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S2: The photos had not been driven off the court. The real allegations of illegality by Nixon, that’s this liberal vote would have been there to give poor kids all across America a better start in life.
S1: Hi, and welcome back to Amicus, Slate’s podcast about the courts and the law, the rule of law, voting and the Supreme Court. I’m Dahlia Lithwick. The court heard arguments this week in a couple of cases, including a key question about unions. The court is also back in the news because of new pressure coming from the left that is being imposed on Justice Stephen Breyer, wanting him to step down immediately and let Joe Biden name his successor. And also calls by Senator Sheldon Whitehouse of Rhode Island for Merrick Garland to reopen the investigation into Brett Kavanaugh that he feels was not complete at the time of his confirmation. And we’re going to be delving into some of that with our guest this week. Efforts to oust justices from the not so long ago past tell us that the more things change, the more they don’t ever really change at all. Later on for our Slate Plus members, Mark Joseph Stern is going to come in to talk about that big unions case that the court comes at the 9th Circuit and Georgia’s massive pitch to suppress so many votes that Senate Democrats will eventually kill the filibuster. But first, we want to tackle an issue we often talk around on this podcast without necessarily speaking directly to it, and that is poverty. We have certainly discussed components of income inequality on the show, whether it’s about granting speech rights to billionaire donors who want to influence political campaigns or whether it’s giving powerful business interests really broad rights against their workers and workers grievances. But I don’t know that we’ve ever actually done a show directly on this question of the intersection between the Supreme Court and poverty. And so we want to correct that right now with a conversation with Adam Cohen, whose book Supreme Inequality The Supreme Court’s 50 Year Battle for a More Unjust America came out in 2020 and is out this month in paperback. And his book is an almost heartbreaking catalogue of the court’s trajectory from a government institution that came really glancingly close to speaking up on behalf of the poor in the 1960s to the one that we know today that unerringly favors the rich and big business. And as Adam writes in his conclusion to the book today, Wealth inequality in America is just about where it stood in 1929, right before the Great Depression. The top one percent controls 40 percent of the nation’s wealth. And we don’t often think about it this way. But the court has been a principal architect of that vision. Adam is one of the keenest legal journalists in the country. He served on The New York Times editorial board. He served as a senior writer at Time magazine. His last book, Imbeciles The Supreme Court, Eugenics and the Sterilization of Carrie Buck, was an absolutely riveting award winning chronicle of the court’s flirtation with the eugenics movement. We had him on the show to talk about that book. We’re so excited to talk about this next one. Adam Cohen, welcome back to the podcast.
S2: Thank you, darling. It’s a pleasure to be here with you.
S1: And I want to start with this seemingly obvious question, Adam, because we’re all taught when you open the book with this, we’re all taught this very cheerful narrative about how the court exists to protect vulnerable minorities. At a minimum, the court has to ensure equal justice under the law that’s emblazoned on the building itself. But the main point of your argument is that actually when it comes to poverty, the court has done more or as much to create the structural income inequality we see today than any of us actually believe. So very obvious question is, why are we so in love with this narrative about the court defending the underdog when it did so only briefly and glancingly and hasn’t done so before and is not doing so now?
S2: It’s a great question to start with. Absolutely. I think we all grew up with this myth. Right. The Supreme Court, the champion of the underdog. And, you know, we grew up with it being fed to us movies, books about Brown vs. Board of Education, about desegregating the South. And it’s a nice story. It’s a story we’d like to believe. But if you really look at the history of the Supreme Court, why it couldn’t be more different. Think about what the court was doing during. Slave times, we know Dred Scott, right? They were upholding slavery. Look what they did after the Civil War, when there was segregation in the South in Plessy v. Ferguson, they upheld segregation. What do they do during the progressive era when the president and Congress really got around to protecting the little guy and the worker? They struck down laws against child labor and upheld the liberty of contract of the bosses. And then you mentioned my last book, which was about Buck vs. Bell, the eugenics sterilization case. But when eugenics was sweeping the country, more than half of the states had eugenics, sterilization laws. The Supreme Court, eight to one upheld eugenics, sterilization. We go to the beginning of the New Deal when FDR is trying to get the country back on its feet with the Agricultural Adjustment Act and the National Industrial Recovery Act, the court strikes it all down. Then Korematsu, of course, during Japanese internment. There was a brief period during the Warren era when the court did a lot of good stuff. And for some reason, that has become the Supreme Court’s brand and it shouldn’t be.
S1: And I guess the other thing I want to just ask as a framing point is and you make it clear in the book, but I think we should talk about it really explicitly. The court has in the last 50 years since since the time you’re talking about the sort of cratering of that vision of the Warren Court. But it has done really good things in terms of women’s reproductive rights, in terms of marriage equality, in terms of, you know, curbing executive powers in wartime. So what is there a theory for why the court has actually, in some ways continued to do really good things, even into the 80s and 90s, the era that you describe as as it’s all coming apart in terms of poverty and yet persistently does the wrong thing for labor and for the poor and for vulnerable people in other situations. In other words, is there a way to pass this that explains why the court just threw up its hands at the end of the 60s on poverty, but continued to do some really important liberty, affording things for a long time after in other areas?
S2: Well, I think you might just see that in a capitalist system like ours, wealth and money and the current income and wealth distribution are really where the rubber hits the road. Right. And look at how corporations actually have gotten a lot better on things like affirmative action, on inclusion of gay rights and things like that. But they haven’t gotten good at distributing their money to the poor. Right. I mean, that’s really the thing that separates the corporate mentality from a more progressive outlook. And it’s just as you say, yes, the court has actually slowly but eventually champion things like same sex marriage. They’ve come around, you know, took them a while on women’s rights and things like that. But, yes, the poor. There was a brief period during the war in Iraq where the court really believed in the problems of the poor and had language that we would never see now about how poor people’s problems are not of their own making or societal problems. And that was a brief period when there was a strong liberal majority. But also those liberals were people who had grown up in poverty themselves. Right. It was a very different court, a very empathetic court. But, boy, it was a nanosecond and we’re far away from that again.
S1: So that brings us exactly to where I want to really start, because I think that nanosecond you describe when the court comes just within a hair of enshrining meaningful constitutional protections for America’s poor, and then it all collapses. The court changes under Nixon. But I wonder if you can just set the table a little bit, Adam, and tell us about some of those cases that really were at least in the rearview mirror, startling in terms of the scope of what the Warren Court was trying to do, maybe start with the challenges to the man in the House laws, or you can start wherever you think the marker is. But give us a sense of what in that brief, glimmering moment the court was trying to do.
