Affirmative Action on the Chopping Block
Dahlia Lithwick: This ad free podcast is part of your Slate Plus membership. Welcome back to Amicus. This is Slate’s podcast about the courts and the law and the rule of law and the Supreme Court. I am Dahlia Lithwick. I cover those things for Slate and just a heads up that I am a little under the weather. And so my voice sounds like this. As we head into the midterms, there is an immense amount of legal news, including abortion protestors who interrupted oral arguments on Wednesday.
Speaker 2: According to Jay Weatherill.
Mark Joseph Stern: According to the Government, petitioner.
Speaker 4: Violated the.
Dahlia Lithwick: ACT affirmative action once again on the chopping block at the Supreme Court on Monday.
Speaker 4: This is very explicit in your brief is like it just doesn’t matter if our institutions look like America. You say this on page 11 in your reply brief. And I guess what I’m asking you is, doesn’t it?
Dahlia Lithwick: And new reports that Donald Trump’s lawyers saw Justice Clarence Thomas as their ticket to setting aside the 2020 election. Today’s is another jam packed show. Happy weekend. And we’re going to start this show by looking at Monday’s lengthy discussion of the use of race in college admissions. Later on in the show, we will interview political insider David Rothkopf about his brand new book, American Resistance. It’s a look at the so-called deep state actors who kept democracy from flying off the rails during the Trump years.
Speaker 2: This is all part of a systematic effort to eliminate the guardrails that keep an authoritarian from taking hold in the United States.
Dahlia Lithwick: Later, still, Slate Plus listeners will get to hear from Mark Joseph Stern with a roundup of all the stuff we couldn’t pack into this main show, including emboldened lower court judges again, guns again, and the midterm elections.
Speaker 5: And the courts.
Dahlia Lithwick: But first, evidently race and racism have an expiration date. The only question is that date 2022 or 2028. The high Court heard almost 6 hours of arguments in a pair of cases concerning the future of affirmative action. On Monday, the same high court that wouldn’t have a legitimacy crisis if only the press would stop talking about the legitimacy crisis is, I think, poised to overturn over 40 years of precedent regarding race conscious admissions at institutions of higher learning.
Dahlia Lithwick: There was very little talk of doctrine over those 6 hours. Not much discussion of text or history either. Just a whole lot of feelings. Feelings, feelings about diversity, feelings about zero sum games, and of course, a lot of feelings about college squash players. Six out of nine justices appear to be in broad agreement with Chief Justice John Roberts. Famous formulation expressed once in the parents involved case that, quote, The way to stop discrimination on the basis of race is to stop discriminating on the basis of race, end quote. And so I guess we’re going to do that now.
Dahlia Lithwick: Okay. Today, I am joined by Cara McClellan. She is former counsel with the NAACP Legal and Educational Defense Fund. She is the founding director of the Advocacy for Racial and Civil Justice Clinic at University of Pennsylvania’s Carey Law School. Prior to joining Pen Carri Law, McClellan represented students and families in school desegregation cases and students and alumni in the SFA v Harvard litigation defending Harvard’s affirmative action decisions. So Cara. Welcome to Amicus.
Speaker 6: Thanks so much for having me.
Dahlia Lithwick: And I wonder if we can we just said we failed utterly at oral argument, It seemed to me to talk about the actual cases. I wonder if you wouldn’t mind just setting the table. Monday involved two separate cases, one out of USC, one out of Harvard. There were two different sets of claims, constitutional claims and statutory claims. These cases were consolidated and then pulled apart again because Justice Clayton G. Brown Jackson couldn’t sit on the Harvard case because she had once served on Harvard’s board of overseers. So I’m going to ask you to do that common law thing you do, which is just explain to us, if you would, the Harvard case, the University of North Carolina case. And believe it or not, what the sort of statute and constitutional provisions at issue are.
Speaker 6: Sure. And I should say, not only was there very little discussion of doctrine, there was also very little discussion of the record in either case. So to begin by just what’s at issue in each case, the Harvard case is a challenge under Title six, and the UNCI case is a challenge under the equal protection clause. And the reason is that Harvard is a private university. But in both cases, this is a direct attack on 40 years of precedent where the Supreme Court has said over and over again, yes, you can consider race as one of many factors in admissions and developed a test under strict scrutiny that universities have to prove that the consideration of race is narrowly tailored. And that means that they’re not using a quota or assigning a certain number of points for considering race, but rather engaging in a holistic admissions process and considering each applicant.
Speaker 6: So I want to start by just making clear that this is a direct attack on the existing precedent under Grutter. And to just explain to the listeners how we got to this test. Originally under Baki, which was a fractured decision, the justices ruled out a remedial consideration for affirmative action. So it means that we’re in a world in which affirmative action is not based on recognizing the history of segregation and inequality based on race, but instead it’s based on a compelling interest of universities pursuing the educational benefits of diversity. And so that’s where we are in terms of the doctrine.
Speaker 6: But in both cases, they not only brought a challenge to the existing precedent, but they brought additional claims. And so one aspect that’s different between USC and Harvard is that in Harvard, the plaintiffs have also alleged that there is discrimination against Asian-Americans and how Harvard considers race or conducts its admissions process. That’s not a claim that was brought in the USC case.
Speaker 6: And to go back to the point about little discussion of the record, it was interesting because during the arguments, the justices asked a lot of questions about discrimination against Asian-Americans in the USC case, despite the fact that that was not part of the claims that the plaintiffs. In that case, that was only a claim in Harvard. And, you know, just thinking historically during Fisher, it’s also the case that there were no claims of discrimination against Asian-Americans and that case. And yet Justice Thomas and Justice Alito in that case previewed that they were concerned about discrimination against Asian-Americans, as they described it, and actually in their opinions, dissenting in Fisher one And Fisher two talked about discrimination against Asian-Americans as an issue, even though that wasn’t part of the record in those cases.
Speaker 6: So this inattention to the record is consistent. And really, I think the plaintiffs students for admissions who are originally made up of Abigail Fisher and Ed Blum, saw the signaling in Fisher as an invitation to bring a claim of discrimination against Asian-Americans. So that’s part of the background for how, as Students for Fair Admissions was created and brought these cases, the issue of discrimination against Asian-Americans became part of the story. And there’s been a lot of conflation between the issue of challenging race conscious admissions and the arguments that Harvard or USC isn’t complying with existing doctrine and the issue of discrimination against Asian-Americans, which is an entirely separate issue.
Dahlia Lithwick: So, Carrie, you just laid out in amazing granular terms the landscape, right? We have Bucky, which is a complicated, fractured plurality opinion. And the court essentially says in Berkeley, you can use it for diversity purposes, not for remediation of past harms. That’s reaffirmed really importantly in Grutter, which is the Michigan case, where the court says really explicitly it’s a factor, it’s not a checkbox, it’s not three points, it’s a factor. And it’s part of, you know, what you’ve described as a sort of a holistic look at candidates for diversity purposes, not for remediation. And then. FISHER that’s the last in the line where that’s essentially affirmed. So that’s the world we inhabit. And then I think what you’ve just done is say, and this is correct and it’s been really endemic at the court of late, There’s actually a.
Speaker 4: Significant trial.
