C (3:15)

Good morning, Christian. And thank you for having me on the program. Thank you for highlighting Haiti on your program. And hopefully we're going to have a good conversation so I can enlighten everybody's image so they can understand what's going on in Haiti and what the government is doing.

B (3:33)

Okay. Okay. I fully understand what you want to tell us, but I just read out a litany of disasters that are that have plagued your country for the past five years. I mean, even 8,000 people were killed last year alone. There are a million people on the island nation who are displaced. It's really incredible. The previous president there was assassinated when he tried to keep control of things. Are you overwhelmed or optimistic about your opportunity to change things?

C (4:05)

That's an excellent question. I'm cautiously optimistic. There is. The challenge is we will realize what we need to do. And the mission is simple. Restore order, bring back economic opportunities for the people, and have elections. It's been 10 years since we had the last elections. Security. We've had the help. We have the help of now of the gsf, which is the force that was passed in the UN Security Council last year, and they started to come to Haiti. And we are moving forward with our Haitian police, Haitian army, and the GSF to restore security. Like you said in your intro, we have taken back some of Port au Prince, and this is the first time since 2021 that the gangs are on the defensive. I am very optimistic.

B (4:55)

Okay, let me just read out the stats on the gangs because these numbers are crazy. As we've said, the Capitol was run by them, 75% of it. You brought it down. It was 90% not so long ago. You say the gangs are on the defensive. They killed about 70 people in just one murder spree this month. What is it about these gangs that have, you know, entrenched them so incredibly in your country? How have they been able to take so much control and so much power?

C (5:30)

I must tell you that what we're facing has no ideology. This is pure crime. And this has been brought. Brought by a transnational crime. Drug trafficking, arms trafficking. This is what has caused the country to go down there. And we have been a weak state. We must admit it. And this is one of the reason why the gangs have been able to take control of certain parts of Haiti. And I want to be clear, not all of Haiti is under gang. We have 10 departments, and out of the 10 departments, only three of them are affected by gang violence. Seven departments are non affected. And life goes on as if it was anywhere else in the world.

B (6:17)

Wow. I didn't even know that because the story we hear is that the whole place is ravaged by this. So that's the good news then. But it's going to be very difficult to dislodge them from those departments that you've mentioned, including the capital, which is super important. Now, what can this new force do that the previous ones apparently couldn't do?

C (6:43)

Well, this is a great question too. This new force has a different mandate. And with this administration, what we're doing, we have a Haitian led strategy that includes the gsf, which is the new force, the Haitian police and the Haitian army. One of the things that we've been doing is bringing up the numbers of the police and the army. We did not have enough people to counter the insurgency of the gangs. Now we have a couple programs that we put together. One of them is the P4000 program where we put in 4,000 new police officers. But what's most important is that our police was not built for what is, and let's be honest, what is urban warfare. So we are training 4000 new police officers that will counter those gangs. And like I said, the most important part is that the GSF mandate is very different from what we had before, which was the mms.

B (7:47)

I know those are acronyms, but I know that you are acronyms rather. But I know that you're explaining the difference and the different mandate. Can you just give us like a small potted history of the last five years? How did it get to this point? Why was the President assassinated? Why has Haiti, which even in the best of times, Mr. Prime Minister, and I've been there several times, has been a very difficult country to manage and to run. Why is this happening there? I know poverty is a huge part of it as well.

C (8:19)

I agree with you. Poverty is a part of it. And I think one of the reasons why Haiti has gotten to that point, I think there's two fundamental points. The first one is the fact that the impunity is running rapid and we're doing things to counter that. And I said impunity. I didn't say corruption, because I believe corruption will go rampant in any country in the world if impunity is allowed. What we're doing, we just passed two judiciary polls, one for mass crimes and one for financial crimes. Those are steps that we're thinking to stop the impunity in this country. And I think those steps will help resolve that. The other reason is the question of poverty. And we have been Advocating with our friends in the international community. We need to move Haiti from aid to. To trade. Because when the guns fall silent, the jobs must follow.

B (9:16)

Yes, indeed. And that also demands help from your neighbors, close and far. Your biggest neighbor. And I know that you've been meeting with Secretary of State Marco Rubio is the United States. Of course, you repeatedly bring up that you're only 700 miles away from the United States, that Haiti does not produce the guns or the bullets, but they come in from the U.S. what I don't know, guarantees, assurances, security, is the U.S. offering you, if any.