S2: Well, one of the most stunning cases from that period is Gideon v. Wainwright, the famous case where the court said that if you can’t afford counsel, counsel must be appointed to you. Now, that’s really striking a huge right, because there are so many criminal suspects in the United States, if you look at the entire nation and that required every state, every locality to come up with a way to actually find lawyers for all these poor defendants as a constitutional right. That was huge. So both the doctrine was huge, but even the implementation was more. So you saw that. And then throughout the 60s, yes, a whole series of cases in nineteen sixty six, they strike down the poll tax and say that that discriminates against poor people who want to vote. You mentioned the man in the House, Willie Horton, King vs. Smith. This was actually a very common rule across the country that if the welfare authorities heard, even by rumor that a mother had a boyfriend and the boyfriend could be someone who, as in the Smith case, just visited, occasionally have his own family, that would be enough to throw the children and the mother off of the welfare rolls. Supreme Court strikes down. And then, as you allude to, in these cases, we begin to see language that is suggesting that the court might actually say that poor people in poverty are a suspect classification. And the story of that is that back in the 1930s, in a sort of obscure case called Carolien Products, the court wrote a famous footnote in which they said, you know, we’re going to start identifying groups that are so excluded from the political process that we need to give them special protections. And lo and behold, the court starts doing that for religious minorities, racial minorities. What’s remarkable is that in the 60s, this nanosecond, the court actually begins to say, let’s look at poor people and how poor people are placed in America. They actually have these same attributes like racial minorities and religious minorities. Maybe we should make them a suspect class if they had so much, could have followed so many laws might have been struck down because they discriminated against the poor. But after doing a lot of stuff with welfare law and since you asked for a little bit of a laundry list. Another very important case there was Goldberg versus Kelley, which in some ways was the high watermark of poverty line where the court actually said that it’s not that you have a right to welfare, but if you’re currently receiving welfare, it is so disruptive to your life. If the government suddenly takes away that you’re entitled to due process here and that, you know, it was sort of revolutionary was another thing that like the right to counsel every jurisdiction in the country, had to set up a process. How are we going to afford hearings to all these people on welfare if we’re going to take it away? So these were very bold, far reaching decisions. And then as I recount in my book, just two weeks after Gilger vs. Kelley, the court issues one of the worst poverty rulings and everything changes.
S1: So this brings us to Richard Nixon, who’s single minded obsession with changing the court. I think you say it’s just he cared that much. And so he’s monitoring the health of the older justices and he’s sweeping in, you know, his attorney general and federal investigations and putting pressure, direct pressure on Earl Warren. He eventually annihilates Abe Fortas, a career at the court. We should note, it’s unbelievable. He was gunning for Brennan. He was gunning for Douglas. I mean, this was really a crusade. Can you talk a little bit about, first of all, you know, what Nixon was doing and how he was doing it? I guess I’m just curious because Fortas keeps popping out in your kind of counterfactual throughout the book where you say had Fortas remained on the court, X would have happened had. So it feels as though this is the linchpin that even though Nixon was really lucky and able to seat other people somehow for you, forcing Fortas off the court in ignominy was really, really the pivot.
S2: Yes, indeed. And, you know, people often ask you when you write a book like, you know, what did you learn? You know, in some of what I wrote about, I knew already, you know, from law school and on. But the Fortas stuff was really new because, you know, when I talk to my professors about Abe Fortas, like, you know, liberals always look down at the ground like it was a big embarrassment, like, oh, it was he did terrible things and we can’t even mention his name. That is entirely wrong, but it’s certainly not entirely right. So, yes, Nixon is the key. And we have this war in court and it’s chugging along, doing some of the great stuff we were talking about. And then Nixon’s elected with this vow to really undo the court and just buy a little bit of luck and a lot of scheming. He gets to appoint four justices in three years, which is remarkable. It’s one of the biggest turnovers in court history and totally directs the court. As we mentioned, some of it was luck that he comes in and the chief justice is opening up because Warren had already said he was leaving. And in a whole separate four to Saga, they managed to block Fortas becoming the next chief justice. So there’s a vacancy there. And, yes, some other justices are in poor health and eventually leave. But as you say, one of the key moments in the court’s history is Nixon driving Abe Fortas off the court now for this was not an angel by any means. And he did some things that I think you and I would say were not good practice for justice. But the main thing that Nixon got him on was taking some fees to consult for a foundation while he was on the court. Now, other justices have done that. Other judges were doing that at the time. There was no prohibition that as we know, there’s actually no said ethics rules for the court itself enforcing. I think that everyone who’s looked at it closely and there’s a Penn State political science professor get a long, detailed book on this, said that what he didn’t really wasn’t so bad. But anyway, Nixon used that to threaten him with prosecution and even worse, to threaten his wife. She was a lawyer at the same firm he was that she’d been investigating for some possible impropriety because she’s worked on and cleared. But Nixon threatened to cut both of them in jail and he succeeded in getting Fortas off the court. And Fortas was probably not going to leave in that the Nixon Justice Department really might have put them both in jail. So there was some self-preservation going on there. But, yes, that gives Nixon crucially, one more seat, a fourth of the four seats. And you’re absolutely right. When I look at some of the cases in the next few years, some of the most heartbreaking cases, including one very close to my heart, which is where the San Antonio school board, the court came within one vote of saying that school funding in every state in the country had to. Equal, we couldn’t find rich school districts more than poor school districts. That was five to four. A Fortas had not been driven off the court. The real shenanigans and illegality by Nixon that fits liberal vote would have been there to give poor kids all across America a better start in life. So I think it is really, you know, one of the great tragedies of Supreme Court history.
S1: It’s funny, Adam, I was telling you just before we started taping that I reread the book for, believe it or not, the third time this week. It’s it’s it’s that good and persuasive. But one of the things that really struck me on this go around reading about Fortas was just the irony that the things he was being tagged for doing this lectureship at a law school that was paid and as you said, doing consulting, you know, for a guy with shady, more than shady, very shady associations. But there’s a weird way in which the thing that Fortas is tagged for is enriching himself in inappropriate ways and that this becomes the catalyst for a court that goes on to enrich the wealthy. I just don’t I hadn’t caught the irony the first couple of go rounds. But it’s really striking that the claims against Fortas is that he’s doing something hinky with his financial affairs and that gives birth to the entire arc of the story that gives us the plutocracy we live in today.
S2: We right. And you know, the lectureship you mentioned, I mean, know it’s thousands of dollars and you look at the millions and billions and trillions of dollars that have flowed from some of the court’s rulings. And yes, it is penny ante. Another irony. I mean, there’s something said Arty’s, but the people trying to breaking the law to put forces in jail for being unethical themselves went to jail. Right. Like, you know, like like Mitchell was the leader of this. How how could we possibly allow for this to accept the small amount of money? And then Mitchell, you know, Nixon’s general ends up in jail for Watergate crimes. So, yeah, I mean, there’s so many levels of irony. But what’s really sad, you know, for I think our perspective is these actual poor school children in poor districts around the country who really should have had this ruling, should have had more funding for their schools. And it was, you know, the Nixon machine that really cheated, got one of their voters off the court and led to them being deprived of a lot of educational opportunity.
