← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The American Contest
00:48:21
Historical context for the conservative project to capture the courts.
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- [00:05]
Heather Cox Richardson
It's really kind of a tarted up political project rather than a coherent judicial ideology. You could make a very interesting judicial ideology based on original concepts of democracy and the relationship between states and the federal government. They're not doing it.
- [00:31]
Dahlia Lithwick
Hi and welcome to Amicus. This is Slate's bi weekly podcast that now seems to be its weekly podcast about the courts and the law and the rule of law and the Supreme Court. I'm Dahlia Lithwick. I cover those things for Slate. And if you're not yet subscribed to this podcast, make sure you click that button so you don't miss any of the extra episodes that may well keep coming your way as the news cycle and the courts spin out at ever more dizzying velocities in the coming days and weeks, and hopefully not months. This past week has hurled us toward two fixed dates in time. One, the ascension of Amy Coney Barrett to be seated at the US Supreme Court replacing Ruth Bader Ginsburg. Judge Barrett was voted out of the Judiciary Committee this week with no Democrats in attendance, and the November election that will be upon us, no November 3rd. Just over a week later on in the show, we are going to talk to Slate's own Mark Joseph Stern in a Slate plus segment that covers the courts and election news of the week. And trust me, there is an immense amount of it. To join Slate plus and to access bonus content from this show and others, and to be sure not to hit our paywall on the website, Please go to slate.com amicusplus and thank you truly for helping support the work we do this week. I wanted to try to close the circle on something that I've been trying to understand, I've been trying to explain, but in really bad and compressed ways for some time now. I noticed that I keep using this term minority rule, but I use it to describe this whole panoply of systems and ideas and thoughts. It's almost a tick for me, and I use it to describe mass closing of polling places. I use it to describe what happens when the Senate rams through a Supreme Court nominee just days before an election, when they wouldn't do that in 2016, 11 months before an election. I also keep using minority rule to describe what happens when the Supreme Court takes positions, say, on guns or abortions or the Affordable Care act that are totally misaligned with majority interests and also very aligned with dark money interests. I use it to describe stuff I just don't like minority rule, and that's sloppy. So I wanted to bring in somebody who could help parse what I mean when I say that the conservatives on the US Supreme Court at this moment are not just ideological, they're also partisan. They're green lighting, gerrymandering. They're greenlighting, vote purging. They're helping suppress majority rule and help me understand that in the context of history. So one last stipulation. I fully understand that minority rule, minority tyranny, encompasses all those things I just said. But I'm just going to cop to the fact that I am all for minority rule, or at least a counter majoritarian check on government. Think of Brown v. Board, think of Obergefell. So I'm imprecise and so I have conjured up somebody who's probably well known to an awful lot of you. She's been an absolute beacon, not just of history, but of precision to me this past year. Heather Cox Richardson is a professor of history at Boston College, the author of six books about American politics. She started writing her daily letters to an American in 2019, and she now has many, many, many, many subscribers. I think she's the first guest on this show. When I said to my husband, oh my God, I'm gonna go interview Heather Cox Richardson, he said, oh my God, tell her thank you. So if you're and you read her daily roundups at four or five or six o' clock every morning, and if you aren't reading her, you should be. But I think her two superpowers are in making connections between events that seem random and then explaining it through this lens of crystalline understanding of American history. So, Heather, I very rarely get this weird and fangirly, but thank you so, so, so much for being with us. I know you are the most tired person in America, so welcome to Amicus.
- [04:56]
Heather Cox Richardson
Oh, I'm so thrilled to be here. And I will fangirl right back at you. I've been reading you forever.
- [05:01]
Dahlia Lithwick
Well, thank you. And I wonder if we could just start. I know we're in a weird interstitial space between me that thinks about the Constitution and the law, you that thinks about history. But I want to start with the history of the Constitution, if we could, because I do think it's useful when we're thinking about constitutional systems to understand the role of majority rule, minority rule, minority checks on majority rules, majority rule, and what the framers were thinking about when they baked in certain minority protections into the Constitution. But also I think that we forget sometimes, or I often forget in my magical thinking about the Constitution, the Bill of Rights, that 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?
