← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Clarence Thomas Said What?
00:42:08
Adam Cohen on how the Supreme Court Justice picked up his thesis on eugenics, and ran with it, in the opposite direction.
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- [00:11]
A
The through line between these two is controlling women. And the eugenics movement wants to control women and tell them which ones were fit to reproduce. The abortion laws want to control women and tell them that they have to bring a child to term. That that's the connection. It's the opposite of the connection that Thomas is making.
- [00:31]
B
Hi, and welcome back to Amicus, Slate's podcast about the law and the rule of law and the U.S. supreme Court. I'm Dahlia Lithwick. I cover those things for Slate. And we're rounding up toward the end of the Supreme Court term, which will end in the end of June, and the blockbuster decisions, to the extent we have any, will come in the next few weeks. But on this week's show, we wanted to continue a conversation we started on the last show with Professor Melissa Murray and Joan Biscuit. It was a conversation about abortion rights at the Supreme Court last week in Box versus Planned Parenthood, a case out of Indiana that had to do with some new restrictions on abortion. The Supreme Court initially issued a pretty mild ruling on the merits. We'll get to that. But Clarence Thomas, in a 20 page concurring opinion, pretty much rocked the culture wars with a discussion comparing essentially abortion to eugenics. It was a pretty stunning new turn in the abortion debate, and it took something that was simmering, bubbling to just a full rollicking boil in the last weeks of the term. In his concurrence, Justice Thomas cited a book written by Adam Cohen. The book is Imbeciles the Supreme Court, Eugenics and the Sterilization of Carrie Buck. It was an extraordinary tale of a very dark time in American history, a time when this country allowed for the sterilization of people deemed to be infer. Adam Cohen was actually pretty surprised to see his book cited by Thomas, and he wrote about that in a piece in the Atlantic last week. Adam is a former member of the New York Times editorial board and a senior writer for Time magazine before Imbeciles. His most recent book was nothing to FDR's inner circle and the Hundred Days that Created Modern America. And he is currently working on a book about the last few decades at the Supreme Court. So I've long wanted to have him on the show, but I really want to talk about eugenics and Clarence Thomas. Adam Cohen, welcome to Amicus.
- [02:39]
A
Oh, it's great to be with you, Dalia.
- [02:41]
B
I'm very psyched to have you here. And I think I want to start with Carrie Buck. I want to start with eugenics because the book was amazing and it I think captures this paradox of, first of all, an incredibly dark time in American history. But the fact that legal legends, people whose names we breathe in reverence, Justice Brandeis, Oliver Wendell Holmes, were all just fine, just fine with Carrie Buck. So can you start there and we'll work our way to Clarence Thomas?
- [03:14]
A
Sure. Took place in your old neck of the woods. Charlottesville, Virginia. This woman, Carrie Buck, young woman, she'd been taken in sort of as a foster child of a family working a little bit as a maid. She'd been taken from her poor single mother and she was raped by a nephew of the family. And then there's a question of what to do. She's a pregnant woman that there's really no place for. So back in those days, one option was to declare her her feeble minded, which is what they did, and to send her off to a colony for epileptics and feeble minded in Virginia, which is what they did, sounds very strange, but there actually were these colonies around the country and there were laws in Virginia, but also in a majority of states saying that if you were held to be feeble minded or had other qualities that they said were unfit, you could actually be eugenically sterilized. So this is the plan. They send her off there and she unfortunately gets there just as Virginia has passed one of these eugenic sterilization laws. And the lawyer for the colony doesn't really want to start sterilizing people until he's sure that it's legally acceptable. So he actually wants a test case, even a test case that would go to the Supreme Court. They choose Carrie Buck, newly arrived, to be the center of this case. So they decide to sterilize her. They give her a lawyer, and the lawyer is actually one of their friends, someone who'd been on the board of the colony. And they try to get this case decided with, you know, ideally for them, a ruling saying that Virginia's new eugenic sterilization law is constitutional. And that becomes the case. It goes all the way up to the Supreme Court. And you know, it's hard to imagine now, but this was a case about whether this woman, who had been just rather arbitrarily declared to be feeble minded, could be sterilized by the state because her genes would infect the gene pool. The Supreme Court, 8 to 1, says yes. And that decision, you know, you mentioned how some of our heroes were involved, written by the esteemed Justice Oliver Wendell Holmes. And this wasn't just a decision that said, well, we're not going to intrude on the right of states or anything like that. This was a rousing clarion call saying, yeah, Virginia should sterilize her and we need to sterilize more of these people. You know, there's a tide of unfit people are coming and going to overwhelm the country. We need more eugenics. So that's kind of the Carrie Buck story. And I came to it because I was looking for a case in which the court really got something wrong. And we know of a bunch of those, but this is one that isn't really hasn't gotten enough attention, I think.