S1: I want to ask you just one contemporary question, because last week we heard news that Senator Sheldon Whitehouse of Rhode Island had sent a note to Merrick Garland asking that Kavanaugh be reinvestigated both for the financial questions that were surfaced around the time of his confirmation. And just for the what he called, I think Senator Whitehouse called it the fake FBI investigation. And again, I think reading that side by side with your book, it raises these questions. I know I’ve been asked. Enormous numbers of times in the past week, you know, is there a way to reinvestigate Cavnar to push him off the court? Should the FBI and the Justice Department relitigated, reinvestigate these claims? And I guess I wondered how you squared this move. Let’s have the Biden Justice Department go after Brett Kavanaugh in light of what you really dug up on the extent to which the Justice Department was central to terrorizing Fortas off the court.
S2: It’s a great question. And you’re really pointing to it really, I think key tension here, right? So should the Justice Department investigate true improper behavior and illegality? Yes, because we are a nation of laws. And if the Trump administration really did something illegal, improper to get someone on the court. Yes, because we need to be a nation of laws. But you’re right that I think some of us liberals don’t enough talk about the tug in the other direction, which is any time the White House, the administration investigates someone on the court, it’s inherently going to be political and destabilizing to the court. And we have this idea of what the court should be independent of the other branches. And above it all, when you have the president using the enormous powers of the Justice Department to yank someone off the court, particularly of the opposite view, that’s not a great position to be. But on the other hand, you know, another thing I point out in the book is the Republicans have been so good in every way in stacking the court and working the refs, giving every advantage to get a majority of five. The Democrats are always the ones who, like, play by the rules, who hold back, who don’t push hard. So this could be another example where Nixon gets Fortas his seat, but maybe. I’m not saying I don’t know what cabinet did or what the FBI did, but if he did much worse things, the Democrats might be reluctant to pursue them in the same way.
S1: So you hinted at this, but let’s go there. Nixon gets his court, and as night follows day, we get a series of five, four rulings that reverse the trend line that was beginning to really see that poverty wasn’t immoral, it wasn’t a sin. It wasn’t about weakness and laziness. That is fundamentally something that government should be redressing. All of that boom on a dime gets reversed. Can you sketch out some of the ways that the court just completely does a 180 on the very cases that you had sort of laid out at the top of this interview?
S2: Sure. And I mentioned that it was really just two weeks later that everything changed after that incredible victory in Global vs. Kelly. So the poverty rights movement was celebrating tremendously that his right to a hearing before years of welfare and and there was a poverty rights movement and they were looking to the court. Increasingly, two weeks later, there is a case out of Maryland Dadaji Williams and Dandrige was a really interesting case. It was a case where Maryland, like most states, had very, very low welfare payments. So the people who were getting welfare were living below the poverty line. But it wasn’t as bad as some of the states in the south. But they have a budget crunch and they decided to solve the budget crunch in part by instituting family caps. So they say that after a certain number of children, the more children you have, you’re not going to get any more welfare. That applies even to families like Williams, where it wasn’t that they were on welfare and continue to have children. It was that they had a large family and then needed welfare and applied as a large family. So when Marilyn does this, the poverty law movement, poverty lawyers challenge it under equal protection. And they say if you’re giving the same welfare payments to a family of eight as you are to a family, for the later children in the larger family aren’t getting any payments at all. And it was a good claim. And if it had prevailed, it would have not only established that equal protection principle, but would have opened the door to something that a lot of academics and welfare rights leaders were calling for, which was for the court to begin looking at the substance of welfare, not just procedures like Kelly. Do you get a hearing, but really is the welfare amount. You’re getting enough. And this actually reached a high watermark when Frank Michelman, a Harvard law professor, wrote this famous introduction to the Supreme Court issue of the Harvard Law Review in 1969, where he said that, as he sees it, there could be a 14th Amendment right to some level of subsistence. So that was the idea. And the judge was a really clever way to bring that claim because it wasn’t saying the court should say here’s how much money. Everyone she got was saying that in this very modest way, the court should look at the amount of money because it’s being done in a way that violates the equal protection rights of the large family. The court ruled five to four against the wealthier family. And Potter Stewart, who? I mentioned how at the height of the war in Iraq, some of the justices were the most eloquent about the rights of the poor, like Thurgood Marshall, like Abe Fortas, like Arthur Goldberg, like Earl Warren, grew up in poverty or close to poverty. Potter Stewart had sort of the golden preppy resume of Yale, Yale, Oxford, you know, Wall Street law firm, father, a big judge, you know, like just a life of enormous privilege. And he’s the one who says, no, no, this welfare family is not entitled to any more. And also, by the way, and this is the really tragic part, we’re kind of getting out of the business of looking at welfare because, you know, government has to make some hard decisions when they’re giving out welfare money. And it’s just not something we’re going to get involved. And, you know, one academic calls it the constitutional ization of poverty. So we go from that phenomenon. We were describing where the court is inching towards maybe saying the poor, such that class to the court saying, you know, if it involves poor people, welfare like the Constitution, you know, virtually doesn’t apply. That was a big example. But we see it in many other areas. And I mentioned Gideon because Gideon was such an important early ruling on behalf of the poor. You know, eventually the court issues its ruling and Strickland, where it interprets OK, we’ve said that poor people have a right to appointed counsel. Now we’re going to look at what the quality of that council is. And they set the bar so unbelievably low, the burden on the defendant showing that their lawyer was incompetent was set so high that literally there’s a whole area of cases, the sleeping cases. You know, your lawyer was asleep, your lawyer was asleep while you were being cross-examined. Well, let’s look at which specific question you were being asked while you were cross-examined. And generally, people lose their effective assistance cases even when the lawyer was asleep. So that to me is just sort of a high watermark of the court saying, OK, we did give you this right. During the war in Iraq, you have a right to a lawyer. But, boy, it’s not going to be much. And sleeping lawyers may be relatively rare, but what’s incredibly common is the defendant who gets a incredibly overworked public defender or appointed counsel, who has one hundred fifty two hundred three hundred cases, no time to meet with their clients, no time given the facts, certainly no time to investigate them. So the defendant is almost forced to plea bargain because there’s no way anyone’s actually going to put up a defense for them. And the court has said that’s fine. So those are two examples of cases where a robust right in the case of right to counsel work the progression towards the right. We’re just firmly slapped down by the post in court.
S1: You’ve mentioned twice now. And I think it’s it’s a good observation that part of the difference between the Warren Court and the current court is the number of justices who grew up in poverty or near poverty, some in tremendous life threatening poverty and life altering poverty. And I was reflecting the only two current justices, I guess you could say that, about our Sonia Sotomayor, who grew up in poverty, and Clarence Thomas, who did as well. You mentioned Justice Ginsburg in the book, but I think, you know, it wasn’t certainly wasn’t dire her childhood. But I wonder if you can draw any kind of straight line between that sense that, holy cow, this could happen to me. It did happen to me and a court that seemingly has no idea what it’s like to try to vote if you’re poor or to be a Wal-Mart greeter, being subject to harassment if you’re poor or to, as we’re about to talk about, go to school if you’re poor. And it’s tough to square that with Clarence Thomas jurisprudence. But I guess I wanted you to take a crack at this question of how much quote unquote, real life experience inflicts on the way you end up doing justice.