- [05:58]
Heather Cox Richardson
Yes. So I think one of the ways it helps for me to think about all this material is that, you know, what we talk about when we talk about constitutional law or the way laws work is actually really interesting. It's fascinating to watch how people make arguments and who gets protected and all of those things. But that's a really kind of presentist way to think about things that, you know, you can't really read that back into the constitutional era. And you certainly can't look at the Constitution as something that was baked in the 1700s and then walked away from, because that has always changed as well. So for me, it's much easier to think about all of this. Where the Court is today, where the Court was in the 1950s and the 1960s and the 1970s, where the court was in the 1920s, where the court was in THE 1890s, where the court was in The 1850s. 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. And I'm gonna use that advisedly right now, but everybody has a say in their government, because, of course, that's the theory, right? All men are created equal. And that's a really radical thing to say in 1776. I mean, it's a whole new way of looking at the world. But what does it mean when you actually try to make a government based on that? And that's one of the experiments that we've been doing ever since, is how do you make an actual government that works, that guarantees the voice of the people governed in their government itself. And the struggle over that has, over the course of the 19th century, really broken into a struggle between democracy in America, meaning the role of a small elite of white propertied men almost exclusively over everybody else. And on the other hand, the ideas, as Abraham Lincoln articulated it so powerfully in what people like Eric Foner have called the second founding of democracy, meaning that ordinary people, regardless of their race, or it could be expanded to their gender. Of course, Lincoln didn't do that, but people at his time did that ordinary people are the ones who should have a say in their government. And that struggle between the idea of democracy, meaning an elite rule, versus democracy, meaning everybody actually has a say in their government, has shaped virtually all of the fights that we have had over the Constitution and over the supreme court since the 1860s.
- [08:29]
Dahlia Lithwick
So when Mike Lee says For the first time, possibly on Covid medication. We're not really a democracy. We were never intended to be a democracy. He's flicking at some version of that theme that you just described. Right.
- [08:45]
Heather Cox Richardson
This just drives political historians insane. We're not democracy. We're a republic. You know, you've heard that a thousand times. That actually comes from the 1950s. And the John Birch Society that is trying to establish it does not want the idea of expanded voter rights. And they don't want the idea of expanded voter rights, in part because that means African Americans are going to be voting. So it's partly racial, but it's also partly because we have this weird thing in America after the 1860s that if you let African Americans vote, what you are essentially doing is embracing socialism or communism. Because what happened during the Civil War was that the Republican Party both invented America's first national taxes, including an income tax, and they expanded suffrage. So going into Reconstruction, there was this construction coming out of former Confederates that they didn't actually mind black people voting, which was ridiculous. Of course they did. But what they really were trying to do was prevent poor people from voting, because poor people were going to redistribute wealth. And that would itself be a form of what they called at the time socialism. Or after 1871, when in Paris, the Communards take over the city of Paris and create their own new kind of government there. That it is some form of communism. And that concept in America, that socialism or communism is linked to poor people voting, especially poor people of color or women who are asking the federal government to level the playing field between them and white men. That that is somehow socialism or communism has really skewed our political system and our legal system, including what happens in the courts, ever since.
- [10:24]
Dahlia Lithwick
And we've now just touched on race, we've touched on gender, we've touched on class. But I wonder if you can weave religion in for a minute, because I think of the most astonishing things that is happening right now is that we are in the midst of a profound fracture in this country around religion and who gets to decide and majority religion and minority religion. And it's, in my view, all held up in stark relief in this Amy Coney Barrett hearing where nobody can even talk about religion. But clearly there's also tension, I think, in. Look, there's a tension between the two provisions, the religious provisions in the First Amendment itself. But I think there's clearly now a tension in minority majority rule in this country around this question of religion. And I wonder how that Tracks back.
