I’m Ezra Klein. This is “The Ezra Klein Show.”
About 50 years ago when Roe was first decided, the conservative legal movement was in a utterly desperate place. They were coming off decades of a liberal court that had reshaped — truly reshaped — the country’s laws on race, abortion, sex, school prayer and much more.
It was a legal revolution, and it created a conservative counterrevolution in the law, one that has now taken power and is wielding it — really wielding it. But something else happened in this period. It isn’t just that conservative legal thinking rose. It’s that liberal legal thinking fell, collapsed.
Depending on who you talk to, you will hear very different accounts here of what went wrong. One version holds that liberals outsourced too much to the law, and they abandoned politics. Another is that liberals became legal institutionalists: As they captured the heights of the legal profession, it captured them. Their thinking became defensive. Their thinking became small and cramped, professional. A third is that liberals came to buy into the conservative critique of their own approach. Liberal jurists don’t believe in originalism exactly mostly, but they have belief in it. At the very least, they took to heart the attack the right mounted on so-called activist judges, who read their own values into the Constitution. And slowly, they stopped reading much in the way of values into the Constitution at all, which is a shame, because the Constitution is the charter for a country built on values.
All of this was in my head recently when I sat down for coffee with Larry Kramer. Kramer is the former dean of Stanford Law. He’s the president of the William and Flora Hewitt Foundation. His 2004 book, “The People Themselves: Popular Constitutionalism and Judicial Review” is this wild and really interesting interpretation of our constitutional history that has the unusual accolade of being beloved by both Newt Gingrich and Ralph Nader.
And the argument he makes there and that he made to me here is that around the rise of the Warren court, liberals did something they hadn’t done before. They embraced the doctrine of judicial supremacy, and they came to see the Constitution as the purview of judges and the word of those judges as final. And so this long tradition of having a politics around the Constitution and around the court, it began to collapse at least on the left.
And both the conservative victories of recent years and weeks, as well as the muddled liberal response are at least partially the result. And so I decided to ask Kramer to come on the show to talk through his history of this collapse of liberal constitutional politics — why it happened, what we can learn from it and what a renewed progressive vision of the Constitution might look like.
As always, my email, email@example.com.
Larry Kramer, welcome to the show.
Thank you. It’s great to be here.
So when we talked earlier this week, you gave me this history of the rise and fall of different approaches to constitutional politics over America’s past. Can you just begin by sketching that out here?
Sure so there’s a Constitution long before the revolution, right. The Americans launched the American Revolution basically arguing that the British were violating the American Constitution over and over again. So there was this concept of constitutionalism, and its enforcement rested in the community at large.
So there’s no real notion of judicial review. As I think I mentioned to you the other day, like, at no point in the American Revolution did somebody say, hmm did the British have power to tax us? Let’s go to court and find out the answer to that. It’s just not a concept.
So as judicial review emerges in the early days, it comes out of this notion that courts are agents of the people just like the other branches. So when a case comes in front of them, of course, they have to interpret the Constitution, but their interpretations are not superior or binding on anybody else in the system. Everybody does their own interpreting. Final authority rests in the community by how the community responds to the decisions.
And then that takes you into a way of thinking about the Constitution, which they also didn’t think of as like some empty charter. It had a purpose. It was to create a republic, and so it had a political goal. And so the way you thought about interpreting it depended on what you thought the objectives of the American Republic were supposed to be.
And of course, there’s huge disputes about that in the early years. One of the things that I think is really interesting is to say, if the founding generation had been originalist, we wouldn’t be here, right. The only reason it worked was as they put the Constitution into operation, they sort of discovered that everything they thought was wrong. And they adapted and adjusted and set into place a process of interpreting it as it went along, which we’ve been doing for 200 years, changing it, adapting it to the circumstances as it went on and on.
And so the political fights have been about that too. And for most of that history, courts — no one thought of courts as having final say over the Constitution. That’s a late 20th century invention, right, that begins with Brown v. the Board of Education. So if you think about the Constitution —
Hold on. That’s going to sound weird to people, because a lot of us learned about Marbury v. Madison in school. And so the takeaway of that case now is that the courts have final say over the Constitution.
Yeah, the court makes that claim in Cooper v. Aaron and cites Marbury v. Madison. There’s a reason it had never been cited for that proposition.
It’s a very strange thing that I learned from you that Marbury v. Madison is not well cited before the late 20th century.
It’s not cited ever for anything about judicial review. It’s cited occasionally for some of the other subsidiary issues in the case. And that’s because, in context, Marbury was a rejection of judicial supremacy, literally a rejection of it, right. That position was being put forth in the 1790s by the conservative Federalists and being opposed by the more liberal Republicans, the Jeffersonian Party. And it comes to a head in the election of 1800. The Republicans win, trounce the Federalists.
So when Marbury comes to the court, what you’ve got on the Republican side is you’ve got a view of judicial review. It’s not that the courts would have no say. It’s just that their say wasn’t final and binding on the other branches. And then you’ve got —
Can you just define what judicial review is quickly.
Judicial review is just if a case comes to the court and there’s a law presented and the court’s asked to enforce that law, they have to decide whether it’s a legitimate law that they should enforce in the case. And so they have to interpret the Constitution. Because if it’s outside the Constitution, then it’s not a valid law, right. So if Congress can’t make a law that does X and the law does X, the court can’t enforce a law that does X, because that would be in violation of the Constitution, which limits Congress’s power.
And you separate that from this idea of judicial supremacy. What is the distinction?
So the distinction would be, so let’s say the law does X. And the question is, does the Constitution permit the law to do x? Well, different people may have different views about that. So the judges on the court may think yes. The members of Congress may think no. The president may think yes or no, whatever.
So the question is not what does the Constitution say, but whose interpretation, whose decision about what it says is final and binding. So judicial supremacy is the notion that whatever the other branches think, whatever the community at large thinks, whatever the states think, once courts have said it, everybody is supposed to get behind the court’s interpretation.
That’s different from saying the courts can have their say, but if Congress — and we’ll enforce it in the case — but if Congress disagrees, they can pass a law that is inconsistent with the court’s decision. And all that does is force it back to the community, right, which depending on how it responds to the various things that are being done in the different departments of government will decide the case literally.
So the theory was called departmentalism— each department. And that’s actually what Marbury says, right. It says courts no less than the other branches have authority to interpret the Constitution.
Here’s how I think of it. It’s an agency problem. So imagine I have a house, and I have a cook who cooks my meals, and I have a gardener who takes care of the garden, right.
So each of them has within their sphere things to do. And if the gardener comes into the kitchen and starts telling the cook how to cook the meals, like, the cook would say that’s not your job. It’s the owner of the house’s job to tell me how the meals are cooked.
So the people are like the owner of the house. The gardener is like the court. The cook is like Congress. So each has its say within its domain, although always subject to the final and binding decision of the community at large by how it responds to what the different agents do.
There’s a — I want to come back in a bit to this question of judicial review versus judicial supremacy, but there’s a distinction you’ve made that I found helpful for thinking about this, which is that you can imagine two axes of conflict over the court. One is how to interpret the Constitution, which is the dominant conflict now. The other is who interprets the Constitution, which you argue has been the dominant conflict in the past. Can you trace those and the waves of when which was dominant?