- [05:39]
B
And I need you to explain because it's easy to look back and just say, what monsters? I mean they were wrong like you say. But these were our heroes, Holmes, just generations of idiots just completely cavalierly accepting basic eugenic predicates. How is it that genteel, well educated civil society was all in accord apparently that we could go around sterilizing people that we deemed lesser on I think admittedly flimsy evidence?
- [06:18]
A
Absolutely. And it's a fascinating story. It's a fascinating moment for all of us to reflect because it's just as you say, the idea of eugenics came from England. It was actually first invented by a half cousin of Charles Darwin. And it sort of came out of that scientific moment when people were discovering evolution and that man was evolving. And well, maybe the eugenics said man could take a, a role in this and actually helped to make the race evolve in a better way. So it actually came out of science and oddly enough out of progressive thinking because progressives, you know, we all believe in technology and science and using these things to make a better society. It just so happens back then they were thinking, well, we can make a better society by making better people. And remember it was a pre World War II, pre Holocaust world where people weren't really thinking about the, you know, the darker sides of this kind of genetic thinking. So when the idea crosses the Atlantic comes to America, it is adopted by the most progressive areas and the most enlightened areas and the most well educated areas. I also wrote an article for Harvard magazine about how Harvard was the center of this. So the Harvard eugenicists were leaders in the field and the old families of Boston were endowing chairs in sort of eugenic science. And then in Virginia, where Carrie Buck was, the University of Virginia was a big center of it and the man who ran the colony for epileptics and feeble minded. It sounds so Dickensian now. And we picture some, you know, horrible guy who's just looking to lure women in and do terrible things to them. But he was actually a progressive minded doctor who had come to the conclusion that there wasn't much to be done about epilepsy, which was a big focus of the colony and a lot of the mental illnesses that he saw there. So he thought, you know, we have this ability to use science, to use genetics, to just breed these things out of humanity. So it sounds odd now, but the people who were doing this had progressive and sort of, you know, quote, humane ideas in mind. And the ones who opposed it, oddly enough, were. It's the flip of the abortion issue. It was the Catholic Church, because the Catholic Church believed that you don't judge people by these bodily attributes, you judge them by their souls. So what you got is when state legislatures around the country were debating eugenic sterilization laws, the Catholic Church was very often the, the most visible group that was opposing it. Nuns and priests and lay Catholics would show up and oppose it. And you know, in New Jersey, one of the groups that was very much arguing for it was the League of Women Voters. Those are the types of people you got, the progressives, the settlement house workers, the graduates of Vassar. And you know, the nerve center of the eugenics movement was a place on Long island called the Eugenics Record Office. And the photographs are amazing because the ranks of their staff included many women from places like Vassar and Radcliffe who after graduating their first job would be this idealistic position of measuring people's head sizes to see if you know, what their cranial capacity was. These were the people who were pushing eugenics.
- [09:15]
B
Do you think, as you're talking about Harvard? And again, thinking on Justice Thomas concurrence, is part of the allure of linking abortion to eugenics a way of tweaking Harvard and liberals, a way of saying, you know, boy, you guys thought you were super progressive and you were working toward the betterment of mankind and you were wrong there. And you're wrong again. I mean, is there a layer here that you find of linking it up to something that is not just discredited, but discredited and it was the liberals who were pushing it.
- [09:49]
A
Absolutely. The liberals, the pointy headed people. And you know, Justice Thomas is a serious Catholic. The Catholics were right. And yes, all you people who have been looking down on me and you know, holding hearings about whether I sexually harassed, you know, Anita Hill and who like, you know, don't like it when I come to visit your law schools now, you guys were behind the eugenics movement and hey, coincidentally, you're now behind abortion, so, you know, I'm going to tar you with this brush. I think that's brilliant insight.
- [10:15]
B
Can you tell us a little bit about what we now know about Carrie Buck in the rearview mirror? Was she indeed feeble minded and put aside the eugenics conversation, but worthy of being treated as she was?
- [10:27]
A
No. It's such a sad story on every level. But, you know, one of them is, as I say, her real problem was that she was born poor and she was being raised by a single mother. She had to go into this foster care situation where she was raped. No, there was nothing wrong with her mentally. And because these feeble. They didn't really know what feeble mindedness was, and it was just done very quickly. And if they wanted you sent away because you were pregnant, they could do that. There weren't elaborate tests. So in the end of her life, you know, she actually lived into the early 1980s. You know, people knew her, she lived in a retirement home in Virginia. And people said, you know, she was always very excited when the daily newspaper came. She used to love to do the crossword puzzle. People who knew her said she was not feeble minded. She just got caught up in something.