S2: Yeah, I think it’s so often does I think during the war in Iraq, it definitely you know, you look at someone like Thurgood Marshall, he grew up among a lot of poor people. He represented a lot of poor people. And there were cases where the majority would say, you know, oh, you know, this isn’t a lot of money. It amounts to a pack of cigarettes a week. And he would say in the Senate, well, actually, a pack of cigarettes is a lot of money for some people. And someone would Potter Stewart’s lived life experience wouldn’t really appreciate that. So I think we saw that in the popular decisions in the war era and later in some of the good sense, because, yeah, I think literally the living in the bubble, but not understanding that things like coming up with twenty dollars to get a driver’s license so you can then use a driver’s license to vote, that 20 dollars can make a big difference, something like getting to the polls when they move the polls further away. Not everyone can hop into their car, drive to the polls. And I think we do see it with Sotomayor and with Thomas, with Sotomayor. She’s been incredibly bold in some cases of really speaking out about her different perspective from her lived experience of growing up in a housing project in the South Bronx with a single mother injecting herself with medication because she was a juvenile diabetic. She has an empathy, I think, that comes to that. And Thomas is more complicated, but I think a lot of his views are actually a reaction to that, right? I mean, if you go to middle class, I think he might not be as intense about a lot of these issues. And, you know, we’ve seen over the years, he said some really awful things about his sister. Right. And his sister relying on welfare and things like that that show an anger, I think, of someone who was in that world and has just decided he’s going to turn his back on it fully. So I think we see a polarity there. Sotomayor sort of using the empathy of her upbringing and Clarence Thomas sort of angrily turning his back on it, both, I think, and forming their current views on things like poverty and voting and everything else.
S1: Let’s talk about Rodriguez vs. San Antonio. This is the education case that you mentioned, you know, would have really fundamentally changed the way education is financed across the country. And maybe the best way to talk about it is to just explain what the claims were that, again, glancingly close to saying that poor students are a protected class for constitutional purposes or that education is some kind of fundamental right. I mean, we look back at that. I remember learning it in law school being like that was never going to happen. It almost happened.
S2: It was so close. It’s exactly right. Like now we look at it just as you say. It’s like, oh, boy, that’s a road no one was ever going to go down, but we were going down that road. And if you look at the first of all, the academic literature at the time, people, you know, professors across the country were saying, yes, this really is an equal protection clause. But more importantly, that many courts were so holding many lower federal courts, many state courts were saying, of course, that school funding should be equalized. And in the first court to hear the challenge to Texas school funding system, it strikes it down under the protection clause. And as you say, I mean, this is actually a pretty straightforward claim, right? Because what is equal protection say, it says that when the government acts, it has to treat everyone equally. Now, the government often doesn’t have to act. You know, they don’t have to set up a public school system. But if you’re going to set up a public school system, you’re the government. You should treat everyone equally. So that means that should be the same number of books in the same number of teachers and all that. So that’s very straightforward. And then the other part, as you say, is the Supreme Court have long held that there were certain rights that were fundamental. And oddly enough, one of the ones they’ve been most enthusiastic about is travel. And I love to travel myself. I do it as much as I can. It’s been a tough year not being able to travel when you think between travel and education and the education. As you know, the dissenters have pointed out in Rodriguez and other cases, it’s so pivotal to everything else we do. Right? I mean, we’re a democracy. How do you expect people to vote? How do you expect people to follow what their elected officials are doing? How do you expect them to be citizens of our democracy if they’re uneducated? So, yes, both of those things seem self-evident that the court should have said that if the government’s going to provide education equally and if it’s going to provide education, education’s a fundamental right because of how fundamental it is. So it gets up to the court. And, yes, you know, you’ve tagged me as the broken record on the importance. But yes, I mean, it’s literally true that if Abe Fortas had been there, the plaintiffs would have won. It’s also true if they just filed the case a little bit earlier. Right. I mean, they just missed out on the Warren Court. So now we think it couldn’t have happened. But like many of the moments of progress in the 60s, Rodriguez evolved out of a student protest. You know, one day the Latino students in the San Antonio school district said, you know, this is just not fair. We can see a couple of miles away how beautiful the schools are and. We have a school building where you can’t even go to some of the floors because the school is falling apart. We have terrible textbooks. We just don’t have the resources. They walked out and they started a movement that led their parents to find a lawyer to bring this lawsuit. If had just happened a couple of years earlier and it hit the Warren Court, that absolutely would have been five votes. But tragically, Nixon got to the court before the poor kids in San Antonio.
S1: Did you also draw a really straight line, Adam, between the court kind of gutting campaign finance regulations, McCain-Feingold, the end of Buckley vs. Valeo and the ascent of this moneyed class that just doesn’t answer to the law anymore. And there has been, I think, some debate about what Citizens United did and did not do in terms of campaign finance. But your critique is pretty devastating in terms of what the outcome of Citizens United was. So can you lay it out? Because I think that sometimes we forget and you actually it’s really pointed in the end of that chapter, you talk about not only the kind of inequality that that results, but also just the lack of trust in government that results after Citizens United. I wonder if you could just kind of lay out your case for why Citizens United proved so devastating beyond this very academic question about, you know, corporate speech and money.
S2: Sure. And, you know, Citizens United was absolutely a tragedy. But I’ll start with the first of the tragedies, which was Buckley versus Leo after Watergate. People were so cynical about government that kind of like they are today, but they had great reason to be there. And, you know, the Watergate investigations turned out corporations that were delivering money in cash and bags to campaigns and things like that. So Congress actually, amazingly did the right thing. They passed a very strong campaign finance law to respond to the Watergate excesses and in malfeasance. The Supreme Court gets the case in D.C. certainly gotten it first. And we did the right thing. They upheld almost the entire law. And they said, of course, you know, this is totally constitutional and there’s a strong interest in preventing corruption. And all these good things gets the Supreme Court. They strike down huge parts of the law. In particular, they create this crazy distinction between giving money to a campaign and spending independently. And they they say that spending independently really is protected by the First Amendment or the corruption problems of handing it to a campaign. So that was really the first opening of the door to spending lots and lots of money by rich people on campaigns. And then, yes, the court wavers a little, but they pretty much make things worse over the years, culminating since, you know, where the court says that corporations have a First Amendment right to spend money out of their treasuries to affect elections. And that’s just so much money. Right. Think of how rich the richest corporations are. The richest Americans have gotten very, very rich. And we all know Elon Musk and Jeff Bezos. But compared to, you know, Apple compared to Microsoft, they have so much money all free now to spend it on campaigns. And absolutely, these floodgates have absolutely affected policy. You know, you look at yet again, it was so sad to see in the last week or two the Congress unable to raise the minimum wage. Right. And, you know, when did they last raise the minimum wage? In 2009. Right. So imagine not getting a raise since 2009, which is true of working class people who don’t live in a state with a higher state minimum wage. Why did they do that? Well, whenever a minimum wage reference was put on the ballot, it passes overwhelmingly. Polls show overwhelming support from voters. So what is stopping this exactly? It’s absolutely the retail industry. It’s the fast food industry. It’s the money they give that lead members of Congress to vote their campaign contributors, not the overwhelming sentiment of the public. And we actually saw that again, we see it always with tax policy. So when Trump got his horrible tax law passed, I think we reached new levels of elected officials actually saying, you know, we have to pass these huge tax cuts for the wealthy, otherwise they’re going to stop giving to the Republican Party and we’ll lose all of our elections. Right. So the impact of tax laws like that has been so enormous. Rich people have gotten such breaks, poor people have not. And that has absolutely led to the huge accretion of wealth at the top. These are absolutely because of the Buckley cases through Citizens United that have made it so understandable for the strategic member of Congress to say, oh, I don’t care if 80 percent of the people support hiking the minimum wage. I’m listening to my good friends at the retail. Association and we see this in issue after issue and workers are heard and unions are heard and people on welfare heard.