- [11:19]
Heather Cox Richardson
Okay, so religion gets involved in American politics and the American law, really, in the 1960s for our purposes. But let's go back for a second and talk about how we got to the moment we're in right now in terms of the Supreme Court and in terms of American politics. And that, again, goes back to the idea of democracy, meaning ordinary people versus American democracy, meaning a system in which a few elite men run things for everybody else. And what happens, of course, is after the great crash of the 1920s, Franklin Delano Roosevelt and the Democrats take a look at the American government, and they say, hey, we need a new deal for the American people. And they begin to use the government as an active force to level the playing field between ordinary Americans and the elites who've been running things. So they begin to regulate business. They provide a basic social safety net. They begin to support and advance infrastructure projects like the Tennessee Valley Authority. And they end up creating a new activist government that tends to level the playing field among economic classes in America, but it really doesn't touch on racial or gender issues. They nod to it, but they don't really do a lot with it. Coming out of that, there is the sense that America alone, and this is a sense I want to emphasize America alone is a democracy standing against authoritarian governments. Fascism on the one hand, for which we just fought World War II, but then the rise of communism as well. So there's a real problem for Americans who come out of that war embracing democracy and talking about democracy. And people tend to forget that FDR talked a lot about how democracy was a superior system to fascism. He talks about it again and again in his fireside chats over the difference between Italy and America. And then coming out of that, there's a problem for the American government and of course, Americans in general, that communist governments take a look at American racial disparities. And they say, what's all this about democracy? They're just. They're just lying to you that there's nothing about equality in America. And under Dwight Eisenhower, a Republican president who takes office in 1953, he's elected 52, takes office in 53, he appoints a bunch of Republicans to the Supreme Court. And those Republicans are going to stand against the racist Southern Democrats who have baked into the New Deal and into American law, racial categories. So, of course, he appoints Chief Justice Earl Warren, who had been the Republican governor of California, and Warren begins to use the 14th Amendment to go ahead and to level the racial and soon to be the gendered playing field in America. And that moment when they are using the government to try to erase segregation through the Brown vs Board of Education decision in 57, when they are saying that married couples have the right to buy contraception, when they are talking about the right of accused people to counsel, when they are talking about the right of people to marry across race lines, what they're doing is they're using the courts to go ahead and override the segregation and the different systems in the states that have developed such lines between different groups of people. So of course, there's a backlash to that. And that backlash is partly religious, to go back to your question. It is partly social, for sure. There's traditional fundamentalists at the time and social traditionalists, but it's also a huge backlash on the part of big business that doesn't want to see federal regulation of business. And so from that, of course, we get this political movement known as the movement conservatives, who are gradually going to come to take over the Republican Party and eventually our political system, as they have now. But one of the branches in which they do that is through the courts. And part of their attempt to use the courts is articulated really well in 1971 by Lewis Powell, who is a lawyer for the tobacco industry. And he writes a secret memo to the head of the U.S. chamber of Commerce in which he says, we have to push back on the government and on the courts that are expanding American rights because they are hemming in what he calls the American free enterprise system. And one of the ways he wants to do that is through the courts. And of course, we're going to get the rise then of the concept of originalism, of the related concept of textualism, of the attempt to hem in the use of the courts for protection of the rights of minorities and also to hem in voter rights and to hem in regulation. But at the same time, that's a political project. And the problem with the political project is that these things that we're listing here, the regulation of business, the expansion of rights, the protection of social welfare, the promotion of infrastructure, is actually really popular then and now. So if you are somebody who wants to get rid of business regulation, get rid of the protection of minorities and their inclusion in a larger society, which is going to cost tax dollars, how are you going to do that? Well, you've got to either get a lot of voters on your team, and they couldn't do that. They gave up on that project because Americans liked this system, or you can induce new people to join your coalition. And by the time of the Reagan administration in the 1980s. That's precisely what Reagan and his supporters do, is they make a huge plea to get evangelicals and traditional religious figures, this project. And it's a really dramatic change because, you know, as late as 1970, the major church organizations in the country, including the Southern Baptists, actually supported reproductive rights. So you've got here you're talking about the problem in the courts right now of religion. But that is really very much a reflection of the political project that's there designed to roll back the changes of the New Deal and of the first the Warren Court and then the Burger Court. Warren Burger is appointed by Nixon in the 1970s, and they're the ones who pass Roe v. Wade. The objection to Roe v. Wade actually doesn't come after Roe, it comes before Roe. That's a political project. Immediately after the midterm elections of 1970, to try and move Democratic Catholics into Nixon's column before 1972, we had Elise.
