Is the US supreme court bad for democracy? – podcast
2023-06-30 00:28:58
Every Friday, Guardian columnist and former Washington correspondent, Jonathan Freedland, invites experts to help analyse the latest in American politics. From politicians to journalists covering the White House and beyond, Jonathan and his guests give listeners behind the scenes access to how the American political machine works.
This is The Guardian.
In Norway, a woman's boyfriend forgets who she is. Overnight in Detroit, a man is arrested, but he was never at the crime scene. In Spain, disturbing pictures of young girls have appeared and no one knows who's behind them.
It's been one year since the U.
S Supreme Court overturned Roe v. Wade, the landmark 1973 decision that had previously made access to an abortion a constitutionally protected right.
The women of our nation have suffered under the consequences of these laws, laws that, in design and effect, have created chaos, confusion and fear.
Fast forward 12 months. Democrats and Republicans are still handling the fallout from the end of Roe. And taking stock of some of the big decisions that have come out of the nine-member court, where Conservatives now enjoy a six-to-three majority, decisions on everything from voting rights to affirmative action.
The Supreme Court decides to outlaw consideration of race as a factor in college admissions.
In a six-to-three decision, the court said that Harvard University and the University of North Carolina's admissions programs that take race into account violate the Constitution.
But what most court watchers have been talking about for a while now is how two right-leaning justices, Clarence Thomas and Samuel Alito, have been exposed for failing to reveal luxury gifts from billionaires.
It's time for him to step up and announce. There will be a code of ethics for the Supreme Court and the disclosure laws will apply. And they'll follow at least the same rules as every other federal judge in America.
So, as this year's summer session draws to a close, I spoke to the author of a new book. Who believes America's highest court has become a serious threat to U?
S democracy. I'm Jonathan Friedland, columnist at The Guardian, and this is Politics Weekly America.
Well, you know, the Supreme Court plays such a central role in American life, in American politics, and certainly in American law. I now run the Brennan Center for Justice at NYU Law School.
Michael Waldman is an American lawyer who recently published a book titled The Supermajority How the Supreme Court Divided America. Earlier in his career, he was a speechwriter for President Bill Clinton.
There's something out of whack with this institution that it has always been quite political, but now seems to have been captured by a faction of a faction.
I should say here that my conversation with Michael Waldman happened before the news came in on Thursday afternoon that the Supreme Court had indeed voted to end affirmative action.
Conservatives in the American political process have understood the importance of the court, these nominations and the Constitution for a long time. For a long time. Liberals and progressives much less so. I think they're catching up right now.
Yeah, and we're definitely going to get into that. And did writing the book mean that you, and looking back at some of the history, did it mean that you were somehow more prepared? Less surprised by this? Recent slew of stories about judges, members of the Supreme Court receiving gifts and cash or cash benefits from people with business before the court?
The Supreme Court usually reflects public opinion, it usually reflects the consensus of the country, or at least of the elites of the country. But there have been a few times when the court has been unduly extreme or ideological, or maybe activist or partisan. And when that happens, there's a fierce backlash, a cycle of overreach and backlash. It happened in the 1850s, with the Dred Scott ruling, which said Congress could not prohibit slavery in the territories. And worse than that, said that Black people were so inferior they could not be citizens.
The backlash was so strong that it elected Abraham Lincoln to the presidency and helped create the conditions for the Civil War. There was a similar overreach and backlash in the early 20th century. The justices of that Supreme Court thought their job was to stop government from protecting women and workers and public safety, and there was a tremendous backlash and political fight. And then the third time was during the 1960s and 1970s, the Warren Court era. When the Supreme Court, for the only time in its history, was ahead of the country in terms of protecting rights and advancing equality.
And so many of those rulings were really valuable and important. But that too, created its own backlash, and we're living in that backlash to this day.