S1: I feel like I have to ask you the follow on question, your voting chapter is equally dispiriting and depressing, and you flag all the ways that the court has blessed, you know, voter roll purges and gerrymandering and doing away with what’s left of the Voting Rights Act. Each and every one of these things obviously puts a heavier burden on the poor. I was thinking, as I reread it this week, Adam, that one of the quote unquote heroic stories of the 2012 election is the ways in which corporate America, kind of behind the scenes came together to make sure that the country didn’t crater into a flaming coup. And I just was really mindful this go round of the ways in which, oh, big business will save us as we come when when government itself is really wobbly. There’s this reason to believe that those big moneyed interests you just described and all their power have some self-interested reason to protect democracy. And I guess I don’t even know quite what the question is other than irony. That’s a big ironic outcome that we’re sitting here saying, oh, thank goodness the country didn’t descend into civil war in 2020 because behind the scenes pulling the levers, the Chamber of Commerce was hard at work protecting democracy.
S2: It’s a beautiful story. And, you know, and I think it just shows how kind hearted you are in your outlook on everyone, including corporate America. And there is a more cynical way to look at it. I hate to be the one to point out is, you know, corporate America does what’s good for corporate America and is it good for corporate America? If the country implodes, no people will stop shopping. You know, they won’t they won’t be buying new cars. You know, some of their plants may be burned up. Yes, the corporate America has a strong interest in stability. Stability is good for the stock market and taking over the capital probably would have caused the Dow to climb. So, yes, corporate America stepped in there. Is corporate America stepping in when working people haven’t gotten a raise since 2009, even stepping in on the other side. What is corporate America doing about the enormous amount of income inequality we have? Is corporate America in any way reining in CEO compensation, which has risen so much compared to the average worker’s wage? No. So I mean, I think corporate America is ruthlessly pursuing capitalism. It’s what it does. If the leaders weren’t doing it, they would be replaced by people who did end. Capitalism, I think can believe two things, that it would be bad if, you know, a ragtag group of Trump supporters took over the capital and ended our democracy. But they can also believe we don’t really care that the middle class is being hollowed out and so many millions of Americans are being pushed into poverty.
S1: I just want to be really super clear that what sounds like kind hearted generosity might just be like weird Canadian inflected cynicism, because my question did not come from a place of kindheartedness, but I fear that it may have been interpreted as such. I do want you to talk about voting and the twenty twenty election for a minute, Adam, because you, again, so many of the things that you wrote a year ago came true on stilts this time around. And we are really seeing it in the raft of attempts to suppress the vote. Again, you know, unequally this will fall on people of color and the poor and the elderly and the young. And I wonder if you want to talk for a minute about the ways in which the Supreme Court, having blazed a trail of voter suppression in the last couple of years and really signaled if we were talking about October of twenty twenty, that there might be five votes, at least in the dicta to go really all in one very, very wacky theories of what courts can do in an election. The court pulled back, right. It did not enter the voting game and I think there probably were five votes that might have been willing to do that. What’s your thought on having just cynically said that corporate America acted in its own self-interest? That was the court just simply by refusing to get involved in the 2020 election. Just protecting its own self interest in the same way, in other words, this isn’t a shift to the court saying, hey, you know, vote suppression is bad or throwing out all the votes in Philadelphia might be super racist. This is just the courts saying we’re going to be silent this time because it would be crazy for us to get involved.
S2: Well, it’s a great question, and I think it’s complicated to parse all the different motivations. But one thing I would say, you know, one immediate reaction I have is, you know, there is a concept just in elections of voting generally close enough to cheat. Right? I mean, if the margin is very small, you can cheat. And, you know, we might say that Bush versus Gore, the 2000 election was close enough for the Supreme Court to cheat. So it was not that hard for them to do what they did, which was to step in and stop the voting vote counting and to hand the election to President Bush. I think maybe in part this is that this election wasn’t close enough to cheat. Right? I mean, I think if this court had been presented with the exact same facts and Bush versus Gore, I think they might have done the same thing. But I think it’s also worth noting what you were saying, the beginning of your question. I mean, I always come back to my little paid advertisements for the war in court, but in the early days of the war in court, like when they did their redistricting cases, they just like they honestly believe what is the important thing for the court to do. And in election cases, it’s to make sure that the will of the people is represented. So they struck down all these improperly districts, states that had, you know, some districts that were heavily populated somewhere. Some were reported they got the same representation. And the court said, no, I mean, legislatures should represent the people. And that was their kind of abiding view of election law. We are so far from that now. And while the court has taken this muscular stance with regard to campaign finance, like, oh, Congress can’t do this, Congress can’t do this, Congress can do this because rich people, corporations must be able to spend. They’ve been just incredibly lenient towards all of these election administrators whose real purpose is to stop various people from voting. So you come up with an incredibly crazy voter I.D.. Well, that’s fine. You know, we’re going to allow you to do that. You come up with a purge of the voter rolls that like, say, if someone hasn’t voted for a little while, we’re going to remove it from the rolls, even though there’s a federal law saying you cannot remove someone from the rolls bearable for whatever it is, the court is going to do that. So I think these are ways that like, yeah, I don’t think the court would have stepped in and said, you know, Stacey Abrams is elected governor. We’re going to overturn that election. But, boy, things like their approach to voter roll purges stop people from getting elected governor in Georgia. So I think they’re working the margins, but they’re working very effectively.
