Michael Waldman [Rerelease from 5/25/23]
2023-08-10 02:08:01
Hi, I’m Dax Shepard, and I love talking to people. I am endlessly fascinated by the messiness of being human, and I find people who are vulnerable and honest about their struggles and shortcomings to be incredibly sexy. I invite you to join me as I explore other people’s stories. We will celebrate, above all, the challenges and setbacks that ultimately lead to growth and betterment. What qualifies me for such an endeavor? More than a decade of sobriety, a degree in Anthropology and four years of improv training. I will attempt to discover human “truths” without any laboratory work, clinical trials or data collection. I will be, in the great tradition of 16th-century scientists, an Armchair Expert.
Welcome, welcome, welcome to Armchair Expert. I'm Dan Shepard. I'm joined by Monica Padman. Hello, Monica.
Hi.
We have incredibly exciting news. Starting on Monday, August 14th, you'll be able to find all new episodes of Armchair Expert free on Spotify and everywhere you get your podcasts. But in the meantime, we decided we wanted to revisit a few of our favorite episodes over the last couple of years.
Yes, it's very exciting for us, because we get to come back to every one, which is really, really fun. And these are some of our faves.
Yes, in case you missed them, these are the ones that we thought were worth re-airing before we go wide on August 14th. Please enjoy some of our best of. Welcome, welcome, welcome to Armchair Expert, Experts. on Expert. I'm Dan Rather.
I'm joined by Mrs. Mouse. Hey. Heller. We got a whole new genre of conversation today that we don't normally, you throwing some things away on your computer here?
Just what? Some trash? Do a little housekeeping on your desktop?
I had to get rid of something really important.
Oh, my God. You look like you were caught.
Classified documents.
Photo or something? Classified documents. Where someone saw it?
I don't wanna talk about it.
Oh my God. Michael Walden is here. He is an attorney and a presidential speech writer. He wrote or oversaw 2,000 speeches in the Clinton administration. He's also a political advisor.
He is currently serving as the president and CEO of the Brennan Center for Justice at NYU School of Law. He's got a couple of great books, The Fight to Vote and The Second Amendment, a biography. And he has a new book out, which he's here to talk about, and is the new genre of exploration for us, the Supreme Court. The book is called The Supermajority, The Year the Supreme Court Divided America.
Supreme Court's really interesting.
Very.
Twisty, turvy, history. Mostly turvy and some twisty. A little twisty. A little bit twisty. Please enjoy Michael Waldman.
He's an armchair expert.
He's an armchair expert.
He's an armchair expert.
He's an armchair expert. We should do it just because you're from New York and we're in L.A. How preposterous do we seem? So you're in Brooklyn.
I'm very hip. Clearly you're very hip.
You're involved at NYU. I mean, you couldn't help, but through osmosis, stay young, I'd imagine.
I get younger as everyone else gets older.
You're like Wooderson in music and business. But we've lost all objectivity. So I'm just asking if you could just tell still what seems preposterous about L.A.
I still have trouble with the lack of sidewalks. I look on the map, oh, it looks like this is pretty close. I'll walk from here to there and it says 20 minutes and it should be two minutes. One of my kids went to school nearby and so I would come visit and I came to understand it's actually a collection of communities, and suddenly it made a ton more sense to me.
In L.A. geography they called it multinodal or polycentric, or a multinodal city. You're from originally New York. Yeah. But what was the cute name of the town?
Great Neck.
Where is Great Neck?
It's on Long Island. It's right over the border. I'm embarrassed to say this. You may know of it as West Egg.
West Egg. Oh, sure.
From the Great Gatsby. Before they built all the subdivisions. So East Egg was right across the water and everybody had to have a light on their dock, just like in the book.
Yes. Oh, wow. But you do wonder how much the culture is imitating the book. I think of this in terms of how much Hollywood's version of mafia infiltrated the mafia and they started acting like characters in the movie.
Apparently, when you listen to the wiretaps, suddenly they start talking like the Godfather.
Oh, wow.
When the movie came out. Yeah. I think, if you look for thousands of years, but certainly more recently, everybody's following some set of codes of what they think they're supposed to be doing in their profession or whatever. Half the time it comes from somebody writing about it or portraying it, rather than actually legacy passed on through the generations.
Yes. We have these incredible, now unifying, cultural apparatus, which is like before even in my hometown of Milford. we had a mini culture within Michigan because we didn't share any kind of media other than our local news, but we didn't have social media. We had no way to emulate really the next town. I don't know.
It kind of got rid of the individuality a bit.
Before radio, the regional accents were really thick. Al Smith was the governor of New York and he ran for president in the 20s, and so there are recordings of him that exist. You can't understand a word he's saying because he's got such a thick Brooklyn accent, but he sounds like a Cajun. Oh, really? And then radio came along and the movies had this mid-Atlantic accent where everyone talked like Katherine Hepburn halfway between England and Groton.
Yeah. And then radio came along and there was a period where all the late night hosts and all the news anchors were from Nebraska. And so the Nebraska accent became the not having an accent.
The standard. It's really fascinating the homogenization, how quickly that can kind of happen. Somehow, all the groundwork we just laid will dovetail beautifully into our conversation today about the Supreme Court. By reading a few of the prominent books about the founding of the country, what you quickly realize is that next to zero thought was given to this third branch of the government. They were very concerned about what the executive branch would look like.
No king, right? Everyone did not want a king, although some did want a king. And then, once you get into the legislative body, which everyone they're arguing, that's the class they'll assume, right?
They assume that's gonna be. the power in the government, is the Congress. And should it be elected by the people or by the states? and they had the big compromise where the Senate was the states and the House of Representatives was the people.
And really, that's even worth you breaking down. So, just right out of the gates, a democracy, okay, every human will have a vote. that'll get weighed proportional, each human, but then the smaller states, and this is what maybe the biggest stumbling blocks of coming up with the Constitution were, was we're gonna get run over and steamrolled by the rest of the country. And then this compromise was the Senate, which doesn't make any sense in a democracy.
Even at the time, Hamilton and Madison, who were these kind of young nationalists who'd come out of the army, they were not just from their local areas, but they had been in this big national revolutionary, radical enterprise. They thought the idea of having a Senate was terrible. They said, are we electing people based on houses or trees? These are artificial beings, these states, but they knew they had to do it to get the compromise. And there were aspects of it when they created the country.
I mean, in some ways, the Constitution was a backlash to too much democracy coming out of the revolution. Things were a bit of a mess, but it was also by far the most democratic document of that kind that had been done ever, or in a long time. And even having a census was considered a big deal.
What was the objection?
You would count people, and that way you could actually know how many there were and who would get to vote. And, of course, one of the things that they did was they said that enslaved people counted toward representation but couldn't vote. So they were three-fifths of a person.
Oh, three-fifths, sorry, downgraded, already shitty.
But they gave barely any thought at all to the courts. It was about one-tenth the amount of the Constitution devoted to the rest of these things.
Yeah, you're saying that Article III of the Constitution, creating the judicial branch, is 377 words long, only one-tenth of the amount of text devoted to the other two branches. It's a tiny bit ironic, considering so many of them were actually lawyers that were involved in this.
They were lawyers, but it didn't occur to them that the Supreme Court or the courts would turn into this branch. that was sort of not co-equal or even less than the other branches, but in a lot of ways, over everything else. They understood. there was this idea of judicial review, the idea that courts maybe could strike down laws, though that was new to the United States because in England, it was just the king.
Do you think that safety measure was really there to police states from coming up with insane agendas that would counter so dramatically from the goals of the federal agenda? More than they thought there'd be all these federal laws.
I'm a professional historian. I've written a bunch of sort of history.
You're a jurist-doctor holder.
Yeah, but I'm like a wannabe historian. Aren't we all? But once I started reading the notes from the Constitutional Convention, it's really fascinating, because Madison wrote it all down. It's like reading a transcript, and he kind of fudged it a little bit, but all this stuff that we assume maybe it was in the back of their minds, they were very explicitly talking about all this. Well, now we're fine, but in a few decades, we'll industrialize, and then our cities will be filled with immigrants, and then we're gonna have to do it this way.
They actually foresaw for worse and for better, and they were all about building federal power over what they saw as the often irresponsible states and state legislature. And this sort of fight between federal power and the states, which we're certainly seeing now, it's not been resolved. It's not new. How strong should the central government be? That's obviously not new.
And how do you ensure people's rights in a situation of that kind? Now, they thought the main way you would ensure people's rights was checks and balances, the political branches. I don't think they really thought there'd be judges in robes talk about people acting the way they're supposed to act, based on media representation. They did not really envision what we have developed over time.
Okay, so if you look at the Constitution, it's a bunch of protections from things to make sure that no law could ever exist to infringe on these. There's no laws.
Right, it's a lot of structures. And then the Bill of Rights was what can't happen and your protection.
So we don't have like a litany of federal laws yet.
The presidency, which, you know, is so powerful, especially in the nuclear age, they didn't know really what they were creating. They didn't want a king. They were really worried about sort of a dictator, a demagogue, who, as Madison put it, a man of opulence and ambition who will try to sway the masses and be a dictator, was specifically something they were really worried about, for good reason, based on history.
That's a trajectory of any man that got power.
Yeah, in human history. But there are provisions in there. Congress can regulate interstate commerce. It can create the Navy. I mean, there are things of that kind.
Again, they just thought Congress would be the one with all the power. when you read the Constitutional Convention notes. One of the reasons they didn't really wanna talk too much, in too much detail, about what the president could and couldn't do is George Washington was sitting there and they knew he was gonna be the president. Someone said, okay, I hereby propose that we have not a committee, because some of the states had had committees, one person, we'll call it the president. And then everyone sat there silently, afraid to talk.
Madison's notes say a considerable pause ensued. And then somebody finally says, I propose that we put this to a vote. right then. And Ben Franklin, who was the only one who had the stature to say, he, said, uh, this is pretty important. Why don't we actually talk about this?
And then they debated it, but they were just so in awe of Washington, who was sitting there, that they couldn't talk about the presidency, so it had no actual constraint.
