← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
By the People | Who Owns the Constitution?
00:41:14
The Supreme Court would have us believe it alone decides what the Constitution means. That’s not true. It never was.
Loading summary
Transcript86 lines
- [00:00]
Nutrafol Advertiser
Rally caps, lucky socks, never stepping on the foul line. Baseball is full of superstitions. We hope give us an edge. But let's be honest, most of it's just luck. That's how I used to feel about hair growth products until I found Nutrafol, the official hair growth partner of Major League Baseball. It's physician formulated, clinically tested and recommended by dermatologists. An actual game plan for thinning hair. Nutrafol has formulas for men at every stage. There's Nutrafol Men for Guys 1849 to help grow thicker, fuller hair in three to six months. And Nutrafol Men 50 plus, designed specifically for men 50 and up who want to keep the hair they've got. Go to nutrafol.com promo code baseball for $10 off your first month subscription and free shipping. Find out why Nutrafol is the only hair growth supplement brand trusted by mlb@nutrafol.com spelled n u t r a f o l.com promo code baseball that's neutralful.com promo code baseball queen Carvania stood haloed
- [01:08]
Larry Kramer
by the morning sun. An army hung on her every word.
- [01:12]
Dahlia Lithwick
My champions, I have sold my chariot on Carvana. Twas a lovely suv, an inexplicably queenly offer. They're even coming to the castle to collect it.
- [01:25]
Larry Kramer
Tonight we feast.
- [01:29]
Dahlia Lithwick
An offer you can feast on. Sell your car today on Carvana. Pickup fees may apply. When did the justices of the United States Supreme Court become the only people allowed to interpret the Constitution?
- [01:46]
Mark Joseph Stern
What would it mean to return the power to decide what the Constitution is to the people themselves?
- [01:53]
Dahlia Lithwick
This is Amicus Slate's podcast about the courts, the law, and the Supreme Court. I'm Dahlia Lithwick.
- [01:59]
Mark Joseph Stern
And I'm Mark Joseph Stern.
- [02:00]
Dahlia Lithwick
Welcome to by the People, a series of podcast episodes and articles@slate.com where we hope to start a conversation that will carry through the summer, into the fall, the next Supreme Court term, the midterms, and beyond.
- [02:16]
Mark Joseph Stern
By the People is about whether the Constitution truly belongs to the American people.
- [02:21]
Dahlia Lithwick
And if it does, what would it take to for us to act like it.
- [02:26]
Mark Joseph Stern
Think of it as part provocation, part toolkit.
- [02:29]
Dahlia Lithwick
Reclaiming the Constitution is something ordinary Americans can absolutely do and certainly have done in the past.
- [02:36]
Mark Joseph Stern
That reclamation can take the form of amendments, petitioning, and structural reform, but as you'll hear in this series, it can start with something as easy as writing a letter.
- [02:52]
Dahlia Lithwick
In this first episode, we're exploring popular constitutionalism, a transformational ideal, but one that is also deeply rooted in American history and Tradition.
- [03:02]
Mark Joseph Stern
Dolly is going to talk to someone whose groundbreaking work examined America's turn toward judicial supremacy and exposed the very recent amnesia about how constitutional meaning was made and enforced for quite literally centuries. But first we wanted to talk a bit about the genesis of this project and why we're hoping you'll come on this journey with us. And I'll start with a question for you, Dahlia. You've been mulling this series for a while. When did you start seriously thinking about who exactly gets to decide what the Constitution means?
- [03:36]
Dahlia Lithwick
The truth, Mark, is we've been dancing around this thing among ourselves on this show. You and I have been talking about it and we've been shorthanding it in house at Slate as popcon for maybe three years, a little bit more. And we're not alone in this. As more and more people have become aware of the rights and freedoms that were being impinged and infringed and just stolen by the Supreme Court, there's been a renewed interest among people kind of across the spectrum in understanding how and why we handed these nine unelected, life tenured partisan jurists or all of the power and how we might get out from under it.
- [04:21]
Mark Joseph Stern
I think of this miniseries by the People as a natural progression of the work you and I have done together, Dalia, beginning with Disorder in the court back in 2023 when we asked listeners to reconsider how the Court is covered and then with how originalism ate the law in 2024 when we excavated the ways in which a so called theory of constitutional interpretation was sabotaging democracy.
- [04:46]
Dahlia Lithwick
Yeah, it feels of a piece, Mark, I think because of this through line. And that is that it is an act of public will to allow the Court to be covered like a sacred oracle. It is an act of public will to allow the Court to pretend to be honoring history and text when it's doing just the opposite. And this year we wanted to contend that it's also an act of public will to allow the Court to control every aspect of American politics and life without any check or, or balance or constraint. A little over two decades ago, a book actually predicted some of the very tensions we're trying to talk about here. It offered a framework for tackling them. Professor Larry Kramer's book the People Popular Constitutionalism and Judicial Review, provided the theoretical launchpad for this particular project. But I want to be clear, it's not the blueprint. At the close of this last term, faced with a monarchic Supreme Court and a president who would be king, it just felt really urgent. Remind people of a kind of constitutional agency that Americans have actually had since the founding, but seem to have forgotten.