Dahlia Lithwick: Record here. There are witnesses, there are findings of facts. There was a substantial trial in each case. Can you talk a little bit about what was found in the court’s below? Because I could swear five plus hours of argument. I heard virtually nothing about what is actually on the record. And I ask it because every time Sherrilyn Ifill comes on this podcast, she reminds us that one of the things that this court systematically does is just ignore trial findings as though they were never made and as though they were not relevant. So can you just tell us what the courts below determined in these cases?
Speaker 6: So in both cases, we have over a hundred page opinions from the district court, really laying out in painstaking detail how the unsee admissions program and how the Harvard admissions program complies with the existing precedent and has a narrowly tailored consideration of race to serve the educational benefits of diversity. Both opinions lay out how the universities have considered race neutral alternatives and ultimately made the conclusion that there isn’t a race neutral alternative that is going to provide the compelling interests and educational benefits of diversity.
Speaker 6: And the opinion in Harvard also in tremendous detail, lays out how there was no evidence of discrimination against Asian-Americans in the Harvard admissions process. So the court looks at all of the six years of data that both experts considered and did that both sides had access to, and concludes that ultimately none of these applications where the plaintiffs able to point to an example of an Asian-American applicant being discriminated against. So the court relies heavily on that.
Speaker 6: The court relies heavily on the testimony of admissions officials at Harvard, all of whom consistently said that race can only operate to benefit an applicant and never as a negative for an applicant, and that they consider the benefit of how Asian-Americans contribute to diversity as well and benefit from diversity. But in particular, there were no individuals on the plaintiffs side who came forward and said that they were actually impacted by discrimination. But on the other side, there were eight students and alumni who testified about how the consideration of race in Harvard’s admissions process benefited them, and that included Asian-American applicants.
Speaker 6: What was pretty compelling at trial was that Harvard actually keeps applicants files and so individuals and. Including Asian-American students who testified at trial, could actually look back at their applications and point to the notes to show what was considered. So just as an example. Kathryn Ho, who was one of the students who we represented, who is Vietnamese American, was actually able to look back at her application as she was testifying during trial and see the notes the admissions officers left in her file and the ways that they said that she would actually contribute because of her Vietnamese heritage more to the diversity on campus and saw that as a plus factor. So, you know, it’s really incredible that we have this amount of evidence and detail right down to the application files. And still, the plaintiffs were not able to find evidence of discrimination.
Dahlia Lithwick: So you mentioned this and it’s super important. We live in the world. We live in postbox. In postbox. Diversity is the value that, you know, is deemed the compelling interest, not remediation. And it gets us into this very weird world, Cara, where the court is forced to talk about diversity as though that’s the only constitutional value here. That’s not anyone’s fault. That’s what Baki gives us. But it put us in a very strange moment at oral argument where, you know, here’s Caton, G. Brown Jackson trying to talk about an applicant who is allowed to say, Hey, I’m a legacy, you know, I’m fourth generation USC and that matters, but I can’t talk about race or the fact that my family was precluded from attending USC. That seems to be wrong. So let’s listen to that.
Speaker 4: The first applicant says I’m from North Carolina. My family has been in this area for generations, since before the Civil War. And I would like you to know that I will be the fifth generation to graduate from the University of North Carolina. I now have that opportunity to do that. And given my family background, it’s important to me that I get to attend this university. I want to honor my family’s legacy by going to this school. The second applicant says, I’m from North Carolina. My family’s been in this area for generations, since before the Civil War, but they were slaves and never had a chance to attend this venerable institution. As an African-American, I now have that opportunity. And given my family family background, it’s important to me to attend this university. I want to honor my family legacy by going to this school.
Speaker 4: Now, as I understand your know, race conscious admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count. The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him. While the second one wouldn’t be able to, because his story is in many ways bound up with his race and with the race of his ancestors. So I want to know, based on how your rule would likely play out in scenarios like that, why, excluding consideration of race in a situation in which the person is not saying that his race is something that has impacted him in a negative way, he just wants to have it honored just like the other person has their personal background, family story honored. Why is telling him no, not an equal protection violation?
Dahlia Lithwick: And I guess my question for you is, this is so emblematic of the moment we’re in. We saw this in the Alabama cases just a few weeks ago where Justice Jackson wants to talk about actual text in history, wants to talk about the originalist purposes of the reconstruction amendments. And in some ways, he’s precluded from doing just that, not because of anything that the court’s conservative wing is doing, but because that is the doctrine she’s inherited. What am I missing here? Or is that simply the world we now have to navigate?
Speaker 6: You know, I thought that line of questioning by Justice Jackson was just so powerful because it just shows the irony of as being in this world where the plaintiffs are advocating that the 14th Amendment prohibits consideration of the impact of slavery and the ongoing vestiges of discrimination by literally citing Brown for that proposition, which is all around just an inversion of the equality principles that are underlying both the equal protection clause and the Court’s decisions in Brown.
Speaker 6: So, you know, she outlines in her questioning how there would be an equal protection violation if the descendants of slaves could not have their experience living for multiple generations in North Carolina considered. But, you know, for example, a legacy applicant who is more likely to be white and privileged, could have their family history considered. Right. And the idea that the 14th Amendment would prohibit that consideration is the source of the irony.
Speaker 6: I think one of the things that is especially concerning from the standpoint of using Brown and this co-optation of Brown to avoid dealing with the history of segregation and equality in our country is that, you know, in addition to the history of the reconstruction amendments being designed to remedy through the Freedmen’s. Bureau and during Reconstruction, the reality that newly freed slaves were being subordinated and new inventive ways. Right. That was directly the purpose of the Civil Rights Act of 1866 and of the 14th Amendment.
Speaker 6: But moving us forward right to the Brown decision, not only was Brown establishing the principle of separate is inherently unequal and desegregating and outlawing de jure segregation, but it also implemented, right. It wasn’t just that there was the brown decision, but then we have Brown too, and all deliberate speed, and we have an entire doctrine of case law around desegregating schools that is explicitly about racial classifications, using racial classifications to remedy segregation and inequality, and to address the subordination that comes from separating students into different buildings based on race and upholding a caste system through this process. So there continue to be school desegregation cases that arise out of Brown that LDF is very involved in litigating across the country and that are explicitly race conscious, not just through race neutral means, but actually classifying students to assess where are we?
Speaker 6: There’s an entire set of five factors under a case called Green, the Kent County School District, where courts have to look at not just the race of students in different buildings, but the race of staff, the dynamics in terms of assignment to advanced placement courses, in terms of discipline, all of these things. Right. And so this is an entire race conscious process and project that developed out of Brown. So to try to use Brown to then say that it has nothing to do with anti subordination and it has nothing to do with classifying people based on race, to assess where we are in addressing inequality is just not only ahistorical but denies that entire ongoing body of law.
Dahlia Lithwick: Kyra, I’ve been a little bit disrespectful of the notion of diversity, partly because I do think it doesn’t get us necessarily where we need to go, and partly because, as you just noted, it ignores, you know, the real purpose of the civil rights laws and of the reconstruction amendments. But there actually is a good answer to why, even if you only can play in the diversity playing field, we absolutely need to have diverse classrooms. And, you know, we heard a lot of this from Solicitor General Elizabeth Prior Lugar at oral argument. So so I want to play Clarence Thomas asking in this kind of almost Zoolander voice, like what is diversity? What is this even someone explain to me what I’m sorry, I shouldn’t have. I love Zoolander. But anyway, let’s listen to him.
