Air Date 7/26/2022
[00:00:00] JAY TOMLINSON - HOST, BEST OF THE LEFT: Welcome to this episode of the award-winning Best of the Left podcast in which we shall take a look at recent Supreme Court rulings aside from overturning abortion rights, and how all signals are that they are going full steam ahead on a conservative authoritarian deconstruction of the past 100 years of progress.
Clips today are from Amicus, Democracy Now!, Strict Scrutiny, What Next, and In The Thick with an additional members-only clip from The Majority Report.
A Supreme Court Term Like No Other - Amicus With Dahlia Lithwick - Air Date 7-9-22
[00:00:29] PROFESSOR KATHERINE FRANKE: It’s interesting that just this week we celebrated July 4th and the Declaration of Independence, etc., and it feels like the court is doing two things at once: taking us back to the 18th century in terms of understanding what the Constitution means, and doing so so aggressively. These decisions not only were losses for progressive or even liberal people or people who believe in democratic governance, but they were colossal losses.
And we see a muscular conservatism with this new, emboldened supermajority on the court that I think will have lasting implications, not just for the court’s interpretation of the Constitution, but for the very idea of the Supreme Court.
You know, many people feel that they have really overreached, and overreached in ways which are deeply ideological and political, not in ways that have a kind of special thing that the Supreme Court is supposed to do, which is to interpret the Constitution consistently over time.
[00:01:30] DAHLIA LITHWICK - HOST, AMICUS: And Nico, I want you to answer the same question with the gloss that I do feel like you get a certain amount of "I told you so" privileges, because you’ve been telling us for quite some time that this is precisely what the court would and could do, and that for a lot of folks who woke up in the last weeks and said, wait, what? The Court can, you know, contravene 80% public opinion on guns and abortion? That can’t be right. This probably is cold comfort to be able to say, I told you so, but if you’d like to, now’s your moment.
[00:02:00] PROFESSOR NIKOLAS BOWIE: No, I don’t want to say "I told you so," because I don’t think it has happened yet. The court’s current six-three majority, I think, is only getting started. And getting started can mean a couple of different things. So as far as the court’s history is concerned, I think absolutely the role that the Supreme Court has played historically in American law has been to protect property interests from regulation, to protect large and wealthy corporations, to ensure that white voters are not, quote unquote, "displaced" by voters of color or women or anyone else who, once enfranchised, might represent some sort of cultural threat. And while there was a notable 30-year period after 1937, when the court seemed to repudiate some of those historical commitments, I think what we’re seeing is basically that 30-year period was an interruption to a much larger trend.
And I think one important thing to emphasize is this Supreme Court has not had a Democratic-appointed majority on it since 1969. So before the moon landing. So since 1970, a majority of the justices on the court have been appointed by Republican presidents. And over time, litigants have been trying to figure out, well, what can we do with the current majority on the court? What can we get away with? And you see the sorts of questions that the court considers change over the past 50 years.
So 50 years ago, the sorts of questions the court was considering was like, does the 14th Amendment outlaw the Senate? Is the Senate compatible with equal protection? Or should we continue to displace litigants whose rights are violated with standing, or should be abandoned standing doctrine altogether? Do whales and trees have rights to sue? These are the sorts of questions the court is considering to protect environmental justice, protect reproductive justice.
And over the past 50 years, the questions have just become more and more conservative and the court has become more and more conservative. And what counts as a moderate justice has become more and more conservative since 1970.
And so I think what’s new about this term relative to the past 50 years is just that the court has accelerated in a way that makes it seem as though the previous 50 years were 50 years of moderation, as opposed to a pretty consistent push in a very conservative direction.
[00:04:40] DAHLIA LITHWICK - HOST, AMICUS: And Mark, you really do get to say, "I told you so," because Nico reminded us right before we came on that this breakfast table last year involved you warning of a Mad Max smoking apocalypse scenario. I wonder if you can answer -- and this is a slightly amorphous take on the question I just asked our other two guests -- but one of the things that I think -- Nico flicked at this just now as well -- we haven’t quite integrated is that the court is signaling that this is by no means an outlier, that this is, you know, stomp your foot on the gas pedal. We are all systems go. And I wonder for people like you and I, who for years have been writing the court cares what the public thinks. They triangulate against public opinion. They’re careful not to get too far out on their skis because there are repercussions. What does it signal when you get a Justice Alito or Justice Thomas just saying, don’t care, don’t care and don’t care?
[00:05:43] MARK JOSEPH STERN: It’s very disorienting. And I think of it as an experiment because for most of modern history, there has been at least one swing justice who had a finger on the pulse of public opinion. Lewis Powell, Sandra Day O’Connor, Anthony Kennedy sometimes, not always. And now, of course, that’s gone. Chief Justice Roberts sort of filled that role for a couple of years. But now Brett Kavanaugh is the median justice, which is just terrifying words coming out of my mouth. And Chief Justice John Roberts is the fourth most liberal, as you and I have discussed, which doesn’t mean he’s liberal, but the five justice ultra conservative majority clearly does not care what the public thinks of its rulings.
Now, that doesn’t mean they don’t care what the public thinks of them. I think that Brett Kavanaugh has a huge ego and wants the public to like him. I think that Amy Coney Barrett wants to be thought of as an intellectual and a professor type who is just grappling so intensely with the issues. She asks these arcane and esoteric questions at oral arguments that focus on some random, obscure part of the case that makes you think, Wow, she’s a genius. She’s found this really important little tidbit that she’s going to extract and use to find a middle ground. And then she completely ignores it in the final decision, blows past it. She was just performing.
So I think that Kavanaugh and Barrett have these egos, but at the end of the day, they will do what they want without concern about public backlash. And the simplest explanation why is because there’s nothing the public can do about the court.
Now, Nico’s going to tell me I’m wrong, and I’m going to really enjoy hearing it because I want to be wrong. But my own view is that it’s extremely unlikely that Democrats will exercise their political power in a way that reins in the Supreme Court anytime soon. And so we’re going to learn what happens when there is no Powell or O’Connor or Kennedy, and the court just goes entirely off the rails and veers sharply to the right away from public opinion without any semblance of doubt or any apology, and just decides to go full speed ahead on a different track that most Americans are appalled by, or at least very scared of. We don’t know where this will go, but it seems like the ball is in the Supreme Court’s court. And, you know, if Congress isn’t going to do anything, if the president is going to do anything, they’re just going to push this baby as far as they possibly can, until it blows up -- figuratively.
[00:08:17] DAHLIA LITHWICK - HOST, AMICUS: It’s interesting because Mark and I, I think both took the position that when SB8 was moved from the shadow docket to the merits docket, it was a signal that a massive public outcry had evinced that there is some capacity for shame or at least some capacity for managing optics. I think we overread that signal.
But Niko, I want to give you -- Mark has thrown down the gauntlet in his first round here -- and I want to give you an opportunity, because one of the reasons I so wanted to talk to you for this show is that you think about the structural institution as part of government. And you have been warning us, you were warning the Biden commission to stop thinking of judicial review as this powerful, magical uniform that helps act as a minoritarian check on reckless majorities. And you’ve been saying this is not what the court, as you said, there were seven good minutes where the court did that in the interest of protecting civil liberties, but not its historic function.
And I do want you to answer, Mark, but I also want you to tell me what the answer is to the question that I’ve had leveled at me, which is: you just don’t like the outcomes. This is not a structural critique. You were perfectly happy with Windsor. You were perfectly happy with Roe and Obergefell. So you’re just a hypocrite. You’re fine with the court acting as a minoritarian check as long as it’s your civil liberties that are being protected. And I wonder what’s the formal smart Nico answer to that question?
[00:09:48] PROFESSOR NIKOLAS BOWIE: I think that there is a structural response to that. But I also think that it’s important to keep our perspective on what is actually happening.
