Eric Holder’s Supreme Court Protest
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Speaker 2: I was distraught. I was angry. I was very troubled by what the court had done in Shelby County versus Holder. And that’s something that to this day disturbs me, the notion that my name is associated with the case that eviscerated the crown jewel of the civil rights movement.
Speaker 1: Hi and welcome to Amicus. This is Slate’s podcast about the courts and the law and the rule of law and the U.S. Supreme Court. And I am Dahlia Lithwick, and that might be at Slate. And this mid-July, Saturday, as the court closes its doors and the justices get off on speaking tours or sneak out of steakhouses by the back door.
Speaker 1: We at Amicus like to take a step back from the day to day news cycle and step into a sort of reflective mood. And we bring you conversations about books and documentaries and plays and even law review articles that might help inform how we all think about courts, justice, jurisprudence, the rule of law. But maybe through a wide lens or from a totally unexpected angle. And so we’re kicking off this summer season with a book and a man that made me really think about America’s Democratic predicament and the court’s place in that predicament in some new ways.
Speaker 1: Former Attorney General Eric Holder’s new book is called Our Unfinished March The Violent Past and Imperiled Future of the Vote. And it is about gerrymandering and voting rights. And it was written by General Holder with Sam Koppelman. Our unfinished march was published in May by One World Press. It is simultaneously a roadmap of how voting rights became broken. Hint they were born that way and a warning of how much more completely they may still be eroded and what can be done to restore the basic principle that in a democracy the people pick their leaders.
Speaker 1: Eric Holder was attorney general of the United States under President Barack Obama from 2009 to 2015. He was the first African American to hold that position. He now serves as chairman of the National Democratic Redistricting Committee, which was established to help the party redraw congressional lines. General Holder, it is an honor and a treat to welcome you to the podcast.
Speaker 2: Well, thanks to all you for having me.
Speaker 1: So I think I want to start by asking you how much you were worried about these issues, the erosion of democracy and voting rights, even back as AG. There was always a focus, even when you were AG on vote suppression and vote fraud and caging schemes that carried over from the Bush administrations. And I know you were AG when Shelby County came down. We’ll talk about that. But even some of that gerrymandering and voter suppression seems kind of quaint when you look at the overt election subversion taking place right now. We’ve got, you know, the independent state legislature doctrine looming and fake electors and January 6th.
Speaker 1: And I guess I’m just curious if you thought back when you were A.G. that it would happen this quickly. And I know you quote one of my favorite quotes in the book, Ernest Hemingway saying, How do things fall apart slowly then quickly? It seems to me as though this is happening quickly in a way that I wonder if you anticipated even ten years ago.
Speaker 2: No, I don’t think I anticipated what we are seeing today. Ten years ago, I knew that when I became attorney general in February of 2009, that focusing on voting rights was going to be something that the Civil Rights Division was going to have to do, as it traditionally had done. But relatively quickly, over the course of the first 18 months or so in office, I saw that there was a backlash to the election of Barack Obama being expressed in a number of ways, among them being attempts to make it more difficult for what were perceived to be Obama supporters to get to the polls, make it more difficult for them to get to the polls. And that’s what drove me to give a speech at the LBJ Library where I essentially said this Justice Department will be very forthright, be very forceful in making sure that the right to vote is protected.
Speaker 2: Fast forward from there to 2013, the Shelby County decision. At that point, it’s clear that all bets are off. All bets are off. The Supreme Court is going to gut the Voting Rights Act. And right after that happens, and I’m going to say right after I’m not talking about weeks, but days after that, states start to put in place things that the Justice Department, with an intact Voting Rights Act, would have stopped. And from that point on, you really saw this attack on our electoral system on steroids. I saw a recognition of it early on. And then from 2013 on, you seen things escalate to a degree that I would not have imagined possible if you’d asked that young attorney general sworn in in February of 2009. Do you think this is the place that you’ll be in July of 2022?
