Fundamental Rights Doublespeak
S1: This Ad free podcast is part of your Slate Plus membership. Hi and welcome to Amicus. This is Slate’s podcast about the courts and the law in the Supreme Court. I am Dahlia Lithwick. I cover those things for Slate, and since our last show, Judge Ketanji Brown Jackson has not only sailed through to confirmation, but she managed to do so with some Republican votes. And on top of that, polling suggests she may prove to be the most popular Supreme Court nominee slash confirmed justice in modern history. Now, history may also recall that the effort to smear her largely failed in the long run. But boy, oh boy, the stupid was strong throughout this process.
S2: Constitutionally unsound rulings like Griswold versus Connecticut, Chela versus City of New London and NFIB versus Sebelius confused Tennesseans and left Congress wondering who gave the court permission to bypass our system of checks and balances.
S3: So you would be okay with the Supreme Court leaving the question of interracial marriage to the states? Yes, I think that that’s something that if you’re not wanting the Supreme Court to weigh in on issues like that, you’re not going to be able to have your cake and eat it, too. I think that’s hypocritical when the Supreme Court creates a right that is not even mentioned in the Constitution. The independence and the legitimacy of the Supreme Court itself is called into question. Griswold versus Connecticut. Now, you can list a whole host of issues when it comes down to whatever they are. I’m going to say that they’re not going to all make you happy within a given state, but we’re better off having states manifest their points of view rather than homogenizing it across the country, as Roe versus Wade did, a judge must call balls and strikes. And given what I’ve seen and our unwillingness to disclose her judicial philosophy and a disavow and expansionist view of unenumerated rights, I have concerns that Judge Jackson will be pinch hitting for one team or the other.
S1: In other news, talk of reforming the Supreme Court’s ethics rules heated up after revelations about Clarence Thomas, his wife’s text messaging spree around the January six insurrection. And the court handed down some major decisions in a couple of important cases this week. We’re going to conceive of this show as our great big legal history show. And that’s because later on, we’re going to take a closer look at the story behind the filibuster and how so many of our current notions about its purpose and its history are just plain wrong. For Slate Plus members Mark Joseph Stern will join us for our usual chat about the legal news that didn’t make it into the main show, including another major shadow docket decision on the Clean Water Act this week. And a surprising case creating a new constitutional bar against malicious prosecution. But before we say goodbye forever to the Ketanji Brown Jackson hearings, there’s one not trivial point that warrants revisiting on this show with an almost unerring eye for scoring big talking points. Many Republican senators spent the hearings taking potshots at the idea of unenumerated rights, substantive due process, not just abortion, but the liberty interests that underpin Roe v Wade, Planned Parenthood versus Casey, but also Obergefell versus Hodges and Griswold. Here’s John Cornyn saying just a whole bunch of this.
S3: Do you share my concern that when the court takes on the role of identifying an unenumerated right? In other words, is not mentioned in the Constitution and creates a new right, declaring that anything conflicting with that is unconstitutional, that it creates a circumstance for those who may hold traditional beliefs like something as important as marriage, that they will be vilified as unwilling to assent to this new orthodoxy.
S1: And Senate Democrats did almost nothing, at least to my eyes, to push back on this narrative. And in doing almost nothing, they allowed these talking points that surfaced, by the way, at the Supreme Court in oral arguments in. Dobbs the. That’s the 15 week abortion case that’s still pending. They allow these ideas to become ever more firmly entrenched in the political discourse. Now, look, maybe it doesn’t matter. Dobbs is probably going to be the end of abortion anyway and half the states. And nobody really wants to put marriage equality or anti-miscegenation laws back on trial, right? Well, maybe so. My guest today is David Gans. He’s director of the Human Rights Civil Rights and Citizenship Program at the Constitutional Accountability Center. And if that sounds a bit familiar, it’s because we spoke to his colleague, Elizabeth Wydra last fall. The CAC argues for embracing originalism, but doing it to achieve progressive outcomes. And David seems to be disinclined to just seat all the ground that I just laid out on unenumerated rights and substantive due process. I think he’s not willing for all of us to think about these as just invented rights that hippies who’d been just sniffing too much living constitutionalism in the sixties made up. So David’s brand new Law Review piece is called Reproductive Originalism Why the 14th Amendment’s Original Meaning Protects the Right to Abortion. And David, welcome to Amicus.
S4: Thanks so much, Diane.
S1: So I think I want to start by just asking you if my initial framing is correct and that insofar as these confirmation hearings aren’t just to achieve a confirmation, but are kind of messaging wars about how you think about the Constitution, it’s a mistake to say that going after unenumerated rights, going after substantive due process is just wordplay, that there’s a game here, and the game is to roll back rights. And rolling back those rights does not begin or end with abortion.
S4: I do think that conservatives, both on the court and in the conservative legal movement and in the Senate, want to roll back a century of constitutional jurisprudence that recognizes that the 14th Amendment broadly protects fundamental rights that are inherent in autonomy, dignity and equal citizenship. And they’re not limited to rights that are set forth in the four corners of the Constitution’s text that comes directly out of the Constitution’s text and history, and it’s reflected in Supreme Court decisions going back over a century, protecting rights to be a parent, rights to marry a loved one’s, rights to raise one’s children according to one’s values, rights to access contraceptives, rights to choose whether or not to have children, and including the rights to have an abortion. And from the point of view of conservatives and we saw this repeatedly at Judge Jackson’s hearings, these are all made up rights. Senator Kennedy sort of said this is just policymaking and that’s really deeply wrong as a matter of the 14th Amendment. This conservative attack on unenumerated rights, this idea that. If it’s not written in the text, it can’t be. A fundamental right is deeply problematic in many ways as a matter of the entire history of our Constitution. It goes back to debates at the founding over should there be a Bill of Rights. And one of the concern was, look, if you try and list all the rights that are protected, you’re not going to get them all. There’s a wonderful quote from James Airedale, who is a very prominent member of the founding generation, later served on the Supreme Court that says make whatever list you want. I’ll immediately name 20 or 30 that aren’t listed there. So there is this idea you can’t capture everything. And the Ninth Amendment doesn’t protect enumerated rights, but it sort of sets out this rule of construction. Just because it’s not listed doesn’t mean it’s not a protected right. And in the piece that you mentioned, what I talk about is two big influences at the time of the drafting of the 14th Amendment. And the first and most important is the Declaration of Independence. The framers who write the 14th Amendment view the Declaration of Independence as the touchstone. This was the thing that was key to the American ideals of freedom, of equality, and it was essentially buried because of slavery. And so the idea behind the 14th Amendment is to restore the declaration, and they call the 14th Amendment the gem of the Constitution. And it’s because it’s going to write the declaration into the Constitution. The declaration speaks broadly of inalienable rights. It doesn’t try and list what those rights are. The 14th Amendment does the same thing. It talks about privileges, the duties of citizenship. It talks about guaranteeing liberty without. Due process of law guarantees equal protection of the laws. It doesn’t try and enumerate the rights that it sought to protect out of this recognition that no possible set of rights would be exhaustive. And in those debates, they look back to the Ninth Amendment and they say the Ninth Amendment completed the document and ensured that all fundamental rights would be guaranteed. And there’s a second point that gets to why the text in history protects unenumerated rights. The 14th Amendment emerges out of the crucible of slavery, and it defines the promise of freedom. It’s trying to guarantee those fundamental rights that had been long denied to those held in bondage. And in the debates, they’re looking back at, what did it mean to be denied freedom to be held in slavery? And many of those key rights were not rights that were a new brain in the Constitution. Many of them were like freedom of speech, protection against unreasonable search and seizures were key to the Bill of Rights, but many of them weren’t. And what were some of those rights? The right to marry. Enslaved people had no right to marry at all. Frederick Douglass says this is a nation that boasts of liberty. But 3 million people have no right to marry, the right to start a family. Choose choosing your family. That was all impossible under slavery. Children were treated as a commodity. They could be bought and sold. They could be separated. Parents had no right to care for their children. So these fundamental rights are very deeply rooted in the history of the 14th Amendment. After the slave trade closed, a key to the expansion of slavery was the idea that. The slave system would replicate itself through forced procreation, through rape, through forced enslaved women to procreate with other slaves as a matter of coercion and the violence inherent in that. And these were not kind of peripheral parts of slavery. These were viewed as kind of the core evil. And they were central to the abolitionist critique of slavery that. That helped change the Constitution that led first to the 13th Amendment and then to the 14th. And you can sort of chart the progress of. The idea that these are fundamental rights throughout these debates when the 13th Amendment is debated, a number of the members of Congress during the debate sort of say, you know, under slavery and enslaved person couldn’t say my home, my wife, my body. These were all fundamental rights and they are fundamental because they had been denied under slavery. One of the things you see on the court today is conservatives take this view that we can’t figure out what is a fundamental right unless it’s listed. So the answer is we’re going to say if it’s in the text, it counts. Otherwise, it’s not going to be protected. Or we’ll devise a set of tests that are so onerous that no right will qualify as fundamental unless it’s listed in the text.
