Why Are Republicans Upset About Corporate Free Speech All of a Sudden?

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S1: This ad free podcast is part of your slate, plus membership

S2: warning, if you will, to corporate America has to stay out of politics.

S3: I mean, if we were playing roulette, it’s as if corporate spenders are betting on red and black at the same time. But in our political system, they’re betting on red and blue. And for me, that is worse.

S1: Hi and welcome back to Amicus. This is Slate’s podcast about the courts and the law and the Supreme Court and the rule of law. I’m Dahlia Lithwick and I cover these things for Slate. And this week saw a whole lot of action at the Supreme Court blockbuster ruling for Google in a longstanding fight with Oracle about whether Google committed copyright infringement when it copied little bits of programming language to build its Android operating system. The court also got a lot of attention when Justice Stephen Breyer delivered a speech at Harvard on Tuesday night suggesting that the justices are not political at all and that probably the courts shouldn’t be expanded.

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S4: Indeed, what I’m trying to do is to make those whose initial

S3: instincts may favor important structural change or other similar institutional changes, such as forms of work.

S4: Bakkie think long and hard before they embody those changes in law.

S1: And the week ended with Joe Biden signing an executive order that will create a commission to study questions around structural court reform. Later on in the show, Slate plus members are going to have access to my chat with Slate’s own Mark Joseph Stern about the slightly worrisome roots of originalism as a constitutional theory and about Clarence Thomas A. big tech rampage at the court this week, something we wanted to button down on this week’s show is this curious connection between the court, corporate speech, corporate speech rights and the Georgia boycotts. We’ve talked a whole bunch about the big omnibus vote suppression bill passed in Georgia last week, but we wanted to think a little bit more clearly about what connects the boycott’s Citizens United corporate speech, corporate money and the court. And to do that, we have turned to Charra tourists Belleci, who thinks and writes really brilliantly about money in politics. Charra is a Brennan Center fellow. She’s a professor of law at Stetson University College of Law, where she teaches courses in election law, corporate governance, business entities and constitutional law. Before she went over to Stetson, Charra was counsel in the Brennan Center’s Democracy Program, where she provided guidance on money in politics and the judiciary to state and federal lawmakers. Her most recent book is called Political Brandes. It’s an exploration of the legal framework for the use of commercial branding and advertising techniques in presidential political campaigns. It was published in Twenty Nineteen Charra. Welcome to Amicus.

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S3: Thank you so much for having me.

S1: I really wanted to have you on for a long time and somehow the gods offered us Georgia and Boycott’s and Mitch McConnell talking about corporate speech this week. And I think if we could just start with Georgia even before we get to Georgia. Twenty twenty one. You just wrote a pretty deep dive historical piece examining the long, long, long history of voter suppression in Georgia. Jim Crow, race based vote suppression. It goes way back to the end of the civil war before the 15th Amendment was even adopted. Can you just give us the lowlights of what you were unearthing in that historical dive?

S3: Sure. So I’ve been working on a bigger piece for NYU Law Review about reconstruction. And one of the really strange artifacts I found was this history of what had happened in Georgia right after the Civil War. So what I found is that Georgia, even before the 15th Amendment, was adopted. So the 15th Amendment is what guarantees the right to vote to black men. And even before that, we had elected officials, black elected officials in the state of Georgia. So they are elected in 1868. And almost immediately, the white members of the legislature turn against these three elected black men and kick them out of the legislature. And one of the ways that they were able to kick. Them out was they said that they could not vote on their own expulsion and it took federal intervention to get those elected black officials back in their seats in the legislature. And I think that context is important here, because I think it’s easy to think that the voter advocates today are overreacting or they’re being ridiculous or, you know, what does it matter whether it’s this many hours you can vote or that many hours you can vote? And I think what a lot of people who know this history will say is we have seen people completely disenfranchised for decades in this very state. And so when we see you creeping up to that line and starting this process, we don’t want to relive that again. And I think that is the spirit in which protesters have addressed these changes to Georgia’s voting laws.

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S1: So let’s talk about how cynical you are about corporations, because I’m trying to ferret it out from what you’ve been writing, and I feel as though you and I are a little bit living on that same theme of being, in some sense happy that someone is drawing attention to what’s going on in this huge omnibus bill in Georgia, but also pretty darn cynical about CocaCola motives and Delta’s motives here. And so let’s start with and I think you wrote about this just this week, they turned on a dime, Delta and Coca-Cola. They initially didn’t seem to have much of a problem with these laws. And then you note, you know, 72 current and former black executive from a whole bunch of corporations condemned Georgia law. And then, boom, we’re hearing Korla and we’re hearing Delta saying this is appalling. And I think I can’t tell if, as you write about that, you’re saying and that’s a good thing or, oh, my God, these freaking hypocrites, they’re just doing this to perform some kind of corporate conscience. So how cynical are we really?

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S3: Well, when you think about corporate influence in politics, it’s very heterogeneous. Number one, corporations themselves are very different. You have everything from a mom and pop store that is a tiny corporation, everything to a multinational corporation which is omnipresent. And then somehow you can’t get them legally anywhere, which is one of the things that I’m keeping an eye on at the Supreme Court right now. So if we’re speaking about corporate power, there’s a case pending before the Supreme Court, which is called Nestlé vs. Doe. And in this case, Nestle is arguing that they can’t be reached for human rights violations abroad precisely because they are a corporation. And I think they are about to win this argument at the Supreme Court, which is sort of horrifying. So you have that strain of law which is excusing corporations from the responsibility that a normal human being would have if they had conducted themselves in the same way. And then you also have the Citizens United line of the jurisprudence, which allows corporations this ability to spend an unlimited amount of money in our politics. There’s a difference between federal election law and the election law in each of the 50 states. So at the federal level, we have the Tillmann Act, which prevents a corporation from directly giving to a federal candidate out of their corporate treasury. And so when you’re talking about even corporate spending, it is sort of different whether you’re talking about federal elections or state elections in in about half of the states, corporations can give directly to candidates for office, like who is going to run for your governorship or who’s going to be your attorney general if your state elects your attorney general in Georgia. That is one of the states that allows corporations to give directly from the corporate treasury to candidates for state office, including their legislature. So there is this difference in law. So at the federal level, what you get are corporate PACs. So corporate PACs are made up of individuals who are related to the corporations. So typically they are the officers and directors and employees of a particular corporation. And those human individuals give money to the corporate PAC and then the corporate PAC spends in a federal election. And then the third way that corporate money can get into our elections is post Citizens United. There was another case called Speech Now, which was actually a circuit court decision. But the circuit court decision in speech now cites to Citizens United for all of its reasoning. And under that case, that is what created a super PAC. So with a super PAC, we have a PAC that is spending in federal elections. And under that ruling, they are allowed to gather and money from unlimited sources, including from your local billionaire, your local labor union, your local multinational corporation. And then they can spend an unlimited amount of money so long as they do it independently of candidates and political parties. So those are the three main ways that corporate influence can get into our political system. And corporations are heterogeneous in how they use these avenues. Some use just spending through a super PAC. Others will do all three. And I think it’s worth noting that the reason that Coca-Cola and Delta and other Georgia companies were targeted by voting rights activists wasn’t just that they were Georgia companies, which indeed they are like if you’ve ever flown through Atlanta in the Delta hub, Delta has a huge footprint in Georgia. But the reason that they were targeted by voting rights activists was that these particular companies had helped fund the sitting governor of Georgia and had helped fund the very authors of this regressive voting rights legislation, which is now law. So they were focusing on these corporations because these corporations had a role in facilitating the election of these particular politicians and because you have direct spending from entities like Coca-Cola that then I think opens them up to the criticism and the. Threat of boycotts when the individuals that they have supported financially in politics then do some horrific thing. So whether it’s a bathroom bill or a voting rights restriction, that corporation is this is sort of permanently on the hook for the behavior of the people that they have supported financially.