So what role is the court currently playing in American government and American politics? And I don’t want to lose sight of that, because from a external perspective, a term like this seems pretty clear what’s going on. So in 2020, the national GOP, in preparation for Donald Trump’s campaign, it had no new national platform. It just took the 2016 platform. In part that was just because of the influence of candidate Trump, but in part it was because the GOP can effectively enact its entire domestic policy agenda through unrestrained state legislatures in red states and unrestrained federal courts in blue states.
So the Republican Party has, to its credit, spent the past 30 years identifying these two institutions, state legislatures and federal courts, as important sources of power. And they have taken over these two institutions. So most states at this point are under one party control. You know, the governor’s office and both houses of the legislature. The federal courts, you know, there’s currently a 6-3 conservative majority on the court that doesn’t look like it’s going anywhere anytime soon. And so, in theory, Congress or federal agencies can threaten this dominance. So Congress could, for example, enact a law that codifies Roe or a much better version of Roe and says here is the new national standard for reproductive justice. But so long as the Republican Party controls either the House or 40 senators or the presidency -- it just needs one of those three veto points -- Congress can’t do anything new.
And in theory, there are existing federal laws like the Voting Rights Act and the Civil Rights Act that would prevent state legislatures from doing things. But this Supreme Court is taking care of those laws by either invalidating them or interpreting them so absurdly narrowly that they have no effect and executive agencies can’t enforce them.
So the summary of the role of the court as currently playing is removing federal restrictions on red state legislatures and imposing federal restrictions on blue state legislatures. And while I think that that may just speak to the court’s role in 2022, what’s I think really important is that this is an institutional role that the court has played over time. The court has always been this dynamic source of allocating power between different institutions in the American federalism structure. And so we, as the American people, have to decide when it comes to these really important constitutional questions -- not even constitutional questions, it’s really important questions, like what should reproductive justice look like in this country? What should our country’s response to climate change look like? What should we do about these massacres every day that are preventing people from going outside or to school with fear?
And one answer is, well, we should rely on these six people who were appointed by presidents with the goal of imposing a policy agenda, but who are not accountable to the public, who write opinion saying we are not accountable to public opinion, as Justice Alito just did in the Dobbs case, who specifically say, We do not care what you think about us. That’s one answer for who should resolve these really important questions.
And another answer is our elected officials. We should have a national legislature that’s capable of enacting laws. We should remove the structural barriers that prevent Congress from enacting laws and responding to these pressing policy challenges. Because right now we have such an inert Congress that the only branch of the federal government that’s acting are the federal courts and executive agencies. And what opinions like West Virginia versus EPA this term suggests is that federal courts will not allow executive agencies to do their own thing. And so long as we have this current structure where we just say whatever the Supreme Court says goes, we’re going to continue to live in a system in which the most important questions facing all of us are decided by these six people.
Judicial Coup SCOTUS Gerrymandering Case May Let GOP State Legislatures Control Federal Elections - Democracy Now! - Air Date 7-6-22
[00:14:11] AMY GOODMAN - HOST DEMOCRACY NOW!: The U.S. Supreme Court announced Thursday it will hear oral arguments in a case experts warn could be one of the greatest threats to U.S. democracy since the deadly January 6th insurrection at the Capitol. In October, the court will hear Moore v. Harper, a case which seeks to reinstate gerrymandered congressional maps that were struck down by North Carolina’s highest court. A ruling in favor of North Carolina Republicans could strip state courts of their power to strike down state laws, while expanding the power of GOP-controlled state legislatures to control federal elections. Legal arguments brought forward by plaintiffs in Moore v. Harper could drastically alter how congressional and presidential elections are conducted.
At the heart of the case, a theory known as ISLT — that’s the independent state legislature doctrine — which the Supreme Court has repeatedly rejected for well over a century, but the theory has gained support in the new majority-conservative court. Justices Neil Gorsuch, Clarence Thomas, Samuel Alito and Brett Kavanaugh have all endorsed different versions of this doctrine. The three liberal justices have signaled they will not overrule the Supreme Court’s many precedents rejecting the doctrine. This means the fate of the case could rest in the hands of Justice Amy Coney Barrett. Just one day before the Supreme Court agreed to hear Moore v. Harper, it ruled 6 to 3 to reinstate a Republican-drawn congressional map in Louisiana struck down by a lower court as a racially motivated violation of the Voting Rights Act.
New York Democratic Congressmember Alexandria Ocasio-Cortez tweeted, “We are witnessing a judicial coup in process. If the President and Congress do not restrain the Court now, the Court is signaling they will come for the Presidential election next,”.
For more, we’re joined by Carolyn Shapiro, professor of law and director of the Institute on the Supreme Court of the United States at Chicago-Kent College of Law, co-authored the recent Washington Post op-ed headlined “A new Supreme Court case threatens another body blow to our democracy.” She is a former clerk to the now-retired Supreme Court Justice Stephen Breyer.
Professor Shapiro, welcome to Democracy Now!. Can you just start off by laying out the significance of the court taking up this case, and what you’re most concerned about?
[00:16:26] CAROLYN SHAPIRO: The case is very important. In 2019, when the Supreme Court said that extreme partisan gerrymandering claims couldn’t be heard by federal courts, in a 5-4 decision, it said, “That’s OK. Don’t worry. There are other ways to challenge extreme partisan gerrymandering, and one of those ways is through state constitutions.” That’s exactly what happened in Moore v. Harper, and now the Republican legislators who drew this map that dramatically skews a congressional delegation in favor of Republicans, are suing and saying that, in fact, the state constitution and the state courts don’t have the power to limit partisan gerrymandering or, for that matter, to in any other way constrain legislatures when they regulate federal elections. So, this could open the door to a host of problems. It eliminates the kinds of ordinary checks and balances that we expect courts and constitutions to place on legislatures.
[00:17:33] AMY GOODMAN - HOST DEMOCRACY NOW!: Tell us who Moore is.
[00:17:35] CAROLYN SHAPIRO: So, Moore is one of the Republican leaders of the North Carolina state Legislature. And North Carolina has a law that allows him and some of his colleagues to intervene in this case and to bring this lawsuit. What they want to be able to do is to draw maps for the congressional districts that the North Carolina Supreme Court has already said violate the North Carolina Constitution. Normally, state legislatures can’t do things that violate their state constitutions, but this ISLT, or independent state legislature theory, says that they do have the power to do that when it comes to regulating federal elections. The reason for that has to do with the language in two clauses of the Constitution that gives state legislatures the responsibility and the power to regulate federal elections, but nothing in the federal Constitution suggests that they get to do that free of the ordinary limitations of state constitutions.
[00:18:42] AMY GOODMAN - HOST DEMOCRACY NOW!: So, explain this in practical terms. Are we talking about federal elections and state elections, you have to deal with them separately in each state? How do people vote?
[00:18:56] CAROLYN SHAPIRO: This is a great question, and it is one of the really big problems with the ISLT. What it suggests is that a state legislature could pass a single law that governs federal and state elections, which is what happens in most states, and that if a state court finds that some aspect or all of that statute to be unconstitutional under the state constitution, it still has to apply to federal elections. So a state might find itself with two registration systems or two different mail-in deadlines for absentee ballots, all depending on the particular state constitutional issues that the state court rules on. This makes less than no sense as a matter of separation of powers. It doesn’t make any sense as a matter even of imagining what a legislature might have intended when it passes a single law governing both state and federal elections. So it could cause enormous chaos.