- [05:54]
Mark Joseph Stern
And as we'll hear from Professor Kramer, that forgetting was quite recent.
- [05:59]
Dahlia Lithwick
It was. But before we talk about forgetting, let's start by remembering. Larry Kramer is president and Vice Chancellor of the London School of Economics and Political Science. He spent most of his career in the legal academy, including as the fifth 15th Dean of Stanford Law School. But back in the early 2000s, he had just arrived in New York City.
- [06:25]
Larry Kramer
I had moved to NYU from the University of Michigan. I was, you know, I did constitutional law. I had been taught, like everybody else, that the Court was obviously intended to play this role in which it would be the final decider. And that was established in Marbury v. Madison, et cetera, et cetera.
- [06:41]
Dahlia Lithwick
Like almost all baby lawyers, Larry Kramer and I were taught that a landmark case called Marbury v. Madison, decided in 1803, had established the power of judicial review, granting the Supreme Court the authority to strike down laws, statutes and executive actions found to violate the US Constitution. By the early 2000s, the assumption that only the high priests of SCOTUS could define and decide constitutional matters had become an unassailable truth. The view from the court and from much of the legal academy was that the public had no business messing in constitutional affairs. Larry was finding that viewpoint increasingly hard to reconcile.
- [07:25]
Larry Kramer
And having grown up where I did in Chicago, their kind of contempt for ordinary citizens didn't sit well with me.
- [07:31]
Dahlia Lithwick
At the time, Larry was working on a history of federalism, and he was knee deep in research about the ratification of the US Constitution when he noticed something was missing.
- [07:42]
Larry Kramer
Reading through the, you know, the ratification history, and it was all about how was the Constitution gonna be enforced? And it was almost never. Were courts mentioned? Actually, courts were not an important part of the mechanism for enforcing the Constitution as it was originally understood. So then I started kind of wondering, well, if not courts, then what did they think?
- [08:00]
Dahlia Lithwick
Meanwhile, over at 1 First street, the
- [08:03]
Larry Kramer
court was really kicking into high gear in changing constitutional law and doing all sorts of things with no pushback because their supremacy was just so widely accepted. And so those things all came together and I started to write a history to recapture the way it was originally understood.
- [08:19]
Dahlia Lithwick
And that history, well, it goes a little something like this. Here is Larry Kramer's very abridged history of popular constitutionalisms, origins and meaning.
- [08:29]
Larry Kramer
The origins of the idea of a Constitution, which are grounded in, you know, 17th century England, were always popular. That was, in fact, the whole idea. There was a Fundamental law. The way I tried to describe it in the book was think of ordinary law. The government makes rules. We have to interpret that law to decide what we can or can't do. But if there's a claim that we got it wrong, it goes to an agent of the state which tells us if we were right or wrong and punishes us if we're wrong. Constitutional law was the flip of that. So that was law made by the people to regulate the governors. They still had to interpret it to decide what they could or couldn't do. But if a question arose as to whether they were right or wrong, it would go back to the people who would decide and impose a sanction if they thought they got it wrong. Now, the devices by which they did that in the 17th and 18th centuries were a set of popular devices which ran the gamut from elections to petitioning. That's why the right to petition is in the First Amendment. It was a very important and real meaty form of constitutional enforcement to control over law enforcement. Right? There were no police. So if you needed to arrest someone, you might need the community to turn out and help you, whether in the form of the posse or the militia. But if they didn't turn out because they thought that the law was unconstitutional, that told you something. Took control of juries. You had to get through a grand jury and a petty jury. That had to be from the community. And again, if they didn't think the law was constitutional, they wouldn't enforce it. And then ultimately, through crime, which would be the community, would form and would prevent the enforcement of a law that they thought was unconstitutional. Those devices were traditional, not just in England, but in Europe. They came to America. They were the devices used in the United States. If you look at the American Revolution from 1763 to 1776, that's exactly how we waged our opposition. And our opposition to England was over the Constitution. The claim was at every point that the British government was violating the British Constitution vis a vis the colonies. If you look at the Declaration of Independence, the first paragraph is the only one that makes any reference to natural law. Its reference is that if the government persists in violating the Constitution, you have a natural right to rebel. But if you look at the 27 violations, they're all violations of the British constitution. So having fought a revolution through that system, it would have been weird for the founders immediately to turn around and reject it. That is the way it was assumed. And that's what I found when I read the ratification debates, when they talked about how the Constitution would be enforced. It was always assumed that it would be through these devices. Courts emerged as a branch that could participate, but the idea that they would be final and binding over the people themselves was not accepted. It was just rejected. Didn't even emerge as an idea until the 1790s. It emerged from the conservative Federalists who were scared by the French Revolution. They asserted the idea and it was utterly repudiated in the election of 1800. And then that has been the debate across American history. So from the beginning, the assumption was that the people had the right not just to make constitutional law, but also to interpret it. And these were the devices through which they interpreted it. And what the Constitution did was instead of it being direct popular action, which was necessary when the government was monarchical and you weren't necessarily represented, once you had representative branches of government, the idea was it would be the different branches acting differently and which branch the people backed. But it would be done through the government, but it would still be a reflection of popular reactions by design.