So for most of American history, how to interpret the Constitution was this kind of open-ended, forensic, all things considered approach. It wasn’t really theorized. It was the kind of way conventional lawyers do law.
You look at the language. You look at the history. You look at the policy. You look at the precedent. And you put it all together, and what’s the most persuasive story. And there’s a lot of fights in the early Republic about is the Constitution — what kind of law is it? Is it like a statute? Is it like the common law? Which of these principles do we use? But by the, sort of, 1820s, 1830s, they’ve settled that the Constitution also should be done with this forensic, kind of, all things considered method. And in fact, if you read — Joseph’s Story writes the sort of treatise on Constitution. That’s what he sets out as the method to interpret, and everybody agrees on that. There’s not really any fighting about how to interpret. And so the fight is do the courts have final say or not, and that fight emerges by the mid 1790s. And across American history, that’s always the fight.
Now you can think of it this way. People who favor democracy — let’s call them people who favor popular authority are opposed to judicial pretensions. People who are nervous about democracy, who think that people need to be confined in cabins support judicial pretensions, because they are looking for ways to tamp this down.
The reason this emerges in the mid-1790s is the French Revolution. It scares the heck out of the Federalists, who are the conservatives of that period. And so they’re looking for all sorts of ways to control popular authority, and judicial supremacy is one of them.
So you have these fights right from the beginning that are essentially left right fights. Now of course, what happens is when it comes to a head, the popular side wins. Jefferson crushes the Federalists in the 1800s election, and the idea of judicial supremacy is squashed quite explicitly, first in the debates over the repeal of the 1801 Judiciary Act — no reason to go into all the details — then in Marbury v. Madison. And then what will happen across America — and it doesn’t go away. There are still people who believe it’s the right thing to do, including people in the profession, including lots of people on the left in the profession.
So it’s always there. And when government is weak or divided, the court can assert its authority. So you have these waves at different points in time where the court will assert its authority.
The Marshall court tries it again in the late 18 teens, and they get crushed. It comes up again in the early Jacksonian period around the Second Bank. They get crushed. It comes up again in the 1850s around slavery and the territories and Dred Scott, and the court gets crushed.
Then after the Civil War, of course, you have this period like today of polarization and divided government, and the court can reassert its authority. And the idea of judicial supremacy re-emerges pretty strongly in the 1880s and 90s in the populist era and in the Lochner Era, and then that all comes to a head in the New Deal. And once again, the court gets crushed, and then it reasserts itself in the 1950s.
But there’s a difference in the 1950s, which is now for the first and actually only time in American history you’ve got an activist court that wants to assert its authority that is liberal. That’s the Warren court.
And so as the Warren court begins to assert authority and not only say that the courts have final say over the Constitution but to use the Constitution to take these rights provisions and really run with them, whether it’s race discrimination, voting rights, criminal justice, people on the left flip, not all of. The older people on the left who had fought the Lochner fight in the mid-twentieth century are really dubious and skeptical about the court’s claims to supremacy, but they support the decisions.
Younger people on the left, the Ronald Dworkins and Bob Gordon’s of the era, they’re in for this. So they flip. They begin to support judicial authority.
The right does not change. It also continues to embrace the idea of judicial authority. And for the first time, the debate shifts from who has final say. If it’s going to be the courts, how should they interpret the Constitution. And you get a left right split over that.
And that’s where originalism comes from, right, which emerges really in the 1970s, 1980s as the conservative theory of the Constitution. And that’s the fight we’ve been having since, because people seem to have broadly accepted the idea that it should be courts who have final say over the Constitution.
So I want to track a few things here. One you made that I think is interesting and counterintuitive is that the court is at its most powerful when other areas of government are at their most divided, that, in particular, it is areas of polarization which also create paralysis in Congress, make it hard for Congress to respond, hard for Congress to act as an institution protecting institutional ambition and prerogatives, that those are the periods when the court becomes most potent. Can you say a bit more on that?
Yeah, I don’t know that I would go that — there are different things that can empower a court. The way judicial supremacy works in the American system is the court has its say. The question is, how does the pushback take place?
So it’s not going to be like the American Revolution, popular uprisings, people in the streets tarring and feathering people. It’s through the branches of government. So that means you’re only going to get pushback on the court if the branches of government are aligned.
So look at today, right. People on the left want to see pushback on the court. You’re not going to get court packing or jurisdiction stripping or budget slashing, the tools that were used across American history.
You’re not going to get those out of Congress today. So you can only get them when a president and both houses of Congress are strongly controlled by the same party — what Roosevelt had, what Lincoln had, what Jackson had, what Jefferson had, just key points of pushback. So when you have divided government, the court has space to run.
So let me pick up on something in there too, because I think this is a big and tricky part of this, which is in this fight over judicial supremacy, judicial review, what are the tools through which the fight is waged? When Congress or the president doesn’t agree with what the court is doing, typically, they don’t just say, well, you don’t have any troops to your name. So we’re not going to listen. What do they do?
Well, they do occasionally do that.
They do occasionally do that. But we understand that now is a terrible norm-breaking that is down the road to a kind of authoritarianism.
Yeah, so if you were starting from scratch today, what would you do? You need the court — if you’re going to give the court this like incredible policymaking power — because that’s what judicial review is. It’s not just deciding cases. If you’re going to give them that kind of power, you need them to be independent, so they can function as a court. But you need somehow to balance it with the degree of accountability, so they can’t veer too far off.
So if you look at modern constitutions, what they typically do is they have courts with judges who have limited terms that are staggered. They require supermajorities to get onto the court, which forces a kind of centrist appointment. They make their constitutions easier to amend because they thought this through and recognized what they need to do.
And so you can give the judges lots of independence, but the branch will never veer too far. So when our Constitution was written since no one was imagining anything remotely like the modern court or that kind of power, they were all focused on the decisions in individual cases, and they made it super independent.
So when the court began to assert that power and they had to figure out what can we do to reign it in, they used the tools that they actually the Constitution made available. Although, they weren’t put there for that reason. Like, Congress controls the composition of the court. So you can add justices, court packing.
Or you can slow down its increase, which has also been done where you shrink the court to keep a president from having appointments. As, for instance, after Lincoln’s assassinated and Andrew Johnson becomes president, the Republicans do not want appointments for him. So they shrink the court, so he’s not going to get any appointments.
And then when Grant is elected, they increase it again so that he can — so there’s lots of ways to use the composition of the court. Congress controls its budget. Congress controls its jurisdiction.
So those kinds of tools are available. They’re pretty crude. So you don’t want to use them except in pretty extreme circumstances. Like, you’re not going to use them in response to a single decision. But if you have a course of decisions where the court really is veering away from where the country is, those are the kinds of tools that can be used and were used across American history.
And they’re consistent with the idea of judicial independence, because they are actually controls explicitly in the Constitution. After Brown, as the left begins to support judicial supremacy, what’s done is the delegitimization of those devices, right. It’s now you have people on the left and the right saying, no, you can’t do that. That’s bad. That would cripple the ability of the courts to do what it’s supposed to do, which is protect us from ourselves essentially.