Speaker 1: And is some part of that a function, general, of the fact that these are just abstractions to people, that we all just have these notions, you know, one person, one vote and democracy and call my congressman that this is too abstract to be made real so that you chip, chip, chip, chip away at it. And then when it becomes manifestly clear you can do voter ID, you can perpetuate the myth of vote fraud, you can disenfranchise felons and nobody squawks. Then you can actually do a January six where you’re just saying fake election and Biden lost.
Speaker 2: Yeah, you’ve got to lay the groundwork and you’ve got to talk about voter fraud. You’ve got to talk about the need for photo ID. You’ve got to equate photo ID and getting into a ballot place with showing a photo ID and getting on an airplane, which for a lot of people makes a great deal of sense. Which is why you see, I think, about 80% of the American people who say, well, you know, you should have to prove who you are when you cast a ballot. One of the things I actually have come to say, all right, well, we have to just deal with that, but come up with a way in which we make it less prescriptive that what Republicans have put in place and that actually discriminates against certain groups of people. But you’ve got to lay that groundwork. And then once you’ve laid that groundwork, you can build this superstructure of anti democracy, voter suppression measures that, again, substantial numbers of people don’t really get impacted by.
Speaker 2: I look at the election in 2020 in Atlanta, Georgia, after 6 p.m.. If you are a white person voting in November of 2020, you wait 6 minutes to vote. If you’re an African-American in the same city, you wait 51 minutes to vote. That’s seems to me a pretty long period of time. But if you look around the country, you’ll see that people, African-Americans, people of color are waiting not 51 minutes, but two and 3 hours to vote substantially longer than their white counterparts. So that superstructure of discrimination gets built on lies and disinformation, and then it gets expanded.
Speaker 2: And now we have to deal with the biggest lie, which I never thought we’d have to deal with this notion that somehow, someway, a man who lost an election by 7 million votes had the election stolen from him. As I say in the book, there was another regime in Europe in the 20th century that talked about the big lie. And people hear a big lie and think, well, that is such a huge thing that they are asserting. Some portion of it must be true. And if that’s the case, then some of these measures that they’re putting in place make sense and are potentially appropriate.
Speaker 2: And so all of that witch’s brew is what gets us to the place where we are now. Where I think and I don’t think I’m being alarmist. I don’t think I’m being somebody who is going overboard. I think our democracy is at risk. Our democracy certainly under attack. But people need to understand how close we came to losing our democracy on January the sixth of 2020, just a few months or so ago, if a couple of things had broken differently and conceivably could have, we would be in a fundamentally different place in July of 2022 than we actually are now. As bad as things are, they could have been worse.
Speaker 1: And I want to just point out that you have a note at the start of the book that I gather was not in your outline or your proposal where you quite literally proffer a defense of democracy. And I know as you wrote it, I mean, it’s manifest in the note that you were astonished that you have to now defend democracy. But, you know, you see polling even among young people in this country who are just like, I’m kind of over it, you know, who’ve kind of given up on voting on institutions, on politics and policy and government. And I guess I wondered if you could just talk for a minute. It’s sort of a four part defense of democracy, and you don’t need to unpack it. I’m going to urge listeners to read it, but how astonishing it is that you actually have to say it. A time of Viktor Orban. This is me coming forward as the former attorney general of the United States to defend the notion of democracy. It’s one of those slowly and then quickly prep. Positions.
Speaker 2: Yeah, the book was probably about three fourths, 7/8 written. And then it hit me and my co-author, Sam Koppelman. You know, we have actually got to start this book by stating that which I would have thought would have been obvious to every American that democracy is the best system of government, that we need to defend democracy in the United States of America. That democracy is the thing that makes this nation exceptional. It’s what we talk about in our founding ideals, but actually make, to the extent that we could, the systematic case for democracy that was never supposed to be the beginning of the book.
Speaker 2: And yet I thought that given what happened in January and between November and January, the reaction of the Republican Party to what happened on January the sixth. Hearing Senator Mike Lee saying things like, well, you know, ranked democracy is not necessarily ranked democracy is not necessarily the best thing. And in other people saying, well, we’re not a democracy, we’re a republic, drawing these fine distinctions, these fine lines. It made sense for us to say, all right, here’s the deal. Here’s the deal. Let’s talk about democracy. Let’s give you the reasons why democracy is the best of all governmental systems and why it’s worth fighting for. And then let’s talk about the history, about why people before us agreed with the assertions that we’re making in this opening chapter and what it is that they did, the sacrifices that they made to make real that promise of American democracy.
