dilemma now like we're like. I've never felt this with sneakers before. I don't want to get him dirty so like I'm has it into where you gotta get two pairs. You gotta get your fresh to death pair that you only wear for special occasions and your other pair that you get scuffed a little boom. I'll do it and for a limited time. Our listeners can get exclusive fifteen percent off your first. I pair carry Yuma sneakers. Go to carry Yuma DOT com slash majority to get fifteen percent off. That's carry huma dot com slash slash majority for fifteen percent off today. Get your two pairs right. The what did you call them. 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GonNa work out why I love quip and it's perfect for getting back back into a routine. I told you my sister. I imagine that get a cop. I got a compliment from her dentist because I got her. Equip starts to just twenty five bucks. If you go to get get quip dot com slash majority right now you can get your first refill pack free. That's your first refill. Pack free at get quip. GATT Q. Ip. I P DOT com slash majority back to Michael. Thank you SAM. I wonder if Thom Hartmann uses quip but we do know that Thom Hartmann is a great broadcaster historian progressive. Sam just record this interview couple of days ago. It's fresh fresh. It's about Tom's new book. A hidden history of the Supreme Court and Portrayal of America sounds about right all right back to you. Sam We are back Sam Cedar on the majority report on the phone. It is a great pleasure for me to welcome back to the program. The number number one talk radio liberal talk radio hosts to Progressive Talk Radio host in the country author of multiple bestselling New York Times bestselling selling books and a personal favorite of mine and in many respects a a teacher of Mine Thom Hartmann then welcome to the program. I've been learning from you SAM to for years. That's very sweet of you to say but honor to have you as a friend and colleague well. Thank thank you so much for joining us and you have you've basically started a series of books on on the hidden history basically hidden history pamphlets and you've come out one for one that is for October of of this year which frankly couldn't be more timely as we enter into the twenty twenty twenty election and a in trying to get a sense of you know what what's at stake here and in some respects him we should talk about about this too that you know maybe we maybe a little bit late in terms of the stakes and your book provides perhaps a corrective for that but that is you have a history of the Supreme Court and the betrayal of America. I want to go go through it. Obviously because you provide a an extensive you've history obviously of the of the Supreme Court but in in what respect do you perceive it as having when we look at the totality of the history history of the Supreme Court in what respect is betray America well. There's there's three kinds of story lines that go through the through the book. The first is how the Supreme Court rose from being basically the court of last resort unnecessary important function of government to being the most powerful of the three branches of government and they did that by season of power that was never granted them in the constitution and that most was to the founders didn't think they had until they asserted in eighteen o three and President Thomas Jefferson totally freaked out the second fascinating pieces is this that involves the betrayal of America is how the Constitution explicitly says in Article Three Section two that the Supreme Court it's not only is to be regulated by Congress and that would be as to how many members it has you know when they need and what their budget is where they need all that kind of stuff but also the congress can pass legislation and put specific exemptions into that legislation on which the Supreme Court may not rule all congress can pass along this is called jurisdiction stripping or court stripping it has happened in our history congress can pass a law and they can build into that law sentences simply says the the Supreme Court may not rule on the constitutionality of this and Congress has failed in in Ricard in a big way and and then the third hurt is is the politicization of the court which really started a big way with the Nixon Administration and seventy one the Powell memo and then seventy two Nixon puts Lewis Powell on the corden seventy six and seventy eight in the in the Buckley versus Vallejo decision and the first national bank versus Belotti decision which Lewis Powell authored the court rules in seventy six that if a billionaire wants to own a politician or throw hundreds of millions of dollars into into a political campaign or for lobbying that that is that cannot be regulated by the government it it it overturned a whole bunch of good government laws that were passed asked literally from nineteen. I was seven right up through the APP right after Nixon bribery scandals and seventy eight in the first national bank case a apply that same logic to corporations and then titled Altogether in Neat Little Bow in in two thousand ten with citizens united so we've got and and so as the court acquired this power and as it gave this power to wealthy people incorporations the the the the Republican Party in large part and in part because of their shock over the nineteen fifty four Brown versus board decision in the Nineteen Nineteen seventy-three Roe v Wade decision decided that they were going to get control of frigging Supreme Court. We're GONNA take this thing back and they did it by rigging presidential elections and in the book document how Richard Nixon committed treason to become president president sixty eight by blowing up Linden Johnson's peace deal with South Vietnam Dirksen the Republican leader at that time acknowledged was treason. We what we didn't hear the tapes of this until fifty years after LBJ died but they're out there now how Ronald Reagan committed treason than nineteen eighty to become president cutting a deal L. We now have the testimony of the president of then president of Iran who said that the Reagan campaign approach them and said if you guys will allow the hostages until November until collections actually held onto them until January. They released them the to the second the minute that Ronald Reagan put his hand on the Bible be sworn in if you guys Lang Oh hang onto the hostages cars humiliated will make sure that you get all the spare parts in weaponry that you need because they were they had all American can the military infrastructure and and the shy has been overthrown and then how George W Bush his daddy had several friends on the court and they went to bad for George stopping the recount in Florida in two thousand a recount the New York Times actually did it a year later. They found sure enough. Al Gore actually won Florida and then you know the the failure of the court to be involved in anything to do with Russia involved now and and the corruption of the court by Mitch McConnell Title holding off on Brock Obama's nomination Garland for almost a whole year this is unprecedented unconstitutional and frankly I think criminal but the court which is fine with that so the court has become essentially a as Sheldon Whitehouse pointed getting an op-ed and last week's Washington imposed an arm of the GOP and we should say I mean just that White House and a couple of other senators that letter and op Ed that he wrote and then I think they wrote a letter letter as well to the Supreme Court with before five other seventy S it was in the context of of a second amendment cases but it was I mean as far as these things go in a almost a threat right like like this was this is a precursor cursor and I don't want to get ahead of ourselves because I think there is a very very strong movement in your book is part of sort of the the intellectual case that is being developed up now so that lawmakers are compelled to do something in the event that Democrats have the ability to do something you know after the twenty twenty election but let's go back to eighty three to eighteen three rather and talk about how the court changed here and I have to say this is to that one of the things. I think that that is clear. Is that a lot of what we're seeing with. The court today is it's reverting you to wear head is traditionally been right like the court has always been certainly like in the lead up to the to to the civil war and and and really in a dramatic fashion. I think you know during reconstruction and then throughout Jim Crow the court really functions and and we could talk about this sort of the the smaller aspects of the court or the cases that that that that the deal with different aspects of society but from a structural standpoint the court has been has intervened to make sure that it allowed the scales to be tipped in favor of powerful interests you you know what I'm talking about like Jim. Crow whatnot a lot of that vote suppression Congress may have opened the door on some level with you know with the with the with with the limitations and put on the Thirteenth Amendment but the court certainly sort of like busted that door open and said yes the anyway you can come up with disenfranchising black voters or frankly in poor voters go for it and because the the court was always edifying flying power largely and then you know there was a we had you know thirty years I think of the court in the Mid Twentieth Century where that was is reversed for a time but basically the Warren Court cow which is why which is why the John Birch Society with Fred Cokes money had billboards all across America is that Impeach Earl Warren throughout the fifties and sixties fifties throughout the sixties all right well. Let's go back to two hundred zero three so when we talk about the court just explained explained to us what what was the when the court was contemplated and you know I I think there's only so much we can do but it's important for people able to understand the the the point of this. What was the court contemplated as being and then what was it in one thousand nine hundred three that shifted its role and and how did that happen well. Originally the Supreme Court was set up to be basically the court of last resort you had to they have a place where the buck finally stopped so you know if your dog ate my chicken and and one of US sued the other end end you know one of us wins and then the other one appeals it it goes back and forth and back and forth and eventually gets to you know keeps going up the food chain of the courts. It has to stop somewhere in that was the Supreme Court so the Supreme Court was considered the appellate court final appellate court though the quarterfinal appeals in addition to being the court that would adjudicate adjudicate arguments between the states or between the United States and other countries those were the basic three functions of the Supreme Court and as Alexander Hamilton wrote in federalist number eighty one. This is in June seventeen eighty eight he said The authority of the Supreme Court of the United States which is to be a separate independent body the the power construing the laws. Well actually let me jump to the next sends runs in the first place. There is not a cell this Alexander Hamilton in the first place there is not a syllable in the plan under consideration which directly empowers the national courts construe the laws according to the spirit of the constitution or which gives them any greater latitude in this respect that may be claimed by the courts of every state in other words the Supreme Supreme Court in Hamilton's mind and this is how it was sold to people in the federalist papers and and how it's written in the Constitution the Supreme Court is the final court of Appeals Dell's but doesn't have the power to say this is or is not constitutional does not have the power to strike down laws a process referred to as judicial review or judicial supremacy primacy and in fact the part of the Constitution that specifically authorizes the Supreme Court Article Three Section two reads very simply in all cases cases affecting ambassadors these this is that other area where the court has original jurisdiction in all cases affecting ambassadors other public ministers in consoles and those in which estate she'll be a party the Supreme Court you'll have original jurisdiction in all the other cases before mentioned the Supreme Court. She'll have appellate jurisdiction. The final appeals court both has to law and fact with such exceptions. The word exceptions is capitalized in under such regulations in that word is capitalized as the Congress shall make so the court was basically the dogs and chickens court and in eighteen hundred three there who says a case that had to do with the judiciary act of seventeen ninety seven that you know without going into a whole lot of detail basically in this case the court struck struck down a law which had been passed by Congress and signed by President Adams President Jefferson or John Washington. Whichever it was in any case it was it was Washington was addition judiciary seventeen year any the court struck this law and Thomas Jefferson went absolutely nuts he he he wrote and I'll just give you a couple of quotes? These are in the book the opinion which gives to the judges the right to decide what laws are constitutional and whatnot not only for themselves in their own sphere of action but for the legislative and executive also in their spears would make the judiciary to spotting branch. If this Margarita decision be sound than indeed is our Constitution a complete fellow to say which is Latin for a suicide suicide the constitution this hypothesis Zamir thing of wax in the hands of the judiciary outrage but the problem he had was that he had won won the case and so he couldn't appeal his own victory and but there was such an explosion in eighteen three around the Marbury case that John Marshall who was probably the longest serving chief justice in history or one of them. Sir Never again used to dish a review in a inconsequential way in fact the the court just totally stayed away from this all the way up until eighteen fifty six the second time that they used judicial review for consequential the decision and that was when Chief Justice Roger Twenty decided that he would once and for all resolve the slavery issue in the Dread Scott what decision which of course causes the civil war led to the civil war exacerbated the our you know the the the movement toward the civil war so historically the court court did not decide which laws were constitutional which warrant historically the court did not strike down laws and historically the court did not write loss and and with those two exceptions on the I eighty years the existence of this country record never did any of those things they started aggressively doing doing doing that sort of thing in the in the eighteen eighties after the failure reconstruction and you know picked up some steam with the locker court in the nineteen twenties aw slowed down in the in the nineteen thirties and then went nuts again with the Reagan administration and and and we should say I mean I think you know the partly responsible for the failure of reconstruction frankly by by these restrictions on voting but but getting back to article all three section two has there ever been and so so the court asserts itself and takes essentially her rights if you will or duties that are not enumerated or granted to it by the Constitution Constitution. Is there ever a time where Congress says hey wait a second under section two we have the ability ability and I maybe this is what you're talking about in terms of like removing jurisdiction but we have the ability to to to limit the I mean the Supreme Court Shaw the appellate jurisdiction both as to law in fact with such exceptions and under such regulations as Congress shall make theoretically Congress. Should you know could say you don't have the ability to aw to conceptualize the second amendment. You don't have the ability to that. I mean could could congress strike down the civil rights exact yeah absolutely no way to signal the two different things so I mean does does can congress say you don't have have the ability to interpret the Second Amendment. It seems to me there on stronger footing to say you don't have the ability to if we have a a unanimous we have ratified the voting rights act section five. I mean you can't it's one thing for them to say you can't interpret the Constitution Constitution. It's another thing for them to say. You can't overturn our laws particularly if it's not you know off on like an explicit constitutional grounds. Maybe that was their argument with section five that somehow it was like a fourteenth amendment. That's ironic. ONIC was a constitutional argument that they made when they when they stripped the voting rights act and it's always a constitutional arguments. Sometimes they really have the shoehorned in but they recognize that that's the one area where they they have or have acquired or taken authority but Phyllis Schlafly and I used to talk about this a lot on the air she wrote a book called the supremes creams about this and she told me on the air on several occasions that back when Tom Daschle was the head of the Senate that in one of the farm bills he had included included a court stripping provision. I think it had to do with ethanol basically saying that the Supreme Court could not challenge this law now. I looked for that when I was writing in this book and was unable to find it but I I kinda gave up in frustration after going through you know hundreds and hundreds of pages of laws but where it gets real interest is in in the early nineteen eighties. The Reagan Administration wanted to overturn overturn two Supreme Court decisions. The first was the nineteen fifty four Brown versus board of Education decision that outlawed segregation nation and overturned the eighteen ninety eight D- You know separate but equal versus Ferguson decision. I'm John Roberts was was was in the was in the DOJ working on that well. We'll get to that just a second and then secondly they wanted to overturn Roe v Wade nineteen seventy three decision so ed maze hired this young lawyer to come into the Reagan White House and gave him the singular assignment to spend a year figuring out how without a constitutional amendment which is typically how we've overturned Supreme Court decisions without a constitutional amendment could a the an entirely Republican House Senate and White House overturned these decisions and this young lawyer worked on this and he came up with a rather substantial natural documents see. I've got hands here. See how many pages it is. It's like fifty. Oh It's twenty six pages. He wrote this incredible twenty six page draft in which he starts literally with the founders and the and the federalist papers in the Constitution and ends at the at the present moment and says yes under article three section two Congress Congress can easily pass a law which says that the Supreme Court may not review it and Congress could simply pass a law saying that you know segregated created schools are just fine in the United States and that women do not have the power to decide whether or not to have an abortion and that that report the report Kinda got buried. I don't think anybody's ever seen it before. I was amazed when I came across it and it was written by John Roberts himself who was working in the DOJ Jay at that time as you as you point out and he's now the chief justice of the US Supreme Court so you know the Reagan administration never did that any one of the things that Roberts points out in his this report is that doing this will create. It'll be like a nuclear bomb going off at DC politically speaking and you know it'll it'll provoke a constitutional crisis crisis 'cause no doubt the court will say no you can't do that and the in the legislature will say yes. I can and there is no mechanism for resolving the dispute between the court and the other two she branches the court has claimed that they have primacy that they're the they're the they have the final say in all matters and nobody knows how that would shake out but that's the last chapter of my book. It's titled in in Cases Emergency Break Glass right like you know if all else fails we can use John Roberts suggestion to get around the court. Now there's other things that are probably much less problematic like doing what FDR tried to do in nineteen thirty seven which is increase the size of the court which has been done a number of times over over the years both increase and decrease actually when when Andrew Johnson became President a member of the Supreme Court died in the first few months after he became president and he was going to appoint a new member and Congress which hated Johnson. I mean keep in mind. They tried to impeach him came within one vote of doing it. In the Senate Congress Congress got together and they passed a law saying that the number of members of the Supreme Court would go from seven which is where it was then down to six and so Johnson couldn't appoint quite a new Supreme Court justice and that lasted until Johnson left office as soon as he left office and the next president was installed congress came back and added a seventh persons of the supreme in court and that person was appointed by the next president. I'm sorry I don't remember who followed Johnson but whoever it was that's that's what happened and they might have been ulysses. S Grant Yeah and and so let let's talk about this. I mean you know and folks should read this to sort of follow the the court which which you know who largely again but for the Warren Court here a has been on the side of of of corporate corporate power of established power that may have been corporate power monied power. I mean throughout our history. I mean like you know yeah. Well like we say you know the dread. Scott Probably was one of the things that lit match on the civil war into far ars it brought about to head a sort of argument between the north and the South has to slavery flavoring the expansion of slavery and you know Wha- what what the the federal government what rights the federal government had in regards to this and and then we so as people read that let's talk about potential solutions like as you know the the I think you know the largely delete this a book like this creates the sets start to set the table for people to see that we have a structural problem with the Supreme Court. I know you go through this notion and you just talked about you know the the number of justices on the court. Let's talk about term limits and I'm curious from your perspective a what is the best result if you could snap your fingers and then be what is is the best approach to get to that result presuming that you don't have the ability snap your fingers and create this type of before right while the in a way what Franklin Roosevelt was proposing thirty seven was term limits. He didn't suggest that anybody would be removed from the court. Constitution quite clearly says that during times of good behavior which which might be an interesting exception with regard to Justice Beerbaum weenie waiver but in any case during times of good behaviour judges federal judges whether it's the Supreme Court or any other federal judge have lifetime appointments. It's just period so so the question is how do you get somebody off the Supreme Court by retiring them. The question is how do you move them into some other federal judiciary position and and the what Franklin Roosevelt suggested was the all the justices over seventy years old which at that time was five five of them would would become one would would end up with one vote. They would all become justices emeritus collectively they would have one vote and that new justices will be brought into the court to make the missing four votes and so that's one way to do it. They're still on the court. They just have their roles roles change. They've been regulated by Congress and that was presumably entirely constitutional. The way that is being talked about more frequently these days you know by a progressive activists and democratic politicians is saying that after a certain number of years on the court a AH justice moves off the Supreme Court and back into the federal into the federal bench there they would go back so they came out of the ninth circuit and went to the Supreme Court they go back to the ninth circuit typically the DC circuit or the first circuit but you know wh wherever they go back home where they were but there's still a federal judge they still have a job for life and and that he would try to do this in a way that the justices are retired in a staggered fashion so that every president president had you know every four year term of a presidency has an opportunity to appoint one or two Supreme Court justices guaranteed assuming you know and that it only because a larger number than that somebody dies or retires untimely all of those are viable yeah I mean I think Matt Ford in the New Republic had had a scheme game that I've I've heard other schemes that involve that notion of rotating maintaining their lifetime appointments to the judiciary just rotating them through different places in the judiciary between the the appellate level and the Supreme Court itself. What what is it about when we here. FDR's court packing. There's a lot of people who talk about it. As if it was apocalyptic and it was it was does an affront on democracy and that it was very dangerous. You know there's there's there's definitely that notion out there like that's such a radical idea. Where does that come from that comes out of the Republican Party. that is a historic it doesn't comport with the actual historical record although Yeah I. I think I've told you this story back when I first moved to Washington. DC years and years ago or you know started doing our show from DC. This is like you know fifteen years ago or thirteen years ago something like that I I was given a tour of one of the conservative think tanks and I was down in their basement and there was this large Jerome with maybe twenty thirty people sitting at computers and as I was walking around the young people work on computers as I was walking around pretty much aww mad wikipedia up and they were editing wikipedia pages just to the Food lickety-split and it's amazing to me in writing these books as I'm doing research. The first one was on guns. This wants on the Supreme Court that WANNA coming out in the spring is on the war on voting one. I'm wrapping up right now as monopoly how often I find just this naked right wing bias in wikipedia entries whether it has to do with the Great Depression or smoot-hawley or the presidency of Franklin Roosevelt or anything else on this the simple fact is that FDR was pushing through a bunch of progressive reforms in first term nineteen thirty three to nineteen thirty two to January to March. Damn January thirty seven and and the Supreme Court kept knocking them down. He passed a law that said Child Labor was illegal Supreme Court declared unconstitutionally created the American Reconstruction Agency. I forget the name and which included long-term Unemployment Insurance Sheri- and you know the the WPA programs like this that that would have provided long-term jobs to people sprinkler knocked them down and over and over and over again at the Supreme Court was knocking these cases down in thirty seven the Supreme Court was set to hear social security and inch so America was just absolutely on edge. The majority of Americans loved Franklin Roosevelt. He was overwhelmingly popular and he had a strong democratic the House and Senate but the Republicans were hysterical. They were convinced the social security socialism that we had started down the road to communism that we were on our way to become in the Soviet Union that long term unemployment insurance that child labor laws all of these things were were proof that FDR was a communist and so so FDR realizing that social security was on the line and not just social security also the the Wagner Act was going to be decided food in the court term of thirty seven which was the National Labor Relations Act which made it legal to have a labor union and so the stakes were like really really high and so knowing that the court in all probability would strike these things down started doing a sales pitch for expanding the number of members of the court and The blowback from the Republicans was absolute screaming hysteria but when you go back and actual read actually read histories of the time and I quote them rather extensively in my book you find that the majority of the public actually supported FDR and he could he could have done on it the thing that pull the plug on it the reason he didn't do it is that the two of the justices there were there were four justices that were constantly they voted against him on every single case they can usually get a fifth one to come along they referred to themselves as the four horsemen the two of these justices changed their mind signed in one of the critical decisions in thirty seven right in the middle of FDR trying to sell his court packing scheme and it turns out and this was something I found in a in a correspondence the Francis Perkins had their sister turns out that Francis Perkins had a conversation with his wife and it was was probably the thing that turned him and so once that happened the court started agreeing with FDR agreed with him on social security they agreed with him on Labor labor unions and he was left with no political constituency anymore right yeah it was no longer emergency and so he abandoned his court packing scheme he was defeated by the way that you'll if you read it on Wikipedia and some of this revisionist right-wing bs what you hear is that you know the the Republicans successfully fighting back no not the case well. I don't hold out a lot of hope for someone convincing Ginny Thomas to to impact the future court decisions so we may be looking at and so so from a strategic standpoint. What what do you think you're advising President Sanders or President Warren God willing God willing. What do you advise them. Let's just assume that they have the Senate to I mean what from a strategic standpoint. Do you go for expansion of the court or do you say I'm going to threaten expansion the court to get to get term limits or the Congress should vote to to narrow the the the jurisdiction. The Supreme Court has uncertain issues. What what do you choose in thirty seven there. The public opinion polling was not as developed as it is now but there were there were among a number of ways to measure public opinion and just twenty years surly when the lochner court was striking things down or taking right wing positions they were still viewed as a credible legitimate institution by thirty seven the majority of Americans view the court the Supreme Court as a political by and the Warren Court kind of pulled that back and and and really the the thirty seven thirty eight going forward court the Supreme Court kind of regained their own credibility over the years but I think we're at that point right again where the majority of people see the court as a political agent and so asks such my advice would be do all of the above proposed legislation that includes court stripping provisions go after the court with proposed term limits proposed expanding the court I you know I would assuming that the and this is a huge assumption as Sam assuming that in the election of two thousand twenty that not only do we get the White House but that we get a substantial majority Jordan on the House and Senate and if that's the case then I would go for not just the cosmetic changes and not just the fight of the day I would go for major permanent long term structural change well like you said God willing Thom Hartmann it is always a pleasure we will put a link link to the hidden history of the Supreme Court and the betrayal of America at majority dot. FM always a pleasure. Thanks so much time. I really appreciate it. Thank you SAM. I orange always enjoyed talking with. You and I really appreciate your having me on welcome back Michael Brooks here. We're going to go to the fun half and take well. Go over bunch of sound. Take some calls. Take some Miami's you know how do Monday I start by saying become a member of the majority report today majority dot. FM Slash become a member. That's how this whole thing's happens. It just coffee dot coop fair trade tea coffee or chocolate. Don't hear much about the chocolate action action does he used to say that my wrongs does say that but this for some of actually listened to it and I've never had any coffee from them. We haven't had chocolate from or chocolates. Are we drink the coffee. Their coffee fuels the operation no yeah that's what I'm saying. I haven't had the chocolate. I wonder what that will investigate instigate the chocolate. Let's do it. I like it folks. Go check out the Michael Brook. Show today tomorrow. WPRO big show and accoceberry joins us to get into the details of why we need single payer healthcare housing for all. She makes a strong case for impeaching the car. I'm giving you a guide of all the political factions inside Palestine and Israel as well as this incredible audible speech at the UN General Assembly by the Prime Minister Barbados whole bunch of other stuff this Sunday an a lease elicit history of counter hegemony and the new partnership between the State of California and China on Climate Change Patriots Dot com slash. GS Michael Brooks show on Youtube and grab your tickets today. November twenty third very excited live show in Philadelphia a crystal ball Emma Viglen artesia ball throb and in two other quick things. I'll just let everybody know I was on with crystal ball this morning on the hill you can check that out and just had a piece co published with Ben Burgess and the Jacob Robin on how Bernie could answer the disingenuous question on Venezuela by actually giving a really broad answer on US interventionism in Latin in America that connects his really brave and smart and correct stances that he's taking on foreign policy with a more more holistic answer as to why like why can't then as well. It'd be like Sweden I wonder go check the peace out all right Jamie. What's cooking this week on the Anti Fatah we speak with Najah Gyo an organizer from no new jails? NYC about what prison abolition ISM means and in theory and in practice and the current ongoing campaign to close rikers and not replace it with anything instead reinvesting the money in communities unity's and going through decarbonisation measures and I'm really excited about that. Also we have a live show coming up October tober twelfth at Littlefield here in Brooklyn and Littlefield is in just even closer to the industrially ravaged average go on is canal. God Heartland America. Yes yes yes. That's a go on his Brooklyn. USA and we are doing this show with our goth socialist sister show pod. Damn America that's Jake four as Alex attack and Anders Lee. We also have some really amazing. I'm good ask guests. Including Fertile Texas Matt Krishnan Simone Norman Leslie Lead the third and Comrade Barbie so and the last one by the way is communist drag. Queen says not Brennan's all three go. I mean we'll see yeah. You never know you have to come to do the show to see if you recognize. Comrade Barbie very dope so yeah. Get your take me. I'm comrade bobby. It's Sam A for literary hangover. I released on the weekend. The first time I've done a book solo did a hub hub a mock a tale of early times by Lydia Maria Child who who cornell west. Yes has said we must read Cornell. West says we must uplift or she was early feminist abolitionist and I mean she's great. She also wrote like the Frugal Housewife guide to Larry some some book like that which was a sort of more every person that basically how you deal with poverty and eh getting by in not just people thought it was tasteless because it's like you shouldn't talk about that sort of thing so yeah like women shouldn't have to like you shouldn't acknowledge that you deal with poverty okay so she was very very good. a role model. I talk about her first book which he wrote when she was like twenty two and it was basically a response to gyms Finnmark Cooper's the the pioneers and maybe a little bit more interesting but people can be the judge of that so check that out habemus assassinating all right folks we will see you on on the funhouse left us that Jamie Amy and I may have a disagreement yeah. You can't just say whatever you want about people. Just 'cause you bitch. I have an absolute right mark them on Youtube up there buggy wedding. He's the boss I am. Not your employer negatively. I'm sorry I didn't mean to upset. you nervous a little bit upset. You riled up yeah. Maybe you should rethink you think you're defensive at your walking idiots which is going to get rid of you all right but do do do. Do you want to smoke his joint right yes. Do you feel like you are a dinosaur shit exactly. I'm happy now to win win. It's a win win win. listen to me two three four five times eight four seven. Oh six five zero one four five seven six twenty seven one half five eight three point nine billion also. Don't you see why she got a real job instead of doing limbaugh. Everybody's taking their dumb juice. I Sami Dance Dance at my I coast with a woman and hoping that more moves to my repertoire all I have to dip into squirrel. Yes this is a perfect moment. No wait what you make under a million dollars a year gum. You're not paying us. Fuck you. You fucking you belong in jail. Thank you for your part. Quick break or take a moment to talk to some of the Libertarians out there they would ever vehicle you want to drive to the library. You're talking about his elastic. I'm feeling more chill already. Donald Trump can kiss all aces' Andy as it no death to America. Wow Wow that's unbelievable. The guys who I gotta get element to flush this out a little bit I mean look. It's a free speech issue. If you don't like me shut up. Thank thank you for calling in to the majority report. Damn will be with you shortly.

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The History of Policing in Cars