S1: Let me stop you for 1/2 because I want to get to it, but I want to try to see this through the eyes of John Cornyn before we do. And I think the question that I have for you is it it seems like when he talks, he’s doing a couple of kind of smoke and mirrors moves.
S3: The Constitution doesn’t mention anything about substance when it talks about due process. The Fourth 14th Amendment and the Fifth Amendment don’t talk about substantive due process. It talks about due process of law, correct?
S1: Correct. So can you just walk us through on this first piece of it, the difference between substantive and procedural due process so that folks can kind of hone in on what the move is when you start to say there’s no such thing as substantive due process at all.
S4: Sure. But so I want to sort of back up. Part of the story goes back to the fact that kind of a very key piece of the 14th Amendment, which was the privileges or immunities clause that says no states shall enforce a law that denies the privileged immunities of citizens. That was essentially stripped out of the Constitution very early on in 1873, in a case called the slaughterhouse cases that kind of removed the language of the 14th Amendment. That seems to very clearly protect substantive, fundamental rights. And since then, many have pushed both on the left and the right for the court to restore that in line with its text in history. But the court has never done that. And instead the due process clause has done the work of protecting fundamental rights. And the response, often from conservatives like Senator Cornyn, is to sort of say, well, due process seems to be more about ensuring fair procedures, and it doesn’t make sense to use it to protect fundamental rights from denial by the states. And so essentially what the court has done is to enforce the original meaning of the 14th Amendment, the guarantee of fundamental rights that are at its core by using the due process clause. Because as late as 2010 case called McDonald, there was a big push to use the privileged immunities clause, which is the clause that the text in history says is the one that protects fundamental rights. And the response was, there’s too much water under the bridge. We’ve used the due process clause for over a century. And as a matter of precedent, even though we get the force of history, we’re going to continue with that approach. And so that is the approach that the entire court has used in that case. Justice Scalia sort of said, you’re going to be the darling of the professoriate for pushing privileged immunities, but we’re not going to do it. And now you see conservatives sort of turning around and saying, well, if we’re focusing on due process, that seems like an odd way to protect substantive, fundamental rights.
S1: And we should note that was a gun case, right? I mean, that’s the irony here, is that that was a gun case that was extending Heller. And in that, Justice Scalia given the invitation to just completely scuttle the notion of substantive due process once and for all, avoids doing exactly that. Right. Right.
S4: It gets to what we talked about earlier when it’s a right that you can say it’s in the text, they say, yes, this is a fundamental right. It applies not only to the federal government, which the Second Amendment did, but it also applies to the states under the 14th Amendment, under the rubric of substantive due process. So the court recognizes substantive due process, and some protection of fundamental rights is deeply rooted in the text in history. And in that case, the majority kind of goes through the history that looks at protecting the individual right to bear arms, which is a huge issue at the time of the 14th Amendment, because white militias were trying to take away guns from those freed from bondage, which was their only means of defending themselves. There was wide scale violence, and having a gun for protection was critical to living. And so that was a key issue that was debated. And now in that case, they sort of go through the history. But what the history shows is protection of fundamental rights was deeply ingrained in the 14th Amendment and can’t be limited to rights that are listed in the four corners of the document. Because many of the fundamental rights that were discussed at the time of the 14th Amendment were rights that did not appear anywhere in the constitutions text but were critical to liberty, equality and equal citizenship.
S1: If we’re going to be completely precise here. And what I really want is precision. You’ve walked us through unenumerated rights and fundamental rights. You’ve walked us through substantive and procedural due process. And then we’ve played a little bit of John Cornyn, who seems to sort of take all that into a big blob of Play-Doh and dump it in front of Judge Jackson and say all of this stuff is fundamentally interchangeable. And I’m going to go further than, as you just noted, the Supreme Court is willing to go by saying there’s actually no such thing as substantive due process. And I’m going to go further than the Supreme Court has been willing to go and say any unenumerated right is garbage. And then he just hands that to her and says, fight me. Right. I mean, that’s essentially the slippage here is being really fast and loose, both with what the court has done on the sort of line of substantive due process and on the line of unenumerated rights.
S4: I think what we have seen from nominees is a reluctance to. Sort of debate first principles with the senators. They’re asking their questions. And so she appropriately recognized that there has been a century of jurisprudence using the due process clause of the 14th Amendment and recognizing that at the core of the 14th Amendment is a guarantee that certain fundamental rights will be protected. One of the things that’s absolutely crucial in understanding this debate is the rights that are the subject of the court’s substantive due process jurisprudence, which conservatives view as an invented rights, all come from the very rights that were at the core of the 14th Amendment right to be a parent, the right to marry a loved one, the right to choose whether or not to bear and raise children. Those were all fundamental rights that were denied to the enslaved people. And when the 14th ban was debated, the framers recognized what definition of freedom exists. That does not include all these things. And so you look at the Supreme Court’s jurisprudence. It lines up. Almost perfectly with the list of fundamental rights that were long denied and people and were key to their freedom that the 14th Amendment sought to guarantee and secure.
S1: Can you talk for a minute, David, about what it means when, in addition to this move of sort of saying anything that wasn’t explicitly written in the Constitution is not protected and it’s all just invented on the fly by unelected majorities on Supreme Court. In addition to that, there was a real effort to lash the idea of substantive due process and unenumerated rights to the evils of Plessy versus Ferguson, of Dred Scott, to Lochner and the Lochner line of cases. Can you help pick apart what is happening when the claim is made that everything bad that’s actually ever happened in history is as a result of these ideas of unenumerated rights and substantive due process.
S4: So a familiar critique from the dire opponents of substantive process is the whole thing is corrupt, root and branch. It started with Dred Scott because the more famous holding of Dred Scott was that black persons could never be citizens under the Constitution, and therefore Dred Scott had no right to sue. They then went on and said that slave owners had a right that was protected by the due process clause to take their slaves from slave territory into free territory. And they invalidated the the Missouri compromise that had prevented that. Then in the locker era, the Supreme Court used the due process clause as a way to second guess the wisdom of social and economic legislation in a way that had no constitutional foundation in the Lochner case. It was a maximum of our laws. There were lots of other cases where the court struck down minimum wage laws, and then in the New Deal, Lochner was overturned. One of the big problems with Lochner was it sort of ignored that there was a kind of crucial balance between the claim the individual right and the need to regulate social and economic conditions, to protect workers and safeguard their health, which the court and case after case ignored as part of the Lochner era. The court also started putting its due process precedents on a somewhat firmer footing. The Lochner also gives us some of the first. I sort of talk about them as rights of heart and home, because it’s about the right to love, the right to form a home, the right to have children decide to. Raise those children, that kind of grows out of the locker room. And then it’s further developed in the Warren Court protecting access to contraceptives and the Griswold case, protecting the right to marry a loved one of another race in the Loving case, and then becomes the basis for Roe in 1973. So there’s a part of the Lochner Court that everyone views as illegitimate, but there’s also a part of the court that is the beginnings of this recognition that these rights of hardened home are fundamental, are guaranteed. And some of those cases are the ones from the Lochner area. There was a case, Meyer versus Nebraska, about the right of parents of German descent to have their child learn German in schools. There’s another case, Peirce, in 1925, about the right of parents to send their child to a private school rather than a public school of the entire line of 14th Amendment, unenumerated fundamental rights. Those are probably the ones that get the most respect. But again, if you take the view of where is it written in the text, then there’s nowhere in the text that talks about the right of parents to raise their child and ensure their child can go to a private school or learn German. But these are fundamental rights, and one of the reasons you can see them as fundamental is one, the family is kind of a foundational unit to our society, but to the 14th Amendment is a moment where we recognize these are fundamental rights, because that’s the difference between being enslaved and being free. You could control your family. And I think that the justices are concerned. We can’t have a subjective basis. It can’t just be what right feels important or sensitive. But this is a way that looks at our history and says this was the difference between slavery and freedom. It was about control over your family, the right to marry a loved one, the right to decide whether to bear and raise children. The right not to have your children separated from you at the whim of another. These were rights that were fundamental as a matter of dignity, autonomy and equal citizenship.