Well, that puts a sharp focus on, and perhaps an explanation for the point we have got to where one year ago. As you and I now speak, the court in your words, crammed decades of social change into three days. Now, in a moment, we'll get to what the historic forces were that led to that. But just spell out for us what those decades of social change crammed into three days were. What particular decisions you have in mind when you give us that very arresting description?
This was the first full year, the first full term of the very conservative supermajority. Of six justices. On the first day was a case called Bruin, which was by far the most sweeping Second Amendment ruling in the country's history.
Tonight, a stunning legal defeat for gun control advocates in the state of New York. The Supreme Court justices expanding gun rights in a 6-3 decision. Striking down New York's concealed carry law and affirming the right to carry a firearm in public for self-defense.
It said, in effect, that you could not. When considering the constitutionality of a gun law, you could not really consider public safety only. Quote history and tradition, meaning Did they have a law like that, you know, back in the colonial era? The next day was Dobbs. In a sweeping ruling that overturned a half a century of precedents, five justices ended.
The right of American women to choose abortion under the Constitution.
I think most listeners are familiar with that. That overturned Roe v. Wade and did so in a way that threatens a lot of other privacy rights also protected in the Constitution. And then the final day was a less known case, maybe less dramatic, but with a big impact, called West Virginia v EPA.
The Supreme Court's recent decision to limit the authority of the Environmental Protection Agency has many worried about whether the Biden administration can reach its climate goal.
And that was a significant blow to the ability of government regulatory agencies to act to protect, in this case, the environment, on climate change. It marks the start of a long-sought effort to curb the power of the federal government in the American economy. And this was the product, as you say, of decades of organizing by legal conservatives to lead up to this point.
And yet, as we look at the decisions of the recent session, if you like the recent term of the court we've had. Earlier this month, the court defending the Voting Rights Act by in effect ruling in favor of Black voters in Alabama. And then just this week, a decision which absolutely took down. A move by some on the right. That many had said was a threat to democracy. That would have allowed states almost untrammeled authority on federal election decisions.
The Supreme Court is allowing a Louisiana congressional map to be redrawn to add another majority. Black district state officials were sued last year for a congressional map passed by the Republican legislature that made only one of its six districts majority black.
Put all those things together, I'm just wondering whether you think there's any truth in the notion. Democrat Senator Sheldon Whitehouse said this that he was spotting signs of a course correction by this otherwise very conservative court.
I think it's too early to know. I think they're not playing for the next day's headlines. And that their project is a long-term project to move the court to the right. And in one sense, looking at those decisions that you describe, the court was basically in each of those cases leaving well enough alone. Choosing not to strike down longstanding laws governing Native Americans, for example, or in the independent state legislature case, that was an absolutely fringe idea. That would have upended how all elections are run in the United States. But I do think it's significant and needs to be identified as such in the following sense. Even before this current super majority, the one area where John Roberts was quite avid in being a very big judicial activist was the law of democracy.
Of those cases, the one that really surprised me, and in a good way, was the Voting Rights Act case. It was Allen versus Milligan. This was the remaining part of the Voting Rights Act. The Supreme Court a decade ago had begun dismantling the rest of it. It will have a real impact.
Again, they left it standing. But what that is going to mean is that in Alabama and other states as well. They're going to have to redraw the legislative lines to make sure that they properly reflect the population of those states. And they don't discriminate against Black voters and other voters, so I do think it's significant. It's also the case, though, that, as we speak right now, we have not heard from the court on the affirmative action cases. And those still promise to be the blockbuster cases of the term.
And you mentioned there Chief Justice John Roberts, who is sort of first among equals among the nine judges on the Supreme Court. And like others, you're sort of crediting him perhaps with being a relatively moderate voice when it came to those decisions you referred to. On affirmative action as we speak, we haven't had all the decisions that we're waiting for, but we've a widespread assumption that they're going to the judges end affirmative action. The practice whereby those making admissions decisions, for example, at colleges, can bear in mind race and be conscious of historic disparities on race. The judges were asked to rule on whether or not that violated the equal protection clause under the U..S. Constitution, which says, in effect, everyone should be treated equally.