Speaker 1: So that’s a perfect segue way, because I think that the two places where you are talking about this is what? Black Americans had to do to get the vote. And this is what women had to do to get the vote are both ways of making that point that you can’t be asleep now. And both in terms of, you know, you talk about Emmett Till and you talk about Medgar Evers and you talk about John Lewis and the unbelievable loss of human dignity, human life to procure the vote.
Speaker 1: And I just was really struck by your section where you talk about women’s suffrage, because what they had to do in order to get the vote is equally not pretty. Storming the polls in the 1860s, refusing to pay taxes in the 1850s. You quote Belva Lockwood saying, let women refuse to marry and let married women refuse to sew on buttons. And we’ve got Alice Paul doorstep stepping Woodrow Wilson in 1917 until she’s arrested and brutalized. And I get the sense that you’re drawing a line both between sort of the civil rights struggles of the sixties and the suffragettes in the 1870s, to the sense now of almost complete complacency that someone better get H.R. one passed. Someone had better get the John Lewis act passed.
Speaker 1: But this I’ve kind of done my thing. I called my representative or I, you know, posted something grumpy about Joe Manchin. And I think your point is, throughout the book, people put their actual bodies on the line for the right to vote. And I guess I’m curious, how much of that is this clarion call on your part that people are just going to have to do more than tweet about this?
Speaker 2: Yeah, people are going to have to do more than tweet. People are going to have to do more than look at MSNBC, CNN, Fox and yell at the television. Our history tells us that we have made progress on the democracy front only when people become engaged in very substantial ways. And, you know, if I had to do it over again, I wouldn’t call this book Our Unfinished March. I would have called it America’s Unfinished March, because the reality is that there are substantial groups.
Speaker 2: We start off the book talking about white men fighting for the right to vote. Now, these are white men without property and they fought for the vote. And the founders actually thought about, well, should we give white men without property the right to vote? And some of the founders said no, because if you do that, that will encourage other groups to seek the right to vote. I mean, my God, women will ask for the right to vote. And a couple of say, well, children will ask for the right to vote. And they were right, at least to the degree that once men without property had the right to vote, others wanted to have the right to vote.
Speaker 2: And we see that each group is willing to sacrifice, is willing to work. I mean, you know, the suffragettes, you can paint this nice portrait of women in early 20th century garb marching down Pennsylvania Avenue with nice little placards. The reality is, as they marched down Pennsylvania Avenue in 1913, they were not just yelled at. They were not just spat upon. They were beaten. They were beaten.
Speaker 2: Alice Paul parks herself outside the White House, along with other people arrested, taken to the DC jail and force fed on something that’s called the Night of Terror, to put down their noses to make sure that over the course of some number of days they were fed. When the American people found out about this, they were shocked. It goes on. African Americans, Medgar Evers dying in his driveway, holding on to a bunch of t shirts that say Jim Crow must go. And people also tend to forget that in the South, those three civil rights workers in 1964, Chaney, Schwerner, Goodman, we know they died. But people tend to forget they died because they were trying to register black people to vote in Mississippi in the summer of 1964, which was supposed to be a Freedom Summer of Freedom Summer for voting rights in Mississippi.
Speaker 2: And so if we look at that history, if we understand the effectiveness of that history, we owe a debt to the people who sacrificed before us to give us the rights that we now take for granted. But we also have to learn from them. Positive change is not promised. It doesn’t just happen. It’s a function of commitment, sacrifice and action. And so that’s what this generation of Americans has to do. But is also an optimistic book, because the reality is that if you engage in action, if you are committed, if you are prepared to sacrifice, ultimately you will bring about changes that seem insurmountable.