- [11:51]
Mark Joseph Stern
In this summer of the 250th anniversary of the Declaration of Independence, it's startling to think of that document as itself an expression of popular constitutionalism, of the public enforcing their understanding of fundamental law, what we now call constitutional law. This idea actually precedes the founding and is absolutely there at the founding.
- [12:15]
Dahlia Lithwick
Yeah. And this theme of popular constitutionalism runs so visibly through much of US History once you're looking for it.
- [12:24]
Mark Joseph Stern
So when did it all change? When exactly did Americans forget the Constitution belonged to them and not nine Supreme Court justices?
- [12:33]
Dahlia Lithwick
Well, Mark, there's a funny coincidence here, because when I asked Larry that question, I thought the answer was going to be the Warren court of the 1950s and 60s, and perhaps even more specifically, that Court's 1958 decision in Cooper v. Aaron. That was when the court denied the Little Rock, Arkansas school board the right to delay racial desegregation and required that states be bound by and enforce Supreme Court decisions even if they disagreed with them. But no, that's not when. Larry Kramer carbon dates this change to he said so.
- [13:08]
Larry Kramer
It's 1986. It's the Bork hearings.
- [13:11]
Mark Joseph Stern
Oh, that is recent. I mean, long enough ago that the Simpsons hadn't even started yet. But in the sweep of American history, it's just seven presidents back.
- [13:22]
Dahlia Lithwick
Right. And remember our series from a couple of years ago, How Originalism Ate the Law? It was all about the rise of the conservative legal movement's favorite all encompassing fish. Your wish Theory of constitutional interpretation and how we carbon dated originalism's debut on the national political stage to those very same hearings when the originalist legal scholar Robert Bork's nomination to the high court went down in flames. And conservatives never forgot it. As Larry tells it, prior to that moment, judicial supremacy had been embraced by the legal profession, but not by popular political culture. In the first couple of centuries of the Republic, at times when the Court tried to exert supremacy whenever they sought to go too far and it became the kind of political issue that engaged the public, the court lost. The political branches would invoke devices like controlling the jurisdiction, making the court bigger or smaller, and the court would retreat.
- [14:22]
Larry Kramer
But then it begins to change with the civil rights movement. And the reason for that is the way it had always been framed across American history was a left right issue, with the left, meaning the progressive or popular side of politics, always opposing judicial supremacy and the right, the conservative side, always supporting it. Now, what counted as left and right changes over time. You know, we would view the Jacksonians as conservative in their time. They were the progressives and so on, but it always plays out that way. And then you think about the Lochner fight.
- [14:52]
Dahlia Lithwick
That's the 30 year battle between the Supreme Court and, well, the country really over labor rights, starting with Lochner vs. New York in 1905, with the courts siding against workers over hours and contracts.
- [15:06]
Larry Kramer
Right. It's the left that pushes back against judicial supremacy. It's the right that supports it. The left wins. That's FDR and the New Deal.
- [15:13]
Dahlia Lithwick
The Supreme Court tries to stop the New Deal issuing decision after decision, blocking FDR's program, claiming it handed too much power to the federal government. In the end, FDR bullies the Court into submission with the threat of court pecking. Contrary to the belief of many, many Americans, the Constitution says nothing about any power of the Court to declare legislation unconstitutional. Nor, parenthetically, does it mention the number of judges for the court.
- [15:58]
Mark Joseph Stern
That's President Franklin Delano Roosevelt speaking on Constitution Day in 1937. Fast forward 16 years. In 1953, a new chief Justice, Earl Warren, is appointed to the Court.
- [16:10]
Larry Kramer
You suddenly, for the first and only time in American history, have a very liberal activist court.
- [16:15]
Mark Joseph Stern
The Warren Court dramatically expands constitutional protections. In 1954's Brown v. Board of Education. It ends the separate but equal doctrine that justified Jim Crow in the South. It grants new rights to criminal defendants, including the now famous Miranda warnings that inform suspects of their right to remain silent. And it fiercely protects freedom of speech, limiting government officials ability to censor public debate. And artistic expression through libel suits and obscenity laws, and the left flips.
- [16:42]
Larry Kramer
They suddenly also embrace judicial supremacy because they like what this court is doing now. Not all of them, and not in a day. At the time of Brown v. The Board of Education, the older liberals are very, very uncomfortable with Brown's assertion or Cooper Vierin's assertion of judicial supremacy. They're very uncomfortable because they fought the Lochner fight, the younger progressives love it, and so they take it and they run with it. And now you have a period in which within the profession, on the left and the right, and within politics on the left and the right political leadership, there's an acceptance of judicial supremacy for the first time. It still doesn't immediately penetrate into popular political culture. And you can see that because in the 60s and 70s, you still have pushbacks against the court. But the debate shifts. Across most of American history, the debate had been who has final say, with conservatives saying the court and progressives saying the people and the progressives always winning. And no debate in that period over how to interpret the Constitution. It was just like All Things Considered. You look at text and case law and policy and history, and you come up with the best argument. Nobody's really fighting about that. After Brown, when there's no longer a debate over who, the debate for the first time becomes how. And the left and right split over how to interpret the Constitution, with the right jumping onto originalism and the left jumping onto various versions of what we call living constitutionalism. But the point where it really comes home for the public at large is the Bork hearings, which achieved a kind of public awareness that just hadn't happened for a really long time, even in controversial judicial nominations. Right. A kind of awareness across the politics and the way it was framed was, oh, my God. Who you put on the court really matters, because they're gonna have final say over your rights, in particular over whether a woman can get an abortion, but other issues as well. And so it's really at that point, in my view, that what had been growing since the civil rights movement really comes to be established within American popular political culture as well as within elite legal culture.