Deep Background with Noah Feldman

28:06 min | 10 months ago

The History of Policing in Cars

"From Pushkin Industries. This is deep background. The show where we explore the stories behind the stories in the news. I'm Noah Feldman are you one of the forty nine point three million Americans who hit the road this thanksgiving. Are you perhaps listening to this in a car right now? If either of these things is true this is definitely the episode for you. We're here to talk about how cars have shaped the history of policing in America. And how the space of the car has been fundamental to the definition of your rights under the fourth amendment of the Constitution. Specifically your right to privacy to discuss this. We're talking to Sarah CEO. She's a professor at the University of Iowa College of Law and she's the author of policing the open road. How cars transformed American Freedom? Sarah thank you so much for joining me in reading your book. I was really struck. The first thing that struck me and maybe they should have been obvious to me before but it wasn't is that probably cars are the single most significant technological event of the last Hundred Years in American life. I mean we talk a lot about the Internet. We imagined the transformation of social media so enormous. None of it seems to hold a candle to the car as a transformative technology. Do you by that. I mean do you think of the car is really the be all the end? All of technological change making the computer look kind of secondary in the twentieth century. We call the automobile age like the Bronze Age right. And so we've defined that century as defined by the car and how it transformed our life our culture The way our cities like the way our countryside looks so my answer would be yes. It completely transformed almost every aspect of our life. I WanNa talk about the idea of privacy and how it has evolved over the course of our century or the last century really in relationship to cars. And you say some really fascinating things about this. Starting with the idea that the idea of privacy as a fundamental right was really just getting started in the United States around the same time as the rise of the automobile. Probably initially almost by coincidence but then once those two ideas met up things got tricky because according to the pre car conception if I was inside my home I had a right to privacy and if I was outside on the street. I didn't have a right to privacy and cars. Raise the question of are you at home or you on the street. So say something if you will about how courts and a society tried to get a grip on that inbetween nature of being in your car. So what are the main famous of my book is that cars are just a completely new space and both judges and ordinary Americans. Were trying to figure out what this new space exactly was. So the way that ordinary Americans experienced cars was kind of like an extension of their homes. They saw the car as a parlor or their boudoir right. A young people Moved from the parlor to the car to date and to get to know each other. Are THOSE EUPHEMISMS? I mean. Wasn't there also just an in prior generations to ours? Wasn't there's a lot of sex in cars at a time when people live with their parents and they didn't have other places to go with. I mean the whole notion of parking and I mean it's nice to say if you're getting to know each other but that's not all right so actually on that there's a one of the first hit songs out. Cars was composed nineteen o five where The lyrics asks Lucille to come away with me in my merry oldsmobile. Go as far as you like with me and Mary Oldsmobile. Hours you live with so definitely. There is a lot of sexual innuendos in that nine hundred zero five song. The dating couples could escape the prying eyes of their parents in their homes in the parlors and go off for a Sunday drive and do whatever they like as far as they want to go And so that. There is a notion of privacy Sexual Privacy the privacy of the family going on Sunday drives together bringing the family together. A advertisements actually marketed the car as an extension of the home as a the domestic earth. Where the family got together But the way that government officials judges And leaders Fahd of a car was a bit more complex or complicated. If you go back to the moment when cars. I rolled off a assembly lines. The assembly line and Standardization really allowed a lot of cars to be produced and to be able to be sold for very Affordable price so this is the story of Ford and the Model T and suddenly. There really are cars everywhere. Exactly so this is W- what was so unprecedented about the mass production of Carson's that's so many individuals were able to own their own form of transportation. They could no. They no longer had to rely on public transportation or walk and so what happened. Was that all of a sudden. There were hundreds and thousands of cars on streets were really intended for a few carriages or the trolley And mostly pedestrians and so it created mass chaos on public streets and when there's public danger to all then that The government to exercise power to legislate for the public safety and welfare. And so the way that Lawyers and government officials thought about cars. Was they pose a threat to public safety? And so we need to regulate the use of motor vehicles and we need to increase our powers to make sure that we cut down the accident. Rate bad everybody drives in a coordinated fashion so that traffic can move and so they were seeing this as something that needed to be regulated. And so when you have government regulation that starts interfering with individual privacy. So you're saying that. The advertisers said. Hey your car is an extension of your home and certainly after dark. Courting couples used their cars as a kind of extension of the home. But you also pointed out that because of traffic regulation then that meant that cars came under the regulation of the government in a way that the inside of the home might not or might not in the same way. When are the first times that the court start grappling with the question of whether when a policeman pulls you over for a traffic violation? The police officer is authorized to use force to either. Look inside your car or to pull out of your car right away. So what happened. Was that the mass production of cars. Coincided with prohibition so states were outlawing liquor starting from mid-nineteenth century through the late nineteenth century. And then we had The National Prohibition that was ratified in Nineteen nineteen and so really. Those two things happened at the same time and More law enforcement agencies wanted to stop and search cars for liquor And so the issue of how much power law enforcement officers had to stop and search a car a because they suspected that there was liquor inside that was contested from the very beginning. And how the courts I begin to rule on that was there a trend at the beginning. That then changed or was it pretty consistent from the start. It was pretty consistent from the start. So distinguished. How courts treat a prohibition cases from the way they treated carcases Because prohibition was contested from the very beginning right people thought that they had a natural right to drink alcohol even Jesus even cheese as turn water into wine. Robinson crusoe had wine to drink to natural and so- courts were starting to Change Their Fourth Amendment Jurisprudence on Fourth Amendment Governs The places search and seizure powers and they were starting to provide more protections to individuals in prohibition cases and then you have The coincidence of mass production of cars and national prohibition and so those cases were coming together and that's when you start having the government argued. This is really not about liquor. These cases are really about a fighting crime because cars changed the whole entire Calculus on crime commission and Criminal Law enforcement. And that's when you have courts uniformly decide that they need to increase the police's power to stop and search cars so the outcome in other words is from the start that the cops have significant discretion to stop the car and see what's inside exactly now. Certainly there were vocal defense. People who thought a car as private property and the Fourth Amendment protects a private property from warrantless searches and seizures and cars fit under that protection. So there were dissents by uniformly throughout the country and I looked at State Court cases and federal court cases uniformly. They all decided that the police needed the power to stop and search a car without warrants and did the police have to show that they had any reasonable suspicion to do that. Or was it enough for them to say We don't like the look of you. So that's a really interesting question because courts have held that cops need reasonable or probable cause to believe that there was something illegal inside the car now from the very beginning. Commentators criticized that rule. Because when you say that a cop needs reasonable or probable cause that's not a standard of certainty right and so if you allow for reasonable probable cause you're also allowing for instance where the cop could be wrong Because they don't have to be certain about it and if a cop can be wrong if a standard allows a cop to be wrong then it sort of allows a cop to make things up a little bit And that's exactly what happened enforcement jurisprudence. There's a reasonable or probable cause standard found allows a lot of leeway to the police to bolster their case that they had reasonable or probable. Cause so fill that in a little bit because now we're getting very close to the meat of you know the the archetypal scene of the cops pull somebody over. Probably a young African American male in our in our archetype and the question arises of whether the COP has probable cause to search the car. Fill it in a little bit. What what counted historically and what counts in the law today as probable cause and how has that changed while so the first thing I should say about what probable cause is is that we don't really know the courts have refused to put a number on what probable causes? So if you think about knowledge or the standards of proof that the state has to have before they take action We can start from zero. They they have nothing on us to a ninety nine percent proof beyond a reasonable doubt right and The proof beyond reasonable doubt the necessary standard to convict someone of a crime now probable causes somewhere below. Vats and courts have refused to put a number on what that amount of certainty as the best way that they've described it as it's a matter of probabilities more likely than not but there isn't that let me just ask you about that. I mean when I hear probable cause I hear more probable than not and I hear fifty percent plus a smidgen. Am I hearing that the wrong way? That's one way to look at it except that the courts have refused to say that it's a Smidgen more than fifty percent and the here's the reason why all of this matters is because fourth amendment challenges a challenge to a police search of a car for instance only happens when the person is guilty when the police found something in the car and so when a fourth amendment challenge is made a judge is looking at a guilty person who was caught red handed. And of course when when you're faced with that scenario it's much easier to say. The police have probable. Cause 'cause obviously they found someone with Alcohol under cars are now today drugs in their cars And so the whole calculus is a bias towards a finding probable cause because judges aren't looking at the cases where innocent person has been searched or. The car has been searched. Will we sometimes are right? I mean we sometimes are. I mean the Sandra blend case is an example. Of how in a certain outlying as we look at an instance where somebody has been stopped and then when something terrible happens we say oh my goodness you know you should never have stopped his person in the first place or at those moments if our history where we focus on Racial profiling or other illegitimate means of stops. Then we take a deep breath and we say well wait a second. Should these stops have been allowed in the first instance? I mean I completely agree with you that on in an ordinary judicial situation if the COP searches UCAR. There's nothing in your car. They'll let you go so it doesn't come to court so I get your point. I think it's a very powerful and important point but there are moments. Aren't there where we doing gauge in the question of what should be sufficient cause for a stop in search. No I don't think we do. And thus knitting and and let me try to explain why I feel that way. so Sandra blonde to remind listeners of fat Tragic incident She was arrested and she died in her jail cell three days later and she was pulled over for a minute traffic violation. Nobody challenged that. And this is something that I cover my buck from. The very beginning of mass production of cars cities towns past volumes and volumes of traffic laws governing. Everything from necessarily traffic equipment to when a car can make a right turn and a violation of any one of those traffic. Laws allows the police to stop that car. But I feel like there is a real debate out there in the world today about whether it's okay for police departments to use theoretically neutral rules like you know you made a turn without signaling which. I think the case the claiming the central bland case and if cops are using those but they're applying them in a discriminatory fashion. They're applying them to the people who get pulled over are disproportionately African Americans. Let's say or Latino then you know I do have the feeling that people do think in the world that many people think that there's something wrong with with that that maybe having a broken tail. It shouldn't be grounds to be potentially arrested. I think many people and I can include myself in. That agree with you. But that's not where the law is. The law still assumes that if you've committed even the most minor traffic violation your it's legally justifiable to stop you and potentially to but would it be potentially permissible to search your car under those circumstances. So let me backup. The court has said in nineteen ninety six in the case run versus United States. That if a COP pulls over somebody based on pretext so the cop thinks that the driver has drugs in the car but doesn't have probable cause then the cop can't stop that car right. 'cause probable cause is the necessary requirement. But the COP can use a minor traffic violation to pull the car over that kind of pretextual car stop is a okay according the Supreme Court so the COP pulls over a car for a minor traffic violation then the next question is can the COP start searching the car for the drugs that he or she suspects and this is where we get to the fuzziness of the probable cause standard. It's really easy to fight. Facts that support probable cause. I looked at one of the best selling. Please textbooks on what they call criminal patrol how to do drug busts using traffic law enforcement and they say probable cause is actually a very capricious standard. A lot of things you can think of to meet that standard like suspicious odors right. I smelled marijuana. How are you going to prove that in court? It's the officer's testimony right. And if the officer finds a marijuana but then yet sounds right. The officer smelled it. And so it's it's really easy to meet the standards for warrantless car search because of the volumes of traffic laws that everybody violates at some point. I get what you're saying. But you're also describing. Aren't you a potential distortion? The possibility which always exists of police distorting the truth were were lying in some other way right. I mean as the as again ozark tip. I keep on thinking of the Jay Z. Song Ninety nine problems in which he's he's replicating the structure of a pullover and he says you know you think that because my hat's real low that you know you can search me you can't I know my constitutional rights I mean. I'm paraphrasing now without anything like Geez flow but the basic idea is that the cops don't have the constitutional right to search. Jay Z wants you the listener of the song to know that you know. I teach that song when I teach criminal procedure and we go over verse to verse. Two is the car stop. Bad actually happened in real life to Jay Z. So he sings a version of that in the song you know won't stop some young enough black and my hat's real do I look like a mile per hour and we and I go over what he gets wrong about the fourth amendment. Ginger share that with us. So He's right that there is racial profiling that goes on especially at the time when he Experienced it for himself. There was a drug courier profile with traits that were associated with black men that highway patrollers were Instructed to look for when they pull over in their drug interdiction programs and so he's right as a matter of social reality that they were profiled as a matter of law. That's okay under the run case that I just mentioned found other things that he gets really wrong. He sings that the companies go get a warrant to search his car. Drops O- with trump no rice. That you need a one for that and that is absolutely not true. The cops do not need a warrant. It they don't need if they have if they need. They need if they have probably because they don't need to actually go and get a warrant for their probable cause exactly but according to the textbook the police textbook on criminal patrol getting probable cause for warrantless car. Search is super easy and in fact the textbook says the fourth amendment is your tool in criminal patrol the cop or the highway patroller. Who doesn't good job doesn't see the fourth amendment as an impediment they see the fourth amendment as opportunities. And that's actually one of the main arguments of your book as I read it that Especially lawyers like to tell maybe especially law professors. We like to tell who roic stories about how the Law protects people but in fact to law that regulates search is as much a law that enables the cops search as it is a law that limits. Those are I think that's a hugely important point but it has a kind of complex interaction with the car doesn't it? I mean the car has never really been a true sanctuary. It's always an in between space that subject to a fair amount of police. Surveillance and governmental regulation isn't isn't that a fair description exactly And that's one of the tensions that animates my book is that in American culture. We celebrate the car the freedom machine but when we look at the legal history the loss treatment of cars. It's heavily regulated and heavily pleased. And You bring in You mentioned the conventional story that we've told about constitutional law about the fourth amendment and. That was one of the questions that I had when I first started this project. Is that the conventional story that I've always learned as a law. School student is that the court has been the protector of our individual liberties especially the warned court. The Warren Court was considered one of the most liberal courts in Our history that's the Supreme Court under the under the chief justice ship of her award in the in the nineteen fifties sixties. And into the early Seventies. Yeah exactly. Right and the Warren Court started what we now refer to as a deep process revolution revolution right a revolution to give individuals more rights under the Constitution and this was a progressive triumphal story that I've always learned starting in law school through Grad School. But I was always confused because I was starting to also read about problems with the criminal. Justice system and mass incarceration that disproportionately affects Minorities and the poor and I was so confused because the Warren Court's due process revolution was supposed to help those groups but a generation after the due process revolution. Those groups are the ones who are disproportionately affected in the criminal justice system. And so what happened and that was one of the questions that I had when I started this project and I've realized our conventional story history that I've been told we only looked at certain landmark cases. We only looked at the cases that dealt with invasions the home. We never looked at the cases that involved the police's power to stop and search cars. And so if we look at those cases we see quartz from state courts to district. Trial courts all the way up to the US Supreme Court they always reliably grant the police more power more discretionary power. So I WANNA ask you for a final question Sarah just to put on your futuristic goggles and picture the driverless cars the self driving cars that you know may not be right around the corner but are there on the way and imagine writing you know after your book becomes a bestseller and wins all the prizes They ask you to publish an updated edition in fifteen or twenty years with a new chapter on driverless cars and the law. What do you imagine? The big issues are going to become for regulation in a world where. I'm not actually controlling the car anymore. Well it's going to really change fourth amendment practice Not necessarily the law but practice because much of criminal law investigation than vestige of drug losses specifically happens with a minor traffic violation and if autonomous driving cars are programmed never to violate the traffic laws. They will be programmed for right Me Too then. That means that the police will need probable cause of some sort of violation other than the violation of a traffic law. They will need probable cause that the car contains contraband or other illegal substances. I want to if I want to buy drugs and Florida and drive them up. The I ninety five Carter to the northeast. What I should do right away is by myself. A Tesla exactly that never violates the traffic violations because the police need probable. Cause you have drugs in it? And how will they know unless they saw you actually putting drugs into the car? That's really the only situation that I can think of that announced a probable cause and so the whole criminal patrol. That's based on a minor traffic violation that will cease but that privacy intrusions couldn't come in and really unexpected places right so I imagine these autonomous cars will be outfitted with GPS devices and all sorts of The Internet of things Right Talk all the other cars. And they won't work unless these traits other right exactly and all of that talking to other cars contracting with a greater network that's connected through the Internet and cloud and all that And you know cars basically new cars today. Basically have computers installed them them right that are connected to Internet all that is connected to the to the greater public right And so The way that courts are dealing with questions about what is public and private that talk about in the history of cars. They're struggling with that still today when it comes to smartphones The cloud and the Internet and all of that will be bundled with a Thomas. Driving cars too. So it's going to be an issue that will have a second version So there could be a volume two there you go. I'm looking forward to reading it. Sir Thank you so much for this really fascinating conversation for your really thought provoking and terrific book. Thank you talking to. Sarah really brings into focus. How absolutely central. The automobile has been not just to every aspect of our lives but to the question of our freedoms in the United States to the question of privacy to race to almost all of the most fundamental issues that we struggle with when it comes to the definition of our rights going forward it seems the technology of cars will both be always the same an ever changing. It's always the same in the sense that just has been the case for more than a century. Our roads our spaces are defined by cars. We spent time in cars and the police will continue to observe and regulate our actions while we're in cars but slowly and gradually as our cars become self driving. The technology is going to change the way that our government and our police interact with us in cars are privacy may gradually return our violation of traffic laws will almost certainly decline and the government will have to come up with new ways of thinking about how it regulates us and we will have to come up with new ways of exploring our freedom. Deep background is brought to you by Pushkin Industries our producer. Lydia gene caught with engineering by Jason Gambro and Jason Rostenkowski are show runner. Is Sophie mckibben? Our theme music is composed by Louis. Gara- special thanks to the Pushkin Brass Malcolm glad well Jacob Weisberg and MIA labelle. I'm Noah Feldman you can follow me on twitter at no are Feldman. This is deep background a last note today deep background is taking a holiday break. We'll be back with a new season in the new year.

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Stacking the Courts with Dahlia Lithwick

Why Is This Happening? with Chris Hayes

1:02:52 hr | 7 months ago

Stacking the Courts with Dahlia Lithwick

"Conspiracy theories government deception and alternative facts. This is the subject of an EPIX original docu series about Watergate. This is slow. Burn based on the award. Winning podcast host. Lyonnnais faulk explores the conspiracies deceptions and the stranger than fiction. People that set the White House on fire watch slow-burn every Sunday night at ten nine central only on epochs. I don't think that generally I've seen a lot of resistance at the Supreme Court level. To the way that this jeff sessions and bill barge system apartment have been sort of careening through history trying to break stuff. Hello and welcome to wise happening with me your host Chris as I just got a chance to see amazing documentary. I'm hoping we have the directors on at some point. Let's call it the fight and it's about the first several years the trump administration and the ACLU and it's a dear friend of mine at least Steinberg is one of the filmmakers. She also was one of the filmmakers on Weiner and the film follows a bunch of ACLU lawyers through the first two years. The trump administration including early footage of legal learnt their immigration attorney. And who's been on this podcast coming out of the Brooklyn Courthouse to get an injunction on the Muslim ban? That first weekend was instituted and in the background of the shot is your humble. Podcast Chris Hayes. Who had gone there to report on it and I'm actually calling in to MSNBC at that moment and it's a really great movie and you know the conceit of the work that they do in the ACLU and chase strand. Joe Is another figure. Who's been on this? Podcast is that the courts means something in America and one means of preserving rights for people is struggled through the courts. And I think there's been a lot to credit that view in the trump years been a lot of things. The trump administration has tried to do that. The courts have been like no can't do this this doesn't pass muster but something worrying has been happening as time has gone. Which is that the further up the chain. They've gotten the more licensed they've been granted by the courts including the Supreme Court which has given them a whole lot of green lights to do a whole lot of terrible stuff and not only that the courts are not a static entity are a group of judges who are constantly being replaced by the most ambitious pipeline of judicial confirmation. Basically in the nation's history they smashed all kinds of records in terms of the amount of judges. They've put on districts courts at an appellate courts. They obviously already have two Supreme Court justices that have sort of definitively kind of flipped the balance of the corridor at least cemented if I four conservative majority. If Donald Trump is reelected they will lock down the Federal Judiciary for the next twenty years. The Supreme Court the Appellate Courts. It's it's all basically gone and there is so much horrible wrong that a court can do. I think that there's a. There's something that happened to liberals. Which is that because of the rights revolution. That happens in the Warren Court because of decisions like Brown v Board and Roe V. Wade I think liberals generally come to see the courts as favorable as allies in a fight for progress as protectors of minority rights. But that has not been with. The federal courts have been throughout history. The federal courts have been largely abashed of reaction through most of federal history. I don't think it's an overstatement to say that I mean plessey versus Ferguson. Is a good example. Komatsu is another. There are tons so now arrive at a point where like this fundamental question of what the courts are are the courts. Just another political player. Are they just another political entity in the Hobson struggle for power? That is America in the twenty first century in this polarized electorate. Are they something more elevated is it? Do we lose something if we see them as these kind of political actors are we losing the thing that makes them special. Are we doing what? Donald Trump does when he calls it know Bama judge or are we being realistic about the actual like political machinations that produce the court and the court is a political player. All of these questions. We very heavily on my mind and I wanted to talk about the someone. I've known forever and admired forever the great writer and Podcast Dali Olympic. She's senior legal correspondent for slate. She's hosted sleep. Podcast AMICUS as you'll see in this conversation. I've known for a long time. She knows my wife very well. We end up talking about kate for like half. The podcast and Delhi is so fascinating. Because I think if you've listened to the podcast I've done with Kate. We've done two of them. You know and I talk about Kate. A lot on the podcast because obviously she's probably more influential. I think than any other single person but you know. Kate really is very clear eyed about the law but has a real genuine faith in it that I find like inspiring invigorating and Delhi. I think is like reached a little bit more of a crisis of faith like a little more broken about her faith in the courts and the law and so she's an interesting voice to be in dialogue with around these questions because like as we go through this election it just cannot stress enough. That like when you WANNA come down to like what is the clearest thing the difference between Donald Trump will her runs his donald trump that the supreme court will be gone for a very long time and feels remote or abstract to talk about that but that means row is probably gone. It means a lot of the basic fundamental civil rights and voting rights protections. We have probably gone. The modern administrative state is probably gone in its current form really. That sounds alarmist. But I honestly think that's what's on the agenda and so this is an extremely important moment to have this conversation longtime I've been a fan of yours forever. You're my second favorite legal writer in the world to be clear. I demanded that introduction. I wanted the the H Minus the wife of your wife and mother of my children because that would be weird canines funny kate night. Even when she was a law school we would like read your columns on the court and like talk about them and trade them back and forth and be like. Did you see this? Did you see what she said? So I'm a huge in Meyer of yours and there's a lot to talk about. I guess I WANNA start on. Impeachment actually wrote this op. Ed in the Times about how much it mattered. I thought was really insightful. Piece about how much it mattered. What kinds of arguments they made even if you assume acquittal is essentially for ordained and to be clear it's removals never happened in history the country. So it's not like crazy quirk right now. It's a very high threshold. She said matters if they're making essentially legal arguments. They're making me sort of like crass political ones and what kind of arguments are making and then you had a piece in sleep being like the arguments they're making are dangerous are like genuinely dangerous to the country. Why do you find them so dangerous? Well I mean I guess we should be clear that we're taping shortly after Alan Dershowitz said his. I think by I think the legal term is that Shit Then if I'm allowed to swear but I mean that really stood in the well of the Senate and said it can't be corrupt motive. It can't be an impeachable offense if the president did the thing he did because he just really wanted to get reelected because that's for the good of the US reelection national interest and again to be clear he seems to have sort of walked that back and now is is demanding Lincoln. Douglas style debates with every journalist who has misinterpreted characterized argument words. He said with his mouth but okay but but I I in a little bit. That article was re reaction to. I think they're just two things that he did. That I found very scary. One was in many many people. Call this out when he when it happened. Was you just can't say that as long as there's mixed motives as long as ninety nine percent of this was a corrupt motive in one percent was for the good of America then He can't be impeached. Because it really does. Open the floodgates for presidents to suppress the vote and have people aided and launch foreign wars. I mean there's you know anything is off the table and obviously that's very scary. The other thing that he did in this I actually remember talking to kate about Back when she was writing about presidential tweets and motive because the other thing. That Dershowitz did that. I find very destabilizing Chris is. He took men's Raya out of the picture. Right INTENT IS IS NO LONGER. Something that is subject to scrutiny. And you may remember you know some of the time I talk to kate for my show were when we were talking about whether the tweets whether the statement that the president made before the travel ban whether his antipathy toward Muslims on the campaign trail where there any of that mattered in establishing sort of anti Muslim animists for purposes of the travel ban and the argument that his lawyers were making even then two years ago in court. Were very familiar to what Dershowitz is doing. Which is it is not ours to probe the mind that we who are we to psychologists and try to understand the deep ineffable complexity of Donald trump right. Who is like basically Lizard Brain Complex? Yes with a twitter feed and so I'm worried about those two things acting in tandem because I he saying there can be no corrupt motive if he's just trying to get reelected and then going further and saying but really who are we in you know this jury to even ask what the president's motives were and I just really really worry that that is a kind of the phrase I use was sort of constitutionalising narcissism but we're all trapped in Donald Trump's brain. Were careening back and forth in his world of like I want this. I don't want this. I like this. This makes me grumpy and the idea that all of that cannot be subject to check because we can't ask ourselves what his motives are. What his mantra is. I find very scary. Chris scaring it's crazy making too and I think the Muslim ban example and Kate wrote this great law review article by presidential speech precisely in this question about using it as evidence of intent like I remember someone it was some law professor who said something like look if you're running a municipality and you pass a law that says you have to put your garbage out on Saturdays or face a fine like that's obviously fine if you do it. Because there's been a big influx of Orthodox Jews into your municipality and you want to send the message to them. We don't want you here and we're going to start racking up fines on you. You're observing the sabbath and won't put your garbage out. That's obviously not fine but the thing that makes it. Not Fine is the intent of. There's just no way around it so if you say well who's to say intent then you're just opening up th this crazy floodgates for all sorts of like persecution and oppression and misuse of government authority. And what's so funny is for the past two weeks I've been saying. Why are we even listening to Alan Dershowitz? He's not a constitutional law scholar. He's a criminal law scholar. But that makes this even more annoying. Because the predicate for white collar crime for so much of criminal law is understanding. That men's ray of that. Your mental intent is one of the elements like you can't just say and for the crime of the thing that I say is has to be criminal. There can be no MISRA or at least. The president somehow floats above the mental state. We can't even ask ourselves because that is wrong. I just think it's really crazy coming from a criminal lawyer. Because if you can't ask yourself did this person want to be part of this corrupt conspiracy or not. You can never prove conspiracy. It's nuts and so. It's particularly galling coming from him. It's more than that too right because it's the problem of all this proving too much. You know if the president were say not this president. But say let's say a president Had a crazed fan assassinate His rival who was serving the Senate on the steps of Capitol dark and that president. Well I'm jerk. Plays right now and that president were were to the next you know the persons arrested by the Capitol Hill Police. He's putting jail under the federal system. Right because he's on Capitol Hill and the president issues apart in the next day now clearly the pardon power within is absolute in the constitution. If you're gonNA come to me and say that's not impeachable. Yep well then we got a real problem like whoa you know. What are we doing and it seems to me. The logical entanglements of all the arguments are making that that wouldn't be impeachable. Maybe this goes to. I think the reason that you and I are sitting in a studio in our eyes are googling around in our head is because we're about to see the majority of Republicans in the Senate all sign off on this and I think the thing that happened this week. That is also kind of crazy. Making is we went from John. Bolton has to testify. There's new evidence there is no question. This is the one person that we didn't have right the center of the of the donut. Which was the guy who was in the room and knows what was said. And that guy's gotta be allowed to testify and somehow the way we've made ourselves okay with we don't need. New evidence is in the span of a couple short days. We've moved to this really terrifying place of we don't need new evidence we know what Bolton's GonNa say let's stipulate he's probably going to say the tunnel trucks part is completely corrupt conspiracy. There was only done to serve his own interests. And that's fine and there's been a lot of good writing by people who are sort of watching the degradation of the rule of law. The idea that we went from it didn't happen. It happened but it doesn't matter that's just a really profound shift and the sentence I used to trying to describe this to someone is they always say if you can't win on. The facts argue the law here. They can't change the facts. The Oh my God. They're going to change the law. Changing the notion. Of what intent is they are changing the notion of one? An impeachable offenses. They are now going to say. A president cannot be impeached. As long as he says he was serving the national interest by corruptly promoting his electoral. Like they're changing the law and the really upsetting thing about this to me is that it gets it. This sort of fundamental question about what what we mean. We say the rule of law because I think there is some sort of aspirational aspect to that. And there's also a live reality. I mean when you interview people who live in places. In which the rule of law really doesn't function Egypt under Hosni Mubarak thinking of this. Because I remember having a long conversation with the dissident about your ear you know there really is a difference between that system ours but the worry here right is that the aspirational idea of the rule. Laws that is restraint. It's binding restraint on power. The worst use of law is essentially a weapon for powerful two-wheeled and those two things are true in America. Sit side by side. Donald Trump has spent forty years using the laws weapons. I mean literally guys like installed his pianos in the Taj Mahal city. Who didn't get paid? And then he the the sued him and then he just ran out the clock in court and then he countersued and he's doing that now to the whole country the constitution. I mean you had up like like well if you call. One witness is going to be a million. And then that's going to tighten up the gun up the Senate that's hard to do nothing and we've seen it with Harvey Weinstein. We've seen it a lot of the me too stuff where it's like. You're armed with lawyers. You're armed with as your armed with these very powerful people that know how to like work. The courts sucked that they turn the court. They turned the law into a tool of shutting. You up or keeping you in your place and that to me always exists. So I don't WanNa be like you know over overly sort of optimistic. About what the rule on America means but it just seems like this is taking it to a new level. You went super dark. So I'm going there too and and I will say like one of the things that I've been reading compulsively in the last two years at the suggestion by the way of a judge said you should read. This is the number judges trials because you really realize what happens when you have a form. Right and institution of formal structure of judges judging and using their power for really evil ends. And it's just a useful corrective for me because I have been such a like Patty hearst fan girl of the courts you know my entire career. The courts are good. And they're just and you know they were a little off in the south if you were you know an african-american defendant within an all white jury stipulated but you know by and large. This is a machine that brings about justice and it's really helpful to go back and see what for a long time? I've been a fan of yours forever. You're my second favorite legal writer in the world to be clear. I demanded that introduction. I wanted the Kate Shaw minus the wife of your wife and mother of my children because that would be weird as Kate Nights. Funny Keaton I even. When she was a law school we would like read your columns on the court and like talk about them and trade them back and forth and be like. Did you see this? Did you see what she said so I'm a huge in Meyer of yours and there's a lot to talk about. I guess I want to start on impeachment. Kate actually wrote this ad in the Times about how much it mattered. I thought was really insightful. Piece about how much it mattered. What kinds of arguments they made. Even if you assume acquittal is essentially for ordained and to be clear it's re- removals never happened history country so it's not like some like crazy quirk right now. It's very threshold. She said it matters if they're making essentially legal arguments. Or if they're making me. Sort of like crass political ones and what kind of arguments are making and then you had a piece in sleep being like the arguments they're making are dangerous are like genuinely dangerous to the country. Why do you find them so Davis? Well I guess we should be clear that we're taping shortly after Alan Dershowitz said his I