Let’s talk about court packing for a second. Because an argument you make is that we understand that moment in history, the FDR moment almost exactly wrong. We see it as norms-breaking, as a terrible political failure. And you see it as something else. Give me your revision.
So Roosevelt is elected with a huge majority to do something about the country’s economic calamity. He acts immediately. The court invoking a set of interpretive theories that were way outdated and not necessarily valid, although not completely ludicrously invalid strikes down the first New Deal.
Roosevelt — and not just Roosevelt, people forget this was widespread effort by the Democrats begin pushing back against the court making basically the argument that this is not the way we do things in a democracy — and in that battle proposes as part of his solution packing the court, adding justices. Now it’s not popular when he proposes it. It never was. It wasn’t when Lincoln did it. It wasn’t when Jackson — but he pushes the idea.
Which is, by the way, to say it wasn’t a Roosevelt innovation to do this.
No, not at all. It had been done repeatedly across American history. The federal — I mean, I can go through all the instances, but it was — as I said, it was a pretty common thing to use the size of the court as a way to control it in just the ways that we talked about before.
So it’s not popular at first, and it’s not the only thing. It’s being done along with a really concerted campaign to raise popular awareness of what the court is doing and popular opposition to letting the court continue to do it and hold the country back. And the court flips.
At that point, Roosevelt doesn’t need court packing anymore, right. The court in 1937 upholds the so-called Second New Deal, allows the laws to go into effect. And a couple of weeks later, one of the justices that was in the five person conservative majority retires, and Roosevelt can replace him with Hugo Black. And at that point, he just doesn’t need it anymore. So he lets it go.
So if you don’t think about the court-packing proposal in isolation but think of it as part of this larger campaign, it’s exactly the way this is supposed to work and has worked across American history, which is when the court veered too far out of sync, the community responded. And the court retreated, and we moved on.
And there’s another thread from this era that I think is worth spending some time on because it gets to this much deeper question of who interprets the Constitution, which is Roosevelt in ways that I think would sound a little alien to us now has real theories about the Constitution. He says at one point the Constitution of the United States is a layman’s document, not a lawyer’s contract. To your point about popular constitutionalism and some amount of ultimate authority for its meaning and charter residing in the community, can you talk a bit about the ways in which it has and hasn’t been normalized for elected officials to say that I, in fact, have a view on the Constitution and that view is legitimate despite the fact that I’m not a member of the Supreme Court.
Yeah, and I would separate two separate strands here. So again, one is the who should have a say issue, and increasingly political actors have accepted the idea of judicial supremacy. So I may have a view on the Constitution, but I will accept what the Court says finally.
If you think about Al Gore after the 2000 election coming out and saying, I may disagree with what the Court said, but we should all get behind it. So that’s part of the acceptance of judicial supremacy is actually they tell us what the Constitution means, which I have always found rather peculiar.
It’s, kind of, like saying we’re a democracy, self-government. We make our own laws except for the really important one. The really important one we’re going to give to this life elected — not even elected, this life appointed oligarchy that’s going to tell us what we can do.
The second issue, though, also is what is the Constitution for? So is it just a, kind of, empty structure or frame, or does it actually have a purpose? Is there a substantive conception of what it’s supposed to produce for us? And that also across American history, there was one, right.
The Jeffersonians believed in an Agrarian Republic, and they interpreted the Constitution to create that. The Federalists believed in a Commercial Republic, and they interpreted the Constitution for that. And all through American history, the fights were not just over who, but assuming it wasn’t the Court it still meant we still had to figure out what the Constitution meant. And there were these substantive visions.
Roosevelt had one, right. It was a response to the libertarian vision of the Constitution that had been dominant in the Republican Party in the early 20th century. And it was basically saying, no, government has a responsibility. The Constitution is designed to create a society in which we take care of the people. There is a social safety net and so on. And that has been drained out on the left at least.
The right having embraced the neoliberal idea actually interprets the Constitution consistently with it. It’s about constraining government. So the Constitution is meant to be a constraint on what government can do, and the theory of originalism supports that in all sorts of ways. Although they’ve also managed to turn it around where they want into a, kind of, aggressive activist tool.
Let me offer what I think might be an objection from the right here. This is all sour grapes. Liberals don’t like some of the recent rulings. They really don’t like Dobbs. So now they’re moving, and we’re sitting here talking about how in the past we didn’t listen to the court. And we give the court too much authority. And in fact, if you believe in popular constitutionalism, if you believe that the community should have the voice here, that’s actually exactly what the conservative court just did. The judges are just saying they’re turning the question of abortion back to, as they put it, the people and their representatives. How do you think about that argument?
So again, it’s more complicated than that. In part, they’re not wrong. That is to say so all the branches have a say that includes the court. So it’s not to say that they shouldn’t exercise a theory of interpretation. It is to say, though, that their interpretation of the Constitution isn’t final and binding. So the acceptance of judicial supremacy changes the way in which it’s heard. I will hear something different if I believe someone is my servant than if I believe they’re my boss.
So the court has moved from our servant to our boss. So then the courts say has a different way in which it plays out in the popular political debate. It gives it much more weight and changes the way in which it’s heard.
Now constitutional rights exist. The idea of popular constitutionalism isn’t that there are no rights, and every legislature gets to decide. So you still have to have an interpretive process.
And if there is a constitutional right, it does restrain what a state legislature or Congress can do. So the idea is that people can also interpret what their rights are in the way in which they push back.
Now how do you do that? That’s really the — it’s a messy process as it always has been across American history, but it’s not an answer to say as long as you say the Constitution doesn’t do anything and state legislatures can do what they want you’ve got popular constitutionalism. You don’t. Then you just have democracy run amok.
So again, it’s back to that there is a Constitution. It limits what government can do. Who should have final say over the ways in which it limits government, that has to rest in the community at large in terms of how they respond to what the political actors are doing.
From this broader popular constitutionalism framework, how did you read the Dobbs decision and the dissent? What did you see in there that surprised you or upset you or maybe encouraged you?
So God, there were so many things that did all of those. So the first thing I want to say an originalist point, right. And I’m borrowing here ideas that have already been pushed forward by Reva Siegel at Yale.
But there’s this notion you’re going to look at this practice abortion and you’re going to look at it in isolation and use a historical test where what matters is how were they thinking about it when the 14th Amendment was enacted. And of course, when the 14th Amendment was enacted, women couldn’t vote. They couldn’t own property. If they were married, there was covet — the notion that this wasn’t wholly wrapped in a vision of society that is not just foreign to us today but offensive to us today.
But we’re going to stick with that practice and use that to impose a limitation today is just crazy, right. That’s in some sense the problem with originalism. You’ve yanked something out of context. If you think about it in the current context, you’re not going to do the same thing. So that was one thing.
Second thing that was to me a little disappointing, it’s true the Roe opinion was weak. When it was written, everybody has recognized that, people on the left as well as the right. But other arguments have arisen, in particular, a really strong argument around equal protection as the basis for a right to abortion because of the disproportionate consequences for women grounded in a history of subordinating women.
And for reasons that I’ve never fully understood, the abortion rights lawyers have never really been willing to push that argument hard, and they didn’t in this case. It’s not even in the briefs.