It also opens the door to a kind of mischief. Or, mischief is an understatement. It gives the state legislatures the power to do things that they wouldn’t otherwise be able to do. So they could pass laws that govern just federal elections that are extremely problematic from the perspective of democracy. They could draw, for example, as in North Carolina, incredibly gerrymandered congressional districts. They could even potentially create systems in which a state legislature gets to resolve any disputes over election results in federal elections, which would include presidential elections. And we could imagine what that might look like down the road. It could be extremely dangerous. Much of that, if not all of it, would be unconstitutional under many, if not all, state constitutions, but under the ISLT, that wouldn’t matter.
[00:20:53] AMY GOODMAN - HOST DEMOCRACY NOW!: Finally — we just have 30 seconds — how does this relate to the Voting Rights Act?
[00:20:58] CAROLYN SHAPIRO: Both the Voting Rights Act and a movement against the ISLT are ways of trying to protect voting, to protect the power of the people to choose their own representatives, and in those cases, as in others, the Supreme Court, the majority, continues to cut back on protections for voting and protections for democracy. It’s extremely dangerous.
Just how bad is the Supreme Court's EPA decision - Strict Scrutiny - Air Date 6-30-22
[00:21:21] KATE SHAW - HOST, STRICT SCRUTINY: So during the Obama administration, the EPA announced the Clean Power Plan to reduce greenhouse gas emissions from power plants. Now, the Supreme Court stayed that rule prevented it from going into effect before a court of appeals decided whether the rule was lawful. And this was totally extraordinary. The Supreme Court had never reached out and put a rule on hold like this before. The rule had gone into effect and before it had been considered by the lower courts. And this was a 5-4 order by the conservative justices, and it gave a pretty clear sign of the court’s hostility to this regulation. But this was late in the Obama administration and once the Trump administration took over, that administration tried to rescind the on hold Clean Power Plan and announce its own rules regarding climate.
[00:22:12] LEAH LITMAN - HOST, STRICT SCRUTINY: And the short version of those Trump administration rules is basically a manifestation of this line from Batman about the Joker. "Some men just want to watch the world burn."
[00:22:23] KATE SHAW - HOST, STRICT SCRUTINY: I said Trump rules, it should have been un-rules. They’re literally the opposite of what the rules traditionally do.
[00:22:28] LEAH LITMAN - HOST, STRICT SCRUTINY: Right, because one of the Trump administration rules repealed the Clean Power Plan, and another rule stated the administration’s views that the Clean Air Act did not allow the EPA, the Environmental Protection Agency, to engage in so-called generation shifting rules. Basically rules that said you power plants can use other methods of generating energy to satisfy this rule rather than reduce emissions from the current methods of generating energy that the plants use. So a rule that basically said you can comply with this rule by using solar power or wind power rather than coal. That is what it means to be a generation shifting role.
[00:23:05] KATE SHAW - HOST, STRICT SCRUTINY: So there’s a challenge to what the Trump administration has done, both its rescission of the Clean Power Plan rule and its own un-rule rule, and the D.C. Circuit ruled, both, that the Trump administration had not validly rescinded the Obama era rule, and also invalidated the Trump un-rule. But that is all around the time of the end of the Trump administration and the beginning of the Biden administration. The Biden administration, after coming into power, said, look, we’re actually going to adopt our own rule, but before the Biden administration could do so, some GOP led states pulled out the playbook and asked the Supreme Court to review the case about the validity of the Trump era rules, including the Trump effort to rescind the Obama rule, and to say that the Biden administration couldn’t do, I am hesitating here because we have grasped throughout our discussion of this case to accurately convey what it is that is being requested, but it’s a pretty bizarro world that this case inhabits. But basically, these red states are asking the court to rule that the Biden administration can’t do some things that the red states expect the Biden administration to likely do, but the administration hasn’t actually done yet.
The court in this case held that the Clean Power Plan, which, again, is not in effect and in fact has never been in effect, and possible regulations that the Biden administration might enact are topics that courts should opine on, which is pretty hard to square with existing justiciability doctrine like doctrine about what kinds of cases the court can weigh in on. But why let any of that stand in the way of a good time?
[00:24:51] LEAH LITMAN - HOST, STRICT SCRUTINY: Exactly. So having concluded that it will opine on the Clean Power Plan, which again, has never gone into effect and all of its metrics have been met at this point, so it doesn’t actually require power plants to do anything. So the court holds that the EPA did not have the authority under the Clean Air Act to adopt generation shifting rules like the Clean Power Plan under Section 11, a provision that authorizes the EPA to adopt the best systems for emission reduction. There’s a passage in the dissent by Justice Kagan that really calls to mind the odd procedural posture that you were just describing, Kate, where she says, "the court today issues what is really an advisory opinion on the proper scope of the new rule EPA is considering. This court could not wait even to see what the new rule says to constrain EPA’s efforts to address climate change." That really called to mind language from Justice Sotomayor’s dissent in an earlier case that described the court as newly constituted and restless. I just thought that was notable.
Maybe we can just start out with a note about the consequences or fallout from this ruling. Rachel Rothschild, who came on the podcast previously to discuss this case and is an environmental law and climate expert who will be joining the faculty at University of Michigan in, I think, just a week or maybe a day. 24 hours, her appointment will be effective by the time you hear this podcast. So she unfortunately couldn’t join us today, but she did pass along this evaluation of the court’s ruling, which I’ll just share now.
So Rachel says, "the decision certainly could have been worse. EPA can still issue regulations under Section 111 to address greenhouse gas emissions from power plants. The agency can also still regulate greenhouse gas emissions through other provisions of the Clean Air Act, such as those for cars and trucks. But at the same time, it’s important not to minimize how bad this decision is for addressing climate change. It is hard to see how EPA can now issue a regulation under Section 111 that will make significant progress on reducing emissions from power plants and pass muster with this court. And that is incredibly unfortunate, given the current stalemate in Congress on any new environmental legislation."
[00:27:04] KATE SHAW - HOST, STRICT SCRUTINY: So it’s pretty bleak. Rachel knows what she’s talking about, and this opinion is going to have the effect of hamstringing the rulemaking process that the Biden administration is in, although by no means should the opinion be read to say they can’t or shouldn’t try to address emissions, but this court is really hostile. It looks, from reading this opinion, as though if EPA tries to do anything remotely like what the Obama administration tried to do in the never actually in effect Clean Power Plan, it won’t be allowed to do that.
[00:27:36] LEAH LITMAN - HOST, STRICT SCRUTINY: Which, by the way, is just notable because the states rushed after the Supreme Court asking the court to stay this rule because the rule was just so impossible to comply with. It was going to put all of these businesses out of business. It turns out that was just wildly overblown and not at all accurate, so it’s just so dispiriting to think that the court said actually the agency can’t enact this regulation that we were going to meet anyways. The regulation was never even that aggressive.
[00:28:02] KATE SHAW - HOST, STRICT SCRUTINY: But you would never know that from reading the characterization in the majority opinion, which we should say is a Chief Justice Roberts' opinion, that really makes it sound as though these faceless bureaucrats, just guns blazing, decided to just refashion every aspect of the American economy and American life, and this was not remotely like that. And exactly as you just said earlier, the targets were totally achievable inside of a decade. There is already an overtaken set of objectives, and yet, the ominous depiction for the early narrative of the opinion of this kind of extreme overreach on the part of EPA is what Roberts and the majority want you to think. The agency was trying to do here.
[00:28:43] LEAH LITMAN - HOST, STRICT SCRUTINY: Maybe just a few quick observations about this. This is, I guess, the narrow and limiting approach to just reviving the non delegation entirely, but it’s unclear how narrow it is or how limiting it is given that it’s completely judge empowering and just invites courts to ask, " do I think this is a big deal or not," and in the hands of this court, it’s basically a Republican Party veto over regulations created by a Democratic administration.