think by. I think the legal term is the had shit. Then if I'm allowed swear but I mean that really stood in the well of the Senate and said it can't be a corrupt motive. It can't be an impeachable offense if the president did the thing he did because he just really wanted to get re-elected because that's for the good of the nature of uses relection national interest and again to be clear he seems to have sort of walked that back and now is is demanding Lincoln. Douglas style debates with every journalist who has misinterpreted accurately characterized his argument words. He said with his mouth but okay but but so you know I in a little bit. That article was re reaction to. I think they're just two things that he did. That I found very scary. One was in many many many people. Call this out when he when it happened. Was you just can't say that as long as there's mixed motives as long as ninety nine percent of this was a corrupt motive when one percent was for the good of America. Then he can't be impeached because it really does open the floodgates for presidents to suppress the vote and have people assassinated and launch foreign wars. I mean there's you know anything is off the table and obviously that's very scared. The other thing that he did in this. Actually remember talking to kate about Back when she was writing about presidential tweets and motive because the other thing. That Dershowitz did that. I find very destabilizing Chris is. He took men's Raya out of the picture. Right INTENT IS IS NO LONGER. Something that is subject to scrutiny. And you may remember you know some of the Times that I talked to. Kate for my show were when we were talking about whether the tweets whether the statements that the president made before the travel ban whether his antipathy toward Muslims on the campaign trail where there any of that mattered and establishing a sort of anti Muslim animists for purposes of the travel ban. And the argument that his lawyers were making even then two years ago in court. Were very familiar to what Schwarz's doing which is it is not ours to probe the mind that we who are we to psychology and try to understand the deep ineffable complexity of Donald Trump right who is like basically lizard brain the complex with a twitter feed and so. I'm worried about those two things acting in Tan because I he's saying there can be no corrupt motive if he's just trying to get reelected and then going further and saying but really who are we in this jury to even ask what the president's motives were and I just really really worry that that is kind of the phrase I use was sort of constitutionalising narcissism but we're all trapped in Donald Trump's brain. Were careening back and forth in his world of like I want this. I don't want this. I like this. This makes me grumpy and the idea that all of that cannot be subject to check because we can't ask ourselves what his motives are. What his answer is I find very scary. Chris it's crazy making too and I think the Muslim ban example and Kate wrote this great larvae presidential speech precisely in this question about you know using it as evidence of intent like I remember someone. It was some law professor. Who said something? Like look if you're running Paletti and you pass a law that says you have to put your garbage out on Saturday or face a fine. Like that's obviously fine if you do it. Because there's been an big influx of Orthodox Jews into your municipality and you want to send the message to them. We don't want you here and we're GONNA start racking up fines on you because you're observing the sabbath and won't put your garbage out. That's obviously not fine but the thing that makes it. Not Fine is the intent of thing. There's just no way around it so if you say well. Who's to say intent? Then you're just opening up this crazy floodgates for all sorts of persecution and oppression and misuse of government authority. And what's so funny is for the past two weeks I've been saying. Why are we even listening to Alan Dershowitz? He's not a constitutional law scholar. He's a criminal law scholar. But that makes this even more annoying. Because the predicate for white collar crime for so much of criminal law is understanding that men's. Raya that your mental intent is one of the elements like you can't just say and for the crime of the thing that I say is has to be criminal. There can be no men's Raya or at least the president somehow floats above the mental state. And we can't even ask ourselves because that is wrong. I just think it's really crazy coming from a criminal lawyer. Because if you can't ask yourself did this person want to be part of this corrupt conspiracy or not. You can never prove conspiracy. It's nuts and so it's it's particularly galling coming from him. It's more than that too right because it's you know there's the problem of all this proving too much. You know if the president were say not this president. But say let's say a president Had a crazed fan assassinate his rival who was serving the Senate on the steps of Capitol that went dark and that president? Well I mean the jerk place right now and that president were were to the next person arrested by the Capitol Hill Police. He's putting A jail under the federal system right because he's in on Capitol Hill and the president is. She's a part in the next day. Clearly the pardon powers within is absolute in the constitution. If you're going to come to me and say that's not impeachable. Yep Yep well then we got a real problem then y what are we doing and it seems to me. The logical entitlements of all the arguments are making is that that wouldn't be impeachable and maybe this goes to. I mean I think the reason that you and I are sitting in a studio in our Eiser. Googling around in our head is because we're about to see the majority of Republicans in the Senate all sign off on this and I think that the thing that happened this week that is also kind of crazy making is we went from John. Bolton has to testify there is new evidence. There is no question. This is the one person that we didn't have right at the center of the of the donut. Which was the guy who was in the room and knows what was said. And that guy's gotta be allowed to testify and somehow the way we've made ourselves okay with we don't need new evidence is in the just span of a couple short days. We've moved to this really terrifying place of we need new evidence. We know what bulletins going to say. Let's stipulate he's probably gonNA say the tunnel trucks part is completely corrupt conspiracy. There was only done to serve his own interests. And that's fine and there's been a lot of good writing by people who are sort of watching the degradation of the rule of law. The idea that we went from it didn't happen. It happened but it doesn't matter that's just a really profound shift and the sentence. I used a giant trying to describe this to someone is they always say if you can't win on the facts argue the law here. They can't change the facts. The Oh my God. They're going to change the law. Changing the notion of what the intent is they are changing the notion of one an impeachable offenses. They are now going to say. President cannot be impeached as long as he says he was serving the national interest by corruptly promoting his electoral fortunate. Like they're changing the law and the really in the upsetting thing about this to me is that it gets it this sort of fundamental question about what what we mean. We say the rule of law. Because I think there's some sort of aspirational aspect to that and there's also a live reality. I mean when you interview. People who live in places in which the rule of law really doesn't function Egypt under Hosni Mubarak thinking of this. Because I remember having a long conversation with Egyptian dissident about your ear you know there really is a difference between that system and ours but the worry here right is that the aspirational idea of the rule. Laws that restraint. It's a binding restraint on power. The worst use of law is essentially a weapon powerful two-wheeled and those two things are true simultaneously in America. Sit side by side. Donald Trump has spent forty years using the laws weapons. I mean literally guys like installed his pianos in the Taj Mahal Atlantic City who didn't get paid and then he the the suit and then he just ran out the clock in court and then he countersued and he's doing that now to the whole country in the constitution. You had as being like well do you. Call one witness. There's GonNa be a million and then there's GonNa get tied up the gum up the Senate. That's hard to do nothing that part of it like we've seen it with Harvey Weinstein. We've seen it a lot of the me too stuff. Words like you're armed with lawyers armed with Andy as your armed with these very powerful people that know how to like work. The courts sucked that they turn the court. They turned the law into a tool of shutting. You up or keeping you in your place and that to me always exists. So I don't WanNa be like you know over overly sort of optimistic. About what the rule on America means but it just seems like this is taking it to a new level. You went super dark. So I'm going there too and and I will say like one of the things that I've been reading compulsively in the last two years at the suggestion by the way of a judge who said you should read. This is the Nuremberg judges trials. Because you really realize what happens when you have a form. Right and institution of formal structure of judges judging and using their power for evil ends. And it's just a useful corrective for me. Because I have been such a like Patty hearst fan girl of the courts you know my entire career. The courts are good and they're just and you know they were a little off in the south if you were an African American defendant within an alway jury stipulated but you know by and large. This is a machine that brings about justice and it's really helpful to go back and see what judges judges acting under the color of law were doing as I just WanNa make sure I understand. You're saying the records of the Nuremberg trials against Nazi judge. He sat in the Nazi legal system and issued rulings under the law of German. And they were perfectly like within the four corners and then when they go on trial they're just like I mean it was just applying the law and for me. It's useful all the Nuremberg stuff is useful. But it's just really useful to be in my lane looking at what judges how they justify what they did and I and I think you never even. I don't know what until you said. That did not know. The judges were prosecuted. Remember it's quite amazing and it's it's a really good reminder because if you were black in the South in the nineteen thirties what your life was like and you have no illusions that you know the kinds of illusions. I bring to the table and I say it all aid to just depress further but also I think to make this point that if you read. I mean the best book on this James Aaron's book about the Law of trump and they'll I think fourteen hundred lawsuits that he has done. Exactly what you're describing just using the lot to crush and destroy people who complain about him to get what he wants to get himself out of any any kind of key creditor situation that he doesn't like I mean it's just. This is a pattern. He's been doing it his whole life. This break hone special and he has just all of those plays are in evidence in his defence trash. The other side you belittle in besmirch their motives. I cannot believe we're talking about Biden Day after day on the you know in the well of the Senate and it's just all of these techniques that have to do with running out the clock making sure that whatever judicial process Might you know avail. Justice is just not going to work in a timely way and this has been his whole life. We just didn't expect the courts to accede to. I mean that really is to me the question. You just talked about being kind of a believer in in this sort of aspirational vision of the rule of law. And Kate who have now mentioned a bunch is that and I. I draw tremendous inspiration from her belief. Because it's it's it's not naive in any way. It's very complicated and profound. Like she is really thought about this and really does believe in it. Truly deeply that I find inspiring and like draw personal solace and inspiration from but it also feels like we're at a test case of it in some ways and you wrote this piece that was about cavenaugh. That really stuck with me about why you hadn't been to the supreme since Cavanaugh Was Put on the court which was kind of a credit core of kind of something you breaking about your faith in this this institution that you've devoted a lot of your adult life to writing about so a couple of things. I mean one thing is I'm not sure if like ahead of public conversation about it. So it's it's it's Arresting to to to think about it a little bit I class myself with With my law school colleagues with the people that I cover on the courts as one of these really small c conservative liberals because we just believe in institutions and no one feels weirder when courts are under attack than I do because from day one of trump and trumpism I was the one who said two things are going to save us journalism and the courts and I really believe that and I've had to reckon with the fact I mean we can talk about this til the cows come home but you know. Donald Trump has seated a fifth of federal appeals. Courts may be closer to a quarter at this point if he has four more years. Half of the federal appeals courts will be trump appointees and they're young and the ABA says they're activists and not qualified and they're all ready week. After week issuing rulings that are anathema in all sorts of places that you care about and so then I I have felt for some time like I was weirdly in this foot race right because I want to believe in the courts I need to believe in the courts. It is still statistically true that Donald Trump has lost like seventy project should be clear on that like he really has gotten his ass handed to 'em ton in federal courts losing president in Modern History. Right and it's largely because everything is done sloppy and they can't seem to comply with just like the basic. You know how you do. Procedures in order to change laws so he loses all the time even with a massive shift in the federal bench. But that's GonNa end and I feel like a lot of people are looking for the marker of at what point you know. He's flipped to circuits. Think about to flip three circuits at what point or the markers the Indicia of Oh now the courts are not going to be the bulwark against trumpism. They are going to be actually the handmaid's of trumpism. And Are we going to know when that happens? And so I've been kind of feeling like I was patrolling that border as a journalist and as a court level for a long time and I think Kevin really accelerated that for me because I just was in the room during his Senate hearing. I was not far from Dr Ward. I was not far from him. I think I described in that piece what it was like when he started shouting and my kid who is watching in school in New York texted me and was like. Are you perfectly safe in there? Because I think this guy is dangerous. And how that kind of blanked me for a minute is apparent like my kid things that I am in physical peril because Brett Kevin is like spit screaming. All of that was really disarming and in addition to which the part of me that believes that justice curious things knew that that FBI investigation was bogus that Debbie Ramirez was. Never even interviewed. Or you know so so. I think that the process was so broken. And then I just had to sit with the fact that am I going to go and sit in the court with my notepad and my pen and write justice cavenaugh asked a witty question about Xyz or as you said something just irreparably damaged in my view and then it goes to this thing that I really struggled with Chris which is at what point are you complicit right. At what point are you covering for and normalizing something that you just think in your bones is wrong and I think that that has been? I'm sure you have a million versions of this where I'm asked to be on stages with people that I think why I work in cable news totally pure. It's really hard and it's it's I mean not a day goes by where I don't have somebody pick up the phone and say like should I be like on a panel with you know person x Ken Starr. Somebody called this summer that I just don't know if I need to be on a panel Ken Starr so I think that there is a really deeply personal set of questions here about how you find your lying about giving cover to something you think is broken and I that was my answer for me and maybe I would just add parenthetically that the worst possible outcome of that particular piece which I wrote. This fall was the number of constitutional law professors and people who teach Supreme Court seminars in law school. Who wrote me note saying thank you for giving voice to that? That's why I gave up teach constitutional law this year and I wanted to my ears out because I don't want them to quit like we can't all say well the courts not a court and the laws not Blah and. I'm not teaching anymore. That's gotta be wrong so if I gave cover to those people to do what I'm doing then I am full of regret and I think it gets. There is really. There's a very deeply personal thing I think as people wrestle with this period and particularly I think people that are institutionalized people that have worked in clerked in federal appeals clerk of as you have Have worked in administrations have been you know in situations in which they're making very difficult calls about what the right thing to do with legal thing to do is which is that admiration respect for what how valuable that is a system. That has those things while watching it. Be kind of gutted and also being a little like I find myself a little tempted like I think okay. Well there's a Democratic president in twenty twenty one. They just need like a bunch of people that they need to do. The same thing just like plough ahead with your climate agenda. Throw a million things at the courts. Some of them are GONNA get struck down but some of them you might win or you might delay enough to get done if you got to like if you gotta break some eggs making the Omelette like don't be overly worried about lawyers what lawyers say and I feel that temptation right now. Which seems to me like obviously natural and almost in an almost crazy not to do that. But also dangerous trait right now. I mean this this is easy. Right you pack the courts. On the first day you add a Castilian new seats to the Federal Circuit Courts voting. You know in DC and Puerto Rico. You could fix and and I feel the same way as you. Which is the small C conservative in? Me says that's mutually assured destruction Norms matter and we. This is the conversation about the filibuster. And this is a conversation about you. Know Blue Slips and all the jewelry reinstate blue slips are experiment blue blue slips are just a a a a very very old Senate tradition that allowed home state. Senators essentially a veto over a judge and the blue slips are the reason by the way that there were judicial vacancies that piled up in Texas and in South Carolina North Carolina. There were district where you hadn't seen judicial vacancy filed in years because Republican senators said no blue slip. All of the Obama. Obama judge Nominations and the Blue Slip Procedure which is written the law tradition. We upheld during that period of this was this was preserved in the minute Mitch. Mcconnell got what he wanted in Donald trump peaches gutted it and so there were a lot of vacancies to fill and they were quickly filled Again with some with some of them with thirty five year old bloggers and You know we have to figure out what the antidote to that is and it's worth remembering. This was an Obama problem right when Obama was asked when he was on the campaign trail and he he was asking. What do you think of a of a Brennan or Marshall? Putting them on the Supreme Court as a kind of tonic to the Scalia. Thomas and Brooke Obama said to the Cleveland Plain dealer at at some open Mike thing with them he said. No the time for that kind of judges over and I will put centrists on. The court has changed. Shouldn't come from the judicial branch it should come from the political branches and he made good on that he put a lot of sort of centrist. All guys on the courts and you know he didn't WanNa go nuclear. Having seen what Bush judges did and were and so I think it is just there is a a sort of by temperament a symmetry to just breaking stuff and you and I are sitting here. We're not nihilists like we're not gonNA pack the courts they were not gonNa Change. Change the vote but I think that one of the things we all have to reckon with in this moment is how we extract ourselves from this. If one side as we're watching the impeachment is going forward saying like I m sure as Hell GonNA impeach the next president probably just for wearing a tan suit and the other side that has sort of said this was catastrophic. And how do we retreat from from this kind of brinksmanship and that for me is a question that I absolutely can't well? I want to talk about what the courts have looked like under the trump years and one thing that I think is been a theme in trump litigation and has sort of meant. They've lost a lot but the the scary thing is when they don't lose is just th all this bad faith I mean the census case the most famous where they're just like lying straight up lying to the court and the District Court judge their firm and is like you know in his own understated way like livid like you came in here in lied to me left and right and then the discovering thousand new documents by the way as they're like trying to escape like formal sanction from the courts. But there's all this stuff. They're doing all the time like these like judgments before Sir that they're trying to constantly trying to get their their skipping appeals courts like explain their legal method and how it shows a certain kind of cynicism in terms of how they think of the courts. Which is that. We've got a five four majority on the Supreme Court. Let's get there as fast as possible. Yeah I mean probably the most. Emblematic trend is these Abortion regulations right. Which is you know. This is beyond the trap laws. This is beyond what we have in Louisiana. That's going to the Supreme Court in March in in June medical. This is all the states who are just like dude. We have five. Let's just pass an all out you know. Arbor heartbeat law. Let's pass crazy stuff. That is deliberately nullifying Roe v Wade in Casey and so I think that there has been this Zeitgeist. That says we have five. We may not always have five. Let's get get it done and so you see it really acutely there but I think your question is also the Justice Department is really enabling that right like the Justice Department which keeps leapfrogging cases. You Oh you need to go through the intermediate courts. Let's go straight to the Supreme Court and we don't even need a trial record. Let's just get it done and we're seeing it time and time again. We're also seeing for what it's worth this. Justice Department. In addition to rushing cases to the court without letting it play out and Perky percolate through the system. We're also seeing shocking. If you live in cates world or my world the Justice Department flipping sides on a record number of cases so we have Right Justice Department. That was you know. Four DACA is now against Dhaka for the affordable care act now aggressively litigating against it. And there's just a long standing norm Chris that it doesn't matter who the president is. The Justice Department doesn't flipside in cases because it's unseemly and it's not that Presidents Justice Department. It's supposed to be consistent across across different administrations. It was a huge huge thing when the Obama Justice Department started to go hinky on gay rights because that felt like it was a massive shift away from what DOJ policy had been. And here. We have the Bar Justice Department just throwing you know throwing it all up in the air and saying we don't care what in fact. If the Obama Justice Department was Fort. We hate it. And that's a big norm violation that we've seen But I think just generally there is. This kind of recklessness. This sense that we want to do as much as we can. We want to do it. Fast the census case was a really good example of John. Roberts finally balking and I think you're quite right. The only reason John Roberts switched his vote in that case it was pretty clear. At oral argument he was going to be fine. With adding the citizens ship question to the census is that the coaches got pants. I mean really as that litigation was pending all these secret. You Know Ho- feller files come out. It becomes clear that we'll Russ just materially lied about the purpose of the question and John Roberts it turns out has a breaking point. And it's being pants like she's just being utterly humiliated and light to but I don't think that generally I've seen a lot of resistance at the Supreme Court Level. To the way that this jeff sessions and bill barge system apartment have been sort of careening through history trying to break stuff and in fact you know. It's interesting because when I look at the Dhaka case when I look at the cases on the docket this year the title seven protections for Gay and Trans Gender Workers. The court seems to just have very little problem with how things are done. You know. Yeah it was a radic yet. Trump did it in a tweet. You know but all's well that ends well this court does not seem to be in any way bothered by the sort of sniff test problem that some of the lower courts have have intended with test like if I think that in a lot of this litigation the lower court said if you're gonNA rousson something don't do it by a tweet if you're gonNA receive something don't have like Kirsten Nielsen. Like cough up a hairball rationale for why we're sending duck like make it look like you care and they'll still have at least some sense that looking like you care is the thing that maybe the Justice Department should do. But it's really been interesting at the at the Supreme Court level and again maybe the best example of that is oh my God they have taken cert in a case that literally will overturn whole women's health was decided three years ago and hold him his health. Just folks that are not clear is a set of abortion restrictions that were passed in Texas. They were extremely onerous. Would have I think put all of the clinics out of I think that four B B. I mean it was going to be for. The vast majority of women in Texas would not have been able to accessible to a clinic and the the Supreme Court struck down as a violation of Ro and then Casey right there there there's a continuity jurisprudence had said I think the term is undue. Burden is the is the standard that is articulated in Casey that this violated that this was an undue burden and basically what's happened is Louisiana has passed identical identical law and the court granted Sir because now we have the votes the only the only legal marks turn it slate. Put it this way on my podcast. He said the only legal question that really exists in this June medical abortion case is weather the substitution of Anthony Kennedy with Brett. Cavanaugh makes a difference In the undue burden standard. I mean. That's that's the only question but it's a really good example You know this is a court that was thinking about Optics matter maybe wouldn't take a case to overrule it three years later. Same with the New York guns ban right the Second Amendment case it was mooted by subsequent events court heard it anyway and so I think there is just this slightly frothy at the mouth eagerness to get this stuff done except this is my favorite example of bad faith which drives me nuts. And I've tried to sort of articulate on the show but because it involves like like civil procedure is a little hard but there's been a bunch of cases where the trump ministrations lost in the district court level. There's the Appeals Circuit Courts which is the intermediate level. Sprinkler usually what happens. Is You lose the district. You appeal the appellate court and then if you lose their then you appeals Supreme Court and a bunch of cases. They've lost the district level and just have been like we don't need the appellate court we're going straight Skoda's because that's where we have. We can count to five. And then there's the case where it's like everything else they've been like we gotTa Get. Spring Court. Come on. We're doing this. We're doing this in the case where they are backing incredibly politically new clearly litigation to destroy the ACA being tired of all twenty two hundred pages all the things you like about it including the thing you might not like. But thank you like they wanted the District Court level the circuit court sort of remanded back to the District Court for no reason for no reason. Mostly just tarries election your problem essentially said Yeah. You should have another look at this because it's an election after the election. Yeah no there was no den. Doj says we don't need Supreme Court to step in the blue states. The attorneys general said neural. Let's get the Supreme Court on the record and the election year Bella drinking to destroy the whole fucking. Aca excuse my language and this Justice Department which has been rushing to the supreme court for everything was like no rush no rush. It's just the ACA that we want to get rid of no rush this year and it just like give me a break. Give me a break. So the story I tell and I only because Irwin Ski. Who's the wonderful Dean at Berkeley Law? School told it on my podcast at the beginning of this year. Is that the only thing you need to know about this insane? Docket right we've got title seven we've got DACA. We've got abortion. We've got guns like there's nothing that isn't on the docket this year arguments being hurt by Supreme Court this year term and Irwin said and I did not really clock this at the time every single one of the cases could have been heard last. January a year ago this month. They were all calendar for discussion. They were debating all the Supreme Court did not take any of these last year. Why why why because Brad Kavanagh? Because they had to sin and look. Do I know that perfect but I think I'm pretty confident that when you're you know got these like thirty one percent popularity ratings and because we were in the streets right in the handmaid's tale outfits John Roberts Very Savvy Guy was like you know what let's just hold all these days off Brett. Let's take hold all these over. They took the two big ticket cases they took were the gerrymandering case they had to and the census case that we talked about everything else waited until October. That tells a bunch of stories that may be tale with some of what we're talking about but the big story. It tells us that John is really really savvy about optics and that he didn't want in the weeks after Brett. Cavenaugh the most even including Clarence Thomas. I think contested seat in our lifetimes He didn't want to have the court. Take a big honking abortion case in a big honking. Daca case in a big honking guns case and so they just went dark. Although the flip side of that is they're going to decide all these in election year. Well that was part of the thinking a health like I just purely on the politics on the law and the substantive attack on women's reproductive autonomy but purely on the politics like I think get is bad for the Republican Party and the antiabortion movement to win big legal victory like this in an election year. Maybe I'm wrong but I do think there will be backlash. What do you think there will be that and to boot? Then the court went and took the follow onto hobby lobby and the little sisters case taking a huge contraception case. It seems to me that if women are watching this will be an absolutely massive year at the Supreme Court. Now I say if women are watching because there's so much going on that it's hard to believe that anything can break through I do think and this is where again. I've heard your wife talk about this more than I've talked about it but I do think there is reason to believe that John Roberts. Some of these issues knows what's going on. I also think there is reason to believe that Elena Kagan who is the only other Super High Q. Savvy Justice of the nine is working the levers a little bit to say really really you want to do all of this plus Don mcgann plus the love trump plus the tax returns plus preside over an impeachment trial unicyclists presents tax returns and compelled testimony. Are they're going to get that to? I mean I think that I think that The court docket those for the very end. By the way those again could have been faster could could have done faster. Judge Circa like all of the Nixon tapes case like happened in a couple of weeks but the court like this seems like it's really urgent. Let's hear it in April so it's again up to the court to decide whether they want to do something expeditiously but I do think all of these cases are piling up. And I'm quite sure that Clarence Thomas doesn't care what the electorate thinks about the court but I'm also quite sure that John Roberts cares a lot. Well let's talk about robbers. Because he ends up being in the Roberts court now with the departure of Anthony Kennedy and with Cavanaugh replacing him. He is now the median. Jut like he's the middle of the court. I think it's fair to say. Big Cases was the crucial fifth vote on census case which he appeared to switch over which by the way just taking a step back. The fact that for them voted to say. This is fine. What you've done you've lied to the court you've lied to Congress you've materially misrepresented what you were doing to hide essentially a nefarious motives and just little sidebar. That Clarence Thomas does a little weird homeland string wall thing. Like he's actually mocking judge Furman in his dissent like talking about judges and fanciful consp- like going after an article. Three judge perfectly comfortably not just at four of them signed on but that it's now cool to go after the trial judge who painstakingly laid out the conspiracy. You just described. She'll she'll Roberts who's right now we're talking on the TV screen. Presiding shroud is is a crucial figure. Those crucial figures in American life. Right now and I want to talk about him right. After we take this quick break we eat to live but food is so much more than that. I'm Andrew Zimmer chef world traveler and host of a new series on MSNBC. Join me as I explore our country looking at the biggest social and political questions of the day through the Lens of food this week from opioids to alcohol addiction has reached epidemic levels in America. See how the food industry is stepping up to help people on their road to recovery on the next episode of. What's eating America Sunday at nine PM EASTERN ONLY ON MSNBC? We just want to be treated fairly like a lot of shooting happening. I don't care what he says. He's not getting everyone is mainly MSNBC correspondent in host of a new podcast into America featuring the journalist of NBC News Politics About Policy and about the power. They both had shaping the lives of the American people. The roller coaster is not any easier to stomach now than it was two years ago each week. We're going into America to tell voters stories came from the country. Because we're in concert doesn't mean that we should lose on right to both new episodes dropped weekly and our first arrives on Thursday February twenty seventh search for into America. Wherever you're listening right now and subscribe so Chief Justice John Roberts is now the kind of swing vote which means the court is much more conservative and people on the Coriolis. Hate it when you map it onto this. Because they point out that ninety percent of the cases are you know like some Orissa question or like railroad law and like. That's true but the the ones on the most salient along the lines. That America's polarized on them they tend to be very close. And how do you see Robert? Seeing his own role. This you just talked about. How savvy he is whenever anybody says. He's a swing vote. I have to stop and say he has won three times right once. The census case and the two affordable care act cases. So he's not. I mean I think occasionally he is to the you know slightly left of the conservative bloc. But I think you know the famous study that was done by judge pose ner and Landis that sort of laid out the most conservative judges since the new deal and Roberts is like solidly in the top damn. So let's I think that he is not he's also a life these a made man. He's a things haven't worked out the way they did. He could be up there with Philbin arguing for the president like he's they're all the same ski. Josh Holly Ted Cruz Roberts Philbin like they're all products of the exact same pipeline pipeline of like right wing legal star Federalist Society. You Know Reagan administration. I don't think anybody should have any illusions that he is anthony. Kennedy Anthony Kennedy was legitimately and I say this like laughing because five years ago I would have said to you. Anthony Kennedy is an incredibly conservative guy. Who has like swung to the left and a handful of cases true and we have this fantasy of him being in play all the time. And when you say that about o'connor too by the way she was legitimately I think swing voter. So Roberts is just stipulated one of the most conservative jurists in this country in the last hundred years but he has changed a lot because he is chief and he takes being chief unbelievably seriously Chris. He sees it as it's sort of a direct hand off from chief. Justice Marshall's Chief Justice. Rehnquist to him and and people think that it doesn't mean anything to be chief. It's just you know who gets to assign opinions. But he really does feel that in. His hands lies the dignity and esteem in the estimation in the public regard for the court. And if you read his sort of state of the judiciary speech that he does right right before New Year's Eve He was at pains like that was a speech. That was fascinating document. That really was I. Think seven pages of special pleading lake. America don't hate judges more people to we have soft Silky for scary. And you know. Let me let me just call out a really cool awesome judge who reads with you know poor children in DC Merit Carlin. But I won't name Him Merit Carlin like it was a really an amazing sort of Tour de force of judges are people too and the judiciary all it has is public regard. He really lives in breeze that he worries about that. I think that's my short answer to while that stuff was not on the docket last year so I think like it's complicated. Because he's getting everything he wants right. It's Christmas July. Everything he wants. He's getting his whole life and career for these are things. He took on abortion. I think race than almost anything that he feels lake. You know the way to get beyond race is get beyond race right. That's what he wrote but I think it's fair to say this. These are his load stars. And he's getting everything he wants and that said maybe this goes to the question we almost open with which is when does it go so far that it breaks. I think that as worried as I am about that. When does the judiciary get so corrupted that it's broken? I think John Roberts lies awake at night asking himself the same question and I think it's not an accident mark. Stern and I wrote about this. That it's not necessarily John Roberts clerks who are all over the trump administration it's Clarence Thomas Clerks This is not how John Roberts wanted it to roll. I don't think he has great affection for this president. I think he punched back really hard. When the president started saying you know Obama Judges Bad Bush trump which is good. The only time that John Roberts kind of got into it with this president. I think that somewhere in the hippocampus he knows that destroying the judiciary is real. It's possible destroying rule of law destroying norms Israel. And he worries about that. Although I will say that like we all live through Bushby Gore which I think would have done it and didn't like to me that that was the most it was so naked. There's the infamous line infamous line Bush Gore. Which is a finding about the extreme burden of the Fourteenth Amendment? That the that they that they then right in the opinion should not be applied is precedent anywhere else. I mean it's just it's preposterous In my humble an amateur non-legal opinion ridiculous sort of show of willpower. And the reason I think about Bush reorder my mind. A lot is like to me. That is where the rubber is going to hit the mother effing road because I feel like this is going to be a fifty fifty coin flip election. I think the odds of US ending up in a situation where like Wisconsin's decided by thousand votes and maybe Arizona is to or maybe Pennsylvania's too. I think about that all the time and I bet you. He thinks about that all the time to. I'm sure he does and I'm sure he also thinks you know when I again. I'll go in further when I think about sort of disaster scenario. I think about you know Professor Judge Geller. Who wrote a year ago? Even if he loses. Donald Trump is not going to step down like there is going to be like some kind of mega constitutional crisis where he just says no matter what the election was like. No I I think it was. You know tied up in the courts right like the. We've already know what the players will be like. I'M GONNA file a million lawsuits. I'm the selectors I'm GonNa see the states. I'M GONNA sue the State Secretary of State. I'm going to SPA and right. Which by the way that was the brooks brothers revolution in which he or whence? I just decided we were going to go in here and lawyer the crap out of this and the other side like I dunno crocheted things. I don't know they just lost. Yeah no but I think that there wasn't that we you know we will win at all costs. I'm not sure that was the zeal. Was there and I think that that is really redoubled now. And so when I think about what John Roberts worries about. Its whether it's a contested election or whether it's trump refusing to step down the court saying you will turn over your Masar records And Donald Trump just saying no one of those things I think it's going to land in his lap sooner rather than later. That's exactly right and I think we were careening towards that. I think right now. A Lot will ride on how that shakes out del. Lithuania senior legal correspondent for slate. She's host of a fantastic podcast yourself. It's called amicus which you can find wherever you're listening to this podcast and I would urge you to check it out. She's got a great episode with Ktar. For instance just to pick pick a guest at random Diet was so great to have your thank you. Thank you Chris. I love this podcast. I'm so super super happy to be part of this like I think amazing endeavor. What's going my great thanks to Dahlia LIPOIC senior legal correspondent for slate. You should check out her. Great podcast amicus. You can always tweet us. The hashtag with pod email us with Prodigy Mel Dot Com. We'd love to hear your feedback. Why is this happening is presented by MSNBC AND NBC News produced by the All in team and features music? By Eddie Cooper. 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The Supreme Court's Battle For A 'More Unjust' America