They just knew, they were like, it's gonna be him.
A, he had just led the revolution of freedom, but also he was the embodiment of a compromise. He's from the South that has all the money, but the North trusts him quite a bit. He was the only guy who didn't talk in that group. Everyone else is a fucking blowhard, motor mouth. And they started imbuing all this wisdom on him simply because he was silent.
John Adams, you read his letters, he's like a blogger. I mean, he's just nonstop opinions spewing out. So Washington, first of all, he showed up at the Continental Congress in a uniform.
That he had made himself, by the way, and paid for.
They all said, oh, he must be a good military leader. He has a uniform. He was like the best horseman in the colonies.
or something like that.
And he had also done this thing that was really extraordinary, of course, which was step down from power. And if you think about, he's not the only revolutionary military leader in history. Almost always, whatever they say at the beginning, they turn themselves into a dictator.
Yes. Right.
And there's like a really limited number of people.
He and Grant are the only people I know.
Yeah, you could say Mandela too. And then the other thing is, he was very focused on following the lessons from the Romans and what had gone wrong there through theater. And he had them all watch these plays about Cincinnati, about the people who stepped away from power in ancient Rome. And this was what they were all supposed to be like.
A friend of mine who's religious says if there was ever a Providence that he's witnessed, it's George Washington. He's like the only human on planet Earth that everyone could have possibly gotten behind to make president.
And he had no kids.
He couldn't pass anything on.
He couldn't pass anything on.
Because that's what they were super fearful of, right? It's a hereditary pass of power.
Coming from the king, yeah.
A counter example. is, I just read a biography of Napoleon.
Oh, I've been dying to. Do. you have a good rack?
Andrew Roberts, it's long. But so Napoleon is also this modernizing, he's up from nobody. He's not even French. There was a lot going on at the end of the French Revolution, but he rises up. He believes in sort of the rule of law and all this stuff.
He makes himself a dictator and he decides he's gonna become emperor. What I still don't really understand is why did his imagination fail there? Why didn't he say, oh, you know, I'm gonna be like George Washington, who they all really admired, and have a term and step back. And instead, he's literally put a crown on his own head. Now, some of it was the other European kings respected that better.
But again, Washington was pretty unusual.
He didn't wanna be president and he certainly didn't wanna be there for a second term. Unique.
Yeah, and flawed in deep, deep ways, as we know. The largest slave owner, I think, in Virginia, among the things he did was when you were in a non-slave state for long enough, then your enslaved people would get freed. So he would send his guy back out of Philadelphia to make sure he stayed enslaved. So he was not, he was terrible.
And yes, his right-hand man, I forget his name, I'm embarrassed to say, but the one he was sending back, that guy was like running the show and he was never, ever given much.
With all of them, none of us can look away from, they knew it was wrong. At the same time, they set in motion this government that could fix it. Jefferson, who never freed his slaves and went heavily into debt, but put the ideals of we're all created equal and life, liberty, and pursuit of the happiness out into the world, at the very best, a hypocrite. But the ideals that they were putting out into the world were pretty revolutionary. They understood at the time, a lot of people in Europe understood at the time, they said, why do we hear the loudest cries for liberty from the people who drive the slaves?
Oh, yeah, yeah. But they put these ideas out that became this kind of goad, this ethos that then became. what, when you read about the abolitionists, when you read about Frederick Douglass or Dr. King, they're still appealing to those ideals, even though the people who did them were very, very flawed and we would regard as racist and we would regard as white supremacy and all. that's true, but the universal ideals, they weren't lies, they just were not true,
but they haven't ever been true. I gotta say, I think that whole era in the Continental Congress, it screams of pragmatism in maybe the best way possible, which is, you had a whole group of people that did not believe in slavery, the Northerners, and they were pragmatic. They're like, we're gonna appease them, sure, we'll have the Capitol in the South, we'll have George Washington, the Southerner from Virginia, as the president, but we're gonna slide in these mechanisms by which we can unravel this whole thing. and it's a really pragmatic and long view approach to solving an enormous problem that doesn't seem entirely present today, that level of Machiavellian plotting, compromising with the ultimate goal of that.
It's an interesting thing, because all of us have a tendency to look at this group of people as deities. And again, it's part of how we all mentally organize the country and our lives. They were both revolutionaries, pragmatic, flawed, but put these pretty dramatic ideas out into the world. The idea that there's a Declaration of Independence says government is legitimate only when it rests on the consent of the governed. In a world where everyone else had a king, or a pope, and the constant way we make change in our country is to go back to the ideals and say, well, if you really believe this, then we can't have slavery.
If you really believe this, we need the New Deal. It's the kind of thing we all keep appealing back to.
It parallels a lot the art and the artists. They're all flawed, they're all philanders, many alcoholics, terrible dads, you name it. They're shitheads. But the art they created is worth in many ways, minimally that it's still functioning. And you have your complaints and I wanna get into them and we'll go through what's happening now.
But all in all, I'm regularly astounded with it working. When you see a certain court uphold something in some district and then they fuck up the whole system and they slam the train, stop, it still works incredibly well. Not that it doesn't need a ton of work, but it is also quite impressive.
You know, it's the oldest written constitution in the world now, which means there's plenty of stuff. they were really cutting edge for that moment. And that later on, we learned lots of lessons and therefore we wouldn't do it that way now. So, I mean, the Electoral College is an example. And for the longest time, it was basically an irrelevancy.
It always followed the popular vote. And, as we know now, in the last two decades, the loser of the popular vote won the Electoral College. It almost happened in 2004, when John Kerry almost got elected president. It's not just Republicans. The Senate, this compromise, at that time, the biggest state was seven times bigger than the smallest state.
And now compare California to Wyoming.
They're under a million and we're almost at 40..
All kinds of things like that. And I would even say lifetime terms for Supreme Court justices, is another example.
Right, exactly. Now, here's what is fundamentally frustrating about hearing people who are treating the Constitution as the Bible. So it differs dramatically. as two different documents, the Bible and the Constitution. One was intentionally designed to evolve and change.
The other one's the word of God and it doesn't change. But these two things, they've been conflated into one thing. There's the Bible and there's the U.S. Constitution. But it's very frustrating for people who hold that opinion of the Constitution that they're denying that the document itself was designed with many mechanisms to change it as we evolve.
They added 10 amendments in the first two years. They thought it was gonna be easier to amend than it was. But part of what's so absurd to me about the way we're now looking at this, that we're gonna parse every word of the text with dictionaries from the 1700s, as though everyone walked around carrying dictionaries. Right, right. And, like you say, in a sort of a religious worship of the fathers, this holy text way, it's gonna tell us what to do now.
Even if everybody else has had a different view for 200 years, now. we're gonna consult this religious text and the wizards in the robes.
The clairvoyance in 1778..
First of all, they all fought with each other all the time about what all of it meant. They assumed it would change.
It's really important to know that everyone walked away, pissed off that they didn't get a lot of the stuff they wanted. Right. It wasn't a slammed up, they didn't leave there high-fiving.
Well, and they were fighting with each other about what it all meant. instantaneously. And in high school or college, you read the Federalist Papers, and this is the thing that the lawyers are often consulting, you know, this is what it meant, which is Hamilton and Madison and John Jay. Anybody who's seen the musical knows they wrote it in this flurry of activity. It was a bunch of op-eds.
Yeah, there you go.
They churned them out, and a lot of what they were saying was basically nothing to see here, move along. You're worried about too much, don't worry about it. And now we assume that this is what they actually meant. James Madison, in one of these Federalist Papers, Federalist 10, said, well, the thing we care about most is avoiding faction, meaning we have to structure the whole thing so that factions, sort of special interests or political parties, we can't let them exist in our country. Only wise people are gonna make these decisions.
He wrote that anonymously in The Federalist. Two years later, he'd organized the first political party in the United States, but still it was basically the Democratic Party. So he writes a whole bunch of other anonymous articles saying some people think faction and political parties are bad. They obviously don't know anything. All throughout history, there's been two political parties, sort of one on the left, one on the right, and that's the way change happens, literally within two years.
So it makes it even harder to treat it with the religious reference.
The sanctity that everyone wants to. Okay, so now, here we get into this third branch of the government, the judicial branch. I trust you've listened to More Perfect. Have you listened to that great podcast series?
Yes.
I have a very cursory knowledge of it all, but whatever I have comes from that podcast, which is incredible. I encourage people to listen to that. Radio Lab. Radio Lab produced. It's incredible.
A lot of law professors now do really good podcasts. It's like the perfect medium.
Get long and boring. Let's go. Yeah. You're gonna do our commute and we'll talk to you about something.
As long as you don't fall asleep.
Okay, so as I recall, and I'd love for you to give us kind of a history of how engaged in part of the machine it was at the beginning. I remember from More Perfect, listening seven years ago, they convened once in a blue moon in the basement of a building. They rode there on horseback. They could only be there one or two days a year. I mean, it was a fucking joke at the beginning.
The Supreme Court justices, Congress made them ride circuit, meaning they literally had to get on a horse.
and ride around and supervise the cases.
There was a pretty significant early case, Marbury versus Madison, and that was the one where they said, oh, we have the power to strike down a law as against the constitution. But they didn't do much after that. And for the first half a century of the country, there was a lot going on. There was all these fights over expansion of the country and slavery. The Supreme Court sort of stayed out of it.
It was these other big figures who were really involved in it.
Is that when a liquor tax first pops up as well?
This is the Whiskey Rebellion. There we go. And so again, it was all about trying to exert the power of the central government over these rambunctious people out there.
in the countryside. In Pennsylvania.
Yeah, I wrote a book on the Second Amendment and the history of the Second Amendment, and that was a lot of, the same idea was that we had to have our local militias, and they were gonna stand up against the tyranny of the U.S. government. People have been worried about overreach from Washington, when it was actually George Washington.
Well, when you found a country, because you're pissed about overreach of one government, the King of England.
It gets in your bones. Yeah.
That's kind of the premise of your whole situation.