Speaker 2: I’ve heard the word diversity quite a few times, and I don’t have a clue what it means. It seems to mean everything for everyone. The. That I’d like you first. You did give some examples in your opening remarks, but I’d like you to give us a specific definition of diversity in the context of the University of North Carolina.
Dahlia Lithwick: And I guess, Kyra, I was really struck by the fact that time and time again, in the face of that questioning, people gave very good answers about why diversity matters and why this is an urgent constitutional value. I guess I wondered if you could you know, you’ve just made, I think, a very good case for why the remediation of past harms is not a value that has disappeared post Brown. But can you also just make the best case you can give us for why even using the idea of diversity, which is not maybe necessarily directly an answer to the harms at issue, why diversity actually really matters and why this is not this ephemeral, vaporous value that Justice Thomas would suggest.
Speaker 6: So I would start by saying, you know, many of us can attest to the ways that diversity is life altering. Right. Being in an environment where you’re able to interact with people from different backgrounds can literally change the path of someone’s life and career, both in terms of being able to become educated about the history and the ongoing social justice and other issues in our country. It’s about being prepared to work in a diverse workforce and world. But it’s also, you know, on a personal level, you know, people talk about for the first time being exposed to new languages, to new.
Dahlia Lithwick: Foods, to.
Speaker 6: New people that they didn’t have the opportunity to have relationships with before. And through that, there is a disruption of stereotypes that would otherwise form. Interestingly, you know, in the testimony that we heard at trial, that even exists within racial groups, right. Having consideration of diversity within diversity is part of the ways that that people see more diverse representation within folks who share their racial background. So Asian-American students, for example, talked about for the first time being, for example, exposed to Southeast Asian students if they came from, you know, an East Asian background, for example.
Speaker 6: So there’s so many ways that having diversity within diversity on a campus can expose students to really intersectional experiences and the complexity of our identities. And that really runs in contrast with the way that the justices and the advocates on behalf of SFA suggested that diversity is somehow stereotyping in itself. The idea that you know that through diversity you have more diverse viewpoints represented, it is somehow stereotyping. It’s actually the opposite.
Speaker 6: And everything we see in the data and in terms of how students describe their experiences with diversity on campus shows that it really serves to to combat stereotyping and to create an environment that is more welcoming and more inclusive for everybody. Just by having diverse students on campus, you’re less likely to have isolation, you’re less likely to have hostility. And so despite the fact that Justice Thomas describes this as as as just feeling good or something like that, it really is directly connected to students, not just having access to universities, but having an environment that is conducive to learning once that they’re actually on campus. And that matters to Cara.
Dahlia Lithwick: One of the things that was so talk about feelings, Bill, at oral argument was this idea that, you know, college is all zero sum and they’re winners and losers. And some people start before the starting line and some people start after the starting line. And I think that this whole construction of zero sum ness. Really, really is just such a deeply problematic way to think about this. In no small part and we heard this from some of the advocates and the justices on the left that everybody is entitled at some level based on their grades to get into these schools, right?
Speaker 6: Yeah. I mean, what the evidence showed at trial was that without consideration of race, there would be a reduction.
Dahlia Lithwick: Of.
Speaker 6: Black and Latino students on campus by about 50%. And really, the other data point that I think is important to know is that even if you removed every single black and Latino applicant from the entire admissions pool to Harvard, the chance of admissions for other students would only increase by about 1%. And the reason is there’s just not enough applicants who are coming from black or Latin or Native American backgrounds to really have an impact on the chance of admissions for other students. Right. So this idea that black and Latino students are taking up slots for other people is just as a statistical matter. It doesn’t make any sense because the pool of applicants is so disproportionately made up of white and higher income students.
Speaker 6: The other thing I think is important to remember that came out in trial is that for the years that were considered during trial and the class of if we look at the class of 2018, for example, specific to Harvard, there were 35,000 applicants for 1600 spots. And of those, 2700 had perfect verbal SAT scores, 3500 had perfect math S.A.T. scores, and more than 8000 had perfect GPAs. So if you were going to put together a class and admit people solely based on having high S.A.T. scores or high grades, there literally are not enough seats for just those students at Harvard. So we have to start with the understanding that the university has to be considering something else, because it can’t be just those factors alone. And you wouldn’t want them to just be considering those factors alone. You would want diversity in other ways and to consider other things.
Speaker 6: And so with all of that in mind, by the time we’re talking about applicants who are admitted and where there was some consideration of their race, these are already applicants that are so extremely qualified on so many different fronts that the consideration of race is only a factor of a factor of a factor. And really, what is most determinative or what’s distinguishing them from the other 35,000 applicants is that they are very high achieving and then some other things. Right considered on top of that. But there’s there’s nobody who’s being admitted that’s not qualified. And so then considering, you know, that there would be a reduction by 50% of black and Latino students is is incredibly concerning, again, going back to, you know, really making sure that there’s opportunity and that there’s a perception that anybody who is talented can have access to these universities.
Dahlia Lithwick: Kara, I’m going to skip the question I was going to ask you that is entitled Why does Justice Gorsuch hate squash? Because I don’t think that that’s the question we need to spend a lot of time on. But I do want to end with this question, which is going to feel very Stephen Hawking. But this question of time and of, you know, when is the. I think Justice Barrett described the Grutter opinion in terms of it coming with a self-destruct button.
Dahlia Lithwick: Right. That boom, we’re going to hit 25 years after Grutter and we’re going to not need any of these remediation mechanisms. And I wondered if you could talk a little. And I think you’ve really sort of laid the tracks for making this point when you said you can’t look at Brown one in isolation from Brown two and the progeny of the cases that did use race very mindfully to remediate past harms and discrimination. But I wonder if you can talk about this weird moment that the court wants us to be in when it wants us to just get together and all agree that racism is over and that more urgently and in my view, more insanely, the way to make racism be over is to stop doing any race conscious measures in any way, whether it’s in the the racial gerrymandering case that we heard earlier this term or in the admissions cases.
Dahlia Lithwick: And to just talk about the absolute I want to say weirdness, but I actually want to say privilege of this court’s conservative supermajority. Time and time again, browbeating advocates and the dissenting justices on this idea that, like, why isn’t this over? Why can’t this just be over? Why can’t you give us a day on which we’re all fine again, as though this is something that we can just all agree upon, that in 2028 or 2030, we’re done with this project. And I just want to maybe for you to land the. Plane on this question of what is even the answer to when are we going to know that it’s enough?
Speaker 6: So first of all, you know, the idea of a time frame is usually tied to a remedial justification as as we’ve already talked about, the court has rejected that. And yet this question of timing keeps coming up again and again as if there’s a time limit for diversity. Right. Diversity is a value in our country regardless of time. It should always be a value. And knowing that there is access to universities or to leadership position that are created through the pipeline of these universities is important in our country in terms of the legitimacy of a meritocracy and knowing that talent is everywhere and knowing that because of that, if opportunity is available to everybody, universities and these pipelines should be available to everybody, that is going to be a value always in our country, I would hope.
Speaker 6: And the idea that it’s time limited, it is just preposterous because it’s part of what it means to be an a multifaceted democracy where there is people of all different cultures, you know, wanting to know that there is access to opportunity for everybody and see that reflected in universities and pipelines down the road is always going to matter.