Fresh Air

47:53 min | 7 months ago

The Supreme Court's Battle For A 'More Unjust' America

"From whyy in Philadelphia. I'm terry gross with fresh air today. How the Supreme Court has moved to the right in the past fifty years? We talked with lawyer and journalist Adam Cohen. Who's new book. Supreme Inequality describes many cases in which the court has ruled against the poor workers rights and voting rights while favoring corporations and the wealthy the court is really the one institution in our society that the founders set up to be above politics but everyone's pretty much bidding now that the court is a political institution. Cohen says the court has maintained a conservative majority because Republicans have held the White House for more years than Democrats and because Republicans have used hardball tactics to place. Conservatives on the bench later jazz critic Kevin Whitehead reviews new album by a trio led by composer and pianist Carla blame. A New Book examines the Conservative Direction. The Supreme Court has headed in over the past fifty years ever. Since Nixon became president the author my guest. Adam Cohen writes for five decades. The court has with striking regularity sided with the rich and powerful against the poor and weak in virtually every area of the law. He says in campaign finance law. The court has opened the floodgates money from wealthy. Individuals and corporations in election law is upheld rules and practices. That make it more difficult for the poor and racial minorities to vote in Criminal Law. It's favorite prosecutor so consistently that it's contributed significantly to the nation's mass incarceration crisis and on a wide variety of issues. The court has ruled against the poor. Cohen's new book is called Supreme Inequality his previous book imbeciles was about the Nineteen Twenty seven Supreme Court decision bound up in the eugenics movement. That upheld a state's right to sterilize. People deemed unfit to procreate because they were quote mentally deficient Adam. Cohen is a former public interest lawyer. Who worked with the ACLU and the southern poverty law center he served as a member of the New York? Times editorial board and senior writer for Time Magazine. Adam Cohen. Welcome back to fresh air as you point out. Your book paints a different picture of the Supreme Court than the one presented in civics class. Compare the two pictures. Sure I think a lot of us were raised to believe that. The Supreme Court was the defender of the disadvantaged we think of cases like Brown versus board of Education and the Supreme Court integrated the south. There's a little bit of truth to that but when you look at the large picture of what the Supreme Court has done. Historically it's much more negative than that they have consistently sided with the wealthy and powerful. And that's a lot of what my book is about is showing that siding with the wealthy and powerful is a feature of the court not a bug. We've seen how politicized the supreme court has become With being pretty predictable. What liberals will vote for on the court and what the Conservatives will vote for on the court and the team with the most people on that tends to win occasionally there swing votes surprises but is that a fair characterization in terms of the big decisions but you know it's really important to realize how a counter that is to the traditional narrative right. I mean we're told that the Supreme Court is in the law business not the politics business right. I mean it's those folks in Congress and in the White House who are political The justices are supposed to be reading the text of statutes reading the Constitution using principles of interpretation and objectively arriving at the facts. But what you said is exactly right. It's amazing how political and you know recently five. Four everything is. Do you think that politicisation is baked into the Supreme Court because the justices are appointed by the president and the president often has political motives. Yeah there's that element of it but it's definitely gotten a lot worse like if you go back to the Eisenhower era. Eisenhower appointed Earl Warren. Who was the Great Liberal Chief Justice and he appointed William Brennan. Who was one of the great liberals of the Modern Court And part of the reason was that he didn't really know exactly where Warren come out. Part of it was. They just weren't as focused as we are now on the exact politics people. Now when the president is GonNa make a nomination the interest groups. Come out you know. Trump got a list from the federalist society. And things like that. It's all very carefully staged and there's a lot of research and no one wants to take any chances about not getting the quote correct kind of justice you trace the origins of the current conservative court to nine hundred sixty nine. When Nixon became president he inherited a very liberal court with Chief Justice Earl Warren. So let's start with some some the liberal decisions under Chief Justice Warren. Yeah Within a year of Earl Warren arriving at the court he had been the governor of California. the Court Hands Down Brown v Board of Education Nine to nothing. I just a an enormous landmark. That changed the south entirely So they do that. And then as the court becomes more liberal particularly when President Kennedy gets a couple of appointments they begin to hand out decisions like Gideon v Wainwright which said that indigent defendants have the right to have a lawyer appointed Miranda the famous Miranda warning that the police can't start questioning it without telling you of your rights remain silent a few years later a very important case striking down the poll tax So they were really going off in many different directions. Criminal Justice Voting Welfare rights are defending the rights of those at the bottom of the societal hierarchies. Do you think that the Warren Court the Liberal Warren Court was an historic anomaly absolutely You know if you look at the long sweep of the court you know before the civil war and after the civil war the defended Racial Segregation You know dread Scott. They said that a black man didn't have a right to sue for his freedom after the civil war in plus versus Ferguson. They say that Laws requiring segregation on railroad cars are constitutional In the nineteen twenties on my last book was about how the court very actively embraced eugenics movement in the nineteen thirties when FDR is elected and begins to roll out the new deal for several years. The court strikes down the most important new deal laws and it's only when FDR really kinda threatens them with court packing plan that they give in so Yeah the Warren Court was a you. Know a big moment in the court's history but also in terms of years a small moment chief justice Warren told President Johnson. Lbj that that. He intended to resign and he wanted to resign soon enough. So that Johnson could appoint a new chief justice in the spirit of Earl Warren Before Nixon was elected cuss apparently warrant. Thought there was a really good chance that Nixon was going to be elected and he was right about that. But that backfired. Lbj nominated justice. Abe Fortas to be this the chief justice and he didn't win Senate confirmation what happened yet. It was one of the great fumbles in Supreme Court history and really unexpected in many ways because Johnson had been you know the master of the Senate the fame majority leader who understood better than anyone how to count votes in the Senate. He didn't count them correctly this time so he appointed his old old friend. Abe Fortas who was a justice. Someone who actually helped him to win his very first contested election which he may not actually have one so they they went way back and That was one of the problems. Is that critics in Congress and in the media labeled for this a crony of Johnson. So they said he wasn't an appropriate appointment to the court but also at that point towards the end of the Johnson Administration. There was some backlash against the war in court. You got a lot of Democrats in the Senate were from the south. Didn't like the Civil Rights Revolution. A lot of Republicans in the Senate were saying well. We're about to have a presidential election. We'd like to keep the seat open. In case you know we're Republicans elected and and and can fill it so Johnson just counted the votes wrong. And I it was very unfortunate. 'cause the time was short and went for this was not confirmed by the Senate. There wasn't enough time to try again and the seed actually was waiting for Nixon when he came into office. Nixon appointed Warren Burger to be chief justice. What was burgers judicial philosophy while Berger had been ingratiating himself to Nixon By saying how much he didn't like the war in court and also didn't like the Liberals on his court the DC circuit court that he was serving on the appellate court so he had been making clear to Nixon that he was going to be quite conservative he had given speeches about. How were too lenient With criminals and Nixon knew that with Burger. He would get someone who was as committed as was too sharply changing the direction of the court. Nixon also wanted a ford us out because although eight four for just didn't become chief justice. He was still adjusting in the Supreme Court. So what Nixon due to force out Fordis- so Nixon comes in and he he gets that Chief Justice appointment very exciting and there. There have not been that many chief justice history. So that's a big deal to be able to appoint one right away. But he's also counting you know noses on the Supreme Court and he needs to get a majority to get a conservative court. And he's looking for any way to do that. He's checking on the medical Condition of some of the older dresses. And frankly hoping that they Don't last very long. But yes he sees a weakness with Ford is because Ford is had just been rejected by the Senate and he's in a politically weak state and Nixon has his Justice Department. Investigate Ford is for A relationship he had with a foundation run by an investor who ended up in trouble with the law himself and actually ended up going to jail. It wasn't illegal There was no court rule against it. It might not have been the wisest thing to do. But Nixon used that opening and threatens Fordis- with prosecution criminal prosecution also threatens to prosecute for his wife who was a lawyer at the firm four to seven at who had been investigated for some other potentially criminal thing that she was cleared of but Nixon and his cronies were really coming down hard and suggesting before his he and his wife might both end up in jail They were leaking stuff to the press and they won. They got Florida's to voluntarily resign and Nixon got seat very quickly who the Nixon replace Florida's with actually a close friend of Burgers Harry Blackmun who we may remember now towards the end of his life quite liberal. He wrote Roe v Wade but for quite a few years in the beginning he was a conservative. Who voted with his old childhood friend? Warren Burger and the to them began the conservative takeover of the court. So by the time Nixon was forced out of office. How had he changed the court? Well incredibly profoundly because he then got to more appointments Lewis Powell and William Rehnquist who was an obscure lawyer the Justice Department. Very right wing So he had appointed four justices. They actually did that in his first. Three years in office and with the couple of conservatives who are already on the court some Eisenhower appointees They there was a conservative majority. So we had this war in liberal majority. That had been doing all the things. We talked about for the disadvantaged and suddenly there's clear conservative majority that wants to undo all that you read that in the five decades since the Nixon presidency there have only been three Supreme Court chief justices and they've all been conservative. Burger Rehnquist and Roberts. Yes and they've had a conservative majority behind them the whole time and that's really stunning right. Because if you think about going back to nineteen seventy we've had so many changes in the White House right we've had conservatives we've had we've had regan and we've had George W Bush and we've had Clinton we've had Obama. Congress has switched parties multiple times right back and forth back and forth. We have just had a right wing court for fifty years. So do you think that's Kinda coincidence that justices tend to to leave or die during Republican presidencies or do you think that Republicans are better at getting Supreme Court justices appointed? Well the game the whole system much better than Democrats do in many ways. So one way is that they do tend to step down In strategic ways the Democrats often. Don't so Anthony Kennedy step down at a time when he knew that trump would be able to replace him and get his nominees confirmed by Republican. Held Senate Ruth Bader GINSBURG and Stephen. Brier did not step down towards the end of the Obama Administration. So that's one part of it but another part of it really is that the just do the skulduggery a little bit better too right. So when Obama nominated Merrick Garland if garland had been confirmed that would have restored a liberal majority to the court for the first time in half a century And look what the Republican Senate did. They said. We're not interested. We're not going to do anything so you know. Actually say in the book that these are kind of two book ends on the the half century that Nixon steals for two seat and Mitch. Mcconnell refuses to allow a Democrat to fill Scalia seat and the both propped up the current conservative majority. There's something about the process of nominating and confirming Supreme Court justices. That seems to have changed now. You mentioned the McConnell blocking the Merrick Garland nomination but you know trump named his potential justices during the campaign that that's kind of unheard of isn't it. It's gotten much more political and just the way in which trump is saying. You know we're putting together this list and we're consulting with the Federal Society and you know I think it's pretty much acknowledged that trump in many ways was not very traditional right wing presidential candidate by background by temperament than any other one thing he clearly did to solidify his support from the right wing from fundamentalist Christians and all that was to make it. Clear them we're going to choose the kind of justice as you want. And they've been very emphatic about doing that. It used to be there was not supposed to be a litmus test. For Supreme Court justice but now both Democrats and Republicans seem to be boldly mentioning their support of a litmus test. Some Democratic candidates have said that yeah they would choose you know Supreme Court justice who supports abortion rights at that would be essential So I think that something that's changed to that you know intentionally stating to the public. Yes this this judge is coming in with. You know certain points of view in advance. I think that's right. The mask has fallen off right and everyone can see what's really going on You know in theory if the court is the sort of legal body we like to pretend it is What president should be saying is. I'M GONNA look for the best interpreter of the law and we'll look for someone who may be got very good grades. Who wrote very good law review articles or who is a fabulous teacher or who has shown just general Excellence in the craft. But that's not what they talk about it all as you say they talk about the politics because everyone's pretty much a bidding now that the court is a political institution you read the area in which the Supreme Court has changed the most is in the area of economic class. Give us an example of that. Sure during the Warren Court which we were talking about the court really embraced poor people and their problems so we began to see them being very active around issues like the poll tax but also really about welfare right. I mean welfare. Used to be something that was kind of disparaged and an embarrassment and people didn't talk about it and we looked at the people who are on welfare. Well the Warren Court comes along and says no welfare is an important thing in our society that allows people to subsist and the and actually right after the war in court ended but with the momentum of the Warren Court in Nineteen seventy. The Supreme Court did an amazing thing in a case called Gobert versus Kelly. They actually ruled that. Under the due. Process clause look how cannot remove people from the welfare rolls without giving them formal hearing. I A chance to be heard. So that's that's something that is you know. It would've been unheard of a decade earlier. So that was the kind of new approach. The court took to the poor but then when the Burger court rises and when the Nixon justice is really Begin to take control The court very quickly turns his back on the poor. And it's actually just a couple of weeks later that the court issues a ruling. That really sounded the death knell for the Poverty Law Movement Case called Dandridge v Williams where the court not only said that they were going to uphold a really discriminatory. Unfair local welfare will but they basically said you know. We're washing our hands of welfare law cases. It's you know it's this is something we're pretty much gonNA leave to the government to do as they want. And after that Dandridge case on and on and on the court began to rule against the poor and to make clear that they didn't care about things like whether welfare was fair. Talk about the controversy over whether the equal protection clause of the fourteenth amendment should include poor people as a group with special protected status. Yes this is one of the most fascinating things that was going on during the war and era. So there's this notion of a suspect class is there are certain classes that the court says I have a higher standing under the equal protection clause. So it's mainly you know racial minorities religious minorities non-citizens groups like that. And the idea is that if you're a discrete and insular minority that is unable to really effectively. Protect yourself through the political process Which is often true of the groups. I just mentioned the court will give you extra care. So the court had been for years identifying different groups at had considered to be in this class. And if you get in this class the court is then much more likely to strike down any law that puts a burden on you or disadvantages you and for years. The court was edging close to putting poor people in this category. They would say things like you know lines that the government draws against poor people are very similar to lines that they draw against racial groups. And you know everything but actually calling suspect class. And we don't know what the Warren Court would have done if it had been allowed to continue but one of the first things. The Burger Court in that Andrews cases I mentioned West really made clear. No the poor could be a suspect class. And they're not getting any special attention from us so if the court had ruled differently and said poor people were protected class. How might that have changed things? The poor would have been given a very powerful legal tool to use in a lot of different contexts to challenge a lot of ways in which they're harmed so Right now we have very unequal distribution of welfare around the country. There are some states that if you live in California New York Not that welfare is magnificent because it is not but but there are other states where you get almost nothing you know if you're if you're in Wyoming and you need help so things like that could have been a amenable to being challenged Under equal protection of the poor people could say look. We're not being treated equally by the Federal Government in how distributes welfare so there are a lot of categories like that where where poverty lers would have been able to stand up and say this is a way in which a law is really hurting the poor and remember. They're a suspect class. I guess is Adam Cohen Author of the New Book Supreme Inequality after a break. We'll talk about the ways in which he says. The Supreme Court has given the advantage to the wealthy and jazz critic. Kevin Whitehead review new album by the Carlo. Blade trio. I'm Terry Gross and this is fresh air. This message comes from. Npr sponsor capital one with the capital one Walmart rewards card. You can earn five percent back at Walmart on line two percent at Walmart in store restaurants and travel and one percent everywhere else when you want all that you need the capital one Walmart rewards card. What's in your wallet? Terms and exclusions apply capital one. And A let's get back to my interview with lawyer and journalist Adam Cohen about his new book Supreme Inequality it examines the conservative direction. The Supreme Court has headed in over the past fifty years ever since Nixon became president. He writes that for five decades. The court has striking regularity sided with the rich and powerful against the poor and weak in virtually every area of the law. Cohen is a former public interest lawyer. Who worked with the ACLU and the Southern Poverty Law Center? He served as a member of the New York. Times editorial board and a senior writer for Time magazine. There's another case. I'd like you to talk about pertaining to school equality over the question of whether schools in poor neighborhoods should get the same amount of funding schools in wealthy neighborhoods. And we're talking about Public schools tell us about that case. Rodriguez v San Antonio Independent School Board from nineteen seventy three of the most tragic cases. I think In the Supreme Court's history the context of it is that there had been a lot of momentum building around the country saying that when the government provides public schools it has to provide them equally to all children and under the equal protection. Clause you know people have a right to be protected equally. When the government acts and this was being widely accepted important scholars we're stepping forward and saying equal protection clause does not allow the government to fund schools in wealthy districts very highly in and schools in poorer districts very low and courts. Were beating drool this way lower federal courts state courts so this momentum was building in everyone kind of assumed that the Supreme Court would not put the Cherry on the Sunday in a decision. And say yes. This is what the constitution requires by a five to four vote. The court does the opposite. It says that there's no obligation to treat children. Different School districts equally. So it's really. It was a horrible lost opportunity to extend equal opportunity in education and really in life outcomes to all American children. You tell us more about the potential of that decision to have changed the public schools in America. Yeah I mean I knew this quite well because I was a lawyer in this very area of equal educational opportunity At the when it was at the ACLU and I worked on a big case at Alabama about it. It's shocking the degree to which schools vary from one district to another within a state The Washington Post did a story years ago looking at Pennsylvania and the least well-funded school district in Pennsylvania Which is in coal country. Got One third of the funding of the highest funded school district in the state per student. So think about that three to one ratio and in Alabama. I mean the things that I saw in the poor districts in the black belt as they call it around Selma Alabama Wilcox County. I mean children. You know taking naps on wooden floors with fire. Ants coming through biting them. You know in in the middle of their nap textbooks that said one day man will land on the moon. I mean terrible terrible deprivation when if you go to mountain brook. One of the wealthy suburbs Birmingham schools look palatial so This is really a pattern across the country and it really does set up children for very different life outcomes. There's a lot of research on this. If you go to better funded school. You're more likely to go to a good college. You're more likely to get a good job not end up in jail so the idea that we couldn't just say no. The government has to give every child the same opportunity in a public government. School is it. I think a tragic missed opportunity. See you've given us a couple of examples of how? The Supreme Court in the seventies disadvantaged poor people gives an example of how the Supreme Court in the past. Few decades has given the advantage to the wealthy. Well the one we have to start with of course is campaign finance because it's so important until nineteen seventy-six. We didn't have this idea. That money equals speech and in the wake of Watergate. Congress actually passed a really good strong campaign finance law the DC Circuit Court of Appeals Which is one level below? The Supreme Court upheld the law and said that these are perfectly legitimate limits. To put on how much you can spend and how much you can contribute an campaign the supreme court reversed that and said no money is speech is a first cement violation. And we've just gone so far down the hill from there. I mean to citizens united where the court said that actually corporations have the right to spend unlimited amounts of money. This is so important because money changes everything in government. We know that Congress responds to people who give the money much more than two people vote for them and one example of that is when they do polls of whether people think the minimum wage should be raised widespread support across the American public for raising the minimum wage but the people who contribute money the retail industry. The wealthy bosses who employ. Some of these people don't want it. Well when was the last time we raise the federal minimum wage? Two Thousand and nine. 'cause we've allowed money to determine everything and that's the biggest gift that the court gave to the wealthy. We're in an interesting position now. In terms of the Democratic primary in the sense that Michael Bloomberg is both the candidate and the funder of his campaign. 'cause he's funding it out of his own money. What does the court have to say about that? They allow that right the. There's no limits allowed on expenditures. So he can spend as much as he wants but imagine if the court had gone a different way in nineteen seventy six in this decision called Buckley versus Vallejo where they said money will speech and said money doesn't equal speech. That would be like saying that. You have a right to amplify your speech. When you're on the on the sidewalks you can have a a soundtrack be as loud as you want and wake up all your neighbors all night because you have the right to speak. They could have said No. You have the right to say the words you want. But you don't have that right to amplify through money. If they had said that there could have been limits on how much individual candidates spent on their own campaigns and think of what is different election we would be having now if if mayor. Bloomberg were running as someone who had strict campaign limits on how much he could spend And was roughly spending as much as everyone else campaign would be totally different right. Now that's something. The Supreme Court did for us while we're on the subject of campaigns Talk about how the court has dealt with voting rights in recent years. Yeah I mean it's really been I would say a horror. You know one of the most awful things they did was Strike down a key. Part of the Voting Rights Act and remember the voting rights. Act IS A law. That was really one of the crown jewels of the civil rights movement right Martyrs died fighting and marching and protesting for the right to vote. We have the voting rights. Act It was renewed over and over again by large bipartisan majorities in Congress the reauthorization were signed by President. Reagan and George W Bush who said very nice things about this is close to an all American law as we have and the Supreme Court comes along strikes at the heart of it in a case called Shelby County and on the most bizarre of legal reasons. You might say well. They had to do it right because of the logic required that you know we. We strike down this unconstitutional statute. But if you look at the reasoning the court used. It's really made up. The court said that the voting rights act as it was constituted denied states their right to equal sovereignty. Well there really isn't a rate equal sovereignty of the states. And that's not just me saying it. It's not just liberal. Saying it judge Richard Posner who is a conservative appeals court judge appointed by Ronald Reagan Road? After this season there is no doctrine of equal sovereignty. A Principal Cossio Law of which I never heard for the excellent reason that there is no such principle so this is how the court strikes down one of the most important voting rights laws. But it's not just the voting rights act. They've upheld is very strict voter ideal saying well. You know it's not really going to be such a problem and then of course it turns out. It's a huge problem. Many people are turned away the polls because they don't have the very exacting ideas that are required. And on the other hand when people coming and said we'd like you to do something about partisan gerrymandering where legislatures really draw lines. That are so extremely based on party. That in many districts now it doesn't really matter who votes how you vote because the legislatures already decided who's going to win every election while the court for years and years sort of fumbled around Ab. Doing something about that. And then recently decided. They're not going to so in all these decisions. The court has sided with the elite election officials. The people who were setting the rules and they have not sided with the voters. And I just. I can't end this answer without mentioning of course Bush Versus Gore. Which was the absolute extreme of this. Where the court had the opportunity to say. Of course we're going to require that every vote be counted. I think the nation looked to the court and thought we've got this terrible mess going on in Florida in the presidential election. No one really knows for sure who has one and who's GonNa move into the White House and people were. I think expecting the Supreme Court would be the one institution that could step forward and fashion some kind of solution that was clearly not political that drew on neutral principles of law. And I think one reason there was so much bitterness afterwards was it seemed very clear that all they did was politically and that was because of really the decisions of the five individuals on the court. The could have acted different. They could have acted better instead. They stopped the counting of the votes in Florida. And they did it on such meet up legal grounds. The conservative suddenly embraced this very extreme view equal protection that they never had before or since and we know just what a game it was because remember Bush v Gore was the decision where the court said. Oh by the way. These rules apply only in this one case. This case is not precedent for anything else and that's the clearest indication we've gotten from the court that when it comes to voting and rulings about who's going to win elections for them. It's all about power and it's not about law. Let's take a short break here and then we'll talk some more if you're just joining us. My guest is Adam. Cohen author of the New Book Supreme Inequality the Supreme Court's fifty year battle for a more unjust America. We'll be right back. This is fresh air support for this podcast and the following message come from best scenes. Best beans is the puzzle game that has an engaging story and engages your brain with thousands of puzzles that update monthly. There is always a new challenge to master. Best means. Is the five star rated puzzle game that can be played anytime and anywhere? No Internet required download on the apple APP store or Google play for free. That's friends without the our best scenes. What's good Yo as you know? February is black and all throughout that month. Npr's codes which is going to be running a special series about the history of black resistance because as long as black folks have been oppressed in this country. Which is you know forever. We've also been fighting back. Listen and subscribed my guest is Adam. Cohen he's a lawyer and journalist and author of the new books supreme inequality the Supreme Court's fifty year battle for a more unjust America. And it's about how. The Supreme Cart became more conservative in the Nixon era and got increasingly so an many instances ruling against the poor against workers rights voting rights while favor corporations and the wealthy. You know your book is about how politicized the court has become particularly in the past fifty years since the Nixon administration. And you know you can argue well. Of course the court is politicized because they're all appointees of the president who's a political person himself and Could have a political agenda in choosing a justice. Are there any ideas on the table? For making the court less politicized there are a number of them. Some of them relate to the size of the court. Right I mean it's not required that there'd be nine justices it could be A larger number and That might get us out of the current five for deadlocked that we have. Although I think real school you'll be very hard to enact a change in the number of justices but there's also been talk about mandatory retirement ages. I you know people are living a lot longer than they were when the founders decided that there should be a lifetime tenure on the court so that would be one way. Get more of a cycling in an off the court so those are couple of suggestions that are out there. Yeah if a if a prisoner points a young justice that means that the president's choice is going to be there for perhaps decades. Yes we talked about earlier about the way in which Republicans have maybe been better at gaming. The Supreme Court System Democrats and one thing is that they have nominated much younger justices. So someone like Clarence. Thomas has been there for very long time and may yet still serve for a very long time before he became a journalist. An author you are a public interest lawyer. You work with the. Aclu you work with the Southern Poverty Law Center you worked in New York and Alabama. What kinds of cases did you take on? When I worked in Alabama a southern poverty law center. I did a big jail. Conditions case Jails down there. Were were pretty terrible and I also worked on a case where we were suing the Ku Klux Klan At the ACLU. I was in a unit that they had set up in the National Office working on race and poverty and one of the big focuses we had was trying to come up with state courts solutions for the problem of unequal funding in schools that had been duct by the Supreme Court in Rodriguez so Rodriguez said that. The Federal Constitution does not require states to allocate funds equally across school districts and we were going in and bringing state court lawsuits That said well maybe the state constitutional choirs that and some of those have won some of those have lost. What's an example of one of your big victories or defeats from the period? When you were a lawyer well. I spent the most time on a school case in Alabama where we were trying to equalize funding between rich and poor school districts and in particular we represented parents in school. Joel children from the black belt from the very places that the civil rights movement was so active in the Sixties Selma Alabama Dallas County Lounge County and we went to trial and we put forward just shocking evidence of inequalities of just how good things were in the suburbs of Birmingham and just how terrible they were in the black belt in terms of you know there was one school. Where if you took all the classes they had. You couldn't graduate with a degree that would allow you go to the University of Alabama. I mean it wasn't really a full high school. There were text books that have been written in the forties and fifties there. Were you know just absence of science? Couldn't that sort of thing. And then things were quite different in the suburbs. We one very big victory in the circuit court in Montgomery and problem was that the Alabama Supreme Court was very republican very conservative and they ended up reversing it so it really shows the limits of how far you can go in some states and it was really very similar to Rodriguez on a state level. That ultimately you need to get a majority of the Supreme Court to say that you have this right and a lot of course are not willing to do that so when you became a public interest lawyer. Did you see the courts as a good way to fight for civil rights for income equality for social change for better education? Yes all of those things I grew up in the war in era and to me. That was what the Supreme Court did Both of my parents were lawyers and judges. My grandmother had been lawyer and I did think of the law as being a force for social justice just the way the Warren Court had laid out when I graduated from law school I did go into public interest law but the post war in courts. The ones that you know Nixon created the ones they write about in. My Book had already very much changed the law. So as I mentioned when I got into Education Law Rodriguez had already said that. There was no right to equal funding under the Federal Constitution. Another major case the following year Milliken V. Bradley had said that you can't have bussing across urban suburban lines so that meant that in large cities in the north like Detroit where milliken took place but also Hartford where I worked on a case for the ACLU under the state constitution in Kent Lake. Say Constitution all this would have to be done under state constitutions because the Burger and Rehnquist courts had really put up roadblocks to it. Why did you leave the law? Well you know for a number of reasons but a big part of it was that cases like the Alabama case were not winning and it seemed that it was not the Force for social change that it had once been and in many ways it seemed that telling stories as a journalist and revealing facts that were not known and making arguments. I spent quite for years on the New York. Times editorial board making arguments might be more effective way in this era to effect change then to hope for a kind of nineteen sixties style. Judge Lead our rights revolution. So in which place do you feel like? You've had the most impact as a public interest lawyer or as a journalist. Well you know if we had won the Alabama case I would say that alone would have made an enormous difference in so many lives that that might have won. But since we didn't. I don't think that if things I worked on as a public interest lawyer had as much impact although they had some and there is a new jail or was new when you know few years ago in Chambers County Alabama that was as a result of the lawsuit. We brought saying that the old jail was inadequate. So you can affect change but I do think that in some ways Some of the journalistic work. I've done I think might have had more impact Adam Cohen. Thank you so much for talking with us. Thank you Adam. Cohen is the author of the new books supreme inequality after we take a short break. Jazz critic Kevin. Whitehead will review a new album by the Carl lay trio. This is fresh air. This message comes from. Npr SPONSOR VIRGO. Finding the perfect vacation. Home for the whole family is hard. You start off looking for a beach house big enough for six and wind up watching videos of surfing. Dogs Virgo. Does the hard work for you. Whatever your budget or whatever. Your family is looking for a yard rail or even a pool. Verbose got you covered. Download THE VIRGO APP. That'S VR B. O. To discover everything from condos in cabins to visitors and castles lead verb. Oh find a home that matches your family. This message comes from. Npr sponsor. Better help the online counselling service dedicated to connecting you with a licensed counselor to help you. Overcome whatever stands in the way of your happiness. Fill out a questionnaire and get matched with the professional tailored to your needs. And if you aren't satisfied with your counselor you can request a new one at any time for of charge visit better help dot com slash fresh air to get ten percent off your first month. Get the help you deserve with better help for decades jazz composer and pianist. Carla Blade lead big bands more recently. She's toured as part of a quieter. Trio with bassist Steve. Swallow and saxophonist. Andy Sheppard jazz critic. Kevin Whitehead has a review of their latest. Life goes on Carla blaze. Big Band music gets compared to Nina Rotas. Bustling scores to leany movies. Lots of action and instrumental collar now that she's miniaturized or concept a trio size writers invoke. Eric's not French of droll deceptively simple repetitive to the point of maddening. Piano pieces grouped in little suites. That could describe the music on blaze new album. Life goes on with her Powell and partner. Steve Swallow on Bass Guitar. Plus English Saxophonist Andy Sheppard. They're alive for thirty years playing Bass Guitar. Steve Swallow brings out the base and the guitar with a Distinctive Sandalwood Tone. He can sneak away from the base function about it. Feeling like the bottom's falling out and then he'll sneak back in Carlow Blair doesn't spotlight her piano much. The better to listen to the other. Guys Andy. Sheppard has a bright perky tone on soprano sax that lends itself to the jocular material and his lyrical soft tone. Tenor suits blazed pretty balanced There are three suites of music on Carlo. Blaze NEW ALBUM. One is called beautiful telephones. Dig at the chief executives love of Shiny baubles on one section she weaves a number of patriotic songs into her solo as if disdainful reproach that's fainter protests music than the revolutionary anthems. She used a bat out with the Liberation Music Orchestra. But it's consistent with the trio's scaled down inside voice dynamic Blaze late phase brings her full circle. She'd started out writing. Jimmy Giuffre trio with a similar lineup. And even the same BASS player Steve. Swallow then as now. She wrote catchy tunes built on almost nothing. Some little scrap of melody may be repeated in grudgingly developed till she had something. You couldn't get out of your head on the last part of her copycat sweet. The musicians echo each other the way the melody echoes itself. And then when you'd expect some contrast she keeps ploughing straight ahead and makes it work After playing this music on the road carl play Andy. Sheppard and Steve Swallow recorded. Life goes on in May two thousand nineteen that was the month blade turned eighty one still writing fetching tunes. That may not look like much on paper but come alive and performance for Carlo Blais. That's business as usual in life as in the music. Keep following those cycles around with minor variations and little improvements and you'll get someplace day by day that's how life goes on Kevin Whitehead writes for point of departure and the audio beat. He reviewed life goes on the new recording by the Karla. Blade trio tomorrow on fresh air. Our guest will be tech writer Steven Levy whose new book about the history of Facebook is based on hundreds of interviews with former and current employees including Mark Zuckerberg and Sheryl Sandberg leaving. We'll talk about the company's enigmatic leader. It's dry for expansion and how. Facebook has responded to numerous controversies. Hope you'll join us. Fresh Air's executive producer is Danny Miller. Our technical director and engineer as artery. Bentham our associate producer of digital media. Is Molly Seavy Nesper? Roberta shorrock directs the show. I'm Terry Gross.

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Supreme Disorder with Ilya Shapiro