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S1: Right, and I guess that’s the paradox is and I think you noted this in one of the pieces you wrote this week that Coca-Cola gave to Brian Kemp’s gubernatorial campaign, that they contributed to the state representative, the Republican state representative, Barry Fleming, who authored the legislation. But, you know, Coke gave money to both sides in Georgia, both sides in about equal amounts. So did Delta. And so there’s a way that they immunize themselves. Right. They’re not actually giving money to Brian camp. They’re just it’s a wash they’re giving to both sides. And I think your point is that no, actually, you can give to both sides, but if one side does something truly horrifying, they have to be on the hook for that. So I think the hypocrisy of this. Well, you know, we’re not doing anything bad since we give to everyone gets called out, even though that’s the game plan, is that it never appears that they’ve done anything wrong because they’re supporting everybody equally.

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S3: Yeah. I mean, if we were playing roulette, it’s as if corporate spenders are betting on red and black at the same time. But in our political system, they’re they’re betting on red and blue at the same time. And for me, that is worse. I’m sort of not a fan of the role that corporations have in funding our politics. Now, I realize most of our political campaigns are privately financed, which means you have to get the money from somewhere. And this is one of the reasons why I support public financing. I think there should be a alternative to having our representatives in Congress dial for dollars 30 hours a week. That is the recommendation that both the DNC and the RNC tell our freshmen members of Congress that if you want to keep your seat, you have to get on the phone and beg for money 30 hours a week. It’s taken on a life of its own. And there was this great dissent in Buckley vs. Vallejo, the original case from the 1970s where the Supreme Court creates our current campaign finance law. They are reviewing the federal Election Campaign Act, which is a post Watergates reform, and they could tear that legislation to pieces. And there is this dissent from Justice White, and he talks about the impact that the Supreme Court is going to have on federal campaigns going forward. And he was talking from a position of experience because he had helped run JFK his election in 1960. And he said, you are putting our candidates on a fundraising treadmill, which I think is sort of the perfect metaphor. It’s like it’s never ending. You never win the race. It’s just continuous. And I think this is particularly true of the members of Congress who are in the House because they’re up for reelection every two years. And the average winning expenditure by a candidate is two million dollars. And they have to raise this in hard money chunks. So they are perpetually talking to the donor class and literally begging for money so that they can run their next campaign. I have to believe that there is a better way of doing this.

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S1: And you’ve also written and I think it’s really worth flagging, that even when corporations get to look virtuous as they are now, I guess poised to do in Georgia, after a little while, things shake down and revert to normal anyway. And the example you write about is all the companies that were horrified after the capital riot on January six and all the corporations that were like, oh, no, now we can’t fund anybody who is deliberately trying to nullify the election and the ways in which the Chamber of Commerce is already saying, OK, come on back, the dust has cleared and they’re all going to pony up again. And so even if you have a corporation that is trying to do something that looks as though it’s moral and ethical, at some point they need to pay to play and they’re back in the game. Right.

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S3: I think this is an open question, and I have to say, as a former Senate staffer, the events of January six, twenty twenty one really shook me to my core. It made me realize that our democracy was really on a knife’s edge that day. And one of the things that I’ve found dismaying in the ensuing few months here is that people seem to already be forgetting that deadly attack on the US Capitol on the day that the Electoral College votes were to be certified, thus making it official that Biden would be the new president. And I feel like we haven’t grappled with that. And so I hope that No. One, we get a 9/11 style truth commission that looks into this and really examines it so that we don’t repeat this mistake. The other thing that I’m very worried about is I think there’s just sort of this assumption that the rioters themselves will all face criminal consequences. And I guess my worry is that it’s going to be like the the Bundy’s out west. They were very clearly, in my mind, guilty of, you know, occupying a federal office at the very least. And they weren’t convicted of that. So I am worried that when we have these rioters in front of juries that you never know what a jury will do, especially if the excuses I thought my president was telling me to do this. So I think the question of what corporations are going to do in terms of dealing with the Republicans who objected in their role as either a House member or senator, I think that’s an open question. And then I think we really don’t know how this story is going to end. We don’t know if the people who did the rioting will get any legal consequences and how the public will perceive this in the long term. I mean, I think if we go back a couple of years, a lot of us had high hopes for what we thought things like the Muehler report would mean to the to the public and to accountability and all of that. And it was sort of a huge disappointment because I think the bet was made on the Trump side that people would not read hundreds of pages of a legal document. And I think he was right. It didn’t get read. It didn’t get digested, it didn’t get understood or explained. And so there were very few consequences for things around the 2016 election. So when you say, like, how cynical are you about corporations? Incredibly cynical. I’m sort of at this point cynical about our entire enterprise here because we’ve had these various tests of our legal system and our expectations and norms in our democracy and sort of over the past four years, most of those, in my estimation, have been just utter failures, like the idea that you could have a sitting president take unconstitutional moments for all four years. And it goes from a case that a court in New York says isn’t ripe to at the end of the Trump presidency. The Supreme Court saying that it’s moot like that, it’s crazy. There’s no accountability anywhere. And it’s just so frustrating as someone who spends her days working on political corruption, corrupt politicians and trying to make our democracy stronger. And I I am at least encouraged that H.R. one got through the house. But, you know, am I holding my breath for the Senate to do the right thing? Probably not.