Speaker 2: I mean, think about Dr. King. At some point, I’m sure he turned to Ralph Abernathy, others John Lewis, and said, wait a minute, do we really think that we can? Down a system of American apartheid. I mean, we’re just a bunch of black preachers here in the South. How is this going to happen? I suspect they doubt it at some point. You know, that they could do it and yet they kept up to kept the work going and ultimately they were successful. So in this day, in 2022, when things seem difficult, seem hard, we should be heartened by what our predecessors did, but also understand that we owe them a debt and we disrespect them unless we are prepared to do the fight in the way that they did.
Speaker 1: I started by asking you whether this question of voting is just to inchoate for folks to get their heads around. And these big issues of a Senate that was designed to privilege rural white states and an Electoral College, that the whole point was to privilege minorities. And one of the things I find is that. Folks are okay. They understand voter ID and they understand what it means to purge the voter rolls or shut down polling places in urban centers where overwhelmingly minority communities live.
Speaker 1: But you have picked the single most challenging thing to explain, which is gerrymandering, which is like sort of in Kuwait, mess on top of in Kuwait. It is such a challenging problem to describe to the average American who just doesn’t fully understand what the promise of one person, one vote means in terms of picking our leaders.
Speaker 1: So I wondered if you could sort of both explain the problem. And I know you’ve done this a million times, but explain that this is just as pernicious and toxic as shutting down polling places or voter ID. But also just tell me why it is that you really, really chosen to focus your work on this thing that feels almost completely intractable.
Speaker 2: The decision to focus on the problem of gerrymandering and when we announced the National Democratic Redistricting Committee back in January of 2017, that was not an easy task. I remember that press conference as if it were yesterday, and these reporters were there with their cameras and all. And you can see they were looking at their watches and figuring out how long we have to keep the cameras on, you know, and and people didn’t quite get it. And I remember those initial meetings with potential funders and just people in organizational meetings trying to get them to care about gerrymandering and getting people’s eyes would glaze over.
Speaker 2: And I realized, you know what? It does seem a little arcane, a little obtuse. What we’ve got to do is make this real for people. So people have to understand that if you care about a woman’s right to choose, if you care about gun safety, if you care about criminal justice reform, if you care about protecting the right to vote, those are all directly connected to who serves in state legislatures, who serves in the United States House of Representatives. And that through gerrymandering, you can create these safe seats where people can do things. Representatives can do things inconsistent with the desires of the people they represent and actually face no electoral consequence.
Speaker 2: In fact, the only thing that a person is concerned about in a gerrymandered district is not the general election. You know, the Republicans are definitely going to win. The Democrat is definitely going to win. You’re worried about a primary challenger, which discourages you’re reaching across the aisle to compromise with your opponent from the other party, which is seen as a sign of weakness and therefore invites a primary challenger. And that’s the concern that you fear the most. Not reaching across the aisle leads to paralysis. Nothing gets done that breeds cynicism in the American people because we see the obvious problems, we see the obvious solutions. And yet these gerrymandered legislatures, including the House of Representatives at times, doesn’t do the things that the people, their constituents, clearly want to have happen.
Speaker 2: One of the two things I’d say is the whole question of gun safety. You know, 80, 90% of the American people want to have background checks. And this has been true since Sandy Hook and maybe even before that, at least a decade ago. The Supreme Court, dealing with the whole question of abortion, has had to deal with laws passed by gerrymandered state legislatures. And even in the most conservative of states, people have said they didn’t want to see Roe versus Wade overturned.
Speaker 2: Yet the Supreme Court has to make that determination, not because the American people are saying we want Roe versus Wade overturned, but because representatives in gerrymandered legislatures not listening to their constituents passed these laws that get increasingly draconian, increasingly away from the desires of the American people. And then the Supreme Court is empowered to do that, which it did with regard to Roe.
Speaker 1: So one of the themes in your book, and certainly that I’m hearing in this conversation, is waiting around for democracy to fix itself or for great leaders to fix democracy. Using broken systems like the Senate, using broken systems like the Supreme Court doesn’t work and that ordinary people have been effectuating meaningful change from the founding.