If that does go that way as we expect, what's your read of that?
This would have a big impact on higher education in the United States, it would rip up the way colleges and universities admit students. And do it in a way potentially that really distorts things in its own way. During the oral argument in front of the Supreme Court, Justice Katonji Brown-Jackson, and this was one of her first times sitting as a justice, she asked a really good question.
Thinking about two applicants who would like to have their family backgrounds credited?
She said Let's say there are two admissions essays, one says.
My family has been in this area for generations, since before the Civil War. And I would like you to know that. I will be the fifth generation to graduate from the University of North Carolina. I now have that opportunity to do that. And given my family background, it's important to me that I get to attend this university. I want to honor my family's legacy by going to this school.
And the other one says.
My family has been in this area for generations, since before the Civil War, but they were slaves and never had a chance to attend this venerable institution. As an African-American, I now have that opportunity and given my family background, it's important to me to attend this university.
She asked Are you saying that that first essay is OK, but the second one can't be read, can't be taken into account? It's that kind of hair splitting. You know, a lot of people are quite uncomfortable with racial preferences wherever they come up, but we have a system that continues to reflect deep disparities along race. This ruling is after decades of rulings to the contrary, going back to the 1970s, when, in a case called Bakke, the court, which was conservative at the time, said Well, the rationale for affirmative action is to promote diversity.
You can't make race the only reason why somebody is admitted. But there's a value in diversity. And it was upheld over and over again, most recently by Sandra Day O'Connor. In a case where it was quite significant at that time that military generals and business leaders said. You know, this isn't perfect. But we need to keep this in place because this is how we're going to try to build a diverse society going forward. Well, the country has only gotten more diverse. Things have not changed in that way, what has changed is the personnel of who's on the court.
And when that happens, that kind of sense that is just political really is part of undermining the credibility of the court over the long run.
Let's talk about the other blow to the credibility and authority of the court in the relatively short run in just the last few weeks and months. This trickle of stories, many of them brought to light by the ProPublica Investigative news organization, revealing that. Two justices, in particular, have been on the receiving end of gifts and benefits and largesse from billionaires, including people. And this is the bit that I think has shocked many Americans, people with business, before the court. So in one case, Supreme Court Justice Samuel Alito accepting a seat on a private plane owned by conservative billionaire Paul Singer being flown to Alaska for a luxury.
Fishing trip? According to ProPublica, Singer's Manhattan based hedge fund was involved in at least 10 cases brought before the Supreme Court, many of them high stakes business cases.
And then not declaring such gifts, you know, writing them down on the sort of register of gifts received. Or accusing himself when Paul Singer had a case or was involved in a case of business before the court. And that coming after all these revelations of Clarence Thomas being on the receiving end of generosity from a longtime friend, the Republican Big Bucks donor Harlan Crow.
Justice Thomas, having received luxury trips, real estate deals, and gifts from billionaire Harlan Crow over a 20 year period.
Their newest report is regarding tuition payments for the grandnephew of Justice Thomas.
Who he was raising as his son. Including stays at Crow's private resort flights on his jet vacation on board a yacht in Indonesia. And this one, I mean, it's just it's sort of beggar's belief. Crow buying property for Clarence Thomas and paying private school tuition fees for a great nephew of the judge now. In response, Alito wrote Sort of in a prebuttal, getting out there ahead of ProPublica. He said that judges commonly interpreted ethics laws to mean that accommodations and transportation for social events were not reportable. Gifts, that's a quote from him.
And Thomas has actually not really responded to these stories, but said that he did not declare gifts from Crow, including all that travel, etc.
Because he was advised not to do so and will do so in the future. So that's a summary of what has been this sort of constant drip drip in the papers. I mean, how do you read that? In terms of the effect it will have on how the court will be seen, and perhaps is already seen? Just in the few weeks since, these stories have broken.