S1: One of the reasons I was really struck reading your law review is that if you are. An American right now. And you are pushing against school mask mandates in COVID or you are pushing to control what books your child checks out of the library or whether they learn critical race theory. A lot of those ideas about how I send my kid to school, what she learns at school, how much control I have over their freedom and education. Those are all in that bucket of rights you just described. I mean, there’s a deep irony here that the same people like Senator Cornyn and Senator Kennedy who are fighting to the teeth against your interpretation of what the 14th Amendment sets out to protect all of these heart and home and control of children and family autonomy are actually exactly that bucket of rights that I would think the conservative legal movement would be embracing right now.
S4: And you even saw this dynamic play out in Dobbs when Justice Amy Coney Barrett suggested there was no problem forcing pregnant persons to carry a pregnancy to term because they could simply surrender their child at birth. But, you know, vaccines, she she sort of said, well, that’s that’s kind of a bodily integrity issue. So there’s kind of a selectivity about when the rate really counts.
S1: And I think I want to talk about Griswald for one little second, because you mention that Griswald is the attempt to bring all this together into the realm of, you know, the right of married couples to use birth control. And maybe part of the original sin that we should talk about is the way that opinion is written. It’s written in in such a way that it really does, I think, become a parody of what, you know, judicial activism might become, that there’s a way in which if Griswold had been written in a more kind of expressly text based, expressly crisp, clear, coherent way, we would not now be doing this work of backfilling what it was that the right purported to protect. Am I being unfair?
S4: No, I think that’s right. I think the sort of penumbral arguments that Justice Douglass invoked in his opinion has done a lot of damage. If you look at the opinions, there were a lot of different opinions and lots of different takes. Some just emphasizing this is a very destructive imposition on liberty and, you know, really for no sort of valuable social goal. And it’s basically a dead letter in the state. And so if you’re balancing liberty and the state interest, liberty wins by a mile. That was the approach that Justice White took. But I do think the Penumbral basis made it very easy to character. Try this idea. You’re just making it up. There has definitely been. A shift. You can look back at the number of. Fairly recent confirmation hearings where nominees steered very far clear of Roe, but they were willing to say Griswold was right. And here you have Senator Blackburn saying Griswold was wrong. We’ve already seen an attack on access to contraceptives in Hobby Lobby. Precedents around Griswold will be part of this coming wave of attacks on basic rights that the court has long protected.
S1: So actually this gets to I guess what I think is my tactic or strategy. QUESTION Right. We have briefs in the Dobbs case that are already saying, hey, once you’re going after substantive due process, let’s just be really clear that Obergefell is also on very thin ice. And as you just suggested, you know, we’ve seen attacks from various states on Griswald. We’ve got, I think, all three of the attorney general candidates in Michigan saying there’s no right to use contraception rooted in Griswold because there’s no privacy right in Griswold. That’s real. So I think one of the reasons I wanted to have you on was, you know, I’m sure you had this conversation many times the week of the hearing to when you did media. But the answer to that that you get from the left is, oh, come on, nobody’s going after contraception. Come on. You know, Americans firmly, firmly support marriage equality. There’s no possibility that these are on the hook. And I think I have a two part question for you. One is, Americans also support Roe. That’s immaterial. The fact that Americans may be robustly in favor of contraception and the right to contraception or marriage equality doesn’t mean that they are necessarily secure constitutionally. But more importantly, doesn’t it mean that ceding this ground around Roe just unerringly means that the court has reasons to to suggest that everything that followed Roe, including Lawrence versus Texas, including Obergefell, is similarly fair game.
S4: So one, I do think many of the arguments that are being made in Dobbs are arguments that, if accepted, would destroy much of the line of fundamental rights protections that are deeply rooted in the 14th Amendment. And so let me explain that. One of the arguments that Mississippi makes in Dobbs is the right to abortion can’t be fundamental, because we look at state practice in 1868 and abortion was outlawed. And so how can it possibly be a fundamental right? And that’s the same argument that was made in Obergefell. Same sex marriage wasn’t allowed in 1868, so how can it be a fundamental right? Scalia’s dissent in that case basically said that and said that’s the end, that’s the case. Like, this is easy. There’s no possible way this can be a matter of fundamental liberty. The problem is that’s also the argument against the fundamental rights holding and loving, which is viewed as one of those precedents that, you know, if your theory doesn’t explain loving or brown, then that’s the problem with your theory. In the piece, I sort of look at what Judge Roberts, then ultimately Chief Justice Roberts said in his confirmation hearing, where he said, looking to state practice to define the meaning of the limits on states is really circular. So you can’t say. It’s constitutional because they’ve done it. The question is, is it constitutional? He said. In Loving, the court looked at whether the right to marry was fundamental, and it recognized it was, I think. The opinion did need to, but it could have rooted it in the fact that at the time of the 14th Amendment, the right to marry was celebrated by black people as a core central part of their freedom. This was one of the fundamental denials that they couldn’t have a family. A couple could always be sold away, so the right to marry was very fundamental. And so in Loving, the court said it’s fundamental. The fact that states have proscribed, it doesn’t make it constitutional. And there’s kind of a broader point, which is the whole point of the 14th Amendment was a response to decades and decades of suppression of fundamental rights. So the idea that you would just say, well, we’re going to define what the 14th Amendment means by looking to what states did at the time, turns it on its head. This was the argument that then Justice Rehnquist made in Roe. It’s been made in many different ways, in other cases since then. It’s sort of a theory that’s used to ensure that this entire line of cases would come out the other way. And you can even look at Griswold. That was the law that was passed in 1879. So if you’re looking at the age of state practice, there would be a strong argument that restrictions on contraception would be fine. And the other side says we’re doing originalism, but as a matter of originalism, it’s perverted. School segregation laws were on the books. All sorts of of denials of fundamental rights and discriminations existed at the time of the 14th Amendment. The 14th Amendment wasn’t trying to lock those in in the list of results. It enacted these fundamental principles that fundamental rights would be respected, equality under the law, equal citizenship, stature. These are kind of the fundamental points.
S1: So so what you’re saying is that when John Kennedy, Senator Kennedy accuses liberal justices of picking and choosing which unenumerated rights are fundamental, they’re also picking and choosing which rights at the time of the 14th Amendment, they think, are the ones that are enshrined for all time and which can go to so that there’s picking and choosing, going both directions.
S4: It’s not really a matter of picking and choosing. If you look at the history, the rights that we’re fighting about, the right to marry a loved one was viewed as fundamental. The question now is, can you discriminate as to who gets to marry? And then you have both the force of the Constitution’s guarantee of fundamental rights and its protection of equality that I think strongly supports what the court did and loving what the court did in Obergefell and other cases. So the rights that are viewed as invented are in fact have a very strong foundation in the 14th Amendment and in the rights that had long been denied to enslaved persons. And if you. Start with that extremely strong foundation. It protects the rights that. Art issue. I admit there wasn’t any discussion at the time of the 14th Amendment of abortion. But once you recognize bodily integrity, the right to choose your family, the right to decide whether to raise children. There’s no daylight between those rights that are deeply rooted and the right to abortion.