James Wilson Institute Podcast

1:17:37 hr | Last week

Supreme Disorder with Ilya Shapiro

"This program is brought to you by the James Wilson Institute on Natural Rights in the American founding. If, you'd like to learn more about the James Wilson Institute please visit James Wilson Institute Dot Org. We hope you enjoy the program. Hello and welcome to another edition of the James Wilson podcast I'm your host Garrett's networker. Today, we're pleased to be joined by Ilias Shapiro Elliot's the author of Timely New Book Supreme Disorder Judicial. Nominations, and the politics of America's highest court for Publishing. By, day. He's the director of the Robert a Levy Center for Constitutional Studies at the Cato Institute. And publisher of the Cato Supreme Court Review. Before joining KEDO, he was a special assistant and advisor to the multinational force in Iraq on rule of law issues and practice that Patton boggs and cleary Gottlieb. Before entering private practice, Iliad clerked for judge e Grady Jolly of the US Court of Appeals for the fifth circuit. heald's an AB from Princeton a masters from the London School of Economics and a J. D from the University of Chicago Law School. Joining us as well on the PODCAST Dispenser Reeves One of our interns at the James Wilson. Institute. Spencer why don't you start us off? Thanks so much for that introduction Garrett Alia thanks so much for taking the time to be here with us this afternoon. So to get started to get our listeners a little background on on this project, you're working on this book supreme disorder. Would you tell us a little bit about what prompted you to write a book about Supreme Court nominations in the courts political history? Sure and it's it's great to be on happy to talk to you and all of your listeners. Supreme Court nominations every there's a vacancy it seems like There's a there's a one way ratchet up of tension of toxicity of just fewer and controversy in Washington and around the country, and so I wanted to explore is something broken. Now do we need some kind of reforms and so I wrote this book that looks at the history from George Washington all the way through wreck havoc on and the role that the nominations in the Supreme Court, playing in the twenty twenty. Election campaign. And it turns out that politics has always been part of the process that might not come as much of a surprise But what's really changed isn't so much the twenty four hour news cycle or the advent of social media or or television coverage or anything like that. It's more that we have the culmination of several trends whereby divergent interpretive theories map onto partisan preferences at a time when the parties are more ideologically sorted then. at least in civil wartimes, and so of course, the zero sum game that is limited number of both Supreme Court and Lower Court appointments. Those are going to be fraught and so any sorts of reform proposals which will get into whether it's term limits or expanding the court or changing the confirmation process. All of that is really addressing symptoms, rearranging deck chairs on the Titanic, the real issue, and the reason we have these huge. Battles. Is because the Supreme Court especially but the lower courts as well decide all of these huge political controversies in our country power has been shifted to. Washington, and within Washington to the executive branch and administrative agencies, and so the courts are deciding the federal court and the supreme quarter deciding all of these huge issues and so the only long term sustainable way to reduce the temperature on these nomination confirmation battles is to make the courts in effect less important. Have them be less powerful by not having? To resolve all these major issues whether it be social concerns federal power or or or anything else. Now, that's not an easy fix obviously but it didn't we didn't get to where we were overnight either. So separation of powers federalism kind of the courts doing their proper role, and we can debate what the jurisprudential outcomes should be. But as as as far as the politics and the and the confirmation battles are concerned There's no magic here because the the issue is the product, not necessarily the process. Thanks Celia this is Garrett. I do want to. Home in on a on a distinction that you made just now the difference between sort of the the actual issues, the substance vs on the the formal or the structural concerns. That that the court must consider. When. Taking cases and and deciding. On them but. One of the central themes of your book that we wanted to begin focusing on was just how the court views its legitimacy in how that endeavored or sort of a the courts introspection effects. It's decision making external actors from the courts deemed to be exercising political will in attempts to shape the popular opinion of the court right now and. Intern they're trying to have it affect the court's jurisprudence. Now, this runs counter to how you and many others conceive of the central purpose of the court, which is to get the law. Right. However one of the persistent findings of yours in the book is that politics has affected the composition of the court throughout its history, and then it affects the judgments of justices on the court. So what has placed the court in the awkward position in your view of being the so called least dangerous branch, but also the most questionable branch for determining what citizens considered to be political rather than legal questions. All the court has always played an important role in American governance. This isn't something new. This isn't something that the you know John Roberts has devised or you know he's not the first one to to want to extricate the court from a political discourse. After after all the judiciary is one of the three branches and we're supposed to have checks and balances kind of a constitutional interplay among the branches and from the very beginning the issues or the or the the legitimacy concerns tie back to your. Explicit. Question have changed over the years at the in the early days. It was all about the legitimacy of the judiciary at all will we have judicial review? What kind of power will this institution that's very small and was operating from the basement of the Senate and you know all these are what we what role would it play once that was solidified by John Marshall's leadership, and and otherwise deciding on the scope of federal power things like that. Then we shifted into a kind of A. A pre-civil war ward discussion of slavery and what role that would play and and You know the federalism, the relationship with a slate of states to the federal government and the fugitive slave act all those sorts of things. Then it became the growth of the Republika after the civil war reconstruction, the industrial age I mean all the things that we think about when we think about American history, there's a legal or jurisprudential aspect to it. The progressive era, the the national security issues during world, war two and the and the Cold War the civil rights era. All of these things have a legal jurisprudential dimension. So there's new way to remove the court altogether we wouldn't want it to because it's supposed to be one of the three branches that indeed the excesses of either legislation passed by Congress or enforcement actions taken by the President but the the. Question is what kind of justices and lower court judges as well. do we want and there's nothing wrong with presidents to account what kind of interpretive theories they might have although presidents over the years over the history of our republic have used the criteria and have interpreted the that political criterion differently some of them have looked at just balancing party or aligning or rewarding parts supporters others, Teddy Roosevelt famously revolutionized the process by looking at potential candidates. so-called real politics. That is i. don't care whether you're a D. or an are whatever your your formal affiliation is but are you going to help me a bus trusts and? An endeavor to to support progressive. Policy Making that he wanted and then in the modern day you know we've we've seen from from Nixon's strict construction which evolved into a originalism and then the the empathy San Standard with with Sonia, Sotomayor, the so-called Wise Latina controversy, and now we see presidents trying to You know they recognize that there are these different interpretive theories and so it's not that they necessarily want someone of their party or or to who agrees with them on policy or ideology. But this recognition of interpretive theory being an important part what the court does at least for the most controversial cases that that make the make the front pages. Sure. Sure. I. Think well, if we're going to dig into the to the reasons why? We have political actors just most notably in in recent months Senator Sheldon Whitehouse Democrat Rhode. Island questioning the legitimacy of the Supreme Court in a in a rather pointed or some might say a appropriate amicus brief. In particular on whether or not the court would take up a challenge to its existing jurisprudence on the Second Amendment A does it come down more to the issues that the court has Almost monopolized. Onto unto itself abortion. Would certainly fit that description but you could go back in history and You could certainly point to other Actual, substantive on disagreements does it in your opinion? Deflect or lessen the argument that this is. these controversies really could be avoided if we had more federalism that of skips to the conclusion of your book, but but I do WanNa see it toward of address this chicken and egg problem with you. Well. You'll never eliminate all the controversies because they're going to be issues of whether particular legislation is. Constitutional or not, and that's going to be controversial low whichever side of that question the court ends up on or for that matter rights questions you know whether it's abortion the second amendment those rights you know interpreting those rights. Even if we have you know the best federalism that that I myself A. Delineation of powers between the federal and state governments. There are still going to be claims. The states are the localities are violating peoples, federal, constitutional rights, which ultimately the Supreme Court will have to decide but on the question of legitimacy. Ironically perhaps, the court is generally seen as most illegitimate when it acts out of these or seen as acting out of these principles of trying to preserve legitimacy rather than simply deciding the law as it stands that is people might like or dislike the court based on whether they agree or disagree with the particular decision, which is why historically Supreme Court has never been even though it's supposed to be a counter majoritarian check on the the popular branches It's never been too far ahead or behind of popular opinion tries to kind of craft compromises that still hugh the law one way or another. But when seen when the court. Is Seen as a making decisions for small P. political reasons or any other kind of extra legal consideration. That's when it really runs into trouble of legitimacy and I think you know whether that's a dread Scott back in the eighteen forties or whether it's John Roberts. Just a couple of months ago you know it's it's it's a it's a tight wire It's it's a high wire act to maintain but I think we're better off as a society in terms of legitimacy of our institutions debating what the proper interpretation of the supreme of the Constitution our particular statute might be rather than whether you know the Supreme Court is is acting. Kind of legitimately and some more abstract concern. So, why why do you think that is that we've got the the courts never too far out of step with public opinion but when it plays to directly to public opinion that gets in trouble. At least my estimation of the public at large is that they're not that concerned about whether the laws interpreted correctly they care a lot more about public image. Why? Why does the Courtney to stay in that little area where it? Pretends to it doesn't get too far out of the way, but it is also making sure that it doesn't look too nakedly political. Why is that Swim Fort? What will that? That is the definition of legitimacy I mean, there are really there's an external on there's an internal if you wanna get really political science definition of legitimacy is the court broadly popularly supported and even though it's approval has declined. Over the decades and generally shifts up or down now based on party affiliation really on whether the latest high profile opinions went in the direction of of of progressive or Conservative policy preferences but it's still more respected than than most institutions in this country and you know the court has not supposed to be a nakedly political actor in the sense of simply ratifying political conservative of popular. Sentiment Again, the only way, the court not being a self starting actor, it can only rule on cases and controversies brought before. And it's needed to do that to make unpopular or uphold minority preferences a rights as it were but you know the thing is I think these these kind of external concerns are overblown because if the court starts ruling too much too far away from what the public wants. Well, then the public will start electing presidents and senators to appoint. Judges injustices that to to go the other way. That's that's the ultimate check. On the court even FDR, when he was faced with. A relatively anti new deal court and could do not have any vacancies in the first term of his presidency when he proposes court packing scam to remedy this that was highly unpopular and led after his landslide reelection in nineteen, thirty six. In the next midterm, the Democrats lost eighty more than eighty congressman and eight senators. The his vice president FDR's vice president campaigned against the core packing, and that's even though the new deal policies were popular people really didn't want the political actors messing with. The court as such and you know, Lo and behold their political will the People's political? Will FDR support coalesce such that less than four years after his debare of his court packing plan he was able to appoint I think seven of the nine justices by that point. So these things take time, and so that's you know again, jumping ahead to modern reform proposals and what have you court packing really has never a nerd to the benefit of anyone who's proposed it whether we're talking under under Thomas Jefferson who's all of most of his appointments just went under the wing of John Marshall Anyway despite Jefferson's anti capital, F., federalist policies or or or FDR the are losing politically there But in the long term, if you can sustain those political positions, the naturally the public accountability of the Senate and Presidential Elections will balance out the court as well. Would you describe our current moment are of these vis-a-vis judicial confirmation politics and potential threats to the Integrity of the of the Supreme Court and the lower courts. Would you describe the This moment is unprecedented or in your research did you find strong parallels to past crises that on we've already lived through? Defends depends how you define precedent so. All. Told there have been one hundred sixty three supreme court nominations that have been sent to the Senate's official nominations of those one hundred twenty six have been confirmed. So high rate, but you know maybe just over three quarters. That's not approaching one hundred percent. The others twelve were rejected only twelve twelve were were withdrawn. After facing opposition in the Senate three, you were postponed indefinitely I love that euphemism in ten had no action taken. So the Merrick garland situation no action taken down not unprecedented it's happened ten times now didn't happen so much in recent years. But that's because a lot of the politicking took place either on the front end or with rejections at the back end. But you know the the way that that politics in standards itself in the Senate the Senate's advice and consent role has in standard itself has changed over time, but it certainly nothing unprecedented to have nominees either rejected or or not acted upon in fact, the last time that a vacancy arising during the during a presidential election year was filled by a Senate controlled by the opposite party to the president was eighteen, eighty eight nothing happens very often. But when that divided control is very important and I mean it it's kind of a truism, but it shouldn't be surprising to note that when the Senate is controlled by the same party as the president, it's a lot easier to confirm Supreme Court justices I. Guess We can't understate that given the current debate about what would happen if president trump got another. AKC. Now, whether before or after the election, believe it or not. There have been lame duck nominations and confirmations again when the Senate is controlled by the same party, it's a matter of of pure politics and what the Senate leadership thinks it can do and what did thinks we'll be supported by the voters and and all of those kinds of purely political. Considerations, and so we see that there's really nothing new under the sun in over two hundred thirty years that we've had the republic rate So we're looks like we're about ready to get moving into discussions of some of your proposed reforms supper. Before we leave the history questions, this is far as a matter of the history of the greenbrier nomination processes is. Fascinating to me as a law student but to the sort of the lay person who might who might look up pick up this because they're concerned about the increasing politicisation of the nominations process what's the big takeaway from them from all of the history that you've gone through as far as understanding where we are in the court today and we're the nominations process now? The nominations process is fraught because what the court decides matters and the Party of the President who appoints in of the senators who vote to confirm the the nominee that is now more indicative of. Jurisprudential differences than it's been in a very, very long time probably civil war days the fact that the five most conservative members of the were appointed by Republican presidents and the the four most progressive Uh justices were appointed democratic presidents that might seem well of course but no, that's actually abnormal white as an Hauer appointed both Earl Warren and bill. Brennan. Two of the most left leaning justices of the twentieth century and he called those both mistakes although he picked. Brennan which was a recess appointment a month before the presidential election by the way. Brennan to secure the votes of Catholics in the Metropolitan Northeast. It was a it was a political ploy. That was you know we'll worry about the jurisprudence later on those things have happened as well. But again, this alignment of a partisan preference to jurisprudential approach that's new, and that's why things are fraught even the character assassination that we've seen with with. Cavanaugh with Thomas that's not really new. We've had all sorts of slanders and calumnies against against nominees in the past it's more amplified now because of social media and everybody can watch you know back in the day, you'd have to read about the the debates or not. Since when on behind closed, you wouldn't even read about it weeks later. And the fact that we have public hearings that's changed things as well. We actually didn't have hearings until nineteen sixteen when I would argue the most controversial nomination ever made took place. That was Louis Brandeis. That right Robert Robert Bork was controversial Brandeis was this crusading social reformer? He was the first Jewish nominee I mean this was highly controversial now even then he didn't testify himself because that was seen as on unseemly. So his advocates and opponents would testify there and we moved to a time. You know even in nineteen, sixty two when when JFK nominated Byron White that hearing lasted about an hour and a half at West which the nominee himself testified for about fifteen minutes on questions relating to his NFL football career probably the last justice to play pro football while while attending Yale Law School. And we moved to this day where the hearings are really all about Gotcha moments and and point scoring on both sides without really serving a very much of an educational purpose. So you know that that's where we are, and so you know one of the things I actually talk about the segue entire discussion of possible reforms is whether to even have public hearings in the first place given that all of these nominees these days have a large paper records that are available. At the click of a button online to analyze whether they're writings, their speeches, opinions, and so forth. It's highly unlikely. We will ever have another nomination such as the one that justice George Sutherland received when he was a senator at the time this is George Sutherland appointed by president harding I believe in the Early Nineteen, twenty S. George Sutherland was on his official senatorial duties away in Europe, and in the time span of his several week stay. In Europe, the Senate actually nominated Asari a harding appointed the Senate up the nomination and the Senate confirmed George Sutherland, and it was only upon sutherland receiving a telegram while in Europe that he'd learned all of this and so when he returned to the United, states, he would be sworn in. It you know. And we. Won't see I think nominees declining not knowing they were nominated being confirmed and then declining job because it just wasn't worth it it's. Onerous with a circuit riding having to go on the horses through the mud to the to the western states and territories John Quincy Adams. For example, declined a nomination before he was president. So. Yeah. Some things definitely have changed and we won't see again. Yeah. Well. Even though would only comprise the final third of your book your section on proposed reforms for the Supreme Court, and the lower courts along with the nominations process. It's likely to be of great interest to our listeners only because I think. So many of our listeners on do follow the work of. The courts closely. All of these tweaks I think they have a lot of built in Pros and cons, but I just don't think I'm I've come across. A book as. Comprehensive as yours in laying out all of the ideas that have been put on the table you go through what seems to be the full literature of law review articles and legislative proposals. That have been discussed in you know in the modern era and so. Just for your own ability to judge just to commend you for for your ability to to include all of them in the book into into, keep it keep your book so highly readable and to not have it. Read like a almost like, Listrik Uil. Is. is is fantastic but how did you narrow down the most plausible and implausible ideas for reform? Part of this is, is I have to give credit to my editors at. What the manuscript I submitted was about fifty percent longer than the book that you read. Now most of what ended up on the cutting room floor was actually in the history. There are all these just a random drug historical nuggets that are very interesting, but don't necessarily advance the narrative or lead to lessons in the present day that unfortunately since this wasn't a history book, it was one generally about the state of of nominations and Supreme Court battles that that had to be left off as similarly some of those law review some of the law review literature and other academic. He stuff that since I was not publishing with an academic press. Again. Had to be left off. But how? I. Narrowed it down was. Kind of an unscientific survey I keep up with both the popular and the academic literature in this in this field. And I sort of saw what what kept coming up again, and again you know term limits was the biggest one and without why Its own chapter But certainly, just in the last few years, the the primary campaign that the Democrats had there are a lot of proposals being thrown around and indeed You Know Kudos to certain professors whose whose ideas got picked up on the campaign trail that happens very rarely for these esoteric abstruse technical proposals that that professors might might come up with. And you know at the end of the day, there's not too much that you can propose can propose variations of different things but you know limiting the term changing the size of the court changing the structure of the lower courts Putting in new rules about how soon after a nomination, there has to be a hearing or a vote or who can ask questions at the hearing. These are pretty obvious things if you if you and I just sat down and brainstormed, you know without forgetting, you know what we learned from my book or what have you mean? These are kind of the lowest hanging fruit type of proposal. So I'm sure there are in fact I know there are more complicated and abstract sort of things that that have been proposed but these are ones that come up again and again, and therefore really are are the most realistic or plausible wants to be taken up. is there anything about this moment before we get into specifics that you would? Say a makes it most ripe for potential reform or is it just that we've seen the? Flowering. Of Literature because of just how deep the political and popular interest is in the work of the court. Well a lot of this is tied into the legitimacy not of the court but of president. Donald. Trump and after his There've been a raft of proposals about you know responding to the so-called stolen seat the seats you know stolen from. Obama. That will end up. Just as gorsuch ended up being confirmed for the illegitimate the so called illegitimate seat of of of Brad Cavenaugh You know this idea that in fact, all of the Republican appointees. are legitimate because, of course, Bush v Gore that that that George W., Bush was. Selected not elected and that meant. So that's Alito and Roberts Plus Thomas of course had his own controversy. So all of the Republican appointees are illegitimate therefore goes the left-wing critique. Of course, the response to that is well, that's because the left wing activist groups made it into that sort of thing but we have seen ratcheting up of tensions over this issue which did not begin with Garland, did not begin with. Bush v Gore It didn't begin with Clarence Thomas and I'd say didn't even begin with with Robert Bork or or Roe v Wade I mean those are kind of the the symptoms are that's you know kind of the surfacing above the the the tip of the iceberg that the visible part. But really it's over the course of decades where you have these jurisprudential shifts that people have different views of the judicial role different. Views of types of state or federal legislation should be constitutional or what kind of criminal justice reform we put in place for member in the in the Warren Court even before Row v Wade or or the sexual revolution There were concerns about criminal procedure and all these law and order issues, Impeach Earl Warren signs all over the place where they're not because of of Roe v Wade, but because of desegregation and. A law issues. and. So it's it's taken decades to get us to where we are now, and finally you know the latest ratchet is Donald, trump's election Mitch McConnell holds the seat open then gets rid of the Filibuster, Supreme Court of course again, it's a ratchet it's not a singular event. This was after Harry Reid when the Democrats have the majority in the Senate, got rid of the Filibuster for lower court nominees, which was after read himself pattern to use of purely partisan filibusters to block lower court nominees and on. And on at a certain point, it doesn't matter where it began or who's to blame but that's just illustrating the dynamic that we face and so the response now is we need to because the court is broken because it's illegitimate for the reasons I just detailed, and that's why we need to have all these things. But I think a lot of times whether the academics or the politicians are kind of being too clever by half. There's one proposal for example, by a professor Dan, EPS and Vanessa term on at. EPPs at Wash U. Sitaram on at. Vanderbilt those picked up by P Buddha judge that involved expanding the court to fifteen but having five appointed explicitly by Republicans five by Democrats and the other five by has to be by unanimous agreement of the so-called partisan, the ten partisan justices. Now, how you de-politicize a court by explicitly attaching a partisan letter, two thirds of it I don't know but again I think there's just this fever swamp of we have to do something about this court and you know I think. John Roberts is actions. This term is past harm. Especially might be a reaction to that to try to turn down the volume himself by making the court seem unpredictable and by trying to have fewer of these five four decisions that are not simply conservatives over liberals, which is shorthand already but so called Republican justices over democratic justices and you know that's a whole separate issue, the John Reid a bit. but but but but that's why we are where are. ille- as you alluded to just now way to explain the heated fights over judicial confirmation. Might be through the Lens of Game Theory. Democrats will point to the treatment of one of their nominees to the cord Merrick Garland as justification to pack the court Republicans can point to the treatment of Robert Bork years ago, to justify their treatment of democratic nominees. How are these episodes related you discuss in your book What's called tit for tat as a sub topic under game theory potential explanation for judicial confirmation politics. Right. Well, when I mean, it's it's not very complicated with one side does something the other side feels aggrieved and to use a poker term calls that That move and raises even further, and so we've had these tit for tat. Escalations notably I should say Bork wasn't really assailed personally there were no charges that he was a sexual harasser although people famously went through his video rentals to see if he'd gotten out any porn or any other weird movies I suppose, but it was all you know it was kind of a demagogic attack on his actual legal and policy views. Clarence Thomas and cavanaugh were different in that. It was their behavior that was at issue cavenaugh. A garland was never attacked a personally. It was all about the particular seat. So these things work a little bit differently at times, but once the after bork. And once the Democrats started attacking Reagan's even lower court nominees towards the end of his term that sort of started that that tit for tat process where one after another party had the chance they would they would try to derail the other party's nominees. Note this was always at a top of divided government justices Ginsburg brier were confirmed. Nearly, unanimously, because Democrats control the Senate when Bill Clinton was president for those nominations in fact, a year before Bork when. Rehnquist Justice Rehnquist became chief justice, Rehnquist, and Justice Scalia was appointed. Scalia was confirmed unanimously. Now. That was in part because he's affable kind of more likable than Bork and that sort of thing but also Republicans control the Senate. So you see the most you know the most heat, the most vitriolic grandstanding if you will when you have this divided government until gorsuch and Cavanaugh, that's the one time where the Democrats were still in the minority in the Senate But still which is why they weren't able to derail a either one but that's the one time where in a time of united government there really was at that high profile a battle. I WANNA I WANNA. Press you a little more on the on on the tit for tat explanation because. If we are content to be living in a tit for tat a scenario, then it seems like we've resigned ourselves to a constant. Series of elevations with really no incentive to. Seek. Some kind of de. Escalation. How I is it even desirable to seek some kind of compromise or much less is it possible to seek some kind of compromise here and if not, what is the? What is the endgame? Is the end game just the total politicization of the nominations process bleeding over. Into issues that it would necessarily involve the the personality being nominated. Well there, there aren't too many more weapons in the quiver short of court packing sort of expanding the court I suppose one party could say delay the or not approve any nominees of a president of the opposing party. Until they get a particular kind of agreeable supreme court nominee or or nominee. But again, that's during a time of of divided government I mean at the end of the day you know these it's all about confirmations, our political process just like voting on a treaty or a piece of legislation in the Senate. Can refuse to do that. If it thinks that the it's not warranted or that it's in a stronger political. Position than the President we've had times when presidents were were week and the Senate, just refuse to do anything with their nominee John Tyler again to look at the show that there's nothing under hundreds on John Tyler, think six nominations to seat one person he was basically party less he joined William Henry. Harrison's ticket as a kind of a cross party compromise and then Harrison family caught famously caught pneumonia in that. March storm when he went out without a coat. And Tyler was trusted by either side. He was called his accidents and they didn't want to confirm any of his. Nominees Ulysses s grant had I, think it took him seven choices two of them formally submitted to the Senate two or nine choices to confer. It is just remarkable times and it all comes down to the politics of it. So if a Senate majority leader feels that here she has the has the whip hand politically ended the people generally support that position Then he's GonNa play. Hardball if the President has just been elected or reelected on a on a huge mandate that's going to be harder for the Senate to resist because it'll be voted out in in two years. So it's a delicate political balance just like stonewalling on a piece of legislation will not work for long if the you know the people have a chance to vote out those who they consider to be obstructionists. But you know if if we continue to be have these very close elections, even if the Senate changes hands from time to time even at the white. House changes hands from time to time. You know there's there's not much of a mandate for for for anything and so yeah, we will continue to see escalate until until divided government or other political markers force a compromise. I do want to turn it back over to Spencer, but very briefly, I think that the tit for tat we've seen in judicial confirmation politics will not stay confined to judicial confirmation politics we've already heard. Cries to eliminate the legislative filibuster. Because the filibuster being. Eliminated for the Supreme Court in Lower Courts has already been breached and. It doesn't seem that Great A. Bridge to cross now that the tit for tat escalation has reached the level it has been I think it in that way our listeners if they're skeptical of whether or not. The judicial confirmation politics can stay confined to judicial confirmations. It's not. So. Well. That's. Judicial nominations the confirmation processes just like any other piece of Senate Action Now I mean it's it's a unique Occasion in our. Governance this is the confirmation hearing for judicial nominees. The only time that judge or justice faces the Senate Otherwise they get life tenure and they they rule as they can only be re, they can only be impeached and one Supreme Court justice by the way has been impeached but not removed about a dozen. A lower court judges have in our history for all sorts of ethical malfeasance not the someone disagreed with their rulings or what have you. And Yeah I mean we have to recognize that the judicial appointments matter I think voters increasingly realized that and therefore their elected officials increasingly realized that and so I don't begrudge. Any senator doing all he or she can to support or oppose a nominee that he or she thinks will be very good or very bad for the rule of law or the constitution now I'm gonNA fiercely argue with that theory of the Constitution if I disagree with it but I think that's the right place to hold it. Whether the court is being. Restrained or activist or minimalist all of these kind of what what scholars call judicial mode questions rather than questions and judicial interpretation. A right. Well. Let's. Let's take a take a minute here and get into some of Poza, and you mentioned earlier that the one that sort of has gotten the most support term limits that seems a good a place as any to start at one of those popular versions since the eighteen year term limit version, Supreme Court justices were you seem to get a happy balance between Passing political controversies and making the removal local justice little more predictable in its particularly popular amongst conservatives who like term limits is an idea of identifying your book. A lot of ways that term limits only kick the can on problems of politicize the selection of justice. Could you talk a little more about your concerns about a term limits potential fix the court Sure, a term limits are not a new idea they were discussed and debated by Thomas Jefferson and Alexander Hamilton. They, not not surprisingly they. Take on a bit more urgency or more more discussion when the average age of the court creeps up they weren't really discussed in the ninety s and early two thousands. But soon, there was a eleven year period between Justice Briar confirmation in ninety four, and when chief. Justice. Rehnquist died in two, thousand five or rather when O'connor retired and then rehnquist died that there there were no vacancies and so two towards the the the mid to thousands. That's when there was a lot of heated comment in proposals term limits. And Yeah, the you know there's something appealing that with an eighteen year term meaning, there's a guarantee that each presidential term has to and no more than two unless there's a death or other retirement appointments there's something appealing about that rather than the kind of Macab Health Watch over justice. Ginsburg that's going on right now and. Her trying to outlive, the trump administration and and things like that You know there's there's something salutatorian about that It wouldn't necessarily bring more used the court by the way because if there's an eighteen year term, then all of a sudden people in their sixties might be worthy candidates again, whereas now you try to appoint people in their forties. So they can serve thirty or more years nor would it really have a practical effect in terms of ideological mix because again as FDR found? As you stay in power long enough you get to a point the justices talk speaking of of Game Theory if people had had gamed out, you know the the the last half century or so of judicial appointments had these eighteen year term limits existed well, the ideological balance of the court in terms of more conservative and liberal and swing justices would stay about the same now, they might not be appointed by the. Republican or Democratic. Presidents. But the ideological bounce would likely have been and will be going forward the same given the natural turnover in the White House and the Senate. Has Going for it is the popular legitimacy angle people will see the court as kind of. Refreshing itself having new ideas or younger blood or or what have you again the these regular vacancies rather than sudden you know defcon four kind of emergencies at unpredictable. Times the problem is One is legal and one is political The legal one is that it would require a constitutional amendment The constitution says the judges serve on good behavior. Now, some scholars have tried to be clever and said, well, we give the justices a life tenure but after eighteen years, they can be called senior justices and rotate back to the lower courts or what have you will still keep paying them they. They're still calling me. That I think that's too clever by half So, I would require a constitutional amendment, which is very, very hard and we'd probably want to use political capital on other things whether you're on the left or the right but politically speaking even if it didn't require a constitutional amendment how exactly would you Do you start the terms? If the. If the Senate. If Congress passes a law saying, okay. We'll just start with whichever justices are in place ten years from now twenty years from now everyone starting from the third presidential term from now something like that. Well, as we got closer to that, there'd be pressure for the party that looks like it's GonNa be losing out in that scenario to to change it in in some way so much like with court packing and you know setting a new number for the court, there's that Game Theory problem of as the as the change comes closer and closer on the political horizon, there's going to be pressured to to make a further change so as a game politically. So you you mentioned court packing ice. We we can go and talk about that note I i. think it's interesting. So I think the average person probably thinks of court packing a as an interesting new deal history footnote or at least they did until very recently But now the the Democratic National Conventions Platform has included structural reforms is one of their one of their planks and adding more justice according to without a historic rested and in from at least from A. Certain perspective it's not without merit since the coach has been the same size for a long time. Now in the population, the United States has ballooned it might be said that it's not no longer representative in terms of proportionality to the rest of the nation. So I guess the question is why not increase the size of the report to defuse more power amongst greater pool of justices with ever-more more varied perspectives or is this something that the parties are gonNA come to regret? Well based on the historical example I think it it it whatever short term gain the Democrats would would would get from from by the way they can do it by a simple act of legislation no, no question. You don't need a constitutional amendment they probably have to get rid of the. They'd have to get rid of the legislative filibuster, but but but that's about it but historically even passed the short term gain. There's there's long-term loss and my my the chapter on this details the growth from the original six seats up to ten and then back down to eight, and then settling on nine and where we've been for over one hundred and fifty years at this point. Now, nine is not a magic number If you were setting out a drawing up a supreme court from scratch you might want more than nine if for no other reason than that, they presumably be fewer ten to nine acrimonious splits then five to four ones. But. We're, of course were not working on a on a Tabula Rasa we have where we are with the nine and so there you have again more game theory problems if a party if the Democrats in this election, win the White House and the Senate had unified government add two seats well, the Republicans probably when they have unified government will add two more seats and this is one of the very few things I agree with Bernie Sanders on you know he said at one point and I can't do the accent but he said well, pretty soon, you're going to have eighty seven justices. He's right. At a certain point, you just keep expanding the court and it becomes a little ridiculous and unworkable. Really I mean you. Social Psychologists will will tell you that past us or organisational psychologists say that past a certain size. An organization just doesn't work or the way that it works changes. So people have responded to that by saying oh well, then the supreme court can hear cases in panels of three or five or nine or whatever. If if it's bigger, well, that's fine but that's creating a whole new structure, a whole new system. Right you know and again, politically a very difficult I. Think the Democrats they are likely to do is add lower court judgeships I mean we haven't had new judgeships I think since the Clinton era and the the judiciary really really needs them by by the conventional measures of number of cases pending per judge especially district judges in high growth states and and high growth cities they they're really calling out for them Circuit judges as well. But especially, the ninth circuit actually have a lower of article called a break-up, the ninth circuit. But Not for India logical reasons as we've seen presidents of both parties get to appoint federal judges even in True Blue California Oregon Hawaii and and what have you this the the ninth circuit as a as an aside. Historically slants left because Jimmy Carter who didn't have any Supreme Court vacancies to fill got a consolation prize of a huge number of lower court judgeships including about half the ninth circuit and then does have basically stayed. In the family. So it's really become an unworkable court but as I said, objectively, there are more judges needed a across the country, especially district judges and especially ninth and Fifth Circuit of the lower a circuit courts need them. So certainly, the Democrats are going to do that are going to fill them call that core packing or not but that's a much easier lift both because you can argue for it as a matter of policy and I'm surprised Republicans have an added judgeships for that matter and or made the case to do so and avoiding the heavy political lift of of. At the high profile Supreme Court level. Yeah it does seem like it's it's. It's likely that we're going to get an increase in the size of the Federal Judiciary I. Think the real question is going to be on timing right and the the WHO decides question so will probably as you say have. the first few new seats be determined by need As you say, federal, District Court on judgeships have been left vacant for for quite long although that's sort of gets the WHO decides question because I think the trump administration would certainly have a candidates at the ready to fill some of those district court seats that have been left vacant in That's an interesting point Garrett actually the. Most almost all in fact. So there, no more circuit vacancies Donald trump has historically filled all of the appellate vacancies fifty three, which is second only to Jimmy Carter had all those vacancies created for him in terms about a one term but the district judgeships are overwhelmingly concentrated in California New Jersey Illinois Washington State's with to not just democratic but very. Progressive Left wing senators who have refused to cooperate with the. White House on anyone even though those are the places that were there tend to be the most judicial emergency. So including vice presidential nominee, Kamala Harris betting on taking over the White House and putting in people they don't have to compromise on but that's that's an interesting again dynamic along the lower court. But I do think at the at the at the end of the day, lower court nominations will be a testing ground I that we're likely to see if the Democrats do sweep as you as you posit. All three sorry. Yeah. The the three. political were in so the House Senate and the White House and to see just how how either becomes a major expensive political capital or if that seems to go through without to much acrimony. Aka, will they need to actually eliminate the legislative filibuster for this or not? remains to be seen I think. The Democrats will probably think if we're going to eliminate the legislative filibuster, it's gotta be for something sexier than adding more circuit and district judgeship. So it may be that it's it's a it's a it's a significant development, but it comes on the coattails of call, call it the green new deal or. Who knows what other major planks of the Democrat Platform ARE ACTED UPON I? What do you think about that? No I. I think that's right I mean I'm simple constitutional lawyer, not a political analyst but it does seem that the Democrats are going to choose one of those so-called eighty twenty issues where there's you know eighty percent public support our overwhelming support not something divisive like the green new deal to to to get rid of the filibuster. And that could be something like universal background checks on on purchasing firearms, which is mostly cosmetic change and would put the Republicans in a in a hard position. If they're going to filibuster that on the other hand enough enough Republicans might defect at least on the on the cloture vote to to prevent the need to get rid of filibuster and that sort of certain circumstances. Again, a lot of of game theory going on there but I I I agree they I, mean I think they'll. They'll. They'll try to basically eliminate the legislative filibuster on something less sexy or less divisive so that then with the next stage, they can put in those controversial things with a bare majority. I wanted to ask you now if we can't reform the court itself where the nominations process do you think that there's some realistic possibilities that maybe at the Judiciary Committee level, we could see some changes enacted in the near future In your book, you discuss some ideas for for reforms that might be made Simply you know by by a majority of members of the judiciary, committee or by the I'm chairman of the Judiciary Committee. Sure I mean you could have we saw a little bit of this in the cavenaugh supplemental hearing the Christine Blasi Ford hearing where the Republicans had an outside counsel do most of their questioning. You could deputise the chief counsel for that matter on on each side to to handle questioning these are skilled trained lawyers. Skilled trained lawyers among the senators as well. But that's not all they focus on and so you know you could do you have better questioning that way. But the the thing is I'm not sure that The opposing party would really go for that because they're not looking to score legal debate points they're looking to make political hits on the nominee and that's best done by the politicians. I mean I again as I said earlier I think at this point, the costs inflicted on our public discourse and on the image and perception of the court by These contentious hearings that cost outweighs whatever benefit people might get from learning a little bit about the law or how the court works or the person being being nominated and You know I doubt. they go and Senate would go for this but I think getting rid of these hearings which have become so much Kabuki theater I think would be a net positive as a again we've only had regular with the nominee testifying on his or her own behalf for about Oh seventy years or so, and so it's not something that that needs to be written in stone. I recall I. Recall our mutual friend, Randy Barnett offering that precise recommendation citing the experience of the Nixon hearings and the Watergate hearings and and and how much more robust and informative. Those I'm hearing were for the public I mean. I don't know if the Democrats would been able to successfully impeach Nixon unless those hearings had been as revealing as they were. So I don't know I guess count me a little more. Hopeful that if reforms are made at the committee level We May bring forth a better more healthy process, but I also wanted to ask you what your thoughts are on. The Blue Slip has it outlived its usefulness. Or do you think? It's still. Has Side Utility for. district court nominees. So the blue slip is really misunderstood it's traditionally just a prerogative of the home state senator of judicial nominee to weigh in on the nominee because back in the day, nobody would know about this obscure lawyer being pointed out of Tennessee or South Dakota or whatever the case might be but rarely have blue slips been ineffective block or veto in the premodern time, which is really before nine, hundred, fifty, six, a negative blue slip meant that the judiciary committee adversely reported the nominee, but still it went to the full Senate floor then there was a period. Where about twenty years where James Eastland Mississippi Arch Segregationist senator was unsure committee chairman he did treat blue slips as absolute blocks to protect dixiecrats, and they're kind of positions on and against civil rights as it were. Then for about ten years when under under chairmanships of both parties Ted Kennedy Strom Thurman Joe Biden a negative blue slip did not necessarily block dependent on the reason. was there an ethical concern? They're not enough betting with they're not enough consultation by the White House but it wasn't simply I oppose the nominee they wouldn't. They wouldn't block that. then for about ten years under Biden and Orrin Hatch on the Republican side, a negative blue slip wouldn't block. If there was consultation between the White House and those home state senators. Now if two if both home state senators opposed than, they would block during that time. When Pat Lahey became chairman for a couple of years in the early two thousands, he did enforce an absolute negative blue slip. And then again, he was chairman in the late two thousands and win Chuck Grassley became. Chairman all the way through two thousand, seven to twenty seventeen. And that's it, and then Grassley changed it in late twenty, seventeen a continuing into Lindsey Graham. Now, where a negative slip only blocks if there was not consultation between the White House and the home state. So historically again, other than Pat Lahey and kind of the holdover rule when Grassley was chairman for a few years other than the segregationist reasoning. There was not this history of a blue slip blocking nominees. So the policy now where okay if you have some ethical or other concern that the committee needs to know about fine, let's get that out but otherwise you know and it it makes sense. Without the filibuster forty one senators cannot block nominee while why should be able to at the certain level at the district level it makes it makes sense to have more power more prerogative for the state senators because of course, those districts are just within that state and they're much more a compromise with local bar interests and things like that rather than the more ideological or national. Policy. Oriented Circuit Judge. Nominees. A might say that senators are going to always remain very very protective of the ability to appoint a sorry to have a veto over the judges, the US marshals, and then the prosecutors who are go who could potentially indict them for corruption in sentence them so I. Think you're right that the the district court level. You're in fact. The judge. The judge I clerked for Jolly of the fifth circuit in Mississippi He was originally proposed in the very early Reagan years to be district judge but he was blocked by then representative. Trent Lott who? was from the Gulf coast had different trial lawyer interests, and what have you judge was from Jackson and had. Came from a different political community as it were within the state. But then when the White House counsel's office said well okay. We'll just put him on the Fifth Circuit House that was like well I don't care about that. So okay. That's a great story. That's a great story. Well, it's let's about jurisdictions gripping then. Say The constitution vests power in Congress to create lower courts games congress broad discretion, determine the kinds of cases the courts can hear and leaving aside the procedural questions on the substantive criticism of jurisdictions prepping. You say in the book that is accessible jurisdictions. Strip is effectively in a visceral reaction of the constitution such that states would have full power to intrude on people's freedoms while the federal government would be less constrained than it is now as the question is that is that's a big claim. Might also be said that a likely outcome of a modest jurisdiction strip the perhaps on the ability of district courts to issue nationwide injunctions on things like healthcare could that be another game of of Game theory scenario of tipper tablets played were in the political branches sort reentered. The conversation on questions court has monopolized whether that's something that the constitutionality of the affordable care act around a broader questions like a portion affirmative action or something like that. Well. I mean it depends what kind of stripping. You. Mentioned universal injunctions. That's kind of a procedural thing that's a purpose of perfectly appropriate subject on which Congress can legislate Congress creates causes of action caused Congress creates. A standards for standing all of these technical you know when they create legislation they, they sometimes create special three judge district courts like in the campaign finance area, for example, So Congress can can definitely when it comes to setting new procedures or or rules for how judges are supposed to apply these procedural things. That's perfectly appropriate. That's what Congress has done historically, and that's nothing new. The problem comes in precisely if the jurisdiction stripping is over something like abortion or healthcare legislation or or something like that at that point again, setting aside the issue of whether the Supreme Court would rule while you can't strip that because that's a federal constitutional right or something like that It does mean that there's less checks and balances and the political branches both at the states and at the federal government are are less constrained. You know I was just reading in the New Republic yesterday. This of the is it the new republic or the New Republic I'm not quite sure There is a piece by an nyu law professor that was a progressive Arguing precisely for abide administration to on day one, be ready to start jurisdiction stripping on issues that it. Would pre presumptively sort of preempt the. The, Roberts court from taking up in advance of a legislative agenda in advance of laying out a legislative agenda. Do you have any thoughts on sort of using the threat of a jurisdiction strip perhaps as a as another way to perhaps make the court kowtow. Well it seems like John Roberts has self jurisdiction stripped as it were coming out. Niro opinions or deciding not to decide as much as possible Look Congress can do that but not with respect to constitutional issues. So a Congress with simple legislation, not constitutional amendment cannot say you can't review this piece of legislation for whether it comports with article one section eight, the enumeration of federal powers or a can't say you cannot review this legislation for whether it violates the First Amendment it just can't do that the Supreme Court's GonNa Strike that down. So you know for certain technical. Things you know it can say, yeah over the the The tax anti injunction act you can't challenge attack until it's been assessed are enforced. That's perfectly fine. That's a rule of standing. That's a rule of win claim cruise when when a when a statutory claim accrues, that's perfectly fine. So I don't know what kind of procedural issues they would put in that way to limit judicial review but again, they can't they simply can't strip constitutional claims. So. Were coming to the end here and we'll just we wanted we wanted to make sure for the record that you. Discussed kind of the the reforms that you had the greatest chance of actually becoming law were becoming right a new norm where new practice within the judiciary committee you are Senate rule. So in fact, what do you think you know has the greatest chance of. Becoming, enacted work or or actually what reforms on could become. A part of law in the near future. Well things that don't require a constitutional amendment so. you know most of what we've talked about not the term limits but expanding the court or Changing Senate rules about how hearings work those things are all possible but it but it comes down to incentives. So and it comes down to our. So are Democrats going to if if Democrats take the Senate are they going to want to spend the political capital to expand the Supreme Court probably not right away I mean it's unclear what Joe Biden's mandate in that scenario would be other than not being Donald Trump which he'll have fulfilled on On. Inauguration. Day, conversely, if Donald trump is reelected or the Republicans keep the Senate then They certainly don't have any incentive to to change any of this. If if Joe Biden is President and Republicans control the Senate. They don't need the filibuster. They have the majority in the Senate, and so they have the numbers to block a nominee that they would consider to be too extreme You know it's I really don't think that any reform proposal is to likely really You know setting aside the issue of adding lower, court judgeships, which has done from time to time anyway it doesn't necessarily have to be politicized but at the end of the day, the court is going to be de-politicized when it starts Taking controversial issues the votes of which depend on the. Party of the president appointing justices for that matter you can see Roberts voting different way if Biden is president than if trump is because he sees his role in the coach role as as balancing the branches in that way and trying not to let you know deferring to the status quo as it were. We'll see what happens with that but you know neither as an empirical nor is normative matter. Do I do I think that there will be or should be significant reforms? Changes regardless of what's in the Democratic Party platform. So sort of you know as we come to the in here, bearing in mind like you said, reform isn't particularly likely want to zoom out the thirty thousand foot levels were looking to the future and It makes me think of something that did. Tocqueville. Road in his his classic work democracy in America he talks about the idea. That lawyers in general are vestiges of an aristocratic water that helped check. America's democratic impulse and that's the only popularized the today we have sort of democratic majoritarianism coming from the West did oppose the electoral college that's the doesn't like the the lack of proportionality in the Senate and we've got on the right. We have right wing populism. The doesn't like bureaucrats that it doesn't like like coastal elites. Answer from my perspective sort of begs the question. How much hope really is there for an undemocratic institution which people entirely by experts and coastal elites in world we're none of those things are very popular. Question to end the podcast on. You know. Easy. I definitely lawyers by definition have to be elites of a sense and you have to go through all that schooling You hopefully aim for a high paying job A lot of legal jobs have commensurate prestige with them. It's it's hard to avoid that unless you're talking about your kind of matlock lawyer or or the Gulf Coast Mississippi trial lawyer or what have you I don't think many people would want to put on the Supreme Court regardless. Know. The problem of rule by elites is really more one of how a question of how the culture and interacts with the politics and the types of representative we have in our political branches. So the judicial branch is different we don't elect them. I don't think we should. I think judicial elections are are a bad idea like the federal system of executive nomination and and Legislative confirmation rather than capture by by the elites or the industries, or what have you where you have different types of selection panels for state judges and in some places So, the the the the problem of Elitism or reactions there too I don't think courts are the proper targets of those kinds of those kinds of concerns I want our judges to be divorced from the rough and tumble and muck and mud of the normal political given take. What I want them to do is forced more of those tough controversial decisions into that muck and so that we have congress and state legislatures debating all those controversies rather than the Supreme Court let alone one potential swing vote deciding all of those issues I think it's preposterous to Echo Ben. Sasse at Brett Kavanagh's. Confirmation hearing that there are more protests in front of the Supreme Court than in front of Congress right are our representatives are supposed to be the ones that are out clashes of values and policy differences spree court supposed to be deciding you know whether that actions legal or not or you know tweaking this or that? Piece of legislation that might have overreached, but it's not supposed to be this this grand Oracle but we've gotten where we are because little by little decade after decade the court courts of more broadly judiciary has expanded federal and therefore its own power and thus become more of a target. So again, there's no easy solutions but a proper re-balancing of power including giving Congress, more power, forcing it to legislate specifically rather than these broad delegations, power and more federalism saying that Congress can't just do whatever. There is a majority in Congress to do at that would force all of these tough decisions in other areas and only then will people start caring less. About. Those nine black road arbiters at one first place. I think on that note we're going to. Have to leave it. The book is Supreme Disorder, judicial nominations, and the politics of America's highest court We were just so pleased to be able to have Ilya Shapiro with us for the last of our James. Wilson podcasts. Thank you so much. Elliot a real treat and we highly recommend you pick up a copy of the book on Amazon Barnes and noble and it fine bookstores nationwide. It's a pleasure to be with you and I'll add a further incentive to your listeners if you email me a. Copy of your of Your preorder or your order I will I'll be happy to send you a signed book play that you can put in there. So even if we can't do signings in person during the pandemic, you can sort of get that experience. That's fantastic. What would what would a special gesture for a friend of our institute? Thank you so much again, Ilia and we will forward to. Seeing. You In town when we're allowed to leave our homes again. Take, care, take, care of. This program has been brought to you by the James Wilson Institute are Natural Rights in the American founding if you'd like to learn more about the James Wilson Institute, Please Visit James Wilson Institute Dot Org. Thanks for listening.