Public support for the court has collapsed to the lowest level ever recorded even before. These stories, and these stories sure don't help, it relays. It reveals a world of chummy privilege. The Thomas story really was somewhat mind blowing to me in that his billionaire really subsidized his lifestyle. He bought his mother's house and renovated it while she was living in it. To use just one example.
In terms of the more recent story, with Justice Alito, his op-ed defending himself said Well, I could take this luxury travel because this guy was a good friend. And then, two paragraphs later, he said, I didn't have to recuse myself from voting on the cases because I barely know the guy.
A lot of people are learning and are kind of shocked to learn that. The Supreme Court is the only court in the United States, federal or state, that does not have a binding ethics code. The one other thing that is a through line here that ties the rulings that crashed the court's popular trust a year ago. And this stuff is the degree to which they're all enmeshed in a very well funded political machine. In the first ProPublica story with Clarence Thomas, there's a painting of Thomas and Harlan Crone. They're smoking cigars, and there's a third person in the painting, it's Leonard Leo.
Leo helped usher in the most conservative Supreme Court in decades, along with helping block Merrick Garland from the court. He and his colleagues at the Federalist Society are given credit for the confirmations of Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett Leonard. Leo is also the person who introduced Alito to this other individual. He's the de facto leader of the Federalist society, and there's never really been anything like the Federalist Society, I don't think in American history.
It started as a student club for conservative law students. It has grown into a very, very effective political machine, and it is having an impact, an organized and disciplined impact on our judiciary. I don't think anything else has come close in the history of the country.
This is fascinating because you're linking together there. I think. The ideological project to get a more conservative Supreme Court and this, you know, almost sleaze story of these judges receiving gifts and favours. What you're drawing attention to is this sort of capture by a very well funded group. Sheldon Whitehouse, Democrat on the Judiciary committee, said that it's wrong to refer to these judges. As conservative. People are beginning to realize, he said, that this is, this is not a conservative court, this is a special interests captured court.
Do you think he's right to see these people, you know? Thomas and Alito receiving very expensive gifts? As in a way not ideological, but people who have just been sort of bought and paid for by rich people who have their own personal financial interests. In cases that appear before the court. And almost not to dignify it by seeing it as ideological and see it in a way as just people. You know, people who've seen the movies know about judges who get bought up by rich people.
It's the system that put them on the court that did the buying. And I think it's an interesting thing. Because if you look at the first three big rulings from this supermajority last June, the Dobbs case, the Bruin case, and the West Virginia versus EPA case. That was guns, abortion and the interests of the fossil fuel industry. That sounds like a party caucus rather than a law book. I think it's also the case that part of the radicalism is a lot of libertarians.
Many business interests have been looking for a way to use the constitution and the courts to rein in regulatory power of government. On things like the environment, on things like financial regulation. Up until now, they haven't succeeded, but the court has begun taking cases that make it pretty clear. They're going to use their power to make it much harder for government to act in those matters.
The other thing that's noteworthy is the way the court makes the rulings now is really different than before. They say they are being originalist. In other words, the only legitimate way to read the Constitution, they say, is to ask, what did it mean at the time? It was ratified? And that really genuinely tethers our country in 2023 to the social views of property-owning white men from the 1700s, or maybe the 1800s, a time when women could not vote, when Black people were enslaved, and more. To me, it's an absurd way to run a modern, growing and changing country.
It's not how the Supreme Court has ever made its rulings significantly before, but in the last year or two. This is how they say they're making the rulings to try to dress up their extremism. I point out the kind of absurdity of it. When I say that in Great Britain, when somebody proposes a new law, people don't say, Oh, that's a really interesting idea. What did King George III think about it? Because that's what really matters. Well, that's literally what people are saying now.
What did they think back in the 1700s?
