Podcast / Start Making Sense / Jun 12, 2024

House Progressives vs. AIPAC, and State Constitutions Protecting Rights

On this episode of Start Making Sense, Alan Minsky on the campaign to defeat Jamaal Bowman, and Eyal Press on state Constitutions expanding rights missing from the US constitution.

The Nation Podcasts
The Nation Podcasts

Here's where to find podcasts from The Nation. Political talk without the boring parts, featuring the writers, activists and artists who shape the news, from a progressive perspective.

AIPAC vs The Squad, Plus State Constitutions Protecting Rights | Start Making Sense
byThe Nation Magazine

The Israel lobby AIPAC is spending millions to defeat Representative Jamaal Bowman in the New York state Democratic primary. That’s because he called for a permanent ceasefire back in October, and describes what’s happening in Gaza now as “an ongoing genocide.” Alan Minsky has our analysis fo the campaign–he’s Executive Director of Progressive Democrats of America.

Also: at a time when Republicans have a lock on the Supreme Court, state constitutions can provide a basis not only for protecting abortion rights, but for criminal justice reform,voting rights protection, the right to public education and even, in some states, the right to breathe clean air. Eyal Press reports.

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Representative Jamaal Bowman, who supports a cease-fire in Gaza, attends an event on Saturday against AIPAC, which endorses Bowman’s challenger.

(Selcuk Acar / Anadolu via Getty Images)

The Israel lobby AIPAC is spending millions to defeat Representative Jamaal Bowman in the New York State Democratic primary. That’s because he called for a permanent cease-fire in Gaza back in October, and describes what’s happening there now as “an ongoing genocide.” Alan Minsky has our analysis for the campaign. He’s the executive director of Progressive Democrats of America.

Also on this episode: At a time when Republicans have a lock on the Supreme Court, state Constitutions can provide a basis not only for protecting abortion rights but also for criminal justice reform, voting rights protection, the right to public education, and even, in some states, the right to breathe clean air. Eyal Press is on the podcast to report.

The Nation Podcasts
The Nation Podcasts

Here's where to find podcasts from The Nation. Political talk without the boring parts, featuring the writers, activists and artists who shape the news, from a progressive perspective.

Politics After the Assassination Attempt | Start Making Sense
byThe Nation Magazine

Will the assassination attempt change Trump’s campaign—make it more a call for unity and less a demand for retribution? Harold Meyerson reports on the evidence from the Republican National Convention.

Also: The Nation’s Joan Walsh has been following Kamala Harris for months, as she campaigns for Biden — but also provides evidence of her own potential as a presidential candidate.

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Jon Wiener: From The Nation magazine, this is Start Making Sense.  I’m Jon Wiener.  Later in the show: at a time when Republicans have a lock on the Supreme Court, state constitutions can provide a basis not only for protecting abortion rights, but also for criminal justice reform,voting rights protection, and even, in some states, the right to breathe clean air.  Eyal Press will report.  But first: House Progressives versus AIPAC – Alan Minsky has our analysis – in a minute.


AIPAC, the Israel lobby, is spending millions of dollars to defeat Representative Jamaal Bowman of New York. He’s a leading progressive and member of the Squad. This will be in the New York State Democratic Primary on June 25th. For comment, we turn to Alan Minsky. He’s executive director of Progressive Democrats of America. That’s a grassroots group working to advance progressive policies and help elect progressive candidates. He’s also one of the producers of this show. Alan, welcome back.

Alan Minsky: Great to be here, Jon. Thank you.

JW: First, tell us about Jamaal Bowman.

AM: Well, Jamaal Bowman is, by the way, the one male member of what is deemed the Squad, of which there are now eight members, and he is one of two members who are considered especially vulnerable in this election cycle. The Squad, since it emerged on the scene in 2018, has added members each of the next successive cycles. Jamaal Bowman, again, upsetting longstanding Congressman Eliot Engel in a primary two cycles ago, and then getting re-elected comfortably last cycle. And it’s a heavily Democratic district, so whoever wins the primary will be very much expected to win the general in November. And Jamaal Bowman, like the other Squad members, pretty much defines and represents the left wing of the Democratic Party, supporting, broadly speaking, progressive domestic policies and also speaking out for shifts in U.S. foreign policy.