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Part 1: The Life of Ruth Bader Ginsburg

The Daily

40:15 min | 1 d ago

Part 1: The Life of Ruth Bader Ginsburg

"From New York Times. I'm Michael. This is a daily. A. Justice Ruth Bader GINSBURG changed the law. But my colleague Linda Greenhouse who covered the Supreme Court for the times for three decades says it went further that. That GINSBURG also transformed rows of men and women in society. Today. Four chapters in the life of a Supreme Court's feminist icon. It's Monday September twenty first. What is the first chapter of Ruth Bader Ginsburg life that we should understand? How should we? Understand the formative years of her life. So I think it's fair to say there was nothing about the young Kiki Baiter as she was known then. Smart Kid High School Cheerleader That would have given the impression that this was a woman who is GONNA grow up to change the world or even somebody who was in her time and place uncomfortable about the world as it was. That I met money. At Cornell, she meets a fellow student who who was a year ahead of her I guess Marty Ginsburg money was the most unusual fallow. I've said many times. He was the only boy I ever knew up till that time. Who cared that I had a brain? So there was an early marriage. There isn't early baby her daughter Jane but the thing about Monte listen he had. Such confidence in himself. And He never regarded me as any kind of. Threat on, the. Contrary. Money thought that I must be really special if he wanted to spend his life with me. He he was always by big booster. and Marty goes off to Harvard law school. Ruth follows. And her early says it first year law student she's invited along with the eight other women in a class of five hundred and fifty people to dinner at the Dean's House and the Dean. Goes around the table these. Female. First year law students in each one of them to justify why she's there why she's taking a place. That's. Gone to a man at the Great Harvard Law School And Ruth says. Well I'm here you know my husband is a second year law student and I WANNA learn the law so that I can be helpful to him and understand what he doesn't his professional life. So. This is not somebody rocking the boat in these institutions and in this time. This is not somebody at war with the institution nor was she in the next phase of her life when Mardi graduates, he has to join the army because he'd been in ROTC and they go off to. Fort. Sill Oklahoma where he's an army officer and she needs a job she's actually pregnant with her second child James. She takes a civil service exam. She gets offered a GS five not very elevated. Position as a claims adjuster I think it was the Social Security Administration but she mentioned that she's pregnant and they say, oh no, we can't hire you in that position because you would have to travel for some training and they offer her a GS to position as a clerk typist, which is so far beneath her. Qualifications I mean it's just kind of a sick joke, but she takes it and she sees quoted as saying well. That's the way things are. And so the question of how we get Rifkin's birth to go from, that's the way things are too. That's the way things don't have to be is really the story of this woman's life. What is a key turning point in this journey? Of Ruth Bader. GINSBURG starting to challenge the institutions and the society around her. Well it really took a while and it may surprise people that took as long as it did. She, graduated the very tough for law school class. One of. Very senior professors recommended her for Clerkship Justice Felix Frankfurter on the Supreme Court and Justice Frankfurter wrote back and said she looks great on paper. But I I, can't have a woman in my chambers. So, he was very explicit about Oh. Yes. Very, and all that was kind of going along. Then she took a job in of all places Sweden. This goes back to sixty, two, sixty, three. Women were perhaps five percent of the law students in our country. They were twenty percent in Sweden. She had a project to study and write of volume on the Swedish civil justice system for what she learned Swedish. And what she noticed how Sweden? Is that it was a startlingly egalitarian society. I watched one proceeding it was it was a trial court. In. Stockholm and presiding judge. Is Eight months. Pregnant. This time in the United States where if were teacher and you began to show you have. Out. The classroom. Fair to say, it caused her to question the whole Organization of the society in which she had grown up. which she had excelled. And, a wish she was being roadblocks for professional advancement because of her sex. So that was. Really. I. Didn't do anything with it immediately because nothing. To be done in the United States. But we saw back. And then when it was while she was in Sweden she read in a magazine. Feminists said. Men. And women have one principal role. That of being people. that. became an organizing principle and as we move with her into her litigating career. She paid as much attention to the rights to equal protection of men. As she would for women because men and women had one principal role. People. But it was still kind of a radical idea back in the US that women just as men had one roll, which is to be fully realized people. It was a radical idea in society and it was a radical idea in the constitution. Because the great. Earl Warren Court. The famous Progressive Supreme Court that brought US Brown against sort of education and. For criminals, defendants, and so on. Never once in not a single case. Looked at the fourteenth amendment's guarantee of equal protection in the constitution as having anything to do with women anything to do with sex discrimination they just it never occurred to them. They just never saw. So what's the next chapter in the story of Ruth Bader Ginsburg? How do we start to see these new principles come to the fore back in the US? She decided to go into academia. She looks for jobs at the very top law schools doesn't get one she started teaching at Rutgers. In New Jersey, she begins taking cases that people bring her women bring her involving discrimination women's rights. And she's eventually invited by an old camp printer I, Melvin Wolf who was. Officer at the American Civil Liberties Union the ACLU to help them handle a couple of cases you eventually becomes the head of. A new project at the ACLU, the women's rights project in from that base she. Uses litigation campaign that really resonates with the campaign for equal protection on the basis of race that. Thurgood Marshall ran in the nineteen forties and fifties for the N. Double ACP Legal Defense Fund ecorse good. Marshall Benchley ends up on the Supreme Court but he was famous for. Thinking ahead and designing a campaign that would kind of serve up to the courts especially to the Supreme Court one case that time in each case in our common law system builds on the cases that went before she did the same thing what she did she found nail plaintiffs who had been discriminated against on the basis of being men. Mr Justice and may at least the court. The case she was most attached to I. Think was the case involving a mail plaintiff Stephen Weiss Infield, Stephen, wise, and fellow case. Concerns The entitlement of a female wage earner. A female wager and his family. To Social Insurance of the same quality as that accorded the family of wage. Earner. Whose wife had died in childbirth and he wanted. To be able to stay home and raise the child underlying assumption was wives I typically dependent. Husbands. On. month. And the statutory scheme in this case. Favors one type of family unit over another and in both cases. The basis for the distinction. Is that in the favored unit. The. Husband's employment attracts the benefit. In question. The real legal question case was the assumption that. A man wasn't gonNA need childcare benefits because of course, the man was convey taking care of a child that's his work. It seems almost ridiculous to say that. He had to go all the way to the Supreme Court to say you know I am the caretaker of my child. There is nobody else but the the law just somehow could not envision that there would be such a situation. This case more than any other yet heard by this court. Illustrates. The critical importance of capital judicial assessment of law reinforced sex role pigeonholing. Defended as a remedy. For on any degree of in these cases, she's bringing it sounds like her approach in this moment. is to make progress for women impart. By winning legal victories. For Men That's that's absolutely right. I. Mean that was. A major part of her project and also don't forget. She was arguing before nine men they're never had woman on the. Supreme Court. If they were going to buy what she was selling. They could not be. Faced. With being parties to a Social Revolution In the No. Really if you understand the project, that's what she was asking them to become parties to associate revolution, but she was doling it out in such. You know little inoffensive doses that by the time they were finish swallowing everything that she had served them. They had in fact, become a partner in that revolution. And what ultimately did Ruth Bader GINSBURG accomplish by the end of her time at the ACLU. By bringing these cases with male plaintiffs, she gradually not only started. Building jurisprudence of sexy quality she didn't like the phrase women's rights really sexy quality of men and women. She did that one case at a time. She argued six cases and she won five of them, which is an amazing track record, but she was also. Drilling down getting the court to accept the notion that when it comes to the law men and women are not different they're just people. And so by the time of the ACLU. Litigating career. She had really led the court into a reinterpretation of the fourteenth amendment guarantee of equal protection. I think it's totally fair to say that. She did something very remarkable in persuading these nine nine of the court to see things her way. So what happens after this chapter as litigator what comes next? Jimmy Carter became president in nineteen seventy six. There were only eight women on the federal bench out of hundreds and hundreds of federal judges Trashcans Berg. Come to be a judge on US court, of appeals. I was from Nineteen, seventy, two to nineteen eighty at Columbia law school. I didn't think specifically about becoming a judge because frankly. I didn't think it was possible and Ruth Ginsburg was teaching at Columbia Law School decided that she would like to be one of them. Were you surprised when you were appointed. I don't think. It's fair to say that I was surprised I was elated. That the Carter, administration made a concerted effort. TO APPOINT WOMEN To the judiciary. Had Made Jimmy Carter nominated her in nineteen to the US Court of Appeals for the District of Columbia Circuit, usually regarded as the second, most powerful federal court in the country second only to the Supreme Court. So what's interesting about? Ruth Ginsburg time on the DC CIRCUIT IS A. Of forward looking and you might say activist as she had been as litigator that was not the role that she assigned herself as a judge. A federal judge has an obligation to do justice fairly and equally to all parties come. Before the court she had a very moderate jurisprudence she was famously friendly with judges to her right Joe Johnson in Scalia even judge Robert Bork by some measure she voted with them in fact. More than she voted with the Liberals on the court. So I think most judges do recognize. The tradition. The importance of the job that they're doing and for them to do that job with total impartiality. and. There were feminists who kind of had their doubts about her in their dowse were really elevated when she gave a talk at New York University Law School in early nineteen ninety-three I home. Written. Comment on Roe v Wade. And it was not a hundred percent. And separating that decision that was very critical of Roe Against Wade, the nineteen seventy-three abortion case what I said was. The court has an easy target because the Texas law. Was the most extreme in the nation. I thought Roe v Wade was an easy case in the supreme. Court could have held that most extreme law on constitutional and put down. It's penny. Instead. The court wrote in opinion that made every. Abortion restriction in the country. Illegal. In one fell swoop and that was not the way to the court ordinarily braids. This came. Out of her. Stance as what you might call it judicial restraint liberal but also from her. To leave that. The fact that the Supreme Court. In one fell swoop. Invalidated all the abortion laws in the country at a time when she saw the. Road. To reform through legislative work opening up in the field of abortion she thought. That this brought the right to abortion into the world in a weaker more vulnerable position. Than it might have been had the court. State is hint and led the forces of reform. Do their. Work. Democratically. Her Critique of Rogan's weight was. Based on her belief, that things just work better if the democratic branches can work out problems. Without the courts stepping in. Some women felt that I should have been one hundred percent. In Favor of Roe, v Wade in it because I wasn't so. When a vacancy opened up on the Supreme Court just a few months later. And President Clinton was asked by many people to nominate Ruth Ginsburg. He had heard these objections and he said to people but the women don't like her. I wish you all a good afternoon and I think. The members of the Congress. And other interests. Americans who are here but after careful reflection I am proud to nominate for associate justice of the supreme. Court. Judge Ruth Bader Ginsburg of the united. States Court of Appeals, for the District of Columbia he nominated her anyway. I thank you all I think everyone for their cooperation, all of my colleagues and this hearing is journey. She was confirmed by a vote of, I think the vote was ninety seven to three that was simpler age. Justice Ginsburg will you raise your right hand and repeat after me? I. Ruth Bader Ginsburg do solemnly swear. In Bird. Solemnly, swear that I will support and defend the constitution of the United States that I will support and defend. The constitution is so she joins the court is the second woman is Sandra Day, O'connor having been on the court by that time for twelve years On giant about to enter. The duties of the Office on which I am about to enter. So help me God so help me God so now there. Talk. Early days as a Supreme Court justice go. So at the start of her supreme court tenure. I wouldn't say with Ginsburg made a big splash. She was the junior justice junior justice doesn't get any big cases to do she worked her way quietly. She formed. A bond with Justice Sandra Day O'Connor. Who had been the lone female on the court in history before Ruth Gins forgot their. The opinion of according to cases number ninety, four, thousand, nine, hundred, forty, one, United States against Virginia. Number Ninety, four twenty one zero seven Virginia against the United States will be announced by Justice Ginsburg and her I. Really Big opinion. Came a few years in. Off. On top rebel. Military College the Virginia Military Institute The sole single sex school. Among Virginia's public institutions of higher learning. It was the Virginia Military Institute case in the question in that case was. Whether it violated the constitution violated fourteenth amendment equal protection for the state of Virginia to run a military college that admitted only men scores unique program. And unparalleled record as a leadership training ground have led some winning. If he could mission. And the important thing to know about M. I that Regina Military Institute was it was really part of the. Political structure of the State of Virginia. It was really very helpful to a man's career to have gone there. The case it had a long history in court in the first brown the discord ruled against the United States reasoning that the all male the I. The state policy of a forty, a diverse array of educational program. In ended up with against virk opinion. Over the sole dissenting voice over old friend Justice Scalia. Saying that not only was the exclusion of women unconstitutional. But it. Incorporated a notion of men's work in women's work and that women somehow weren't suited by their nature to the kind of education that Vm I was offering and that was part of the very essence as to why it was unconstitutional. flagging. For Women Against Hogan, some fourteen years ago. State actors may not close entrance. Gate. Based on fix notions concerning the roles and abilities of males and females. Own writing that opinion she drew on an earlier Sandra Day O'Connor opinion. That had to clear it unconstitutional a state nursing program in Mississippi that had excluded men. And Justice O'Connor that opinion had explained why that notion had anchored in a stereotype view of men's and women's work and Justice O'Connor had drawn on the Supreme Court cases that the litigator with Bater Gins for had one in the Supreme Court? So there was a kind of a perfect circle that was closed by Justice Ginsburg opinion in the in the Case that. Really is when you think back on it, you know quite quite a wonderful thing. Back, reversed the fourth burqa scheduling. Around the case for proceedings consistent with a opinion. So coming off of this big win in. Virginia. What do we see in this period of justice? GINSBURG TENURE On the Supreme Court following the. Case she had a number of significant decisions. You know there were abortion cases there were. All kinds of other equal protection cases on the basis of race and so on. You know she certainly had a voice. But I I it's hard to say that people were singling her out as symbolizing some particular way of being as a Supreme Court justice during those years she was far from being a household name. Then what changes because we know she does become a highly identifiable figure on the cord with a viewpoint and a voice for it. So. At the beginning of two, thousand, six Justice Sandra Day O'Connor retired. And that left Justice Ginsburg as the only woman on the court. And that ushered in a period that she later called the worst of times. There she was. She put it this one little woman. On the bench. Sometimes, you could barely see her her head over the bench you know surrounded by these guys. One of whom was. Justice O'Conner's replacement just as Samuel Alito. Much more conservative than justice O'Connor in his arrival. Just solidified. A Conservative majority on the court it left Justice Ginsburg you know Kinda lonely and isolated. And things started to change. Rather quickly actually as she found a voice in dissent. That we really had not heard in her majority opinions or in. Cases before the court took this turn to the right. We'll? Be, right. Back. This year, we are all students at verizon. We're working to enable education for students in need helping train teachers, preparing parents, and providing tech solutions for schools nationwide. It's citizen Verizon inaction our plan for Economic Environmental and social advancement? I'm Elisa Shapiro and I'm a reporter for the New York Times. I write about education for a living and this moment is truly unlike anything I have ever experienced. There are just so many questions. How much will this pandemic widened the gap between wealthy and poor children? Will homeschooling become a significant part of the education system? Where does all of this Lee working parents and how are teachers adjusting to erratically different type of schooling? The fact is the answers to all our readers. Questions are going to be really difficult to find because the story changes day to day sometimes minute to minute. But that's what we do. The New York Times, we find the experts we do the research we hold our leaders to account. Until we get the answers we believe you deserve. AM On the story changes we do it again if you believe in this kind of work and blocked to support it, but a NY times dot com slash subscribe. To tell us about this final chapter about Justice Ginsburg. Really? Starting to find her voice on the Supreme Court during this period. I think the most striking moment in this is in the Post O'Connor period and before. Two new female justices came on the Court Justice Sonia Sotomayor Orange Justice Elena Kagan. So with Ginsburg is all alone will hear arguments next in ledbetter versus goodyear tire and rubber company Mr Russell called lead vetter. Please the court. Jury found at the time petition and follow through charge of discrimination with the. Respondent was paying her less for each week's work and it paid similarly situated male employees did. So because of her sex we ledbetter had been a factory manager at the only woman at that level and this particular organization and she didn't find out until she had retired that she had been paid considerably less than all the men in her same. Rank. And so she filed a lawsuit under the Federal Equal Pay Act the question for the court is whether that present act of dispirit treatment because of sets constituted present violation of title seven and the question is lawsuit was, did she file it time because there was a statute of limitations? And the question was went to the statute of limitations begin to run. Did it begin to run from the moment? That's the pay discrimination occurred, which would sears earlier and she didn't know about it or from the moment when she found out about it and have the ability to go do something about it. That was the question for the Supreme Court Justice Alito has our opinion this morning in case zero, five, hundred, seventy, four, ledbetter verses, Goodyear Tire, and rubber company that case was five to four. Justice Alito wrote for the majority. ledbetter asks us to depart from our precedents and endorse special rule for cases involving discrimination that actually the statute had begun to run years earlier and had long since run out by the time Lilly ledbetter knew about the discrimination and brought her losses the loss it was out of course on which she belies her charge was untimely. We therefore from the judgment of the Eleventh Circuit, Justice Ginsburg has filed a dissenting opinion in which justices Stevens suitor and Briar have joined. For members of this court justices, Stevens, suit brier, an I. Dissent from today's decision and Justice Ginsburg not only wrote a dissent, but she read her dissent from the bench in our view the court does not comprehend or is indifferent to the insidious way. In, which women can be victims of pay discrimination something she had rarely done injustices rarely do it happens now these days a little more often, but it was really quite unusual event. In other, it was a sign of just how forcefully she disagreed with the majority. That's right. I mean in a reading dissent from the bench is kind of a performance led veterans initial readiness to give her employer. The benefit of the doubt should not preclude her from later seeking redress for the continuing payment to her salary depressed because percents cress course sitting there. This says to the press. You know you may not have paid attention to this little case on equal pay. It's not the big marquee headline case of the term or anything but I'm reading this dissent from the bench, and this is my way of saying you pay attention to this something really has gone wrong here. This is not the first time. This has ordered a cramped interpretation of title seven. Incompatible with the statute's broad remedial purpose. In one, thousand, nine, hundred, ninety, one congress passed a civil rights act that effectively overruled several of this courts similarly restrictive decisions including one. On which the corporate lies today. Her descent ended in a very striking way. She said today, the ball again lies in Congress's Court as in nineteen ninety one, the legislature has caused to note. And to correct this court, parsimonious reading of titles have. So fall is now in Congress's Court and remember this is a woman who on the DC circuit really embodied the notion that there should be a partnership between the judiciary and the elected branches. So the ball is now in Congress's Court. Wall. I went back to the office and I thought about it I thought this. Is really quite remarkable the Snot, the Ruth Ginsburg that I've watched all these years. So I called her up I called her a fitter chambers and she took all we knew each other but I had never actually. discussed. A pending matter with her mind was very careful not to sorta transgressed the the role norms that kind of govern life in Washington that I said to her. Wow I. said I I heard you and you know what to you. Said well, you know she said she just didn't think justice. Alito understood the way the workplace works and that people don't know what their colleagues or the person next to them on the assembly line at the next desk or and they have no way of knowing unlike the federal government. So I wrote a story, not only describing the ledbetter case. But I wrote a story that said this is the term that Justice Ruth Bader Ginsburg found her voice Voice into. The rules of the Senate. One hour after we come in. Automatic clincher vote tonight, it's on HR twenty eight thirty one the Lilly. Ledbetter Fair Pay Act. So just as a historical footnote, the ball indeed in Congress's court this issue is about fairness. is about to equity. You're going to permit discrimination in the workplace. We shouldn't permit it to pay and the best way to make sure that it does not pay is to provide the remedy to ensure that it will not congress passed a law amending the equal pay act was called the Lilly ledbetter fair pay act to make it clear that the statute of limitations doesn't begin to run until the plaintiff who's been discriminated against has reason to know what's happening. Of the United States accompanied by Business Lilly ledbetter. And it was the first bill that President Barack Obama signed into law after his inauguration in January of two thousand nine. So thank you. And You know it was not the most important case it was not her most important descent. But. It was one that. Ties together, some of the themes that we've been talking about and I think it was a was a moment that. Not only allowed to her but. Signalled a transformation in the justice Ginsburg that had been before and a Rockstar Justice Ginsburg that. In her last years on the court she. Rather surprisingly became. What do you mean? Well She's a feminist icon, a favorite among the young people connick Ruth Ginsburg. It was Superhero Day at a school in Brooklyn earlier, this week and one eight year old girl chose to go is none other than the notorious R. B. G. The notorious RPG's. Shaped like a supreme, court justice people. She made it her project to. Call the court out when she thought, it needs to be called out very direct language that people could understand saw honor of Ruth Bader Ginsburg birthday. We're GONNA, make wine charms for each of her collars or shadows, and that's what. Propels. The kind of this is a little head mental RV had public notice that. Descend. Collar to confer crepe bulk of her life she had not. received. Blast. What do you have in common which then? I said we have one thing and that is we were both born and bred in Brooklyn New York also both of words he's a rapper. What was the last interaction that you had with Justice Ginsburg? It was this summer. It was after she had announced that her cancer had returned. US somebody. From Washington sent me by email an image of a yard sign that someone in the Adams Morgan neighborhood of northwest DC had put up on their lawn. and. It said RPG works about five miles from here so Take Care of her by wearing your mask. A and I thought this was really very sweet and. Justice GINSBURG did not use email could not email her. You could do it through her assistant, but she she herself didn't get on email. So a male, the tour I knew her address and. I printed this out on a color printer and I mail it to saying you know you might get a kick out of this and I just wish you the best in this tough time and I never expected to get a response. But I did she sent me the nicest note. And then she told me that her two adult children, Jane and James were living with her in her apartment. and. That I get a chill telling this story because it really alarmed me why because you know we we all know enough about you know illness and death to realize that if somebody's adult children neither of whom lived in Washington, pick themselves up and move in with you. You're really sick. The outlook is not good I had a very vivid dream that she had died. In which I was crying and everybody newest crying even I. Told my husband as a witness when I woke up that morning I sit I dream. That Ruth Ginsburg died, and so when the word came Friday night I just had this Deja Vu feeling. It was just the oddest feeling like. Didn't this happen. Not. Everything that You had told us? I'm. I'm curious. In the couple of days since Ruth Bader. GINSBURG staff, how are you thinking about her life and about her legacy? I think when you look back at the whole arc of her. Life and work. There's really no single person. Who's accomplished what she has? For Women for men to notion of. Equality that. Has Been. Now. So baked into our legal structure that. Come and playing out. What the central principles that she stood for and that she got the court to accept over the years really mean. Essential. Equality of the sexes and. That's not going to be taken away. That's that's your legacy. She left us. In a good place. Linda thank you very much. We appreciate it. You're more than welcome Michael. Whatever you choose to do. Leave tracks and that means. Don't do just for yourself because in the end is not going to be fully satisfying. I think. You will want to leave the world a little better for your having lived. And there's no satisfaction of person. Can Gain. From just what people call turning over a buck. That's equal to the satisfaction that you get. Knowing that you have made another's life. You'll community a little better. For your effort. Him.

A. Justice Ruth Bader GINSBURG Ruth Bader Supreme Court United States Sandra Day Samuel Alito Marty Ginsburg GINSBURG Lilly ledbetter Congress US Court of Appeals Court of Appeals Justice Scalia Earl Warren Court Virginia American Civil Liberties Union Congress's Court Linda Greenhouse The New York Times Justice Frankfurter
Understanding 'Qualified Immunity' And Its Place In The Police Reform Debate

Radio Boston

14:45 min | 2 months ago

Understanding 'Qualified Immunity' And Its Place In The Police Reform Debate

"We've been talking about. The state senates police reform bill passed during the early hours of this morning. Now, one area of significant contention in the bill was whether to limit what's called qualified immunity. That's a legal doctrine that protects police and other public employees from lawsuits over constitutional violations. It's been both a lightning rod and local and National Police reform debates. Him To source of confusion about what it actually means. Here's state senator, John Keenan who oppose the bills proposed limitations, arguing legislators needed more time to study it in the context of what I've come to know and more importantly in the context of what have come not to know. If somebody would ask me this, do it. Does this get to the standard that we all think should be in a place. My responses. I don't know. So what exactly is qualified immunity, and why are many law enforcement officials trying to hold onto it? While many advocates argue it should go away or at least be rolled back. Let's turn to Nancy Gertner retired. Federal judge w our legal analyst and a senior lecturer at Harvard Law School Welcome Back Judge Gertner. Beyond on? So this is gnarly. Judge Gertner just in trying to understand it deeper there. This is the kind of legal. We don't usually need to go into, but it's what everyone is talking about in struggling with so in lay persons words what is qualified immunity. And how did it come about? So they doctrine is, a judge made doctrine. The came about in pretty much in the late nineteen seventies and early nineteen eighties, and it was literally a concern that constitutional criminal law in other words, the ways in which the constitution limited or affected police behavior. That, it was unfair because of new developments in constitutional law to have a police officer bound by those new developments. Famously one judge said they shouldn't have to be a cop on the beach didn't have to be reading the advance sheets. The ways in which people get notice of opinions and it was really phrased in terms of a police officer could not anticipate legal developments. It was focused in on the big. Big and new constitutional changes that were going on after the Warren Court and said how could a police officer know about those kinds of changes? But over time it is evolved into something really quite a bit different. It's not just saying a police officer couldn't have known what the Supreme Court decided yesterday about the fourth amendment, but it has come to be that the police officer for him to be held liable. There had to have been an existing precedent on the specific fact in question, so it's not just big constitutional cases, but you need to have a case on the specific facts. When they give you an example, there was a case of a SWAT team that fire tear-gas grenades into a house carrying someone. They wanted to arrest That person wasn't there. That squad considerable damage the court of Appeal said well. There's no qualified and immunity because there was no precedent involving tear gas and houses. Now there was precedent about the scope of searches. ETC, but there was no specific precedent that dealt with. How should I deal with you know. Tear gas going into a house or Of someone who shot at a dog in someone's police officer shot a dog, trying to apprehend someone in a backyard and wound up shooting a young girl, and the court literally said that the child's right not to be accidentally shot in the leg is not clearly established so I'm saying. Is that over time? This became not. How could a police officer have known? You know the latest constitutional issue, but how could a police officer gets excused if there was not an existing precedent involving the facts? That are in his case, there never is an existing precedent evolving. Specific facts. So this is started as you couldn't possibly know given how quickly things are changing, and there needs to be some protection there, but it is now if the particular instance in question is not essentially codified just like that, in case, law than essentially a civil lawsuit base suit based on constitutional violations would be thrown out am I understanding. Happening officer of known not to throw tear gas into a residents. Well, there's an obligation that with respect to excessive forced. Avoid excessive force. No, it doesn't. It isn't codified in the cases to say Oh don't do this. Don't do that, don't that? Don't use excessive. And that's step was a reasonable application of the law. Okay. So, why is it front and center in the current police reform debate? Well, what happens is that. The qualified immunity entitles a judge to dismiss a case without it ever getting to jury. So while jury might WanNa talk about my my issue of what comprises excessive for so what comprises an unfair search qualified immunity entitles a police officer who's being sued to move to dismiss and the case is then gone. and. It's gone away. That is particularly troubling. it's gone in a way, so the judge is supposed to decide, or at one point was supposed to decide was the plaintiff's rights violated? And then the second question is was that was a look clearly established over time, and because of the Supreme Court judges no longer ask the first question. No longer answer the first question whether someone's rights were violated. So that meant the law is not ever going to establish even going forward, because of case after case was saying essentially just whether he did anything wrong, but it wasn't clearly established so the lesson. Yeah go going what I want to pick up for a minute in the first half of what you were talking about there about. HOW FAR SUITS GO! With Larry Calderoni. WHO's the president of the Boston Police Patrolman's association and we were talking about the state Senate bill qualified immunity. He stressed that many people misunderstand qualified does and he went on to say that citizens can still sue police officers even with qualified immunity. Let's listen to him. Qualified immunity does not stop you from suing the police officer. Police officers are sued when they do something wrong. It happens unfortunately, because every place has offices that do things wrong, and and all professions have people that do things wrong, and if we violate the law as police, officers were charged criminally, and if found guilty like every other. Citizen in the Commonwealth we go to jail and we pay the penalty. Now on the other hand you heard. I think Rozan Hall before the break when he was on talking about the bill last week, he said that qualified immunity is tantamount now to complete immunity in many cases. So, what's your reaction to Calderoni there? And what is the essence of qualified immunity now well, the notion that a police officer who does something that comprises a crime will be punished and go to jail well true, although we recognize that that doesn't happen very often as we saw in the George, Floyd case. But we're not talking about criminal prosecution here. because that to some degree is the most extreme example of wrongful conduct. We're talking about a civil suit. If someone violated your constitutional rights, it may not comprise a crime, but it was essentially violating your constitutional rights. He did something wrong. He went outside the boundaries of what the Constitution. allows. That to say that people can sue. Yeah, you can sue and it will be dismissed if it doesn't. What these these are in my view, absurd requirements, so it'll be dismissed. Music. Lawyers won't take your case because this. They're likely to be dismissed and you won't get very far and we're talking about. This is like constitutional malpractice. It's as if saying the only way you can deal with a You know a doctor that that left his instruments in your body after the surgery. If it's a crime, we're not talking crime. We're talking about civil damages for. Violation of a constitutional right so the fact that people can be sent to jail. Doesn't control conduct. Let Control. It's just lawsuits. So WanNa go back for just a second. I may have misunderstood you, but it sounded a minute ago like you were implying that the George Floyd case has been. Settled has been tried but that is not just for our listeners sick. That is not yet the case although I may have misunderstood. You know know what we're saying is we saw what it took to bring criminal charges in that case. That's what I meant by that site I and and so the criminal penalty is is appropriately you know the the for the most extreme conduct and our most extreme punishment. We're now talking about civilized ability which is a lawsuit to gain. For you know any illegal search for illegal prosecution for for excessive force, and that's a different matter. Your tear gas and. Tear glass in a house or or shooting a child when you were in at the dog and had no right to sue the dog to shoot the dog. So I mean it. It's a Those examples are really rife where. The courts are saying You may have done something wrong. It wasn't clearly established because we don't have a case on point. And therefore the police officer gets off, and that means that whatever's bad conduct isn't controlled. There's one more piece to this. I want to get at because in talking with the various sides of the police reform bill over the last few days. The argument two sides that we've heard is on one side. This puts undue financial and civil risk on police officers and will curb their behavior. Make them cautious or make them question choices in the field when it is neither safe nor appropriate for them. Them to do that because they'll be worried about liability, and then on the other side, we've heard the argument. There is a thing called indemnification that makes that essentially a false argument. Could you comb that out for us? It is a false argument. Ninety nine point eight percent of cases that are brought look this up. at a constitutional claims against police officers are paid for by the government or even. The Union in other words, the municipality or the state will pay whatever damages are assigned to the police officer. So there is really no financial penalty at all, and what you're talking about is having a range of conduct that may well be wrong. That is broader than the range of conduct that we allow now and allowing those cases to go to go to trial before a jury, so it's really not an impediment to the police at all any more than malpractice and against doctors keep doctors from you know doing surgery. the good doctors and not have a problem. So then the piece of that is there has been an argument that the there is a chilling effect, even though you've just address this question of indemnification that could affect police officers decisions the. Worcester. Police Union went so far as to say quote with the end of qualified immunity officer is more protected under the law by doing absolutely nothing to help you and quote. What is your take on that well? I think that makes that. That's really the usual kind of scare tactics that the police use whenever there are efforts to curb power corp their power. The the the fact that that those who are engaged in malpractice. Can Be like a doctor or a lawyer? can be sued for it and and wind up with damages against him doesn't stop. People to be doctors or lawyers. It makes them. More care and that's exactly what we're trying to do so that's just simply absurd You know if they think twice before they violate someone's constitutional rights rather than as just so to my office just said in a case where she said she says. With qualified immunity signal. It's the wrong signal shoot first and later and count on being exonerated. I WanNa bring that in this last question for you. Because police work is not the same as many other professions. In fact, it does involve shooting. At times it involves life and death stakes at times for the officer, and also for the civilian, so the stakes across the board are high. If we want to legally hold law, enforcement accountable and also protect. Protect the needs and interests of law enforcement officers on the job. What is the right approach to that? As we go forward working on police reform well, the Massachusetts bill was not eliminating qualified immunity. It essentially said that a police officer, not the plaintiff, but the police officer had to show that he thought he did was reasonable that it fit within. The reasonable view of the law, and that meant and that's a different standard than is there a case somewhere in the lawbooks, theus precisely with this conduct, so it's not unlimited and police officer that was in that does his job and exercises his responsibility in a reasonable way, and let a jury would decide that will not be well. It won't be a problem and then even if he didn't. Has Long. As there's indemnification, he will have simply suffered I guess the indignity of being sued, but no one's losing their house. And that is Nancy, Gertner retired federal judge, Wbu our legal analyst and senior lecturer loss school. Thanks for helping us. Walk this through today. Judge Gertner. I appreciate welcome.

officer National Police Nancy Gertner Boston Police Police Union Supreme Court Harvard Law School George Floyd court of Appeal analyst senator senior lecturer Massachusetts John Keenan
Why A Terrible U.S. Supreme Court Is The Historical Norm

