Amicus With Dahlia Lithwick | Episode Summary
Episode Title: The American Contest
Date: October 24, 2020
Host: Dahlia Lithwick
Guest: Heather Cox Richardson, Professor of History at Boston College, author, and creator of "Letters from an American"
Brief Overview
This episode of Amicus centers on the theme of “minority rule” in American democracy and the Supreme Court’s historic and current role in shaping the distribution of power in the United States. Dahlia Lithwick is joined by historian Heather Cox Richardson for an in-depth discussion tracing the origins, evolution, and repercussions of minority rule through the lens of law, history, politics, and messaging. Together, they explore how American institutions, especially the Supreme Court, have often functioned to entrench the interests of societal elites, how this relates to issues of voting, gerrymandering, and minority disenfranchisement, and whether these patterns are a design flaw or a recurring feature of American political life. The conversation also addresses how the public's faith in the Court and the media landscape shapes our democratic future—and whether history offers hope for redemption.
Key Discussion Points and Insights
1. Defining "Minority Rule" and Institutional Design
- Dahlia opens by confessing her overuse of the term “minority rule” to describe a wide range of democratic dysfunctions, from voter suppression to Supreme Court decisions that conflict with majority interests ([03:05]).
- The origin and intent of constitutional checks on majority rule: The Constitution was a compromise among privileged elites, not a pure vehicle of egalitarian democracy.
- "The founding documents were always a compromise between different versions of which white, privileged, patriarchal men were going to dominate the rest of us, right?" — Lithwick ([05:44])
- Richardson emphasizes the Constitution’s history as a series of evolving arguments over who should govern—elites vs. ordinary people ([05:57]):
- "It's easier to think of all those things as a contest in America over what it means to be a nation in which theoretically everybody...has a say in their government..."
2. Historical Struggles Over Democracy and Minority Rule
- The struggle for democracy in America is a recurring contest between elite rule and inclusive, popular rule ([08:11]).
- "That struggle between the idea of democracy, meaning an elite rule, versus democracy, meaning everybody actually has a say, has shaped virtually all of the fights we have had over the Constitution and over the supreme court since the 1860s." — Richardson ([07:38])
- The persistent racial, class, gender, and religious dynamics in these battles ([08:45]):
- The phrase, "We're a republic, not a democracy," was heavily propagated in the 1950s by the John Birch Society to oppose voting rights expansion primarily for racial and class reasons ([08:45]).
- Attempts by elites to tie expanded suffrage to socialism or communism—a pattern since Reconstruction, recurring through the 20th century.
3. The Role of Religion and Political Projects in Modern Conservative Legal Movements
- Tracing the entry of religion into the courts and politics ([11:18]):
- The post-WWII alignment (Eisenhower, Warren Court) uses law—14th Amendment—to address racial and, later, gender inequality. This triggers backlashes combining business, religious, and traditional social interests ([12:30]).
- “From that, of course, we get this political movement known as the movement conservatives...One of the branches in which they do that is through the courts.” — Richardson ([13:50])
- The creation of the Federalist Society, the rise of originalism, and the strategic fusion of evangelical Christianity with big business interests in the Reagan era are not ideologically pure judicial philosophies but political projects to entrench minority rule ([16:40]).
4. The Supreme Court's Current Role: From Conservative Project to Voter Suppression
- Recent Supreme Court actions (Bush v. Gore, Shelby County, voter purges) are seen as less about legal conservatism and more about actively suppressing the political power of the majority ([17:45]).
- “[This] is a court that isn't just about, quote, unquote, conservative legal ends...This is now about all-out voter suppression.” — Lithwick ([19:10])
- “It’s really kind of a tarted up political project rather than a coherent judicial ideology.” — Richardson ([00:05], echoed at [22:28])
- The Supreme Court has historically mirrored and enforced the interests of political movements, not just legal doctrines ([20:09]).
5. Is Minority Rule A Design Flaw or a Manipulation?
- Lithwick argues that multiple branches—gerrymandered legislatures, malapportioned Senate, minority-elected Presidents, and Supreme Court—are creating systemic minority rule ([23:44]).
- Richardson contends this is not a design flaw—but an outcome of political projects manipulating existing structures ([25:12]).
- “The only place you're wrong is in the word design. The system itself is not necessarily baked to do that...we have minority rule and it is baked into the system that we currently have. But the system itself doesn’t have to do that, and there are times when it has not.” ([25:12])
6. Historical Cycles: Backlash, Suppression, and Corrective Reform
- Richardson outlines a three-phase cycle during periods of rising democratic power:
- Suppressing the vote (property requirements, poll taxes, lines at voting stations, etc.)
- Controlling media and narrative (partisan news, state-run press, or media manipulation)
- Securing the Supreme Court to lock in minority rule ([25:57])
- She notes past examples: Taney Court (1850s), Fuller Court (1890s), and draws analogies to the current Roberts Court.