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S1: It’s so empowering to not be the most desperately honest person in dialogue. Usually it’s me, and I’m so delighted to have you be sort of as broken as I am. I do wonder and then I will stop asking you triggering questions because I do share I think your sense of zero accountability means this all just happens again. But I want to ask one more thing about the the corporate boycotts in Georgia, which is. A really interesting fracture between Stacey Abrams, on the one hand, faith leaders and organizers on the other AOC has weighed in these questions of who corporate boycotts really harm. And I don’t know if there’s a definitive answer. I know that Stacey Abrams has been really clear and I remember this going back to the Georgia boycotts in twenty nineteen about the abortion bill that passed there, that that her stance has been pretty consistently. These boycotts hurt the poorest and the most vulnerable, take, you know, millions of dollars out of the pockets of the people who need them the most. You know, Coke is not going to suffer, but my constituents are suffering. And I think that’s descriptively accurate. Put aside Brian Kemp calling her a hypocrite. I actually think she’s been very consistent on this. But it does raise this question for me again of our corporate boycotts. If Stacey Abrams is right, are they actually even more empty performance because they actually do harm?

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S3: So I guess the thing that I would say about boycotts is that they are as American as apple pie. You might think of the way the nation started with Bostonians boycotting British Tea. Now, they took it a step further by actually destroying property, which I do not support. But in general, I think the power to boycott is a very important one. And the Supreme Court itself has protected political boycotts under the First Amendment. So the same part of the Constitution that empowers the court to give more of a voice to corporations and Citizens United in Clybourn Hardware. The court does the same thing for political boycotters, which I think is important to realize because boycotters, for whatever reason, they really get under the skin of otherwise reasonable people. And I think it’s partly that it goes to the power of the purse and the power that consumers have over our society as a general matter. And you see this with Coca-Cola over the years. So, for example, in the early 2000s, Coca-Cola was part of a group called ALEC, the American Legislative Exchange Council. And Alec was one of the sources of really strict voter ID laws. So what ALEC would do is it would hold these lavish conferences and lawmakers from around the country, from state legislatures would come to the ALEC conference. And the members of ALEC are also corporate members. So you would have meetings where representatives from the Koch Industries and Coca-Cola and other huge American companies would sit in a room with state lawmakers and then they would have sort of a menu of legislation that the group was pushing. And one of the things that they were pushing was restrictive voter ID. And Coca-Cola got in trouble with this when it was revealed that Coca-Cola was in this group and that the group was the source of these regressive voter ID laws. And so activists like Color of Change threatened to boycott Coca-Cola if they continued their relationship with Alec. And you didn’t have to ask them twice. They almost as soon as the threat of the boycott went into effect, Coca-Cola was like, oh, we’re out of Alec. Sorry, no, no, no, do not boycott us. And I think that sort of speaks to the different structures of corporations. So Coca-Cola is very sensitive to boycotts because they are literally public facing like they produce these beverages and then individual consumers buy those beverages. Different corporate structures are not as exposed to public customers in the same way. So if your business model is you know, we do back NIIT for other corporations, you’re much less subject to a consumer boycott because consumers probably has no idea that you really exist or what your product is or how you would boycott it. You’d have to be another business in order to boycott a business to business type offering. But anyway, Coca-Cola is extremely exposed to the whims of the public because they’re literally selling their product directly to each of us as consumers and. In that way, I think that the pressure that boycotts or even the threat of boycotts can bring to bear can be enormously important because our corporations have been given so much power in our politics. So I think what activists have been doing is they’ve been realizing, you know, my letters to my congressmen or my letters to my senator or letters to the president are getting zero results. Let me try another pressure point. And one of the pressure points that they’ve been trying is, OK, well, let’s see who funds this politician. Let me talk to that person and see whether putting pressure on the funders has an impact on the behavior of the elected official.

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S1: So actually, that answers my next question, which is in some sense, you know, you’ve talked about the storied history of the civil rights boycotts. And Dr. King, this is really different from organizing people to do boycotts. This is organizers pressuring corporations to change their conduct. So in a sense, that’s also kind of a marker of our age, right? I mean, this isn’t, you know, butts in the street. This isn’t skin in the game necessarily. I’m in no way saying that isn’t happening on the ground in Georgia. But I am saying this is a really efficient. What color of change does is really efficient, which is just say we’re going to kneecap you with public opinion until you as a corporation stop doing dumb stuff. And that is new, right?

S3: Interesting way of putting it. So, for example, the boycott that was at issue in Clybourn Hardware was a boycott by black members of very tiny towns in Mississippi. And the demands of the boycotters were essentially twofold. One was they wanted more respect from the local police so you can find their list of demands. And some of it is that they wanted to be called sir or madam instead of boy or girl by the local police. And then another demand was that local merchants should hire black clerks and they boycott basically all of the businesses in the town because they thought of the businesses in the town as causing essentially both problems, that they couldn’t get jobs. And when they were harassed by police, it was completely demeaning. And this boycott went on for years to the point where at least some of the businesses claimed that they literally went out of business because half of their patronage disappeared and disappeared for a really long time. And so what the individuals in this little Mississippi enclave did is they sent one of their own to the state legislature. So that person then convinces other members of the Mississippi legislature to change the law and to essentially make this type of boycott illegal. They basically call it a restraint of trade. And that law is retroactively applied to the boycotters and not just to the boycotters. It was applied to the NAACP who had had a role in organizing the black people in the town in the first place. And so when a judgment comes down from the Mississippi Supreme Court enforcing this law against them, the judgment is a joint. And several, as in every one, all of the defendants are on the hook. So all of these poor black people from Mississippi and the NAACP and the judgment was so large that there was a risk that the NAACP was about to go bankrupt because of this loss in Mississippi on this like restraint of trade boycott theory. But when it gets to the Supreme Court, the Supreme Court, I think, does the right thing and says we have to put a line in the sand between violence, which is not ever acceptable, and peaceful boycotts which have a political purpose, which are protected by the First Amendment. But if you think about the original request, it was both to the government and to local business owners. And the request was sort of, I think, very similar, like treat us with respect. That was sort of the basic request that started this whole consternation and conflict between individuals in this one small town in Mississippi.

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S1: It’s funny because I was looking at the, you know, the faith leaders in Georgia who are meeting with executives at Coca-Cola and Delta and some of their assets are really similar, you know, like they’re saying support H.R. one, support the John Lewis, act like support. So it is interesting how, again, it’s just scaling up some of the Cleveland hardware asks, which is just, you know, treat black voters as though they are the same. And it is interesting that it’s it’s just a scaled up version of the same tactic. I feel like we are going to have to talk about Citizens United. I’m worried that it’s going to make you even sadder than you already are. But I do think inexorably we are pulled to talk a little bit about sort of how we got here. And you’ve talked a lot. I think about the climate of dialing for dollars and the ways in which, you know, if you are a congressman, you are beholden to these people who you spend your entire day servicing and pacifying and asking for money. I was just looking at a Brennan Center report by Daniel Weiner saying that essentially now there’s this tiny group of people post Citizens United that wield more power than at any time since Watergate. And this is the problem of Citizens United. It’s historic wealth inequality that there’s just a handful of huge, huge donors and nobody else. And that’s who the government works for. I mean, the idea that this is the source of our freedom is like stuff out the nose. Funny to me, how did we get to the place where corporate free speech of voting is where our hopes reside?