- [11:07]
B
And again, I think that it's hard not to tether that conversation about poverty just not having resources to the conversation that Justice Thomas wants to have about abortion. Again, I think there's a through line there because he's holding out his concern as concern for poor black mothers who are being treated to a second round of eugenics. Again, I think the parallels, at least initially, are pretty striking. Right, right.
- [11:34]
A
And I think he's very clever at using these things in just the way you're saying. But in fact, as we know, it's always the poor folks who get disadvantaged by both things. In the eugenics era, it was absolutely poor women who were most likely to be sterilized. They used to call it a Mississippi appendectomy. And here we're gonna find a situation where, you know, wealthy women will by and large, be able to have their abortion needs met. But it's gonna be the poor women who really, you know, get. Get screwed over by the. By the court if they, if they continue down this path.
- [12:03]
B
One other piece from your book that I think will help at least set the table for the conversation about what happened last week in Box versus Planned Parenthood. And that is, how did we as a society come to realize we were wrong about eugenics? You mentioned the Holocaust, but it seems like there was a Pretty quick pivot from saying everybody should do this and all the states should get on board to, oh, my God, that was embarrassing. And I wonder. I mean, there aren't a ton of things about which we change our minds that quickly tell us how we came to realize the era of our ways in this country.
- [12:40]
A
The big fervor behind it was really the 1910s and 1920s. Indiana starts us off with the first United sterilization law in 1907, really picks up steam in the 20s, and slows down a little bit during the Great Depression just because the country was worrying about other things. But it is exactly as you say. And one of the real villains of my book is a guy named Harry Laughlin who ran the Eugenics Record Office that I mentioned. And he was very close to the Nazi scientists. He corresponded with them. He actually accepted an honorary degree from the University of Heidelberg in 1938. That was after they had purged all their Jewish faculty. He seemed like he was very sympathetic to the Nazis. So this was all moving along a pace. But, yeah, once we enter the war and we're actually, as a country, committed to defeating Nazism, that's the first step. And then, of course, when we learn about the atrocities of the Holocaust. So as in that era is when Laughlin loses his funding and the Eugenics Record Office has to close up shop, he sort of moves back to rural Missouri, where he came from in disgrace. And that was because foundations were seeing what was going on in Germany and they didn't want to fund this anymore. And then, yes, after the war is very much discredited, although it's worth noting that it wasn't entirely eliminated. And incredibly enough, the last eugenic sterilization under one of these state laws occurred in, I think it was Oregon in 1982. So it trails off. But into the 70s, they were still doing a number of eugenic sterilizations.
- [14:00]
B
And does the Supreme Court have a moment of reckoning around Buck v. Bell the way they did over, say, the Japanese internment cases? I mean, did they ever get to the point where they say, holy hell, that was wrong, or it just fades away into the doctrine?
- [14:17]
A
Yeah, it's never been overruled. And there was a fairly recent Court of Appeals ruling from the Midwest, I think, in the 80s or 90s, sort of citing it approvingly in a sterilization context. And then I think just a few years ago, someone, one of the justices, cited Buck v. Bell in a footnote or something, because a friend of mine emailed it to me. So it hasn't you know, it's mentioned maybe slightly more than Bush versus Gore. But no, they haven't had that moment where they've said, you know, we renounce this and, you know, we're all sort of waiting for that.
- [14:47]
B
We know you value the journalism that we do here at Slate. And now more than ever, our work needs your support. The very best way to support the work we do is via our membership program, Slate Plus. And with a Slate plus membership, you can enjoy this and all of Slate's podcasts ad free. Plus, you'll have access to exclusive bonus content from some of your favorite Slate shows. There's a free trial to be found@slateplus.com amicus and now back to our conversation with Adam Cohen, author of Imbeciles, the Supreme Court, American Eugenics, and the Sterilization of Carrie Buck. Briefly, just talk about the facts or what the dispute is in Box versus Planned Parenthood. It's two abortion restrictions that come out of Indiana under Mike Pence, I should note.