[00:29:09] KATE SHAW - HOST, STRICT SCRUTINY: By definition, because it is structured to invalidate anything that is big and bold and will have significant impact, it is a fundamentally deregulatory doctrine that’s going to be wielded by this conservative super majority court. And any time you have a Democratic administration that wants to do big, bold, maybe novel, to quote you Leah, policymaking, that’s going to just run squarely into the major questions doctrine because the court just doesn’t want to let agencies do anything. That’s I think, what this boils down to.
The Supreme Court Needs an Upgrade - What Next | Daily News and Analysis - Air Date 7-6-22
[00:29:38] MARY HARRIS - HOST, WHAT NEXT: The Supreme Court has haunted the Biden administration since before there was a Biden administration. I say that because in the waning days of the 2020 election, when Ruth Bader Ginsburg died and Amy Coney Barrett was rushed through a confirmation process, it put a spotlight on Biden’s cautious approach to judicial reforms. He had never been a fan of ideas like adding additional justices or instituting term limits. In fact, he’d been speaking out against those kinds of things for decades, calling expanding the court in particular, a boneheaded idea. But with Justice Barrett’s appointment creating a conservative supermajority, Mark Joseph Stern says Biden knew he couldn’t ignore the court.
[00:30:24] MARK JOSEPH STERN: So he really threaded the needle during the election. He clearly didn’t want to put off progressives who were clamoring for court reform, and then he also didn’t want to alienate moderates or Republican crossovers. So he basically declined to take a position on court expansion or even court reform during the election. He was like, Well, you just have to put me in office and see what I say. And then he floated this idea of the Supreme Court Commission, which was put a bunch of eggheads on a Zoom.
[00:30:51] Speaker 3: ...i’d like to begin by providing a summary...
[00:30:53] MARK JOSEPH STERN: and have them create a report that sort of gives pros and cons of each side without coming down in any one place.
[00:31:01] Speaker 3: ...Reform debates have always involved partisan conflict and philosophical struggle over substantive constitutional values...
[00:31:07] MARY HARRIS - HOST, WHAT NEXT: what did you hear when you listen to how this commission talked about like, what can we do here?
[00:31:13] MARK JOSEPH STERN: So, you know, the Commission functioned decently well. I don’t want to slam the logistics of it. I think that what I heard mostly was honest, thoughtful intellectuals discussing, in a very serious and cogent way, like, what role the court plays in our society and our law, what role it should play, and what alternate visions would be.
What I didn’t hear from the commissioners themselves until the very end, when some of them got angry and felt like they were being taken for a ride, but what I mostly did not hear was direct criticisms of the court and the justices, which the Commission mostly farmed out to guests who testified at these hearings. Instead of having commissioners say the court is bad, they brought in professors and advocates and lawyers and such and had them explain why the court was bad. And then in its report, they just sort of put those quotes in there and said, Well, reader, you decide, it’s up to you. And left it at that.
[00:32:20] MARY HARRIS - HOST, WHAT NEXT: Wait, did they even issue any recommendations?
[00:32:22] MARK JOSEPH STERN: No. Their report expressly said, These are not recommendations. And I think the closest that it came to any kind of favorable tone was on term limits. But even then, it really declined to endorse it or to say that it would be constitutional for Congress to impose term limits. And I actually think that threw cold water on the brewing movement for term limits, because this commission came out with a report that wouldn’t even say whether or not this reform would be lawful and constitutional. And if the Commission won’t say that, then it’s hard to convince a majority or a supermajority of Congress to pass that kind of bill.
[00:33:03] MARY HARRIS - HOST, WHAT NEXT: You highlighted testimony from people like Christopher Kang in front of the Commission, and I thought he was particularly interesting because he’s someone who had been an insider, worked in the Obama administration, and basically came in front of this commission and said, Listen, we need to talk about the fact that the reason we’re not reforming the courts, the reason we’re not doing that, is because people like us benefit from the status quo from where things are now.
[00:33:38] CHRISTOPHER KANG: ...if progressives are disproportionately buying the fiction of an independent judiciary, then who is selling it? The answer, quite frankly, is people like those in this meeting: legal elites, academics, Supreme Court practitioners who benefit from not criticizing the court, and many of the elite...
[00:33:53] MARK JOSEPH STERN: I think that what Chris was doing was putting lawyer brain on blast, and rightly so. Law school is not just education, it is indoctrination, whether or not professors even want to do it. You know, there are certainly more centrist and liberal professors than there are conservative professors. But across the spectrum, these professors are part of this system. They have a vested interest in perpetuating the system.
And so from the very beginning of law school, you are taught to just absorb this assumption that the system is good, that it mostly operates the way it was intended to, and that you are joining a rank of elites who can be trusted to guard the constitutional order, and that the riff raff who question your authority don’t know what they’re talking about. And that has created a system in which most participants, including lawyers, including consultants and advisors who work for Democrats in the Senate and at the White House in picking judges or waging confirmation battles, they all share this basic belief that the system works and is good.
What we’re seeing instead is a massive amount of money being poured into training soldiers for the conservative legal movements who are given every advantage in law school and in their careers, because it’s a relatively small network. There was one study that showed that conservative law students are 11 times more likely to get a federal clerkship than liberal law students.
[00:35:28] MARY HARRIS - HOST, WHAT NEXT: And those clerkships are feeders to prestigious jobs and eventually to judicial roles.
[00:35:31] MARK JOSEPH STERN: To everything. They open every door. They open every door. If you’re a Supreme Court clerk, you get a $400,000 bonus when you sign up with the law firm afterwards. If you’re even a clerk for four for a district court or an appeals court, you get so many benefits. The world looks at you differently and it’s becoming so much easier for conservatives to enter that world and much, much more difficult for liberals to be a part of it, starting from, like, the first day of law school.
[00:35:57] MARY HARRIS - HOST, WHAT NEXT: You said some of the commissioners felt like they’re being taken for a ride a little bit and got a little feisty towards the end. Do you want to say more about that? Like, who were those people? What were they saying?
[00:36:06] MARK JOSEPH STERN: So, you know, our friend of Slate, Larry Tribe, famed law professor.
[00:36:12] MARY HARRIS - HOST, WHAT NEXT: At Harvard.
[00:36:13] MARK JOSEPH STERN: At Harvard. Yeah. Oh, yeah. That that little school outside of Boston.
[00:36:17] MARY HARRIS - HOST, WHAT NEXT: School by the river.
[00:36:18] MARK JOSEPH STERN: He wrote a really great piece with Nancy Gertner, a former federal judge, also friend of Slate, where they said, you know, we entered this process with lawyer brain, more or less, you know, as part of the group of elites who all share the same assumption that the system works and that we’re guardians of it. And we exited it disgusted by how corrupt this system is and by how devastating the consequences of our complicity have been. And now we...
[00:36:46] MARY HARRIS - HOST, WHAT NEXT: So their minds were changed.
[00:36:47] MARK JOSEPH STERN: Yes, absolutely. And the same is true of Sherrilyn Ifill, former head of the NAACP Legal Defense Fund, big time civil rights lawyer, one of the greats who was on the Commission. And she was one of the very few who would actually break into the Commission’s own public negotiations and meetings and say, I think this is wrong. Like, I think this centrist pablum that’s being peddled right now is really just absolutely wrong. And when a draft report came out, that was just like materials for the committee when building its final report. But Sherrilyn came out swinging at some of these meetings. She publicly, during one of the meetings, condemned large portions of it and said that it was one sided and then it had a massive bias toward the status quo.
[00:37:35] MARY HARRIS - HOST, WHAT NEXT: Hmm. I think some people would say even if this commission had released recommendations, like said, Okay, we need term limits here or we need more justices on the court to really make things fair. Those reforms might not be actionable. So what’s the point?
[00:37:55] MARK JOSEPH STERN: I think it’s because Biden really delegated his opinions to this commission.
[00:37:59] MARY HARRIS - HOST, WHAT NEXT: So you think if they would have been fiery, he would have been like, Okay, let’s light a match?