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S3: So corporations have a number of ways that they can influence policy. One is spending in elections so that they get their candidate of choice elected and that person may be more ideologically aligned with some of the goals of that corporation. So one of the goals that might cut across a lot of different corporate structures is the desire for what they would call tax efficiency. I think the rest of us would either call that tax avoidance or tax evasion. But that desire to have fewer taxes owed to the US government, I think animates a lot of different corporations. And so one of the things that you saw in the lead up to the twenty seventeen Trump tax cut was a literal donor strike by big Republican donors. And what the big Republican donors said and said in the press so that no one could miss it was that if they didn’t get their tax cut, they were going to close their their pocketbooks and not give to the Republican Party or to Republican candidates ever again. Because what was the point of spending all this money to get these people elected if they couldn’t follow through and provide the tax cut that they were demanding? And lo and behold, you get the tax cut that they were demanding and the corporate tax rate drops dramatically by 40 percent in that legislation, which becomes law. So I think that is sort of more typically what we see with corporate spending in politics. It’s to elect people who will be responsive in that way. The other thing that you see with corporations is this betting on both blue and red at the same time. So no matter who is elected, they will be beholden to a corporate donor. And and then finally, there’s much more money that is spent on lobbying than is ever spent during elections. And you could think about why that is part of it is that elections are for a finite amount of time. I know it feels like it’s perpetual, but it actually is for a finite amount of time. The lobbying actually can be infinite. So, you know, whenever Congress is in session, lobbyists are in the halls pushing their client’s agenda in front of our lawmakers and trying to get the lawmaker to adopt the client’s position, which is often a corporate position. And so corporations have an enormous ability to shape what’s on the agenda of Congress by simply hiring a small army of usually lawyers to chat up every single member of Congress to make it clear exactly what would please that that corporate client. And lo and behold, you see it manifested in legislation that becomes law. I think one of the clear examples of that is the bankruptcy code, which is now just horrendous for people who are in debt and really good for credit card companies. Like it’s not by accident that that happens now with these social issues. I think that is much more complicated. I think the more that the customer base of normal consumer products is enormously diverse and, you know, mostly going to be located in urban and suburban places in America, those individuals are going to have a certain world view that is maybe not aligned with where the Republican Party seems to. Right now, now, it’s hard to know exactly what the long term impact of having Donald Trump as president will be over the long term, I’m hoping that that is more of a blip and not a foreshadowing of where we’re going in terms of politics and Republican politics. But I think there is a difference between the electorate that put Joe Biden in the office and the individuals who voted the other way. I feel like the chasm between those two choices was so epic and that is not, I think, terribly typical of our last decades of elections. I mean, I think there’s a reason why in 2000, Bush and Gore tied in Florida, the swing state, like there was not a huge difference. And if you go back and you look at the debates, the two of them had, they kept on saying, look, I agree with him, I agree with him. And it was not, I think, such a life altering, democracy altering question of like which of these two sort of middle of the road ish characters would become the next president. And and I so I I’m very worried about where American politics goes next. And strangely, one of the mediating factors may well be where corporate America’s head is, because I think a lot of corporate America has to think about a far more diverse customer base than the Republican has to think of in terms of a diverse electorate.

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S1: See, that’s so interesting because it maps on to, you know, a lot of the reporting that was done in Time magazine, I think in The New York Times that talked about the group of kind of good government groups, union groups and corporate groups that were organizing kind of in the shadows in the 20, 20 elections in all the ways in which behind the scenes, corporate America was not going to allow the country to crater into chaos. And again, you have this sense that corporate America, whatever we may think, has its finger on the pulse of do we want nihilism? Do we want, you know, January six riots like that, that is bad for business fundamentally, and that that is powering some of this. It makes me think of the Jane Mayer piece in The New Yorker where she just had audio of Republican leadership saying we can’t people really freaking like H.R. one, like they want to expand the franchise and they like to have good, good government and open elections and transparency. And the idea I think, that you’re floating that’s really interesting is that corporations are savvier about that than politicians are in some sense that they might be a harbinger of just sense of when nihilism becomes too much to tolerate. I don’t know if that’s if I’m overstating what you’re what you’re saying, but that there’s some hope there.

S3: I mean, one of the things that I tried to deal with in my second book, Political Brands, was the rejection of Trump by his former business partners. So when Trump announces that he’s going to run for president, he has this very odd rollout where, you know, it comes down the escalator and Trump Tower and then the next words out of his mouth are Mexicans are rapists. And the reaction from his former business associates was, no, no, no, this man does not speak for us. I think, most interestingly, Macy’s, which had had a long business partnership with Donald Trump selling his China, made ties to the public. Macy’s heard that one speech, his announcement that he was running for president and said, no, it doesn’t matter if we’ve had a relationship for a decade or more that we’ve made money selling your Trump branded products no more. That is it. And that happened with all sorts of different former business partners with Trump that they saw his racism in that opening speech and said, no, thank you. We have a customer base that we care about more than we care about you and. We are not going to be associated with this type of rank racism, and you saw it again after Charlottesville. So after Charlottesville, Trump sort of famously says there were good people on both sides, even though one of the sides included neo-Nazis and someone who rammed a car into a woman and killed her. And after Charlottesville, you had these presidential committees that were ostensibly for advancing the business interests of business in general and the CEOs who were sitting on its businesses that, you know, they were related to the White House. Both of his business council’s quit like all of them after Charlottesville. And the way that I read that is that each of those CEOs, including the CEO of Campbell’s, they had a brand to protect. They had a image to protect in the mind of the public. And Trump saying that there were good people on both sides in Charlottesville was just a bridge too far for them. And so while they were willing to, you know, they were on the council so that they couldn’t have been too upset with them in terms of what he had said before that. But when he seemingly endorsed or embraced or made excuses for all of that neo-Nazi nonsense, including the violence, that was too much for lots of corporations. And so rather than being on a White House business council, they all quit. And I think that showed some moral fortitude on the part of the individuals who did that. And it also, I think, just puts down a marker for what is acceptable and what is not acceptable behavior. So as we were talking about earlier, a lot of our norms came under a lot of crushing stress over the past four years. And I think one of the weird points of light in all of this was there were these instances like that where corporate leaders at least said, no, I am not going to be a party to this. And I think that’s actually important because to the extent that you didn’t hear that from, you know, members of the House, you didn’t hear that from members of the Senate, you didn’t hear that from cabinet members. Trump Cabinet members seemed to stay there like a lot of them there for the entire four years, like Devas and Carso the child, like they were there and said nothing about some of the abhorrent behavior we witnessed. But certain CEOs actually, I think, to their credit, did say something when it counted.