- [17:45]
Dahlia Lithwick
Hogue from NARA on the show, on the last show, explaining really clearly that the move from having religious objectors to Brown, which is really complicated, segue into religious objectors to abortion, was the effort. Exactly what you're describing, Heather, of lashing yourself to something that you can. People will get behind. And when you can't say, I just have as a religious principle that is anathema to me to desegregate my school, it's a lot easier to say, it is anathema to me to kill babies. And that's kind of the move that happens there. And that's when it takes off. Two things that you're saying that are so important, I just want to underline. One is that I think Americans, particularly progressive Americans, kind of hit the snooze button after Brown and Roe sort of said, hey, the court is essentially a progressive enterprise. It is advancing this vision of democracy that you lay out, you know, equality and making sure everyone prospers, and a little thumb on the scale to make sure that it's fair for everyone. That actually has not been a descriptive language that you can use about the Supreme Court, Certainly in the 20 years I've been covering the court. I mean, that's not Bush v. Gore. That's not just John Roberts. That's certainly not Shelby county or any of the chip, chip, chip erosion that we've seen. And this is the reason I wanted to talk to you on voting itself, that this is a court that, at least since Bush v. Gore, but certainly since Shelby county, striking down part of the Voting Rights act, certainly when it blessed voter roll purges in Ohio. This is a court that isn't just about, quote, unquote, conservative legal ends as you describe it. Right. The Powell memo and evangelical Christians and privileging big business and all that. This is now about all out voter suppression in a way that I think most progressives, if I said that sentence, Sheldon Whitehouse was trying to do a version of this last week at the hearings with his whiteboard that everybody, just including people that are very smart, were just like, huh, now what's he talking about? But that's the story is that it has torqued from a conservative legal project to now we have to make sure that not everybody gets to the polls.
- [20:10]
Heather Cox Richardson
Well, yes, and this is, I think where I was trying to start is that the court itself is fascinating and legal decisions are fascinating, but in America, legal decisions and the court have always been a reflection of what our democratic project is. So one of the things you just talked about there about religious objections to Brown v. Board and religious objections to Roe v. Wade, part of the religious objections to Brown v. Board, in fact, a significant part of that is an objection to communism, which, you know, again, I just sounded like that came out of the blue, didn't I? But if you think about the way that the concept of communism was constructed during the Cold War, Communists were godless, they were atheists. I mean, you saw this as late as Reagan talking about the evil empire, which he did say in a speech to evangelicals in Florida, you know, this idea that somehow, if you permit people at the bottom of society and in America, those were defined because of our weird history of Reconstruction, as black voters, although of course that should include brown voters. It's going to be immediately after World War II. It's actually going to be Dr. Hector Garcia and the American GI Movement, a group of Hispanic voters who are going to really push the boundaries of voting first. And we tend to read that out of our history because we tend to focus on African Americans. But this idea that somehow letting people of color and later on women who want to be something other than wives and mothers is going to create a government that is going to permit poor people essentially to vote for policies that are going to cost tax dollars. And during Reconstruction, by definition, people who had money to pay taxes were people with property and were white, because in that period, if you were in Africa, you couldn't have property before the end of human enslavement. So we have this weird thing after the 1860s where if the democracy permits widespread voting, it has this link to this concept of communism and that link to the concept of communism is also a link after World War II to the idea of godless communism. And so you have this, again, this really weird sort of political construction that if you let people vote in America in certain political moments, we're in one now. It's not always this way. And if you're interested, I can talk about the times. It's not, but we are in a political moment right now where there is a significant portion of the country and a lot of it, unfortunately, in the Supreme Court, that thinks if you let people vote, especially people of color and women vote, they are going to destroy America by voting in socialism or communism and that they are also godless. So I guess what I'm trying to point to here is the idea that the current Supreme Court, with its emphasis on an originalism that itself comes after the Powell memo and that is really embraced by the construction of the Federal Society in 1982, that that itself is a political project. I mean, it's all couched up in this. Oh, we've got this great theory. But if you actually read the theory, you know, coming from Justice Anson and Scalia and people like that, it's really kind of a tarted up political project rather than a coherent judicial ideology. You could make a very interesting judicial ideology based on original concepts of democracy and the relationship between states and the federal government. They're not doing it. They're part of a political project.
- [23:44]
Dahlia Lithwick
We'll have more from Heather Cox Richardson in just a moment. Before we leave, just the structural question of minority rule, I think I want to ask. I have been saying for probably three years now that there is clearly a design flaw. When you have gerrymandered legislative districts that are not apportioned one person, one vote, then you have a wildly malapportioned Senate in which, if you're in California or Wyoming, you have the same amount of representation and. And then you have a president who did not win the majority of the vote. So it seems as though the entire structure is existing to preserve minority rule. And I know, as you said, that's not always been the case, and we can talk about that. But then larded up over that, now you have a Supreme Court that is five justices appointed by a minority majority president. It just feels as though, unless I'm missing something, this is a profound design flaw where there is no way that you're going to have anything close to majority rule. Because it feels as though, at least in this moment, every branch of government has been designed to Suppress majority will. I know I'm wrong somewhere in there, but that's certainly the moment we seem to be in right now.