Adam, you've described for us this big, long-term, decades-long effort, which has been successful by the right. To get judges in their own image on the court, and now to dominate the court. I think there'll be people listening to this thinking, Okay, but why hasn't the left of center done the equivalent on the other side? Why have Democrats not mobilized and prepared and groomed their own candidates and spent the money and won the campaigns and so on? With the same degree of focus and determination to get social policy decisions on fundamental issues like abortion or gun rights made in their favor. How do you account for this very odd asymmetry?
It's a great question, it's one of the central facts of American politics over recent decades. It's a bit of a mystery, and certainly a frustration, generation after generation of Democratic political strategists whispered in the ears of their candidates. Oh, nobody cares about this stuff, this is boring.
People care about kitchen table issues, prescription drug prices, or whatever it is. Conservatives, on the other hand, understood that the Constitution and the court was a mobilizing and a voting issue. I think a lot of liberals and progressives were a bit bedazzled by the memory of the Warren Court. They had a sense of what the courts were and that they were going to be the ultimate ally they would have. Long after the reality ceased to align with that sense. One thing that has happened is that there's a disenthralment among Democrats and progressives and liberals.
They understand that the Supreme Court is a political body and it needs reform and action and people need to call it out. I think it's going to be a big issue going forward.
MICHAEL We always like to ask our guests on the podcast a what else? question? Something completely different. But in your case, let's keep it legal. Lots of indictments around in making the news, as they have been for several weeks. Hunter Biden and his sort of deal with prosecutors last week. And how Republicans are seeking to frame that as, somehow the justice system favoring the son of the Democratic president. And meanwhile, on the other hand, we've got CNN finally getting their hands on that audio. Where we can hear Donald Trump talking about the classified documents that he kept at his golf club in New Jersey, even though he was meant to hand those documents back.
As president, I could have did less, but now I can't, you know? But this is isn't that interesting? Yeah, it's so cool.
Trump said he didn't even see the recording, adding that he was, in his words, a legitimate person. I mean, politics is now essentially being waged in a series of courtrooms Biden, Hunter Biden, Donald Trump, several court cases. How do you see this working out between now and presidential election in November 2024? Do you think you know what the debate stage, and the sort of school gymnasium was for debates, is now essentially going to be the courtroom in the election of 2024??
You know, in some ways, this is not new. Alexis de Tocqueville said in the 1830s that in the United States, sooner or later, every great issue becomes a lawsuit. What's striking, of course, is the possibility, more than the possibility, that the Republican leading candidate, and maybe the Republican nominee, will be under multiple indictments going into the election. And we haven't heard all of them. There's every reason to think that the Atlanta prosecutor in Fulton County, Georgia, will bring action relating to the efforts there in that state, where Trump, again, was similarly caught on tape, saying, Just find me 11,000 votes.
That's all I need to the head election official in the state. If you're Trump and you're thinking of committing crimes, don't check to make sure if the tape recorder is on. That gets us the lesson. But ultimately, to many of us, what happened on January 6th, the effort to overthrow the election. That needs to have not just the thousands of people being investigated and so many of them are in jail. But the lead conspirators need to be brought to justice as well, and I wouldn't be surprised if that happens.
We're in uncharted legal political territory.
MichAel WAldman The book is The Supermajority How the Supreme Court Divided America. Thank you so much, Michael for joining me on Politics Weekly America.
My pleasure.
And that is all from me for this week. My colleague and friend of the podcast, David Smith, wrote a terrific piece on what's happening with the Supreme Court. Which includes his conversation with a senior member of the Senate Judiciary Committee, Democrat Sheldon Whitehouse. There'll be a link to that piece in today's episode description on the Guardian website, so do make sure to check that out. But for now, it's goodbye. The producer is Daniel Stevens, the executive producer, Max Sanderson.
I'm Jonathan Friedland, thanks as always for listening.
This is The Guardian.
In Norway, a woman's boyfriend forgets who she is. Overnight in Detroit, a man is arrested, but he was never at the crime scene. In Spain, disturbing pictures of young girls have appeared and no one knows who's behind them. Something strange is happening.
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