- [15:34]
A
Yeah, two provisions. One was about a prohibition on doing discriminatory abortion, so based on gender, race or disability. And the other was a requirement that fetal remains be given, you know, funerary rights like a child. And the court allowed that feudal funerary rights provision to continue. And the other one is not continuing. So everyone, as you said, it was deemed to be somewhat mild. The New York Times called it a compromise. But it does say a lot about where we are in abortion right now, that we now don't really blink when a state says to a woman, you need to let them give your fetal remains a funeral just like it was a child, you may have to pay for it because someone's gonna pick up the cost of this. So there might be another thousand dollars tacked onto your bill. It feels like we're going pretty far.
- [16:21]
B
Down the slope and not five. Four.
- [16:23]
A
Right?
- [16:23]
B
Yeah.
- [16:23]
A
Right.
- [16:24]
B
Okay. So we leave that for another day because you get invoked on this other question of people having selective abortions to maybe get rid of girls.
- [16:35]
A
Right. Right. So minding my own business, having lunch with a friend. I walk out and I, of course, look at Twitter and there it is. Someone has tweeted that my book is all over Clarence Thomas concurring opinion. And it's such a strange concurring opinion. Right. There's absolutely no need for it. It's not like this was a case where eugen briefed or like the Indiana legislature was talking a lot about eugenics. It just sort of comes, you know, it's like a comet Coming out of nowhere, Clarence Thomas is writing 20 pages about the eugenics of the situation. And it's also just. It's odd in so many ways, but it's also just an oddly long walk through history for no reason. You know, why is he suddenly talking about Margaret Sanger, the founder of Planned Parenthood, and what her views were on eugenics? And so, anyway, there's quite a lot packed in there. And, yeah, I got pulled into this because he does rely on my book a lot. And also on this article I wrote. Harvard Magazine. Yeah. Again, minding my own business, but an editor contacted me and said, you know, don't you want to respond? And, you know, write an article saying, you know, we already have the headline, Clarence Thomas knows nothing of my work. And I did want to write that article because it's true. I mean, he has a lot of facts in there that are historically accurate, but the picture he paints of eugenics, and in particular tying it to abortion, is just completely inaccurate. And what it is is an attempt to work backwards from, Wouldn't it be nice if we could now, you know, slander abortion as being about eugenics? So let's work back and say that this is what the eugenics movement of the early 20th century was about, but that's not what it was about.
- [18:02]
B
And one of the things he does, and I think this a little bit gets missed in the media coverage, is he's not just linking eugenics to abortion, but he's actually linking it to birth control. Right. I mean, that's the almost subversive part of this, is that he's tarring the pro choice movement, but also saying, but all this has its genesis in the birth control movement, which calls into question not just, you know, mothers who are having abortions are making decisions based on eugenics principles to do away with their children, but that birth control is somehow adjacent to those questions. That's staggering, too.
- [18:38]
A
It is staggering. Absolutely. It's also a little more complicated because he's actually on somewhat firmer ground there. I wouldn't say firm ground, but there's a little bit more to that, because you can say that Margaret Sanger, you know, who was the founder of Planned Parenthood, the main advocate for birth control, she was. She was a eugenicist, you know, and she said some terrible things. And I was on a panel about a year ago. It was the 100th anniversary of her arrest in Brooklyn. And, you know, I had been invited in to. They were all celebrating her great work in Planned Paradise. I was invited, as you Know, the skunk in the garden party to say, oh, by the way, she was a eugenicist. And, you know, when I started looking into it, her book the Pivot of Civilization, I mean, she says horrible things about how slum mothers. Yeah. Are just, you know, the scourge of. So the worst thing going on in the world right now is these nurses going in and helping slum mothers because they'll just have more children. So Thomas is on a little bit firmer ground when he says there was some eugenics mixed up in the early birth control movement. Now, defenders of Margaret Sanger say it was really a strategic alliance. She wanted the support of the eugenics movement because her real passion was birth control. And her reason for that was not mainly eugenic. It was that she wanted women to have more choices. But there's enough bad stuff in Margaret Sanger's past that I think we can. We can't completely say that eugenics wasn't part of the birth control movement. We can say that abortion was never involved at all. Abortion was illegal across the country at that time. And some of the leaders of the eugenics movement said expressly, we don't think abortion is the answer. We think they were always focused on eugenic sterilization.
- [20:10]
B
So that's the part, I think, that you really hammer in your article is this has nothing to do with how they thought about abortion. Why are you using these arguments that have some salience in the genesis at least, of the birth control movement? Why are you using it to talk about abortion? And that's the part that's confusing. Why. I'm not clear on why that connection gets made.