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S1: It does make me want to rip up my sense that I tossed at you early on in the game, that six months later we can’t remember which corporations they were and they can’t remember, you know, like there is a way in which so much of this feels really fleeting. I don’t want to let you go without talking about Mitch McConnell, speaking of Elaine Chao, because this was some next level stuff, right. This week, we had in the midst of these, you know, Major League Baseball and Coke and Delta, we had Mitch McConnell in a written statement on Monday deeming all of this bullying. And he says it’s jaw dropping to see powerful American institutions not just permit themselves to be bullied, but join in the bullying themselves. Our private sector must stop taking cues from the outrage industrial complex. He talks about American corporations behaving like a, quote, woak parallel government, and he threatens retribution that unless corporations just shut up and start donating dark money again, I will not continue to read Mitch McConnell at you. I wonder if you want to just talk briefly, if you want about how much this feels like it upends just the fundamental bargain of Citizens United, where under the guise of protecting corporate speech, we opened the Geiser and let dark money pour out. Now it feels as though he’s saying, hey, I didn’t mean it with a part of a corporate speech. Y’all shouldn’t be talking. Just write the checks. Am I it just the cynicism of Mitch McConnell is a little bit exploding my brain. So I wanted to give you the last word because it seems as though the thing he had been fighting really hard for, which is the dignity of corporations as quasi human entities that need to speak, seems to have taken a pie to the face this week.

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S3: So as a former Senate staffer, I have to say I have enormous respect for Senator McConnell. He has enormous stick to it unless he he’s a master of knowing Senate procedure and how to use it, bend it to his will to get his way. All of those compliments aside, he has an enormous amount of hutzpah to claim that corporations should just shut up when he has spent so much of his career making sure that they have an outsized voice in our politics. So when McCain-Feingold was going through the Senate, he claimed that disclosure alone would be enough. We don’t have to have these limits on corporate speech. And then he lent his name to a lawsuit challenging McCain-Feingold that went all the way to the Supreme Court. I think much to his dismay, the McConnell case actually stands for the proposition that limits on corporate political speech at that time were perfectly constitutional. Then after that, we get the Citizens United challenge to the very same law. And even though the court had ruled in 2003 that in the McConnell case, limiting corporate expenditures in politics was a good way to prevent corruption and the appearance of corruption. When you get to Citizens United, the same laws is being challenged. And the Supreme Court, after its forced oral argument and Citizens United, they order a second oral argument and then the Supreme Court itself changes the question in the case and they change it to should we overrule the part of McConnell that had limited corporate free speech? And the rest is history. The Supreme Court in Citizens United rules that corporations do have a First Amendment right to spend an unlimited amount of money in our elections. And almost as soon as this opinion comes out, Mitch McConnell gets on the floor of the Senate and starts deriding disclosure of money in politics. And it didn’t matter that this was a complete flip flop. If he ever since has been a champion of dark money and by dark money, I mean money that is spent in politics by the millions, but no amount of due diligence on the part of a voter or an academic like me will ever get to the bottom of where this money comes from. And a lot of this money, I presume, is actually corporate money. And the reason that I make that assumption is the biggest corporate political spender is the US Chamber of Commerce, which is a dark money conduit. And the members of the Chamber of Commerce are a bunch of corporations, but we don’t know which ones are funding the negative political ads that we see each political season. But McConnell has been a beneficiary of all of that corporate spending, and his super PAC has millions and millions of dollars from corporations in general and publicly traded corporations in particular. This is one of the reasons why I think that we need new rules at the federal level. We need better disclosure of money in politics. And I would go one step further and say that shareholders should have a vote on corporate political spending. This is how our cousins over in the UK do it. They allow shareholders to vote on corporate political budgets and that limits how much corporations can spend in the UK. And I think a similar restraint would be useful in the United States. I think unfettered corporate political spending doesn’t get us the results in the democratic process that we want.

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S1: Charteris SLAC is professor of law at Stetson University College of Law, where she teaches election law, corporate governance, business entities and constitutional law. She’s also Brenan fellow at the Brennan Center and her book, Political Brandes, was published in 2019. I want to have a really long conversation about disclosure. It’s going to have to wait. But I do think that that little window you opened at the very end where disclosure was supposed to be the solution for Justice Kennedy and Citizens United, and now we’re all opposed to disclosure. I think that’s the thing that we really need to be mindful of as we think about money in politics is where it’s coming from.

S3: Could I add one last thing?

S1: Please, please, please.

S3: I would encourage all of your listeners to if you care about money in politics or you care about our democracy, to call your two senators and encourage them to vote in favor of one.

S1: And that’s the Senate version of H.R. one the for the People Act Charra. It’s been so great having you. It’s you have unmatched ability to laugh and be super sad at the same time. It’s a gift. Thank you for joining us.

S3: Of course, we

S1: have arrived at the part of the show where Mark Joseph Stern, who covers the Supreme Court and the courts, state courts, all sorts of stuff for us at Slate. And I get to kind of gossip and occasionally dip into misery. But I want to point out, Mark, that our main guest, Charteris Belleci, has already dipped into his OK, and you can’t possibly out really out existential her. So the bar is very high. Welcome back. Thank you. To talk about the events of the week, we’re going to

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S4: talk about fun stuff, right?

S1: Yeah. Well, I think we should start with, like, the big news to the extent there is big news that came out of the court this week, which is Oracle, right.

S4: Google versus Oracle, the case that everybody didn’t know they needed but actually did because

S1: a million years old, good

S4: old Steve Breyer decided that he was going to have so much fun writing this incredibly wonky opinion that it reveals the side of him that loves reading bedtime stories to his grandkids and geeking out about computer code, basically. Right.

S1: Give us the background. This is this is not necessarily familiar to everyone. What’s what is the background of this case?