C (9:49)

The thing is, the security of Haiti is the security of the Caribbean. The security of the Caribbean is the security of the Western Hemisphere. I believe that every country and the region understand that a safe Haiti, a prosperous Haiti, is a prosperous hemisphere and is the national interest of every country, including our neighbors and including the US and like you say, I love to mention it, we are 700 miles away from the U.S. what happens in Haiti has a direct incidence on what happened

B (10:24)

in the U.S. well, let me ask you specifically. You know, obviously, there's been mass departures, fleeing Haitians who tried to get to the United States, who are in the United States. And right now, there are about a million of them in the US Hundreds of thousands of them are in the country under what's called temporary protective status. But President Trump is trying to revoke that. And that would send all these Haitians back to you. Uh, he says it's not meant to be permanent. But is it okay to send Haitians back to a country that you've described as, you know, under a lot of gang violence and gang control? And could it complicate your job?

C (11:04)

It will definitely complicate the job. But I understand every country's right to have their own immigration policy, but this issue, the TPS temporary protection status, is in the courts as we speak, and we're waiting to see what the outcome is going to be. But the humanitarian outcome should be that those people are not allowed to come back to Haiti or forced to come back to Haiti until we resolve the security issue. Of course they are Haitians. We will take back all of our citizens. And I don't believe that people left Haiti out of there because they wanted to move to a country where it's cold. We have beautiful weather. You've been to Haiti. You know it. They leave because there is insecurity and they're looking for economic opportunity. And again, that's where, when I discuss with the partners, I go, we need to change the Paradigm, giving humanitarian aid, yes, we do need it today at this juncture. But this needs to be a short term strategy. The midterm and long term strategy need to move Haiti from aid to trade, create opportunities. The youth that have joined the gangs and some of them have been coerced, some of them have made the choice to join the gangs. But it's because there is a lack of, of opportunity. Everybody needs and has the right to be able to feed their family and to take care of themselves. The only way to do this is to create well paying jobs for them to be able to do so.

B (12:33)

Okay, I'll get to that in a minute. But you brought up the youth. I mean, this is stunning. 50% of the gang members are between 13 and 18 years old. Children, as you say, pulled into this. A million and a half of your children don't have access to education. Is there any progress that you've made or that you can make in the immediate future to get them back into school to, you know, give them an opportunity, an alternative to joining these gangs?

C (13:02)

We just restarted the cnddr, which is Commission national des Armens and the reinstation. This is a commission that's there to take the guns back from the kids and put them back to regular life. Last week we just went and started an office where we are taking young children, those between 13 and 18, so we can bring them back into society. It is extremely important. The youth is the future of Haiti. We need to get them out of the gangs because right now they are being forced into the gangs. They are being used as shields. And we need to make sure, as a government, this is our responsibility, that will create an opportunity for them for the future.

B (13:50)

So I just want to ask you, Prime Minister, about some of the recent murders. We Talked about the 70 who were killed in March. And now I want to ask you about those who have been reported killed as, I don't know, collateral damage or whatever it is. I hate that word. But as you all try to go after the gangs in densely populated area, often with drones, so let me read you this critique that was published in the New York Times. Haiti can't drone strike its way to, especially not when bombing gang targets might mean killing children. Bringing gang members back into society won't be easy. But force alone will only prolong the country's ordeal. Once the balance of power on the ground has shifted. The Haitian authorities should be prepared to turn to the negotiating table if they want to see these groups dismantled for good. Now, that's the International Crisis Group. So Would you negotiate with gang members?

C (14:48)

I don't think negotiation is the term that should be used. And the first thing I'd like to say about this critique is that anybody, one life, whether it's a gang member or it's a civilian, anybody's death is one death to many. The point is, and like I just said, we put the CNDDR back together, which is the Committee for reinsertion. I believe my strategy to bring Haiti back to peace is threefold. The first part is what we call brute force. The police, the army, the gsf. And the second strategy, there needs to be justice. And this is what the judiciary polls are doing because people finance this. People who participate need to be held accountable. And the third part is the CNTDR, where we're going to take the youth, give them skills, life skills, real skills, and that's where the jobs need to come. Strategy is threefold. Like I said, one, force, two, justice, and three, reinsertion and two, society.

B (15:52)

Okay? And as we've talked about, the poverty, which is even exacerbated now by the whole Iran war and the fuel price hikes and all the rest of it, there are also disturbing reports that MSF has been highlighting about Haitian women who are being, you know, sexually abused and attacked by gangs. MSF says admission to its sexual violence clinic has tripled between 20, 21 to 250amonth. So is there any social concern or protection being mounted for women as well?

C (16:28)

We are very, very concerned because the main victims of the gang violence in Haiti are children and women. And I'm happy that you highlighted that. And the real issue now that we are facing is that the criminals, the people abusing the human rights of the citizens of Haiti are the gang members. They are taking children, putting them around them as human shield. They are abusing women, and they are burning and raping everything in their way. This is the responsibility of the government to make sure that this stops. And we are doing it in every way that we can. Of course, keeping in mind that we have to be respectful of international human rights.