Speaker 6: I thought that was something that the solicitor general really conveyed effectively where she talked to the justices about, you know, the message that sent, for example, to women advocates when there’s only two female advocates before the court and an entire term, what message does that send? And likewise, the idea that our country’s most elite universities could become almost exclusively available to white and wealthy students Again, that was the case for the vast majority of the history of these institutions. And the idea that that would become true again is really a threat to our democracy and the legitimacy of merit in our country.
Speaker 6: I think the reality is that because of ongoing segregation in the ways that resources continue to be disproportionately available in white and wealthy schools, the reality is that students of color and students of low income backgrounds are going to continue to be undervalued. And the admissions processes that exist, particularly when it comes to standardized test scores, but in general and their ability to create a competitive application based on these standards that are so connected with having access to privilege, to do extracurricular activities, to take AP classes, to get coaching for standardized tests, that without some consideration of the realities of race in our country, these universities are going to continue to be incredibly exclusionary to to students of diverse backgrounds. And so we still need to be able to consider race. It’s really at the core of ensuring merit and opportunity in our country.
Dahlia Lithwick: And Carol, we’ve barely talked about precedent and what it means yet again for the court to be poised to really explicitly, I think, overturn decades worth of precedent on this kind of utterly fatuous idea that precedents are self detonating after some amount of time. But I think that it’s really, really worrisome and dangerous that almost in the course of this conversation we now take for granted that precedent is rather meaningless at the current court. And how really chilling that is.
Dahlia Lithwick: Kara McLennan, former counsel with the ACP Legal and Educational Defense Fund, is the founding director of the Advocacy for Racial and Civil Justice Clinic at University of Pennsylvania Kerry School of Law. Kara, thank you so very much for joining us today and also for just this deep, deep clarity about all the ways in which even 6 hours of oral argument, sometimes utterly elides the point. Thank you.
Speaker 6: Thanks so much for having me.
Dahlia Lithwick: We are now going to turn to a question that I’ve been thinking about for a long time, which is do you stay or do you go? If you’re in the Trump administration, we’re joined today by David Rothkopf, whose brand new book out this week is called American Resistance The Inside Story of How the Deep State Saved the Nation.
Dahlia Lithwick: David is a former editor of Foreign Policy magazine who worked on international trade policy in the Clinton administration. He’s written several previous books. He’s CEO of the Rothkopf Group, host of the podcast Deep State Radio that I’ve joined many times. David is also a regular columnist for The Daily Beast. And David’s book is about the story of how what he calls an informal alliance of women and men working in agencies across the US government, managed to work together to keep a really dangerous Donald Trump and his closest allies from doing irreparable harm, not just to the country and its allies, but to the planet as a whole. David, congratulations on the brand new book. It is absolutely wonderful and it’s a treat to have you on the show.
Speaker 2: Thank you. Good to be here. Good to see you.
Dahlia Lithwick: And I think I just have to start with the phrase deep state, because as you and I both know, this is kind of, you know, Steve Bannon territory. It’s a notion of, you know, a bunch of pernicious, lawless people who are not patriots working diligently to undermine the presidency.
Dahlia Lithwick: And I know you’re obviously flipping that on its head and your value raising it, but I am really curious about the choice, both in the title and throughout the book, to use the words deep state and resistance, which have been kind of co-opted in some sense by the Trump team to mean something really nefarious. And you’ve chosen to flip both deep state and resistance to mean something good. I guess resistance meant something good before it meant something bad. So I just want to start with your choice of nomenclature here and why it is that you opted to frame the book around ideas that some might say were irrevocably damaged by Donald Trump and his use of those words.
Speaker 2: The reason I chose the term Deep state. Is precisely because it has been vilified by the right. And I think we need to ask ourselves, why are they trying to discredit this group of people? Because for the same reason that they came up with fake news to discredit the media, they are now trying to discredit a group of people who are public servants, who have sworn an oath to the Constitution and worked in the government for less money than they could have made someplace else.
Speaker 2: And it’s all there’s a purpose behind all of this. You know, it goes back well. The term deep state goes back a long, long time. Right? I mean, the term deep state goes back to Turkey in the time of Ataturk. And there have been, you know, conspiracy theories like it from the dawn of time. There’s always been a theory that there’s some secret group that’s actually controlling everything. Right. But the term deep state started getting traction in the United States right around the time Donald Trump started running, because Steve Bannon and others embraced it, because it was their variation on Ronald Reagan’s idea that government is bad. Because that was a very powerful idea. In fact, it’s one of these sort of organizational principles of the modern Republican Party.
Speaker 2: Reagan used to tell the joke, I’m here from the government and I’m here to help is the big lie. Right? And well, why do you say that? You say it because then it lets you cut government programs that are helping people because everything in the government is bad. You say it because it likes to argue that What The government. Tries to persuade you facts about an election say are not true.
Speaker 2: And in this particular case, the concern of Steve Bannon and some of the people around Trump was that these people would actually not follow the president blindly, but they would actually follow the law. And this is really about people and being a nation of laws rather than a personality cult or an authoritarian regime.
Speaker 2: And, you know, we go from the idea of the deep state. To now, today this idea of schedule F, where it’s like they want to say, well, we want to be able to fire all these people. And why do they want to fire? Well, they want to fire them for the same reason. They want to do each of the other things. They’re involved in weakening democracy, packing the courts, getting secretaries of state who are going to rig the elections, putting in place provisions that make it harder for certain kind of people to vote. This is all part of a systematic effort to eliminate the guardrails that keep an authoritarian from taking hold in the United States.
Dahlia Lithwick: It’s so interesting, David, because one of the things that really comes through loud and clear in the book is how hard people work. And, you know, whether it’s folks at DHS or national security folks or, you know, folks in the Foreign Service, you just get such a sense that their jobs are really freaking hard and that they work very hard at them.
Dahlia Lithwick: And one of the animating themes in the book is one that’s been really worrying me. We might have talked about it on your show, which is the ways in which the current sort of conservative super majority on the Supreme Court is similarly using that sort of Reaganesque language to just deride civil servants, to deride government lawyers in case after case after case. Both that argument and when you know, you read the opinions, you get the sense that it is just so manifestly easy for Neil Gorsuch or Samuel Alito to take a potshot at a government lawyer who’s trying to do her job, whether it’s, you know, issue gun permits, whether it’s issue guidance on COVID, whether it’s a school lawyer trying to figure out how to finesse First Amendment religion requirements and prayer.
Dahlia Lithwick: And I’m just really struck by the ways in which your book is pushing back on the idea that really I’m hearing coming clarion clear from the highest court on the land that every bureaucrat and every public servant is a hack and that they’re all just pencil pushers and trying to apply the complexity of life to some law that’s unerringly wrong and bad. And that it’s kind of interesting because it is coming from inside the house that I hear that critique coming from the court itself in ways that make it really hard for people who are just government workers, as you say, people who got into this to do service to be taken seriously.
Speaker 2: That’s exactly right. And the origins, I think, go back, as I said, 40 years. They go back to the Reagan era. And again, we have to ask ourselves, why do they want to get rid of these programs? Well, you know, it’s because. Having a representative democracy. Is not in the interests of a minority, particularly the minority that used to control the country. Having a government that regulates industry is not in the interests of big businesses ensuring that there is equity throughout the society. Or a fair tax code is not in the interests of the 1% who have disproportionate power. And so it’s not the dismantling of government or the completely made up.