- [18:39]
Dahlia Lithwick
It's so interesting because if I'm hearing you correctly, you're almost saying the left vaults into the idea sort of after, you know, Brown and Cooper versus Aaron, like, after this just tiny fragment of cases, the left vaults into agreement that, like, yes, the Supreme Court is godlike and perfect, and then that becomes the template by which the sort of judicial wars take off and the left and the right at that point agree that the Supreme Court, like that's now. Right. The text and the subtext and we don't interrogate it anymore.
- [19:15]
Larry Kramer
And look what's happened since then. Right. What you would have expected, one is the court's power has expanded enormously. Two, every single judicial nomination is a major political issue. Right. All these three, we're gonna put children on the court because we want them to be there as long as we possibly can, because they're gonna have this power. And I want my policy to be extended up. You know, none of that was true before and all of it is true since. And, and it's completely this embrace of judicial supremacy. And then four is now we fight bitterly about how to interpret the Constitution as a theoretical matter as well as just in individual cases.
- [19:50]
Mark Joseph Stern
That picture Larry just painted is painfully true.
- [19:53]
Dahlia Lithwick
It is. But it doesn't have to be. The helplessness has been learned and it can be unlearned.
- [20:00]
Mark Joseph Stern
We're going to take a short break, but when we come back, Dahlia and Larry will get into what he thinks is it would take to get out from under the judicial supremacy that's crushing American democracy.
- [20:14]
Dahlia Lithwick
NPR understands your curiosity is boundless, but your time isn't. That's why they make up first the three biggest news stories of the day, with the reporting and analysis to understand them in under 15 minutes. Upfirst's distillation of President Trump's claims of election fraud in California was a super useful preview of what we can expect in the midterm. There's no shortage of news right now. Upfirst doesn't just give you the headlines, it gives you the context. Recent episodes covered how American citizens are getting caught in ICE's growing surveillance web, what the Iran war means for the US Economy, and why Attorney General Pam Bondi's exit is bigger than it looks. Up first does something most daily news shows don't. It asks better questions to get better answers. Not just what happened, but how it came about, why it's a big deal, and what happens next. That's the difference between knowing the news and understanding it. Follow NPR's Up first podcast so you can understand what matters and what happens next. It's hard news through a human lens. This episode is brought to you by Ground News. Here at Amicus, we read a lot about the Supreme Court, but it's not the only news we consume. And like you, we seek out different sources on the same subject to get the full story. Ground news is a great way to get down to the Facts. It's an app and website that makes it easy to compare news sources, break free from algorithms, and think critically about where you're getting your news. Recently I went to Ground News to learn more about the resignation of British Prime Minister Keir Starmer. Ground News had rounded up coverage from 40 different sources. According to the platform, 46% of the coverage is center or nonpartisan. But if you click right, you can see right leaning coverage that claims, quote, keir Starmer offered Britain nothing. And if you click left, you'll see headlines lamenting that Keir Starmer is, quote, the latest casualty of the Downing street meat grinder. The Nobel Peace center called Ground News, quote, an excellent way to stay informed, avoid echo chambers and expand your worldview. Here's how to get started. Go to groundnews.comac to get 40% off their Unlimited Access Vantage subscription. That's groundnews.comac and you'll get 40% off the Vantage subscription. Whether you subscribe yourself or send it as a gift. Make sure to use our link so that they know that we sent you. That's groundnews.com ac. Today's show is brought to you by Vanguard. To all the financial advisors listening, let's talk bonds for a minute. Capturing value in fixed income is not easy. Bond markets are massive, murky and let's be real. Lots of firms throw a couple of flashy funds your way and call it a day. But not Vanguard. Vanguard bonds are institutional quality. Institutional quality isn't a tagline, it is a commitment to your clients. It means top grade products across the board. The Lineup includes over 80 bond funds. They're actively managed by a 200 person global squad of sector specialists, analysts and traders. Lots of firms love to highlight their star portfolio managers like it's all about that one brilliant mind making the magic happen. Vanguard's philosophy is a little different. They believe the best active strategies shouldn't be locked away with one person, they should be shared across the team. That way, every client benefits from the collective brain power, not just one individual's take. The bond market is complex and it's not something one person or small team can realistically keep up with. Vanguard's been in the game a long time and their scale gives them a serious edge. They're able to invest across all kinds of sectors, maturities and geographies, which means they can spot and act on opportunities that others might miss. So if you're looking to give your clients consistent results year in and year out, go see the record for yourself@vanguard.com audio that's vanguard.com audio. All investing is subject to risk. Vanguard Marketing Corporation Distributor
- [24:28]
Mark Joseph Stern
and we're back. You're listening to Amicus Episode 1 of by the People. Before the break, we were talking about the kind of learned helplessness of regarding the Supreme Court as godlike and perfect as our master rather than our servant. Let's pick up where Dalia left off.