The Cracked Podcast

1:38:09 hr | 1 year ago

Why A Terrible U.S. Supreme Court Is The Historical Norm

"Do you live in Chicago? Do you live in the twin cities of Minnesota you live anywhere near those? Or do you just love to travel while I love to travel because we're taking the cracked podcast to those cities are first ever live tour is this spring, Chicago Lincoln hall, April eleventh and Saint Paul Minnesota at the Amsterdam and hall, April. Twelfth I am so excited to do those shows on the road. We're getting local guests exciting guests and more together, and you can get tickets right now, they are selling, but there's still some and the links to get them. Our in our food newts for both Chicago, April eleventh and Saint Paul April twelfth, I really hope you'll join us for our spring tour, first tour and more. Maybe you'll see me and like my fun road outfit's. Right. Those are total mystery how how do I dress that like Bendel sift kind of Hobo or do? I wear sports gear. The local town. I don't know why I'm wondering about this out loud. Anyway, come see us. Thank you add on with the show. Hey there, folks. Welcome to another episode of the cracks podcast podcast all about why being alive is more interesting than people think it is. My name is Alex Schmidt. And I'm the head of podcasting here at cracks. I'm also known as many the clam also known as Schmidt e the champ. And I am also also a fan of history. You may know that if you see me on YouTube or jeopardy or something else where I am either wearing hats are talking about it. But as we put this podcast episode together. And by the way, it is about the US supreme court as we put it together. My mind kept going to medieval European kings and queens absolute ruler individual right to to run a whole country. And whenever you read histories of people like that, you see the big design advantage in that kind of monarchy because it's also the massive design flaw, which is that whenever a ruler has a problem their whole country kinda suddenly has that problem too. Right. If a king does not understand an intellectual concept, or if a king is bad with money, or if a king is like str-. Doubling with gout or or some other disease of the past. Usually suddenly the whole country struggles to then it doesn't understand that concept or spend money. Well, or I mean, the gout things more interact, but you know, what I mean? And that is no way to live. Right. You wanna live in a democracy where you can vote out a Turkey leg, waving bad king of person. I always think of him on a throne with a Turkey leg. And I love Turkey legs. Don't get me wrong. Great food, but that idea of a bad king like that. Oh, what a terrible situation. But here's a question. What if the United States across almost all of its history has tended to have a passive and nine person a quivalent of that figurative Turkey like waiver, sometimes great sometimes not so great. But either way invested with that kind of power over the country. And if that is true, isn't it weird that nobody talks about it? Well, here's our topic this week. Why a terrible US supreme court is the historical norm. One more time. That is why a terrible US supreme court. Is the historical norm. And my guest today is why I have really any sense of that at all, Ian Millhauser is the Justice editor at think progress, he's also a lawyer legal analyst, and he's the author of the book injustices, the supreme court's history of comforting the comfortable and afflicting be afflicted one more time because as a great title injustices, the supreme court's history of comforting the comfortable and afflicting the afflicted that subtitle says it all across his book, he gets into the ways that the supreme court has not been all that consistent. You'd almost want them to just go one way that that's at least predictable. But here's a key quote from ins book describing them, quote, the justices have routinely committed to complementary sins against the constitution. They've embraced extra constitutional limits on the government's ability to protect the most vulnerable Americans while simultaneously, refusing to enforce rights that are explicitly enshrined in the constitutions. Text. And quote, and I had really a great time digging into this with him because as we'll talk about the supreme court has a pretty low reputation right now, I think there is something exciting about knowing that it has often deserved a low reputation because then also you notice the times when it really really worked and really really helped people out in particular. The Earl Warren court will talk about Earl Warren was chief Justice of the court and from the late fifties. Too early seventies. They had a really great run including decisions like Brown v board and other decisions holding that up. You may have heard of Brown v board in history class that's one where they pushed for desegregation of America's schools, and they are desegregated today, isn't that nice? But I think in history class we tend to hear about those super positive decisions. And then maybe some of the pre-civil war cases that were particularly bad toward toward people of various races and other than that. We don't. Really hear about how the supreme court has impacted business and health and our personal liberties as people, and we're gonna get into all of that today. So you can see how it has worked over time and have more perspective on what's going on today. This episode will be very foot Newt's heavy because I think it's an easy episode understand. It's it's not like going to be difficult to hear anything is just that we want you to have a lot of links to a lot of these cases. There's also a few fascinating ones that we will not get too. And you'll see them in the footnotes as something that the supreme court really did like buck v. Bell steel yourself before you look at the case, buck, the bell just warning you. But those things really happened, and they're really fascinating to see because it gives you insight into how that part of the government works. You know, the top of one third of the government the supreme court pretty important. And I think it's worth talking about today. I also want to give you one heads up because I am thrilled that we got into this topic. The supreme court. The supreme court is very timely. It's news that is happening as you'll probably hear in the show there even some announcements in terms of which cases, the court will or will not take on that are a few hours away from only tape this. We did it as late in the week as possible to keep it as timely as possible. But there could be some breaking news. And so we will discuss what could happen with those couple of things. And then in the text of the footnotes of this episode. We'll let you know what did happen. If there is a news to announce report. And so on you, you deserve a podcast that is fully accurate about news. If it means to be about news. And so that's what we're going to try to do with this particular show about something. That's happening. All the time. You know, those justices may look slow, but they can move. They make moves and we're going to move with them as absolute best. We can I hope you don't mind me text version of some of that as we need it. Also, I should say that's going to be a very very small percentage of the episode related to those super timely things. So the vast majority of. That is history and his things that you don't even need to check the footnotes for in terms of what's going on enough set up from me. This is just a really really fascinating look at how a key part of our government has pretty much always worked. And it's amazing to me that with all these supreme court justices. They are people that you did not directly vote for unless you are a United States Senator 'cause they they confirm them do any senators listen to the show, I would love to know it, please. If you if you were fully in the US Senate, let's let's get to talk, and maybe bring young could be fun either way. Please sit back or ask your congressional aide. Mr. Senator if you voted to confirm that Cavanaugh fella. And if so why the why the heck you did that not great either way. Here's this Goethe's riffing episode of the cracked podcast with Ian Millhauser. I'll be back after we wrap up talk to you. Then. With anybody especially in your world, where it's so steeped in the legal profession on the courts. Maybe there's a very basic question. But what got you interested in the law and in an injustice, so I I was a schoolteacher for awhile. I taught at a very impoverished school in the Mississippi delta, and I figured out pretty quickly that I was going to be able to solve this problem. One hundred kids at a time, they write poverty, I saw a system that did it educate poor children that didn't educate very many black children in the school. I taught in was still segregated, and I realized that I wasn't able to solve that from the classroom at so I wanted to be Thurgood Marshall when I grew up, you know, I went to I went to law school think I would litigated in front of the supreme court and try to solve these problems that way and then halfway through law. School Justice Alito was confirmed, and I realized that if I became a litigator. I would wind up losing cases for a living. So that's how I wound up sliding into a career where you know. I I can criticize the court, and I can you know, try to build public support for a better way of approaching LOL without writing briefs for people who don't care what I have to say. I'm very fascinated when you said that the school in the Mississippi delta was segregated is that is that sort of defacto segregation or actually on the books. The segregation is the factor segregation, but he wide spread. And I mean, you might remember while back when Senator Hyde Smith was running for reelection. The it was the scandal over the fact that apparently she went to a white flight school, and she sent her kids to a white flight school, and my reaction is so one who lived in that area, and who taught in a very similar school district was you know, like people Mississippi or go to hear that. And a lot of them will probably say, well, of course, she did that she's white the shocking thing about the town that I taught in is that almost all the. White kids went to the private school. If you could afford to pay tuition, you paid tuition, and there were support networks that existed if you're a white person who couldn't afford to go there, so often the churches what would help them out. And so it was an entire social structure that was set up to make sure that you know, at that point. We were almost fifty years after Brown v board of education to make sure that Brown v board of education didn't actually do anything. That's incredible. And especially will as we get into a lot of different cases here on current court things, I feel like most people don't know a lot about the supreme court or its decisions over history. But then if they do know a few cases feel like one of them would be Brown v board that famous case that that said segregated schools were unconstitutional, I guess certain parts of society in certain places in the country will just build something to work around even a decision that is at positive in my book, I discuss at length how. Brown was was not effective in desegregating public schools. So what happened is in nineteen fifty four this prem- court hands down Brown. It was effective in some of the border states states like Maryland, where you didn't have a really entrenched culture of segregation. But in the deep south, and I mean, not just in the what we now consider the deep south than states like Virginia as well. You had was called Nash of resistance. You know, there was a Virginia school district that literally closed down its entire public school system. And then they replaced the public school system with school vouchers, but the vouchers you could only use them at a private school at all the private schools were only open to white people. So the the practical effect of that is we went from having a segregated school system in in that district to only the white kids got to go to school until eventually the supreme court stepped at it said, oh UB can't do that. When actually overcame that. Nash of resistance wasn't the supreme court. It was the Civil Rights Act of nineteen sixty four which did two things that are relevant here. One is that the Civil Rights Act of nineteen sixty four said that the federal government itself was allowed to sue to try to desegregate a school district. And what that meant was at the end of Lacey pe-, no longer had to find a black plaintiff who was willing to put their name on a brief which was a very frightening thing to do because if you were a plane if in his school segregation case, the the clan would come after you, and so it meant that you could actually bring these lawsuits without fighting sold who's willing to risk their life in order to sue. And then the other thing that it did is it said that the federal government could cut off funding to cut off federal funding to schools that remained segregated at. So it wasn't the supreme court that ended segregation it was congress when congress in nineteen sixty. Four finally said, this is such a terrible problem that we need to do something about it. You mentioned the book, and and it has come up in the intro. But I I would love the play again. At is injustices, the supreme court's history of comforting the comfortable and afflicting the afflicted one thing. I did as I was reading. It was I ended up just kind of creating a running list for myself of terrible supreme court decisions. Because I there's so many of. There's so many of how many can Iraq up. Yeah. Exactly. Yeah. The thing you have to understand about the supreme court is who gets to be on the supreme court like an in order to be qualified. You don't have to just be a lawyer you have to be an elite lawyer. So like only people who are eligible for those jobs are people who are disproportionately white disproportionately wealthy. I mean, you know, it's possible to be a wealthy lawyer a- and has compassion for the poor. But MU most people who get to, you know, who get to be elite lawyers have no experience of what it's like to be on the on the margins of society. And so what he expects going to happen? I mean eight hundred years ago, if you had a system of government where you took very wealthy people from the most elite wrong of society, we call the barons, and counts dukes viscounts. Now, we call them justices. But it's the same brain, you know, it's the same echelon of society. Well, actually. The supreme court justices have much less jewelry. So I think it's very different. I think they're wearing a lot less Bengals and crowns and stuff I advise your listeners to Google the phrase Canadian supreme court because our justices where like boring black robes in Canada. They literally wear red and white robe that make them look like Santa Claus. These poor judges have to sit up there dressed like they're about to come down your chimney. Every episode has a set of footnotes. So well, we will definitely link picture that because I can't wait tell you. It's well worth e. And also, you mentioned like in terms of picking these justices when you say that they have to be elite lawyers is there any kind of actual job requirements for being on the supreme court. Like is there an age minimum or a law degree pre wreck or anything like that? Or do. We simply traditionally pick advanced lawyers. So there's nothing in the constitution listing any qualifications. You you. Don't you don't even have to be an American like, you know, if Trump what Vladimir Putin on. Yes. If Trump wanted to put Vladimir Putin on the supreme court, he could nominate a man if the Senate would confirm him, we'd we'd have Justice Putin. Now, the reason why you're typically only have elite lawyers on the supreme court is a very good reason. Which is that it's a tough job. At it. Requires a great deal of very technical knowledge. It requires you know, a mind that thinks about legal problems in in a certain way ad. So you need to have very sad. Obvi- very smart legally trained individuals do that job. You know, the the the problem is is that, you know, very smart, very savvy legally trained individuals also are in very high demand. They can make a great deal of money. You're typically drawing from a very elite group of people when you fill those seats, and so again, like there are you know, Thurgood Marshall spent his career literally running away from Lynch mob. So that he could defend black men who otherwise you would have been Hong on trumped up charges, or or you know, otherwise executed on trumped up charge. You just as soda my your famously did not grow up wealthy. So you if you have a president who is determined to find someone who has managed to achieve those credentials despite not coming from a wealthy background. It can be done. But if you just, you know, randomly choose from among the people who are qualified to be supreme court justices. And put nine of them on on the court. You're going to wind up with the group of people that look nothing like America as a whole, and as far as picking people today, I feel like if people know any news about the court other than the particularly gross stuff we've had lately with and I in general, there's kind of a sense of a lot of vetting like anytime somebody comes up there a bunch of stories about how are we going to do hearings where we can decode their beliefs on these five important issues. How new is that process is that something we've kind of always had or are people just now starting to really dissect these folks, so so the hearing process is fairly new actually I mean it used to be there. There are instances of the president nominated someone in the Senate confirming them the next day. I think the first Justice to get a full hearing was Louis Brandeis, and that was largely because Brandeis was Jewish. And there are a lot of anti Semites who were throwing up throwing up roadblocks. So. Oh, like, so the hearing process is new, and I frankly don't think it's very effective. I think the process we have winds up creating more uncertainty than it solves we with Cavanaugh set aside, what he did to Christine Blasi Ford Cavanaugh gave a speech where he said very clearly that he disagrees with Roe v. Wade he couched it in the sort of language that you have to be familiar with legal doctrine to understand what he's saying. But he gave a speech with your legally trained individual. You can read that speech and say, oh, yeah, he he opposes Roe v. Wade Cavanaugh was the scourge of the Obama administration's Environmental Protection Agency a- as a lower court judge on on issue after issue after his, you know, he went out of his way to say that, you know, if if you have a religious objection to birth control, jor rights, Trump, the rights of someone else who who what's access to birth control. So, you know, an issue after issue after issue he had this very conservative. Give record and then we get into his hearing. And he's like, oh, golly, shucks skies. Like, I've just been keep it open mind ad. You know, I don't want to answer that question because it might come before we we learned a lot from the part involving the woman that he almost certainly tried to rape. But substantively I watched his tested Bodey, and I felt dumber at the end of it as far as that those hearings. It it does seem like it's a lot of theater of any nominee just saying they have an open mind on everything. And that they will always view every case completely dispassionately. It seems that never happens in practice, especially reading about all these cases in your book where there's just not a lot of consistency in how most of these courts have handled. Most cases, are we almost better off just picking people out of none of a hat, but that just sort of quick put him up. I it's it's not a great idea to me. But maybe it's just as good as you can guess from the title of my book, the supreme court for more. Of American history has been pretty bad. But there have been periods when it has been decent. You know, there was a very brief period in the nineteen sixties when it was actually good the question. I think that you need to ask what the court is who should have the power to decide things. I mean, if you read the constitution, it is a shockingly vague document. You're the coach who should says that no one show be denied the privileges or immunities of citizenship doesn't tell you what the privileges or immunities of citizenship are so judges have to guess, you know, I it says that there should not be unreasonable searches and seizures, you know, what makes something unreasonable says we can't have cruel and unusual punishment. It says that you cannot be denied liberty without due process of law. You know, and then you gotta figure out what liberty meet, it's it's this very very vague document at so one choice, we can make is that the supreme court can just decide what the word liberty means. And that means in nineteen zero five they can say that the. Right to liberty is the right to have your boss bake, you work a hundred hours a week in a swell touring basement with cockroaches crawling all over it. And that is your liberty. Right. And you and then, you know, in one thousand nine hundred seventy three the court said that liberty mean, you know, includes the right to have an abortion. So we can we can do that. You know, we can say that we are just going to let the court breathe into these very vague terms. Whatever you, you know, whatever five justices say that they want them to me that it batters a whole lot who sits on the court. The other thing you can do. And this is what the court said in in the nineteen thirties in a case called Caroline products. Is you could say you do the court is not elected. It is drawn as I have said from this very narrow band of society. And so we should be very cautious about when the court intervenes. And so what what the court said it in this Caroline. Products case is they said, look if there's an enumerated, right if the cod should explicitly says like the constitution actually says you have a right to free speech. So if it actually says it the court should protect that it said that if the democratic branches are screwing around with democracy itself. So if you've got a gerrymandering case, if you've got a case where you know, there's voter suppression going on the court should step in because in that case, the democratic branches are trying to read the elections and add. So you can't rely on the next election to stop them from doing that. And democratic means like elected, not the the party, right? Exactly. Yeah. Yeah. The third case is when the phrase that that this one that that carrying products because discrete and insular minorities, but basically when you have an inherently when you have a vulnerable population that could cyst winds up on like, the wrong side of discriminatory, walls, you know, whether whether as racial minorities. Whether it is women, whether it is gay people or trans people when you have a group that has historically like repeatedly the law has been used to target them. Then the supreme court should step in in those cases, as well and beyond that, the court should let democracy work. And I think that's right. You know function of the court should be. We don't want them to just decide based on their own values. You know, what five guys in robes says the constitution says that's now the law? You know, we we we should ask ourselves. Like, how do we make sure that this court preserves democracy it preserves the constitution? And it just doesn't go off on a John tear because it feels like. Yeah. Because especially in the book, you bring up the idea that sense. Those justices are not directly elected, they are they draw their power from the constitution itself and not from the people or or the electorate and so so yeah, maybe their actions into. Decisions should be kind of limited in scope because they're they're only signed off on by the constitution itself. The court now has less democratic legitimacy than it has ever had. So really the first member of the court in American history who was nominated by a president who did not win the popular vote at confirmed by a block of senators who represent hat less than half of the nation because the senate's terribly mala portion the, you know, California sixty seven times as many people as Wyoming, they both get two senators. So the the first member of the court who was nominated by a minority president and confirmed by minority bloc of senators is Neil Gorsuch. The second member of the court in American history nominee by minority. President at confirmed by minority bloc of senators is Brett Kavanagh Alito and Thomas were both confirmed by minority bloc of senators. You know, the group of senators who vote. No on them represent more people than the group of senators who voted yes on them. So the only Republican on the supreme court who has any democratic legitimacy is chief Justice Roberts. What you have right now is you have four Democrats, and they got there with some democratic legitimacy. You know, they they got there because they president actually won their election rats, president nominated nominated them. And then a group of senators who actually a majority of the country said, yes, like Elena Kagan should be a member of the supreme court, but Thomas Alito gore such and Cava do not have that legitimacy. And yet, you know, they are claiming powers, you know, that that Caroline products framework that I was describing where the court says, you know, like, we should be really cautious and at only step in certain instances. They're fighting really hard to dismantle that framework and claim more power to themselves, even as they have less and less legit. To do. So when also bring it up course, actually, I think anytime has named comes up a lot of people say that seat was stolen that was taken from from the mirror garland seat. And is that a a is it stolen and be has that kind of theft happened before in history. I do not know of a precedent for the party that controls the Senate announcing we will not confirm anyone nominated by this president because he is a member of the other party, you, you know, there are definitely precedence for nominees getting voted down. There are cases where you had a week president. Herbert Hoover wanted to nominate a conservative to the supreme court. He gave a list of potential names of nominees to two Senate leaders. Okay. Here's the people. I'm considering the last name on the list was a liberal judge Benjamin Cardozo that Hoover did not want and the Democrats in the Senate handed. The list back to a bit said you gave this to us upside down. Nominated cardozo. That's like. Yeah. You know, there there are stories like that. I know of no instance, where the party that controls. The Senate said we don't care who you nominate you you you do not you do not get to appoint someone to the supreme court at I will add, you know, at keeping with what I was saying before about the Senate being Bala portion at the time when Mitch McConnell announced that he will confirm no one that Barack Obama nominates. Barack Obama had actually won his election. He won the popular vote in two thousand eighty one and in two thousand twelve and the block of Democrats, even though Democrats only had forty five seats in the Senate, those Forty-five Democrats represented about forty million more people than the fifty five Republicans. So, you know, our entire democracy is out of whack. And that's a big reason. Why we're now in this position with the supreme court if I remember right McConnell explicitly said. Publicly that not only would he not consider any Obama nominee for that seat. But it was prior to the two thousand sixteen election happening and McConnell hedge that also maybe we wouldn't take one from the next president is I think what he says publicly to everybody which is insane. That's crazy. Yeah. In the alternate universe where you know, Hillary Clinton got a few more votes in Wisconsin, Michigan and Pennsylvania all the Senate races. Still turned out the same. There would at most be eight justices on the court right now because there's no way that the Republican Senate would've allowed her to fill that seat as stand. Eight is an even number with with epi difficult judicial decisions. Yeah. Like, you know, the the the reason we have a supreme court is that federal LOL needs to be universal throughout the country. So like, the most common instance, where the supreme court agrees to hear a case is if there's a case that's filed and say Michigan, which which would appeal to the six circuit and the United States. Appeals for the six or says, oh this law means X. And then there's a similar case filed in Florida that would be the eleventh circuit and the eleventh circuit looks at. It says this exact same law. We say it means something else. And so that creates a problem because what you have one federal law, but it winds up doing something different in Michigan than it doesn't Florida. And so in those cases, that's why we have is cream court is that the supreme court supposed to step in and say, no, no, this is what that law means. So it will be the same throughout the entire country. When you only have eight members of the court, you frequently the court isn't able to do that. And that creates all kinds of problems. You know, I it creates a situation where you know, if the law says one thing in the six or one thing in the eleventh circuit, and you have someone who suing their boss, and it's a it's a bowl t state corporation and the employee would win in the sixer, and they would lose in the eleventh circuit, then you could wipe have a competing rule. Rulings? The employee goes the six can files a lawsuit. The employer goes the eleventh circuit goes, the eleventh, circuit files, what's called a declaratory judgment, which lets them just get a declaration saying that they did nothing wrong, and you wind up having to competing orders to competing courts that that's untenable. I feel like they're the entire purpose of the supreme court has some kind of final say, and it's crazy to think that we were a few vote changes away from maybe having an unworkable say from from an even numbered court. That said the situation we have now is worse because we've gone from having a situation where some issues won't be resolved to a situation where in those cases where they otherwise. Would it be resolved? The Republican party always wins. That that is tricky something you you wrote about on Monday the Monday of while we're taping this which I hadn't really thought about because when we talk about those five justices who are we can just call them Republican justices. I think they they may all be affiliated with the party, even but Roberts Alito Thomas, Gorsuch, and cavenaugh euro to a great story for think progress about there being a divide among those five justices. And I I hadn't thought of them that way because they seem like such a block, and it seems like maybe they are kind of a block, but speak on that way that there's kind of a split among them. Yeah. I mean, it's it's similar to how like when Republicans controlled the house you had the freedom caucus that like would burn everything down if they didn't get their way. And then you had Paul Ryan who wanted the exact same thing. Like didn't think that the that the freedom caucus his tactics were were effective, right? He just didn't want to end government completely. Yeah. And so you. You have more or less the same thing on the supreme court where where you have Thomas and Alito at gore, such you know, they think they've got the power they should use it at. So if there's a case that comes along that gives them the opportunity to implement whatever busted policy they want to implement. They'll they'll just do it and Roberts at least so far Cavanaugh, you seem to have different strategic sense. You know, I I wouldn't describe them as more moderate necessarily. But I think what Robertson particular understands is that the supreme court has limited political capital. The court relies on voluntary compliance like you, you know, in almost all cases, if a court rules against you, you may appeal it, but when the when the judge in when the judgment is final, and you have no more appeals left. Both people just say, okay. Like I lost. I've I've gotta go bay the court now, and you know, because of that our our our judicial system works if people just started to say, you know, what I'm not. Going to pay these guys, you know, go make me there are some tools that can be used you need send the US marshals after that. But there's a limited supply if US marshals, and if everyone who had a federal court decision against them were to say, you know, you're you're just a bunch of political hacks. I'm not gonna listen to you. You're just saying you're I should do that. Because you're a Republican, and I'm a democrat. No. And so if people think that it's going to overstretch the courts ability to enforce its own judgments, you not to be able to send the US marshals after more than a fraction of people. And I think what Roberts understands is that he has limited political capital. And if he does things like strike down Barack Obama's signature healthcare legislation on a completely made up theory that was invented solely for that litigation that that is going to diminish the prestige of the court and move us to a point where maybe people start saying. Well, why why should we listen to these guys one thing? That's interesting. Thing is since Cavanaugh was confirmed. I think that Roberts and oddly enough Cavanagh himself seem hyper aware of the fact that it's probably not a good idea for the court to start taking rights away from women five minutes after he almost certainly tried to rape someone right? He came a member of the court at so they haven't taken any abortion cases. You know? There was a case involving Planned Parenthood last month that they rather surprisingly did not take even though if you looked at the case it met all the ordinary criteria for for a case th that they would only take you know, they they've been avoiding a lot of hot button cases that you ordinarily would expect them to take. Now, there's a bunch of hot button issues that are the court is talking about it as at its conference on Friday. So, you know, by the time people hear me saying this. I I may have to eat my words, but at least as of this moment, they've been voiding a lot of these cases. I don't think the. Why is because Roberts woke up one morning and say add said, oh, I'm pro choice. Now, I think that what has happened is that Roberts realizes that. If this political moment the court were to overrule Roe v. Wade if in this political moment, the court were to say that if you are religious conservative, you don't after obey civil rights laws. You know, if this political moment he were to dude or the Voting Rights Act even further that there would be a huge backlash. And so wal Thomas Alito in gore such are, you know, throwing their tantrum saying, no, I want it all I want it. Now now now now now now now, I think would Robertson Cavanaugh have been saying is got time. Right. They're not a their stances not different as he's just sorta compared really well with the freedom caucus and Paul Ryan like they just are being more as it's very odd to think of Brad Kavanagh as in any way, calm and tactical. I I. I can't square that at my head. But it seems to be what's going on. Well, also in your article, I learned that apparently the court, I did know that it can just not take a case or take a case it's up to the supreme court on I hadn't known. It's it takes four justices to bring a case up at all. And you pointed out in your article that that Planned Parenthood case that came up last month, the three nine justices, you call them Gorsuch, elitist ITO, and Thomas definitely said, let's take this Planned Parenthood case, which means that they didn't get a fourth. Yes. From the very very cautious and careful Brett Cavanaugh right now. I mean who does if that's going to last with Cavanaugh, I eat or for that matter who does if it's gonna last with Roberts like I mean, these guys have dreamed about overruling Roe v. Wade for in some cases decades. Like, I mean, I I doubt very much that Brett Cavanaugh now that he has the power to do something that he's wanted to do probably since wall school. He's going to be like well. You know, what there's this woman that I that. I abused. What I was in what I was in high school. And now everyone knows about her. So I'm just going to give up all my dreams. Like, I I I don't think that that's likely to happen. But but I do think that like they're going to try to put some time between as as spittle faced Brett cavenaugh screaming into a microphone about how much he likes beer, and and how enrolling Roe v. Wade I also wonder when you say like if they're worried about a backlash are there any forms that backlash would take beyond like people pulling a cliven Bundy or something and just refusing to listen to court decisions. Are they worried about Democrats winning additional elections because of the supreme court? What's their fear in terms of a backlash? Yeah. I mean, there's a number of things that could happen. I mean mean one of them is just that Democrats could become more mobilized. I I mean already I think they're I I. I think in the last election women voters prefer Democrats over Republicans by something like twenty points. If if you add the supreme court overruling Roe v Wade and in a partisan, you know, along party lines that gap could become twenty-five thirty forty points. You could have more people turning out to the polls because they're angry about that about that decision. Right. You could have Democrats organizing more around the courts, I mean, Republicans have long at least Republican leaders have long viewed the courts as an issue that they really care about in and of itself and Democrats have not thought that way. And if you know Democrats start meeting force with equal force there. Then the courts will gradually move forward to the further to the left. And then if things get really bad than there are ways that the elected branches can defend themselves. There's court packing. There is nothing in the constitution saying that there have to be. Nine members of the supreme court congress tomorrow, if it wanted to say, no, we're gonna have fifteen justices or it could wait until there's a democrat in the White House and say, we're going to have fifteen justices, and then all of a sudden instead of having a five to four Republican majority on the on the court, you would have a ten to five democratic majority a democratic president could say you remember those US marshals that I just talked about that have to enforce the court's decision a democratic president because it yeah, I think that decisions garbage. So you know, if you want to enforce it John Roberts, go do it yourself. I'm not I'm not sending the marshals to help you. There is something called jurisdiction stripping where congress could pass laws potentially stripping federal courts jurisdiction to hear certain cases. Now, I wrote a big peace and democracy journal about court pack. I wanna be clear about how dangerous these tactics are. Because if we get to the point where something like court packing. On the table. That would mean that you are destroying the legitimacy of the court that would almost certainly trigger a backlash where red states would stop voluntarily complying with with federal court decisions. And I don't think it would be effectively. I don't think if us court packing to restore Roe v. Wade for example, because it's it seems to me that sending US marshals to keep abortion clinics. Open is a recipe for civil unrest. But if the court were to say try to rig our elections or allow red state legislatures to rig our elections, and the choices between destroying the judiciary or having permanent Republican party rule at that point. I think difficult choices need to be made. And so I don't want to say that these are these are tactics of first resort. I don't want to say that they should be used lightly. But it is in fact the. Case that if the court becomes a wholly-owned subsidiary of the Republican party and just starts, you know, heading down decision, solely based on what the GOP's platform is that year than congress and the White House do have tactics they can use to defend themselves. You know, a oddly that is a little bit hardening to me. It's also very scary. But I had often thought of court is something that is like oddly beyond the people's will once the justices are put on it like, they just get to do whatever they want, and that's actually a lot of very dangerous ways to limit them. But also a lot of ways that a court can be limited. I also I assuming many people don't know that that as far as that court packing strategy. That's something that democrat, Franklin Delano Roosevelt almost did. And maybe something worth getting into. 