[00:38:04] MARK JOSEPH STERN: Yes. The mandate from the White House was not to light a match. It was not to come up with an aggressive playbook for court reform. It was to assess these ideas. But even then, the Commission did not have to do it in these cold, clinical tones without without making any kind of decisions or recommendations.
The Outrage Continues - In The Thick - Air Date 7-19-22
[00:38:23] JULIO RICARDO VARELA - HOST, IN THE THICK: You mentioned it in your temperature check, the radicalization of Supreme Court in your writing for The Nation you wrote, and this is your words: "They sought out fanatics who would be willing to ignore the practical implications of their rulings; zealots, who would not only ignore precedent, but ignore reality itself."
[00:38:42] ELIE MYSTAL: Yeah. The thing that people need to understand is that in 1992, the Supreme Court upheld Roe v. Wade, upheld a fundamental right to an abortion. Now in that case, called Planned Parenthood v Casey, they did put new restrictions on abortion rights, restrictions that, you know, Planned Parenthood, NARAL, activist groups have been fighting for the past 30 years. But fundamentally the Supreme Court 30 years ago upheld Roe v. Wade, five to four. All five justices who upheld Roe v. Wade were appointed by Republican presidents. In fact, the 1992 court had eight of the nine justices on that court were appointed by Republican presidents. It is impossible to think now of an eight to one Republican court that would uphold anything, just any rights given to vulnerable or minority people in this country.
So we have to ask what's changed? And what's changed is the kind of justice that Republicans now are willing to put forward. And that critical difference is this understanding of practicality. The five Republicans in 1992 did not like abortions. Nor were they fans of federal government power. They also believed in this Confederate idea of state's rights. These were not liberals by any stretch of the word. Right? Right. But people like Sandra Day O'Connor, Anthony Kennedy, David Souter, they all understood that there were practical realities behind their decisions, and specifically the right to choose -- that no court could overcome by fiat.
So, what I'm saying is that that court understood that people were gonna have abortions, whether the Supreme Court liked it or not. And the question was simply, were they gonna be safe, regulated, and in what manner would this healthcare be doled out. They understood they did not have the power to revoke a right to basic healthcare. No court can do that.
This court, the current conservatives, the current people that Republicans put on the court, they don't care about practical realities behind their decisions. And that's why you see this extremism, not just in the Dobbs v Jackson Women's Health case, not just in the abortion context, but across the spectrum. So it's the same Republicans who don't care that 10-year-old girls will need healthcare services, who are also saying we shouldn't care about the statistics on gun violence when making our new gun rulings. In New York State Rifle and Pistols Association v Bruen, which liberalize gun laws even further. That's how ridiculous they are. That's how we get the decision in West Virginia v EPA, where the court functionally ignores the reality of climate change.
So, when you think about how the court has become what it's become, people need to understand: it is that way by design, because Republicans have stopped nominating judges who care about the practical realities of their opinions.
[00:41:48] JULIO RICARDO VARELA - HOST, IN THE THICK: You know, this is interesting because the way you framed it, Elie. And Erin, I'm gonna play a clip of Khiara Bridges, who's a law professor at --
[00:41:58] ELIE MYSTAL: Ooh, that's my kink man.
[00:42:00] JULIO RICARDO VARELA - HOST, IN THE THICK: -- at U Cal Berkeley. Professor Bridges was testifying last week at a Senate judiciary committee hearing on the decision to overturn Roe. Let's take a listen.
[00:42:10] KHIARA BRIDGES: The states that are passing the most restrictive laws around abortion are also the states that are preventing people from voting. Senator Lee, Senator Cruz have talked about, oh, this Dobbs decision just returns it to the elected representatives of. States to -- and people can battle it out in these laboratories of democracy as to whether they wanna protect fetal life over the interest of the pregnant person.
These are the same states that are stopping people from voting. Texas has the most restrictive voting laws on the books. Texas' SB8 doesn't represent the will of the majority of Texans; Texas SB8 represents the will of the majority of Texans that we're able to vote.
[00:42:48] JULIO RICARDO VARELA - HOST, IN THE THICK: So, you know, you can hear it. Erin, you were with vice president Kamala Harris in Florida last week, right? And it's what Elie's saying. He's like my clubhouse, my team's telling me, like, there's nothing you can do about this. So what can you do? I mean, what can Democrats do? Like, I guess my question. Yeah.
[00:43:04] ERRIN HAINES: Well, you mentioned the vice president. I mean, both in Orlando and then in Atlantic city where she addressed the NAACP, you had vice president Harris making the direct connection. She was saying that basically she had her staff do a Venn diagram of states , where you have these abortion restrictions taking place, overlapping with states where voter suppression laws have been passed. And there's something like 10 states where, you know, that's kind of the nexus, right? And so she's in Orlando Florida, ground zero for exactly that kind of conversation, helping people really understand that literally as we have been pointing out at the 19th, that abortion is on the ballot for folks, right? Whether that's candidates who are running for office, including a lot of women candidates who are sharing their own stories of abortion, as part of campaign ads, or whether you've got elected lawmakers, many of whom are women, who are sharing their stories about why they needed access to an abortion and what this would mean now that this right has disappeared for millions of women across the country.
And so, yeah, I think, initially when the Dobbs decision came out, and the messaging, especially from the administration, was kind of just telling people to vote as a solution, as opposed to asking them and really making that direct connection and explaining to them how voting is the catalyst, right? To kind of be the firewall for so many of these protections that people thought were settled law or not really up for debate. We're obviously seeing that that is not the case on abortion, on voting rights. You know, the door certainly open on everything from gay marriage, interracial marriage, et cetera.
[00:44:36] JULIO RICARDO VARELA - HOST, IN THE THICK: Elie, before we move on, because we actually have two other big topics to talk about, because it has been a week. Your final thoughts on Democrats and the clubhouse and your team members saying like be quiet.
[00:44:48] ELIE MYSTAL: Yeah, man. I wanna go back to voting rights because voting rights was the canary in the coal mine. They couldn't have done this --
[00:44:54] ERRIN HAINES: Yep.
[00:44:54] ELIE MYSTAL: -- without first taking away voting rights. That's why they did it in the order of operations that they did.
So from 30,000 feet, what was the Republican response to the first Black president? What was the Supreme Court Republican response to the first Black president, right?
[00:45:11] ERRIN HAINES: Shelby v Holder, right?
[00:45:13] ELIE MYSTAL: Shelby County v Holder, 2013. The first thing Republicans on the Supreme Court did to counteract the fact that Black people and Brown people in this country had shown themselves to be enough of a political unit, that they could elect a person of color to the presidency twice, the first thing that they did was basically gut the Voting Rights Act, which is my pick for the most important piece of legislation in American history. The Voting Rights Act is the first piece of legislation in American history that made us a democracy and not an apartheid government where whites get to control who gets into government. And they took it away in 2013. Then they further gutted it in 2021 in Brnovich in Arizona. Shelby County was about Section Five of the Voting Rights Act; Brnovich was about Section Two of the Voting Rights Act. And it was only when they had sufficiently cut the power of the people to vote them out of office that Republicans then went whole hog on abortion rights. And it's not going to stop there.
So while obviously voting is important, and obviously voting is the first, last and intermediate lines of defense against all of this, the thing that we have to keep focus on is not just voting, but then voting for candidates who are going to restore the right to vote to everybody. And that is how we're gonna get to a point where we can then revoke or repeal some of these Supreme Court decisions. So it all comes back to voting rights. But Republicans are the ones who knew that I think a lot earlier than our side did.
[00:46:52] JULIO RICARDO VARELA - HOST, IN THE THICK: You have to make the playing field uneven. It has to benefit you. Right? And that's what they did before they can then cram it down your throat.