- [25:13]
Heather Cox Richardson
The only place you're wrong is in the word design. The system itself is not necessarily baked to do that. And I'm hitting here again on the idea of a political project. We are absolutely in a moment when we have gotten to a place where 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. But one of the things that that has happened at least three times in American history is we go from a period where there is a focus on equality and on rights. And when that happens, when people, ordinary people, start to have political power, they do in fact, guarantee that they retain more of the value that they produce. And they want what they have done. They don't want what anybody else has done, but they actually want what they have produced. And when that happens, the people who have tended to be able to accumulate wealth into their own hands start to worry that they are going to lose that power. And they're really quite articulate about this. In the 19th century, we've got people like James Henry Hammond in 1858 giving a speech in front of the Senate in which he says, listen, the way this country should work is that the vast majority of people are kind of dumb and they're kind of dull, and they're hard workers and they make a lot of money. I'm not making this up, by the way. He actually calls them mudsills, which is the part of the wood that gets hammered into the dirt to support a plantation home, which is where he lived. He was a South Carolina senator. And those people produce a lot. They work hard, they produce a lot. But the problem is, if you let them keep what they produce, they're just going to waste it. They're going to fritter it away on stuff like food. And that's not going to move society forward. So what you really want to do is let that wealth accumulate at the top. And people like me, he says, are going to go ahead. And we've got connections and we have educations and we know how to do things, and we will move society forward. And this is obviously the way things should be, because, look, we got beautiful paintings on our walls, and God obviously favors us, unlike those people at the bottom of society. And he argues, of course, this point with regard to the African American neighbors he enslaves. But he also applies that to The North. And he says, you guys are idiots because you've also got this same group of mudsills. But you let them vote. And if you let them vote, they're going to ask for more of what they're producing. And if they do that, they're going to redistribute wealth. And that means people like us aren't going to have as much money and we're not going to be able to move society forward. Andrew Carnegie says something very, very similar in 1890, and obviously you see the same thing nowadays with the concept of makers and takers. And I know only the best people. It's a way of thinking. It's a philosophy itself. But what happens when they begin to fear? The idea of widespread voting is in each of the periods that I'm talking about, the 1850s, the 1890s, and now the present is leaders start to claw back who gets to vote first. They start to suppress the vote, either through nowadays making the lines long, or in the 1890s, having grandfather clauses or understanding clauses in the Constitution, or in the 1850s, making voting dependent on property. Then, when even that isn't enough, they begin to change the media system so that people only get access to their version of the facts. And that happened in all three of the periods I'm talking about. And then they actually start to game the system like they are nowadays, saying, well, we'll gerrymander the states to the point that the Democrats basically can't win. So first they start with suppressing the vote, then they start with changing the media landscape. And then they go from forward and say, I'm just going to change the way things are. 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. So in the 1850s, you have the Taney Court, the Roger Taney Court, going ahead and saying, we're just going to go ahead and advance the interests of the elite slaveholders through the courts, even though they absolutely do not have the numbers. They're only about 1% of even the Southern population, let alone the American population. In the 1890s, you have the Melville Fuller Court, which has just such contorted decisions that the only ones that have still stood are the insular cases, which I think should be on the table now. Lochner, which says that the state can't limit workers hours. It's Plessy B. Ferguson which is a railroad case. I mean, we look at it as a racial case. It's a railroad case. It's in Rae Debs, it's Pollockley Farmers Loans saying that the state, state isn't strong enough to have an income tax. You know, they try and bake their vision into the Supreme Court. And I will point out that 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.
- [30:14]
Dahlia Lithwick
So this is actually really why I needed to talk to you today is because I think we forget, and Justice Ginsburg used to always say it, a pendulum, it swings back and forth. And I think for an awful lot of folks who listen to this show, this is an apocalyptic, once in a lifetime abuse of the levers of government and the court that we've never seen before. And what you're saying is, oh, buddy, no, no, no. This is, you know, by capturing the court and getting the court on board with this plan, this is something that happens and it's corrected. And I guess my question is, is it's corrected in some sense by a move back to that first vision of democracy you described, which is you pass HR1, you give statehood to, you know, D.C. and Puerto Rico, you make sure everybody can vote, you do all the things that should have been done, by the way, after Bush v. Gore and the motor voter law, to ensure that voting is easy as opposed to difficult, this is correctable. What other big structural changes have to happen to get the pendulum? I think a lot of people want to see that pendulum, where it's going to go. What other big structural reforms happen?