S4: Yeah. So basically what happened here is that Google copied I think it’s nearly twelve thousand lines of code from this Java program because Google wanted to let programmers who used Java work with its Android platform and Java would not sell the code to Google. And by the way, Java is now owned by Oracle. So when I say Java, I think Oracle, Oracle, Java. Right. You know, it’s one of those. And so Google is like, well, you know, if you want to sell it to us, we’re just going to take it and use it. And we’re going to hope that the courts allow us to do that. And if you if you don’t know a lot about copyright or fair use or tech, then that might sound kind of crazy. And in Clarence Thomas dissent, he does frame this as like highway robbery, you know, legalized theft, basically. But in reality, if you look at the briefs in this case, a really broad ideological array of groups were on Google’s side, including like the R Street Institute, like pro market pro competition groups, because they said, look, you know, code is not the same thing as a work of literature or a movie or some unique product of art. Right. Like code is something that is super collaborative, that is used to build new kinds of programs and interfaces and operating systems. And we have to let different tech companies build on each other’s code if we want to maintain robust competition in this marketplace. The way that Google used Oracle’s code was totally transformative. It’s not as if Google just stole this really important and unique product from Oracle Java and said, OK, it’s ours now. They just took this this these lines of code that Oracle slash Java had had built and said, now we’re going to do something different with it and we’re going to use this to build up a whole new marketplace that our users are going to love on Android and the Supreme Court. Thankfully, I think by a six to two decision with Barrett not participating, sided with Google in this case, and only Thomas and Alito dissented. And like I said, the majority opinion was by Breyer. And basically Breyer in this delightfully wonky opinion, says, you know, we understand that Oracle is angry. We understand why they want their code. But the reality is this was fair use. This was the heart of fair use. When we’re talking about computers and code, because it’s transforming something into a completely new product, that’s good for competition, that doesn’t actually rob Oracle of any market share market value, that’s sort of good for everybody, including consumers. And because it’s transformative and because it’s fair use, we’re going to bless what Google did here and we’re going to hand yet another victory to Google, which just keeps racking them up.

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S1: Now, you’ve hinted at this, but let’s let’s do it now. Clarence Thomas, Clarence Thomas and Big Tech. Yeah, you like to say Marc.

S4: So it’s interesting because this decision came down on the same morning that Clarence Thomas issued this really wild opinion, a bashing, big tech bashing social media companies. And I’ll get to that. But they are definitely connected. Thomas’s dissent in Oracle and his crazy opinion about big tech, because in Oracle, Thomas is sort of rejecting the view of, like all prominent scholars of digital stuff and fair use and saying, well, I want to stick it to Google. I hate Google. Google stole this code and I hate Google so much. And they should have to pay a ton of money. And it’s like Clarence Thomas, why do you hate Google so much? This is a very odd analysis. Then you turn to his opinion in the big tech case. So here’s the thing. The Twitter case is this case that we talked about a million times, which was about Trump blocking his critics on Twitter and the Supreme Court, to be clear, just turn the case away because Trump’s out of office. By the way, this was like a classic shadow docket move because the Supreme Court did was take, you know, take this case onto its dockets while Trump was still president, sat on it without doing anything for months and months and months. And then once Trump left office, said, OK, now this case is moot, we’re just going to dismiss it and get it off our doorstep, which is, you know, just sort of diffusing the bomb anyway. So Clarence Thomas supports that. He’s like, yeah, obviously this case is moot. Turn it away. But since we’re here and I’m here and we’re all having a great time, I’m going to tell you that I think social media companies represent a huge threat to liberty and free speech in America. I think the concentration of big tech and social media is a huge problem that this court hasn’t addressed. And in fact, I am going to spend all of my prior free speech jurisprudence, which has consistently favored the right of corporations to have full freedom of expression and consistently favored the right of businesses to decide what speech they will or will not host. And instead, Clarence Thomas says, I’m going to say that I think that social media companies might be more like common carriers, like a train or a tavern or public accommodations like a restaurant or a hotel, which would mean that the government can control them and can prevent them from regulating their own content and actually can force Twitter and Facebook and Google to host speech they don’t like and to sort of put that in in lay terms. Clarence Thomas thinks the government might be able to prohibit or limit Twitter’s ability to do content moderation, that it might be able to say, oh, you can’t ban the president or you can’t censor conservative speech. And, you know, you might think that for Clarence Thomas, that would violate Twitter’s First Amendment rights like we did Citizens United. We went through all of this for a reason. Corporations are people who have free speech rights. But Clarence Thomas says, in essence, no, I’ve sort of changed my mind here. When the corporations get big enough and I hate them enough, they have lost their free speech rights and they have to all turn into gabbin.

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S1: And I feel as though and I guess I should flag for listeners, we had kind of the precursor to this conversation with Jameel Jaffer. And that Twitter case was their case, the foundation. But I do feel like now we really do have to talk about the war on big tech. We could talk about Josh Holly. But I think I really want to talk about Ginni Thomas. Mark. Yeah, this is one of those one two punch moments.

S4: Yes. Because NBC Dylan Byers reported on Thursday that just five days before Clarence Thomas issued this wild opinion, completely reversing all of his prior stances on corporate speech in order to stick it to big tech. Ginni Thomas, his wife, a self-identified public figure and conservative lobbyist, blasted out an email urging her friends and associates to join a new influence network that is designed to combat social media censorship and the dominance of big tech and in particular, big tax alleged targeting of conservative voices. And this is, I think, probably the most. Explicit example yet of Ginni Thomas lobbying work and Clarence Thomas jurisprudence overlapping, it’s sort of like a crossover here because they are clearly both working on the same issue, the same conservative issue, reigning in big tech. And Ginni Thomas Blass out this email five days later, Clarence Thomas gives her arguments, gives her lobbying work a new legal sheen, a new patina of legitimacy by kind of endorsing her ideas in a published opinion by Supreme Court justice.

S1: And it’s such an interesting problem, Mark. I’m so mindful of the ways in which Marty Ginsburg and Ruth Ginsburg came to her first rate big gender equality case by way of his tax advocacy. Right. Then working together to litigate that case and briefing it together. And so I always get and you and I have talked about this probably not on the show, but privately before, how just fraught it is when you have these husband and wife litigation teams that are cooking up. You know, on the one hand, we certainly don’t ever want to pillory the spouses of Supreme Court justices. You know, I’m always thinking about Justice Brennan’s wife and how she had to just have no public facing life anymore because of some sense that she spoke for him. And so I’m always trying to pick my way through this thorny question of judicial spouses and advocacy. How do we how do we sit with this if we want to think about Ginni Thomas as a fully realized political agent in her own sphere and reconcile it with, you know, the Supreme Court sometimes suggested ethics rules about conflicts of interest.