'cause I as I understand it from your book there were four very conservative justices on the court called the four horsemen and FDR. Almost changed the size of the court to overcome them in the great depression. Right. So I guess I really have to start this story in the eighteen nineties so eighteen five is very crucial year in the supreme court's history. They struck down the income tax. They said income taxes are unconstitutional, and and it took a constitutional amendment to allow have income taxes. Again. One of the justices Justice Stephen field wrote an opinion saying you can't have an income tax because it's too bad for rich people it discriminates against rich people those. Yeah, they're the poor poor robber, barons, whatever they going to do. So you know, they striked they struck down the income tax. They said in a case called EC night that Congress's power to the legal towards regulate commerce, but essentially to pass economic regulation of any kind to regulate the work place to regulate a lot of stuff dealing with. How goods are produced was extraordinarily limited almost non existent in in in the context of the workplace so employers could do whatever they wanted to their to their workers. And there was nothing the federal government could do. And then they said in a third case called in Redebe that even in the absence of statutory authority to do so courts have the inherent power to issue. What are called labor injunctions, which is basically a court says, hey union, I see you're doing that thing over there to try to get better wages for your worker. I order you to stop at so. After eighteen ninety five you then had period of about forty two years where the court was deeply ideological often called the Lochner era after case called locked Hervey, New York, which struck down a law. Limiting the number of hours that bakery workers can be forced to work to sixty six zero. Yeah, any of these work was working a hundred and thirty hour weeks. And the supreme court said that it is illegal to pass a law saying that that's too much. You know, they struck down minimum wage laws. They struck down laws protecting the right to unionize. And then come the Roosevelt administration. They struck down much of the of the new deal and Roosevelt in a second term after he won in a landslide. You know? What's interesting about the nineteen thirty six election is that it really was an election about the proper way to read the United States constitution. You know, the the opposition to Roosevelt was driven by an organization called the liberty league. And like the liberty league is like if a bunch of like overzealous liberal screenwriters were to come up with like a sort of like heavy-handed parody of what a meeting of the coke brothers. Looks like they come up with liberty league. Like liberty literally how the liberty league came into being is there is a guy who was a former vice president the DuPont corporation, and he liked to. Location in South Carolina, at he had all these African American servants at his vacation hope I it South Carolina at he could pay them nothing because there just weren't very many jobs for for for them. And then the new deal K Balogh and the government started off with them better pay jobs at this guy's like, wait a second. Like, I've got a pay these people a decent wage to compete with the government. That's not fair. And so he started this organization called the liberty league. He went to the DuPont brothers. Who at the time. They were like the coke brothers of their time. Got them to throw money into this into this organization at the liberty league. I mean, it was hugely influential hugely powerful organization with like some of the biggest, you know, Al Smith who had been the democratic nominee in nineteen twenty eight and was salty that like Roosevelt at one. And he didn't was was a member the liberty league you John w Davis who was a former solicitor general who went on to argue Brown v. Sort of education on the wrong side was a member of the liberty league. These were big powerful people. Their entire argument to the nation was you've got vote Roosevelt out because what he is doing is unconstitutional. The new deal is unconstitutional. We've gotta protect free enterprise this same stuff you hear coming from the coke brothers. Now. You know, the same stuff year coming from Thomas and Gorsuch now, you're saying like, no like the constitution does not let the government interfere with the social order. And if you're rich, you stay rich. And and then Roosevelt won in a landslide ready said, look, we we just had an entire election that was about what kind of constitution, we should have. And I kicked the other guy's ass. And so it's time to set aside these ridiculous doctrines that the supreme court has made up, and it's time to you know, to allow the democratic branches to govern at he was ready to pack the court now, it turned out to be unnecessary. Because Justice Owen Roberts who was kind of the swing vote on the court at that point. Also looked at that election ad said gosh, that was the whole election about the constitution and that did turn out. So well for for the for the liberty league side at the flipped his vote on a lot on a lot of cases, so court packing wound up not being necessary. But yeah, so this is a tactic that at least stop was floated in the Roosevelt administration. Although was was not ultimately, deployed. There's a few things it seems like it was not ultimately deployed because one guy changed his mind, and especially from from reading your book, it seems like a lot of supreme court history, and because of their power just American history has been decided by one justices change of heart or health or death that like it's a lot riding on just one person's personal situation. Isn't it the word that my historian fringe uses contingency like there are so many? Crazy events that happen because of some crazy random happenstance where you can imagine you know, if one tiny thing played out differently. Everything would have been different. I mean, and one example, I talk about in the book so one of the worst supreme court decisions in American history. As a case called hammer, vegan heart a hammer v Dagon heart struck down the federal ban on child labor. You know, I go into a tremendous amount of detail about working conditions in that arrow. But like, we're children as young as six we're working and coal mines and in cotton mills, and like actually one of the worst jobs that they had to do as they would employ these children to peel shrimp, and shrimp is actually very caustic. And so like there was a danger of getting chemical burns that way. And this was something six year old children were doing this for, you know, ten hours a day, congress aside and wanted to put a stop to that the supreme court struck it down in a five to four decision at one of the five was a man named James Clark mcreynolds who is. Arguably the worst person who has ever sat on the supreme court just a horrible bigot. When a black attorney argued from the court, he would turn his back to the attorney food swivel his chair like I don't approve you being I'm gonna turn my back, would you? I think when women when a woman argued a case he got up and left. So that that Helius guy is. Yeah. And the way that he got his seat is he was Woodrow Wilson's attorney general. And you know, he he got that job because he had been in effective anti-trust lawyer. And I think no would realize what a jerk the guy was and then he got to be attorney general, and he was just obnoxious Wilson couldn't stand at before. Whatever reason Wilson did feel like he could fire the guy. So he said, I'm just going to make him. So what else is probably gonna make? I'm gonna make the other justices have to deal with them. So Wilson literally nominated this guy to be on the supreme court just because he wanted to get rid of him. He didn't want him as Torney general anymore. And then he got confirmed that he winds up being the fifth vote to strike down child labor laws. You know, if Wilson hadn't made this guy attorney general if he just fired him, or if he'd said, okay, I'm gonna suck it up and deal with this jerk and pick so news actually would actually be a good Justice. Then that decision would have gone down the other way, and it wouldn't have led to twenty more years where children were I to work in coal mines and cotton mills this area, we're talking about you mentioned many cases that I almost want to linger on because they're just terrible. Like that Enron dubs case in eighteen ninety five essentially made striking illegal for laborers that Lochner case where they said that you couldn't have a law limiting the hours someone works because that violates their freedom hammer v Dragonheart made child labor. Okay. This was the same era as Plessey v Ferguson, which at believe upheld segregation. And then before that Chan ping v United States which upheld. The ban on Chinese immigration of any kind into the US in eighteen eighty eight. The law was called the Chinese exclusion act. Yeah. They they at least they didn't hide the ball. Like it was right there. What they were doing right. That whole range of late eighteen hundreds early nineteen hundreds cases earlier, you had said that the current court has less legitimacy than it's ever had is that true versus this just horrible run of time when they're making all these terrible decisions. And as you said Justice mcreynolds would turn his back on female lawyers. I believe he shunned his Jewish colleagues on the court because he was an anti Semite. I it seems like it was worse that you know, like every year the Justice take like that class photo where they're all like sitting and the like there's shares of four. Yeah. Picture it'd be. Yeah. They've they've doing that little yearbook photo for you know, probably as long as they've been cameras. They do it once a year except for one year at the reason, they did it do it in that year is because when the Justice or ranged in that photo there arranged by seniority and that year because of how the seniority chart worked mic rentals would have to be next to Justice Brandeis at. Brandeis Jewish and mcreynolds refused to stand next to a Jew. So they just didn't take the picture that year. Yeah. That I. Yeah. I'm curious if the public looked at that court, and maybe hopefully, not even just FDR Democrats of the time looked at it. And like I can see how court packing was on the table. That's that's a stunning group and a stunning limit on every American's life. So I mean, I'll say a few things I mean, I think that the court we have now like it terms to the substantive outcomes they're likely to produce probably will not be as bad as what you got in say the nineteen twenties. I mean, I'm very worried about what this court what the Roberts court is going to do to folding rights. And I think that voting rights is literally the most important issue there is because the only way to fix a bad government is to voted out. And if Roberts court takes that away, then nothing else matters. But that said actually John Roberts. Chief Justice Roberts has said very clearly he disagrees with the Lochner decision. Like, I don't think that Idi logically the court. We have now is as bad as the court. We had wed Nick Reynolds was writing majority opinions that said, what is new right now is that we have the most partisan supreme court that we have ever had. So like, I mean, you had terrible ideologues in like say the nineteen twenties. But you look at these really awful decisions Lochner Neo in Redel ABS Hammarby Dagon hurt the child labor cases, and there were democratic and Republican appointees in the majority. So like, you know, the the court was tanning down really awful idiological decisions. But it wasn't that they were saying like we are here to push the agenda of particular political faction in this country since then parties have just sorted more. Like, I mean for most of American history. This is something that political. Scientists will tell you is very unusual. Our political parts were really coherent. Like, I mean, there were liberal Republicans conservative Democrats for most of the the twentieth century the most liberal, and the most conservative member of congress would both be Democrats because the most liberal member of congress would probably be a democrat from New England. Who is you know, who's a big lefty and the most conservative would be segregated from the south, right? Who was a democrat because there was only one party at that point in this out that was the Democratic Party. So we didn't have very coherent parties and that led to Republican president could sometimes appoint liberal justices. You know, or or Warren was appointed by President Eisenhower, a democratic president could sometimes appoint very conservative Justice mcreynolds again was appointed by Woodrow Wilson, who is a democrat. So there wasn't a partisan coherence to what they were doing. Now is the first time in American history. We you have a block of five members of the court who are over pub. Lukens and who could Sistani vote together and politically charged cases and a block of four democratic members of the court who all consistently vote together as well that has never happened before. And that I think is very frightening because bec- Reynolds was terrible. But the thing about the mic Reynolds era in the supreme court is you had terrible decisions coming down. But it was five independent minds who are all all independently deciding that they wanted a terrible result resh start wargin. Izing by party. You start organizing by party, you you you have blocks that start voting together. You have people who start all forming the same opinion at the same time because they all went to the same federalist society panel. And they found that panel convince it and so it's much easier to get really terrible result. Boltz nineteen twenties. You could find instances where even though there was a conservative majority on this on the supreme court case would come along and wanted the conservative Justice would would just independently decide. No, no, that's that's a bridge too far. And I think you're gonna see less and less of that now. And the reason why is because there is an intellectual infrastructure and a partisan infrastructure in place to make sure that Republicans all think one way about the law and Democrats all think one way about the law. It almost sounds like the results of any supreme court. We have our are partly determined by what just the public expects. They would do with any case because they are only acting on cases that work their way up to them. They're not just waking up one day and declaring stuff, but it seems a Cup of ways like in that that were in court you mentioned, which we should also probably breakdown more later, but that was such a positive time in the sixties and seventies there that in. In the book, you mentioned that people were so excited about what that court might do four the downtrodden person on the regular person that they were bringing them cases. Like, hey is havi itself kind of unconstitutional? But once the Rodriguez case, which unfortunately, did not go to dot go well for the plaintiffs. Here's what I will say is that lawyers are smart, and the sort of lawyers who bring cases to the supreme court or smart, we will not know for several years. How bad the supreme court is going to get with Brett Cavanaugh on it. And we're not going to know is because the cases that are now arriving by the supreme court for the most part of cases that were filed three years ago like three years ago, everyone thought Hillary Clinton was going to be president three years ago. People thought that Justice garland was going to be the swing vote. Right. And so really aggressive conservative lawsuits did not get Br. In that period because they thought they would lose them. And then after you know, after Trump won and people realized that there was going to be someone like Gorsuch in that seat. You know, they started bringing the suits. And you're seeing like the first wave of those sorts of lawsuits Dow starting to reach the supreme court, you know, none of the cases that were brought after people knew that Justice Kennedy was leaving the court. None of those cases are, you know, have have made their way up to the supreme court yet at so we will go for a while. Like, you know, what's going to happen is you can have all these federalist society, lawyers and they're going to start thinking creatively. And they're gonna come up with wackadoo it'll theories, and then they're just going to see what sticks and wander more of the Republicans of this quarter. Go look at and say, no, no that that's too much. You know that that's what happened with with the attack on ObamaCare. John robertson. Don that that's too far the warriors adapt their strategy to who's on the court. So when. Was the war in court. You know, liberals were thinking very aggressively about what sort of lawsuits to bring and now conservatives are going to think very very aggressively. And I wanna point out one other thing just to like, I mean, I hope that my fellow supreme court reporters are hip to this dynamic because if they aren't they won't inform their readers, very well. And that is we will eventually reach an equilibrium point. Like, what's eventually like, you know, right doubt. Looks like Roberts is the median. The median Justice Roberts is very conservative. But like there are things that he won't do that. Like Thomas gore, such and like the federalist society lawyers who are bringing these lawsuits want him to do. So eventually everyone's going to have a pretty good sense of how far Roberts is going to go. And for like the next few years. There's going to be feeling out period and the courts going to like hand down a lot of really conservative decisions. And as. Federalist society lawyers start winning more suits. They're gonna start getting more aggressive, and eventually we will hit the point. We're Roberts says. Nope. Too far. You can't do that. And when we hit that point you're going to get a lot of five to four decisions where it's gonna look like oh roberts's voting with the liberals a whole lot. I guess he's a swing Justice and he's real moderate. And that's not what it means. If I bring a lawsuit arguing that black people are unconstitutional and in a five to four decision by chief Justice Roberts. The supreme court says no, no, we don't think that black people are unconstitutional that doesn't mean that John Roberts is a moderate. It means he's not a crazy person. Right. And that case has just kind of sounded out. Exactly. How far he'll go. It's not right. Yeah. Well, because for people who don't know, and there's case national federation of independent business versus Sibelius in two thousand twelve where the court did uphold the Affordable Care Act, and as you say. On the book Roberts seemed like he was going to be the fifth vote to kill it. And then just kind of changed his mind and didn't kill it as the fifth vote. And so I guess that has all lawyers with an agenda in the country trying to figure out. Okay. Well, let's see what his psychology as will determine all laws that way. Yeah. No that. That's exactly right. I mean, basically, you know, we are now in a world where you the constitution is what whatever John Roberts says it is at John Roberts is a really conservative guy. I I mean, he's not as absolutist as as Neil Gorsuch. But like I am confident Roberts wants to get rid of Roe v. Wade I am confident that Roberts is going to alternate say that religious conservatives don't have to follow civil rights laws at least in is much though, civil rights laws. Protect gay people and trans people, I am, you know, confident that Roberts is. Going to say that gerrymandering is fine Roberts has already said that section five of the Voting Rights Act, which was the provision saying that states that have a long history of racial voter discrimination have to get someone in Washington to look at the law and make sure it's not a discriminatory voting wall before it can go into effect. He already struck that down. He back in the nineteen eighties. He worked on a bunch of memos in the Reagan Justice department, where he said that another provision of the Voting Rights Act, which says that if a wall has the effect of disenfranchising people of color that the law is a legal. He he's he argued that that was unconstitutional. So this is a guy who based on everything in his record is prepared to eliminate our entire voting rights regime. You know, he also voted recently in a case called abbot V Peres, which was a case involving intentional race discrimination. He he vote. He joined it a patriots say that it's virtually impossible to prove intentional discrimination. If you bring a case alleging discrimination, you're gonna lose a mile, and so this is a really really conservative guy a-, and yet there are some things that he's going to say is a bridge too far. Like, he did say striking down the entire Affordable Care Act. That's a bridge too far. He he probably would you know, he would not strike down the minimum wage, for example. He's been pretty clear that he disagrees with the locked or line of cases. But if you just look at his voting rights jurisprudence, I I mean, this guy bleeps really wacky things. Like, I said voting rights like if you don't have that nothing else matters. Yeah. Right. 'cause then then the government just get stuck in what a minority of the people with the power want. Then you just have, you know, an eternal succession of Donald Trump's and in terms of the sort of more aggressive changes to the system to limit a supreme court that that is going overboard. That there's I want to cite a memo here from nineteen Eighty-three. It says quote setting a term of say fifteen years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. End quote that was a nineteen Eighty-three memo by a young Reagan administration person named John Roberts is that. How far we can we can go some kind of a fundamental change to the court like term limits because because as you mentioned not only is the supreme court. But also the Senate I feel like there's a lot of opinion out there saying the structure of those to a pretty sizable parts of the government. The the structure might be something that has to be fixed or else it's broken. There's a lot of people who support term limits. The leading proposal. I've seen is for the supreme court to have eighteen year terms at you would stagger them. So every two years. So when rotates off the court, you know, the the theory that that way, you know that. That if you elect a new president that president will get to replace exactly two people in the supreme court during their doing during each of their turbans. And so you don't have the situation you have right now where justices time they've retirement so that president of their parties in office, you you don't have the situation where they're like trying to find people who are as young as possible. So they can squeeze as many years. Like, I was reasons four term limits. I I mean, I remember talking to a lawyer wants who clerked on the supreme court in the late nineteen eighties at what he told me was it was an incredibly depressing period. And the reason why like you had all of these people on the court. It's some of them were other giants. I mean, you had Bill Brennan who was v liberal lion of the twentieth century. You had Thurgood Marshall the single greatest litigator in American history. You had, you know, black men in Powell, you you had you had these justices who were at that point. Were extraordinarily elderly. And what he told me is that they weren't the men they used to be the they very much had suffered from mental decline, and it was just very depressing watching these people who once had been lions you no longer having the intellectual capacity to really do their job. And so a lot of the job while up getting pushed onto the clerks and Angie's you don't want that. And you know, one way you can avoid that is term limits. But if the problem, you're trying to solve is to prevent us from having a deeply ideological to supreme court, you know to like get rid of people like Clarence Thomas. I don't know that that solves the problem. And and the reason why is because the federalist society in particular, the conservative like Republican legal group has been radicalizing. Being very very fast. I I mean when I was a law student, I didn't graduate law school to law that long ago, I graduated in two thousand six when I was in law school. They were like they were pushing judicial restraint the they were saying many of the same things that I said at the beginning of this interview that look we don't want judges doing too much. We want democratically elected officials citing what our law was. And you know, in the Obama years they rallied behind this nutty theory to try to strike down ObamaCare that almost one. And now like I go to federalist society events, and I hear people talking about bringing back Lochner. I I mean, they they think that the nineteen twenties when people like Justice mcreynolds were running the country was a golden age, and they want it back at each year that I attend their events. They get more radical you could implement term limits and chief Justice Roberts has been there long enough that he would probably get term limited out. But if you replace someone like, rob. Roberts with someone like gore, such I don't wanna live in that world. I mean, that's that's a worse world. There are good arguments for term limits, but it is not the solution. We are looking for if what we want to fix is the problem of a deeply partisan are deeply ideological supreme court because a lot of the players, and this is also feel like when not only are the American people not directly voting on who gets on the court. But they also tend not to know who's involved in this like in bookie cite a poll from twenty ten where only twenty eight percent of Americans knew the chief justices name and less. This federalist society organization. I don't know a lot about and I think most people probably haven't heard of is there like an equal and opposite group to the federalist society fighting for the other thing is it just a battle between those two kinds of things. I mean, yes. And no, I mean, there's an organization called the American constitution society. That is supposed to be the the liberal counterpart to the federalist society. Now, I mean. ACS? I think has maybe a sixth of the money that the federalist society has because I know like there's just a lot of Republican money. Like, there's there's a whole lot of millionaires. You can go to to write big checks or something. Like, the federalist society. There's a whole lot of lawyers and law firms who make a lot of money representing corporate clients that will benefit a great deal from what the federalist society is going to do. And like, you know, some of those lawyers are personally sympathetic to ACS is doing, but that's not how their bread is buttered, structurally, like the two political parties in this country. Very very different. You know, the Republican party is in idiological party where it is driven by the notion that there are these certain first principles that we believe in and our goal is to make sure that everything in American law and policy aligns with our values at the Democratic Party. And like this was an Desam the Democratic Party. It's just a different way of structuring a political coalition is a coalition. Party, you know, in in the Democrats, you have racial and ethnic minorities who are there because frankly, the Republican party has become a white nationalist party. And they they don't want those guys in charge. You have you know, sexual minorities and gender minorities who like align with the Democratic Party for similar reasons, you have people who are low income who, you know, benefit more from democratic economic policies. You have people who are very wealthy and very well educated who may actually be worse off economically underboard liberal economic policies, but who identify culturally with the values of the Democratic Party, and you have mixtures of those. I mean, you know, there's intersection out there, you know, you may have a black attorney who objects the racial politics of the of the Republican party and identifies culturally with with with liberalism. And maybe they have a brother who is who is poor. So they're sympathetic to their brothers needs as well. I like it's not like everyone's in that coalition for only one reason it's just a different way of structuring a party. So you actually have much disagreement amongst Democrats about you know, what the proper way to to run a country as and what the law should look like, and that makes it harder to organize be because you know, you can get a bunch of like federalist society lawyers together, and they all believe the same things and like eighty percent of them were white men, and they all have very similar jobs, and like they represent these corporate clients. So like the way that they pay their bills aligns with their political values, and it's just really easy for them to work together to come up with a coherent theory of what wall should look like, you get the liberal lawyers together in the room, and the environmental lawyers who are trying to come up with Lee with legal theories to stop and oil pipeline. For being built don't necessarily align with the labor, lawyers whose clients are unions who represent workers who want to build that pipeline. You there's like again like, I'm not attacking the Democrats here. It's just it's just a different way of structuring a party. The Democratic Party is a big tent? There are more Democrats in this country than there are Republicans. But because the Democratic Party has you know, is made up of these different groups that you often have overlapping, but sometimes conflicting interests it's harder to organize and at imagine. It's had that problem at least since the civil rights acts of the sixties, and I with with fixing the supreme court, or or at least shifting it in a direction that works for everybody more. I almost wonder if that that Warren court, we talked about a bet which for people who don't know it's named after its chief Justice Earl Warren, but. It was a time from the late fifties to the early seventies. When we got a lot of pretty equitable decisions, which as you point out in the book was kind of the first time. I almost wonder if we can look at how that court came together, and then see some kind of strategy to shift the current court without dismantling how it works. So the answers it came together by accident. Eisenhower would said that the two biggest mistakes he ever made or sitting on the supreme court. They were they they were chief Justice ward injustice. A- Justice William Brennan, you know, is it Howard put conservatives on the on the court, and like there's a lot of speculation as to why he put Warren, but like Warren had been the governor of California. And and he was Republican and their theories that like, basically Eisenhower traded hip a seat on the supreme court in return for Warren's political support. So that Eisenhower get the nomination Brennan for what I have read about Bill Bredon Brennan is. Was it Irish Catholic from New Jersey ad for whatever reason Eisenhower gives you a sort of a window into how Eisenhower thought, but like whatever reason Eisenhower apparently thought like, oh, this guy's an Irish Catholic. He must be conservative. And as it turns out Justice breaded was really the great liberal lion. I mean because he wasn't just a very liberal Justice in an very smart Justice. But he was one of the greatest political minds that has ever sat in any of the three branches of government. And he was persuasive. I had a very close relationship with Justice Lewis Powell who had been a conservative southern lawyer who represented clients like Philip Morris for I think, I think is actually Philip Morris's board for awhile. That's how was but Brennan like cultivated a friendship with pal and was very effective in convincing Powell to move to the left. You know, bread had a civil relationship with Justice O'Connor, I beat he was he was such an effective politician that often his persuasiveness brought along two additional votes. You know in our thought the sky was going to be a conservative. Again, like, you can imagine a world. Like if Eisenhower felt like he had it needed warns endorsement to get the nomination or like, you know, if he'd picked someone other than Brandon. Yeah. That entire period of of American history might have been very different. You know, you probably wouldn't have seen the criminal Justice revolution. You had in that era. Where like I mean before the war in court, you had instances where police would literally torture people to get confessions you'd smack them around forbid until they signed a confession to get the abuse to stop. And then and then the police would go to court and say, well, you got to convict him. He confessed. That's insane. That's where the Miranda case Cape from its I it's police were hounding him, even when they weren't torturing that they they would just get someone in a room, and they would hound the person the person would know what the rights were this was happening over and over again and innocent people are being sent to jail at finally the Warren court said the constitution has to mean, something like you. You know, the the, you know, the fact that you have these rights have to beats up the at so police, here's a script that you have to read you have to tell people in these exact words, these are their rights. So that you can't hound them. Until the until they give up the rights. I I mean, you know, the the constitution says that you have a right to an attorney to have any idea what a lawyer costs. I I mean, right. You cannot afford a lawyer unless you are very very wealthy at so with the Warren court said is said look this right has to beats up that means we have to have public defenders. Because we don't have public defenders the only people who would be represented by council will be the very very rich and feel like people may not realize how many rights we have came out of that and like decade and a half. When this this war in court as we call it was in place a decision in nineteen sixty one said they can't use unlawfully seized stuff as evidence nine hundred sixty three decision. Created public defenders nineteen sixty six decision created Mirant Herat's. It's it's a lot that I feel like maybe maybe there's almost something heartening and how quickly a better constituted court can fix things or flip things. I don't know. I guess the there's the obvious downside of how quickly they can flip things worse. But it changes fast. That's amazing to me. You could imagine a future like, you know, two years from now, if no one else leaves the supreme court, we might have present gillibrand president Harris, president war. I mean, you know, who knows it will be but like a democratic president. And then like, you know. No, five minutes after president war and takes the oath of office just as Lido could choke on a chicken boat. And if that happens all of a sudden, it's a five to four democratic court at everything looks completely different now. I mean, I I will say that it strikes me as completely ridiculous that we live in a country where all of these massively important questions could hinge on the fact that Sam Alito swallows a chicken bone. Yeah. Right. But like, but that is the reality. I mean, that's how that's how our system is set up people reporting on the court have every right to report on the health of these justices because they're their death is how the the seat turns over is that also kind of upsetting element of that work. Oh, it's terribly upset. To pick judges. I I mean, there's some countries in France, they have they have a professional judiciary judiciary. And so generally like the way that you become a judge is like, I think you actually go to judge school. And then like, and then you were promoted within the judiciary. So like, the the senior judges pick the junior judges are, and then you know, and people who do well get promoted. So that's one way you can do it. There's something called the Missouri system because it came about in the state of Missouri. And the way that that works is you have a commission some of the members of the Commissioner picked by the governor. Some of the members of the commission are picked by the bar association often, the chief Justice will share it. The members of the commission are picked by enough diverse groups that it's unlikely that one political party is going to capture all the seats. And then the way that the process works is whenever a vacancy opens up on the state supreme court, the commission since three names, and they're. Supposed to pick them solely on the basis of merit doesn't. Yes, you're not doesn't matter. What the radiology are. These are just people that we think would be excellent judges and of those three names the governor picks one, and it's a good system. You know, it's a better system than we have at the federal level. You know, Alaska uses the Missouri system. And what that means is there's a woman right now who sits on the US quote appeals for the night, circuit Morgan Christiane. I think is is her name. She was an Obama appointee to the ninth circuit, and before she was an Obama appointee to the ninth circuit. She was a Justice on the Alaska supreme court at Sarah Palin appointed her through the commission, the commits she was one of the three names mission sent to to governor Palin and governor Palin said I want her, but you know, the point is that it took the politics out of the process enough that both Sarah Palin, and Barack Obama could look at the save woman at say this woman will be an excellent judge. That's a better system. There are sometimes when it's captured you'll Zona has Missouri style commission at it's pretty captured by the Republican party right now. And they've been putting up pretty ideological justices on the Zona supreme court. So it so it ain't perfect. But it's better at if it means that justices are picked for reasons other than partisanship some of the time they'll be better than the world. We live in now where they're picked on the basis of partisanship all of the time. And it seems like even that shifts. This is probably way too optimistic to think it happened. But it seems like that shift could happen without changing official laws or systems. Like, I was amazed to learn in your book that not only did Richard Nixon get to pick for supreme court justices. Which is a thing. We don't think about enough. He got to pick them. They just stay there. But then that court certainly handed down some terrible decisions, but also handed down decisions like Roe v. Wade abortion is legal now. And it seems like it was just because there was enough. De-politicisation that even somebody like Richard Nixon didn't necessarily pick hardcore lunatics every time. I will I want to say they would take a constitutional amendment implemented, Missouri, or at least it would take a constitutional amendment to implement it in a way that was permanent president Carter actually implemented something I think it was called the United States circuit court selection committee, and like he created a commission that was supposed to pick US court of appeals judge is based solely on merit. And he followed the recommendations of his commission, and it was great. It worked really well and then Ronald Reagan came along. So I don't want to do that. I would have picked staunch Republicans. And so that was the end of that. So like if you're going to have it be that has staying power you have to it by constitutional amendment. But like to the point about Nixon, you know, the lesson. I would I take from that is that politics change. If you look back at the nineteen seventies. Like abortion was not yet a partisan issue amongst highly educated people at highly educated people or again, the sort of people who get to sit on the supreme court. There was a fairly widespread consensus that abortion should be legal. You know, there was a I don't recall if Dixit ever express express, if you a on abortion, but it was very pro family planning, you know, there's broad bipartisan consensus that Planned Parenthood is good. And it wasn't really until the rise of organizations like the moral majority in the nineteen eighties that you began to see. Not just political organizing around conservative Christian identity. But that those groups decide that abortion was an issue that they really cared about. My point is just that that politics shift, and here's another very contingent part of history. Sure roosevelt. You remember what I said before about how the court kept striking down the new deal. So the only thing that Roosevelt cared about was that he wanted his justices who would get out of his way and let the new deal happen. There was no coherence amongst the people. He put on the supreme court on racial Justice, Hugo black Justice, Hugo black, actually wound up being a huge liberal who was very good on civil rights. But before he became a Justice and changed his mind about like, I guess whether or not African Americans are people he was an Alabama Senator and he belonged to the Ku Klux Klan, this was Roosevelt's first nominee to this. Cream court and thank God that Hugo black had a come to Jesus moment sometime after he put on a black robe another one of Roosevelt's appointees was this guy Jimmy burns. And burns, thankfully, only served on the supreme court for little more than a year. He wound up becoming Roosevelt's right hand. Man. You people would call to the assistant president burns was in charge of running the war mobilization effort, and he became so powerful. At one point when Roosevelt would go overseas to meet with Churchill and Stalin. There was a safe in burns his office with were blank executive orders and Roosevelt had signed these blank executive orders at told birds like if there's an emergency, just write whatever it needs to go here. He's the president said on this court. Yeah. Yeah. Burns out of the court for little more than a year start segregationist. He wound up being elected governor of South Carolina after service in the Roosevelt administration after he served as Harry Truman secretary of state. And he was the governor that litigated, you know. One of the companion cases to Brown v board of education like he was the governor who hired the what was then the one of the best lawyers in the country. John Davis who I mentioned before to defend segregation before the supreme court. So like, if you go black had, you know, not changed his mind about racism or Jimmy burns had decided that he would rather have stayed on the supreme court brownfield vegetation would have gone the other way. Right. It was a unanimous opinion. But it wasn't actually a unanimous opinion. Like, they heard it the first time around and the vote was four to four with Felix Frankfurter sort of not sure what to do and in. In the intervening year like side to argue it again at over the summer wall. It was waiting to be argued again chief Justice Vincent died was replaced by Earl war and an award and was the fifth certain vote to say that that yes, we got to end segregation at once it was five to four, you know, once they had a majority of segregation. Then or Warren who was the former governor of California, and was very savvy politician said, look, if we do this, and there's a descent it's going to be a nightmare the south is going to latch onto that. And there's no way that we're going to survive that this has to be unanimous, and he eventually convinced every member of the court. I think the the last hold out. I think was Stanley Reed who was from Kentucky. I think it was also a segregationist and at one point after Warren, headlined up the other seven votes, he went to read and said, STAN, you're all alone in this. My point is like I have two point. I mean, one is just shows how contingent this all. So is like, you know, again, if like if you go black had stayed a jerk if he'd stayed a bigot, then all of American history since the nineteen fifties may may have been different if you know, and the other point is that presidents don't often -ticipant what the next issue is going to be. I mean, people were surprised that John Roberts voted to defend the Affordable Care Act. I'm not, and the reason I wasn't surprised that he voted to uphold the Affordable Care Act is twofold, one is that I've read a lot of his writings and everything I've read about John robbers tells me that what he wants to do is the stuff that the conservative faction in the Reagan Justice Justice department wanted to do in the early eighties. And I've read the documents on the conservative action in the night in the early nineteen eighties. And they just didn't want like they didn't care about the doctrinal issue that came up in the Affordable Care Act case. The other reason I wasn't surprised is because the reason why George W Bush pick John Roberts because what Bush cared about was getting. No, he wanted a Justice who would be certain to uphold Gitmo. We went looking for people who we thought would exercise. What was then called judicial restraint? I would say that the president can do whatever he wants to get that. That was who John Roberts was and sure enough be John Roberts upheld the Muslim ban on these national security issues. He's awful because think Bush picked up to do he picked up to be awful inactive security didn't pick him to like say that poor people can't have healthcare, right? Yeah. One one terrible thing at a time. Yeah. But like even that Brown board story public pressure and attention on the court matter and just before you go is there anything you notice coming up. I'm sure there's many things, but anything you noticed coming up that people should be particularly aware of or or watchful of what the court. Yeah. I mean, depending what the court does on Friday by the time people hear this. They may take V abortion case that can be used overrule Roe v. Wade that is that's something there Friday conference. Do you know what that case would be called? If it goes up box is the name of the case. I can't remember who the other party is. But someone v box and in scope Buli troll, e Indiana. Lol that among other things prohibits Ray. Selective abortion. And as far as I know race elective abortion is actually a thing. But like the the wall is two purposes one is so that if the supreme court takes the case, Fox News could spend the next six months accusing Planned Parenthood of being racist. And that and the other reason why why the law exists is. Because once you get that camel news under the tent where they take any abortion case that can be used as the vehicle to overrule Roe v. Wade. And so so Bob boxes the name of the case that people need to watch out for. There are several cases are at least three cases dealing with whether or not it's legal to fire someone for being LGBT. There is a big guns case that involves like a really. Dumb. Second amendment issue involves whether or not people have a right to practice shooting at the firing range of their choice. Then somehow now that's now a constitutional question. But like if they take that case, they could massively expand the second amendment. And it could lead to a lot of you know, currently uncontroversial gun laws being struck down. There is a case about DACA, the Obama administration policy protecting a lot lots of undocumented immigrants who came here as children. There was a case involving the trans ban that Trump tried to impose on the military. So you you Trump doesn't want people to be able to serve if they are transgender right now, this has been a very common boring term, and like I could tell you all sorts of like vaguely pleasant things about how John Roberts has been avoiding bad cases. And for a while we can like feel safe by the time people actually here by voice things might have gotten much much scarier. Yeah. Well, we will we will link to as much as we can. About if anything's changed when it comes out. But either way thank you so much for for taking us inside of all this. Folks, that's the episode for this week. My thanks as I said to Ian, Mel Heiser for giving us so much time and such a wealth of information about how the supreme court and Justice in America have worked overtime. I think the more we know about how it's work the easier. It is to improve it, and you know, exert that kind of public pressure that has impacted the court throughout its history. And in our footnotes, you will find Ian book injustices, the supreme court's history of comforting the comfortable and afflicting the afflicted, it's it's a fascinating read. I'm glad he got to so many stories that come up in it because there's just there's just so many details of American history bound up in the supreme court. I think we learned the president's primarily because they're easier to process but the legislature, and that even more secretive in strange court system has impacted everybody's lives a whole lot as I said, we'll also have extensive footnotes on all the different. Court cases, we talked about today that are just such fascinating landmarks in shifting the direction of the country. And as I said just those few times when we talked about, oh, maybe tomorrow or later today. There will be a little more cart. News. You will find a text update in the footnotes on what exactly has happened there? Because we want you to be informed and informed accurately when you listen to this podcast more links for Ian Miller Heiser worked willing to his think progress writing which we touched on today, especially with the surprising split in those five arch. Conservative justices also ins Twitter account. It's very funny. He's he's really on top of being fun about what's going on in the courts. His avatar is a picture of Earl warrants if you wonder what that guy looks like you'll find out and there's a lot there. And I think it's as much as you want to dive into it. I hope we have met your need and clarified things. And brought you the best experience. Again, speaking of experiences. Why don't you have the live experience of this show tickets? They're not on sale yet for LA live show in February that Saturday, February twenty third at nine pm at the UCB sunset the in Los Angeles will post out links to tickets when they are. But you can Mark your calendar. In the meantime, and then you can get tickets to our live tour. We're taking the show more places than ever before. Chicago April eleventh Lincoln hall, Saint Paul Minnesota, April twelfth Amsterdam bar and hall. I know I keep talking about those shows, but I'm so excited about them. I can't help it folks. I cannot be restrained. Yes. I can be restrained. I'm an adult and put together and let me say put together way, I'm just very very excited for those shows. And I hope you'll join us out in the upper midwest Mahomes region, I'm going to be back. It's going to be great and beyond that our theme music for this episode is the song Chicago falcon by the Budo spanned. Also, a big thanks to be many engineers who helped us today. Jordan Duffy engineered at ear will. And then we had the indispensable assistance of Merck. Georgia's who's at the scripts bureau in Washington DC. So I'm glad we could like. You know, cross the country to talk about the the crazy robed folks who've changed it does episode was then edited by Chris Souza who put it all together. And, you know, join the coast what magic I love it. And if you love this episode, that's great. If you hate it. Let me know about it on social media. That's right. Social media as space that I think we are all recovering from watching as as Brett Kavanagh made his way through some Senate hearings. And I hope you'll give yourself some self care if you needed it because that was that was quite a time. Also, a lot of memes because there's always memes, but mostly very very difficult. So hang in there. My own Twitter account is at Alex Schmidt. He my Instagram at Alex Smith Graham among the wider internet at my website, Alex committee dot com, and I'm here to say we will be back next week with more cracked podcast. So how about that talk to you that? This has been ear will production executive produced by Scotsman, Chris. Bannon and Colin Anderson for more information content. Visit ear will dot com. Happy new year ear will fans is eighteen is over. Not a moment too soon challenging year. However, a real bright spot was doing feel. That's right. I I love it. I'm Dave home sign that mcconnachie, and we had such a good time this year doing this show. If you are not familiar, homophobia is a podcast here at your wolf where and I talked to awesome LGBT queer, plus people celebrity let's say liberties geniuses, creators makers, movers, shakers all of them. About the pop culture that they're loving and the people that are loving. We had a ton of great gusts eighteen including Jesse Tyler Ferguson, maybe heard of him for a little show called modern family. He's telling us the story about the time. He got caught shoplifting. Gay porn, all the blood rush to my stomach just felt such compassion for him. Mat Rogers of Lasco Theresa's talking about losing his rigidity to the manager of a clam barn. So romance always glamorous fence, the great rea- butcher giving us essentially masterclass on gender fluidity round or yes. Talking about marriage, and then like loam, it's after the show dropped proposing to his boyfriend and also during the episode flirting heavily with Dave Holmes is related to the proposal follow shortly after I don't know you have to listen to out not for us to know, Dan, savage, who, you know, he's genius sex and love guru right here. Wolf raking down being monogamous tons more. It was a great year. Yes. If you like really good stories if you like laughing ton if you like going, real deep under pop culture and your injure. Self help your queer theory, but fun, listen, homophobia with me and me makuuchi on apple podcasts or Stitcher ever. You joe? Joe?

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