S1: I think the last question I want to ask Adam, and this is with the caveat that we could have talked about workers rights in unions and criminal rights and a whole bunch of other stuff. And I just trying to be pack everything into this conversation that I can. But I do feel like this last question is kind of the exact flip of the first question, which is, again, one theme of the book is but for to Nixon slash, Rehnquist slash. I think at this point we could say Donald Trump. But for those things, the world would look really different now. And I would love to hear your rosy summation of in the various buckets that you’ve laid out, education, criminal justice, voting rights, whatever. What could have been had some of these suits been brought a few years earlier, had the composition of the court not changed, what would? The American sort of constitutional and statutory posture towards the very poor look like
S2: it’s a great question. And, you know, I think that what all this is really about is if Nixon hadn’t done what he did 50 years ago, we would have had 50 years of just more equality of of a climate of equality in which every American had the chance to rise to the same extent and achieve their dreams, including economic dreams. So absolutely. Education, you know, we mentioned Rodriguez, but it was a case the next year, Milliken v. Bradley, which was just as important, where the court came within one vote of saying children are actually entitled in real terms to an integrated education. And if that if all the kids in Detroit almost are black and all the kids in the suburbs almost are white, we’re going to have an intrinsic remedy to make sure that kids in Detroit actually go to integrated schools within one vote. And again, yes, this could have the fifth vote. We would have had equal funding. We would have had truly integrated education where every American went to a school that represented the racial breakdown of the metropolitan area. So we would have had kids 50 years ago starting out with equal educational opportunities. We would have had unions would have been much stronger and they would have been able to go into workplaces and actually organize people. And absolutely we would have a different Congress because it wouldn’t be responsive to these piles and piles of corporate and rich people money. And they would be responsive to electorates, which it would be easier for poor and working class people to vote. But also we wouldn’t have gerrymandered districts and we wouldn’t have all these members of Congress saying, I can do whatever I want because I’m going to get re-elected. They would have close elections and they would have to answer for the people. So I think all of this would have led to just more equality in every way. We would have been pushing more people at the bottom, would have had more power to push their way up and people at the top wouldn’t have been able to grab as much. And I think we would have as you started this quite rightly, we live in levels of inequality now in this country that we haven’t seen since around the time of the 1920s. And it didn’t have to be this way. We could have had a country where more people had a true shot at the American dream. And that’s what Nixon started to do. And it’s been undone for the last 50 years.
S1: Adam Cohen served as a member of The New York Times editorial board and as a senior writer at Time magazine, he’s the author of Imbeciles The Supreme Court, American Eugenics and the Sterilization of Carrie Buck and Nothing to Fear from his inner circle. And the hundreds that created Modern America book is Supreme Inequality. The Supreme Court’s 50 Year Battle for a More Unjust America. It came out last year. It is out this month in paperback. And Adam, as always, it is just illuminating and slightly depressing to have you on the show.
S2: I was totally my pleasure. Always wanted to talk to you about.
S1: And so we come to the part of the show, we call Mark Joseph Stern and we are going to talk to Mark, who covers the Supreme Court, the courts, the law voting. I don’t know what all everything for us is. Slate and Mark. Hi. Welcome back.
S3: Hi. Happy to be here, as always.
S1: And I feel like we just finished talking with Adam Cohen about the Supreme Court’s half century war on the poor. It brings me to unions and the court attacks on unions. And we didn’t really get to deep dive with Adam, but it’s certainly clear that the court has been a big part of dismantling unions, which has been a big part of dismantling the middle class in the last half century. So I wonder if we could start at the big unions case that the court heard this week with one little glass mark. Sorry, my producer and I are beginning to think that every single case the court hears, there’s a curtain raiser. The curtain raiser says this is what’s at issue. And then the court does weird things at oral argument and no one knows what’s going on. Is that a fair descriptor, not just of this union’s case, but of every single thing that has happened this year? Yeah, absolutely.
S3: It seems like we’re we’re so gung ho to write about these arguments. We’re listening. And then they’re over and we’re both, like, slacking. Our editors like, please don’t make us make me race because it was a total muddle. That’s what happened here.
S1: OK, tell me what the curtain raisers said and then we can talk a bit about the argument.
S3: Yeah, great. OK, so the curtain raiser for this case, which is called Cedar Point Nursery versus Seed, is that this is the next big attack on unions, which is correct, because, of course, we all remember the Janise case a couple of years ago where the Supreme Court hobbled public sector unions, forbade them from collecting fair share fees from nonmembers. And this was sort of like a spiritual sequel. And it involves this California law that goes way back to like the salad days of of agricultural organizing and Cesar Chavez and all of these folk heroes and labor heroes who got California to pass this law that says union representatives can go on to farms and into agricultural workplaces for about a third of the year, for a few hours a day, and organize and help unions, you know, either fight for their rights or organize to collective bargain or, you know, do all the stuff that unions do. And it’s been super effective because the California industry is super organized and has pretty high standards comparatively. And so, of course, industry wants to take it down. Right. Industry is not happy about this. And this is a case that’s attacking that California law by saying, hey, when California gives union representatives the right to come on this property, to come on our property, it is affecting a taking under the Constitution, which says you cannot take private property for public use without just compensation. And the industry lawyers here put forward this really sweeping argument that this is something called a persay taking, which means it’s basically totally ruining this private property for its owners. You know, they can’t do anything with it because these pesky union organizers are scattering on and bringing the workplace to a halt and taking away productivity and, you know, doing all this stuff that that the owners do not like. And so either they have to stop doing that and they have to stay the hell out or California has to fork over a huge sort of extortionate amount of money to the property owners in order to keep this law intact and maintain workers access to union reps and union organizers
S1: and talk for a minute about what the stakes were going in, at least as far as we thought the stakes were going in.
S3: Yeah, the stakes were really high because this law is not particularly unusual. I mean, think about all of the different federal and state and local regulations that allow third parties to enter private property. You know, these health and safety inspectors go into restaurants, they go into workplaces, nuclear inspectors go into nuclear power plants. Mine inspectors go into mines. There’s just dozens, if not hundreds, if not thousands of laws that allow regulators, inspectors, third parties to enter workplaces in a way that can be intrusive in a way that can diminish the productivity of that workplace for some time and make sure that everything is kosher. And so the state. Here were that those regulations were like on the chopping block, because either they were going to have to stop or the government is going to have to fork over so much money to these companies just for the privilege, the benefit of performing basic safety inspections that the system becomes unworkable and topples down.
S1: So having all agreed that the stakes were that high. Explain to us how confounding oral argument actually became and how just utterly inscrutable it was.
S3: Yeah, so. So the stakes are so high and we were all terrified. And then we hear Brett Kavanaugh say, well, I’m kind of mystified as to why the stakes are so high.
S4: I’m a bit mystified by some of the arguments here because it seems like you’re asking us to reinvent the wheel.