- [31:24]
Heather Cox Richardson
Well, so first of all, to go back to the project of democracy, which I think is really where we need to be, I hear this all the time. This is it. It's over. We're done. You know, they've got the court. It's going to be over here. And I just want to put that as an intellectual property problem. If we are a democracy, how does a small minority retain power? I mean, what does that look like? And I'm not sort of like being philosophically, what does that look like? What does it look like? If, in fact we have a Supreme Court that takes away things that 80% of us want, you know, does that mean we all go, okay, it's over now? I just don't see Americans saying, okay, yeah, I'm going to do exactly what the justices say. And a great example of this, of course, is the Dred Scott decision of 1857, which was enormously unpopular, popular for various reasons, that I won't go into here. But Americans didn't go, oh, yeah, that's right. No, a small minority of Americans went, yeah, that's right. We're going to abide by the Supreme Court. And the vast majority of Americans were like, ain't happening here. So the question is, first of all, what does that look like? And I think it's not sustainable. And this is one of the things I keep hammering on. It is not sustainable for us to have a president who is in power with only a minority, the popular vote. And I think it's really astonishing where we are right now in America, that we have somebody running for reelection who is making no pretense to winning a majority. He is simply trying to game the system. And that's never happened before, and that's really important. The Supreme Court is not reflecting where the majority of Americans are. That is not sustainable. Gerrymandering does not reflect where people are. That is not sustainable. The electoral college doesn't reflect where people are. That is not sustainable. The Senate does not reflect America. That is not sustainable. So where does the change come from? And the answer to that depends on how you see the world. I believe I am an idealist, so I believe that the world changes according to the way people think and the pressure that we put on our representatives, because if we vote them out, the people that we elect to make our laws are going to reflect more what we want them to do. And I think one of the problems that we've had since the Warren court, since the Berber court, and really since the New Deal, a lot of Americans thought our system was done, that we were going to have Social Security, we were going to have Medicare, we were going to have basic protections for minorities, for women. Those things just were there. I remember students saying to me 20 years ago when I talked about attacks on women's reproductive rights, and them saying to me, oh, you're changing, just an old feminist. These are never going away. No one's going to put up with it. And I kind of wish I had the list of those students in front of me to say, should we talk again? But I think now that Americans recognize that they need to put skin in the game. And every time that I've Talked about the 1950s and the 1960s, the 1890s and the 19 aughts and the 1860s and the 1870s, 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.
- [34:37]
Dahlia Lithwick
And now let's return to our conversation with Heather Cox Richardson, professor of history at Boston College, author of six books about American politics. Her daily Letters to an American are a must read. So as I bring you my worries, help me hold my worries. But as I bring them to you, one of the things I do worry is about you. You've talked around this, but let's just put it out. There is the great American reverence for the court. The court is our secular church. It is designed that way. They shuffle around in black robes for that reason. And even when we see the popularity of the other branches tanking, the court is held in really high esteem. And by design, right? That's the Federalist Papers. Neither the person nor the sword. We love them, we need them, and we believe in them. And amazing piece this week, I think, in New York magazine saying even as we're seeing a court quite literally being packed to the dismay of Americans, they still love the court. They can't disaggregate the politicization of the court and the aggressive attempts by the court to distort democracy with this idea that they reveal fear. The court, and I don't say that to say Americans are stupid or, you know, that. I just think we need that we need to believe that this third branch of government is oracular and different. And so when I worry and what I think about is I think we are careening into a moment where the court may just hand down some six, three per curiam, Bush v. Gore style, something, something. Maybe they won't even include a reasoning. They haven't included reasoning all sorts of summer on these voter suppression cases. But I think that the court is both the solution and the problem, Heather. I think that we rely on it to solve the moment we're in. And also because of that deep affection, reliance, regard, we're almost completely unaware of the peril it's putting the country in. And so I don't even know what the question is except to say I don't. I feel fairly confident that if there is a 6, 3 decision saying we're tossing ballots in Michigan or Pennsylvania and it's Bush v. Gore, one ride only, we're not even going to attempt to put this, whatever this equal protection argument is, in ways that make sense, that 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.