S1: We’ve talked quite a lot about Griswald, and we’ve talked about the ways in which when folks say, oh, you know, the line between contraception and abortion is a really clear, coherent line and no one’s going after contraception. But as you noted, Hobby Lobby, as you noted, there’s certainly been Trump nominees to the federal bench who are opposed to IVF, who are opposed to surrogacy. And, you know, as I mentioned, the people running for elected office who are saying that there is no constitutional right to birth control. So can you talk for a minute about whether there is, in fact, a bright line between contraception and abortion in either the doctrine or in the attacks?
S4: I think the line is is notoriously fuzzy. The Hobby Lobby case illustrated that in that case, the owners of a secular nonprofit argued that they were entitled to a religious exemption and one of the Supreme Court on the claim that they didn’t have to include in their health insurance coverage certain contraceptives because they viewed those as resulting in abortions. And so if Roe falls in the Dobbs case or some other case down the road, you could easily see states criminalizing certain forms of contraception on the same theory. So I think attacks on contraception, we’re already seeing them now and they can’t be written off in the future.
S2: And can you.
S1: Talk for a minute? Because I think this was again in your piece so illuminating for me that the slippage of starting to talk about fetal personhood and the idea that not only was abortion not explicitly protected anywhere, you know, in the States at the time of the 14th Amendment, but that there is now this imported value of, you know, a fetus is a person, and that somehow implicitly is something that should be protected. I want you to talk for a minute, if you would, about, you know, what your research shows about why it was that women’s reproductive rights were so heavily regulated at the time of the 14th Amendment. It’s not because there was a belief that the fetus was a person. It’s that they were trying very, very hard to control women’s bodies. Right.
S4: Right. If you look from the founding on, if you look at the common law, which is often a source of wisdom to conservative justices on the court, there are many cases where they say, let’s see what the common law did. So the common law with respect to abortion was abortion wasn’t a crime until the moment of quickening, which was the first time that a woman would feel the movement of the fetus. And that was generally around 16 to 18 weeks. But it wasn’t exact. It was it differed when the individual woman actually felt the movement, the common law said before that there’s no precedent that makes abortion a crime. So abortion was legal throughout the first trimester through a good part of the second trimester until quickening whenever it arose. And if you look at the historical work on abortion, abortion was one of the first medical practices that was the subject of specialization and expertise. What happened in. The middle of the 19th century was the shift. That was this legislative campaign that was pushed by physicians, and the physicians didn’t like the quickening line. They sought to ban abortion throughout pregnancy. But the arguments were about controlling women. The idea that was also very popular with the Supreme Court of the time, that it was a women’s god given duty to bear and raise children. They viewed abortion as destructive to women’s health, and they were not concerned about all women. They were mostly concerned about white women who were not having children while immigrant populations were exploding. And so you look at 1867, which I cited in the piece, there’s an Ohio committee that’s considering an abortion ban. They say the question of abortion is whether the population will be our children or those of aliens. And so in the last part of the paper, I looked at this history and I take a look at fetal personhood, because one of the big arguments driving the case is the idea that the interest of the fetus has to be dominant and. So there are some who think the fetus should be considered a person under the Constitution and have rights of its own. Roe rejected that, and no justices questioned that. During the Dobbs argument, Justice Kavanaugh asked Mississippi’s attorney general about that. He said, We don’t take that position. And I think you see. When the 14th Amendment says who are citizens, it’s persons who were born or naturalized. There are a number of provisions that would make little sense if they applied to people. So when we take the census, we don’t take a head count of fetuses at the time. They’re not treated as persons in that way. The view that they should be persons under the 14th Amendment has no takers on the court. Not even Mississippi would go that far. And I think this is important because Justice Kavanaugh sort of said, well, we have to be neutral. And on one side, you have the pregnant person who has who’s fully entitled to liberty and equal friendship on the other side. Everyone in Dobbs agrees that the fetus is not a person in contemplation of the Constitution. And so then I looked, even if it’s not a person, should it be considered a compelling state interest? And what the history shows is. From the founding through the mid-19th century, it wasn’t viewed as a compelling state interest, and when states moved to ban abortions, it was based on these gendered and racist views. That said, it was a woman’s duty to give birth and anything that interfered with that would bring the ruin on the nation. And that’s not the stuff that compelling state interests are made of. So I think if you look at the history of abortion regulation, it really undercuts the idea that you can say that there’s a compelling state interest that allows the state to completely extinguish the fundamental rights that the 14th Amendment protects. And the late great Walter Dellinger wrote this piece in the late eighties that I relied on where he said, you know, could a state say, well, pregnant women have to be on bed rest the last three months because they might miscarry and we would lose life. And if you take the view that it’s a compelling state interest, you’re sort of forced to this idea that the capacity to become pregnant means that we have two tiers of citizenship, which is exactly what the 14th Amendment disallows.
S1: So I just want to be super, super clear about what you’re saying, because I think it’s important and I think it really didn’t get said or I didn’t hear it. David, at Judge Jackson’s hearings, which is really the only way to look at the 14th Amendment, is constructing a new notion of freedom post chattel slavery that defines anything that is a part of chattel slavery as fundamentally unfree. And so the whole notion that we determine for slaves who they reproduce with and how they reproduce and whether they can marry and how many children they have, all of that is, by definition, unfreedom. All of that is by definition ignored in the Bill of Rights, and that you are starting from the presumption that if you don’t look at that bucket of freedoms, what you call, you know, home in heart, the ability to make your own decisions about what you do with your body, how you raise your children, who you marry, how many children you have. If you don’t look at that as a direct response to chattel slavery, you’re missing the point of the 14th Amendment. And I think that the only other kind of coda I want to let you talk about for a second is, you know, as it felt like Senate Democrats were ceding all this ground of what you’ve mentioned, privileges and immunities gone, substantive due process on the ropes to cede the ground of substantive due process and unenumerated rights and privacy and family autonomy and bodily autonomy is to say that’s okay. We still have the equal protection clause. We have the equal protection clause. So we’re going to be okay. And I want you to just maybe if you can take us out on the answer to the question, maybe it doesn’t matter. Maybe we don’t need all these privacy rights and liberty rights and bodily autonomy rights and family rights because we have equal protection. And that is going to protect all the other rights that are protected under sort of the auspices of Griswald and Roe. What’s the answer to that?
S4: I mean, to one, I do think when the attack that we’re seeing both on and off the court on recognition of basic fundamental rights that are not enumerated in the four corners of the document, misses a key part of what the 14th Amendment is all about. These elements of bondage, of what it meant not to be free, were central to the abolitionist critique that changed the Constitution. And you can draw the line through the abolitionist movement to the 13th Amendment before all these places they’re arguing about these rights have hardened home. So what I think you’re seeing a lot is kind of a selective originalism that is ignoring huge swaths of the 14th Amendment. These rights are directly provided. They’re clearly rooted in the history and context and responding to the abuses of slavery. We’ve talked a little bit less about bodily integrity, but slavery was sort of the total abnegation about the integrity and. To guarantee freedom without guaranteeing bodily integrity would have been illusory. That is the very core. The right to the body was there before. But it really comes out of the experience of. The violence against black bodies during slavery and then afterwards. The genius of the 14th Amendment is its overlapping guarantees, all in the name of equal citizenship. Procedural fairness when you’re killed before the state guarantees the fundamental rights guarantees of equality under the law. The Equal Protection Clause is an incredibly important part of the 14th Amendment. But even there, conservatives take a very narrow view of what equality means, although the language is sweeping and universal and it guarantees equal protection for all persons. The track record there is also fraught. You can look at the dissents in the Douma case in Obergefell, even in cases like U.S. versus Virginia, the conservative view, which is deeply wrong on equal protection, is that it’s about race and nothing else. It’s not classifying based on race. Then I affirmative action. Then states have latitude to treat people differently, even for deeply problematic, discriminatory, prejudicial reasons. The history of the 14th Amendment sort of shows stripping out its core components can’t be justified simply because there are other guarantees left. They’re all kind of crucial to equal citizenship. So I think it would be very dangerous to say, well, we’re not so concerned about the court watering down the promise of freedom at the core of the Fourth Amendment, because there’s still equality left. When the justices on the Supreme Court have been reticent of reading the text of the Equal Protection Clause to, in fact, protect equality under the law for all persons.