S3: But and even Amy CONI Barett say I don’t really understand why the stakes are so high. And some of the other conservative justices, including the chief, say, you know, maybe you overreached here in so many words, because the reality is that there’s this whole separate series of precedents that involve union organizing and private property and private workplaces that lays out a framework to deal with this, that actually balances the interests in a fairly healthy, you know, normal way where the union organizers get to come on the union reps get to do their work. But everyone acknowledges that they aren’t actually grinding the workplace to a halt. And there does have to be some time, some compensation for the owners, but it’s a really minimal amount of compensation that reflects the actual value that might have been lost from the presence of these union organizers. And Amy Kinniburgh suggested at one point that could be as little as like fifty dollars, which is not the massive sum that the plaintiffs were hoping for because they really wanted to just destroy this law and hobble the entire regulation. So we come in with these sky high expectations and fears. And then Brett Kavanaugh says, I am mystified as to why you are asking us to reinvent the wheel, because we’ve already got these precedents that give us a pretty straightforward way to balance interests here. And even Justice Sonia Sotomayor, who is generally very pro union, said, you know, I’m with Brett. Yeah. This doesn’t seem like a very difficult case. It seems like we could handle this with, you know, all of these old precedents and not upsets the system, not upset either of the parties and just kind of like preserve the status quo more or less.
S1: Should we listen to a little bit of audio?
S3: Yeah. So there’s there’s some great questions from from Justice Breyer asking about these dozens of regulations like mine safety inspectors and asking the plaintiffs, like, are you going to destroy these?
S4: There are dozens and dozens and dozens of statutes which provide for example, one brief tells us the Mine Safety and Health Act of 1977 allows the secretary of labor to inspect a coal mine at least four times a year. And I guess they could have, say, some guys, they might go against that authority due to private inspectors, I don’t know. But are all those long lists of statutes, are they all unconstitutional?
S3: And then Justice Sotomayor picks up on this and says, oh, what about, you know, nuclear power plants? I think we all watch Chernobyl. Like we all have a pretty vested interest in not having our country blow up into a nuclear wasteland. Are those inspectors still going to be able to go on then?
S4: You are putting at risk all of the government regimes that permit for a nuclear power plants. There are inspections almost on a daily basis. It’s not a weekly or monthly basis.
S3: And then we also have Brett Kavanaugh saying, hey, you know, you guys probably overshot here. How about we take down the temperature and figure out a way to do this without reinventing the wheel?
S4: It’s not a new issue as at least as I see it. We decided unanimously in 1956 how to balance property rights against union organizing rights and the Vanguard case. And then, of course, in the last year, we reiterated that and Justice Thomas’s opinion for the court there, the Babcock briefs, if you go back into those, those are all about property rights against union organizing rights. And Babcock considers that and sets forth a rule.
S1: So, Mark, you keep using the word overreach, but there’s also this weird phenomenon where there are sort of conservative advocacy groups that almost want to just erase precedent. They want to just stroll into court and say, but we want all the stuff now and don’t seem to want to reckon with the fact that at least it looks like at. Minimum and Barrett and the chief justice are not really willy nilly prepared to treat them as though it’s their birthday every time they come to court.
S3: Yes, that’s right. And if only for optics, I think there’s this developing consensus that the chief covenant are a kind of institutionalised coalition now that the court isn’t necessarily always going to be six three. It’s sort of three three three. Right. You’ve got the three liberals and then you’ve got the arch conservatives, Gorsuch, Thomas and Alito, who all did their thing in this case. And we’re like, we hate unions. We think unions are an unconstitutional conspiracy and need to be crushed. I mean, they didn’t say that, but they might as well have. And then you have the Chief Karvan on Barrett saying, you know, don’t shoot for the moon when we’re here. We can give you some of what you want, but we’re not going to klown ourselves in service of the most extreme wing of the conservative legal movement. And we should note that Barret’s apparent membership in this three Justice Club is actually starting to alarm some of the conservatives and Republicans who backed her confirmation.
S1: Yeah, talk a little bit about that. That’s been really interesting. You and I, the last couple of shows have said that she is just not showing up in a bunch of ways. And that’s really eliciting some concern that she might not be what they hoped and wanted when they pushed to have her confirmed so quickly.
S3: Yeah, and I think the gold standard for conservatives and Republicans now is Alito. Right? Alito is just really openly partisan. He does not care what his partisanship looks like. He is going all in for the GOP over and over again. And I think there was a real sense, OK, well, we’ve got this sterling opportunity. Let’s put someone on the bench who matches Alito and they thought they had a Imbert it but it seems to view herself as a serious legal thinker and scholar and does not want to be seen as the mere Republican in robes who came on the court and suddenly changed everything just because there was a sixth radical conservative or whatever. And I think where we’ve seen Barrett’s influence the most is in grants and in what cases the court isn’t taking. You know, we’re seeing the court turn away or at least sit on for a very long period. A lot of high profile hot button cases that conservatives were hoping would be just slam dunks that as soon as Barack came on, they’d take up all these cases and decide them their way. And there’s look, there’s time left. You know, she’s only been on the court for really a few months. So this could all be premature. But so far, it does seem like she’s not interested in immediately taking up these super high profile cases that she maybe wants to kind of at least wait for a term or two before totally exerting her influence and radically changing the law. And Joan Biskupic wrote a terrific piece this week interviewing some Republicans and conservatives who are really nervous about that, who are saying maybe we screwed up here, we wanted another Alito, but what happens if we got another Roberts? And I think it’s pretty perverse that Roberts is now considered a conservative mistake, given that he’s extremely conservative. But that’s where we are.
S1: So speaking of, I guess we should talk about guns, because guns was one of the places, right? The Second Amendment. We’ve been holding our breath. The gun rights kind of legal world has just been waiting, waiting, waiting. Berrett, we know, has a very robust view of Second Amendment rights. And yet it’s not clear where that’s going. So the Ninth Circuit handed down a really big gun decision this week. And I guess I should also note these decisions about whether or not to grant cert on Second Amendment. Cases always seem to happen in the wake of another mass shooting in some sense because we can’t stop having mass shootings. But that must also affect the way the court thinks about whether to grant one of these.