- [20:34]
A
It's a connection he wants to make because he would like to tar abortion with the same brush. And I think Thomas had a particular plan in mind by writing this. I think that we're at a moment in abortion jurisprudence right now, a moment with Kavanaugh there that could go either way on the precipice. There may be five votes to overturn Roe v. Wade. And I know a lot of smart people say, well, they're not going to rush into that. But, you know, sometimes they rush into things. Look at Citizens United, where people are like, wow, you know, this wasn't even briefed in the lower courts, and no one was talking about striking down all limits on corporate spending. They do it all very quickly. And look at how quickly the Voting Rights act was. Was eviscerated. So I think we're at a moment. But I also think that the dilemma for the Court is they know that striking down Roe v. Wade would not be very popular. They know that there's a lot of support for abortion rights, and they know that the pro life movement in quotes, has not really persuaded most of the country that abortion is really about killing a human being. I think that this is Thomas's attempt to get a second argument going. And that second argument is a more PC argument. It's saying, let's think about abortion not only as, you know, quote, stopping a beating heart, but let's think of it as a eugenic movement, as somewhat racist movement. Let's sort of tie it to the ideas of, you know, Nazism and all that. I think this is about branding, about branding abortion in a new negative way. And it's sort of a trial balloon. You know, none of the other justices sign his concurrence, but I think they're getting this out there as a way to maybe give some cover if they decide to get radical quickly on abortion.
- [22:02]
B
Yeah, it's interesting because Ginsburg responds to this in a very terse footnote. I mean, she more or less just flicks at it like it's a gnat, but she's certainly not willing. In fact, I think to the extent that somebody writes a dissent from his concurrence, it's you writing in the Atlantic because nobody wants to engage with him on this. And I think it raises these Overton window questions you're raising. Right. I mean, again, the last show, we talked a lot with Melissa Murray about how you put these ideas into the ether, and suddenly there is what was for a long time sort of whispered Operation Rescue gossip about how this is a new holocaust and this is targeting poor African American women to be selected out. Now, that's in a concurrence. Right. The work is not to change doctrine, it's to change hearts and minds. I think that's what you're absolutely right.
- [22:59]
A
No, and you're right about the Overton window and this whole idea that if you're explaining, you're losing. So if suddenly the liberals are arguing, well, here are the ways. It's not like eugenics. Suddenly you're having a big debate about abortion and eugenics.
- [23:09]
B
You say in your piece, good, let's talk about it. What's the thing that you want to talk about? I mean, is it to say, let's own the really unpleasant and ugly history of eugenics in order to say it has nothing to do with this? I mean, what, by smoking all this out and relitigating something that point out in many ways Makes progressives look really bad, makes progressives look heartless, makes us look like we want to do this kind of eugenic engineering of better races using science and callousness. All of that doesn't necessarily redound to the benefit by relitigating it right now, does it?
- [23:51]
A
Right. No. Great point. So I think there are two reasons it's really great to think about now, and these are kind of the two reasons I wrote my book. One is, I think it's important just to think about how we reach decisions and how the court reaches decisions and have the modesty of thinking about maybe we're getting things wrong. Which it would have been nice if they had been thinking in 1927. And I had a friend back in college who was writing her senior thesis on translation, and the professors told her, when you do that, you really want to find a terrible translation because that's how you can best study translation, by looking at ones that get it wrong. So I think with the court, too, if you find a decision that they've gotten just monumentally wrong, it's a good way to think about how are they reaching their conclusions and. And what might we be getting wrong now? So that's sort of the first part. But the other reason it's really important is we have this idea that these things are all in the past. You know, this was something that occurred in the 1920s. Oh, you know, how long ago flappers and jazz age. And then we also have a feeling that the Holocaust sort of settled all these issues. We've now learned we won't do it again. But no, I mean, if you look at the news of today, the degree to which eugenic ideas are seeping in some in a scientific way because of the advances in science, there's a big debate going on right now about designer babies. Right. And we have a lot of capacity now to do. Do things that eugenicists couldn't do in the past. Should we do them? What does that mean? So that's one way it's relevant. But the other way it's relevant is in the sort of toxic political times we're in now, the debates over immigration, the rise of racism and antisemitism and all that, we're hearing much more explicitly eugenicist talk. So there was Congressman King from Iowa who said, we're not gonna save our civilization with other people's babies. There's Trump talking about how we don't want immigrants from the, quote, shithole countries. We want them from places like nor way. It's coming up in a lot of the border dispute. So it's really, I think, important to dig up this history and say we went through this before, you know, for the right reasons, not for the wrong reasons that Clarence Thomas did.
- [25:47]
B
I should have asked you this when we were talking about the Indiana statute, but I'll ask it now. Is there a ton of evidence that people are choosing to abort babies based on race or gender or the classifications that the Indiana statute implements?