Speaker 2: And you’ve written much about this, you know, rationales for the dismantling of the government, you know, whether it’s originalism or whatever it is, you know, they’re just nonsense. It’s not about that. It’s about the result. The result is people pay less taxes. Companies are less regulated. The majority in the society has a smaller voice. They’re less threatening to the interests that are established in the society. And that’s what they’ve been working towards the whole time.
Dahlia Lithwick: It’s interesting because they came away from a book, David, really struck by the fact that both you and I might be the most small C radicals in the history of the left because we’re such deep believer in institutions and the people who power them. But I do feel like for me, the book cracked open this problem I’ve been grappling with from almost the beginning of the Trump administration, which is this, you know, thing that the economist Ayo Hirschman calls exit loyalty or voice, right? How you do this work of figuring out how do I stay and serve as the adult in the room, or do I go? And if I go, how do I go right? Do I write a letter of resignation? Do I write a tell all memoir? And I think this book, more than any that I’ve seen, tries to apply some of that thinking to a lot of people who stuck around. And some of them, you know, have been vilified as we’ll discuss in a minute.
Dahlia Lithwick: It seems to me you can always justify staying right, Right till the bitter end. You can also always say and I think one of the things that Hirschman says in his book is the worse things get, the more you feel you have to stay because you’re the bulwark against, you know, full on detonation. And we can talk about some of the individuals you talk to later, and you frame a lot of this in terms of you have to figure out what your own line is. And at some point when you know what your own line is, you don’t cross it. But do you have some overarching theory of exit, loyalty and voice that you came out of this project with in terms of, I’m a good person, I’m a hold over. I’m just trying to do, you know, the right thing here. And it seems that if I go, Stephen Miller is going to replace me with a complete nutter who stays in. Who goes in. Why?
Speaker 2: Well, you know, it is a big issue. And before the Trump administration took office, Brent Scowcroft, a Republican, former national security adviser. Very sober, sensible guy. Who was zero. No fan of Trump at all. Sad. Good Republicans need to join this administration because they need to take care of the government. And even at the very end of the administration, I talk about one story where a very senior person in the Trump White House on January six calls up a another former very senior White House official trying. And he says, I don’t know what to do. And the other official says you got to stay because we need a transition and these people aren’t going to do it transition. But that’s really what’s important.
Speaker 2: And, you know, you make reference to this idea of having your own line. And that came to me, or as illustrated in the book, by a number of people who, before they took a job, went to see Steve Hadley, who used to be, by the way, an aide and colleague of Brent Scowcroft and became a national security adviser. And they said, you know, what should I do? And he said, well, go in.
Speaker 2: But know what your red line is? No. When resignation is called for and I think resignation is called for when you are asked to publicly do something but you can’t live with. That’s that’s the critical red line, right? I think a lot of people. Overestimate the power that their resignation is going to have in the press. You know, if you’re secretary of defense and you make a big fuss, it’ll have a big impact. If you were the undersecretary of state, it will have no impact. And so you have to keep that in mind as well.
Speaker 2: And staying can help. So it’s a very personal thing. And honestly, you know, I talk to a hundred people. Some of them grappled with this from the beginning of the administration. Others put it off for reasons that I attribute to ambition. You know, some of them put it off for the wrong reasons. They tolerated really intolerable things for too long, for the wrong reasons. They remained silent for too long for the wrong reasons.
Speaker 2: Some of them are the good guts. It’s not Bill Barr who, like, you know, was the bad guy up until that 11th hour and then said, Oh, no, I’m not going to support a coup. I don’t think that redeems them, although I’m glad he did it. But people like Secretary of Defense Mattis. Should have been more vocal sooner. Should have stood up and called out. And now it’s totally contrary to all of his bringing up as a military officer. But a lot of the things that he knew and other people know should have been out there sooner because.
Speaker 2: Donald Trump was not just an incompetent president or an ugly personality. He was profoundly dangerous in ways that we still don’t even know and came close to launching wars, wreaking havoc with the global system, injuring people’s lives in grotesque and profound ways. And it became an imperative to try to stop it.
Speaker 2: And some people found the way to do this was lawyers and working the system. But for others. You know, calling them out in the press. Worked. You know, when when Vindman walks out of the meeting where the president’s going to blackmail Zelensky, and he says the president can’t withhold this $191 million because the Congress has already appropriated. It’s illegal what he’s doing. And it goes straight to a lawyer. And a whistleblower does the same thing coming out of the same meeting within two weeks. It went to the Congress. And as soon as it went to the Congress, Trump released the money.
Speaker 2: Now, the Congress didn’t follow through. They didn’t convict Trump as they should have in the impeachment process. But at least it you know, it worked and, you know, sort of drawing attention to these things. So it’s a very personal choice. But when you hear an administration run by a rogue president who’s a real danger, it’s one I think a lot of these people grappled with almost daily.
Dahlia Lithwick: And it’s striking. There’s such a dividing line between people who were thinking about national security. And you know what I mean? Like, for me, I had the opposite feeling. I remember writing the night of the 2016 election. Any lawyer who stays on at DOJ, you know, is wrong. Like, you cannot be part of an administration that is misogynist and xenophobic and, you know, anti-Muslim. And I was that was wrong for the same reason that, you know, everybody should rush in. Might be wrong. It was too absolute.
Dahlia Lithwick: But it is clear to me that there is such a sense of urgency. I’m thinking of Olivia Troye, you know, saying about the travel ban like, you don’t understand. You can’t just walk away from this, she says. Because you know, we’re going to use intelligence and it’s going to harm people. And just so many of the people who stuck it out to try to cleanse the travel ban over three iterations were doing it because they were afraid of what it would do to future Iraqi translators. Right. I mean, this was not just the travel ban is anti-Muslim. So I’m out. And I did have a very deep sense reading this that at least the national security folks that you spoke to had a much wider scope of the harms of leaving.
Speaker 2: Don’t know. That’s clearly true. And Olivia Troye somebody I didn’t just talk to for the book, she was one of the inspirations for doing the book. I talked to her a number of times in the podcast and I was really struck by, you know, here’s a person who, as a young woman right after 911, says, I’ve got to go serve my country. And her first assignment is Baghdad. You know, she’s in the Green Zone and she’s putting her life at risk. And she works in the national security community throughout Democratic and Republican administrations and ends up first at DHS in this administration, then later on the vice president staff and was the point person on the combat task force.
Speaker 2: And she is in almost the perfect example of a dedicated public servant who sought to do what was best for the country and follow the law and was able to use that to defuse some some really pernicious ideas, whether it was the Muslim ban, which, as you said, had many dimensions that Trump and company had not thought through at all and was really fundamentally, at its core, just racism and an effort to institutionalize racism all the way through to COVID, where, you know, she also saw something which even to this day, I just have to say parenthetically, even to this day, I am shocked the million Americans died.
Speaker 2: Several hundred thousand of those Americans didn’t have to die. Right? Several hundred thousand of them died because the administration resisted science, resisted common sense, resisted social distancing, didn’t provide the right equipment, didn’t provide the right statistics and so forth. And it’s not a scandal. How is it that hundreds, if not more people than died in all of the wars that America has ever fought died of COVID? Many unnecessarily. Where’s the commission? Where’s the study? Where’s the accountability?