B (17:18)

Now you are preparing for elections by the end of this year. I think you feel confident that you can do that. But also on a happier note, I'd like to end by your reaction to Haiti is preparing for its first World cup appearance in 52 years. And there were celebrations, probably very rare celebrations in the capital. The team has been forced to play again, way away from you, 500 miles away. So what does this mean for your country? Can you use this to unite people and try to show them a better way forward.

C (17:52)

Definitely. And this participation in the World cup has brought a lot of joy in the Asian people and a lot of we've been very proud of this accomplishment. And I think we're going to be using this for two things, to sensibilize the youth, especially the ones that have made the choice or were coerced, and to joining the gangs to tell them there is another alternative. We are the football players are role models. You can do something else. You don't have to be in a gang. And the other thing, we're also going to be using this event to highlight the fact that being together, uniting 11 people together, we can do the 12 million Haitians, we can unite together for something better. This World cup is an opportunity for all Haitians to come together and understand. Let's all put Haiti first.

B (18:45)

You know, you're taking on a huge task. As I said, the previous president was assassinated in 2021. Are you afraid for your own personal safety you're going up against some really, really very vicious criminal gangs?

C (19:05)

This is an excellent question. I'm worried, but I'm not afraid. I must tell you, this is a fight that we need to take. Haiti needs to be taken back. And people of like minded, people who want to make the change, we have to make the sacrifice and put ourselves out there, we are doing the right thing. And if you're doing the right thing, I believe that you will be protected by God.

B (19:31)

Prime Minister, thank you very much and good luck to you.

C (19:34)

Thank you, ma'. Am. Thank you very much for having me. Bye bye.

B (19:38)

And coming up, the Nuremberg Women. Untold stories from history's darkest chapter and the inspiring women who help bring justice. That conversation after the break. Now to the forgotten heroines of history. The Nuremberg trials, held right after World War II, prosecuted top Nazi officials for their crimes in the Holocaust. It is a well known and well documented part of history. But a vital piece of of that story has been missing all these years. The Nuremberg Women. In her new book, best selling author Natalie Livingstone puts the spotlight at last on the untold stories of eight women who helped shape justice in post war Germany. From prosecutors and journalists to aristocrats and rebels. Natalie Livingstone joined me in the studio here in London to discuss a few of the trailblazers who inspired her. Natalie Livingstone, welcome to the program.

D (20:44)

Thank you so much for having me.

B (20:45)

It's an amazing book. The idea, the concept is amazing. I know you do a lot of threads around women. What made you focus on the Nuremberg women?

D (20:55)

Why so Nuremberg has always been central to my life. I'm the granddaughter of Hungarian Holocaust survivors. So when I was growing up, it really loomed large, the trial. And I thought I was pretty familiar with the trial. I thought I. I knew about it, and I had unquestioningly digested this cast of all men. It is, you know, the mendacious charisma of Hermann Goering, the wonderful speech of Robert Jackson that screened around. He was a chief American prosecutor, and basically Nuremberg was his. Was a. Was his ideal and his practically his idea, a representation of the hopes and the dreams that he had for the future of international relations. So I thought that Nuremberg was a story about men. I thought Nuremberg was photographs of men, paintings of men. And I don't know if you saw recently, there was that movie with Russell Crowe and Rami Malek, Nuremberg Again, all about men. Now, this is wildly misleading. In fact, Nuremberg is so much more than just courtroom 600 where the trial took place. It was a big ecosystem that comprised of so many women who were there in so many vital roles, translators, witnesses, journalists, artists, lawyers. And Nuremberg was about so much more than men in robes administering justice.

B (22:23)

And the point you're making is, and yet none of those women could have their voice heard publicly, even though they did so much to make it possible to. For the prosecutions.

D (22:33)

Absolutely. For some reason, these women were marginalized and got sidelined and literally reduced to footnotes in history.

B (22:42)

So you start your book with Laura Knight and with Laura Knight's painting. It's the famous painting of the courtroom where, again, it's all men. The prosecutors, the witnesses, the, you know, the accused, and all the rest of it, you write. Laura's peculiar combination of vivid attention and selective blindness of. Would produce a contradictory legacy.