- [24:44]
Dahlia Lithwick
The helplessness has been learned, and it can be unlearned. And Larry told me, getting out from under this is actually pretty simple.
- [24:53]
Larry Kramer
It's a lot less than you think to actually undo because you're really restoring something. That was the way the Constitution operated really into the 1980s, which, again, most people don't realize because only one side of the debate has been celebrated. But the idea is pretty simple. It's not sort of whatever the public seems to think. Those ideas are supposed to be translated in and through the government. So you've got multiple branches of the government, and this whole idea of separation of powers and checks and balances and. And all the branches are supposed to be able to check each other. It's not like they can all check each other except for the court. Right. And so the way it was meant to operate was the branches are all sort of making decisions, whether it's about whether laws are good or bad or whether laws are constitutional or not or both. And because of those many different branches, all ultimately accountable to the people, but in different ways with different political interests, you're gonna get a reflection in which, if all of the branches kind of are okay with something, does that mean for sure that it's good and constitutional? Maybe, but that's probably as good as you can get in terms of thinking that it is. And if there's disagreement, then the branches that don't agree have the capacity to push back in various and different ways. And that's not meant to end the debate. It's meant to start it. So it pushes it back to the people, and when they come down on one side or the other, the other branches will yield. Now, the court originally wasn't part of this because they weren't thought to be the kind of branch that would be participating in those debates. They made them so independent because they were worried about decisions in individual cases and not having, you know, the president come in and say, yeah, yeah, he's in innocent, but I want them convicted anyway. So we made the courts very independent, but as this policy world emerged, we needed some way to push back on the court. And the devices that they used are ones that are unquestionably constitutional. Control over the budget, control over jurisdiction, control over the size of the court, the three obvious ones, and control over enforcement. All of those are clearly placed in the political branches. And the shift from popular constitutionalism to legal constitutionalism and from judicial review without supremacy to judicial supremacy was the delegitimation of those devices. So suddenly beginning in the 50s and 60s, you're told, well, yeah, maybe Congress does have that power, but they can't use it because it entrenches on judicial independence. And so what it would really entail is simply restoring the possibility of using those tools, which are very hard to use in the best of or in the worst of circumstances, depending on how you look at it. And it's really no more than that. Across American history, we had lots of instances where the court pushed very far, got very out of sync with where the country was as a whole. And when that happens, the political branches were able to push back, and the court would e retreat or stand its ground, and the public would go back and support the court. And there are examples of both of those across American history. And that's the way popular control is exerted.
- [27:36]
Dahlia Lithwick
I like how you're describing this, Larry, because in a sense, you're not saying this is a heavy lift structurally. You're saying it's almost a psychologically or cognitively heavy lift, like one would have to change one's biases and sort of intellectual commitments, but it's not a thing that can't be done.
- [27:57]
Larry Kramer
Judicial review is a practice, and judicial supremacy is an ideology about what weight to give to judicial review. And so all that's required to change is to say we can strip away the ideology which says once the court has decided that's final and binding on all of the rest of us, and the other branches of government cannot push back. It's exactly the shift between the court as our servant versus the court as our master. We may be inclined to defer in both cases, but the way we think about whether, when, and how we should defer is very different if we view the court as our servant and if we view it as our master. American democracy really operates in two different modes. There's ordinary politics and extraordinary politics. Ordinary politics plays out when all of the players within the system, meaning the major branches of government, states as well, basically share their views on what the relative powers are. And there's still lots of disagreements, but those are the kinds of disagreements that separation of powers is designed to work out for us without requiring the public to get deeply Engaged. Because the last thing you want is a public deeply engaged in politics. All the time, as we see it makes people crazy. And you can't run a system that way. So it was set up to operate, as the saying goes, a machine that would run into itself for the most part, with people paying attention. From time to time, extraordinary politics happens when one of the branches decides to fundamentally change the rules of the game. Okay? And different branches have done that. At the time I wrote the book, it was the court that was trying to do it. It was the court that was expanding its power by offering really radically new interpretations of the Constitution and then expecting everybody to just go along because the court had said it. And my mind was, that's problematic. And that's where we need to push back. Those decisions should be made by the people. Now, we can make those decisions. We can go along with the radical change, or we can oppose it. But we have to decide, which means we have to get engaged. Now, that's happened multiple times across American history where some branches has tried to fundamentally change the system. It has become the kind of issue that did deeply engage the public, and a decision was made. So you can think of Jefferson as having had that, Jackson as having had that, Lincoln as having had that, each of the Roosevelts, those are presidential examples. But Congress doing it and during Reconstruction, and the court doing it in the civil rights era. And again, actually, you know, in the period when I was writing, when that happens and the public gets engaged, something has to engage it, and then where they come out tends to decide things. The form of decision is flexible. It can be by constitutional amendment, as it was during Reconstruction. It can be by statutes, as it was in the civil rights era. The court pushed it, but the resolution of it was when Congress passed the Civil rights acts of 64 and 65. It can be through politics, just the clash happens. The public gets engaged. It's very clear which side they're on, and the other branch retreats. That would be FDR in the new
- [30:48]
Dahlia Lithwick
thinking about the dangers of judicial supremacy and an imperial court. Back in 2004, were you thinking about the possibility of being in this moment where that imperial court then creates an imperial, if not uncheckable presidency? Because that presidency is now bolstered by this imperial court in a way that's sort of symbiotic and I think maybe not reflected in the book and maybe just to concretize the question, I don't lose a lot of sleep over the idea of an FDR who was unconstrained by the court. But Andrew Jackson unconstrained by the court scares me in ways that a Donald Trump unconstrained by the court or anyone else is quite terrifying. So I'm just wondering how popular constitutionalism, as you were thinking about it then, and maybe it's changed now, interacts with an unbounded executive.