Yeah, it was this kind of primordial soup era where things were getting created and crashing into each other, and there was a lot of violence. It was all new, and the Supreme Court, again, just didn't play much of a big role in the whole thing.
Okay, and you say that there's three big cases that move their evolution towards what they are today, which is, we'll just start by saying they're at apex power today. I mean, it's really unparalleled, the level of sway they have over our politics now.
I think that's right.
By a factor of like 10x.
They're making huge decisions. Right now, there's this super majority, six very conservative justices moving mostly in political lockstep. They're striking down laws all over the country. They have lifetime tenure, and a lot of them could be there for a long time. They're not elected, and the question for all of us is sort of, well, do we just sort of sit and take it?
We say, oh, well, you know, maybe my great-grandkids will sort this one out.
Well, by the way, it's the most unique problem. if you assess it as a problem, as I do. I'm sure if I was on the right, I wouldn't even be too concerned about this. And I do hope we can keep this as neutral as possible, because I want to appeal to both sides. Like currently, yeah, if you're on the right, you're crushing.
You're in the end zone, doing a victory dance, which is great, I get it. But also, I really want to try to do a nonpartisan, reason why this level of power with nine human beings is not a great idea.
And the idea that we sort of take for granted that every June, we're gonna sit there and wait for nine unelected people to tell us what country we have now. Other countries don't do it that way, and we really haven't done it that way always through our own history. I grew up at a period when the Supreme Court, among liberals, was just revered.
Yes.
And I run an organization called the Brannon Center, which is named after one of the great liberal Supreme Court justices. But most of the country's history, actually, the Supreme Court hugs the middle. It pretty much reflects whatever the consensus is at the time.
Well, it's supposed to be apolitical.
Yeah, it's supposed to be apolitical.
That's the whole purpose of it.
And even specifically, if I recall, in one of these books I read, it's supposed to be the lever that is not responding to popular outrage. It's kind of like a control group. That's the design intent, right, is that these other two bodies are probably gonna be quickly swayed by public opinion, and we are right to say, oh, we should have a cool-off period before we make decisions. 9-12, not the best day to make a policy for the rest of our lives.
They call it the counter-majoritarian. In other words, sometimes when the crowd wants something, you want someone to say, slow down, everybody, but not too much. Sooner or later, you want the country, as it is and as it's growing and changing, to be reflected in the government that is supposedly elected by the people. There were only three times in the country's history where the Supreme Court left this kind of invisible, unmarked spot in a really big way, where it was extreme or partisan or unduly activist, and each time there was a massive backlash, there was a massive political and social backlash, there was even a political realignment. You know, one of the questions is, are we in a beginning of a moment like that now?
So one of them, for example, which I talk about in the book, is the Dred Scott case. So that was the first time Supreme Court really, really got in the middle of things, and only the second time in the country's history they struck down a law of Congress. There'd been all this growing agitation over slavery and efforts to push slavery out of the South so that it would be more nationwide. Every time there was new territories, every time there was a war, we had to decide, and the country was getting more and more worked up about it. And the Supreme Court said, we're gonna intervene and, quote, solve the problem, meaning the problem of agitation over slavery, not the problem of slavery.
They did this case, Dred Scott, which was this enslaved man who'd gone to a northern free territory and became free and then went back home to Missouri, and they said, oh, you're a slave again, and he fought this 11-year battle. First of all, everyone knew it was gonna be a really big deal. You might remember that the Dobbs case, the abortion case, leaked last year, and that was a really dramatic thing. The Dred Scott case leaked. Really?
It leaked to the incoming president-elect, Buchanan. He was actually privately lobbying them, hey, go big, overturn the limits on slavery. And so then he knew exactly what they were gonna do, so he had his inaugural. And first of all, he was on the stage, and he was like whispering to the chief justice, and everybody said, well, we know what that means. And then he got up in his inaugural address, and he said, well, the Supreme Court's gonna make this big ruling in a few days.
None of us know what it will be, but let's just all agree, we're going to abide by it, whatever it says. And the newspapers the next day said, well, we know what that means. So it said Congress could not limit slavery in the Northern Territories. Wow. Not only that, black people are so inferior, they can never be citizens and have no rights.
This was explosive. It led to an incredible eruption, led to the rise of the Republican Party. Abraham Lincoln's whole political career was to take on this opinion. He said, this is not just an opinion, this is a big conspiracy to try to spread slavery nationwide. And it got him elected president, and that split the country apart.
In his first inaugural address, a lot of Southern states have already seceded. Washington, D.C. is nestled in between Maryland and Virginia, which was still in the Union, both slave states. The capital's surrounded by troops. And his inaugural address, he says, some people say when the Supreme Court makes a ruling, we're all supposed to listen to it.
I don't agree. Oh, wow. I think it should bind the parties in the case, but really, if we're letting the Supreme Court be the super legislature, then what kind of democracy do we have? And then the guy who wrote the opinion has to swear him in. Oh, wow.
And so this was this really aggressive move by these unelected justices at that time, but the country reacted and pushed back in ways that are obviously really big. And it happened two other times before now.
Was the next one Brown?
Well, no, it was actually at the beginning of the 20th century. A lot of it was sort of similar to challenges we face now. Massive economic change. At that point, it was the rise of these big national corporations. for the first time, the trusts, really big inequality of wealth.
Millions of immigrants flooding into the country, not from Latin America, but from Europe. And government was seen as not catching up and corrupt. And there was a big response, the progressive era to all of this. And at that point, the Supreme Court said, our job is to stop government from being able to do anything about it. And they concocted constitutional reasons why government couldn't protect worker safety, women, wages, how many hours people would work in a factory or sweatshop or something like that.
There was a case called Lochner, it's called the Lochner era. This was a case that said, you can't work more than 10 hours a day in a bakery. We think of bakeries as like cupcakes and frosting, but it was really dangerous. back then. They were in the tenement basements.
There was explosions and shit, right?
Yeah, and everyone had tuberculosis and we put the tuberculosis in the food. Yeah, exactly. So anyway, they said, a rule like that violates freedom of contract. The freedom to work for as many hours as the employee wants. There was a massive backlash.
Theodore Roosevelt, who's an incredible character, he ran for president in 1912.. After he'd been president, he challenged his successor. And it was this crazy election where it was him and the guy who replaced him, Taft, and Woodrow Wilson. And there was a fourth candidate who was a socialist. And Teddy Roosevelt's issue was the Supreme Court, was these decisions.
He had some really out there ideas. He said that when the courts made a constitutional ruling, the voters should be able to vote down what they'd done. But this was what he was fighting about. It was a huge, huge issue. And he didn't win the election, but this wound up being in the New Deal in the 1930s.
So again, the Supreme Court saw its job just the same way. Strike down the New Deal. And they blocked all the agencies that Roosevelt created at the beginning of the New Deal, during the Depression, when a third of the country's unemployed. Social revolution in the air. The Supreme Court said, our job is to stop progress.
And Roosevelt proposed packing the court, expanding the number of justices. And it was a huge fight. How many were then? There were nine. Oh, okay.
And nine, you know, is not in the Constitution. It's just a law passed by Congress. But it's been nine for a while. Roosevelt said, oh, they're working too hard. Let's go up to 15 to relieve them of their burden.
Which is a strategy that's been suggested currently for Democrats to expand to 12, so we can get it even at least.
So what happened was, it was a huge, huge, huge fight. Roosevelt lost.
Can I pause you to say I love how you say huge?
I knew that.
I knew you were gonna say that.
I love it. Huge, huge, huge.
You know, you could take the boy out of Winner Island.
Yeah, exactly. It's a really big tell.
Don't lose it. Don't lose it.
I've spent all my life trying to sound like I'm from Nebraska.
You're gonna have to put that H back on, huge. Yeah, I will.
It was a big fight. But the Supreme Court backed down. They called it the switch in time that saved nine. And so, again, it was just, I'm not gonna use the word that begins with H. It was a really big, it was a big political brawl that changed the country.
And then the time after that, as you said, was Brown, the Supreme Court led by Earl Warren, who'd been the governor of California. And that court did all these things that I think to this day are extraordinarily important. It ended school segregation, or ruled it unconstitutional, at least, in Brown v. Board of Education. It said that you had to have one person, one vote, meaning legislative districts had to be kind of the same size.
They did all these things leading up to, after Warren was off the court, Roe v. Wade.
Can I ask really quick what the composition of the court was at that time? Because here's where I wanna police myself about being a hypocrite. Obviously, as a liberal, thank fucking God they did that. And also, perhaps the only mechanism that could have done that stuff so speedily.
Some of the stuff they did, I think, like Brown v. Board of Education, where the country. actually, if you look at public opinion polls, now, they're not the only way to understand how people are thinking, but when Brown v. Board of Education was announced, it was very popular in the country, other than the white Southerners. The system was broken, and they were the only ones who could bring the hammer down and break this.
And same thing with representation, with the malapportionment, but we would call it gerrymandering, the same thing. They said, these people elected to office, they can't fix it themselves. We're the only ones who can do it.
Stay tuned, armchair expert, if you dare.
Can I just add one? This one is from More Perfect. There's all these situations that we really do need them. A great one would be, sodomy. laws are on the books in a ton of states, and in order to get them off the books, some politician in that state would have to get behind removing them, which is, or at least historically, has been political suicide.
So they'd rather just not touch it and then decide to not enforce it. So it takes kind of an act of the courts to get rid of these laws, because on the other side, there's no incentive to do so.
This is one of the great dilemmas, and I love so much of what the Warren Court did, but we're still living in the backlash. Progressives and liberals lost the muscle memory of how to organize and how to win people over. They were relying on the courts to protect those rights. Starting in the early 1970s, the right wing organized and built a political movement and elected presidents and elected congresses to take this stuff on.
And clearly had the Supreme Court as one of their main objectives.
Emphatically. Until just a couple of years ago, if Democrats and liberals revered the court more than conservatives, even when the Supreme Court struck down the Voting Rights Act, or in Citizens United, they struck down all these campaign finance laws, liberals still loved the court, partly because of a ruling that would be an example of articulating national rights, or the Obergefell case, which said you have to have marriage equality. But what's interesting too, though, is that by that point, the country had sort of ratified marriage equality and same-sex marriage before the court did.