[00:47:00] ERRIN HAINES: Yeah. And Julio, if I can just make one more point to what Elie is saying. It wasn't just that you had the 2013 and then 2021 decisions. It was that the Voting Rights Act was gutted and there were no political consequences. Yep. Nothing for that happening. And so exactly this is the thing that, you know, used to be bipartisan people, the right to vote was sacred in this country.
Voting Rights Act gets gutted. Nobody pays a political price. In fact, you only have more people getting elected. Exactly. And so fast forward to now, you know, you're seeing what's happening with abortion. If there will not be political consequences to this.
[00:47:37] JULIO RICARDO VARELA - HOST, IN THE THICK: And that's how it happens.
SCOTUS Religious Extremists Rapidly Eroding Separation Of Church And State In USA - The Majority Report w/ Sam Seder - Air Date 7-1-22
[00:47:38] SAM SEDER - HOST - THE MAJORITY REPORT: This is the case coming out of Washington state, where you had a football coach who after each game would go out into the the center of the field and start to pray. And depending on whether you wanna believe you're lying eyes or whether you wanna believe Neil Gorsuch, there's some dispute there. But before we get to the... I don't know if it's best to start with a factual dispute, let's start with the legal dispute here. Why don't we just start with, What is the "lemon test", as it was called?
[00:48:14] MARK JOSEPH STERN: So the lemon test, as it's applied by the court, up until yesterday, asks whether some kind of government law or action creates the sense, to a reasonable observer, that there is an endorsement of religion. So if you are a reasonable person and you see some law or some government action, and you think that either endorsing a particular faith, a particular sect, or endorsing religion over non-religion, then that violates the establishment clause because the fundamental rule of the establishment clause has to be government neutrality toward religion, and toward religion or non-religion. The government cannot be seen as creating insiders, in-groups, who share this official religion that's endorsed by the state and out-groups of people who are sort of left out in the cold and not a full part of the political community because they don't share the majority religion. That was the lemon test as applied by the court. That was the rule until this week when the Supreme court overturned it in the Kennedy case.
[00:49:16] SAM SEDER - HOST - THE MAJORITY REPORT: There are three aspects of the lemon test, right? I mean, the way that you assess it?
[00:49:20] MARK JOSEPH STERN: Yeah. So there are, but really over the last 20 years, the court has boiled them down into this question of endorsements, because the lemon test, the purpose was, the whole idea of the lemon test was we wanna look at the purpose of laws. We wanna look at the effect of laws. We wanna look at how entanglement can happen between church and state if these laws are passed. And I think the court did a very good job in more recent cases. Sandra Day O'Connor, this was sort of her mission, to boil that down into a more coherent test that just looks at the question of endorsement. Does it look like a law is endorsing religion? Is the purpose of a law to endorse religion? Is this endorsement going to send a message that there are in groups and outgroups?
[00:50:01] SAM SEDER - HOST - THE MAJORITY REPORT: Now, and so in this instance, does it turn on the facts? Like, I mean, here's the thing that I find confusing about this, because generally the facts of the case are largely, it seems to me, rarely in dispute by the time we get to the Supreme Court. I mean, the whole point is that the facts are settled. Um, and then we just make a determination as to what the law says in this instance. I mean, or maybe how the law even applies to these facts, but this feels like it turns on the facts in a way that is, um, it's very odd. Isn't it?
[00:50:41] MARK JOSEPH STERN: Well, I mean, it's odd in the sense that the facts are fundamentally contested and that as Justice Sotomayor illustrated in her dissent, you know, one side is telling the truth and one side is lying. Because we have photographic evidence of what actually happened here. And the whole case seemed to turn question of, if you look at the photographic evidence, is there endorsement of religion? And if you look at the pictures, there is a coach holding his helmet up high in a prayer circle with a bunch of students in the middle of a field, wearing his uniform smack dab in the middle of his official duties expressing thanks to a Christian God.
[00:51:19] SAM SEDER - HOST - THE MAJORITY REPORT: Let's, uh, let's see. We have pictures of it. So let's put these pictures up. Um, here is one. Where is the others? I mean, there's the picture of the helmet going up there.
[00:51:30] MARK JOSEPH STERN: in the back, with the helmet? Yeah. So if you are sitting in the stands there and you're listening to this guy, give thanks to his Christian God, a public school employee in the middle of a football field, surrounded by teammates. I, you know, to me, I think I'm a pretty reasonable observer that looks like an endorsement of Christianity. And I don't think it's really possible to interpret it as anything else.
[00:51:53] SAM SEDER - HOST - THE MAJORITY REPORT: Well, I mean, what seems to be even more dramatic is, if I'm on that team and I wanna play, I mean, short of me being, you know, the star quarterback, if I'm standing where the person who took that photo is, I'm afraid to show up at practice the next day.
[00:52:10] EMMA VIGELAND - HOST, THE MAJORITY REPORT: You won't, you wouldn't even get to be the star quarterback, if that was the guy, right? Like, those high school coaches behave like judge, jury, and executioner, and they revel in the power that they get. And he revels in the power that he gets of getting his whole team to do this.
[00:52:23] MARK JOSEPH STERN: I love that psychological insight, Emma, and I think it's spot on.
[00:52:27] EMMA VIGELAND - HOST, THE MAJORITY REPORT: I mean, honestly.
[00:52:27] MARK JOSEPH STERN: And important to this case, because this is, so this is the other thing. We're talking about endorsement, there's this even deeper test that has, it's sort of like the ultimate establishment clause test, which is: Are state actors, state officials hear the coach, coercing individuals into participating in a religious exercise that they don't support. Is it coercion of religion? That is what James Madison said. The number one thing government can't do is coerce religious exercise. And here it is so obvious that the coach is coercing religious exercise. By sending this message to his players, If you do not join me in the prayer circle, you will not be part of the in-group. You will not be getting equal playing time. You will not be, uh, favored by me. And in case there were any doubt about this, students submitted testimony that they were, uh, ostracized when they refused to participate initially and only joined and kneeled and prayed because they felt that they were being mistreated by the coach and other school officials by refusing to participate. And again, that is the gravest sin under the establishment clause that courts had ever identified.
[00:53:40] SAM SEDER - HOST - THE MAJORITY REPORT: So where does this, I mean, this feels like, you know, because it was always prayer in school, right? I mean, when we articulated... This was always sort of the bedrock of the way that, you know, I would explain to young children as to what does it mean to separate church and state? Where does this leave us? I mean, when we have all the RFRA stuff that we are anticipating, right? When we have, um, you know, I don't know what cases we're gonna hear next year, you have better sense of that, but we're not far from a whole host of things that people don't have to participate in because, ostensibly because of religion. Like we're expanding what constitutes an infringement upon people in terms of based upon their religion.
[00:54:32] MARK JOSEPH STERN: Yes. And, uh, where I think this leaves us is with almost no constitutional bar against school prayer because what the court did in this case is hold that coach Kennedy was in fact protected by the free speech and free exercise clauses of the First Amendment to engage in Christian prayer during the course of his duties at this moment on the field.
And what that means is that schools now have a kind of blueprint for restoring Christian prayer. What they can do is say, Well, look, we're not officially sponsoring this prayer, but individual teachers are free to engage in whatever religious expression they prefer during the course of their duties, because otherwise we would be violating the First Amendment and violating their rights.
And so teachers can now engage in prayer in the classroom, subtly or not so subtly coerce students into joining them, and unless they tell students, You will be expelled if you don't pray to Jesus, there's basically nothing those kids or their parents can do about it.