S1: David Gans is director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center. His brand new LA Review piece is called Reproductive Originalism Why the 14th Amendment’s Original Meaning Protects the Right to Abortion. I cannot thank you enough for coming on to the show and really taking us through step by step, something that I think kind of was a bomb that was detonated at this hearing and that not a lot of us except maybe you threw their bodies on top of said thank you.
S4: Thanks so much for having me. I really enjoyed it.
S1: There are a few bizarre aspects of the United States constitutional setup that we look at sometimes on this show. One is the fundamentally counter majoritarian nature of the Senate. The other is this growing tension between a Supreme Court that demands specificity and constant updating in legislation that’s on a collision course with the Congress that doesn’t much care to pass laws anymore. So we’re going to turn to that problem right now and the mechanism that scuppers so much legislation, the filibuster, the fight over the filibuster reached a kind of frenzy earlier this year when the battle to protect voting rights ended with a whimper in the face of Senators Joe Manchin and Kirsten Cinema’s refusal to blow it up. We touched on the problems of the filibuster in an episode with our friends Adam Jentleson and Elie Mystal last summer. But we wanted to dig a little bit more into the history today and the claims about the history, especially after I listen to the Throughline podcast episode on the filibuster. It’s called Pirates of the Senate. And to do that digging, I’m joined by Rund Abdelfatah. She is co-host and producer of Throughline, and it’s a podcast that explores the history of current events. The concept for Throughline, which was launched in February 2019, was developed by Rund and her co-hosts Drummed in Our Bluey. So first and foremost, welcome to Amicus.
S5: Thanks for having me.
S1: And can we just start with the what is the sort of broadly accepted history? We hear this all the time of the filibuster. And maybe you could talk a little bit about why your episode is called The Pirates of the Senate. And to do that, let’s play a little clip from your show that I think answers at least the question about why all the Senate lore about the history of the storied filibuster is just fundamentally wrong. Let’s have a listen.
S3: We’ll start at the beginning. What is the Constitution say about the Senate?
S5: Okay, so let’s turn back the clock to 1787. It’s the starting point for a lot of our stories about American government. The year the Constitution was written, the year the founders laid out a vision for the country. And Senator Schumer’s question suggests that it’s the starting point for this story, too.
S2: The idea that the filibuster was part of the original design of the Senate that the founders in writing the Constitution foresaw this.
S5: Former Republican Senator Pat Roberts, who was one of three members of the minority party, asked to speak at the hearing, made that point outright.
S3: The Founding Fathers had the foresight to create an institution that was based not on majority rule, but where each state, regardless of size or population, had two senators to speak out on their behalf. It has that power to speak the right to a limited debate that is the hallmark of this body.
S5: Only problem is.
S2: It turns out that’s not true.
S5: The filibuster doesn’t actually appear anywhere in the Constitution. In fact, some of the founders seem to have been opposed to the idea of a filibuster. Including Alexander Hamilton.
S2: We have many received wisdoms about the filibuster. Most of them turn out not to be true. The most persistent myth is that the filibuster was part of the Founding Fathers constitutional vision for the Senate. It is said the upper chamber senators themselves have been instrumental in perpetuating the myths because it serves their political purposes and their policy aims to be able to rely on the notion of the filibuster. And so the more mythic it is, I think it’s harder, harder to reach and harder to take down.
S5: So that voice you were just hearing, that was Sarah Binder. She’s one of the historians we talk to in the episode. She’s a political scientist at GW University and the Brookings Institution. And what she’s basically saying there is that senators themselves continue to propagate a certain version of the history, because the reality is that it’s kind of advantageous to you as a senator. If you happen to be in the minority party at a particular moment in time, it kind of gives you some power back. And so depending on who’s in power, depending on who’s in the majority, that history will be heard from both Democrats and Republicans based around who’s in the majority or not. And I think what’s so fascinating thing that we dug into in the episode was that the real version of the story is it was not some master plan laid out in the Constitution. The filibuster doesn’t appear anywhere in the Constitution. For starters, that’s kind of, I think, the first kind of myth busting that we do in the episode. So the reality is that the first constitutional convention in 1787 where the House and the Senate are getting together for the first time and kind of laying out their rulebooks, they have very similar rulebooks. And long story short, without getting into all the jargon, basically neither of them had a filibuster in place, but they did have something called a previous question motion in place. And what that basically meant was that there was a way for the simple majority in either the House or the Senate to stop conversation over a bill, get it to a vote and move things along. The House has that to this day. The Senate got rid of it and they got rid of it kind of over like a technical mistake. It just happened that Aaron Burr, who was vice president and leader of the Senate in the early 1800s, proposed, hey, we don’t need this. You know, like we’re all just friends here in the Senate. We can we can figure things out. We don’t need this previous question motion. They got rid of the previous question motion, basically getting rid of any way to end debate. And in that space emerges the filibuster. So that’s kind of the the technical history, but that’s not as like mythological, I guess you could say, as the story that Sarah was describing in that clip. And so kind of get to the second part of your question, Dahlia, which is why is the episode titled Pirates of the Senate? We get to that around the mid 1800s. So the filibuster, even though there was kind of a space for unlimited debate between the early 1800s to the mid 1800s, it wasn’t used that much and the reasons are varied. But fundamentally, the Senate looked very different. The country looked very different. We were like in our early days startup mode, much fewer states, therefore much fewer senators. And as a result, people generally didn’t push debate to its very possible limit. But as the country started to grow, as more states started to be added to the country, and as more senators started to be added to the Senate and they faced questions around how do you manage a growing country’s finances, how you manage growing partisanship. Now there are political parties. And how do you answer the question of what to do about slavery as you approach those really big questions, particularly that latter one, what to do about slavery? You start to see senators using the filibuster on the Senate floor and they start to not that frequently, but on occasion go on and on speaking to block a bill. And this is when people in the Senate record start calling them filibusters. And the reference there is to pirates, because that’s also a word that was used to describe pirates who at the time were traveling around to Central America and the Caribbean and essentially like looting and getting spoils. So the idea was that just as pirates take a ship hostage, so too are these senators taking the Senate hostage.
S1: Rondo is so struck. When I was listening at the very beginning of the episode where it’s Aaron Burr who somehow is, you know, kind of central to the history. And there’s all this talk of Burr and Hamilton and the framers. And it’s so deeply ironic. I know you caught this to that folks who were going around shooting people like.
S2: Actually.
S1: Shooting people are the ones we now say, oh, there’s this history of gentlemanly, courtly tradition, you know, and civil disagreement. And baked into that, as you note in the podcast, is like these guys weren’t actually paragons of civil discourse.
S5: No. They were trying to figure things out and they were sometimes doing some pretty suspect. Things in the course of figuring things out. And like you said, yes, Aaron Burr famously dueled with Hamilton and shot and killed Alexander Hamilton. This is just a year later. He’s kind of talking before the Senate, making this like declaration of what he thinks it should be. I think what it speaks to and in a lot of our episodes where we’re kind of looking at this really obviously pivotal moment in our country’s history, where these small group of elite white men are laying out a vision for the country. You realize they didn’t have it all figured out and they would acknowledge, I think, that they didn’t have it all figured out. At moments, they probably thought we bit off more than we can chew. Right. Because there were unanticipated problems coming up. The country was fundamentally different between 1776 and then 1876. I mean, the country looks radically different. And of course, in between that you have a civil war and the emancipation of enslaved people. And that really, really shakes everything up in so many ways. And when it comes to the filibuster history, it shakes things up there, because suddenly the filibuster can be a tool used by people who disagree very strongly about what to do with these new emancipated people. And so it becomes used more towards the end of the century than it had ever been before. For perspective, though, and I think this is important to point out when we say it was used more. We’re still talking like, you know, a couple filibusters every few years. Maybe at the time we’re talking about in the single digits in the late 1800s. And then it starts to increase into double digits, but still not where we are today. So we have hundreds of filibusters between the 1990s and now. It has been an exponential increase since around the late 1800s to today.