- [26:04]
A
Yeah, you see, that's a great question, and it's really crucial to what Clarence Thomas got wrong. So the first thing he got wrong was just the history. This is not what the eugenics movement was about. But the other thing is he doesn't really understand what eugenics is as a movement. The eugenics movement of the 20th century and eugenics more broadly is about saying the government is going to tell people who can reproduce and who can't reproduce in order to uplift the gene pool. That is the idea. And they had all these categories of people couldn't reproduce. That's a campaign, a movement with a goal. That's not what women are doing in Indiana. If you getyou, know, if you get a test back and it says that the fetus that you're carrying is gonna die in its first year and have a terrible, you know, painful one year of life, when you make that choice about whether or not to continue the pregnancy, and it is the woman's choice if she decides not to, she's not thinking about, I really wanna do this for the gene pool. The I want the United States gene pool to be stronger or the, you know, the world. No, she's deciding about her life and the life of, you know, of the fetus as she, you know, as she thinks about it. So this is not eugenics. This is individual, individual women making a choice. And it's wrong to say it's eugenics.
- [27:11]
B
I think that's so important. A lot of the critiques, I mean, there's been a tremendous amount of criticism of Thomas logic, and I think a lot of them make this point that you just made now. But let's say it again, which is this is not about autonomy. Eugenics movement said, you have no autonomy. The state is taking away your autonomy. So in that sense, it's exactly upside down from what it purports to be, which is an autonomy affording thing to say we're going to take away a woman's right to have an abortion because we're worried about eugenics, where in fact, that's what's Lost. Her choice is now gone.
- [27:49]
A
Exactly. The through line between these two is controlling women. And the eugenics movement wanted to control women and tell them which ones were fit to reproduce. The abortion laws want to control women and tell them that they have to bring a child to term. That's the connection, as you say, it's the opposite of the connection that Thomas is making.
- [28:05]
B
So I want to ask you a question that I'm only going to ask you because you are such an astute watcher of the ebb and flow of the legal conversation. And I've been really obsessed with the willingness of the justices, particularly this term, but it's been ticking up over the last couple of terms to impute really bad motives to the other side. And we did a podcast recently about the ugliness and the rancor and the death penalty conversation at the court right now. And one of the things that is new is a willingness to say all those death penalty lawyers are just hacks and opportunists and everything they say is a lie. Right. That's how Sam Alito talks. And I suppose the analog for me is again, the willingness to say every abortion doctor. Right. We had that language in Whole Women's Health where every abortion doctor is. Gosnell, is somebody who's just bloodthirstily ending life. And I'm wondering if you would see this as of a pie with that, where it's not enough, it seems to me, to have a conversation, a reasoned conversation, about the legacy of Griswold, the legacy of Roe. Do we get it wrong in Casey? Is the tweaking off, but this imputing of extraordinarily bad faith, the claim that Thomas is making here is breathtaking, Adam. Right. He's saying that people who want to have abortions just want to get rid of the weak in the herd. And that seems different to me. And so I think, I guess I want to pile it on top of your Overton window observation and say it's not just saying we're putting this idea in circulation. I mean, this idea has been in circulation for decades in some pro life conversation, but it's a willingness for the Court to put its imprimeter on an idea that the other side is just evil and they're lying about it. Is that me being thin skinned and hypersensitive, or is something new starting to leech into the way the court, even the justices, talk to each other about these sort of hot button, moral, religious, whatever issues? It seems different.