Speaker 1: And that throughline goes through the book and you kind of land up on Chris Hollins, who got more people to vote in Harris County, Texas, Mid-pandemic, than had ever voted before in a presidential election. And I think he stands for you in this book. As the template for what America when I say wake up and do stuff, be like, Chris, like you don’t have to run for office. You don’t have to change the world, but you got to do some things. So I wonder if you can talk a little bit about and I’m using this locution of wake up and maybe that’s not what you want to say, but what it means to be the person mid-pandemic who gets people voting in Texas.
Speaker 2: Yeah. I mean, Chris Holland, I think is a perfect example. He’s charged with the responsibility of finding somebody to run the elections in Harris County in the middle of a pandemic largest county in the country. It’s around the Houston area. And of course, nobody wants that. Who would want that job? Why would you want to take that job? All right. I’m going to try to make it safe for people to vote in the middle of a pandemic. And so he decides that he’ll be the one to do it. Nobody else wants to do it. He’s on a path. I mean, he’s got a great education. He comes from great schools. He’s had great professional experience. This is a young man who is bound for bigger and better things, and people counsel him and say, you know, you take on this problem of elections in Texas in a pandemic. This could be the death of your political aspirations. And nevertheless, he does it.
Speaker 2: And so he comes up with ways in which he keeps the polls open 24 hours a day, seven days a week, polling places, so that you can just go to drop boxes and drop things off. If you’re an older person or at that point a younger person concerned about contracting the virus, you can do things in a almost touchless way.
Speaker 2: He comes up with a whole variety of ways in which he increases the turnout, not a little bit. He comes up with a historic turnout, larger than any Harris County turnout ever in the middle of a pandemic. I mean, think about that. This young man comes up with ways in which without any indications of fraud. And that’s something that people have to understand, without any indications of fraud. He simply made it easier, safer and healthier for people to vote.
Speaker 2: And what was the reaction of the Texas legislature after they saw these millions of people in Harris County voting safely and without any indication of fraud? They tried to take away all the things that he very creatively invented. You talk to people down there and they said, well, you know, I didn’t have to decide between going to work and voting or I didn’t have to decide between voting and worrying about exposing somebody in my house to the virus, all because of the things that he put in place.
Speaker 2: And talk about another young woman in the book whose name is Love Cesar. Again, ordinary people doing extraordinary things. She finds out that her campus in North Carolina, and which is the largest historically black college university in the country, is gerrymandered and gerrymandered meaning here that it was split in two. One part of the campus voted in congressional district five. Another part of the campus voted in Congressional District six. If you woke up in a dorm, you could be in contest Congressional District five. You could go to class in congressional district six. And the dorms are on different sides of the campus. So kids on the same campus voted in different congressional districts.
Speaker 2: She got a piece of chalk, really big piece of chalk, and drew a line down the middle. I tried to follow as best she could where the line was drawn at North Carolina. And he galvanized people, young people, students, as well as teachers at North Carolina. And to make them realize our political power is being essentially divided in half. It’s being weakened. And so she raised the consciousness of people there. Got our attention. At the end, DRC and we filed a lawsuit on their behalf. The North Carolina Supreme Court said this is an inappropriate racial gerrymander and threw it out. And so the North Carolina Republican legislature had to redraw the lines. So young. Chris Harris with great ideas, love Caesar with her chalk really changes in fundamental and positive ways.
Speaker 2: The electoral system improved the democracy in Texas, in Harris County and in North Carolina, and that’s consistent with what we have seen and what we talk about in the book that other so-called ordinary Americans have done and what we have to do now in July of 22 in America, ordinary Americans are anything but that. They are extraordinary Americans with, I think, civic responsibilities that for a little too long in the recent past, we have not recognized and not acted upon.
Speaker 1: And I love that message because I think it’s the answer to so many. Disaffected listeners who just feel powerless is no power is picking up a piece Chuck of power is making it easier to vote and that is a thing that doesn’t come from outside of you, that comes from inside of you. And I think it’s really something we need to say and say and say again.
Speaker 2: And the thing there that’s important, dilute, is at the end of the book, there’s a joy in the struggle that people, I think, need to understand. Yeah, I know we have all important professional lives and personal lives, and it’s a sacrifice to get involved in these civic things that I’m talking about. But there’s joy to be found in that if you dedicate an hour or two a week to do something that is going to make this democracy better, stronger, something, it’s of a civic nature. It’s not going to necessarily be easy, but you’re going to feel better about yourself at the conclusion of that week. And in fact, our democracy is going to be stronger. There is joy to be found in this struggle, and that’s what people should not forget.