Speaker 2: I don’t. I don’t know. I don’t get it. But the point is that every day she would show up at work like Tony, 40 would show up at work, and like others in the administration, would show up at work and they would say, not only how do I fight the disease? But how do I manage the president? So he’ll let me fight the disease? And that’s how you came up with, you know, 15 days to stop the spread because they said he won’t do anything that’s longer than that. So let’s get him to bite into this and then we’ll extend it.
Dahlia Lithwick: So I want to stay on this theme of shades of gray, David, because one of the things you say very explicitly, I think even in the introduction, is, look, I’m not making a global judgment on, you know, who’s a hero and who’s not. And, you know, that’s for every reader to make for themselves. But I am really struck by who gets redeemed in the popular press and who doesn’t.
Dahlia Lithwick: Right. So you’ve got a lengthy conversation with Kirsten Nielsen, who I think is still deemed as someone who just got it wrong on family separation. And I think, you know, her narrative in the book is, look, I was doing my best to make it not appalling. There’s a funny moment where I think you quote Leon Panetta saying that he redeems John Kelly and then he says, quote, Mick Mulvaney and Mark Meadows, I think they just became hacks. And I guess I just find myself wondering and I know this is you’re going to fight the hypo because it’s the thing you didn’t want to do with the book.
Dahlia Lithwick: But do you have a way of thinking through who stayed too long, who cleansed something that could not be cleansed? Abel who under cover of I’m just trying to make things better, was just wrong. And who actually served a larger purpose Or in the end, is this just Leon Panetta thinks these guys are hacks and this guy isn’t?
Dahlia Lithwick: You know, Kirsten Nielsen feels like on balance, she did more good than bad in terms of the border because the wall didn’t get painted black between the U.S. and Mexico. Like, is there a way to think about this systemically and ethically, or is it just a question of who you speak to and how folks justify their own conduct?
Speaker 2: It depends on your objective. You know, if your objective is to grade everybody, then you know it’s who you spoke to and how much information you have. Here’s the reality. It’s not black and white with anybody. If you joined the administration, you were validating the administration. If you took a senior post and you went out and spoke in defense of the administration from time to time, as many of the people have now turned against the administration. Do you own some of that people who recognized the problem earlier and did more to fight against bad decisions deserve more credit for that?
Speaker 2: Kirstjen Nielsen is an interesting case. You know who is a lawyer who started out as a, you know, chief of staff and has served in past administrations and expected certain norms to be followed and dealt with almost from the very beginning. The reality that there was a separate Department of Homeland Security from the one created by the Congress that was essentially in Stephen Miller’s office and Stephen Miller and a bunch of other characters, some of whom were in Jeff Sessions office over at the attorney general. They didn’t really care about the law. They didn’t care about regulations. They didn’t care about the bureaucracy they wanted. And they were fundamentally racist. And they were in a constant battle.
Speaker 2: Literally every day people in DHS and I spoke to lots were like, we can’t be in a room with these people. We can’t let these people know what we’re thinking. We have to create a parallel process. And they did diffuse the Muslim ban and they did moderate some of the elements of separating families. Not enough of them. They were too tolerant of that. They did too many defenses of that. And they deserve to be judged for that.
Speaker 2: But, you know, even after that, you know, Kirstjen Nielsen was part of the group of people that said we have to protect the 2020 election. And they got together. And that included the FBI director, the National Security Agency had and Chris Krabs, who was working with the DHS, and they all worked towards that and they achieved something. And so, you know, nobody in the top levels of the Trump administration, with very few exceptions. Gets 100% because they’re great. But there are a lot of them who deserve a higher grade than we are willing to give them because we are so politicized. And it’s very hard for a lot of.
Speaker 2: Look, I think Bill Barr was repugnant on any many levels and did a huge disservice to the United States and many, many levels. But am I also able to say that by him saying that? TRUMP No way. I’m not going there with your group plan. We that helped us. No, I can I can see those two things. And I think, you know, what is the F Scott Fitzgerald quote, The sign of of a mature mind is the ability to keep two contradictory thoughts in it together at once. I think we just we have to be mature and looking at this and say what worked, what didn’t work, what was a success for the government, what was a failure? And that’s why I try to present it objectively and let people draw their own conclusions.
Dahlia Lithwick: You know where this is going next and last, which is I love this book in no small part because it’s doing the work of saying, see what’s happening under the surface. Take note of and appreciate, particularly because the law is one of the guardrails, as you say. It’s the thing that folks keep citing to say, no, I actually will not cross this line. The line is a lawful line. But where it’s going, depressingly, David, is what happens now.
Dahlia Lithwick: Right. What happens when the quote unquote, resistance, the quote unquote, deep state, all of the folks who you are lifting up and saying it’s complicated and they ultimately did a lot of good, Where are they right now? And I find myself in a moment where, you know, we’re taping this the week in which the Republican Party not just dismisses an attack on Paul Pelosi, but laughs at it and, you know, is spewing misinformation about it. And I find myself saying, is this book kind of a roadmap forward to how to conduct oneself ethically and in with dignity, even in trying times? And or is it sort of the last gasp of ethics and dignity in government because we have now crossed this line into. That’s gone.
Dahlia Lithwick: In other words, I’ve been really mindful, Jamelle Bouie has been tweeting this week about, you know, the need to restore, you know, real valor and service and dignity, all the values that your book really, I think, highlights in government service. But holy cow, it feels like we are the train has left the station on those values. Do you do you look at the book as the end of something or possibly as the beginning of a redemption that I’m just not seeing right now?
Speaker 2: Well, first of all, I think we’re at a crisis of ethics and morality in our government, and it’s uncertain how that crisis is going to be resolved. One of the reasons to tell this story is because the crisis is working on many levels, some of which people are aware of, some of which people are not aware of. There is a multi-tiered effort to weaken the protections that Americans have a guarantee their rights, protect their rights and move us towards authoritarianism. One of them is by packing the Supreme Court and letting them do what they’re talking about.
Speaker 2: One of them is by changing voter laws and making it harder for voters to vote. One of them is by electing secretaries of state who promised, you know, or, you know, governor candidates as the one in Wisconsin the other day said, you know, he said, if I’m elected. No Republican will ever lose an election in Wisconsin again. I mean, this is shocking, absolutely shocking.
Speaker 2: And people are aware of those things because we tend to look at sort of the big stories of politics. But what I was wanted to focus on is that there are stories that we don’t look at that are equally important. There are guardrails that we’re not aware of that are equally important. And there is a movement afoot in the Republican Party right now. Schedule F, let them fire all these people, these unelected bureaucrats that Trump tried to get in and was reversed by the Biden administration.
Speaker 2: But now the entire party, not just Trump, but Newt Gingrich and all the other officials. They’re all saying, you know, we’re going to do this. And if they do it and if they’re able to say we’re going to fire people who put their oath of office and the Constitution ahead of their loyalty to the president, then we’re going to have a government of Rick and Grinnell’s and cash battles and Chris Millers and Chad Wolf and so forth who don’t protect us but protect the president. And so we’re heading into a fight whether we’re going to be able to. Reverse the efforts of these authoritarians or not. And we have to know the lay of the land. We have to know where the fight is being fought now.