D (23:03)

Well, the fascinating thing about this Laura Knight painting was I was very familiar with it. I'd seen it on the COVID of so many books. It was an image that I knew so well that was seared into my mind. And when I thought about writing this book, I went to the Imperial War Museum, where the painting is on permanent display, and I had a really close look, and I could just see a sea of men, as you say, male judges, male prosecutors, male soldiers. Men. Men. Men. As one of the women I write about in the book, Rebecca west says, a man's world, A man's world. And what is almost an uncanny foreshadowing of what I was to find later on in the book, you have to lean in very closely to see that this painting is actually the work of a brilliant British artist called Laura Knight, who was 68 when she arrived in Nuremberg and was tasked to to paint the trial from life. So she effectively painted herself out of history.

B (24:01)

That is remarkable when you think about that, because again, you say you can see that it's all men. You also talk about how she stayed in the Grand Hotel in Nuremberg and she kind of mistakenly thought she was in Hitler's room.

D (24:14)

Yeah, I mean, that was the extraordinary thing about Laura Knight. The gift of Laura Knight. Not only did she produce this iconic image of the Nuremberg Trials, she also kept a diary of her trip to which is kept in the archives in Nottingham. It's fascinating. I mean, you know, you have this 68 year old woman, she comes from very humble beginnings. The diary begins, it's her first ever flight and you've got her account of what it's like to take off, what it's like to be on an airplane. She's fascinated by everything she lands in Nuremberg. She is shocked and devastated by the ruined state of the city. It's absolutely decimated. But Laura really has a taste for the high life and she's quite flattered when she gets accommodated in the Grand Hotel, which is where all the VIPs and dignitaries from Nuremberg were accommodated. And this hotel had been partially ruined, but was partially still rather grand as per its name. And because she was an important artist, she is accommodated in the finest suite. She believes that she is in the suite that Hitler occupied. And on the last, her final diary entry from her first night, she writes that she is so excited to sleep in Hitler's bed and she's never had a more restful sleep. And that just struck me as really incongruous. And it gave me all these questions about what she was interested in. Why was Laura Knight at Nuremberg? What were her motivations for capturing this trial?

B (25:44)

And what do you think her motivations were? And why would she make that comment about the monster of modern history?

D (25:50)

Absolutely. I think it's very important to make the point that even though Hitler is undoubtedly one of the most evil characters in human history, no one at the time knew exactly what was going on. But, and I think it's very, very important to say Laura Knight had a very artistic. She saw life as theater. She looked at courtroom 600 as if it was a play. She was divorced from reality when it came to actually hearing the evidence. She painted from a glass box above the courtroom, which is why you get that extraordinary perspective. She closed the windows because she didn't want to hear what was going on. All she wanted to do was See and paint what she was seeing.

B (26:35)

Okay, so that brings us to a really important character in this who you profile. Marie Claude Vaillant Couturier first female testimony. So you're talking about Laura hearing stuff that she couldn't bear to hear. This woman, I think she was in the French Resistance. She gives the first eyewitness testimony of the camps. Tell me her importance.

D (26:59)

Absolutely. Well, Marie Claude Vallion Couturier is the heart and soul of the book. For me, if there's one name, if there's one thing that I'd like anyone who, who reads the book to remember is her name. Because she changed the course of history. Marie Claude is a fearless French resistance fighter. She was arrested in 1942. She was kept for months in solitary confinement. In 1943, she was put on a transport to auschwitz. Part of 230 other female prisoners from the French Resistance, only 49 of them survived. She endured two years in Auschwitz and Ravensbruck. She survived. She opted to stay for three months longer after liberation to look after those who were too sick and too infirm to travel home by themselves. And on 28th January 1946, she sat on the stand in Nuremberg, this fragile, frail, beautiful French woman. And for two hours she recounted in unflinching details the horrors of the camp. She detailed everything she had seen in Auschwitz. The fate of babies, the fate of children, the fate of women. She spoke of sexual violence. And she was determined to restore names to those who had been reduced to numbers and then to ash. And that is what powered her. That is what gave her the strength to deliver this extraordinary two hour testimony, which I believe is one of the finest pieces of oratory in modern history.

B (28:38)

Is it recorded?

D (28:39)

It is recorded and you can hear it and you can watch her on the stand and you can watch her composure. She delivers her testimony. It's almost if she was in a trance. And when she was asked about it afterwards, she said she just wanted to speak on behalf of those who had been denied a voice. And the amazing thing about Marie Claude is after she delivered this devastating two hour testimony, she got down from the witness stand and she stared off each of the Nazi defendants. She looked at them in the eye with the memory of those they had slaughtered. And it was a real moment of reckoning for her. And to have that power and that courage, that resilience and that conviction is beyond humbling.

B (29:44)

What about the German journalist who was there? I find that testimony or that description in your book fascinating because that's from enemy territory. The German Journalists belong to the enemy camp. What did she say or think when she got to Nuremberg and got in there?