So one brief actually written by Reva Siegel and some other people made the argument. Alito backhands it in one short paragraph that’s crazy and doesn’t deal with it at all. But the dissenters didn’t pick it up. So it’s not there, and it’s not well developed.
I was surprised that the dissenters never tried to defend the right to abortion and never try and offer an alternative ground. They relied entirely on stare decisis.
Stare decisis is this flabby doctrine. You can go either way on it. It’s really hard to get a huge grip on that either way. So no engagement on the merits on the left and no effort to really explain why this right would make sense today from a popular constitutional perspective.
Well, what do you mean the dissent didn’t defend the right to abortion. It did — I mean, it —
It’s mostly focused around why it would be — it’s wrong to overturn Roe and Casey. That is a stare decisis as opposed to an affirmative vision about why it’s right to recognize. And it’s not — the third thing is it’s not the right to abortion that’s at issue any more than the Constitution also doesn’t say you have a right to sit anywhere you want on a bus, right.
It has a right of equality. So here the question was, is there a right of reproductive autonomy that women have, and there there’s very strong arguments of its evolution and development over time. I mean, just take some of the cases the court dismisses understood that way.
Skinner says — that’s the case where you can’t sterilize somebody because they’ve committed three crimes. Basically, you have a fundamental right to have a child if you want. And then Griswold, which is the contraception case, says and you have a fundamental right to not have a kid if you don’t want. So put those together, and you essentially — you’ve got and not just those cases but a lot of cases recognizing that reproduction is something that people have a fundamental autonomy interest in protecting.
Now it doesn’t make it simple then to not take into account the additional issue of but what do we do about the fetus and the state’s interests in that. But it’s a strong argument for the recognition of a right that isn’t really defended anywhere in the case and that the court just dismisses with this goofy historical approach that is itself, I think, deeply problematic
I want to spend some time in the liberal legal and constitutional culture that has emerged since the Warren court maybe has been at its apotheosis in recent years. I’m going to lay my cards on the table a little bit. Anybody who’s followed me for a long time knows I find the court functionally a bundle of myths dressed up in robes.
And liberal legal thinking has struck me for some time now as somewhere between very defensive and very lame that it often appears to me to be animated much more by a defense of institutions, of courts, of procedures, of processes, of mystique, than any particular vision of the Constitution. And when I go back in history sometimes and I’ll read how FDR talked about the Constitution or I’ll read some of the earlier theories, I find them very bracing.
The Constitution, it can be a truly — and I mean this positively — mythic document. But there is something about the way liberal legal culture has collapsed into technocracy, right, specialized training and endless angels on the head of a pin arguments that just strikes me as weird in a historic and, sort of, part of the modern crisis.
And so first, I want to ask you if you think that’s wrong and unfair. But if it’s not, how you understand the change in it.
I don’t think it’s wrong and unfair. I think, again, there needs to be a substantive animating vision of what the Constitution is trying to do. And that’s what the left lost, right.
That’s what — Roosevelt had one that carried forward all through the Great Society. That was all part of a, sort of, vision of what the Constitution was meant to empower a government to do for the American people. And as that vision, kind of, lost its weight particularly after liberals took the neoliberal turn in the 1980s, then they lost, sort of, anything that would animate a positive theory of what the Constitution should be both in terms of what it permits and what it forbids.
And so they’ve been left with a kind of potpourri of leftover things from the periods when liberals were ascendant in the 60s and 70s. You don’t see that on the right. They actually do have an animating vision of what the Constitution is meant to look like and do.
Now you’re right about It being dressed up in mythic stuff. Because originalism and this notion that all we’re doing is letting history tell us what to do, that’s the myth. But it is a way to interpret the Constitution that neatly maps on to the kind of animating notion they have of what the Constitution should require and forbid.
Well, my observation of liberals on this, though, is that most liberal legal thinkers you talk to, not all, but most will tell you originalism is a little nutty. That method of interpretation pushed forward hundreds of years into the future is just going to get you very strange results and is not what the founders intended themselves.
But I think they have absorbed quite deeply the critique of originalism, which is that without some binding interpretive methodology, all you’re doing is reading your own values into the Constitution. You’re simply playing Calvin Ball with the nation’s founding document. And as such, its left them a little, again, in my view paralyzed.
On the one hand, the way the right does it isn’t correct. But on the other hand, nothing ever really arose that is this is how we do it. This is how we have confidence of what we’re seeing in the Constitution is true and how we are able to come up with the story we actually believe but that allows for something that is connected to a purpose we see for the country.
So I don’t think — so look, it can’t be that there’s some objective out there thing that tells us what the answers are. No one believes that. I know originalists say that, and maybe they’re like so lacking in self-introspection that they actually believe that’s what they’re doing.
But you can’t look at the decisions or the history and not see that there’s some animating external thing that’s helping them decide. The way I think about it, the law takes you a certain length. And in many cases, it takes you all the way there. It’s really well-settled. There’s just no question. We’re going to do that.
But in the hard cases, the ones that matter — the Supreme Court decides, what, 75 to 80 cases a year. Let’s call it 80. 75 of them don’t matter. We just need a decision. They’re pretty clear. They’re pretty easy. Those few extra cases, the law runs out before you get to the end, and you can go in different directions. And you’re not finding that out there in some external source. There’s some animating vision that helps you make a choice.
So I don’t think anybody — I don’t think people on the left any more than people in the right have accepted the idea that there’s some objective thing out there. What has been absorbed is that it should be something other than, though, my personal preferences today.
But then it can be anything right. It could be what the founders said in 1789. It could be the writings of Nelson Mandela. I mean, we just need some — and even then, we’re still going to have to interpret and bring some values into it. So what you do need is some kind of animating vision that helps guide your judgment that’s not just your personal preferences but that also isn’t some pretended, sort of, thing out there that decides it for you, that helps guide the judgment. We call them judges for a reason. They’re supposed to exercise judgment. So it’s going to guide the judgments that they make. What has been lost on the left is that — that kind of overarching animating principle that they can use to help them think about what to do. And so you’ve just got holding on to lots of things, outcomes that were generated at a time when there was such a vision. But that vision itself is no longer widely embraced on the left, and it really hasn’t been replaced by anything.
But I do think there’s a fear about what happens if you begin doing constitutional interpretation without obvious limiting principles or boundaries. I mean, you’re saying maybe it can be Nelson Mandela, but I think it probably — well, we’re not supposed to interpret the Constitution based on Nelson Mandela.
And I’ll give maybe a silly example here. What stops me from saying, well, look the Constitution says we form this Union to promote the general welfare. It’s clear that general welfare would be promoted by universal access to PlayStation 5s, and therefore, every American has a right to a PlayStation 5.
Well, this is where you come at it again, nobody’s saying — so there are all those other sources. They’re still there. You do have to deal with the text. You do have to deal with the history. You do have to deal with the precedent. You do have to think about the policy implications of different things that you do. All of those things are going to constrain and guide and shape. And then as I say in the really hard cases, they’re only going to take you so far, but they’re going to take you pretty far. And it’s in that last little piece that you need something to help guide you.