- [30:20]
A
I think that's absolutely right. And you know, I think that they're reflecting the culture, sadly. You know, there's the old, you know, chestnut about how the Supreme Court follows the election returns. I think they also now increasingly follow cable news. Right. I mean, we are now a culture where people get on TV and shout @ each other. And I think we are seeing some of these decisions. You know, one place where this showed up was the Affordable Care act case where it was such a weird thing. And we now know from, you know, Joan Biskupic and other people's reporting that the Chief justice almost voted to strike it down, and then he changed his mind, apparently, and then instead they struck down the Medicaid expansion, which, you know, was just sort of a little thing to the press. It wasn't covered much, but that was 5 million people, 5 million of the very poorest Americans who lost their health care coverage because of how Chief Justice Roberts and the other justices interpreted the spending clause. So when you look at that decision, though, the way they talked about the spending clause. Okay. I mean, it seems like a rather, you know, arcane and academic thing. What is the spending clause? Well, Roberts, in his decision, talked about it as a gun to the head of the states. Okay. The reason we had to strike down Medicaid expansion is Congress had put a gun to the head of the states and was forcing them to provide healthcare to these poor people in their state that they really couldn't afford. And healthcare is very expensive. But I looked at that image, and I just thought, who brought a gun into this? You know, I mean, you know, Congress, you know, is just doing something that the original Medicaid statute envisioned. Everyone said at the time, the Medicaid program will grow over time. Additional groups will be added. They added a couple of additional groups. There was no gun involved. There was nothing. But for Roberts, this was almost an act of robbery. And it seemed like, as you say, really upping the ante. And we're definitely seeing it in the abortion area. Right. Because I think we could have a very different conversation where we said, you know, people of goodwill can disagree about abortion. And, you know, I'm someone who is very pro choice, but I understand there's another way to view it. I mean, I had a close friend when I was growing up who was very Catholic, and she was anti death penalty and she was pro poor people. And all the way down the line, she just believed a fetus was a human thing and she thought abortion was murder. I don't agree with her. I will always try to stop her from implementing her views, but I don't think she's evil. I mean, there can be differences of opinion where you recognize that there's a legitimacy to the person's thinking on the other side. That's not where we are now, as you say. I mean, this is a war. It's. You're trying to turn abortion into Nazi Germany. You're trying to turn the spending clause into a robbery. I think it's very toxic. Right. Because there used to be an attempt on the court to forge these consensuses. Right. You think about Brown v. Board of Education. That was a moment where, you know, the country was close to having another civil war about whether we would integrate the schools in the South. And look at how Warren made it a point to get a unanimous decision. Right. He thought it was so important that they speak unanimously. And in fact, as the south became integrated post Brown v. Board of Education, for many years, every desegregation ruling from the court was unanimous. Cuz they thought it was so important that the court speak in a mature and united way about one of the most divisive issues in our time at the time. Now you think they would be having a food fight, you know, and they would be talking the way Thomas talked in this concurring opinion. I think it's very bad for the court. I think it's very bad for the.
- [33:37]
B
Country. So as you're talking, it occurs to me you're making two points and they're, I think both descriptively correct. One is, you know, what Thomas is doing, as we now said, is assuming, you know, bad faith and ill motives. But the other thing is he's talking about things that don't happen. So those two things are actually separate and equally toxic because I think it's very much in the key of, you know, what President Trump says when he says, you know, when the baby is born and they wrap it beautifully and they lay it in a bassinet and then they talk about how to execute it. I mean, there's just no set of facts under which that scenario, I mean, we can have a debate about, you know, whether a six week ban or an eight week ban and whether, you know, a beating heart at what point that is happening. But I think that there's something about the core court embracing not just the rhetoric of the other side lies, but embracing the rhetoric of this is a thing that happens and you don't know about it. It feels Alex Jonesy, to me, I think that's.
- [34:42]
A
Right. We're seeing a lot more magical thinking. We're seeing a lot more made up things. And we're seeing that doctrinally too. I mean, we alluded to the Voting Rights act decision there, that the court struck down a key part of the Voting Rights act, that we was the jewel of the civil rights movement, affirmed over and over again by Congress and signed by Republican presidents on some made up doctrine, right of equal dignity of the states, which, you know, even Judge Posner wrote an article saying this is not a thing. You know, like, where'd this come from? So you're seeing them making up doctrine, you're seeing them make up facts, you're seeing them ignore facts. I mean, you know, there was, I don't know if you saw there was a story last week about the former mayor of San Antonio wasn't allowed to vote because she didn't bring her voter ID. I think she's 92 years old. And of course, that reminds you of the Court's terrible voter ID law, where in this case it was Justice Stevens writing for the court saying, you know, we just don't think people are really being turned away at the polls. This isn't a problem. Well, it is a problem. Of course it's a problem. So, yes, I think they're making up facts, they're ignoring facts, they're making up doctrine. It feels very result oriented and as you're saying, at the fringe is a little, you know, conspiratorial and weird. Right. I mean, the Thomas concurrence in the abortion case just seemed.
- [35:49]
B
Weird. It's funny. It's almost like you're presenting a unified theory of, you know, for 200 years we liked roping the court off from reality. It was important. Then it hover above the nitty gritty of life. But I think when you rope the cord off from reality and then in their earbuds you pump kind of some of the most pernicious and also untruthful reality. It's funny. It almost would be better if they were out on the streets looking at voter IDs, because at least, I think there's something about this disjunction between life as lived and, and their ideas that sounds really good in practice. And it really explodes into something very, very dangerous when there is a pipeline of information that's not true. I don't know if I'm saying something new, but as you're talking, it's occurring to me that that's the difference. Right. It wasn't like, you know, the Buck v. Bell court was particularly attuned to reality of, you know, Carrie Buck's life as Lived. They were floating up in the ether, but at least they weren't maybe.