S1: I want to talk about where we started, which is that everybody points to this storied, lofty, aspirational, largely fake history. But I think one of the claims that’s made and you make the point in the podcast, it’s made on both sides that this is protecting urgently, important minority interests. Can you just give us an example in the category of both sides, do it to just give us a sense that it’s not one side or the other that points to this vaunted history of, again, you know, courtly, gentlemanly resolution of problems by way of this incredibly lofty protection of minority interests that both sides have really opportunistically used this language and this history in the past.
S5: I think that mission of protecting minority interest, which is kind of baked into all levels of American government, the idea of checks and balances is so strong and important. So I think there’s a conflation then between, okay, that desire in our government to recognize that in a democracy you have to have a counterbalance right to the majority view. And I think people take that and they run with it and exploit it. And that has happened particularly over the last 40 years of the history. But even before then, I think in more recent history, one of the examples that I think is interesting when thinking about revisions to the filibuster is the filibuster of presidential nominations. That’s a really good example of how both parties, depending on whether they’re in the majority or not, are sort of crying foul about trying to attack the filibuster and this great weapon and tool that we have to protect minority interests versus trying to get rid of it in order to further the majority’s agenda. So you start to have the escalation around the conversation around presidential nominations happening during the Bush era, when Republicans are in the majority and Democrats are saying this is our constitutional right, putting forth this myth about the history and saying this is the cooling saucer of democracy. Folks like Joe Biden are making these arguments at that time. And then when the Democrats are back in the majority during the Obama era, they’re saying we’re not able to get anything done, we’re not able to get our people passed. We’re going to get rid of the filibuster for these presidential nominations. And Senator Mitch McConnell at the time was saying, no, this is a cooling saucer of democracy. You can’t get rid of this. Are framers of the Constitution. They’ve set this forth to protect minority interests. And then when the Democrats are back in the minority and the Republicans are back in the majority, Senator Mitch McConnell gets rid of the filibuster for Supreme Court nominations. So both sides did it in that case. And one of the things we found in looking at some of the archival records of the Senate and particularly one hearing where Senator Schumer and Senator McConnell both speaking back in 2010, we found that there was an acknowledgement outright, Senator Schumer saying, I know I’ve been on the other side of this before and I know that when I’m back in the minority, I might feel differently about the. All of us do it right. And so I think there is a self-awareness and yet the cycle continues. And so I think particularly in moments like the one we’re in, where there is such intense division in our country and where there’s no real space for compromise on any issue, it feels the filibuster becomes an even more important tool for the minority and an even more like thorn in your side if you’re the majority. And so because of that, the tension is continuing to escalate around the filibuster.
S1: And you make this point, Rund in the podcast, and you made it earlier that we are talking about a smattering of filibusters. It really only ramps up relatively recently. And I wonder if you would just talk for a minute about how it starts to just rocket launch mechanism for minority rule to stymie these big majoritarian aims. First during World War One and then again the civil rights era, as you mentioned. And I want to play you a clip from the show where, you know, you’re thinking through how it is that it comes to be really something that a useful go to if you are a minoritarian interest in the Senate trying to scuttle legislation.
S6: There are some who are concerned that this is basically going to put the U.S. on a path to war because this will be seen as provocation and that these ships will be attacked. And if our ships are attacked, then we will have no choice but to to to declare.
S3: War and get involved.
S5: The armed SCHIP bill got to the Senate floor and was filibustered by 11 senators who opposed U.S. entry into the war.
S2: What came to be called a gang of willful men.
S6: A little group of willful men.
S5: At least that’s what Wilson called them. In a speech, Wilson let his anger be known, saying, quote, The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men representing no opinion but their own have rendered the great government of the United States helpless and contemptible. And he decided if he couldn’t make any progress playing by the rules, then the rules needed to change.
S2: And he basically goes around the country pillorying the senators right to confuse in the public’s mind the filibuster and the issue of national security.
S5: So this is probably one of the first moments in American history where the public is kind of brought into the conversation around the filibuster, because for so long it was sort of something that was happening, kind of like on a more technical level in the chambers of the Senate. And like now, there was a very public kind of litigation over the filibuster in the newspapers, and discussions of it were happening not just within the halls of Congress. Similarly, at that time, the stakes were so high. I mean, imagine the world is at war where barreling towards that war. And some people are like, we’re making a grave mistake. And other people are saying, no, we have to do this to protect our very being as a country. And again, this was a time of intense division. And so President Wilson, who was saying, we do need to sign this bill, we do need to get involved in the war. He’s like, this is a life or death matter, basically for the country. And so he’s kind of pulling out all the stops and he’s saying the filibuster in this case is actually potentially going to sink us. That’s the argument he’s making to the American people. And as a result, the filibuster comes under scrutiny by the public for maybe the first time and people start to say. Wait. This thing is is blocking us from being able to do the right thing and protect ourselves and protect the things that we believe in. And so as a result of this big public debate over the filibuster, you suddenly have what had been kind of called for by some senators for a few decades. By this point, we finally have the implementation of something called the cloture rule and the cloture rule. Again, more technical jargon. This is why the filibuster so inaccessible sometimes, right? Because there’s a lot of technical jargon, but it’s really important. The cloture rule, which we have today, although it’s a little bit different today, but I’ll get to that, basically allows a mechanism to stop a filibuster. Because remember, up until this point, it could go on and on and on forever. So the cloture rules established basically says a set number of senators can end a filibuster and. By doing that, you basically say, all right, a filibuster is no longer unlimited debate. Like you actually can have a limit to the debate. And that’s a big deal. You know, that’s a big deal because if you didn’t have that, theoretically, there would be no mechanism to stop debate in the Senate at all. And then what happens as we move into the civil rights era is that filibusters start to be used even more after emancipation. After the Civil War, we see filibusters start to be used more in the civil rights era. That goes up even more. And essentially, southern senators who are opposed to getting rid of Jim Crow era laws are really adamant in using the filibuster to block things like anti-lynching bills. They’re using it as their stopgap because during this whole period, there’s generally a more liberal majority in the Senate. And so the Southern senators are using this as their last ditch effort to preserve Jim Crow. And you see that all the way up to the voting rights bill in 1964. Lyndon Johnson brings forth the voting rights bill and there’s over 50 days of filibustering to prevent the voting rights bill from passing. It does eventually pass, of course, as we all know. But it was a really, really difficult battle and it was a really difficult battle because of the filibuster. And that, again, is a moment where there’s a revision to the filibuster, intense division, intense disagreement. It’s seen as an existential issue in that moment. People are saying if the filibuster is preventing us from being the country that we need to be to move into the future and to embrace all of the people in our country, it needs to go or needs to change. And so in that case, it changes. And so the cloture vote, the number of votes needed to end the filibuster is reduced slightly. And that’s kind of where we are today. We haven’t seen a major change to the filibuster since then, but the ante has been upped because now people aren’t just saying reform the filibuster. They’re saying get rid of the filibuster thing. We just need to we need to lose it altogether. Some people argue, why don’t we go back to the previous question motion just have a simple majority. That’s what the House does, you know. And so the conversation at each of these stages really beginning with World War One, then in the civil rights era and to today has continued to escalate, in part because the filibuster itself has continued to escalate in terms of its use and in terms of the way that senators are leaning on it, more and more to stop anything from moving through the Senate. We’ve gotten to that kind of critical point again, where the combination of intense division and intense disagreement and feeling like this is kind of life or death for the country is kind of what people feel is at stake again. And if history is any indication, that’s the time when the filibuster is most likely to change in some way.
S1: Random. So curious before I let you go, you know you’ve used the word life or death. You’ve used the word existential. I know. Without a doubt that was the framing around getting voting rights legislation passed this year. And it failed. And and I love that threaded through all your answers today. You’re talking about these are moments of intense self-reflection about what kind of country we want to be. Did you come away in this balancing act between this funny mythology about the Senate as the cooling saucer and the need for civil discourse, and that it can’t be raw power versus these really existential questions about majorities and the determination of who we are. Did you come away changing your mind?