JW: And let’s talk about his district. It’s just north of Manhattan, some of the Bronx and then Westchester County. It’s wildly diverse. It’s described by The New York Times as home to one of the best organized Jewish communities in the country, and also with a non-white majority who sees him as a paragon of progressive Black leadership. It’s 40% white, 30% Latino, 20% Black, 7% Asian. This is America.

AM: Look, I also want to point this out about Jamaal Bowman. Right now, one of the, of course, steady themes in the press is the way in which the working class is gravitating towards the Republican party, away from the Democratic party, including particularly working class men of color have somewhat, at least in the period between elections, seems to be drifting that way. I would argue this is because the Republican party gives voice to the anger people feel about how difficult the economy is to navigate, the mainstream of the Democratic Party, much less so.
I would also argue the Republican Party, in expressions of anger, have no policy solutions for this. You have to look at the left wing of the Democratic Party where you see similar expressions of discontent, but with sound policy solutions. And as for working class men of color, as I said, the one male member of the Squad, Jamaal Bowman stands out as somebody who can really connect with people across the country with expressions of discontent, but with him combined with exceptional policies for solutions.

JW: And tell us about his opponent in the Democratic primary, George Latimer.

AM: Well, my main take on Latimer in this race is of course, is he is a cipher to receive an incredible amount of outside and dark money support motivated largely due to issues around Israel and Palestine. But also, as we saw in 2021 and 2022, when Israel and Palestine were not so much as much a hot button issue, as of course they are today. These channels have also been ways in which very right-wing money and then conservative Democratic money can pour in against progressives and try to defeat progressives. So he’s a cipher for that. He’s a willing cipher for that money.

He’s a career, almost bureaucratic style politician who was in the New York Senate for a couple terms. Out of Westchester, out of the more prosperous part of this district, not from down in the Bronx. And he also has served as a county elected official across Westchester, very much a sort of a New York party machine politician.

JW: It was after the October 7th attack that Jamaal Bowman emerged as what The New York Times called one of Israel’s most forceful critics in Congress. He condemned Hamas’s actions on October 7th as abhorrent, but he also called for a permanent ceasefire back in October, more than seven months ago. And he’s been consistent in calling what’s happening in Gaza right now, “An ongoing genocide.” And of course he’s called for the United States to cut off all offensive military aid to Israel, that’s why AIPAC is targeting him. Remind us about AIPAC and where their money comes from and where it’s going.

AM: AIPAC is of course, the dominant institution as a lobbying force inside the American political system for unequivocal, no questions asked support for Israel. And that has included support for the Netanyahu government and in the era in which Israeli politics have drifted consistently to the right. They would bundle money through their supporters and the money would then be sent into campaigns through that process. But they actually were not directly involved in creating a super PAC to throw money into races directly until the 2022 cycle. But boy did they jump in then.

And the money comes from, I would argue, as much from Republicans and far right Republicans as it does from Democrats. And their main target has been Democratic progressives in Democratic primaries and in this particular race, I would argue because of that dynamic, and this by all measures seems to be the race in which the largest amount of money is going to come from AIPAC and AIPAC affiliated channels to oppose Jamaal Bowman. That actually what we have on our hands in New York’s 16th Congressional district is the closest election we have seen anywhere in the world to a referendum on what is transpiring right now in Israel, Gaza and Palestine.

JW: Jamaal Bowman, I see, has been endorsed by the Sierra Club, Planned Parenthood, most of the big unions and by the Working Families party, by DSA, by Jewish Voices for Peace, by Progressive Democrats of America, and of course by AOC, whose district is right next to his, and by the House Democratic leadership, I guess, mostly because he’s an incumbent. So there’s a lot more to Jamaal Bowman’s politics then his positions on America’s support for Israel’s war in Gaza.

Naomi Klein wrote about him for The New York Daily News this week. She started not with Gaza, but with the support for the Green New Deal and for the New York State follow-up program, which I learned is called the Build Public Renewables Act. Only after that did she go into his demand for a ceasefire in Gaza, which she pointed out is now supported by the majority of Americans, the majority of Democrats, and the majority of American Jews. She said 69% of Democratic voters in Bowman’s district support a ceasefire too. So he’s, broadly speaking, a leader of progressive politics and not just on Israel.