- [31:47]
Larry Kramer
What I would say today is it's the president who is seeking to fundamentally change the order. He's trying to move us from three co equal branches to a system in which the president is effectively CEO of the country. It's not the court that would make that, it's the president who's making it. And the question is, is there going to be pushback that engages the public? So we might expect it from political opposition, we might expect it from civil society, we might expect it from business. We're getting none of those pushbacks, I think, because they're all cowed, because unlike prior administrations, the Trump administration is willing to use the tools of government to go after you personally, and people are afraid. Take them a little while, hopefully, to get their courage up. But the courts are another source of opposition, as they were when FDR tried to do it. And so the question is, if the court just acquiesces and goes along and the public never gets engaged, then perhaps the constitutional system changes. If, however, the court stands up to Trump and he defies it, as happened in the New Deal, that will, as it always has, call the question for the public in a way that can only happen when that happens at the Supreme Court level. And then the public will decide, and we'll see how it plays out. And so that's sort of how I see the current situation playing out. You need to distinguish within that, then what are the things the Trump administration is doing that are major changes in the legal order? What are things that are just policies we disagree with, and what are things which are like, flat out acts of, say, corruption or criminality? All of them ultimately turn on the first group, which is, do we embrace this CEO model? And that's things like control over independent agencies, you know, birthrights. The big cases are all cases where there's an effort to make a fundamental change in the power of the president relative to the other two branches.
- [33:28]
Dahlia Lithwick
So you talked a little bit about what popular constitutionalism looked like in the 18th and 19th centuries. You talked about the kinds of structures and arrangements on the ground that could enforce that in the 21st century. We don't have a lot of those structures. I'm wondering what it looks like to you today to sort of import the framework that you're holding out. You know, this is what it was like in England. This is what it was like at the founding. This is what it could be right now, right here. This is what those structures look like in the most concrete way possible.
- [34:07]
Larry Kramer
Sure. And remember, what I'm arguing is that system didn't just exist in the 18th and 19th century. It persisted right up through the 1970s and 80s. So you can look to me, the best example of popular constitutionalism in the modern era is the civil rights movement. And the reaction. The Court's decision was just one part. It was a grassroots civil rights movement. But it worked in and through politics until you got legislation. And the reason that could work and what the problem is today is that the underlying political structures for managing democratic politics were still strong, and they're not today. The most obvious and important structure that has eroded is actually political parties. We don't have political parties in any meaningful sense any longer. We have labels. The party is whoever controls the donor lists. There's no kind of control over it in any meaningful way. Forget the Court, forget constitutional law. We need to prepare the structures of ordinary politics so that in a country where, of course, there's gonna be disagreements and people with different passions and interests and beliefs, we can work those out and come to resolutions that people accept. And that requires a political culture that has been eroding since the 1960s that needs to be rebuilt. If it's not rebuilt, the courts certainly can't keep us safe. We won't be safe. I mean, what's happening now is what you would expect to happen. What always happens is the emergence of a demagogue who wants to assert authoritarian power. And whether they get away with it or not, ultimately turns on popular politics. And if people embrace that, then we get it. That's the way democratic politics works, you know, But I don't think they will. But the long term stability does require rebuilding the structures of ordinary democratic politics.
- [35:52]
Mark Joseph Stern
Oh, that little thing. Rebuilding the structures of democratic politics. We'll get right on it.
- [35:58]
Dahlia Lithwick
What was it you said at the start of this episode, Mark? Think of this as part provocation, part, part toolkit.
- [36:05]
Mark Joseph Stern
I did say that. And as this series unfolds, we'll find out what exactly is inside that toolkit. But right now, we're going to take a short break.
- [36:18]
Dahlia Lithwick
Back to school always makes me nostalgic. New shoes, sharpened pencils, Trapper keepers, lunch boxes, and trying to memorize your friend's home phone number. But parenting during Back to school looks a little different now. Now, between school pickups, carpools, practices and after school activities, kids need a way to reach us. And honestly, we need a way to reach them too. But a regular smartphone can come with a lot more than just calls and texts. Social media, Internet browsers, endless apps, and constant distractions can be a lot for kids to carry into the school year. Listen, we were definitely the last parents to allow our son to have a phone in middle school. And we eventually, eventually relented. Really only for the sake of teen romance. And also carpools. And this is where Gab comes in. Gab makes phones and watches designed for kids with no social media apps and no Internet browsers. They give kids the connection they need while giving parents helpful features like GPS check ins, optional managed contacts, safer messaging, and even the option for Gab music clean songs curate specifically for kids. It's a much more age appropriate way for kids to build independence and a much easier way for parents to feel good about that first phone or watch. I can't recommend Gab enough. And right now use our code to get $25 off a kid's phone. That can make parenting easier and give you more peace of mind. Visit gab.comamicus and use code amicus to save $25. That's gabgab.