D (30:00)

Absolutely. So for me, Ursula von Kardoff, who was a German journalist, is one of the most interesting, nuanced characters in the book. Ursula was born into a Prussian aristocratic family. She was very ambitious. She wanted to become a journalist. In 1937, she did her first internship for Der Angriff, which was a Nazi newspaper. Unlike a lot of other journalists, she opted to stay in Nazi Germany, which meant she had to become part of the Nazi propaganda machine. She told herself at the time, and at a later stage, she really wasn't following the party line. She was only writing about women. She was only writing about munitions factories. But then at the same time in her diary, she would say, well, you know, if I really reported the truth, I would risk being incarcerated. I would risk losing my life. So there was this real contradiction in her. She continued to work for Nazi newspapers throughout the war. And then at the end of the war, she was sent. She was one of 16 German journalists to be sent to Nuremberg to cover it, to cover the trial. And. And what's fascinating about the story of Ursula von Kardoff is usually we read history and we see history from the perspective of the winners. This is history from the perspective of the defeated. And she wrote in her diary, nowhere is it more painful to be German than in Nuremberg. And it was an excruciating experience.

B (31:29)

And she had a revelation that she was on the wrong side or not.

D (31:32)

Well, she didn't have a revelation that she was on the wrong side. And she kept this very, very honest diary. And in fact, what this diary shows, this lingering admiration for the Nazi high command and the Nazi elite. And there's a. There's a quite a breathtaking scene right at the end of the trial where Ursula von Kardoff, who at this point has been expelled from Courtroom 600 because her articles have been too in favor of the Nazis, too sympathetic to the Nazis. But she's allowed to sit in the cafeteria and she has an encounter with the Nazi wives. And she sits back and she admires what they're wearing. She describes in intricate detail the fur and the gorgeous clothes that they're wearing, their beautiful manners. And she says she feels like it's a society like atmosphere. And she actually says at the end of her diary, and it's the first time she actually says this, her heart is opened.

B (32:31)

Was she in the courtroom when Marie Claude gave her unique testimony? And if she was, is there a record of what she thought about it

A (32:39)

or what she was.

D (32:40)

She wasn't in the courtroom when Marie Claude gave her testimony. However, Ursula von Kardoff had read about Auschwitz in 1944. She had read about the account of two survivors of Auschwitz. So she was aware of what was going on. But in some kind of process of cognitive dissonance, perhaps, one might say, if one was trying to be charitable to her, she was just able to cut off and not relate to what was happening.

B (33:10)

Just to put a point on this. Marie Claude, the incredible French resistance witness, you quote her having said, the fact of having gassed millions of people from the elderly to babies, is so monstrous that it's not altogether surprising that people who did not live through this period of time or who are not closely involved in it sometimes find it hard to believe. So of course she's talking about the people after the war, not about. Not about Ursula, who did live through it. Finally, I want to ask you about. I think it's Harriet Zetterberg, the American lawyer who did so much to make the case against Hans Frank, Hitler's personal lawyer and also known as the Butcher of Poland.

D (33:48)

So Harriet Zetterberg, extraordinary woman, Yale educated lawyer, sweet. So unusual at the time for a woman to actually be able to study law. I think it was a one to ten ratio. She was the first woman to win the Sterling Scholarship for Law at Yale, extraordinary legal brain. She's taken to Nuremberg and she is tasked with putting together the dossier to convict Hans Frank, who, as you said, Butcher of Poland, one of the most evil characters in the Nazi regime. And she works night and day. She slaves in freezing cold conditions in the palace of justice under 20 watt light bulbs. And it is an absolute labor of love. It is an outstanding dossier. But when it came to presenting her work in court, she was unable to do so. She had to present. She had to hand her work over to a man. The reason, in order to have advocated in court at that time, she would have had to have obtained a waiver of disability. And that disability was that she was a woman.

B (34:53)

Was that a German law or.

D (34:54)

No, that was an American law that

B (34:56)

no woman could present a case in

D (34:58)

court, no woman lawyer could advocate in court unless they obtained a waiver of disability.

B (35:04)

Incredible. And on that point, I just wanted to read in America, CBS News broadcast at the time by Howard Steven. Howard K. Smith warned male listeners of the specter of feminism in Nuremberg. Quote, he said, the rising tide of feminism has overflowed into the intellectual jobs before mentioning the airtight case that was built against Hans Frank, written by a woman, Harriet Zetterberg. So, you know, that's the context in which all this was happening. What do you hope people will take away from this? Because there's been a lot written about Nuremberg, obviously a lot written about Nazism, the Holocaust, World War II.