- [37:05]
Heather Cox Richardson
Well, it's probably why I Study politics and you study the courts. Because we've had this moment happen before in America. And I disagree. I don't think Americans will say, oh, yeah, never mind. We're perfectly happy for the courts to have gone ahead and destroyed something we care a lot about. And I think you can see this with the reaction to the ACA and the idea that it's going before the courts a week after the election. Americans care a lot about the aca and they have not paid attention to the courts because for many Americans, it does not seem to really be part of their lives. I mean, you talk about them being oracular, and for sure they are, but they're also not on the same schedule anybody else is. And they seem to deliberate in private and they're all 600 years old and, you know, no one's really paying that close attention. And I think they are paying attention now. And I don't think. I don't think that you can divorce the reaction to the Court from the reaction to what seems to be the machinations of Republicans across the country to go ahead and stay in power, even though they are so radically unpopular right now. I think a bigger concern for me is that, and I actually think this is probably a concern of Chief Justice Roberts as well, is that respect for the Court and the idea that if they pull stuff that is too out there, the standing of the Court's going to fail. And if the standing of the Court fails, that puts us into a real problem. I think we could actually game out a lot of what that would look like and a lot of what it might look like in the next 20 years if we do end up trying to repair the holes in our democratic mechanics. Because, of course, the Court has taken on a lot of power that it didn't used to have. And the Court has also gotten quite divorced from the political system. So I believe, and correct me if I'm wrong, I believe this is the first Supreme Court that does not have a politician on it. I think Sandra Day o' Connor was the last. And so they are increasingly divorced from what real Americans want in their lives. And I think that's really going to matter. So I'm a little less. I'm a little less concerned than you are about people not caring. I'm certainly concerned about what the Court's going to do, but I think Americans will pay attention to.
- [39:10]
Dahlia Lithwick
To it and maybe useful to say, because we think of FDR's court packing plan as this colossal disaster that almost tanks his presidency. But you'd be the first to say actually, no, because it. Although he doesn't pack the court, it triggers this, you know, a switch in time that saves nine. The court begins to modulate its rabid anti New Deal behavior, which is exactly, I think, what you're saying about John Roberts. Right, Right. That at some point there is a recognition. Holy cow. If 80% of the American public hates abso freaking lutely everything we're doing, whether or not we talk about court packing, the court itself changes. I guess I want to ask you one last question. And I know we've been in sort of my lane, which is the law and the Constitution, your lane, which is history. I want to talk about this third lane that you wrote a little bit about this in your Friday letter. But I know you think about it all the time, and that is the messaging piece. I think in your Friday letter, you talked about Joe McCarthy and the sort of flooding the Zone with. I'm gonna just say shit. You know what it means when the messaging apparatus is distorting truth so consistently that people will just glom onto anything that feels true. You mentioned that. That's a piece of the puzzle here, how you get people to vote against their own interests. But I'm not sure I have a prescription for that problem either. And I know it goes to deep questions about Fox News and about, you know, Sinclair Broadcasting and the fact that many, many, many, many Americans get all their news from Facebook. Well, they get your news from Facebook, too. So it's, again, the solution and the problem. But I. I wonder if you could just take us out by talking about if this moment in which. Which it's a cliche, Heather, to say we live in two universes. There are people who get all their facts from very distorting media sources. Has this happened before? Have we ever been in a situation where foundational truths are so distorted that a big, big proportion of the country doesn't actually agree on facts?
- [41:18]
Heather Cox Richardson
You're gonna hate me, but. Yeah, I knew it.
- [41:23]
Dahlia Lithwick
I knew it. You're gonna say those rags, those broadsheets, were partisan. Go ahead, you say it.