- [37:56]
Grainger Advertiser
Grainger knows. When you're a procurement manager for an office park, you're not managing one building, you're managing all of them. And to stay ahead, you need to see through walls and around corners. Lights about to fail, filters ready to clog H Vac on its last leg. If you wait until something breaks, you're all behind. Count on Grainger for quality products, easy reordering and 24. 7 support. Call 1-800-GRAINGER click grainger.com or just stop by Grainger for the ones who get it done.
- [38:33]
Mark Joseph Stern
And we're back. This is by the People, a special series from Amicus about reclaiming the Constitution from this monarchic Supreme Court court. Let's return to Dalia's conversation with Larry Kramer, who has been explaining his theory of popular constitutionalism.
- [38:51]
Dahlia Lithwick
I want to talk for one second, if I can, about maybe the principal critique of any version of popular constitutionalism, which is the fear of the tyranny of the majority right. That if we allow constitutional interpretation to be handed out to public opinion or you the feeling of the crowds or legislative majorities, how do we protect the vulnerable minority groups that the court actually managed in that flickering moment after Brown to protect? What's the Answer.
- [39:26]
Larry Kramer
Well, there's a bunch of answers. Number one is ultimately the only protection you have for minorities is from the majority. It's from the country as a whole. The founders recognized this entirely. So they tried to set up a system in which the majority of people could be led toward the their, you know, their most reasonable, their best views, but with recognition that if that's not there, then you're not gonna be able to preserve your republic. Including that. That would be point one. Point two would be across American history. Actually, we made enormous progress at every point without judicial supremacy, including the protection for blacks. That happens at a time, as I say, the court first articulates the idea of their supremacy after Brown. It's not accepted at that time, but a lot of progress is made. But the ultimate progress is when you can persuade Congress to pass a law. Three is, again, if you look across American history, courts have traditionally been actually the worst protectors of minorities. And what protections we have had have almost always come from progressive legislation, whether it was protection of workers or labor. Take your choice. The idea that the courts have been the protectors doesn't line up with the actual facts and the weakening of that. See, this is one of the points to realize. The Warren Court turned out to be a blip, and we've had 50 years since of the courts once again eroding all of the protections of minorities that you have gotten through legislation which got popular acceptance. So it's hard to look at the actual facts on the ground and think that this isn't just a weird myth that was created because of like a handful of cases between 1954 and 1968.
- [40:57]
Dahlia Lithwick
And Larry, if you're right, and we would all embrace popular constitutionalism and sort of recalibrate power into the hands of the people and their representatives with the understanding now that the stakes are high for all the reasons you just laid out in terms of confirmation hearings and constitutional interpretation, how do you balance the will of the people with constitutional stability? How do we keep this from becoming a race to the bottom every couple of years where the polarized, angry people just yank constitutional meaning away from one another, and we live on an eternal, instable seesaw of constitutional protection.
- [41:42]
Larry Kramer
Once again, I think if you look at the actual facts, exactly the opposite seems to be true. So the greatest source of instability in our constitutional order has been the Court, which flip flops around all the time. Compare the British Constitution, which has not depended on that at all. It's been much more stable than the American Constitution. Compare those parts of the Constitution where there was a political settlement and the court has not gotten involved. They have been much more stable over time than places where the court gets involved. Partly that's because the court provides such an easy focal point to go after an issue or not. And so I think if you just look at the actual practice in American history, there's no particular reason to have that fear. Remember, what you're talking about is not where, like, if there's lots of crowds protesting, oh, my God, we have to change it. It's always meant to be filtered through the political system in the ways in which the various branches react. So you only are gonna get that kind of change when across the system, you get agreement on making a move one way or the other. Judicial review doesn't go away. The court can still strike down legislation, and then it would require Congress to take some action against that and that a lot of political will and so on. So in real practice, the system is meant not to operate, having to resort to the public that way, except in extreme cases. And most of the time, if the branches are in agreement on the rules, they'll work this stuff out. So you can have judicial review, all the different branches, to get significant change. There's gotta be agreement across the political system, which only happens when there's a real reflection across the people themselves that this is what they want.
- [43:10]
Dahlia Lithwick
So maybe we can end on this, because I very, very much love the turn that you are making, which is we tend to, on the political right and the left, like, wring our hands and cry about this moment of profound disillusionment in the Supreme Court and the polling and the historic lows in public trust and, you know, this quote, unquote, crisis in legitimacy and how fragile the court is. And what you're saying is, no, dude, that is an opportunity, like, into that we can really blow a bunch of. Of radical old ideas into that crack and really rebuild checks and balances and muscular democracy. And I'm still struggling, Larry. It's painful for me as a lawyer. I know it's painful for you as a lawyer. How do you square what is fundamentally a project that will harm the court's legitimacy in some sense would with this necessary catalyst for American regaining some agency over their democracy.