I think everybody agrees on that. It’s just, as I say on the left, they’ve, sort of, lost a coherent, overarching, animating vision of what the Constitution is trying to achieve that helps take it the rest of the way home and that would give them an affirmative agenda. As I say on the right, I think they have that, and then they use these, kind of, fake references to history, which just astonishingly seems in every single case to line up exactly with their current political preferences. But you can see what’s guiding them, right, which is actually a vision of what the government’s role is supposed to be and what freedom means and all of that
I would believe in originalism more if it came to more conclusions the right doesn’t like. For instance, if originalists would say, well, look the Second Amendment says it’s guns for a well-regulated militia. That’s not what we’re dealing with today.
Unfortunately, this obviously simply can’t guide what we’re doing today. Instead it does seem as you’re saying that originalism really, really, really weighs in strongly on behalf of rights the right likes and really, really, really limits rights they don’t like. And that is a consistent outcome that I think should make one a little skeptical of the interpretive methodology.
Well again, that’s because it’s not originalism. Originalism is inane as an interpretive theory for how to decide cases today. So originalism at its best would give you some understanding of what’s provisions of the Constitution meant in the context in which they were decided or created in the first instance.
There’s something else that is helping you figure out what — take the guns case, right. So you have this understanding of the role that guns played in a society where there were no police, where there was — where the community itself was the act of law enforcer — that was part of the whole point about the American Revolution — and in which only certain kinds of weapons were available, in which violence existed in a certain kind of way, in which there was a certain kind of culture. So all of that has changed, like, radically.
So in the notion that you can look at this single piece of the puzzle and say that’s what we’re going to do today, that’s not any kind of fidelity or truth to the original — when context changes, the meaning of the thing itself changes. They’re not willing to engage in it. So that’s it’s cherry-picking the outcomes that you want that line up with you today.
So in the gun case, I mean, there’s a right to prevent government tyranny, but the court says in Heller it doesn’t mean that you can use the kind of — we’re not going to protect the kind of weapons that would be necessary for that. We’re going to protect handguns.
Well, right, that’s because actually we don’t actually care about the original context or meaning. We’re just trying to figure out what we think is the thing we want to do with guns today. And so it’s — I don’t know what you would call it. It’s like fake history. I once gave a talk where I said, the only way you can be an originalist is to be a really, really bad historian, which has been my experience.
There’s been this tweet going around this week that I’m probably going to mangle in memory but something like if you tried to present the court’s decisions today to the founding generation, their first question would be wait this court is full of Catholics.
I mean, but there’s something to that. Not against Catholics, Catholics are great. I’m married to one. But there is the idea that there is an original context that can survive unchanged to this day. It’s just very strange.
Right. And it hasn’t. That’s the point, right. I mean, the Constitution — again I’ll come back to that analogy to a blueprint in a boat.
So you launch the boat based on the original blueprint. But while you’ve been sailing around out there and discovering things that didn’t work or encountering problems you didn’t expect, you’ve been changing the boat. So 200 years of repairs later if you go back to the original — and you have a new problem and you go back to the original blueprint and try and fix it that way, you’re just going to make things worse, which is, of course, what happens, as opposed to taking the boat that you’ve got. So the idea of living constitutionalism is unavoidably true is the point. Even originalists are doing that. That’s why originalist interpretations change over time. Because in fact, it’s just impossible not to be grounded in your context.
So we’ve talked a couple of times here about the connection between constitutional interpretation and having a view of what the Constitution is doing, a view of what kind of nation is it a charter for. And we’ve referenced FDR on this.
So I want to read a quote from his 1936 speech accepting the Democratic nomination to give a sense of what this sounded like. And then we can talk about it a bit. So FDR says, “These economic royalists complain that we seek to overthrow the institutions of America. What they really complain of is that we seek to take away their power. Our allegiance to American institutions requires the overthrow of this kind of power.
In vain, they seek to hide behind the flag and the Constitution. In their blindness, they forget what the flag and the Constitution stand for. Now as always, they stand for democracy, not tyranny, for freedom, not subjection, and against a dictatorship by mob rule and the overprivileged alike.” How should we understand that kind of argument? How should we judge if it is valid or invalid?
Well, come back to the whole notion of popular constitutionalism. Ultimately, we judge by what resonates with us, what makes sense, what kind of society do we want to have. So it’s not just blindly following popular desires. It involves leadership.
If you read Madison’s original stuff, he had an important role for leadership. But it wasn’t leadership tells the subjects what to do and what they should believe. It’s that we engage in an ongoing active conversation where the role of leadership is to lead towards some sort of better vision.
You offer that vision, and you try and persuade, and if you do, the country follows you. It does rest on certain assumptions about the basic decency of most Americans, about their willingness to grow and change and improve their lives and the lives of fellow citizens.
And with our fits and starts and ups and downs, there’s been pretty good progress over American history in all those directions. So that’s what political leaders are supposed to do, right, provide a vision and inspire people to lead them in a direction. And that has to include the Constitution. That is the fundamental charter that sets out what the American Republic is supposed to be. And we haven’t had much of that for quite some time.
And I want to go back to this question of why we haven’t. You’ve talked about in the period of the Warren court, the left coming to believe in judicial supremacy, the left becoming much more excited about the possibility of political change through the judiciary.
Something I wonder about is in this period and over time, you can see the elite levels of the law become much more liberal. I mean, this has been tracked by Maya Sen and others. You can see that the institutions that train people in the law become much more liberal. You were dean of Stanford Law for eight years.
One thing that appears to me to have happened is that liberals captured the legal institutions. And then in a way, the institutions captured them in turn, that it led to a much more professionalized view of the law, of constitutional interpretation, which I’m not saying does not at some level require history and skills and other things. But you did get much more of a liberal legal priesthood, which I think is actually true in a lot of areas of liberal governance. But there has been, I think, a kind of merging of the movement and the institutions in a way that it becomes hard then to have these, sort of, other interpretive forces or other kinds of politics playing into it.
Yeah, I don’t think — I think the source of that is outside the legal profession. It’s the rise of the cult of the court, right. It is what we talked about earlier, which is these visions on how to think about the American public, the charter of liberty they’re not supposed to come from lawyers or law or courts.
They’re supposed to come from politics and the community and the people and our political leaders. So what changes is that when the left flips and says, no, no, the court should tell us what the Constitution means because they love what the Warren court is doing and have stuck to it even with 50 years of a conservative court essentially using the credibility for the court that the Warren court earned to undo everything that it did.
You really see that in Dobbs, where Alito repeatedly talks about Warren court accomplishments to explain why he’s now right overturning Roe.
Right. So it has been the shift to that’s where we should go for our constitutional revisions. And it’s not surprising that you won’t get anything other than a legal technocratic vision there. You only ever did.
I mean, in the 150, 200 years prior to today no one is looking — Chief Justice Taney wasn’t the person offering the vision. It was Andrew Jackson. It was Abraham Lincoln when he was president, not the Supreme Court.
So the shift has been our own surrendering the Constitution to a legal technocracy, which is supposed to be technocratic. It’s a technocratic profession, but it needs to be guided.
So where does it get the principles to help guide it? That’s supposed to come from the rest of us. That’s supposed to come from society. We’ve flipped this exactly backwards.