On a state by state.
Yeah, it was just changing. And they actually held back from making a big ruling for a few years to let the public consensus build. In a way that when Roe v. Wade in 1973 struck down the abortion laws, a lot of states had just been moving to liberalize or legalize abortion, and that cut it off.
Okay, so what was the composition?
Political philosophy didn't match up the way it does now to political party, because Eisenhower, who's a Republican, appointed Warren. But it was mostly liberals and a lot of Democrats. The last time a Democratic-appointed majority was on the Supreme Court was 1970.. The last time a Democratic president appointed a chief justice was 1946..
Oh, God.
So that really-.
Coming up on 100 years.
Some of that was just like bad luck. That predates now. That's not Donald Trump. That's not Mitch McConnell. And, as you said, there's six.
It's not just that they're appointed by one party. It's that back then you couldn't really predict what a justice was gonna be like. when they went on the court. A lot of them would change, and there were liberal Republicans and conservative Democrats. It was all more mixed up.
Now these justices on both sides are cleared and vetted well in advance, and none of them are gonna make a lot of surprising-.
No, you know exactly what they are. Here comes a pet peeve of mine, because I remember being young and watching some of these early. I guess the one that first was national news, of course, was Clarence Thomas when I was younger, because, of course, you had Anita Hill who was accusing him of sexual harassment during that. So that was the first one I remember being like national news. And even watching how he represented himself in those congressional reviews, keeping it pretty neutral.
I mean, other than defending whatever his point of view was on Anita, but not out there.
You're right that they had two sets of hearings. I mean, he was gonna get confirmed, and then she came forward with the accusation, and then he came back, and it was this very intense thing where the committee was all men. They'd never heard of something called sexual harassment. It was a huge national education. Lots and lots of workplaces suddenly developed sexual harassment policies, but the members of the Senate Judiciary Committee at the time were mostly experts and practitioners of sexual harassment.
Of doing the same shit he had been doing, yes.
And he came back and said, this is a high-tech lynching. It was very, very dramatic. But the part before that, he testified, he did not say, I am going to be a radical conservative. He said, I believe in a right to privacy in the Constitution. He testified that he had never, ever discussed Roe v.
Wade with anyone, ever. Yeah, yeah, yeah. And even though he was in law school, when it came out, it was a lie. And then there were people who came forward and said that's a lie.
Nobody in America had not had a conversation about Roe v. Wade, particularly a judge.
Yeah, these hearings turned into this very euphemistic thing where they all learned how to dance around what they actually thought.
I guess it's a chicken or an egg question, but one of my enormous pet peeves with our current democracy is, and we're about to see it, right? We're about to go into an election cycle, and they're gonna get every candidate up on the stage, and they're gonna go to the most divisive and most irrelevant fucking point for the general health of 350 million Americans. They're gonna isolate the most polarizing, completely useless topic, and they're gonna fuck up the whole election. based on that. I find this infuriating, and it's what's driving the fringe, taking over, both on the left and the right.
And so now, when I look at these hearings for the appointees, they go straight to the most asinine, crazy question, and they make them plant a flag. I don't know if it's the questioning that's changed or it's them that's changed or both.
It didn't used to be that there would be these public hearings for Supreme Court justices.
Well, because there's no place to televise it, right?
Well, that's right. It's part of the way in which this has become more and more central to our political life as these celebrity justices that we now know about. There was a nominee in 1987 named Robert Bork. That was the first really big public spectacle hearing, but it was on ideas. He was very, very extreme conservative.
And Joe Biden was the chair of the Judiciary Committee and led weeks of hearings where this guy, there's nothing wrong with him personally, who was so extreme in his political views that they voted him down. And a lot of Republicans voted him down too. And after that, the lesson was don't say anything. So for a long time, people would go up and they would dance around and they would just not answer questions. Elena Kagan, when she was a law professor, wrote an article saying this is a ritualized farce.
Then, more recently, as it's gotten closer and closer to the point where Roe v. Wade, say, was gonna get overturned, all the questions were not these kind of euphemisms, but they were, are you gonna overturn Roe v. Wade? What do you think of Roe v. Wade?
And so you look at the hearings of the three nominees that Trump appointed, Gorsuch and Kavanaugh and Barrett, they all say, I believe in precedent, it's settled law, it's settled law, but they never say, I'm gonna uphold it. They kind of imply it, but they're really careful. So the most recent hearing was Justice Katonji Brown-Jackson. She's very impressive. And the hearing was not about broad political philosophy.
First of all, all the questions from the Republicans seem to be designed to be spliced into tweets. Oh, uh-huh, uh-huh. And they were all about child pornography. And it was QAnon stuff. You know, you were on the board of a school that had a book in the library, and you made these rulings on these cases.
It was nonsensical, and it was just because they were doing a dog whistle to QAnon, which is, you know, is this conspiracy theory.
Can I say both sides do it, and it drives me fucking nuts. It's gonna be about like four issues that don't affect even 0.001% of the population, and that's what we're gonna decide on. And it's maddening, and that's what the justices are getting elected on.
It could be. I do think that when you look at the midterm election, the 2022 election, Biden got a lot of grief for saying that he thought that the election was about responding to the Supreme Court on the Dobbs case, the abortion case, but democracy, and taking on the election deniers who falsely say the election was stolen. And a lot of the kind of pundits said, oh, this shows he's losing it. The issue should be inflation and things like that. And it turns out that when you talk to independents and actually Republicans who voted for the Democrats, they actually voted on democracy, and they voted on abortion, and they put it together.
They said, this is evidence of extremism. Most of the public is not in the fringes. Correct. And the political system pulls everything to the extremes. Now, I would say right now, I think this is empirically right, though some listeners would say, oh, that's just partisan.
When you watch Trump's town hall, there's no equivalent on the Democratic side right now in terms of making stuff up and being as inflammatory as that, I don't think. Right, right. At least not near the center of power.
Okay, agreed. But here's the liberals' problem. We're fucking creating it. That was gonna be one of my questions for you. Why is CNN hosting a town hall meeting with Donald Trump?
Why haven't liberals figured out that, of the people who love Donald Trump, 40% of them had to vote for him because he was pro-life?
They would have voted for any Republican.
Yes, then you had maybe 30% that were like, whatever his brand of misogyny.
His base is 30%, yeah.
That's a big chunk. But what they're ruling out is an enormous percentage was just people who hate the left, and they saw how much he pissed off the left. How'd they see it? Well, we showed them all day long, every fucking day. So there were lots of people who simply enjoyed how much the liberals were upset and wanted to see four more years of the liberals upset.
And so we gave him whatever. it was, a trillion dollars of free media. We didn't learn. That's my biggest perplexion ever is watching CNN. You're doing it again?
So who's at fault, him lying or these bozos hosting this thing?
Although, why assume CNN is liberal? Ooh. That's what they're saying. They just wanted ratings. Post, Tucker, Carlson, they wanna try to attract some of the Fox News viewers.
But also, I think, CNN got very polemical. I couldn't watch CNN for a while because they were so sort of fact-free opinion about Trump. Yes, and there's still not really a news network that is neutral. I watch MSNBC. I like MSNBC, but it's pretty clear which side it's on.
Frontline, maybe? PBS, hopefully?
Too much of the neutral stuff is boring. Right. And so I've always thought that if there was a lively, less ideological news source, I would watch it.
But that's Frontline and no one watches it. That's PBS.
Too much of the media assumes that everybody is sitting around reading the news all day, following Twitter, and knows everything already. And what they need is analysis. And what they need is opinion. And I pay more attention to this stuff than most people, but I'm like, I don't know what happened today. I have a job.
I grew up in an era where you would watch the evening news and that was the first time you would learn what happened. I realized we're not gonna be there.
I agree with you. So it's not good for ratings and it's boring. But if excitement's what you want, then we have to make the government super exciting, which we've done. It was incredibly lopsided. Supreme Court.
now, demagogue. You have a guy that's very, very old running the country. Minimally, is that the best option in the country? Can't imagine it is. The whole system is laughably fucked up because we wanna be entertained.
And so here we are. It's very entertaining and it's terrifying.
But the new CNN guy, that's the claim of why they did have Trump and why they are doing all this is to make it more neutral, to have both sides, to not just be liberal. That's his whole point. That's what he's saying, he's trying to do. And then we're saying, well, you can't have Trump on.
You can do whatever you want. If you were upset, you had Trump, you must acknowledge your role in creating Trump. And now here you go again, doing the same thing. It's just a little insane. And if you listen to the moderator of that, she had an agenda.
She was finally gonna get him to admit out loud that there was no voting issue. Of course he didn't. I think they still thought, oh, we'll get them this time. They just need to fucking walk away from the whole sitch.
Well, he's running. It is tricky. Like, it's a fair chance to get the nomination.
We're doing it all over again is all I'm saying.
CNN, they showed Trump's speeches in 2016 in full, including when the podium was empty.
Right, he was.
Riveting, yeah. I have a friend who's a much, much older writer. And the question was always, you know, looking at Nazi Germany, the Jews who were there, why did they stay? In other words, did they see what was coming? And he talked to a bunch of people he knew who were Jews from Germany.
And they said, we knew Hitler was terrible. We used to listen to his speeches. It was obvious he was an anti-Semite. But he was really riveting. But just the way people would watch Trump's debates and speeches in 2016 and say, oh my God, could you believe the thing he just said now?
I just read the Warburgs, which is the history of the Jewish banking family in Germany. And we have verbatim what they thought about all of it. Here they're running this great sector. The Germans need them to run the sector. They think they're kind of doing this thing where, yeah, we'll give 30% of the shares to Sumerians.
They're thinking, this guy's nuts. They stated it. Well, did you see this latest thing? It's gonna be over in a second. Like, it was so insane.
They kept thinking, oh, this'll be over. Well, now that he did this crazy thing, everyone will finally wake up and it'll be over. And then it just kept getting worse. and it was never over until the Americans showed up. It's kind of the boiling frog situation.