- [44:19]
Larry Kramer
Yeah. So I don't think. I think ultimately it'll strengthen the court's legitimacy. The court's legitimacy has been eroding steadily over the last couple decades precisely because the combination of having as much power they do and making decisions that are unavoidably ideological, they've eroded their own credibility. So I think the degree of accountability alongside their independence that you would restore would actually strengthen their credibility and make it easier for them to go forward. Now, I think your first point is the key one, though, is it's not even about law or courts. It's about having an opportunity to rebuild American democratic politics. What we're missing, frankly, is leadership, because that doesn't happen, like with people in the streets. It happens with people in the streets who find someone who offers them a vision and a way to do this that they're prepared to follow. And it's not just a substantive vision. It's not just the policies. It's also the ways in which to do it. Somebody who says, these norms matter and we're going to respect them, and here's the way in which we're going to make this government work to achieve these things. American people, that will make your lives better. That's what we're missing. And maybe it was just luck that leaders like Lincoln or FDR or Jeffrey, you know, emerged at the point in time where we needed them and were able to do those two things simultaneously, which was, remember, they weren't ever just about policy. They did change the way politics worked. And it's not always on the left. I mean, Reagan would be another example, a kind of leadership that produced a realignment that actually worked effectively. He might have disagreed, but worked effectively to make American politics work for a time. And so if we can do that, this would be just a piece of it, right? I think it's an important piece because the court having this much power is a distortion across the whole system, at least if it's supposed to be Republican. And so that's our opportunity and also our challenge.
- [46:09]
Dahlia Lithwick
Our opportunity and also our challenge. And that's what this series is about. How do we, as lawyers, but actually far more so, how do we as laypeople, ordinary citizens, accept the challenge of this moment and reclaim the Constitution?
- [46:33]
Mark Joseph Stern
On next week's episode of by the People on Amicus, Elizabeth Turner was 8
- [46:38]
Dahlia Lithwick
years old when Maryland abolished slavery in their state.
- [46:42]
Mark Joseph Stern
We'll be learning from a case out of the history books when some of American society's least powerful people claimed their power to interpret the Constitution and won.
- [46:52]
Dahlia Lithwick
She experienced about two days of freedom until she was rounded up along with the other black children in the county and taken to the county court.
- [47:04]
Mark Joseph Stern
In Ray Turner is the case of a little girl, her formerly enslaved mother, and hundreds of black parents who changed federal law.
- [47:12]
Dahlia Lithwick
Slaveholders declared that while free and adults could leave, they insisted that they still had legal claims to black children within the state.
- [47:22]
Mark Joseph Stern
Join us for a look back at this case study in courage, conviction and what happened when a group of formerly enslaved parents with no legal training fought for their children with some very stark modern parallels. That's next week.
- [47:47]
Dahlia Lithwick
That's a wrap for this episode of by the People on Amicus. Thanks so much for joining us, Amicus plus members.
- [47:54]
Mark Joseph Stern
I can't wait to see you in the bonus, where I'm joined by friend of plus Madiba Denny from Balls and Stripes. We're going to be talking through Todd Blanche's path to be the real attorney General rather than just acting and what we learned when Amy Coney Barrett and Alina Kagan faced lawmakers questions at the Capitol this week. Visit slate.com amicusplus to join the joyful ranks of Plusketeers by joining you support our work. You get loads of extras in ad free listening and paywall free reading@slate.com you can also subscribe to Slate+ directly from the Amicus show page on Apple Podcasts and Spotify. Our bonus episode is available for you to listen to right now. We'll see you there.
- [48:35]
Dahlia Lithwick
Sara Burningham is Amicus supervising producer. Our producer is Sophie Summergrad. Extra special thanks to Slate's most super senior supervising producer, Joel Meyer. Hillary Fry is Slate's editor in chief, Susan Matthews is executive editor, Mia Lobel is executive producer of Slate Podcasts and Ben Richmond is our senior director of Operations Operations.
- [48:58]
Mark Joseph Stern
We'll be back with another episode of by the People on Amicus next week. Until then, take good care.
- [49:16]
Grainger Advertiser
Granger knows when you're a procurement manager for an office park, you're not managing one building, you're managing all of them. And to stay ahead, you need to see through walls and around corners. Lights about to fail, filters ready to clog H Vac on its last leg. If you wait until something breaks, you're already behind. Count on Grainger for quality products, easy reordering and 24. 7 support. Call 1-800-GRAINGER click grainger.com or just stop by Grainger for the ones who get it done.
- [49:46]
Mark Joseph Stern
Unlock efficiency and innovation with HP Copilot Plus P from America's favorite PC brand. With up to 34 hours of battery life and Microsoft Copilot built in, you can draft emails and summarize meetings with the fastest, most intelligent and secure Windows PCs ever. Tap the banner to learn more at hp.com need expert advice? Call HP Business Technology Advisors at 1-800-761-8417.