S3: Yeah, it must be because when the court turns away these cases about the Second Amendment, sometimes Gorsuch or Thomas or Alito will write a kind of sanity, dissent and say, oh, we should have taken this up. And it always seems like within days there’s a mass shooting that directly implicates the issue. There was in that case, you know, Thomas hates cooling off periods for for gun purchases that require you to space out your guns as you try to amass a stockpile. And a few weeks later, someone who has amassed a stockpile by circumventing the cooling off period kills dozens of people or at least a handful. And it’s just a horrific massacre that the conservative justices seem to want to enable. They want more of those. They you know, they don’t seem to think there’s enough. I mean, what they say is that more guns will stop mass shootings. But one hundred. Percent of all of the evidence and data goes in the other direction and says that’s not true. So the Ninth Circuit’s decision is a really big deal here because this is a case about public Kerry and specifically open carry. So Hawaii really strictly limits civilians ability to openly carry firearms. And a plaintiff challenged that law and went to the Ninth Circuit and the 9th Circuit heard it en banc. And in a 127 page opinion by Jay Bybee, the extremely conservative George W. Bush appointee, the the court swatted down this challenge. And Bybee wrote, I think this really impressive sort of majestic opinion or maybe like a kind of research paper that traced back the history of public hair, going back to like the 13 hundreds and examining the common law that the framers were drawing from when they wrote the Second Amendment, examining the circumstances around the passage of the 14th Amendment, just looking at the entire sweep of history here and saying, look, all this history pretty much points in one direction, which is that since time immemorial, the government has strictly limited civilians ability to carry firearms in public, open or concealed, really, but especially openly. This is not even a close question. And if you look at the history of our country, of the founding of what the framers and the folks who ratified the Constitution seem to think and understand about the Second Amendment, they did not view this as a license for every civilian to carry guns in public. That’s just not what it was meant to be. And I think that is this is a kind of turning point maybe for Second Amendment jurisprudence in the sense that if the Supreme Court takes this case and if the Supreme Court disagrees with Bybee and says, oh, no, no, no, actually our originalism forces us to grant everybody the right to carry guns in public. I think we’ll all be able to say that’s not originalism. You know, that is either motivated reasoning or partisanship in robes, whatever it is. It’s not a fair reading of the history, because if Jay Bybee reads the history this way and still doesn’t come to a conclusion, supported the Second Amendment, like, that’s a pretty clear verdict on where the history leads you and you’re just ignoring it.
S1: It’s so interesting, Mark, because it feels as though this widely discussed fracture in the GOP generally is really, as you’re describing it, being mirrored in even, you know, the sort of highest echelons of sort of Federalist Society darlings that there’s a kind of fault line. And there’s on one side of the fault line, a whole bunch of people who are more or less saying, but I’m not crazy.
S3: Right. Right. I mean, I don’t think that, like Brett Kavanaugh wants to live in a country where people are openly carrying AR 15s around the parks and streets. And Safeway’s I don’t think maybe even Amy CONI Barrett wants to live in that country. Many of Trump’s other judicial nominees do and many other conservative judges do. And they’re using that desire to try to drag the law in that direction. But, you know, I do think there is a line here. I think fault line is correct like that. They’re willing to go so far, they’re willing to say, of course, you should be able to have a handgun in your home. You know, Dad’s got to protect his kids. Mama, Mama Bear has got to protect the cubs, but they really maybe are not eager for a dystopian hell scape America where everybody has the constitutional right to tote around weapons of war in public and the rest of us spend our entire lives cowering in fear of the next mass shooting, because everywhere we look, there are assault weapons that could destroy and slaughter us and our families and our loved ones in seconds.
S1: Well, I’m going to sit with that for a second, but file under, but I’m not crazy. I guess we have to talk about Brian Camp in Georgia before I let you go, because. There’s almost no way to look at this massive Georgia vote suppression law other than, first of all, re reinstating Jim Crow. We’ve talked about this before. No question how it will impact minorities. But do they actually want to kill the filibuster? I mean, is there is it forcing the issue? Is it essentially saying we’re going to pass such repressive voting laws that Joe Manchin and Krysten Sinema are going to have to change their minds?
S3: It does sort of feel like there is an acceleration ist ideology here at work, like let’s just bring these tensions into such stark contrast that, like, the Senate either has to blow up the filibuster or surrender American democracy to the forces of Jim Crow forever. And I don’t know what Brian Camp is thinking when he signs that Jim Crow style bill behind closed doors with a bunch of white people and has a black representative who tries to attend the ceremony arrested. I don’t know what Joe Manchin and Krysten Sinema are thinking when they see this on the news and still decline to reform the filibuster to pass voting reform. But you see these images in stark contrast right next to each other on TV. And you definitely feel like we’re at an inflection point here and in the United States. And I have to say, it’s just every time we talk about these these southern Jim Crow bills, we have to talk about Shelby County. Right. We have to talk about the Supreme Court’s decision in 2013, gutting the Voting Rights Act and killing the preclearance requirement that changes to election laws in historically racist states have to be approved by the by the feds, by the Justice Department. And Justice Ruth Bader Ginsburg famously said that getting rid of preclearance when it’s working is like throwing out your umbrella in a rainstorm. We are now in the rainstorm. We are all soaked to the bone. But she also had a really prophetic passage in that opinion where she talked about these second generation voter suppression laws and that the court was so naive to say, well, we don’t have literacy tests anymore. We don’t have grandfather clauses anymore. Right. So we don’t need this this sort of crown jewel of the Voting Rights Act. And if you look at Georgia, if you look at this law, it’s just a direct rebuke to that. It just proves Shelby County’s reasoning wrong, because here is a law that intentionally forces voters to wait in longer lines. Right. Strictly limits the number of drop boxes. It’s going to make the voting process longer. It’s going to force disproportionately black people to stand in line for hours on end to cast a ballot. And it criminalizes the distribution of water to those people who are standing in long lines. You can’t even give them water as they wait for 11 hours to vote. And it gives the predominantly white state election board the power to override and commandeer a majority black election boards that try to expand voting rights. And if this is not a second generation Jim Crow bill, I simply don’t know what is. And yet we all know the Supreme Court’s going to greenlight this. You know, we all know that John Roberts is not going to admit that he was wrong. And so this does have to be resolved through the political process, a political process that has now been, you know, permanently perverted in Georgia. We’ve got 50 votes in the Senate. We’ve got Democrats in the House and in the White House. And if they’re not willing, if Joe Manchin and Kyrsten Sinema aren’t willing to take a stand here and say this goes too far, then I don’t know what solutions are left on the table.
S1: I agree. This feels like a rubber meat road moment to me. And in a profound way, it’s just impossible to imagine red and purple states doing anything but doubling down, doubling down on this kind of conduct unless there is some kind of bulwark. And it’s just, you know, yet again, the idea that it comes down to this weird minority rule, you Jim Crow, Senate protocols and rules, it’s just so deeply, deeply strange. It’s like an Escher staircase of minority rule all the way down. So we will see. We will see. Mark, this is a little grimmer than even I thought it would be. But it is always a joy to have you. And thank you for joining us.
S3: Always a pleasure. And next week or next two weeks, let’s try to. Find a little spot of good news, because I agree it feels like we’re on a roller coaster that reached the top and is just plummeting down and down and down. And that’s not what I was promised for 20, 21. So we’re going to find something good.
S1: All right. Mark Stern, finding the joy today and always. Thank you, Mark. Thank you. And that is a wrap for this episode of Amicus, thank you so very much for listening in. Thank you so much for your letters and your questions and your thoughts. You can always keep in touch at Amicus, at Slate, Dotcom, or you can find us at Facebook dot com amicus podcast. Today’s show was produced by Sara Burning Him. We had research help this week from Daniel Maloof. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate podcasts. We’ll be back with another episode of Amicus in two short weeks.