Yeah, and Trump claiming the stolen election and the attack on the electoral system, we have not had that in our country before. And I don't think our system has figured out how to handle it. Because you can't ignore him. He somehow still speaks for tens of millions of people who, partly just because he's the leader of their party, say, oh, then, I also think the election was fraudulent.
Oh yeah, I lost a couple of buddies that I go off-roading with over there.
And it's hard to out-fact and out-argue. It might work on this stuff a lot. And there are ways of showing people that the elections can be trusted, that election officials are not partisan, they're local and they're trustworthy, but it's really hard.
What I'm suggesting is, with the greatest minds at our disposal, you being one of them, working on a counter-narrative to that, employing facts to debunk. that, to me, doesn't work. Another strategy we might try is ignoring. Because, again, the fuel is that it's pissing everyone on the left off. You can't underestimate how motivating that is.
Look, you were a speechwriter for Clinton. If anyone knows how to compose a fucking speech, it's you. If you made the perfect speech and you got to get all eyes on you, 300 million Americans, my guess is you might lead, in your best state, 9% of them towards you. But I think if we just ignored the whole situation, it'd be a much more impactful, gross total of people.
You may be right. I don't know. We've got to figure that one out. We've been trying the same thing now.
for about eight years, it doesn't seem right. Okay, back to the Supreme Court. So what is originalism?
Originalism is the way the Supreme Court now says it's the way it's making rulings. Especially last year, when they did these big new rulings, they said for the first time, this is how we're doing it, this is now originalism. And it's the idea that the only way you can properly interpret the Constitution is to look at what it meant back then, in 1791, say, or maybe sometimes later, if an amendment was added. That means in practice, what the property-owning white men of 1791, many of whom owned slaves, none of whom believed women should have the right to vote, who used leeches for medical care, what they thought was the way society should organize itself.
And laissez-faire capitalism would allow for two steamboat captains to run their boats into each other in competition and kill 300 New Yorkers, and we'd say, fine, that's laissez-faire capitalism.
That might be the right, right.
That's the era.
It's a crazy way to run a country. They call it history and tradition. Ironically, there's no history and tradition of making rulings this way. In other words, up until now, the country's been changing. People's understanding of the Constitution has changed along with it.
The Supreme Court, by and large, has moved along with the country. This idea that you have to go back in a time machine, and that's the only way to do it, is just as extreme, I think, as it sounds. But that's what they said. as of last year. It sounds maybe hyperbolic, but it really isn't.
So. first of all, there were three big cases in the last three days of the term in June.
This is June 2022..
Right. They crammed decades of social change and political goals for the conservatives into those three days. The first case was called Bruin, and it was about the Second Amendment, about guns. And then the second day was Dobbs, which overturned Roe v. Wade and put at risk all the other rights to privacy that have been protected in the Constitution.
And the third day was a case people don't know about as much called West Virginia v. EPA, which was about climate change, which really made it a lot harder for environmental protections and other things to happen from the government. But the first day, as I said, was the Second Amendment case, Bruin. So the Second Amendment says that a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. That's the entire thing.
That's it. And it wasn't until 2008 that the Supreme Court ever said that protects an individual right to gun ownership.
As opposed to a militia member? Right.
Before that, it was just over and over again, this is about the militias, which was from a time that's so different from us, we can't even imagine. Back then, every adult man, eventually every white man, was required by law to serve in the militia. From 16 to 60. And required by law to own a gun and keep it at home for their military service. There were no police, there was no army.
The militia was the way it went. It was the Minutemen versus the Redcoats. And then the NRA for decades waged a long campaign to get people to say, no, actually, this is to protect an individual right to gun ownership. So that didn't happen until 2008, in a case called Heller. And that said, oh, it was an individual right.
Back then, that's what they meant. Whether that's true or not, that was what they claimed to be doing.
Just time travel, talk to one of them.
Tap James Madison on the shoulder and ask him what he meant.
Also, let's say we time travel and that person told us that, then you'd have to go, and we've decided that person's opinion is the most important opinion in the history of mankind. Even if they knew that, that that would also somehow be a slam dunk.
Not that other countries are always doing it better, but in England, when there's a new law being proposed on guns or anything else, they don't sit around and say, well, that's a really interesting idea. What did King George III think about it? Because that's what we're gonna make our decisions based on. That's literally what they do now.
Although Putin does reference Rasputin.
Yeah, the past has never passed in some ways. But so, you know, they did this thing in 2008.. They said, yes, it's an individual right, but then they said there could still be restrictions on guns, there could still be laws that were public safety laws. And so over the past 14 years, almost overwhelmingly the courts upheld the existing gun laws and said, you know, it's an individual right, but you gotta balance it against public safety. And that's true with the way we deal with all these rights in the Constitution.
This case was by far the most radical opinion on the Second Amendment in the country's history, by a long shot. It was written by Clarence Thomas. He doesn't believe in precedent. He only believes, he says, in going back and asking what they meant back then. And Thomas said, well, you cannot care about public safety when you're talking about gun laws in the United States.
Only history and tradition. And what that means is you have to find an analogous gun law from 1791.. If they had them, then, then you could do it now, but not anything else. And this just sounds as absurd as it is. It's actually what it says.
This all struck down a law that was passed in 1911 in New York, saying you can't carry a gun around New York City. They said, oh, it was okay up until now, but now it turns out that was wrong, because that violated what they meant back in the powdered wig days. New York quickly passed a new law. The federal judge in upstate New York said, well, history and tradition. Two examples from the colonial era.
That's a mere trend. For it to be a tradition, you need three examples. And I therefore can find no tradition. I can find no examples of laws banning guns at sleepaway summer camps. Therefore, you can't have a law like that, let alone banning guns from underground electric trains, which hadn't been invented for a century, and struck down all these laws.
And it sounds like a parody, but that's actually what's going on all over the country right now.
Well, and here's where we get into the a la carte nature of the argument. So I wanna state for the record, I own guns. So I'm not acting holier than thou. I've said this a million times. If there was a switch on the wall, I could hit, no more guns in America, I'd hit it in one second.
But I also own them. If we're going back and we're getting literal about this, which is what he wants to do, Clarence Thomas, it is to fight a tyrannical government. And at that time, the weaponry was dead. equal. The civilian could have the exact same firepower as the tyrannical government.
So if that is what it was about, he must believe that you should be able to own drones and nuclear weapons, because that's the tyrannical government we have to keep in check. That's the armaments they have. So we should always be keeping pace with them, which then immediately we get into, well, who can afford that? So basically, we're saying Bezos should have probably tons of nuclear weapons and drones.
He has drones.
Well, that's a good point. It's so literal, and then, all of a sudden, it's not.
If they really believe that this was to keep.
a tyrannical government in check, then they should be on a very proactive campaign to get every American semi-auto grenade launchers and F-16s and drones.
Or have a draft, because everybody would need to serve in the military. And you could even make the argument also that if you're really serious about looking back at what they meant, it was all about public safety. They didn't have police back then. The idea that it wasn't about public safety or that public safety only came from me as an individual defending my home, the originalism in some respects in that case was kind of fake, because Thomas rummaged around looking for examples that worked for him. I mean, to me, the fact that this law that they struck down was from 1911, that's kind of history.
I wasn't around then. It's a long tradition in our country that people had guns in their homes, but that there were limits or even bans on what you could carry.
Even in the old West there were tanks.
Right. You had to check your guns in town. There's a wonderful photo from 1878 from Dodge City, Kansas, which was the archetypal Wild West town. It looks like a movie set. It looks like Universal Studios back lot.
It's a dusty main street. There's saloons on either side. There's hitching posts. And there's a sign in the middle of the street that says, welcome to Dodge City, firearms strictly prohibited. Right.
And you had to leave them at the town limit and you would get a token, like a coat check for your gun. And so there's kind of a long history. The next day was the Dobbs case. And probably folks are more familiar with that. All these people who said, oh, I respect, settled precedent, said actually this was egregiously wrong, and they overturned Roe v.
Wade and thus the nationally protected constitutional right to reproductive rights. And they did it in a way also that put at risk all the other privacy rights that rely on the same thing in the constitution, the same idea of protecting privacy, whether it's contraception or same sex relations. I mean, there's a lot of other things that are based on the same thing. And in that one, the implications of the originalism aren't fake, they're just terrifying. Justice Samuel Alito wrote that opinion.
He literally six times, cites a guy named Matthew Hale. He was a British judge from long before the founding of this country, who was notorious for sentencing women to death for witchcraft and who invented the doctrine of marital rape, who said that a man cannot rape his wife because she doth have consented. They cite him six times as showing, see, this is the tradition. It's just not the way our country has ever organized itself up until now. It is literally a turning back of the clock.
And I think people know some of these rulings are big deal. I don't think that people really know how big a deal the gun ruling was, but I'm not sure people understand how significant it is that this very powerful branch of government with lifetime appointments is now making its decisions based on such an extreme approach. We don't see that in the Congress. We don't see that even in presidency, but they're letting their freak flag fly. And there's not a whole lot they think that people can do about it.
And for a long time coming, we could probably predict there's a lot of use within this. by the judicial standards. A lot of these people could be around for another 20 plus years.
That's part of why they were put on their young ages. I think that's right.
Now, here's something that makes a lot of sense to me, that they're tenured, that they cannot be fired, because, again, per the original design, if they're gonna be the voice of slow down, let's think before we act against the crowd mentality that pervades the US at times, they need some protections to make very unpopular decisions. So that in itself seems very defendable to me. that they would have a job security, but I guess, why not for a 10 year window?
Yeah, why a lifetime?
You wanna protect judicial independence, and that's really important. And we've seen it even in other countries where judicial independence gets threatened, even most recently in Israel, where huge protests against what people thought was an attack by Netanyahu on the independence of the judiciary.
And I think we can see his aim. It is to make his position stronger.
and theirs weaker. But every state, Supreme Court and the constitutional courts in every other country have some kind of term limit or a retirement age or something like that. And it goes back to the basic insight that no one should have that much public power for too long. It actually goes back to George Washington, who understood that sooner or later, part of what you need to do is limit the amount of time you have, the much power. The constitution says that justices serve on good behavior.