Speaker 1: It’s funny.
Speaker 1: My last question for you was joy question mark and you’ve just answered it. Can I ask you about one part that really broke my heart and I want to pull on this with you because I think it maybe didn’t get as much attention as it ought to have. You describe partway through the book your own, I think you call it a silent protest after a Shelby County. Shelby County versus your name, to be sure, comes down and you say, you know, it’s always been the case that the attorney general symbolically argues one case at the Supreme Court, and usually he or she is given a sort of easy lift, but it’s important and symbolic.
Speaker 1: And then you say, after Shelby, I came to the conclusion I just couldn’t do it. And I’m quoting you now, I didn’t want to pretend that this was a Supreme Court like any other, that the justices were good faith actors, that a tradition should be followed. They had, without legitimate basis, undermined our most fundamental right, a right that Americans of past generations, some of whom looked like me, had died to secure the right to vote. And then you say this was a silent protest. You hadn’t told people till now was essentially that you would not appear before that court as the ag of the United States.
Speaker 1: Wow. There’s so much in there that I want to ask you about. But I think at the heart of what you’re saying is that I love this institution. I revere this institution as a young attorney. This was a temple of sorts for you. And you describe that and that once it was so fundamentally enshrining something that particularly I think you’re saying as a black man, you could not abide, you just couldn’t participate in giving cover to the idea that it’s legitimate. That’s so complicated. And I wanted to give you a minute to think about it out loud.
Speaker 2: Yeah, it is complicated. And the book describes the transition that the young Eric goes through to get to where Attorney General Holder ended up. Because my first trip to Washington, D.C. was as a first year intern at just completed my first year of law school, I was working at the ACP Legal Defense Fund and was tasked with the enormous responsibility of getting on the Eastern Shuttle, flying from New York to Washington, going to the Supreme Court at the clerk’s office and just filing something. That was it.
Speaker 2: And it was my first trip to Washington, DC and I walked into the Supreme Court. They give you some you know, I think they’d seen this is a young kid who’s obviously here for the first time. They gave me a bunch of pamphlets and it described who was on the court and I left there. I remember standing on the steps of the court, looking at the Capitol. I’d never been to Washington, DC before, and it’s kind of like, you know, I’d seen everything on my little black and white TV in Queens and New York, and now I’m seeing everything in color. And it became real.
Speaker 2: I could see, you know, often the distance where Dr. King gave his speech in 1963, the March on Washington in the Supreme Court. I’m looking at Congress. It was for me, even though I knew the Supreme Court had not gotten everything right, even up to that point. But it was a breathtaking experience for me. And I remember how charged up I felt. I mean, literally charged up. I felt on that plane ride back from Washington to New York and with the little receipt that showed, yup, I was successful at going to the clerk’s office and filing something that that was the main task.
Speaker 2: And then you fast forward to the attorney general of the United States. It’s just, as you say, I watched Janet Reno when I was deputy attorney general prepare for her argument and being assured over and over and over again there’s no way you’re going to lose this case. You know, this is the easiest case. We’re going to have to argue. It’s important symbolically for you to interact with the justices. Every attorney general does it. And so I. Decided I wouldn’t do it in the first term because I just thought whatever I say up there on whatever case will somehow get misconstrued. I don’t want to have the White House mad at me for having some negative impact on Barack’s re-election efforts. I’ll do it in the second term, and then Shelby County comes down.
Speaker 2: And at that point, I really have to say to myself, all right, this is a tradition that I want to be a part of. Neal Katyal, who had been the acting solicitor, was no longer in governance, but he was still pushing me to do it. And I understood you know, I understood his view. He’s an institutionalist. And it was something that was symbolically important. And yet after Shelby County, I felt that if I were to go there as the first African-American attorney general and that this abomination of a case had not occurred, that my people were not negatively impacted by what it is that these justices, five of these justices, had done.