Final comments on the political philosophy that increases suffering
[00:55:40] JAY TOMLINSON - HOST, BEST OF THE LEFT: We've just heard clips today, starting with Amicus, breaking down how the court has almost always been a force working against progress. Democracy Now! looked at the potential for the court to fundamentally change the way elections are run. Strict Scrutiny discussed the hamstringing of environmental regulation. What Next analyzed a Biden Supreme Court commission. And In The Thick explained that the Court didn't get this extreme by accident. That's what everyone heard, but members also heard a bonus clip from The Majority Report, discussing a recent ruling on teacher's coercing prayer in schools. To hear that and have all of our bonus content delivered seamlessly to the new members-only podcast feed that you'll receive, sign up to support the show at BestoftheLeft.com/support, or shoot me an email requesting a financial hardship membership, because we don't let a lack of funds stand in the way of hearing more information. Speaking of hearing more information, I wanna finish up today with one quick story and a bonus clip for everyone to hear.
The discussion today about the Supreme Court being packed, not just with conservatives, but with zealots who are willing to disregard reality, really came to mind when, uh, I was reminded of two stories, or one I heard of today, but Amanda reminded me of a story from a few weeks ago, was a situation with a drug called methotrexate. It's a very common drug used to treat rheumatoid arthritis, among other ailments. Including extremely dangerous ectopic pregnancies. Depending on the dose, it can be used for different things. It's a very safe, very widely used drug that does different things. But of course, since it has anything to do with pregnancies, the overturning of Roe has resulted in people being denied their methotrexate at the pharmacy, until they can prove that they're not pregnant.
Because they're being prescribed this drug for a, you know, an ailment of theirs that has nothing to do with pregnancy, nothing to do with ending an ectopic pregnancy, but they still have to prove that that's not what their using it for. Sometimes this is outta fear for these new laws. And then other times it is pharmacists who are actively refusing to dispense drugs based on their own personal beliefs. The idea that, Hey, I think this person might want to use it as an abortifacient, and so I'm going to personally decide to not dispense the drug. And that is allowed on a state by state basis. You know, some states don't allow their pharmacist to say that and others do. So that's just one example of the kind of terrible unintended consequences you're gonna have when you allow the Supreme Court to start stomping around in the private medical lives of Americans in their Christian soldier boots. This bonus clip I have for you, which is a story that just came out today. Is another of those such stories.
Because of Texas abortion law, her wanted pregnancy became a medical nightmare - NPR - Air Date 7-26-22
[00:58:34] REPORTER CARRIE FEIBEL: Elizabeth went for a walk after breakfast. It was May 10th, weeks before the Supreme Court would overturn Roe v. Wade, but in Texas things had already changed. Most abortions after six weeks were banned. Elizabeth didn't think that could affect her. They were going for it. They were setting up the nursery. But when Elizabeth got back from her morning walk, she felt something shift inside.
[00:58:55] ELIZABETH WELLER: This burst of water just falls out of my body. And I screamed because that's when I knew something wrong was happening.
[00:59:05] REPORTER CARRIE FEIBEL: James rushed home and they drove to the ER at Houston Methodist Hospital in the Woodlands.
[00:59:12] ELIZABETH WELLER: And I asked the technician, I was like, is she okay? And she goes, Well, it's kind of hard to tell, cuz there's very little amniotic fluid. At the time I had no idea what that meant.
[00:59:23] REPORTER CARRIE FEIBEL: It was premature rupture of membranes. Her waters had broken too soon. It happens in about 3% of pregnancies. If it's later in pregnancy, sometimes doctors can delay delivery, give the fetus more time to develop. But sometimes the baby is born far too early and dies, or is born with serious disabilities.
Elizabeth was admitted to the hospital and later that night, her OB/GYN called to talk it through. She was 18, almost 19 weeks pregnant. There was still a fetal heartbeat, but it could stop at any moment. The watery cushion of amniotic fluid had disappeared. That also meant the lungs in the fetus would stop developing. Her doctor said one option was to try to stay pregnant, although this could be very risky and would likely not work.
[01:00:09] ELIZABETH WELLER: And she says, Let's say, if you get to the week of viability, which is around 24 weeks, I can't promise you that she will continue to live past that point. And because there's no amniotic fluid left, she's no longer going to be a developed baby.
[01:00:27] REPORTER CARRIE FEIBEL: Elizabeth's doctor wouldn't do an interview for this story, but Dr. Alan Peaceman, a maternal fetal specialist at Northwestern University's Feinberg School of Medicine, says the chance of a fetus surviving in that state from 18 until 24 weeks is virtually zero.
[01:00:42] DR. ALAN PEACEMAN: It's almost inevitable that the pregnancy's gonna be lost anyway. And many women would say, Why do I have to continue to carry a pregnancy that is doomed? Uh, and that's a huge psychological burden.
[01:00:55] REPORTER CARRIE FEIBEL: Prolonging the pregnancy also meant Elizabeth could develop a serious or even life-threatening infection in her uterus. So her other option was to end the pregnancy. Elizabeth was distraught and heartbroken. She could never have imagined making that decision, but now she felt continuing the pregnancy was wrong. It felt scary. And also cruel.
[01:01:15] ELIZABETH WELLER: You have to ask yourself, Would I put any living thing through the pain and the horrors of having to try to fight for their life the minute that they're born?
[01:01:26] REPORTER CARRIE FEIBEL: James was in total agreement, but the next morning they learned it wasn't their decision to make. The Texas law was making it hard for her OB to arrange the procedure.
[01:01:35] ELIZABETH WELLER: I remember hearing her, from my room, speaking loudly about how nothing is being done here.
[01:01:44] REPORTER CARRIE FEIBEL: Her doctor came back to her bedside. Elizabeth says she looked defeated.
[01:01:48] ELIZABETH WELLER: ...and she starts to cry and she tells me, They're not gonna touch you. And that you can either stay here and wait to get sick, where we can monitor you, or we discharge you and you monitor yourself, or you wait till your baby's heartbeat stops.
[01:02:11] REPORTER CARRIE FEIBEL: The Texas abortion law meant they couldn't end the pregnancy as long as there was a fetal heartbeat. There was one exception: for a medical emergency. But wasn't this a medical emergency? Elizabeth was told, No, not yet. She had to wait for more signs of a growing infection in her uterus. Dr. Peaceman, in Illinois, says the hospital in Houston was dealing with a state law that doesn't define what qualifies as a medical emergency.
[01:02:37] DR. ALAN PEACEMAN: It's terrible, but the care providers are treading on eggshells. They don't want to get sucked into this, into a legal morass.
[01:02:48] REPORTER CARRIE FEIBEL: Houston Methodist Hospital declined to comment on the specifics of Elizabeth's care, except to say they follow all state laws and that there's a medical ethics committee that sometimes reviews complex cases.
[01:02:59] ELIZABETH WELLER: At first, I was really enraged at the hospital and administration.
[01:03:02] REPORTER CARRIE FEIBEL: To Elizabeth, it already felt like a medical emergency. She had cramps, she was passing blood, but she was told those weren't the right symptoms. She needed a fever of 100.4 and chills. Her discharge had to be darker and it had to smell bad. Then they could proceed and end the pregnancy.
[01:03:20] ELIZABETH WELLER: To them my life was not in danger enough.
[01:03:23] REPORTER CARRIE FEIBEL: Elizabeth says she realized later the hospital was just as trapped as she was.
[01:03:27] ELIZABETH WELLER: It wasn't that the Methodist Hospital was refusing to perform a service to me simply because they didn't want to. It was because Texas law put them in a position to where they were intimidated to not perform this procedure.
[01:03:41] REPORTER CARRIE FEIBEL: Under Texas law, doctors can be sued by almost anyone for performing an illegal abortion. Elizabeth was discharged, but she was barely out the door when her phone rang.