You certainly could pass a constitutional amendment to create an 18 year term, say. I think it could also be done by a statute passed by Congress saying that after 18 years, their role changes, they become what's called senior judges and they still get paid. Sure. But, which is important to them, and they have some role, but they're not the same. President Biden appointed me to be on a commission on the US Supreme Court.
And these government commissions famously don't do anything. And this one literally was instructed not to reach any conclusions.
No kidding.
In the executive work. It was all because there was pressure on Biden when he was a candidate to be for expanding the court. So he said, well, I'll create a commission. Literally, they said, whatever you do, don't reach any conclusions. And we didn't.
Congratulations.
Yeah, finally, a government agency that works as intended. But it was really interesting. We had public hearings and we heard from dozens of witnesses, left and right. And some said, I'm for expanding the court. Others said, I'm against expanding the court.
Some said, I'm for a mandatory code of ethics. Others said, I'm against a mandatory code of ethics. Over and over again, left and right, they said, oh, but I'm for term limits, of course. There is a national consensus. People get this.
It isn't Democrats. It isn't Republicans. Now, if this actually starts to move, I'm sure instantly it will become more political.
Yeah, all these people that agree currently, once they find out what their side is supposed to believe.
There is a sort of silent national understanding that you can do this without really undoing the stuff we want, which is the independent court that can stand up for rights and say no to the mob and that sort of thing. These justices are on there for much longer than they used to be. It's a much more political process. And the people who are on the Supreme Court are actually different than they used to be. You asked about the Warren Court.
Who were they? Warren was the governor of California. You had former senators, former attorneys general, people who'd lived life, people who understood humanity in different ways.
Had been elected.
The people on the Supreme Court. now, all but one of them was an appeals court judge. They're very smart. They're academically gifted. They were all churned through the kind of ideological legal machines of either the Republican or the Democratic Party.
None of them have ever been elected. Only one or two of them had a senior government position at all. And that doesn't mean you have to have a senior government position. But again, it's a very rarefied, hyper-intellectual approach that they take. And they say, it would be wrong for us to care about the impact of our decisions.
They're Kantian by nature. Everything's theoretical.
Right, that has tons of implications. It's just, they won't say it.
Stay tuned, armchair expert, if you dare.
I think what's really relevant to say about this recent schism in June is that popular opinion is quite clear. Popular opinion did not agree with the Roe v. Wade. Every single poll I've read has been really demonstrably-.
Did not agree with what they did. Exactly, with what they did. The day of the gun ruling, because, remember, there were a ton of mass shootings.
There's a ton of mass shootings every single day. Yeah, so you could say any day. Any day.
It's the spring. Comes with the weather, unfortunately. And Gallup polls show that the day the Supreme Court basically radically deregulated gun laws, only 8% wanted looser gun laws. A lot of people wanted them to stay as they were. A lot of people wanted them to be stronger.
Only 8% wanted what the court did. Same thing on the Dobbs case. There has been for a long time a strong consensus in the country, probably with some limits, but pretty strongly pro-choice.
Upwards of 70%, there's no issue like that.
And you're seeing a real backlash in these other periods of American history. The backlash to the overreaching Supreme Court really shaped the country in big ways. You never know, of course, what's it gonna be like now? Are we seeing little ripple or is this some longer term thing? Two things really suggest that it's a pretty big deal.
One is the midterm election, the strongest performance by a party controlling the White House in decades.
Generally speaking, the pattern is whatever party's elected as president, they usually suffer then in the midterms.
This time, the Democrats almost kept the House and actually gained seats in the Senate, won state houses and legislatures, and it was a reaction to the Supreme Court. Yeah. And the other thing was an election a few months ago in Wisconsin. So state Supreme Courts are really important. They're not part of the federal system.
State constitutions are really important. Wisconsin is a state where it's pretty evenly divided, half and half Democrat, Republican. The elections are always really tight. Now, it's very gerrymandered, so the legislature has a super majority of Republicans, but the voters, it's pretty evenly divided. They had an election for Supreme Court justice, and most state Supreme Court justices around the country are elected.
Whether that's a good thing or not, different issue, but they are. And it's always really tight. This election was a referendum on the Supreme Court, Roe v. Wade, whether there should be abortion rights in Wisconsin, and also gerrymandering, the drawing of these election lines in a manipulative way. It was an 11-point victory for the more liberal candidate in reaction to Dobbs.
Political scientists will tell you that's an electoral realignment. If that gets replicated in one year, that's like an earthquake. And I think there is a big reaction that's going on now.
It's also putting politicians in a very weird position in some of these Southern states, because I'm from Georgia, and people really like Brian Kemp. He's giving money back to the people, and he just signed this six-week abortion bill because he has to do that now.
Six weeks from the beginning of your period. Yes. So it's really two weeks.
Yes, yes, yes, yes.
It's well before most women know they're pregnant.
He doesn't want to be the one doing that. That's hard for him politically, but now the Supreme Court has put that on these politicians, which is sort of interesting.
When they overturned Roe v. Wade, they said, look, this should be for the states. This should be for the democratically-elected branches of government. So, first of all, you have the realities in places like Georgia or in Florida, where Governor DeSantis signed the same kind of bill, which could doom him in the general election. nationwide.
The political system is very captured by the extremes. These are states that are the most gerrymandered, with the most voting restrictions, where democracy is not at its healthiest. It's roiling things. Now, one of the really good things that I think happened in the 20th century, and the Supreme Court had a big role, was to say we have nationwide rights. Doesn't matter where you live.
Your freedom of speech is the same. Your freedom of religion is the same. Abortion rights, basically, is the same. Wasn't always followed, but that we were one country. finally.
And it wasn't just the court. It was also, when they did, Brown versus Board of Education, 10 years later, Southern schools, only 3% of them were integrated. Wasn't? until Congress passed the civil rights laws that you actually saw the real change happen. But nevertheless, there was this idea that we're Americans.
We're not from these separate states. We're gonna all live the same way, more or less. Now, if Congress can't pass, say, voting rights laws because of the filibuster, even when there's a majority, which is the case, and the Supreme Court won't protect these rights, because they won't, then states can go do their thing. And so the red states, mostly, where it's one-party control, places like Georgia or Florida or Texas especially, they're headed in one direction. And places like Michigan or Minnesota or Oregon are headed in another direction.
And the kind of life you're gonna be able to live is gonna be different in these different states.
Well, one prediction I made right when that happened, the overturning of Roe v. Wade, which I think is starting to materialize a little bit, and I am even afraid to say it out loud, but I think the Republican Party committed suicide with that. In that, I think they vastly underestimated that the connective tissue and the glue that held that party together, and, even more, that made them turn up in such numbers to vote. In my opinion, that party had really kind of boiled down to a single issue that was keeping it together, and now they don't have that issue. And I think you're gonna see much lower turnouts from that party.
I think the people that live in the red states that already have it banned, they're happy, they're done, their mission's complete. I think they spelled the end of their party with it, for starters, because the margin was not that big for that party. You take away. that section of the motivated voter that only cared about abortion is now gone. That's gonna be enormously significant.
Second thing is, and I don't like this one, all these states are gonna become whatever they want. It's gonna be a very scary place to raise a teenage daughter. I'm not gonna wanna do that. if I have a teenage daughter. The economic opportunities are gonna be different in these states that have more liberal agendas.
We already see it. The brain trusts are gonna go where there's more freedom. It's gonna be a shootout, and I hate to predict it, but the red states are gonna suffer, and then the blue states are gonna go, see, we were right, and I don't want any of that. I don't think that's the goal, is victory, and all these different states doing it a different way, and some losing dramatically because of it, and the people inside those states suffering so that they can lose, and us celebrating a victory.
You have to vote for different people, then. I mean, that is part of it. You have some control in your vote.
But if you look at these founding fathers, they were pretty split. There were a lot of them that really believed in a federalist approach. Some of them was really hell-bent on the republic. They wanted states rights. Some wanted a strong federal government.
This is the original debate that's been going on, and we're actually now gonna see it play out where it's like, great, let's all compete, all 50 of us, because now everyone can do whatever the fuck they want, and we'll find out. The truth will come to the surface, but I'm a federalist. I don't think that's how we are competitive against China.
I so agree with that. It's interesting, too, because it's not just the states. Think of Texas. One of my kids used to live in El Paso. Texas is like a country.
Four of the biggest cities in the United States are in Texas, and they are as blue as Santa Monica.
And they call them the blueberries.
in the red sea zone. Yeah, exactly. Everybody there thinks they have their own version of that, but the rest of the state is so conservative. So a place like Austin, which is America's boom town, everybody wants to move to Austin or at least visit Austin. The laws being passed affect the people in Austin on gay rights, on abortion, rich people, and poor people.
It's not just wink, wink, it really doesn't affect me. I mean, it affects everybody. And so one of the good things about what happened in the 20th century was the understanding that we were stronger when we were one country. And if you go to the mall in Washington, there's a World War II memorial that's about 10 years old. They hadn't had one up until now.
It's 50 pillars for the 50 states. And I thought when I saw it, that's not how they thought back then. FDR was not talking about 50 states. This was one country. And we were standing up as the beacon for democracy and freedom all around the world as a country, not 50 individual sovereign states.
A great example of this is like the electrification of the country in the 30s. That's a premium, I think, sample to look at, which is it didn't behoove anyone in California or New York to fight for the rights to electrify the South. They didn't let the market decide who got electricity. They said, nope, this electricity is being generated by the resources of this country. And therefore you guys are gonna elect, and that was to defend the rural America.
That wouldn't happen today. They'd be like, yeah, fuck them. Let's see how those backwards motherfuckers die under, you know, no, our best moments have always been when we're like, no, no, it's an embarrassment for the country, of any part of its country. It doesn't have electricity.
One of the things I hope for is that that kind of national humanitarian vision, sooner or later, still can appeal to people.
Yeah, a child born in any part of the country should have virtually the same opportunities to get educated, to thrive, to do everything. We can't have these pockets of people living in the 40s and some living in, you know, the future. It's crazy.