Speaker 2: I said, no, I’m not going to do that. I’m not going to just say this is business as usual. No, I didn’t make a big deal of it. I could have announced I’m not going to go and argue a case for the reasons I’ve just outlined. But I said I’m not going to participate. I’m just not going to go up there and at least put a veneer on what my feelings are, which was I was distraught. I was angry. I was very troubled by what the court had done in the Shelby County case, and I call it the Shelby County case, but it’s more appropriately Shelby County versus Holder. And that’s something that to this day disturbs me, the notion that my name is associated with the case that eviscerated the crown jewel of the civil rights movement.
Speaker 2: And so ultimately, I decided no matter how easy the case, no matter what the tradition, the most important thing that this black lawyer and this black lawyer that this black man could do would be not to participate in in a process that had led to or was in the process of leading to the evisceration of the thing that have most helped my people during the course of our stay in this nation.
Speaker 2: The right to vote is what may be attorney general. The right to vote is what lifted by people out of poverty. The right to vote is the thing that has protected the lives of black Americans through the course of the history of this nation. And so this black man was not going to stand before the Supreme Court and say, I’m here to win an easy case. I’m not going to do that. But I wanted to at some point to make clear why I did what I did or why I didn’t do what people expected me to do. And this book gave me the opportunity to explain it.
Speaker 1: General, the reason it’s so painful to hear you talk about it for me is that I, in a much smaller scale after the Kavanaugh hearings, and as a woman who sat in the chamber during the Kavanaugh hearings, had the same experience where I just had to stop going into the Supreme Court. And for a long time it was a secret protest, as was yours. It took me a long time to write about why I couldn’t go in the room.
Speaker 1: But what I love about what you’re saying and what I hear in what you’re saying is that this is a function of adoring this institution, not hating this institution. This is an institution that gave us a brown. This is an institution that gave us Griswald and Casey and Cooper versus Aaron. And it is not from a place of pique. It is from a place of I don’t know how to hold the idea in my head that it is both lofty and broken. And that’s what these protests are about, is not wanting to participate in saying that the thing that is now broken is still lofty. But for me it just was very powerful to read it.
Speaker 1: I guess I just want to give you a chance before we wrap up. There’s the book literally has a checklist of stuff people can be doing right now about gerrymandering, about the Electoral College, about fixing the Senate, about doing away with the filibuster. We don’t need to go through it. But ultimately, this is a show about the Supreme Court. So I need to give you a chance to talk about your notions about how to fix this Supreme Court that you could not bring yourself to argue in front of. And you’ve got a couple of suggestions, and I just want you to talk about them in no small part, because we seem to be in a moment where everybody, again feels as though there is nothing to be done. The court is the court and the court is made of magic, and we all have to accede to that reality. You have some simple fixes, simple and constitutional fixes.
Speaker 2: And they come from a place to echo what you said, a place of love from a desire to have an institution that I revere or have. Return to the place where I think it should be. I think we should reduce the amount of time that people serve on the court. Lifetime appointments, when made at the beginning part of the Republic made sense, insulated people from political pressure. People didn’t live nearly as long as they do now, so they didn’t serve nearly as long as they do now.
Speaker 2: People also left the court in the early parts of the Republic, not making a determination about who would appoint their successor, but simply because they died. And this is one of the places where the chief justice and I, as I point out in the book, tend to agree. I think we should have 18 year terms, he says. 15 year terms. But I think to have people serving on the Supreme Court for 30 sometimes, you know, close to 40 years in an unelected position that gives a person too much power. People serve in Congress and in the Senate for extended periods of time, but at the very least, there’s at least nominally a check that the American people have on that power by voting for them or voting them out. The Supreme Court they’re looking for. Early fifties, late 40 year olds so that they will serve for, again, 30, 40 years, which is not to take any shots at any of the people who are on the court.
Speaker 2: Amy Coney Barrett, the new Justice Jackson qualified. That’s fine, but 15, 18 year terms, I think, makes a great deal since I like 18, because that goes along with my other proposal, which is that every president in his or her term should in the first year appoint a Supreme Court justice and in the third year appoint a Supreme Court justice. And if you have 18 year terms over time, you will get to a court that gets back to nine members.