So what does that begin to look like? If you imagine not what happens immediately this year but if you imagine 10, 20, 30, 40 years of trying to rebuild a politics of constitutionalism, a sense that the Constitution is a document that belongs to us, not just a document that is imposed on us or interpreted atop us, practically or tangibly, what begins to happen? What looks different in five years? What discussions are happening that aren’t happening now?
So the challenge today — the first answer I would give is look at American history and how it happened in the past. Let’s say what I’m describing is not some change. It’s really in terms of process and how to think about it, it’s going back to what the Constitution was and how it played out in American politics up through the late 20th century.
The challenge for today is the institutions that led that have themselves been degraded. Our political parties are not parties anymore. Our politics are fragmented in ways that we’re having trouble getting around.
The ability of leadership to exercise leadership is really impaired. The media system has been fragmented. Deference to leadership is down. So it’s a little hard to see how it emerges, but the idea is that you get competing political visions of what the country should be that are themselves coherent and normatively attractive that are presented and people vote.
I mean, Ronald Reagan did that, right. It’s not that we haven’t had visions. He had a vision, and he sold it. And it achieved pretty widespread embracing. And it influenced the courts not just because of appointments but although a lot because of that but you know and so on.
So we just have not — that’s the neoliberal vision. We just don’t have an alternative right now. We’re in one of those periods like in the 1920s and 30s, where we’re kind of between, betwixt and between uniting visions.
And I’d love to say I have one and I’m going to be president, but I don’t and I’m not. But so what we’re looking for is the emergence of a vision around which Americans can unite, not unanimously but broadly, that is, as I said, normatively attractive enough to be worth fighting for.
Are there liberal theories of the Constitution out there that you find interesting right now?
So right now there haven’t been a whole lot of alternative comprehensive theories of that type. There’s a new book out by Joey Fishkin and Willie Forbath called the “Anti-Oligarchy Constitution,” which really goes back and across American history picks up that strand that was pronounced and has been lost recently, which is that it’s about creating an anti-oligarchic Republic, about having power and opportunity and material goods available across the public, about breaking down concentrations of power, whether in government or economic power in order to provide opportunities for people and so on.
So that’s an animating vision very much akin to Roosevelt’s. In fact, they will — that’s the point. They’re picking up something that had been there. It was part of the Jeffersonian understanding.
It was part of the Lincolnian understanding. It was part of the progressives. It was part of the new dealers. In each context different because of the context but a strand that runs through, and then let’s pick that up today as understanding the purpose of our Constitution.
In an interesting way, though, that interpretation of the Constitution is in tension with what I think of as another, frankly, more dominant view of the Constitution and the framers on the left now, which is that the Constitution is an anti-democratic document written by a bunch of slave-owners and landholders, who are terrified of democracy, terrified of the mob, terrified that what they had would be taken from them, terrified of revolutions they had begun to see stirring around the world.
And so to understand it as a non-oligarchic document is to get it very literally wrong. And whether or not you believe there is an objective right or wrong in that, how do you think about that tension with the, I think, growing liberal tendency to critique the founding as, sort of, fatally flawed and fatally prejudicial towards this kind of redistribution of sharing of power.
If you’re an originalist, that would be a pretty damning critique because you’d be stuck with all the bad things that they had. So first thing I would say is it’s a mistake to think that the founding was any one thing. There were those strands. There definitely — that was one side of the debate.
And then there was this other side, the Republicanist side, that actually had this very forward-looking vision with all of their flaws. So certainly they were limited in that vision but nevertheless that set out to create the kind of society that Fishkin and Forbath are talking about, that Roosevelt was talking about. Both those strands were there, and it’s been the fight about them across American history.
So the second point to recognize is they set something in motion. So yes, they were all white. Yes, they were all men. Yes, they didn’t want to allow people who weren’t like them to do all sorts of things. And yet, the thing they set in motion has successively over time created the opportunities to expand that polity, to increase — it requires fighting on our part because there is the other voice. But that’s the point. American constitutionalism is a place in which we the public are supposed to be engaged in trying to create a more perfect union at all times. And so we’re constantly engaged in that struggle because both those things are there.
But what’s happened in the last 50 years is the progressive side of that just kind of disappeared. Even progressives, kind of, lost faith in it. So it’s of no help to go back and say, why should I pay any attention to them, right.
You shouldn’t be bound by them, but they offered actually a vision of what this country could be that has been actively being implemented and that it’s our responsibility and opportunity to continue to implement today. We just have to seize it and doesn’t cede it to a court so.
And there’s an interesting inversion that forces to the extent there is a great popular constitutional document of the past, 10, 15 years, it’s clearly “Hamilton,” the musical. And “Hamilton,” the musical, I think, I don’t want to say reverses, but it certainly pulls something forward and says the liberal hero of the founding is Hamilton, and the villain is Jefferson.
But from this anti-oligarchic constitutional perspective, Jefferson is the one who wants every American fitting obviously a certain profile, to have 50 acres and their own farm. And Hamilton is much more the elitist, much more the centralizer of power, much more, I mean, in some ways like the neoliberal.
Not in some ways, flat out, right. Hamilton’s the conservative. Hamilton’s vision for America is he wants to come as close as he can to England in 1750. Whereas, Jefferson and Madison are looking to the future.
Part of the problem is a tendency we have today to first conflate people’s political ideals with their personal foibles. So I mean, if you look at them as people, Hamilton is a pretty admirable human being. He had some flaws, but he was pretty honorable, and Jefferson not so much.
If you look at their political ideals, I think they’re the opposite. It’s easy enough to keep those things separate and just to look at the founding era and say the vision Hamilton had for America is not an attractive one. It’s one in which power is supposed to be concentrated in a small economic elite that can control everything that happens. It’s a fundamentally anti-democratic vision that wants republicanism to mean as little as is necessary, as opposed to trying to —
And it played out in those days in all sorts of ways, right. The idea was you’re a democracy is on Election Day. And after you vote, you’re supposed to recede to a subject until the next election when you get another opportunity.
The Jeffersonian vision was active engagement of the public at all times. And so in all sorts of ways, I think it’s a more attractive vision. But once we look at the, sort of, personal side, it’s easier.
Where might an anti-oligarchic Constitution take you? What might it demand that is not currently demanded? What might it allow that is not currently allowed. What might it disallow that is currently allowed?
So first, in terms of what it would allow or encourage even, right, it would much more so on the affirmative rights side. And again, once we get out of the notion that we have to look to courts for our rights. so just forget that. It’s the notion that government has a responsibility to ensure that people have adequate health care, that they have adequate education so that they can have the opportunities equally to achieve in the society that is still going to be fundamentally built around private markets.
I mean, nobody wants to get rid of all of the things that come from the opportunities for individual innovation and all of that. It would include a notion that we have to watch out for concentrations of economic power, which are every bit as dangerous as concentrations of political power, which in fact produce political power.
So we need a different antitrust law. We need a different labor law. We need to empower the voice of labor and not with these outdated notions of how labor should function from a 20th century industrial economy.
You can see across the board all the different ways in which we would use government to enable a system built primarily around private enterprise to do better for everybody. This is — have you come across Jacob Hacker and —
— Paul Pierson’s notion of pre-distribution, right? It’s like we can use the laws to construct our markets to produce a better distribution instead of saying let growth rip and let’s try and yank some of it back and give it to other people. That’s not either an attractive vision for most Americans or a particularly good way to do it.