- [41:30]
Heather Cox Richardson
Well, yeah, because, again, you tend to forget. But it's only really in the late 19th century that we start to see the ability of media to travel across states. So, you know, in the 1850s, the news that you're reading in South Carolina is completely different than the news that you're reading in Massachusetts. And, of course, we had a partisan media at the time as well. We even had, in the 1890s, a version of Fox News. Which was the Harrison administration actually bought Frank Leslie's Illustrated newspaper and made it a mouthpiece of the administration secretly. So a lot of people didn't know that was the case. They kept it only during that administration and then they sold it again. So, yeah, we have been here before, but I think what we are really doing in America and across the world is grappling with what is probably, you know, I say to my students, it's the biggest change since fire, and that is the Internet. So 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 a place where entrepreneurs can thrive, but at the same time, people can buy and sell you by adjusting what they advertise to you. And I just don't think we currently know how to handle that. Do I think that democracy is going to be able to master it? Yes, I do. And I believe it because I believe in the concept of human self determination with an almost religious belief that we will not put up with being serfs. But I also believe it in a practical sense. If you look at, I know it seems like forever, but in the scheme of things, the advent of the Internet is pretty recent and the uses to which is it can be put are pretty recent. But if you look nowadays, even at things like Twitter beginning to put alarms on tweets and Facebook beginning to flag certain things, now I am certainly not an advocate for either one of those platforms, especially Facebook, I think has done incalculable damage. And by the way, that is precisely why I am there is because it is my attempt to push back on. That's where people get their news. So, and most respectable, if you will, people won't be there because it's such a cesspool. And so it was a terribly underserved group of people. And that's precisely why I write. My best stuff is on Facebook. I make it a big point to put my very best material there because I respect the people who, who get their news there and I want to make sure they have access to good material. So I'm not defending it yet. But what my point is as a historian, I always say it's like the Wild West. You know, at first it is completely wild. I mean, there, there's murders and there's heavy and there's genocide and there's, you know, whatever you want to put out there, because there is a breakdown in law and order when you first rush into a new region, but then you start to get boundaries. And I think what we're seeing now is the idea of getting some of those guardrails over the Internet, and that's one of the things we're going to have to solve. But do I think that we are going to end up in some dystopian world? I really don't. I do think we're going to end up in a world that I can't envision and that really nobody can envision yet, because we haven't built it yet. But one of the things that gives me enormous hope is that for the first time in my lifetime, people are getting involved and caring. You know, I've been at this project since 1987, and, you know, it used to be a joke in my family to try and get me wound up about politics because it was so funny, because nobody else cared. And now those same people are like, wait a minute, where do I vote? Where do I do? You know? And so a lot of people are like, we're in this terrible moment. I'm like, no, we're not. We're beyond the terrible moment. The terrible moment was like in 2000 when people like, yeah, yeah, Bush, Gore, who cares? Now people say, hey, I care, and I'm showing up for this. And that's precisely where we have been in the 1850s and in the 1890s, and even, if you will, in the 1920s. And out of all those moments, we got a reborn faith in democracy and inequality before the law and equality of access to resources. And, you know, at my age, I just got to hold on to the hope we're going to do it again.
- [45:44]
Dahlia Lithwick
Heather, one of the things that I have loved as a slavish reader of your letters is that I do think you always manage to walk the line between telling people simultaneously, nobody's coming to save you. You're going to, you know, it's not going to be Mueller, it's not going to be Ruth Bader Ginsburg. Like, you got to do it. But also, if you do it, we could change everything. And I think that that really is. It's sort of the be fearful, be worried, it's a little grim, and also be powerful, because I think that we forget. We forget that that really is like the greatest superpower we have, is to not get rattled or freaked out or paralyzed, but to just step in and do our thing. So I. I just want to thank you so very much for joining us. Heather Cox Richardson is a professor of history at Boston College. She's the author of six books about American politics, and she began writing her Daily Letters to an American in 2019. She has ridiculous numbers of subscribers, including my husband and myself. And you should, too. Heather, thank you so very, very, very much. I know you were up all night with the debate, so thank you very much for taking time to help both calm me down and rile me up in equal measure.
- [46:59]
Heather Cox Richardson
Well, that's kind of the plan, but it's a great pleasure to be here. And you keep doing what you're doing, too. I'm a huge fan of everything you're doing and describing the courts and what happens. You're the first person I go to every single time something happens over there. And a lot of stuff seems to.
- [47:14]
Dahlia Lithwick
Be happening like, and it will keep on happening. Thank you for being with us. Let's on the flip side when this is all over, have a calm, tranquil conversation about what comes next. And that is a wrap for this off week on week I Can't Remember episode of Amicus. Thank you so much for listening along and thank you so very much for your letters and your questions. You can always keep in touch@amicuslate.com you can find us@facebook.com Amicus Podcast. We love your questions and we're trying to figure out what it is we should keep covering, so keep them coming. Today's show was produced by Sara Burningham. Gabriel Roth is editorial director, Alicia Montgomery is executive producer, and June Thomas is senior managing producer of Slate Podcasts. We will be back, back with another episode of Amicus sooner than any of us could believe. Please subscribe. Hang on in there. Take good care of yourselves.