- [36:55]
A
Listening to crazy st. Crazy stuff. And also you get more the sense now, I think that they're just acting on their prejudices, right? I mean, you get the sense that, you know, it's almost like someone's watching Fox News and they decide, this really moves me to write a Supreme Court decision. And another area where this I think is true is you look at the Janus case, right, where you know, Alito was on this campaign, we must stop public sector unions. But when you actually look at the law, it's like, well, this is crazy. I mean, you know, the First Amendment is not implicated when someone has to pay a little fee to the union that's doing their collective bargaining. That's not First Amendment them at all. But you just get the sense that they're starting by that, you know, I hate the union movement, you know, and what am I going to do about it? So it just feels, I mean, there's always been charges that the court has politicized, but I don't think it's really been as politicized as this for a very long time where you really just think that they are looking at, you know, they're almost putting together a campaign platform and then just writing decisions to match their.
- [37:53]
B
Views. I can't let you leave, Adam, without asking you the question that I force everyone to answer, often at knifepoint, which is what will John Roberts do? Which is because essentially you've just described a campaign that Clarence Thomas sort of is single handedly now championing, which is injecting this conversation that's been, I think, at the fringes of the movement, right into the heart of the Supreme Court's dialogue. And we've talked about how nobody chose to engage him, knowing what you know about John Roberts. And again, mindful of some of the conversations we had in the last show about how he reacts to being jammed on, especially these big hot button social issues. Will he take the.
- [38:38]
A
Bait? Well, I mean, I think he's a complicated figure, an enigma. Some say he is very, very conservative. And these are views that, I mean, as a man in his mid-20s, he was in the Justice Department doing things like arguing against the Voting Rights act, but also arguing against Plyler v. Doe, arguing that that immigrant children should not be allowed to go to public schools. I mean, he was a man who at a young age, when people are often very idealistic, had very right wing views and was really working to put them into effect. So he's, I think a real true blue right winger. But does he feel, you know, some pressures from, you know, his role as chief? I think absolutely. I think he doesn't want to go down in history as a disgrace. I think he's also probably watching and seeing this, you know, incipient rebellion against the court, you know, talking about, you know, limited 10 for justices, talking about packing the court and all that. I think this has an effect. So I think, I think he's going to be as bad as he feels he can get away with. But I think he definitely would like to end affirmative action today. I think he would like to end abortion today. I think he would like to start dismantling parts of the New Deal today. Will he be cautious about it? Sometimes. But we've also, as I said on Citizens United, they pounced vote Voting Rights act, they pounced. They just took away the Medicaid expansion that Congress had passed and the president signed very quickly. I think anything is.
- [40:06]
B
Possible. So it's interesting, in a sense, we're arriving at exactly the same conclusion about Clarence Thomas this week that we arrived at about Alabama last show, which is they're both efforts to force John Roberts to move faster and much, much more definitively from a movement that really feels weird. We've waited decades to get to 5 and we're at 5 and we're not gonna lollygag. And it's interesting that it's almost like it's coming from inside the house as well as outside the house. Now it's not just Alabama and Georgia now. It's Clarence Thomas whispering in his ear. It's time and we're all in.
- [40:46]
A
Right? Someone keeps poking him in the shoulder. Yep. Absolutely. And yeah, all eyes are on him.
- [40:50]
B
Now. Adam Cohen is the author of Imbeciles, the Supreme Court Eugenics and the Sterilization of Carrie Buck, a book that comes Clarence Thomas cited last week in a concurring opinion. He was a former member of the New York Times editorial board and is currently a senior writer for Time magazine. He's working on a book now about the last couple of decades at the U.S. supreme Court. Adam, thank you so very, very much for being with us on the.
- [41:18]
A
Show. It was a pleasure. Thank you.
- [41:19]
B
Dalia. And that is a wrap for this almost the end of term episode of Amicus. Thank you so much for listening. If you want to get in touch, we love your mail. And our email is amicuslate.com you can always find us@facebook.com amicus podcast. Today's show was produced by Sara Burningham. Gabriel Roth is editorial director of Slate Podcast, and June Thomas is senior managing producer of Slate Podcast. Today's show was on. Also helped out by two fantastic new interns, Noah Lakovetsky and Nate Ortner. I couldn't have done the show without them. We'll be back with another episode of Amicus in two short.