And I want to dig in on this for a minute or two more because it’s hard. We’re operating out of the constitutional culture we exist in now. And so to hear liberals saying, hey, if you take this theory of the Constitution that might take you to new antitrust or it might take you to different views of the government’s responsibility over housing, over health care, over education, which of course, is true in other constitutions around the world. This is by no means unknown in constitutional cultures that we see operating today in other societies.
But at what point are you just, as the right used to say, legislating from the bench? At what point have you crossed over from interpreting the Constitution to using, as I sometimes say, these nine Baroque warlocks to cast legal spell to accomplish through interpretation what you couldn’t accomplish through legislation?
Well, so first I wouldn’t do that. That’s buying in initially to the notion of judicial supremacy. And what I’m saying is here’s a vision of the Constitution. I want judges who will give it to me.
I don’t think that’s the right way to think about it. And I think we need to get back to a world in which, actually, the interpretations that are created in and through politics are every bit as valid as the ones — and then you’re back to a struggle and a push and pull. And of course, the court changes based on who’s put on the bench, as we’ve just seen. But so they become a player in this. I’m not looking at them to do it. If they’re getting too much in the way, we could push back on them. If we’re not moving far enough along, they can try and pull us forward.
Whether they succeed or not will depend on how persuasive they are still, right. I mean, think of I always used to teach my students, like, the court can’t make constitutional — even in a world of judicial supremacy, they can only go so far. If they get too far out ahead, it’s not going to succeed. If often they’re behind in catching up — so take some examples: Brown, they turned out to be about the right amount ahead of where the public was. So they were definitely a little bit ahead, but the public caught up pretty quickly because of a grassroots political movement. In the case of, say, the death penalty, Furman, they were too far out ahead. The pushback came. They retreated.
In the case of same-sex marriage and gay rights generally, they’ve been behind catching up to the rest of the country. And so they’re a player in this. Even in a system with judicial supremacy, they should continue to be a player. What we’re really talking about doing, though, is by getting rid of the notion of judicial supremacy reanimating the idea that we actually can and should generate our visions of the Constitution in and through our politics.
Let’s talk a bit about how the court itself could change, be changed, maybe needs to be changed. You testified to Joe Biden’s Supreme Court commission, which was he promised to form during the campaign. When there was pressure from liberals to endorse court packing, he said he would impanel a commission to study how we should change the court. He did. They made the report in December of 2021. People didn’t pay much attention, but is an interesting document. And you were part of that process. What did you tell them to do?
So I thought there were two things that needed to come out of that. Clearly, there was not going to be major pushback on the court because government is divided. Never happens unless the party that is opposed to what the court is doing has really strong political support in the community at large. But I thought two things could have been done usefully. One was to begin the process of re-legitimating the fact that pushback is OK, though, right. That actually things like court packing and jurisdiction-stripping and budget — these are tools that the Constitution provides, that, God forbid, we should need them. But if we do, we can use them, as opposed to, no, they’re terrible intrusions on the constitutional notion of judicial independence. That was one. And I think the commission helped a little bit in that respect.
The second, in my view, was there is —
A very little bit
Yeah, very little. It’s true. And that’s because we’re so far from in a place where there’s really broad public support. But that’s what we need to rebuild. And so part of it is having commissions like that and other leaders begin to say, no, no, we can do this the way Roosevelt did. The second thing was as the court became more important, the stakes have gotten so high that every appointment is like a huge controversy. So could we fix the nominations process in order to kind of lower the stakes again so that we could get back to something more normal?
And there was this proposal out there developed by Roger Cramton and Paul Carrington in which you’d add a justice every two years. And the nine most recent ones would sit to decide the cases. The others would remain Article III judges.
They could fill in when there was a recusal. They could sit on the lower courts. They could do all the other things that Article III judges did, and what that would do would be to lower the stakes for every single appointment by ensuring that every two years it was going to be another one and ensure that the court could never veer off.
So it’s a de facto 18-year term. And I thought that was a really good idea that’s actually politically neutral, right. Both sides get an appointment every two years, whoever holds the presidency. And so that was something they could think about even now. Of course, they didn’t.
And that idea has been introduced in Congress now, right. There’s a House Bill like that.
But it’s not going to go anywhere.
I know, but I still — I want to talk about it for a minute because I do think it’s — these ideas are interesting, and they are not going to go anywhere. But if you believe, sort of, what I believe about this, which is that the court is the likeliest flashpoint for a genuine political crisis in this country, either because they make an intervention they don’t have the credibility to make in a now contested election or something like the McConnell Garland standoff happens for an extended period of time because of the Republican lean in the Senate and Democrats winning presidencies, I think there’s real possibility that we are five, 10 years from some kind of break point, at which point new ideas depending on what the political configuration is become possible.
So to ask about that one because I did think that was interesting, and I hadn’t heard about it before. So what happens? In 2023, there’s a new justice added, and then in 2025, another is added. And it just keeps going like that. And the idea is you have a constantly fresher nine, who are a little bit closer to the winds of public opinion in that era.
Yeah. Actually, yes. And it takes away this — look what happens now. It’s like if I’m a president, first, I want to appoint a child, right.
The younger they are, the better because I’m going to try and extend my vision as far into the future as I can. So it takes away that incentive altogether. Because in fact, they’re going to be there — however old they are, it then enables you to begin to appoint people who are actually, perhaps, older, more serious with real experience in the world.
Second, it’s not — Congress doesn’t get the appointment. The president still has the proactive. But it means then that as the presidency switches, which is as the American public goes, that’s the direction the court is going to take. So it reduces the chances of having a court of justices who were appointed 30 years ago who are deciding things today. And so the chances of the court veering very far from where the American Republic is goes away.
And as I said, I think it reduces the stakes so that you’re less likely to have the Garland kind of blockage or the Barrett, kind of, ram them through. You don’t need either of those things in quite the same way. So I think it creates opportunities for a more balanced moderated nominations process.
On the other side of the Garland blockage, what do you think of the ideas which you do see in other countries and have been proposed here to impose supermajority requirements, pretty large ones on both Supreme Court appointments, particularly so long as they’re going to be lifetime appointments — I think you could make a very good argument that if you’re going to have a lifetime appointment to an institution that powerful, it should have a high level of consensus behind it — and supermajority requirements on Supreme Court rulings?
So I support the former strongly. There’s this huge irony, right, which is the place where the filibuster makes the most sense is the one place they got rid of it, which is judicial —
Not the one, but one of the places that got rid of it.
And they do have it in most countries in the rest of the world.
Wait, I will just note this for a second. If you wanted to pass a law codifying Roe or some other abortion compromise, you would need 60 votes. To fill the court with people who could overturn Roe or create some other abortion compromise, you only need 51 for each one of those nominations.
That’s right. So I think that’s —
It’s great system.
I know. We’ve stumbled into exactly everything’s backwards. So the idea of forcing moderation, I think, in the nominations process is a great idea. I would not require supermajority for the decisions, again, remembering that most of the decisions they just need to be decided. And that’s the vast bulk of the cases.