D (35:41)

I mean, my hope very much is that people will look at the stories of these women and get a sense of their resilience, their hope for the future, their desperation to search for truth in a sea of information and their passion for life and their joie de vivre. And also the sense that just because one isn't in a position of power, it doesn't mean you can't be powerful.

B (36:08)

That's a great way to end it. Natalie Livingstone, thank you very much indeed. The Nuremberg women.

D (36:13)

Thank you.

B (36:14)

And we are so proud to help introduce those incredible women to the world. Coming up after the break from justice in Nuremberg to modern day justice in the United States. What is wrong with the Supreme Court and how can we fix it? Attorney Sarah Isger shares her solutions with Walter Isaacson. That's just ahead.

E (36:44)

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B (37:12)

I'm Jack McBrayer and I am back

E (37:14)

on the hunt to find even wilder.

B (37:16)

Oh no. Is this real?

A (37:19)

It is more outrageous. You like pink?

D (37:22)

It's my favorite color.

B (37:23)

Over the top houses on the market.

A (37:25)

Oh, look at this bathroom.

B (37:27)

And meet the fascinating people who call these one of a kind places home. How does one obtain a caboose?

A (37:37)

Zillow gone wild. All new season, Friday at 9:30 on HGTV.

B (37:46)

We turn now to the highest court in the United states. There are nine Supreme Court justices, six of whom were appointed by Republicans and three by Democrats. And since Trump 2.0, they have made several high profile and controversial decisions. On Wednesday, a ruling weakened the Voting Rights Act, a historic civil rights era law. By striking down a black congressional district in Louisiana, it could dilute the political power of minority communities. But despite the court drawing worldwide attention, our next guest says there is a lot we get wrong about it. Attorney and former Department of Justice spokesperson Sarah isger attempts to bust the myths and misconceptions in her new book, Last Branch Standing. And she's joining Walter Isaacson to discuss looking beyond partisan politics and finding solutions for a court in crisis. And just a note, they spoke just before Wednesday's redistricting ruling.

A (38:43)

Thank you, Chris. John and Tara Esger, welcome to the show.

E (38:47)

Thank you so much for having me.

A (38:48)

In your new book, the Last Branch Standing, you say the court is. The Supreme Court is the only one of the three branches of government that our founders would fully recognize. What do you mean by that?

E (39:03)

At this point, Congress has, you know, slunk off into the distance. We don't hear from them much anymore. And the president, presidents from both parties for the last 15, 20 years have been running the government through executive order again, something that was James Madison's very definition of tyranny. And so the Supreme Court is the branch the founders would still recognize doing its job. But we, the American people, get frustrated, blame them, when in fact, oftentimes who we should be blaming is the president for acting without Congress or Congress for not doing their job.

A (39:39)

Critics of the Supreme Court say we wouldn't have wanted unelected officials to be making so many of these decisions that they should be made by Congress. Do you think the founders intended it to be this way?

E (39:52)

No. The Supreme Court was never supposed to be the last word, is not supposed to be the last word. When the Supreme Court makes a decision throughout our history, it was supposed to be part of an ongoing dialogue with the representative branches. Congress can pass a law the next day on cases pending this term, whether Mississippi can have mail in ballots come in five days later, or whether Donald Trump can deny someone asylum at the southern border. Those are just questions of statute. The Supreme Court will tell us what they think the statute means, and Congress can change it the next day, as they did with the Voting Rights act or the Lilly Ledbetter act or the Supreme Court makes a decision and we the people, through a super majority, can ratify the Constitution as we did after the Supreme Court's decision that led to the 16th Amendment for the income tax. The problem is that we voters do not believe Congress will do their job. We do not believe we have the power to amend the Constitution anymore. So the pressure builds on the Supreme Court, the counter majoritarian branch of government that is not supposed to be responsive to majority factions and whims.

A (40:58)

I want to read you something that you wrote. It's actually easier to convince voters that the opposing candidate is evil than it is to tell them that he's wrong. Partisans seem to crave the dopamine hit they get from the outrage. It's the entire business model of some cable news stations. Explain how that's affected the court.