Speaker 2: Because the other thing that I say we have to do is expand the court to deal with the way in which it was politicized by Mitch McConnell and his Republican co-conspirators by telling Merrick Garland, you can’t get a hearing because it’s too close to an election. And then putting Amy Coney Barrett on the court while people in the process of voting the American people understand that was not right. That was not appropriate. But people don’t understand is the impact that that had. This would be a court now that would have a54 progressive Democratically appointed authority.
Speaker 2: And so the Rubio case where the Supreme Court said we’re not going to deal with partisan gerrymandering probably would have been decided in a different way. The Janice case that dealt with union power would have probably been decided in a different way. There’s a whole range of cases from the time Merrick Garland would have gone on the court until now and then continuing with somebody different than Amy Coney Barrett being appointed by a President Biden that would have transformed the court. We would not have had to deal with the whole question of Roe versus Wade. That court would not have had to deal with. The court did.
Speaker 2: So there’s a whole variety of things in a very practical way that these suggestions that I’m making, which, again, a lot of people are going to say, you know, you’re talking about the House, the Senate, the Supreme Court, the presidency voting. That’s impossible. How are you going to do that? But that’s the point of the book. You know, we have made substantial changes before, changes that seemed impossible, obstacles that seem insurmountable. And yet the American people energized, focused, committed, prepared to sacrifice, brought those changes about.
Speaker 2: And it is during those times when America has shown that it’s in fact, an exceptional nation, when we end slavery, when we end Jim Crow, when we make sure that women have the right to vote, when we pass a Voting Rights Act so that we eliminate poll taxes, literacy tests in all of these things, that’s when this nation shows itself to be great and we can do it once again.
Speaker 2: People underestimate the power that we have as so-called ordinary citizens. We have within ourselves the power to do extraordinary things. And I think the book overall, it’s sometimes hard to get through, and it’s hopefully emotional for people. But I hope people will come away from it feeling a sense of optimism and a renewed sense of commitment.
Speaker 1: Yeah, I mean, that’s exactly where I landed on this last question, which is Joy. QUESTION Mark. There are moments let’s stipulate when you talk about Jeff Sessions, when you talk about Donald Trump, when you talk about the big lie, where it’s clear that you’re angry. But it seems to me that there’s a seam of absolute joy, whether it’s Belva Lockwood saying don’t sew buttons on or it’s you just importuning people to knock on doors. Just knock on doors, that is. The opposite of powerlessness. It is joy. And I think that the feeling of stuckness and despondency, the doom loop that you talk about, the only way out is to do something. And so I love that this book is just a roadmap to doing something which, with a side of joy, felt like exactly what I needed. I cannot thank you enough.
Speaker 2: This is anything other than an angry book. It’s a factual book about which I think all Americans should feel some degree of discomfort and maybe some degree of anger. But to use that anger, that discomfort in a positive way, to make the change that that we need, you know, Dr. King said that the arc of the moral universe is long, but it bends towards justice. But here’s the deal. It doesn’t bend on its own. It only bends when a committed American people put their hands on that arc and pull it towards justice. And there’s joy in the pulling of that arc.
Speaker 1: Eric Holder was attorney general of the United States under President Barack Obama from 2009 to 2015. He serves now as chairman of the National Democratic Redistricting Committee. And the new book is Our Unfinished March The Violent Past and Imperiled Future of the Vote. Written with Sam Koppelman. Thank you so much, General Holder. This was straight into the veins. What I needed to hear. Thank you for being with us.
Speaker 2: All right. Well, thanks for having me.
Speaker 1: And that is a wrap for this episode of Amicus. Thank you so very much for listening in and thank you always for your letters and your questions. You can keep in touch at Amicus at Slate.com, or you can always find us at Facebook dot com slash Amicus podcast. Today’s show was produced by Sarah Burningham. Alicia montgomery is vice president of Audio and Ben Richmond is senior director of operations for podcasts at Slate. We will be back with another episode in two short weeks. And until then, do take good care.