So there are these small number of hugely controversial cases. You can’t really identify them as such ahead of time. And you don’t need a supermajority requirement. The peculiarity of this moment is these hugely controversial decisions that are 5, 4. Now they’re going to be 6 3, of course, for a little bit it looks like.
But most of the time the court itself is self conscious of the need to build stronger majorities for things that really are pushing the boundaries. And I think all things considered, in other words, is it perfect? No. But you’re going to be worse off if you require supermajority in terms of getting decisions that you need.
How high would you make the supermajority for appointment?
I’m fine with 2/3 or 60. I think either one requires substantial buy in across the aisle and the kind of moderation that you need but something like that. I say what we use for ordinary legislation, I think, would be fine.
I think one counterargument to making the court somewhat more exposed to, as I put it a minute ago, the wind of public opinion is that the court is at its best certainly in our mythos of it in the moments when it stands against public opinion and protects rights. We can talk about Brown, but we can talk about in Obergefell, right.
What would it mean for these moments when liberals really do want the court to, as the Dobbs dissent put it, by the way, protect rights from all comers, right. That was something they said in the dissent that the court is neutral when it protects rights from all comers. What would it mean to make it easier for those comers then to change the court or get on the court and disempower the protection of those rights and make potentially I think the way we think about it normally the dominance of the majority of the minority easier.
So I think that’s a myth. That’s not how it works or how it has ever worked. The court has never decided a right that was strongly opposed by public opinion, and that settled it. That’s not Brown, right.
Brown is decided. Brown is a great decision. It begins a process that is actually concluded 10 years later in 1964 with the adoption of the Civil Rights Act in which the court was an important player in helping bring the public around to a different vision of what equality and racial justice should require, one we still have a lot of work to do on.
And I think, as I say, it’s part of a process inevitably. That’s unavoidable. For me, the problem is this notion that leads the court to do things like what they just did where they in their self telling is we decide this. In fact, it’s wrong for us to pay attention to what the public thinks, which I think leads to bad decisions. And in which, to the extent that the public and political actors buy that, it becomes truer in a way that is actually not helpful.
So what you want is courts — of course, they are helping us understand what our rights should be, but it has to be a process of persuasion. And if you’re an originalist and you go back and you read the way the founders thought about it to the extent that they did think about courts as part of this role, that was their understanding, right, and that has been the way it worked across American history. And as I say, I think it’s still the way it works. It’s just we’ve put a big thumb on the scale in favor of the courts by telling people basically go home. They told you. That’s supposed to decide it.
There is a hopelessness, I hear, among liberals right now. You have this 6-3 Republican court. Somewhere between 5 and 6 of them seem very, very unleashed, right. They’re going to change this country to accord to their views about the Constitution in the country.
It’s a young court. A lot of these appointments are quite young. So liberals — you can really imagine even if liberals, Democrats rather, keep winning the presidency a couple presidencies almost without appointments and certainly with very few.
You’re a historian, in part. How do you understand this moment historically, and how should — how can Democrats operate in the context of an empowered but very conservative court that is also, by the way, making decisions like on voting rights, like on gerrymandering that make it easier for the minoritarian coalition that made them a majority to keep winning elections?
Yeah, let’s come back to that point because it’s really important. But the first thing I would say is go back to the New Deal, and imagine that the court had not flipped in 1937 and had struck down the Second New Deal. Roosevelt would have stuck with this court-packing plan, and it would have become very popular very quickly, right. It’s a dynamic process no matter what.
So even this court, they seem unleashed. To me, the question is how and where are they going to find their limits. So if they do it on a first come first served basis, like, there are so many things the conservative legal movement wants to change. They just — everyone that comes before them keep doing it no matter how controversial it is or it isn’t.
They’re going to run up against a limit, and it’s probably not the most strategic way for them to figure out what their limits are, but there are limits no matter what. So the question is, where do they reach those limits, and how does the court and what it’s doing fit into the larger American political vision. So as I say, when the country flips if the court continues to try and push in a different direction, there will be the pushback. These devices that have been talked about will be recovered, and they’ll be used. So it’s not as though we’re just stuck with this forever. It is a political dynamic.
The biggest problem, though, is, yeah, the Democratic processes, which has always been somewhat flawed is really flawed right now. Our political parties don’t function the way parties are supposed to. Not just gerrymandering but the distribution of population creates an enormous difficulty to move people in the way that you used to. The information that they’re getting allows them to continue to hold in to views.
So the process that I’ve been talking about is one in which you could count at the end that the public would actually be engaged in a, kind of, shared debate, come to a position, and that whichever political branches were opposing it would yield at that point. And it’s not clear that process is working well enough to make this work. So I think we’re in a real period of uncertainty. There it’s not just about the court or the Constitution but about the future of American democracy itself of which the court is one important piece flawed for some of those reasons.
And one, there has been a lot of mockery, frustration at some of the elected Democrats who responded to the Dobbs decision by saying in one way or another, well, you got to vote. What can I do? You can vote. And I don’t think it was the most stirring rhetoric they could have chosen, some of them. But it does sound to me like you’re saying something thicker but not totally dissimilar, which is that there is not an alternative from politics here. The idea that the court is somehow separate from politics, that you can just win it by arguments, that that is a story liberals told themselves, and it isn’t true. That there is no alternative here to convincing people doing the political organizing, winning the political power, and using that political power to act.
Yes, exactly. 100 percent. And that’s as it should be is the point too, right. That is what it means to have a Republic. So yeah, and it is thicker than you should just go vote. You should organize. The liberals ceded local government in organizing at the state level to conservatives for 30, 40 years. It’s not a surprise that they’re having trouble mounting a credible vision that they can sell to the American people. So yeah, I think that is exactly — there’s that old saying in a functioning democracy people get the government they deserve. There’s a lot of truth to that.
And so if you want a better government, you have to actively get yourself engaged in creating it. And that you do through Democratic politics if you want it to be a democracy.
I think that’s a good place to end. I’ll ask our final question. What are three books you would recommend to the audience?
So from this conversation, I do recommend the Fishkin and Forbath book “The Anti-Oligarchy Constitution.” And for people who are interested in originalism. There’s a book by a professor at Stanford, Jonathan Gienapp called “The Second Creation,” which is great because what it shows you is how in the years after the Constitution the founders realized everything was wrong and began the process of recreating the Constitution. So it’s a really nice illustration of what we should be doing today.
And then a third book, I recently read a book that I thought was super fun by a writer called Benjamin Labatut that’s called “When We Cease To Understand The World.” It’s just like mind-bogglingly interesting about all these 20th century math and science geniuses and the, kind of, hubris and madness and creativity that went into them doing what they did. It’s super fun to read.
I think that book has a single best first chapter I’ve ever read in any book ever.
Mind boggling. That’s the chapter about cyanide —
And blue, the color blue.
Yeah, just amazing. And what was fun is the way he as a historian, he like starts down a line and then he kind of goes off on a tangent that’s super interesting and then more tangents from there and yet somehow manages to get back to that central narrative at every point. And it was just filled with interesting facts.
Yeah, and also it’s a fiction. It’s a —
It’s a mix. So very, very interesting book. Anyway, those are all great recommendations. Larry Kramer, thank you very much.
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