E (41:20)

We are in this moment of negative polarization where candidates aren't looking to convince you that they're right on policy. Or even better, what they're trying to convince you of is that the other side is a threat to your very existence. Your family, your church, your way of life, your so that you have no choice but to vote against them. Against that backdrop, of course, we see our institutions failing in approval numbers because those partisans will tear down anything that is a threat to their power. So, yes, the Supreme Court is up against huge headwinds right now because each side, both tribes, want to use the Supreme Court to batter the other. You see the right complain that the Supreme Court isn't loyal to Donald Trump. You see the left complain that the Supreme Court is just a bipartisan vehicle of Donald Trump, when in fact, yes, the Supreme Court justices have ideologies. They don't map perfectly onto our partisan ones. But like all of us, they have priors and beliefs. But they also have institutionalism. This other spectrum that I refer to, where Justice Kavanaugh is actually a lot closer to Justice Kagan, a Democratic appointee, than he is to Justice Gorsuch, a fellow Trump appointee. And if you're not willing to take the Supreme Court on the terms that the justices view themselves, the way that they decide cases, and you just think of them as being part of our partisan fights, you're gonna get about 90% of the cases wrong in any given term.

A (42:51)

And yet we think of it as a 6, 3 court, 6 conservatives, 3 liberals. In your book, you talk about it really being a 3, 3, 3 court. Explain that to me.

E (43:02)

That's exactly right. The data just doesn't bear out the 6:3ness of the Supreme Court. Last term, only 15% of the cases were 6:3 along ideological lines. The exact same number, 15%, were actually 6:3 reverse ideological lines, with all of the liberals in the majority and only conservative justices in dissent. Of course, the most likely outcome of any Supreme Court case. Unanimous.

A (43:28)

Well, you talk about the three which are the three that can go either way. It seems like Roberts is the keystone of that group. Does that give him more control of the Court than we thought he would have?

E (43:41)

It's interesting. On the one hand, the chief justice only has one vote, same as all of the other eight justices. But when it comes to the Court itself, he can assign the majority opinion when he's in the majority. And that, of course, allows you to narrow or widen the aperture of any given opinion. In that sense, he is the most powerful justice on the Supreme Court in modern American history, even though Justice Kavanaugh is slightly more likely to be in the majority in any given case. This really is the Roberts Court.

A (44:11)

So the big case you're looking at is the one called birthright citizenship. Explain exactly what that is.

E (44:17)

Absolutely. So Donald Trump, on his first day in office, signs an executive order saying that, in fact, no, someone born in the United States to a mother who was here illegally and a father who did not have citizenship or permanent residence is not a citizen of the United States. That has not been the policy of the United States, going all the way back to the 14th amendment, ratified in 1868, which says all persons born in the United States and subject to the jurisdiction thereof are automatically citizens. The question is what that subject to the jurisdiction thereof means. And so it was interesting at oral argument, you actually saw the liberal justices making very conservative originalism, textualism arguments, and you saw the administration making the more considered liberal arguments about evolving facts, evolving standards of the political majorities. And so, again, you see sort of that switch of hats that maybe proves the point that what we think of as conservative or liberal in law world doesn't map onto our partisan politics these days.

A (45:28)

One of the people that seems to be, I'd say, a swing vote is somebody from down here in New Orleans, Amy Coney Barrett. Explain how she fits into your axes.

E (45:39)

I describe her like the Dos Equis guy, the most interesting justice in the world. She doesn't fit the mold for even how to become a Supreme Court justice in this point where we have narrowed the resume path. So incredibly, she is the only justice on the Supreme Court to have gone to a public law school. She is one of very few justices to have not worked in the executive branch. She's a law professor through and through and the first mother of young children to ever work at the Supreme Court. So she clearly comes with a different perspective. She is the conservative justice most likely to vote against the Trump administration. You see that frustration among the conservatives and Republicans who want the court to reflect the politics of Donald Trump. She's not there for that. She is doing a different project, something that legal scholars would call formalism. She is the justice who is going to insist that you cross your T's and dot your I's before you ever get to the Supreme Court.

A (46:39)

So what does that mean when she's making A decision, say, on birthright citizenship.

E (46:46)

Obviously, we'll see. But at this point, the question is really how Donald Trump loses, not whether he's going to lose. If you listen to the oral argument, it would be interesting to see whether Justice Barrett, for instance, doesn't want to reach the question of the 14th Amendment and what that language means. But in fact, again, goes sort of earlier on in the case, if you will, narrower to say, look, Congress has this power. They passed a statute in 1952, and they didn't contemplate the President being able to define any of this. And the language that they used clearly ratified this idea that everyone born in the United States, not born to a diplomat, let's say, is automatically a citizen of the United States. We'll see whether she goes with that narrow decision or whether, in fact there are enough votes for that broad 14th amendment. Nope. The Constitution itself says that everyone born in the United States is automatically a citizen unless they are born to a diplomat or someone not subject to the legal jurisdiction of the United States.

A (47:53)

It used to be in my memory that conservatives were always railing against activist judges who tried to make laws from the bench. And now, whether it's birthright citizenship or many other cases, it seems to be, correct me if I'm wrong, the more conservative justices that are not going back to the originalist words, but are trying to in some ways make their own law.