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S4: Yeah. Which are generally sort of like, you know, non-binding guidance suggests justices ignore

S1: their advisory, even

S4: though federal law does say that that judges and justices are supposed to avoid the appearance of partiality in the interest of justice and the interest of public faith in our independent judiciary. And if Ginni Thomas were working for Facebook and there were a case that came to the Supreme Court, I’m pretty sure that Clarence Thomas would recuse himself, not because we’ve seen him push the envelope with this so much. But I really do believe, you know, if your spouse were literally working for a company before you, you would feel obligated to recuse. But what Ginni Thomas is doing is not really that different. She’s just sort of on the other side. Instead of working for Facebook, she is working against Facebook. She is attacking these social media companies and her husband is taking up the call and overlaps both substantively and temporarily. Right. Like the same week they launched their attack on big tech. And so I think the way out of this thornbush is to just remember that loadstar here, the appearance of partiality and judge’s duty to avoid it and ask what a reasonable observer would think when presented with this fact pattern. And I think there’s a really big difference between, oh, somebody’s spouse is either a private person who happens to belong to some organization that might touch on substantive issues that come before the court or the spouse is a public person. But she does some kind of other advocacy. And, you know, it’s not really related to the law, to these cases. Those are in a different bucket. I think this is a special bucket of conflicts, of interest, of ethical problems, where any reasonable observer looks at it and says, wow, there’s a problem here. It really looks like these two are pursuing the same goals, one of them through conservative paid conservative lobbying and the other through his seat on the United States Supreme Court. And if if a party before the court raised that issue, I don’t think Thomas would recuse because he just never does. But I think that they would be justified. And I think it’s just categorically different from broadly imputing a judge’s spouse’s views onto the judge, him or herself.

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S1: Let’s talk for a minute about a piece you wrote this week on the origins of originalism, partly because it really flashes back to the conversation in the main show about Jim Crow in Georgia. But do you want to talk a little bit about what we are now learning about the sort of intellectual roots of this theory of very neutral and balls and strikes originalism?

S4: Yeah. And so this was an interview I did with Calvin Terbium, who is a PhD student at University of Chicago who has been doing extensive research on the origins of originalism for years. He interviewed Ed Meese. He has been going through endless archives and identified a lot of new material that really proves beyond a shadow of a doubt. I think that originalism as we know it. A day arose in response to the Supreme Court’s decision in Brown vs. Board of Education outlawing racial segregation in public schools and the theory of originalism as we talk about it, as we know it, modern originalism was designed to provide justification to oppose Brown and to support segregated schools. And the intellectual origins of this theory all point in one direction. You know, as soon as Brown vs. Board of Education came down, you saw conservatives in the beginning, more fringe conservatives or sort of media conservatives building up this idea. Oh, well, the framers of the 14th Amendment never wanted to desegregate schools. You know, this totally goes against what the framers wanted. And then, as Calvin illustrates in his article and in our interview, that theory jumps to the academy first jumps to sort of racist lower court judges and racist semi obscure academics who are happy to just talk about how they don’t like black people. And then it sort of laundered into the mainstream conservative movement through figures like Robert Bork, who give it a more intellectual sheen and launder it of its explicit racial origins. And when you hear a modern conservative originalist tell the origin story of their theory, this is not the story they tell. Right. The story is usually that the Supreme Court and the lower courts have always been originalist up until progressives and the new dealers and the Warren Court threw it off track. But what Calvin shows is that’s just not true. What the Supreme Court was doing in the eighteen hundreds and early nineteen hundreds was not originalism. As we define it today, the ism, the theory that we are all talking about, that five justices on the Supreme Court say they adhere to that has its roots in a fundamentally racist backlash to the desegregation of public schools after Brown.

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S1: And I just want to also connect that back to the conversation we had with Alice Hogue this fall, where she talked about sort of the origins of the backlash to Roe and the ways in which so much of the quote unquote, pro-life movement was also invested in trying to think of a different way to push back on Brown without looking overtly racist. So it does feel like there is this theme emerging and it’s incredibly interesting work. And thank you for writing about it. I feel like we must now turn to and we can do this in 30 seconds, Mark, because I don’t think we desperately either of us want to do it. But I guess we do have to talk a little bit about Justice Breyer making comments to the effect that he doesn’t support court packing. And judges are people who have no ideology and politics doesn’t enter into it. That together with massive, massive pressure that we’re hearing continuously from progressives on Justice Breyer to step down, we can agree that there’s absolutely no point in trying to pressure Justice Breyer to step down. It strikes me and I felt this when I interviewed him this winter, that the more you pressure him, the more annoyed he is. But I wonder if you have any thoughts beyond that.

S4: Yeah, I agree. And I think a lot of progressives are sort of over learning the lesson of RBG, right. A lot of progressives are super burdened by the fact that Justice Ginsburg did not retire in 2013 and eventually her seat went to, of course, Amy Barrett. And I think a lot of liberals are saying, well, we should have just pressured her more in 2013. If we had all screamed, you know, retire now, then we could have saved this seat. I don’t actually think that’s true. And I don’t think that it’s going to work with Breyer. He is an intellectual. He fancies himself as a very nonpartisan, independent jurist. And I think he acts as one as well. He cares about the institutional legitimacy of the court. You know, we didn’t see him out there stumping for Merrick Garland in 2016. He’s not interested in getting involved in politics. He’s not going to say expand the courts and he’s not going to openly telegraph that. He wants a Democrat to fill a seat. Anyone who expected him to do any of those things is kidding themselves. But I do want to add one thing, and we’ve talked about this before. The problem with the comparison between Breyer and Justice Ginsburg is that Breyer knows politics. He doesn’t act like it. But he was in politics. He worked for for the Senate. You know, he worked for Ted Kennedy. Like he does understand on a much more fundamental level, I think, than Justice Ginsburg does, the amount of partisan concerns that swirl around the Supreme Court and the possible urgency of Democrats filling his seat while they have this this bare grasp on the Senate. You know, I think that he. That’s it, without demand, justice putting a big billboard outside Union Station that says, you know, Stephen Breyer, retire right now or we’re coming for you and you know, we’re going to scream in your face. I don’t think he needs that.

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S1: It’s funny because for years when people would ask me about pressuring Justice Ginsburg to retire, I would always flip make the joke, you know, if a justice was going to just forget to retire when Democrats controlled the Senate, much more likely that it’s Stephen Breyer, which was just my fond way of talking about him as this absentminded professor who really totally does desegregate in some ways politics from the law. But we said that with the full knowledge that, as you said, he came up through the political system in a way that none of the other liberal judges did. And he’s deeply mindful of politics. But he’s also, you know, as you note, he’s written books like big, big paperweight sized books. But I have to and reviewed them about how the court is just different. And it feels a little bit like going up to the wizard and yanking the curtain aside and saying, yo, wizard, what the hell and expecting Wizard to be like. You’re right. We’re total frauds here. I’m copping to it. And I just think as a tactic, somebody who’s devoted the better part of his professional life to preserving, rightly or wrongly, as you say, the notion that the judiciary is just different isn’t going to now be swayed by a lot of people shouting at him to retire. And I think, quite frankly, Noah Feldman made this point before you and I have said it. But the more you politicize this, the more he’s apt to say it looks like someone screaming at the wizard. So I just my instinct, having said we’re not going to talk about it, is to continue to not talk about it. I want to just end briefly, Mark, where you kind of ended this week, which is just writing about the trans bands that we are seeing. I think that Georgia and the vote suppression law there has gotten so much attention that we are missing other really, really shocking sort of model legislation that is popping up around the country. And I wanted to give you a minute to talk very soberly about what you are seeing there.