[01:03:51] ELIZABETH WELLER: But as I'm leaving Methodist, I get a call from Methodist. And it's this woman who is saying, Hi, Ms. Weller. You're at the 19 week mark, so I'm here to call you to register for your delivery on October 5th so I can collect all your insurance information. How are you doing? And are you excited for the delivery? And I just cried and screamed in the parking lot. This poor woman had no idea what she was telling me. And I told her, No, ma'am, I'm actually headed home right now because I have to await my dead baby's delivery. And she goes, I'm so sorry. I'm so sorry. I didn't know.
[01:04:33] REPORTER CARRIE FEIBEL: Elizabeth went home to wait for one of two things to happen, both awful: for the fetal heartbeat to stop, or to get sick enough to become a medical emergency. The next day, Thursday, she started throwing up. But when she called, they said vomiting wasn't one of the symptoms they were looking for. On Friday she called back and begged to get in. Maybe the fetal heartbeat had finally stopped? They went to the office. The heartbeat was still there. Her OB had been calling other hospitals, but none of them would help. Right there in the office, james started looking for flights to states with less restrictive abortion laws.
[01:05:11] ELIZABETH WELLER: And he and I kept telling each other, what is the whole point of the Hippocratic oath, to do no harm, and yet we are being pulled through this?
[01:05:20] REPORTER CARRIE FEIBEL: They went back home. They started booking tickets and then suddenly Elizabeth felt another gush of fluid leave her body. The color and odor were much worse. They called the doctor again. Now they were told to go to the ER, and hurry. These symptoms showed the infection was getting worse. Elizabeth and James rushed back to Methodist. They were still checking into the ER, when OB called again, the ethics panel had reached a decision.
[01:05:45] ELIZABETH WELLER: They found a doctor from east Texas who spoke up and was so patient-forward, so patient-advocating, that he said, This is ridiculous. Everybody there agreed and decided that what was happening was unethical. And they decided to induce you tonight.
[01:06:09] REPORTER CARRIE FEIBEL: Elizabeth and James stood up and threw their arms around each other. They said, Thank you, out loud, over and over.
[01:06:15] ELIZABETH WELLER: We shouldn't have been celebrating. And yet we were because the alternative was hell.
[01:06:23] REPORTER CARRIE FEIBEL: It was Friday night. They induced labor, and it was so painful that she needed an epidural. After midnight, on Saturday, May 14th, she gave birth. Their daughter was still born as expected.
[01:06:35] ELIZABETH WELLER: They laid down this beautiful baby girl in my arms. And she was so tiny and she rested on my chest. I cried and I told her, I'm so sorry I couldn't give you life. I'm so sorry.
[01:06:57] REPORTER CARRIE FEIBEL: Six weeks later, the Supreme Court overturned Roe v. Wade. What happened to the Wellers could now happen in many other states, and there are already reports of risky delays for this problem and other pregnancy complications.
Elaine Cavazos is a perinatal psychotherapist in Austin. She says there's already so much silence and stigma around pregnancy loss. All too often, patients are told to get over it, move on, try again. Now, many patients will also be coping with a new kind of medical trauma.
[01:07:28] ELAINE CAVAZOS: It's just really unimaginable to be in a position of having to think how close to death am I before somebody's gonna take action and help me.
[01:07:37] ELIZABETH WELLER: This is the one situation my entire life, where I have felt absolutely hopeless and that I was drowning and no one was willing to save me. The State of Texas put me through that mental anguish because I couldn't get the help that I needed.
[01:07:54] REPORTER CARRIE FEIBEL: As abortion rights topple in state after state, a terrible question remains: even the strictest bands have an exception for the woman's life, but right now almost no one knows exactly how close to the edge her life needs to be.
Carrie Feibel, NRP News.
[End of clip]
[01:08:15] JAY TOMLINSON - HOST, BEST OF THE LEFT: Now what I couldn't help but be reminded of when hearing that story, is the rules that often get put into place in anti-poverty programs. They'll put in a rule about the level of poverty a person must be in to qualify for help, which doesn't sound completely absurd on its face. But then of course the devil is in the details and it's all about how they calculate a person's level of poverty, right? And so, for instance, a person in poverty buys a cheap car to help them get around, to get to work, maybe to get a new job that they couldn't have otherwise. Maybe public transit doesn't get to this place, but if they had a car, they could get a better job, that sort of a thing. So a lot of times the value of that car will count against the person in terms of their personal net wealth and will make it so they no longer qualify for the financial aid that they depend on. Even though, you know, it's not like they can buy food with that car or pay for rent with that car. And so even though owning a car can be a stepping stone to pulling oneself out of poverty, which you'd think everyone would be in favor of, the law is written in such a way to actually incentivize people to not take that kind of a step, because they'll be kicked off the financial aid program that they're depending on for their food, or their rent, or whatever else. And so you end up with a program that is, in a perverse way, sort of incentivizing people to stay in poverty. And that whole worldview comes from an effort to prevent people from taking what these politicians or conservatives or whoever see as undue advantage. They don't want people to take undue advantage of a program. And so in an effort to prevent that they err on the side of making things really difficult for people. They really don't want for someone to get something they don't deserve. And so they make the entire system incredibly difficult to navigate and incredibly difficult to work through or work your way out of, particularly if you're in a situation like poverty. But in the case of pregnancy, though I disagree entirely with the whole premise of limiting abortion rights, even I can see that the idea of making exceptions for emergencies sounds like people making an effort to find a middle ground, right? Again, it's not a middle ground that I'm okay with, but at least it seems like they're trying. But what they don't seem to get is that this worldview literally incentivizes suffering. On essentially every level, whether you're a person trying to climb outta poverty, a person exploring your own reproductive options with your doctor, or just someone hoping to not get killed in a mass shooting on the way home, the kinds of policies favored by these zealots, driven by a very particular form of Christian ethics, are literally designed to make your life harder and more full of suffering because they prioritize their ideology over the suffering of others. And this is why my core philosophy is simply to reduce suffering. Everything else stems from there.
I mean, what a miserable, philosophical place to be, where your ideology is at odds with other people's wellbeing. I say that if your philosophy is at odds with other people's wellbeing and to follow your set of ethics means that suffering will go up, then there is no better indication that you need a new set of ethics.
Cases like restricting access to drugs to arthritis patients because of Roe v. Wade and the tragic story of the wanted pregnancy we just heard, like these stories should be the only thing people need to realize, if they hadn't already long ago, that there is simply no place for the government to be stepping in and making these kinds of decisions. And in these other policies that I'm describing as being sort of stemming from parallel thinking, you know, poverty programs, gun control, those sorts of things, it seems obvious that the priority when designing these policies must be the reduction of suffering of people who will be impacted by those policies. Start there, because the alternative leads to perverse incentives, tragic outcomes, and suffering across the board.
As always keep the comments coming in at 202-999-3991. Or by emailing me to [email protected] That is gonna be it for today. Thanks to everyone for listening. Thanks to Deon Clark and Erin Clayton for their research work for the show and participation in our bonus episodes.
Thanks to the Monosyllabic Transcriptionist Trio, Ben, Ken, and Brian, for their volunteer work, helping put our transcripts together. Thanks to Amanda Hoffman for all of her work on our social media outlets, activism segments, graphic designing, web mastering, and bonus show cohosting. And thanks to those who support the show by becoming a member or purchasing gift memberships at BestoftheLeft.com/support, through our Patreon page, or from right inside the Apple podcast app. Membership is how you get instant access to our incredibly good bonus episodes, in addition to there being extra content and no ads in all of our regular episodes, all through your regular podcast player. And if you wanna continue the discussion, join our Best of Left Discord community to discuss the show, the news, other podcasts, literally anything you want and links to join are in the show notes.
So coming to you from far outside the conventional wisdom of Washington, D.C., my name is Jay, and this has been the Best of the Left podcast coming to you twice weekly thanks entirely to the members and donors to the show from BestoftheLeft.com.