You mentioned that I was Bill Clinton's chief speechwriter when he was president.
Oversaw 2000 speeches. I just wanna put that number out there. That is bonkers.
Cool, what a cool job.
When I left that job after a long time, they had a very nice party for me, and they gave me a T-shirt with what they said was the symbol of the speechwriting department. It was the recycling symbol.
So, you know, you say the same thing over and over again.
You get to 2000 speeches. You oversaw 2000 speeches, but only 12 original ones.
Yeah, exactly. No, but Clinton, before I had anything to do with him, when he was running for president in 1992, and again, a lot of these divisions didn't start last week, and in fact, the Democratic Party had been really split, especially since the 60s, by divisions between white working class voters, who were still Democrats at that point, and voters of color, and the idea was that it would be impossible to put that coalition back together again, and Clinton was very focused on this. He was really determined to show you could, and so during the primaries in 1992, in values terms, he said, opportunity for all, responsibility from all, a community, of all Americans, and it sounds like Pablum now, but in Detroit, when they had the primary in Michigan, he went to Macomb County, which was the suburban county where the white flight had happened, where all the white UAW members had moved to the suburbs and voted for Reagan, and they still considered themselves Democrats.
Well, they were voting against their interest in that they were union members.
And he went and gave a speech at a community college in Macomb County and an inner city black church in Detroit the same day, and he gave the same speech to prove you could. If you talk in this national language of equal opportunity, but values-driven, that you could talk to these very divided communities, and it wasn't a party trick. It was to show that you could.
Well, you're losing sight of the real enemy, right? We can't have New Hampshire competing against New Mexico. We need to be unified in some of these more geopolitical struggles. So let's just really quickly talk about why it would behoove folks on the right as well to try to be motivated to address this Supreme Court issue. Because again, right now, if you're on the right, you're probably stoked.
I can't not recognize that. And again, we were pretty stoked in the 70s on the left. But is there more to say than other, like, well, the title changed. So if like, with this system, guess what? Then?
you're gonna be eating shit for 21 years. Is that the system we want? Ultimately, my main issue with our government is the zero-sum nature of all these disputes. And the notion on both sides, I think liberals think, if we had nine liberal Supreme Court justices, that this country would be utopia and it'd be a fucking disaster.
One of the things that has to happen, that I argue in this book is that liberals need to understand that and fall out of love with the idea that the Supreme Court are these guardians who are going to do it all for us. And that it is ultimately, when possible, better to have the democratic system produce our protections for equality and protections for rights, because it goes deeper and it becomes more socially accepted and in people's hearts, rather than just something that's done with a lightning bolt from up above. One of the things that people of all political parties need to re-embrace is the idea of judicial restraint. That there's just a limit to what the Supreme Court or the courts should be doing versus the other parts of the government and the political system.
Especially because it's the only one of the three branches that we have no recourse. If we disagree with Congress or the president, we have an election every four years. So this is a branch that we have no recourse if they go insane.
We have some recourse, passing constitutional amendments, sometimes you can pass laws, but sooner or later, it's a better system if the Supreme Court knows its place in the system. So it's hard to say who that benefits, it's hard to say kind of whether that's left or right, but it is out of whack to have this-.
Nine folks.
And it creates a crisis, potentially, for the system. The country's moving in one direction and the Supreme Court is moving in another, as is sort of visibly happening in front of our eyes. That creates a crisis of legitimacy. They have the power they have because we give them that power. It's not written in the Constitution how much power they would have.
We want a court that is like a court, that is gonna not be just a political body and is not just gonna be a party caucus, but is gonna somehow act like a court. And if it isn't, then that creates a crisis of legitimacy, which we see, I think, happening right now.
I would think for their own self-preservation, they should also be semi-aware of how dangerous of a position they've put themselves in. When we have recourse, we can be patient for two years. When your issue is all you care about and there's these people, there's no removing them unless there's violence, like, I'm shocked that they're not more scared. When we had eras where you couldn't remove them from power, you saw enormous, I mean, you read any of these old books, world leaders were getting assassinated like every nine months. It's nuts how much people assassinated.
If you read the notes from the Constitutional Convention when they're talking about the presidency and impeachment, although you can impeach justices, they were really talking about whether we should have impeachment for the president and why that was a good idea. Ben Franklin says, well, the only alternative method of dealing with an abusive executive is assassination. So this is probably better.
Yeah, and people need to know that that system is there.
So in the past, the Supreme Court has reacted, whether it says it is or not, they react to public opinion, they react to the country, both as it should be, but it's one of the reasons they kind of have tended to hover near the middle of the political consensus. These folks say, we're not gonna do that, that would be shallow and cowardly for us to care about what the public thinks. But they're there as part of a very well-oiled political machine. I mean, there's a huge amount of money and political organizing that went into getting these six great conservative justices on there. People are familiar with the Federalist Society, which started as a college club, believe it or not, as a club of law students, but now it is a massive political machine to make sure that the justices are conservative and to make sure that they don't make any sudden move, that they're kind of reliable conservatives.
I always used to look at the Federalist Society and say, gee, they really do quite a lot concerning, they don't seem to have that much money. Turns out that someone secretly gave $1.6 billion a couple of years ago to Leonard Leo, who's the leader of this operation, and they spend it on ads.
Is that secret donor the Koch brothers?
It was somebody who had a company and gave the company to the guy who controls the Federalist Society.
They left the company.
I assume they cut a tax deduction. Don't hold me to that, but there's a gusher of money involved in this. And in recent weeks, we've learned about Clarence Thomas and this right-wing billionaire. It's not an ethics issue. Ethics to me is like, oh, am I allowed to take that cup of coffee or not?
This guy is subsidizing his lifestyle, luxury yacht trips.
I gotta say, and I think we do this a lot, I think we embarrass ourselves a little bit. Now, I have joined people on their airplanes. If I'm friends with a super rich dude and we're all going on vacation somewhere and I get invited on a jet, of course I'm going. I don't owe him 11,000 or whatever my portion was. I've been in people's nice houses, their nice jets, and their nice boats.
Now, I guess you could argue, well, you're not a policymaker.
Yeah, you don't have any power.
But I will say, I think it's a lot of smoke. I think joining someone on a vacation, now, if he buys him a jet, we got a big problem, but joining someone, that's not big.
He's paying for the college and he's paying for stuff.
He's paying for his surrogate son's education, and he bought his mother's house and kept the mother in it and did all the renovations. This is the other thing, is none of it got disclosed. You know, two decades ago, the LA Times wrote a story saying, hey, you know, this guy, Harlan Crow, seems to be giving a lot of gifts to Clarence Thomas, based on the disclosure forms at the time. So Thomas just stopped disclosing.
To me, it's like impeaching Clinton over that.
The original story in ProPublica, the website that revealed this, yeah. They had a painting from this private resort that Thomas goes to, I guess, every summer. And the painting, it looks to me like one of these paintings of the dogs playing poker. Like it's these people sitting around. And it's Thomas and Harlan Crow smoking skogies with Leonard Leo, with the Federalist Society who controls this $1.6 billion bank account and this political operation.
The scandal is not that, oh, Thomas was a liberal and then he took this jet trip and suddenly he became a conservative.
It's this political machine.
It's like a political machine of a kind that we would see back in Tammany Hall days. A faction of a faction now controlling the Supreme Court. The Supreme Court is the only court in the country that doesn't have a binding ethics code. We're fine, trust us. Every other court has something else.
So to me, that's not as important as term limits or something like that. that's more kind of structural.
Exactly, so. for me, it's like you're wasting firepower. This isn't a knockout punch. This is a distraction. I think it obscures from the real problems.
And I don't like this incessant need to try to put Donald Trump behind bars for weird things other than trying to obstruct democracy. That's the only thing anyone should be pursuing. Yeah, but that's not at all what he ends up in court for. Like this whole thing in New York, where he was, a rain is gonna blow up terrifically.
Right, but the Atlanta one, that has real legs and that is about obstruction of democracy. Like they're all coming.
That's great. For me, that's the big thing that we all should be insanely upset about is that he's calling governors, asking them to change a vote count.
Find 11,000 votes. Yeah.
But the Stormy Daniels buy-off, who gives a fuck? No one cares. It's embarrassing. It's a waste of everyone's time. That DA is gonna go down from it.
It's yet another person wasting time and energy in this fringe thing that we would not want. a democratic leader. I don't agree with this. I think this is as threatening and it's a Supreme Court issue, which you're raising brilliantly in the supermajority, but this notion of jailing ex-leaders is very fucking dangerous. The fact that Trump was saying, put her in jail, I found to be his most offensive thing.
he did, among the many offensive things. And so I don't like our side saying, let's throw this person in jail over something like Stormy Daniels pay-off. I think that's us jailing political opponents and that is the biggest destructor of democracy.
It's an interesting thing. The New York case. So I think that we should see how this plays out. I know that DA, he was not looking to get Trump. People who are familiar with the New York criminal system say, oh, this is a really strong case.
People who have their experience practicing law in the federal system, they say, oh, this is a big nothing burger. But the people who actually have experience with white collar crime in New York say, oh, this is a strong case.
You know how impacted the New York court system is? Do you think the most pressing issue is for us to sort out whether he paid Stormy Daniels illegally? It's the most politically motivated thing ever. And I think we need to stay the fuck out of these politically motivated trials.
Yeah, may or may not be a good idea. I don't think it's actually politically motivated, based on knowing the people who did it. That said, I think there's a reason we, as a country have not had indictments of former presidents. It is a big deal, but it's also the case, I think that there's gonna be several. And that the one in Atlanta, presumably, is gonna be about the overt attempt to steal the 2020 election.
It has to be tried and prosecuted. That's an enormous threat to democracy.
I would say too, the question on the documents. So I've always said that if you walk around Washington DC and go to the basements of a lot of the houses, kick open the cardboard boxes, a lot of classified documents would fall out. But there's evidence, at least from what we read, that Trump obstructed justice. That he got a subpoena and said, oh, let me see what we've got here.