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S4: Yeah, I mean, it’s just a nightmare because it’s a replay of the bathroom bills that we saw in 2016, 2017. But it’s developed. It’s sort of a second generation now. We see in places like Idaho, Mississippi and Arkansas, lawmakers passing a ban on trans women and girls participating in athletics and student sports. But we also see Arkansas banning gender affirming care for minors, telling transgender, gender nonconforming children, you are not allowed to receive the care that every major medical group recommends that has been tested, you know, for years that is tried and true. This is not let’s be clear, experimental medicine like these are the set guidelines by endocrinologists and other medical experts about how to treat children with gender dysphoria. And Arkansas just outlawed it. And I think it’s worth looking ahead to what’s coming next in states like North Carolina, where a quarter of the North Carolina Senate’s Republican caucus has already signed on to a bill that bans gender affirming care and not just for minors, but also for adults aged 18 to 20. And so it’s important to remember, you know, this was never about bathrooms. This is not about sports. This is about discriminating against and driving out of public life and driving out of school transgender people and denying their existence. And it’s not going to stop children. You know, the anti trans movement thinks that it’s landed on a good strategy here because it’s created this myth, this lie that, you know, kids are just being sold on gender treatments that they don’t need, that they’re deforming and mutilating themselves, none of which is true. But it triggers people’s natural concern for children. But it’s not going to stop there, just like it didn’t stop at bathrooms. And it’s not stopping with sports. The end goal here is to outlaw the very existence of transgender people to to prohibit them from existing and receiving the care that they need and to pretend that it’s about something else. Fairness in women’s sports, which Republicans haven’t cared about until now, is just a farce that we should not play along with in any way.

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S1: And I want to just note, because we’ve both written about this in different context this week. But part of the issue is these model bills that are ginned up centrally and dressed up as though they are some kind of grassroots, state based political ideas where in fact they are simply cookie cutter laws that are pushed out around the country. We talked on the main show about ALEC and the way that it has been a warehouse for generating these kinds of model bills, essentially alliance defending Freedom. Mark is the group that is defending these cookie cutter anti trans bills. Mark, as you and I are recording the. The White House is announcing that Joe Biden is signing the executive order that is going to create this commission. You and I have talked about it a bunch that is going to assess and analyze questions about court reform, structural court reform. And I should note that the commission’s purpose, at least according to the tweet that just came out of the White House, is to provide an analysis of the principal arguments in contemporary public debate for and against court reform. So they are not coming out with recommendations. They’re going to talk about the legal merits of various principles. They have a very short time frame in which to report 180 days and they’re going to have open public meetings. Any quick thoughts on this very large commission and what it is that they are going to do in the coming 180 days?

S4: Well, sounds like a recipe for a whole lot of nothing to me. When you put conservatives like Adam White and Jack Goldsmith who think there’s nothing wrong with the court except maybe it could be more conservative on a commission like this, I don’t think that reflects a serious commitment to court reform at all. I think it reflects a kind of wishy washy desire to wipe your hands clean of the issue, at least for six months, and kick it to a group of people who are just going to scream at each other and then produce, I guess, nothing, no recommendations, no items for action. Just an overview of what needs to be fixed on the courts, I think would be lucky if this commission even embraces expansion of the lower courts, which is not a political issue which both parties have endorsed, which all kinds of neutral judicial and legal groups say is necessary because the case loads in these lower courts are overwhelming. We just don’t have enough judges. But I don’t know if Adam White is going to say, hey, yeah, let’s give Biden more seats to fill. I mean, these are people who really think that progressive jurisprudence is illegitimate, that it’s not real law. And I struggle to imagine any commission that they sit on producing a meaningful report on how we can rest the federal judiciary from the hands of the far right partisans who grasped it under Trump.

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S1: Yeah, and I think, you know, it’s interesting because it does feel to me as though this commission, which I think we already knew was going to be co chaired by Bob Bauer and Christina Rodriguez from Yale with a whole mess of largely academic input. I think that the idea here is to have a conversation and have a big public conversation about court reform, take all these suggestions, whether it’s jurisdiction stripping or whatever it is that is on the table and have a big, big public conversation to get the American public to come round on the issue of structural court reform. And I think that in some sense, we are maybe over learning the lesson of FDR in court packing. Right. If we’re going to talk about over learning from our Biji, certainly America probably isn’t ready for somebody to jump out of a cake and say, we’re back in the court, we’re doing it now. The question is whether we have two or three years to think about this and test the waters and get used to it. And I think that’s the frustration I’m hearing in your voice. In a perfect world, you would think you could bake that gig in a perfect world. I think it’s really good to get Americans on board and to test these ideas and have a massive public conversation about the problems, the systemic structural problems with the court. We don’t have 180 days to talk about our feelings. That’s what

S4: you’re saying? No, no. And the Democrats may only control the Senate until the end of 2022. Right. And, you know, I think at that point, if Democrats lose the Senate, then Democrats have also lost their opportunity for any kind of meaningful reform for maybe a generation, especially as courts continue to uphold increasingly extreme voter suppression laws that lock Democrats out of power forever. And so treating this as a kind of theoretical, abstract, intellectual exercise that a bunch of very smart people can chew on for six months and then produce some Tolstoi ask reflection. It just doesn’t seem like I said like a recipe for anything worthwhile.

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S1: I’m going to say right here and now that in twenty twenty four, Mark Stern and I will bake for Slate plus contributors and listeners to this extra special Slate plus show. Mark and I are going to both bake and jump out of a cake. That said, I told you so good.

S4: Absolutely. I’ll make the frosting right.

S1: And so we end on a happy but not really note. Mark, thank you so, so much for being with us. It is always a treat and a joy to get to see what happens in that great big brain of yours. Thank you.

S4: Always a tasty pleasure.

S1: And that is a wrap for this episode of Amicus, thank you so much for listening and thank you so much for your letters and your questions. You can keep in touch at Amicus, at Slocomb, or you can find us at Facebook dotcom slash amicus podcast. Today’s show was produced by Sarah Birmingham. We had research help from Daniel Maloof. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. June Thomas is senior managing producer of Slate podcasts. And we will be back with another episode

S5: of Amicus in two short weeks.