S5: I think that what I didn’t have an appreciation for at the beginning, that I do have an appreciation for now, is that. Within the jargon of the Senate and the murkiness of it, there’s actually. Really important and fascinating conversation to be had. There’s fascinating stories within that and battles within that. And this is just some a broader reflection that I sometimes have coming out of when we’ve done episodes on the Supreme Court or things like that, where sometimes the mechanics of American government can feel very boring and not accessible. And I think that it’s really important for us all to kind of get past that sometimes knee jerk reaction. I think we have to topics like that, because this is this is fundamentally the stuff of our democracy. And once we were digging into the history, I really gained an appreciation for, yes, this is complex, but like there’s also a lot of space for deeper reflection about who we are. Just even recognizing that, in my opinion, gets us to a better place in the conversation about the filibuster, because I think right now it’s so partisan and seeing beyond the immediate thing in front of us is very, very hard. And I think there’s a lot of value to seeing this as part of a much bigger story, a much longer story, because it’s really easy to chalk all of this up to modern day things like, well, it’s social media. It’s the divisiveness of the news these days and and politics these days. And that is a part of it. But actually, it’s not the whole story.
S1: Dorky jargon laden ancient systems is the stuff of dreams. On this podcast, Rund Abdelfatah is co-host and producer of Throughline. It’s a podcast that explores the history of current events. The episode that we are discussing today is called Pirates of the Senate, and it is really well worth a listen. If you want to hear a deep, smart, nuanced dive on the filibuster, its history and possibly its future. Thank you so, so much for being with us.
S5: Oh, no, thank you for having me. It’s been great.
S1: And that is a wrap for this episode of Amicus. Thank you so much for listening in and thank you so much for your letters and your questions. You can always keep in touch with us at Amicus at Slate.com, or you can find us at Facebook.com slash Amicus podcast. Today’s show was produced by Sara Burningham and Shaina Ross. Alicia montgomery is executive producer and for the very last time, sadly, but with huge, immense gratitude and love, we will say that June Thomas is senior managing producer of Slate podcast, and we will miss you, Jim. We’ll be back with another episode of Amicus in two short weeks. And now we have arrived at the part of the show where we get to talk about all the stuff we didn’t get to talk about in the rest of the show. And to do that, we have the indispensable Mark Joseph Stern, who covers the courts and the law for us. Mark, thanks for joining.
S6: Hello. Hello. Hello. Happy Ketanji Brown Jackson day.
S1: It is indeed a day. And I guess we can start on the news that three Republican votes unexpected expected. I don’t know. I wanted to talk to you for one quick second about the vote she couldn’t get. Lindsey Graham one year ago, mark, senator graham voted for her and now has in fact voted against her because radical liberal groups support her and also shouting.
S6: Well, you have to understand that a year ago when Lindsey Graham voted for CBJ, he hadn’t yet learned that she is an ISIS recruiter. And, you know, now that he has learned that she is supporting the Islamic State’s effort to establish a global caliphate, he just felt that he can’t lend her his. Okay.
S2: It’s kind.
S6: Dahlia. It’s disgusting. It’s horrific. Lindsey Graham has actually walked the walk to some degree on past judicial nominees. Right. So he supported Sotomayor and Kagan. He propounded this idea that actually, as a general rule, senators should defer to a reasonable nominee. But for CBJ, he just decided to dive into the deep end of the crazy pool and as we all saw, spent those hearings screaming at her, accusing her of being soft on child predators and child pornographers and Guantanamo Bay detainees. And that is appalling to see. But I guess the only silver lining here is that it seems to have kind of repelled Mitt Romney, who a year ago did not support CBJ. And yet this time around has somewhat unexpectedly just sort of emerged and decided not to give a ton of interviews about this, not to go on the record explaining his vote, but just go down to the Senate floor and say, I and I think there’s a lot of power in that. And I think that it should be taken as a quiet rebuke to the shenanigans that Lindsey Graham put on throughout those hearings.
S1: And I don’t want to belabor this, Mark, but I do think we need to talk about it. We’ve both talked about it before and we’ve written about it. But to the extent that this became a spectacle of, you know, Dana milbank in The Washington Post, did the numbers, the number of times the words sex offender, sex predator, you know, sexual deviant appeared in this hearing is unconscionable. We talked on the last show a little bit about what it means to affix that slur to a judge who, of course, has nothing, nothing on her record to suggest as much. And in two short weeks now, we’re hearing that Mitt Romney is also a pedophile and a sex offender. Am I just for the record, according to Twitter, I guess I want to ask you, my sense of the thing is that Judge Jackson is one of the most popular Supreme Court nominees in modern history. Most of this seems not to have stuck, at least in terms of the general populace, but there’s a hard nut of Q and on crazy really. You know, I think Tom Cotton raving about defending Nazis at Nuremberg. There’s a really substantial, very, very dangerous piece of work here about all Democrats are harming children. All Democrats exist to sell children into sex slavery and to groom them for abuse. And I guess I can’t quite walk away from this hearing without saying, well, on the one hand, it feels to me as though the stink of that will largely be left behind in that Senate chamber. There is something to be really watchful about this is that the new normal is every single Democrat, every judge put forth by a Democrat is going to be treated as though they are themselves a child sex offender presumptively. Right. That’s where this goes.
S6: Yes. But it’s also not just about judges. Right. We’re seeing this more broadly where states like Florida are passing these anti LGBTQ laws that are rooted in the canard that gay people and trans people groom children, recruit children, molest children, do horrible things to children. All, of course, absolute nonsense, extremely offensive, homophobic, transphobic. But it is working for them, or at least they think it is, and they have decided to deploy it everywhere they can. So the CBJ hearings felt to me. Almost like the culmination of a years long crusade on the far right that has moved closer and closer toward the center of the right, to the extent it exists today, to smear opponents as pedophiles, as child predators. And unfortunately, CBJ had to sit there and just take it and listen to the slander directed at her by these loathsome men. And there’s nothing she could do. She understood that she just had to remain quiet. And that shows a deep sickness and our political system and specifically in the Republican Party that is not going away. It is here to stay quite clearly. You know, we should definitely celebrate that this was a bipartisan vote, but it was still only 53 senators, only three Republicans crossed party lines. I really believe that some others who might have been on the fence, people like Pat Toomey, are afraid of being called pedophiles on Twitter by people like Marjorie Taylor. GREENE And so this line of attack as disgusting and obviously slanderous as it is. I do think that it has downstream effects on the Republican Party and it makes Republicans less likely to stand up for what they know is right because they just don’t think it’s worth being called a pedo on social media every single day for the rest of their lives.
S1: It’s such an important point, Mark, and I think it dovetails with the conversation we had on the last show about the Clarence and Ginni Thomas situation. Insofar as there’s a way in which this is so almost comedic, so outlandish, so over-the-top. I mean, when you actually have people calling Mitt Romney himself a pedophile, it’s so absurd that it’s easy to say the Republican Party can’t possibly jump on this bandwagon. It’s not the jumping on the bandwagon. It’s the refusal to jump off. Yeah.
S6: Yes, absolutely right.
S1: I want to talk for a second about news from the Supreme Court, because it was actually kind of a newsy week. And I want to start with a kind of surprising case penned by Justice Brett Kavanaugh for having to do with the Fourth Amendment and malicious prosecutions.
S6: Yeah, this was a bit of a sleeper case that I guess, to his credit, Brett Kavanaugh decided to turn into a pretty big one. So basically for many, many decades, federal courts have recognized this Fourth Amendment claim that’s called malicious prosecution, which basically means that police or prosecutors or both filed charges, criminal complaints against an individual with no basis to believe that they actually broke the law. You know, bad faith, criminal complaints that resulted in a seizure. So an arrest, imprisonment being put in jail, that kind of thing. But the Supreme Court had not ever recognized that as a constitutional claim before this week. So the court had taken a bunch of cases where it was supposed to decide whether or not you could sue cops or prosecutors for a malicious prosecution. And then they fizzled out. The court kind of punted or splintered really badly. And this case was not teed up as the big one. It was teed up as a relatively minor case about a pretty small question of law. But Justice Brett Kavanaugh, joined by five others, decided to make it the case in which the Supreme Court finally put its foot down and said, actually, yes, the Fourth Amendment guarantees a right against malicious prosecution if cops and prosecutors file charges against you knowing that they are nonsense. If they lie in the process of trying to arrest and jail you, then they are violating the Fourth Amendment and you can sue them for damages. And that’s a really big deal because this actually happens quite frequently and it happens in the context of this particular case where basically cops wrongly accused somebody of doing something bad and they break the law in arresting them. In this case, they burst on this poor man’s door. They tackled him to the ground. They handcuffed him on the basis of charges that were clearly untrue. And then the cops turned around and charged him with more criminal activity and said that he had obstructed their police work and tried to assault them. And he was like, Wait a minute, I didn’t do anything wrong at any points. Why am I being hit with all of these crazy charges? And in this decision, Brett Kavanaugh said, Yeah, that’s unconstitutional. Actually, you get to go to court and argue that all of that stuff was unconstitutional and the police can’t just blame their victims, claim that they broke the law and got away with it. So that’s a big deal. It’s a pretty big Fourth Amendment case came out of nowhere. But, you know, we don’t get much good news from the Supreme Court these days, so we ought to savor it when we do.