Speaker 2: I do think and that’s the slightly optimistic point of this that. The US government’s the biggest, most complex organization in the world and no president can change all of it. And so there will always be a large group of public servants there and if they stand up, do their jobs, respect the law, then they can play a big role in rebuffing whatever these attempts are. And so, you know, we should celebrate them.
Speaker 2: And I think the other thing we need to do is we need to celebrate public service. You know what happens when you denigrate public service? You get Herschel Walker as a candidate. You get Senator Tommy Tuberville, you get people who have absolutely no business in office. And we’ve spent 40 years saying serving in government isn’t so great and so future generations aren’t going to do it unless we change the story, change the narrative, and let them know that even if they’re in the middle of that government, they can make a big difference. And so it’s about the fight to come. It’s about the lessons of the past and it’s about the values that I think we have to embrace if we’re going to have any chance in winning that fight.
Dahlia Lithwick: I love that. I love landing on that, David, because it’s so been my personal beef. When I hear, again, Supreme Court dicta maligning government lawyers who are trying to figure out how to deal with a deadly pandemic, or government lawyers who are trying very, very hard to figure out how to deal with immigration problems and to hear the court dismissing those people as a bunch of flunkies and to suggest that we as justices actually know better how to deal with the lethal pandemic. You know, we as justices know better.
Dahlia Lithwick: How to deal with global warming or other crises is a way of doing exactly the thing that you deplore in the book, which is saying that all of these folks who did not go into these jobs for the money or for the, you know, getting invited to the right cocktail parties, because most of them get invited to really bad cocktail parties. They did this out of an ethos of service and of civic virtue. And I think we all have to really recognize that if we continue to talk about those people as though they are all in the tank or corrupt or part of the deep state, their ranks will not be filled with better people. Their ranks will be filled with opportunists. And I really, really think this book is comes at exactly, for me at least the right minute to think through some of those questions.
Dahlia Lithwick: David Rothkopf is former editor of Foreign Policy magazine. He worked on international trade policy in the Clinton administration. He’s written several previous books, and he is host of the podcast Deep State Radio and a regular columnist for The Daily Beast. And the book is American Resistance The Inside Story of How the Deep State Saved the Nation. And I really did love every minute of reading it. David and I thank you not just for the book, but for the work that you do to really lift up. I think the ability to think in nuanced and complicated terms in a moment when we really resist that.
Speaker 2: Well, thank you. I admire the work you do. I hope we can keep our long conversation going. Podcast. The podcast. And someday maybe in person. But I think this is the fight everybody is in right now. And if you’re if you’re not in the fight, then you’re helping the other side. And it is a crisis and you’re doing this podcast and you’re doing a great book, These are the ways that we fight back. And I admire what you’re doing and and I consider a real honor and privilege to be able to join you here.
Dahlia Lithwick: Thank you for the book, David. Thanks for being with us.
Dahlia Lithwick: We have reached the part of the show in which we get to talk to Slate’s own wonderful Mark Joseph Stern, who covers the courts and the law and the Supreme Court and all the stuff. And Mark, we’re barreling into midterms. And you just wrote, I guess you and I both wrote pretty damn depressing pieces about what the midterms are really about. Mine was vigilantism. Yours was the courts. Why don’t you go first and tell us a little bit about why this election is already decided?
Mark Joseph Stern: Yeah, And I mean, this shouldn’t be surprising to anyone who follows redistricting litigation. But this round of lawsuits over redistricting has been almost a total wipeout for Democrats and a huge victory for Republicans. And you and I have discussed some of these cases as they’ve happened. You know, the terrible voting rights shadow docket order that the Supreme Court issued earlier this year essentially halted all enforcement of the Voting Rights Act, a ban on racial gerrymandering, and ended up allowing Alabama and Louisiana and Georgia to grant at least one more seat in each state to Republicans to just severely dilute the voting power of black residents by packing them into a single district.
Mark Joseph Stern: And then that that all had kind of downstream effects as well, because states like Florida said, oh, well, if there’s no VRA anymore, we’re going to go all out. And Governor Ron DeSantis notoriously rammed through this extremely unfair map that severely and egregiously attacks the voting rights of black and Hispanic residents and carves up their districts to ensure that they have no chance of electing their preferred representatives and hands Republicans several more seats. And that is a clear violation, not just of the VRA, but of Florida law. The state of Florida and its people passed a constitutional amendment barring political and racial gerrymandering. But the state courts are controlled by Republicans, and so it wound up not really mattering. That law was just not enforced.
Mark Joseph Stern: And then in Ohio, we have seen this this terrible tussle between the courts and the state legislature and the redistricting commission. Again, the people of Ohio passed a constitutional amendment demanding fair districts. The Republican controlled legislature and Republican controlled redistricting commission refused to adhere to it and just ran down the clock to the point that the state Supreme Court did not have time to redraw and implement a fair map. And so elections in Ohio, in Louisiana, in in Alabama, those will be conducted under maps that courts have found to be unlawful. And in a few other states, Florida and potentially South Carolina, a few more with very diverse populations. The maps are highly suspect, but will still be used in the election.
Mark Joseph Stern: And so, look, if this is a red wave, if Republicans win by 30 or 40 seats, then this will have only made a difference around the margins. But if this is a relatively close election, if Republicans win by a dozen or so seats, that will be attributable entirely to the federal courts and state courts in Republican control, just using all of their tools to ensure that Republicans could maximize their wins through ultra gerrymandered maps.
Dahlia Lithwick: And maybe another way to think about this, because so much about what’s going to happen next week feels like it’s both overdetermined and invisible is that these are massive system flaws that we don’t pay attention to when we’re talking about the polls and get out the vote and voter suppression and all the things that we think about going into an election. This is something that we all saw happening in plain sight over the last couple of years, but it’s awfully hard to fit it on an A1, you know, top of the fold New York Times story.
Mark Joseph Stern: Yeah, it gets boring. I mean, it’s like, how many times can you cover the same set of facts in different states? It’s the same dynamic playing out over and over again. People tune out and I get it. I understand. But what what I think is unfortunate is that this stuff tends to be covered through an exclusively political lens. You know, a lot of the mainstream coverage of these battles is just looking at Republicans versus Democrats. And that’s largely how I described it as well.
Mark Joseph Stern: So maybe I’m part of the problem, but we should also take a step back and say this is about deeper principles of American democracy. Right. This is about states ability to guard against this egregious kind of gerrymandering being knocked down in the courts. This is about the Supreme Court just declaring that the Voting Rights Act no longer had any life to it and could not be enforced to. Protect racial minorities. And so it means that we will have a house that is not just more Republican, but that is whiter, less diverse, more fringe than it would have been otherwise. And, you know, we as a people have passed laws designed to prevent that from happening. But a law is only as good as the judge who’s enforcing it. And with all of these conservative judges, there’s just not a lot of hope that fair district laws will be enforced.
Dahlia Lithwick: Which is a lovely, if dispiriting, segway to embolden the lower court judges. We’ve talked about this a bunch on the show, the ways in which it just feels as though there’s no check anymore on a lower court judge who wants to do what he or she wants. Consequences. Never mind. I want to talk a little bit about lower court judges overruling.