- “We don't retain the decisions from the Taney Court or the Fuller Court. And I expect the decisions of the Roberts Court will also, in 20 to 30 years, be largely replaced.” — Richardson ([29:47])
7. Is Reform Possible? The Pendulum and Hope in Democratic Pressure
- Lithwick asks whether corrective reforms like HR1, statehood for DC/PR, and easier voting could “swing the pendulum back” ([30:13]).
- Richardson: “I just want to put that as an intellectual property problem. If we are a democracy, how does a small minority retain power?...It is not sustainable for us to have a president who is in power with only a minority, the popular vote.” ([31:23])
- Belief in bottom-up reform: Change comes from the pressure and activism of ordinary Americans, as in previous historical cycles ([33:43]).
8. Reverence for the Supreme Court and the Dangers of Public Deference
- Discussion of the American tendency to revere the Court as an “oracular” secular church, even as it becomes more political and less aligned with the public ([34:36]).
- “There's a deep fear I have that the American public will go, yeah, well, that's the court. That's what we did in 2000.” — Lithwick ([36:39])
- Richardson argues Americans will not simply acquiesce to extreme Court actions, especially now that the issues feel more personal and visible ([37:04]).
- She warns, however, that the Court’s legitimacy is at risk if it strays too far from public sentiment.
9. The Power of Messaging and the Media Divide
- The conversation closes with a reflection on the role of misinformation and partisan media (“two universes”), drawing historical parallels to the antebellum and Gilded Age media landscapes ([39:10], [41:18]).
- Richardson calls the Internet “the biggest change since fire,” likening early days of social media to the “Wild West” ([43:22]).
- Expresses hope that Americans’ renewed interest in politics and voting, evidenced by widespread engagement in 2020, bodes well for future democratic renewal ([44:38]).
Notable Quotes & Memorable Moments
-
On Originalism as Political Project:
“It's really kind of a tarted up political project rather than a coherent judicial ideology.”
— Heather Cox Richardson ([00:05], [22:28]) -
On American History as a Contest:
“It’s easier to think of all those things as a contest in America over what it means to be a nation in which theoretically everybody...has a say in their government, because, of course, that's the theory, right?”
— Heather Cox Richardson ([05:57]) -
On Deliberate Voter Suppression:
“This is a court that isn't just about, quote, unquote, conservative legal ends...This is now about all out voter suppression.”
— Dahlia Lithwick ([19:10]) -
On Recurring Cycles of Minority Rule:
“First they start with suppressing the vote, then they start with changing the media landscape...and when even that doesn't work, in all three of the periods I'm talking about, they say, okay, we're really in trouble now. We better make sure that nobody can change the way the system works by baking it into the Supreme Court.”
— Heather Cox Richardson ([26:15]) -
On Hope for Democratic Reform:
“What changed the American government was the American people stepping up to the plate and saying, this is what democracy means, this is what we stand for. And I see that happening now.”
— Heather Cox Richardson ([33:55]) -
On Media and the Information Age:
“We have this new technology that erases boundaries but also lets us cherry pick where we are. It is a new frontier where anything goes, but also gatekeepers can direct you without you knowing what's there...It's like the Wild West.”
— Heather Cox Richardson ([43:22]) -
On Active Engagement:
“One of the things that I have loved...is that you always manage to walk the line between telling people simultaneously, nobody's coming to save you...but also, if you do it, we could change everything.”
— Dahlia Lithwick ([45:44])
Important Timestamps
- [00:05] — Richardson critiques “originalism” as a political project.
- [05:57] — Framing the Constitution’s ongoing contest between elite and popular control.
- [08:45] — Discussion of anti-democratic rhetoric, historical roots.
- [11:18] — Mapping religion’s role in the current Supreme Court and politics.
- [17:45] — Contemporary voter suppression and transformation of Supreme Court’s function.
- [23:44] — Lithwick on systemic minority rule in government.
- [25:12] — Richardson on design vs. political manipulation of systems.
- [26:15+] — Historical patterns: voter suppression, media, Supreme Court entrenchment.
- [29:47] — Supreme Courts whose decisions were later rejected.
- [31:23] — On whether minority rule is sustainable.
- [34:36] — Reverence for the Court and risks of public deference.
- [39:10] — Discussing FDR, court packing, public reaction, and institutional change.
- [41:18] — Partisan media in American history; comparisons to today’s media divide.
- [43:22] — The Internet as a transformative force.
- [44:38] — Hope for the revival of American democracy through civic engagement.
- [45:44] — Lithwick summarizes Heather’s core message: "be worried, but also be powerful."
Conclusion: Tone and Final Thoughts
The episode strikes an urgent yet hopeful tone. Richardson underscores the cyclical nature of American suppression and reform, arguing that public mobilization—not resignation—is key to restoring a more inclusive democracy. The hosts encourage listeners to recognize both the peril and the potential of the historical moment, closing with a call for vigilance, activism, and faith in democracy’s ultimate ability to regenerate from crisis—if citizens act.
For anyone who has not listened, this summary captures the episode’s rich historical context, sharp legal commentary, current political analysis, and the candid, sometimes urgent, always accessible tone of host and guest alike.