S1: So, Mark, just to put the finest possible point on it, you said Kavanaugh and five others. It’s the three liberal justices, John Roberts and Amy Coney Barrett joining with Brett Kavanaugh and Justices Alito, Thomas and Gorsuch dissenting. Lest one say that means that yet again, we have this moderate bump. Center of the court where Kavanaugh, Barrett and the chief justice go to play. Want to talk for a minute about the Clean Water Act, which suggests not so much.
S6: Yeah. So, you know, we got this kind of good news on Monday and then we all woke up on Wednesday to very bad news, which is that the court issued a shadow docket order without a lick of reasoning. I think we’re all used to this by now saying that essentially it would revive this Trump era EPA rule that drastically reduced the ability of states and tribes to protect their own water supplies, to protect their own environments, to prevent major energy companies from building pipelines and coal export facilities and other destructive projects that would harm their water. And this was a very bad rule when it was issued, it immediately led to a ton of confusion and disarray. It dramatically heightens the odds that people will be poisoned by contaminated water. And the Biden administration has said it’s going to repeal it. In the meantime, a federal judge blocked it and the Supreme Court by a 5 to 4 vote just stepped in and said, oh, no, you won’t. And revived this rule, sort of made it the law of the land again, even though this administration does not want it to be. And I think the most notable thing about this decision, like, obviously, a Clean Water Act is important. Most people don’t follow these cases. But Chief Justice Roberts dissented here. And it’s always worth noting when the chief dissents with the liberals in these shadow docket cases. And he signed on to Justice Kagan’s pretty remarkable dissent here, accusing the majority of abusing the shadow docket, although she calls it the emergency docket, because obviously Roberts does not agree with calling it the shadow docket. But Kagan says, like, you know, these five ultraconservatives are abusing the shadow docket in order to issue these merits decisions without full briefing, without oral argument. And that is bad for the court and bad for the country. And in previous cases like this, Roberts has written separately from the liberals to say, Yeah, yeah, yeah, you know, I might agree with you on the merits, but I don’t think we should be abusing the process this way here. He just signed on to Kagan’s pretty vehement dissent. And so I think that the five reactionaries are driving Roberts away from them with this shadow docket chicanery. Whether that will produce any meaningful, substantive rifts is yet to be seen. But it is noteworthy that, you know, we say this is a63 court a lot. That’s obviously true for the most part. But Roberts is staking out some territory here as a genuine moderates, at least on on procedure and on following the rules. And when Chief Justice Roberts is the moderate on a courts, you know that we’re in trouble.
S1: Right. And this, I think, dovetails with conversations you and I have had in the past, which is that Roberts cares deeply, not just about procedure, getting things right, but also when things look appalling. And this is one of those cases where things look appalling, because just a few days earlier, Amy Coney Barrett giving a speech said that, you know, Americans shouldn’t see justice as results driven and that what they should just do is just, quote, read the opinion and then they would know that it is not political at all. And of course, the problem with the shadow docket is there’s no opinion, right?
S6: I mean, it’s just incredible. Imagine the gall it takes to say on Monday in a speech at the Ronald Reagan Library. Oh, you know, just just read the opinion. Americans just go out there and read our opinion. And then you’ll see that we’re not, you know, just results driven policymakers. And then on Wednesday, two days later, 48 hours later, less than 48 hours, she joins this pretty major decision, reviving a zombie Trump rule without even bothering to explain why not not even a paragraph this time. That is an incredible amount of arrogance, but that is the kind of arrogance that unfortunately, I think life tenure facilitates and incentivizes.
S1: And I guess we can leave on this question of I was really struck, Mark, and I wonder if you were similarly struck by the extent to which the fact that this happened on the shadows emergency docket really was a factor in the reporting. When this came down on Wednesday, I thought I could sense a real shift even from last September, when we were writing about SB eight and trying to explain why these things shouldn’t happen without explanation and without meaningful time to, you know, brief and argue these cases. I felt a tonal shift there, at least in the media. Am I reading too much into that?
S6: So I agree. That was really front and center in a lot of the reporting on this, which I think is great and importance. I do think it maybe this is too cynical. I apologize to any of my friends in this. Go to press fresco earlier. I kind of think that SCOTUS is shooting itself in the foot by issuing these shadow docket orders at all kinds of crazy times. I mean, you know, the Texas one came down around midnight. This one came down on Wednesday morning when nobody was expecting anything. And I think that if they just released them in a more orderly way, even if they just announced them a few hours in advance, then it would seem less chaotic and the press corps could prepare for it, but instead they just drop them willy nilly. And I really do think that even if just on a subconscious level like that, makes the press corps really cranky with the justices and really irritates them and drives home this broader problem of sort of chaos and lawlessness when it comes to rendering these hugely important decisions without an opinion, without a neutered vote, without a signed author. So whatever the reason, this is just my speculation. I am very glad to see my colleagues in the press corps sort of join the chorus of complaints about this because it is just not how a real court operates.
S1: And to that, I guess we add the Amen chorus, which is at the same time, it’s striking that even when you and I spoke last, we were in a frenzy of talking about reforming the Supreme Court ethics rules. And maybe it shouldn’t be the case that the wife of a sitting justice is texting with the chief of staff in the Trump White House. Almost silent on that front in terms of we can be as mad as we want, but it doesn’t feel like the energy for meaningful, meaningful reform of the court, not just in terms of the ethics rules and the mandatory recusal rules, but also in terms of the kinds of procedures you’re describing that might lock in a little more, I don’t know, coherence and clarity and transparency. It just feels as though we’re spitting into the wind. We can complain and complain and complain, but there doesn’t seem to be tell me if I’m wrong. An immense amount of energy despite shadow dockets that are now reported as shadow dockets. Even if Justice Kagan, to her great credit, is calling it the emergency docket. But it just feels as though the massive, massive lift of structural reform on so many of these questions is just it’s fleeting. These conversations, they don’t last. Right.
S6: It’s so challenging to keep the public’s attention on the Supreme Court, to keep DC’s attention to keep Congress’s attention on the Supreme Court. This stuff with Ginni Thomas was a huge opportunity. I do think that Democrats tried to move the ball admirably, but now it’s like, you know, just not that many weeks later and it’s largely disappeared from the news. I think you wrote a great piece about this that expresses my views. Exactly like we have a real problem keeping our focus on the most powerful branch of government and the least accountable branch of government. And if learning that one spouse of a justice is a Q and on believer, true believer conspiracy theorist all the way down. If that can’t keep people’s attention on Supreme Court ethics for more than a week or two, then we have a real problem. And I struggle to see how Democrats are ever going to gain the momentum necessary to push some of these reforms through.
S1: Mark Joseph Stern covers the courts, the law, so much else for us here at Slate. And Mark, I don’t know about you, but I’m kind of getting to the point of the year where I’m just carbo loading for the next couple of months because it’s going to be a rollicking, rollicking time between now and the end of June. Yeah.
S6: Every day is a good day to carbo load with this Supreme Court Dahlia.
S1: Or as my husband says, Mark. Drink all the water you can now while you still know it’s clean. Thank you, Mark.
S6: Thanks, Dahlia.