That's fine, but to me that files perfectly with Hillary's emails. It's like, okay, is that the thing?
The attempt to overthrow American democracy. This goes back to the CNN question. How do we grapple with this new thing that none of us have experienced before, which is this political leader.
Who wouldn't leave office. Who virtually wouldn't leave office. All the other stuff is a waste of time. Like that's the only thing.
I think that if these other indictments happen, if Atlanta happens, if there's something related to January 6th, that will dwarf everything else.
Yeah, I do too.
And its impact, but who knows?
Okay, you say in the book, conservatives long understood, and liberals are now remembering that the only way to win meaningful legal and policy change is first to win in the court of public opinion. It turns out that the most important words in the constitution are we, the people. So I love this. I agree with this. Does it worry you that the court of public opinion is controlled by an increasingly small group of loud actors, mostly on social media platforms, whose opinions are drastically overrepresented in the media?
Do you trust what we believe public opinion is versus the reality of it? Because I've lost trust in that. I think that the vast majority of this country is centrist. That's not at all what an alien watching our media would conclude. I think these issues that we're all spiraling about are the most fringe, useless issues that are driving the whole narrative.
Public opinion is really at the height of its most fucked upness, I think.
Public opinion is not like a scientific lab experiment, but I would say public opinion is where it is. The political system, as polarized as it is and as broken as it is, is not reflecting always public opinion. But there are times when voters, voting, even now, can overwhelm the broken system or respond. And again, some of the response just in the last couple of years to the Supreme Court suggests that. I think sooner or later that there's what a lot of people call sort of the exhausted majority that is actually pro-choice, that is actually pro-democracy, pro-gun limits, but not necessarily take away all the guns, but not having more guns than people and AR-15s.
Compromises to complex issues.
And the answer ultimately is if you can move that public and have it reflected in elections and reflected in the political system that comes out of it, that is the best answer. And the interesting thing is, when you look at how did we get this notion that you couldn't have any limits on guns in the Constitution. That's not what the Constitution said when it was started. And it wasn't what people thought it meant a few decades ago.
By the way, it'll be something different in 12 years than what we think of today.
But what the NRA did was wage a campaign for constitutional change. They didn't start by going to court. They didn't start by going to get judges to make a ruling. They started with Charlton Heston. They started with scholarship.
They actually paid for a lot of scholarship to try to show what the real story was. Some of it was real, some of it was kind of made up, but anyway, they understood that. They worked on public opinion. They worked on elections. Charlton Heston was the head of the NRA for years.
They moved public opinion so that by the time the Supreme Court in 2008 ruled that this was an individual right to gun ownership, it was non-controversial. It was like an apple falling from a tree.
They had already-.
Barack Obama and John McCain said, oh yeah, that makes sense. Marriage equality, I think same thing. There was a really sophisticated effort to change public opinion about it before getting a court ruling.
Starting with Will and Grace.
Will and Grace. And when people knew somebody in their family who was gay, who was LGBTQ, then suddenly their attitude changed. So getting people to be out was like a political strategy.
It was like addiction. I've seen very few moments in all those debates with Trump where I thought he actually lost his own group. In fact, I can only think of one. And it was when he made fun of Biden for having an addict son. I was like, oof, everyone has an addict they love in their life.
And Biden's reaction was very human.
Yes.
And very, not politician, very real.
And I was like, you can't do that.
No.
We all know the reality of that.
Plus Trump himself, his brother was an alcoholic.
He's paid for a katrillion abortions. Everything, every single- It's literally not even worth exploring.
So many times in the last 10 years where I just said, finally, I'm never gonna have to think about this guy again.
I know.
I never talk about him. Six years of doing this. I don't talk about him. Sometimes you have to admit there are certain opponents. We're not gonna see the victory over him.
He was impeached twice, nothing happened. He's got these court cases, nothing. He just lost a $5 million verdict. He's not gonna pay that money. People need to accept we're not gonna beat him that way.
The only way we can beat him is to ignore him. That's it. That's the only defense we have against him.
And to have something that is as powerful to as many people as what he's putting forward.
Yes.
That as well. That's a huge shortsightedness of both parties. He was answering something that no one's actually put their finger on and no one's come into in a more healthy version. Because what he's saying, I get, by the way, I'm from Michigan. I'm from right, where the suburbs end and the rural shit begins.
And I know there's a lot of fucking poor ass white people on welfare that I grew up with in the welfare apartment building, that have three kids, no dad around. And they're hearing a lot of plans for other marginalized people and they don't ever hear one for them. And that's a huge chunk of the country that literally neither side. really, well, the right was doing. That's what Trump was doing.
So the poor white people are really being.
What he was saying, that's right. He wasn't doing, he didn't do anything. Biden's done much more for those people than Trump did.
Totally agree, but he said, I see you. He didn't really think we're gonna return to a coal economy with a bunch of coal workers. That wasn't real.
He just lied to them, that's it.
But if you're at home and you're like, well, he cares about them, and they've been rendered obsolete. and I've been rendered obsolete. And what the fuck happened to this town that we used to love and have parades in? Like a big chunk of the country's suffering, and that's a failing of the Democratic Party. It'd be wrong to acknowledge.
white people need help too.
And if you think about the 2008 financial crash and the recovery in the great recession, there was not enough of a sense in those parts of the country that people understand what's going on in my life. People understand this is a really big deal. This is not as bad as the great depression, but it's worse than anything we've had other than that. And you wouldn't know that from hearing the elite discourse, including the Democratic Party, for a long time.
My mom had built a business over 20 years. that in that 2008, everything went away. The warehouses that had been worth something were worth 10 cents on the dollar. The GM contract, they go bankrupt, they're not paying vendors. Like I, watched my own family's business, 20 years of work, disappear in 2008..
You know, no one felt bad for her.
The country's changing, the demography of the country is changing. People conflate their situation with that change. That is one of the oldest stories too, is the idea that, going back to the 1890s, the reason we had the Jim Crow laws, the Civil War happened, there was this brief period where there was a real attempt at multiracial democracy in the South. You had black governors and black senators and members of Congress was all sort of covered up later. And then there was this pushback and they took the rights away, but they didn't start actually writing segregation into law in the South until the 1890s.
And that was because for the first time, it looked like white farmers and white workers, and black farmers and workers were gonna unite. And the power brokers of that time said, we gotta come up with some way to say to those white farmers, at least you're not them. Yes. You know, and that division is not new.
It's been a powerful tool.
When Democrats or progressives, whatever they call themselves, have succeeded, it's when they found a way to unite ethnically divided communities, saying you've got something else in common.
Yes. I say this all the time. I'm straight up white trash. Most white trash dudes and most black dudes from downtown Detroit, way more in common than me and any of the East Coast people. So it's like, there is this incredible unity that no one wants to bring together and acknowledge.
But when they talk about wedge issues, the wedge was to drive people apart along their tribal lines, rather than seeing on economic or other issues, what were the things that united them.
Yeah, they established the in-group, out-group for them.
Yeah, fortunately or unfortunately, we're in a kind of a time of epic change. The split between the Supreme Court veering in one direction, the country moving pretty inexorably in another direction, that's part of it. It's only part of it. There's massive technological change, demographic change, AI. Oh, yes, yeah, yeah, yeah.
In the last two months, suddenly everything's changed. We're not gonna have a kind of a calm, static period. That can either be catastrophic or it can be when the new consensus forms itself, when sometimes things get themselves together.
Is it safe to say that you feel like this is a moment that would mirror the Lincoln era, or your hope?
Yeah, I mean, either we're gonna really slide backwards and get just fractured and divided and at each other's throats, or it becomes a time of renewal and positive change. That's up to the people. As I said, that's up to the court of public opinion. It's up to people getting engaged and staying engaged, not being stuck in the rut of their own ideas forever.
Yeah, what is the logistical roadmap for, let's say, term limiting? Would that not require like a two-thirds? These are impossibilities.
So if it's done by a constitutional amendment, there's that process, and that's pretty hard, although it's interesting. Right now, doing constitutional amendments on that, or say, one of the things the Supreme Court did before these last couple of years was just to strike down all the campaign finance laws, many of the significant ones, and you could have constitutional amendments to restore those, for example. Right now, it looks impossible. How could you do a constitutional amendment? It always looks that way, and then about every 50 years, there's a burst of them when things get really messed up.
That's one way. If you did term limits for Supreme Court justices, you could pass it, I think, by a statute. Let's assume that's true. Well, how do you get a statute passed? How do you get a law passed?
Isn't Congress completely dysfunctional and broken? The filibuster in the Senate, which says you need 60 votes to cut off debate and pass something, that's not in the Constitution. That's just something that's been done recently, and you can change that. I worked very hard on trying to get federal voting rights legislation passed in the last few years. The thing we wanted, federal national standards and an end to gerrymandering, it passed the House of Representatives.
President Biden said he was gonna sign it. It actually had a majority of the Senate, but it didn't have 60 votes. And there were two senators who supported the bill but would not change the rules, so it couldn't pass. You were close. Yeah, really close.
And the next time the Democrats have control of the House and the Senate, I think they will make an exception to the filibuster for voting rights. So you can get stuff done, but you need the political will.
Now, really quick, they ultimately interpret the laws that have been passed, and they can render them. So, once they pass a term limit law, that will go to the Supreme Court,
and then what the fuck?
That's weird.
If Congress passes term limits and the Supreme Court says, oh, that's unconstitutional.
Yeah, what happens then?
I bet you get a constitutional amendment real fast.
Yeah, and-.
Oh, you think they'd all be like, mm, fuck y'all, we're gonna-.
And they'll be like public rebellion.
Public says, yeah, we support this thing. Our elected officials did this. You blocked it. Guess what? We've got power too.
These are government officials. They're not wizards, even though they wear robes. They're not religious figures.
And everyone thinks they're Dumbledores. Yeah, exactly. And nobody's Dumbledore. It's a Dumbledore.
They're just public officials who wield power, and we need to treat them that way.
You just wandered into something wonderful, which is Monica's true worldview. is her prodigy. Everything comes perfectly.
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