E (48:19)

I think that our current justices actually kind of are a lagging indicator of our politics. They tend to reflect these legal moments for Frozen in Amber from 10, 20 years ago, when they first went on the bench for Justices Thomas and Alito. That's back to the late 80s and early 90s. But you are seeing that change in law students, in law professors who are on the right, and that will be reflected in the judiciary soon enough. Where, for instance, we've heard about something called common good constitutionalism, this is really the political rights answer to the Warren Court's living constitutionalism, this idea that it should be up to judges and justices to make decisions that are for, quote, the common good. And that common good is defined by the conservative political majority. At the time, of course, it didn't work very well for the Warren Court. You could argue that that's how Richard Nixon got into office. But you see this idea of judges and justices making the law for the American people, but being unaccountable to any sort of elected democratic process, causing these political backlashes throughout American history. Dred, Scott, Plessy, Korematsu, Buck v. Bell, a case that maybe isn't a household name, but actually upheld eugenics and mandatory sterilization by the state of Virginia. These are majority common good decisions by the Supreme Court. That, of course, are a stain on our country's history.

A (49:51)

People say this is the most controversial court. The opinion of the court in public opinion has gone way down. Put it in the context of American history. Is this the most controversial court?

E (50:03)

Not by a long shot. That was probably John Marshall's court in 1801, when Thomas Jefferson wins the first partisan election in American history. If you remember, it was the first time that we had the peaceful transfer of power. When John Adams stepped away after losing that election. Thomas Jefferson's party had called him a hermaphrodite. They had said horrible things about each other. And it was John Adams appointment of John Marshall to the Supreme Court that really makes it for the first time, an independent, counter majoritarian branch of government. Jefferson didn't like that. He tried to impeach Samuel Chase, one of the justices on the court, and he had the super majority in the Senate to do it. Nevertheless, he lost that vote. The senators believed he was going to impeach John Marshall next. And this is what creates a branch of government that can stand up against presidents, that can protect the First Amendment, unpopular speech against majorities, that is able to create a process for criminal defendants, who, of course, are deeply unpopular with American majorities. And it really is, I think, a proud moment in American history, the creation of the Supreme Court as we know it.

A (51:20)

You talk about Chief Justice Marshall creating really the independence of the court, despite what the president then wanted. There's a probably apocryphal quote at one point. I think it's President Jackson was said to have said, all right, Chief Justice Marshall has made his decision. Now let him try to enforce it. Whether or not Jackson said that, that sentiment has been there. Do you worry about that sentiment being here now? If the Supreme Court tries to make a decision about an election that President Trump doesn't agree with, that the president might defy the Supreme Court?

E (52:01)

The Supreme Court has faced this again and again. As you note. I couldn't find the evidence that Jackson said exactly that in my research, but he did say something quite close to it. He said, this decision has fallen stillborn. And of course, that justice. President Jackson's attitude about that Supreme Court case led to the trail of tears. President Lincoln wanted to ignore the Supreme Court. FDR wanted to pack the Supreme Court. He had a speech that he drafted telling the American people that he was going to ignore a Supreme court decision if they came out the other way. President Nixon wanted to ignore the Supreme Court court. So this is nothing new. But what's interesting is time and time again, either presidents in fact do obey the Supreme Court, as we saw with President Trump in the tariffs case, he took those tariffs down right away, or they ignore the Supreme Court at the peril of history. Nobody enforced Brown vs Board of Education for a decade. We had the exact same levels of segregation in our public schools, even though the Supreme Court decided that case unanimously in 1954. But the Supreme Court is looked on with that decision as being the best of our Supreme Court history. And so I think it is a dangerous game to play with the Supreme Court. And so I'm not too worried about it.

A (53:21)

Sarah Ezgar, thank you so much for joining us. Appreciate it.

E (53:24)

Thank you so much for having me.

B (53:26)

And on that thought provoking note, that is it for now. If you ever miss our show, you can find the latest episode shortly after it airs on our podcast. And remember, you can always catch us online on our website and all over social media. Thank you for watching and goodbye from London,

A (53:59)

I'm Daniel Dae Kim. I'm going to South Korea to figure out how this small nation conquered the world with its culture.

D (54:05)

Join me and meet the artists and

A (54:07)

creators behind the phenomenon.

E (54:09)

K Everything streaming May 9 on the

A (54:12)

CNN app of Pat Field in the wide open race for California governor. It's a rare all party primary where Democrats and Republicans face off. The California governor primary debate live Tuesday, May 5 at 9 on CNN or watch on the CNN app.