Mark Joseph Stern: BOSTOCK Yeah, this is something everyone should have seen coming. Bostock was, of course, the 2020 decision in which Justice Neil Gorsuch, writing for the Supreme Court, held that discrimination on the basis of sex includes anti LGBTQ discrimination because it is impossible to discriminate against someone for being gay or transgender without taking their sex into account. We all remember conservatives received that decision as an apostasy. They viewed it as a grave betrayal. And now we’re seeing Republican judges in the lower courts simply refuse to apply it or to pretty much overturn it.
Mark Joseph Stern: And probably the leader of this effort is Matthew Kazmierczak, who is a very far right Republican judge in Texas. And what happens here is the Texas attorney general, Ken Paxton, simply walks into Kazmierczak court over and over again and has him strike down various aspects of the Biden administration’s agenda and got these massive, sweeping injunctions that halts the executive branch’s ability here to simply enforce a Supreme Court decision.
Mark Joseph Stern: So, you know, Biden and his administration issued these guidance letters explaining that you can’t discriminate against LGBTQ people in the workplace. That’s literally what Bostock held. And yet Kazmierczak issued an injunction barring that policy and saying that, in fact, Bostock did not protect LGBTQ people in the workplace because it only protected people on the basis of LGBTQ status, not conduct. So you can fire someone for getting married to a person of the same sex, but you can’t fire them for the status of being gay.
Mark Joseph Stern: What is the difference between those two things? Of course there is no difference. And the Supreme Court actually rejected this very concept in a case called Christian Legal Society versus Martinez and said that when it comes to especially homosexuality, there is no difference between status and conduct, that it’s the same principle as attacks on yarmulke, as being attacks on Jews, that when conduct is wrapped up in status, you can’t distinguish the two. And yet here we have Judge Kazmierczak saying that you can and that you must. And just using that feeble logic to try to overrule Bostock and he’s doing it in other contexts as well.
Mark Joseph Stern: You know, there’s identical language in laws like the Affordable Care Act that bars discrimination in health care in Title nine, that bars discrimination in education. And lo and behold, Kazmierczak is blocking guidance from the Biden administration that simply enforces those provisions and says that health care providers and educational institutions cannot discriminate against LGBTQ people. If this isn’t overruling the Supreme Court from below, I really don’t know what is. But again, because it’s just this drumbeat constantly going on in these lower courts of of of brazen defiance, it doesn’t get a lot of coverage or attention. And people like this rogue judge can do this lawless work, mostly undercover, and nobody pays attention.
Dahlia Lithwick: So speaking of not paying attention, you and I wrote after the affirmative action arguments on Monday that the court seemed almost wholly unconcerned with, oh, I don’t know, the trial court.
Speaker 2: Record.
Dahlia Lithwick: And the findings below and doctrine and everything else. And I think we noted in the piece, or maybe just smugly on Slack, that that was a pretty big departure from the text in history originalist Supreme Court that handed down Bruen the Second Amendment guns case last spring.
Dahlia Lithwick: You wrote this week about one judge who was like, I actually can’t do the homework that you gave me and Bruen because it’s stupid. Can you talk a little bit about I know it seems in the sort of absolute blur of bad news, you just dumped a kind of a weird form of fighting back, but you seem to take at least some grim satisfaction in a trial court saying, I’m not a historian.
Mark Joseph Stern: Yeah, I thought this was just a wonderful way to almost call Clarence Thomas bluff because. And as you said, Clarence Thomas said judges have to become amateur historians. They can only uphold a gun regulation if it has some analogue from 1791 when the Second Amendment was ratified. But of course, you know, the vast majority of judges have zero training in historical research and analysis, and they have, in a series of decisions, just kind of relied on these various, totally incomplete, often contradictory scraps of cherry picked history that different parties present to reach the conclusion that they want to reach. That’s how we get decisions, saying that you have a constitutional right to carry a gun into an airport or a domestic violence shelter. Right. Domestic violence shelters didn’t exist in 1791. So voila. Today, the Second Amendment guarantees you a right to take a gun into one.
Mark Joseph Stern: And here this is Judge Carlton Reeves in Mississippi, a federal judge in Mississippi, who is, I think, one of the greatest jurists of our time. He has been really outspoken in support of judicial independence, especially as it was challenged by Donald Trump. He has been a proponent of racial justice, of confronting and tackling continued white supremacy. And he’s just a really smart guy who’s always has an interesting perspective on these issues. And in this case, he’s dealing with something that so many judges have had to deal with since Bruen, which is whether a federal law that bars convicted felons from possessing firearms is constitutional.
Mark Joseph Stern: Now, this law is applied all the time in so many different courts. This is a very frequently enforced law because it’s easy for federal prosecutors to prove. The federal government has basically said it believes that this is a good way to keep dangerous criminals off the street, that being a, quote, felon in possession is often a proxy for being more broadly dangerous or violent. And so this is just a kind of run of the mill case where there is a guy who was previously convicted of a felony, who was caught with a gun, and he and his public defender argued, understandably, that in fact, there is no historical analogue to this felon in possession ban, that in 1791, people convicted of felonies were not automatically stripped of their right to bear arms.
Mark Joseph Stern: And the government came in with a really paltry five page response that clearly did not dig into the historical record that just said, Well, we disagree. We think it’s super obvious that these kinds of laws are constitutional. And Carlton Reeves, again, to his great credit, said, look, I don’t know who’s right here. I cannot put myself in the in the shoes of a rich, white, landowning man from 1791 who would have voted on the ratification of the Second Amendment. I don’t have the proper tools to perform a holistic and comprehensive historical analysis. If I try my hand at this, even in the best of faith. I’m just going to be cherry picking evidence from the record to support the conclusion I’m already leading toward.
Mark Joseph Stern: And so he has floated this proposal of appointing a real, unbiased, trained historian in this case to brief the courts on the real history of laws banning felons from possessing firearms. And to help him reach a conclusion here. He is the first judge to do so despite these cases cropping up all around the country. I think there’s a really good chance the parties will agree. They have very little to lose here and they don’t want to look as if they’re trying to bury the true history.
Mark Joseph Stern: And this is like maybe the first positive development in gun law since Bruen came down because it points a way toward ending this dilettante amateur hour pseudo historical analysis and getting real experts to to explain to courts in clear terms what was really going on in 1791 and whether that can be sort of extrapolated to uphold or strike down gun laws today.
Dahlia Lithwick: Yeah. I mean, I’m just going to say the prospect of some day deciding gun cases where we have two historians drawing their guns back, Don, seems both fitting and tragic. Mark Joseph Stern covers the courts and the law, the state courts, the Supreme Court’s election law. So many other things for us here at Slate. Mark, I want to wish you a happy weekend before the midterms. And thank you as ever for all you do.
Mark Joseph Stern: Happy last weekend, just period, last weekend of many, many things. And we’ll talk after whatever happens next.
Dahlia Lithwick: And that is a wrap for this episode of Amicus, the Pre Mid-terms edition. Thank you so much for listening in and thank you so much for your letters and for your questions. You can keep in touch at Amicus at Slate.com or you can find us at Facebook dot com slash Amicus podcast.
Dahlia Lithwick: Today’s show was produced by Sara Burningham. Alicia montgomery is vice president of Audio and Ben Richmond is senior director of operations for podcasts here at Slate. We will be back with another episode of Amicus in just two short weeks and until then, to take good care.