AM: Right, but here’s the big problem. He is going up against what is estimated to be certainly over $10 million dropped into his district, and many people estimate could go as high as 20 or $25 million. If it gets that high, it becomes the most expensive House race in the history of American elections—which, we should remind people, is a primary. And here’s the thing, I mean, we all, Jon, think that if we were dropped into Orwell’s 1984 or into Nazi Germany or Stalin’s Russia, that we, ourselves, would have the will to not give into the propaganda. We would see through it, we would overcome it.

What the people in New York’s 16th district are being besieged by now is an avalanche through the media and through some other channels, right? Things will be on your doorstep and such, in your mail, of propaganda that is absolutely state-of-the-art propaganda. Look, the people who are spending the money at AIPAC, sadly they have a pretty good record when it comes to winning elections. They’ve lost some high-profile ones recently. Summer Lee, yay.

But they mainly win, and they win because when they spend that money, they spend it on the best people they can hire. This is state-of-the-art, twenty-first-century propaganda, 75 years on from Goebbels and Stalin, et cetera, right? This stuff is refined. This is very market-tested, and you are going to have to overcome an avalanche of ‘why Jamaal Bowman bad,’ ‘George Latimer is just exactly the public servant we all want and have always wanted to represent us in Washington D.C.,’ and that’s going to be absolutely flooding your brain over the next few weeks if you’re in New York-16. So we have to make as strong a case as possible to every voter there as to why it is not a good idea to vote for George Latimer and yes, to vote for Jamaal Bowman.

JW: One more thing: Jamaal Bowman, while he criticizes Joe Biden’s support for Israel, he does support Biden for President. His campaign website says he voted for Biden’s proposals 94% of the time. So that suggests the way that he can be a key link to young people who are not enthusiastic about Biden and not planning to vote for him.

AM: Jamaal Bowman’s a very, very eloquent, and very capable of reaching people sometimes who otherwise may not be able to be reached because he is a very distinctive figure in American politics. He’s very personable, very human, and a former principal of a school, right? He can reach people. And so it shouldn’t be lost on people that a defeat by Jamaal Bowman will be very damaging, I believe, for the capacity of the Democratic Party to draw in people who will see his defeat as symbolic of their exclusion from the Democratic Party Coalition. So I think it’s important in that regard. If you want to defeat Donald Trump in November, you’re going to want to see Jamaal Bowman be victorious in this election on the 25th.

JW: And I want to just talk for a couple of minutes about the rest of the Squad in the primaries. You mentioned that first was Summer Lee in Pittsburgh. We thought AIPAC was going to go in against her with big money, but in the end, they decided not to and she won, arguing to mainstream Democrats that she could help turn out young voters and voters of color who are not enthusiastic for voting – about voting for Biden. Jamaal Bowman is next, June 25th. After that, we have Cori Bush in St. Louis on August 6th, and AIPAC has already announced they will be going after her.

AM: Well, great, and I do want to say this also about Jamaal Bowman. It isn’t just, again, those swing voters in working class communities of color. There’s a question as to whether progressives and young progressives in particular are swing voters in these elections. All of the members of the Squad are the most popular young politicians in the country among young progressives. To see them lose to what effectively is an operation that, yes, you listed all the people that the Democratic Party establishment has supporting Bowman, but there’s a tacit allowing of this kind of money pouring into the Democratic party and to young progressives who are very critical of the whole political system. Seeing that money defeat someone like Bowman in a primary, I believe that will be very difficult to win them back into the Democratic Party Coalition if Jamaal Bowman or Cori Bush are defeated.

JW: Finally, it’s time for Your Minnesota Moment. That’s news from my hometown of St. Paul that you won’t get from Sean Hannity. August 13th is the Minnesota primary and the most important contest there is the challenge to Ilhan Omar. It’s coming from the same guy who came pretty close to defeating her last time. He’s Don Samuels. He’s a Jamaican immigrant, a 75-year-old, former Minneapolis City council member. He came within two points of defeating her in 2022, again with a lot of AIPAC support.

Last time his big issue was crime. This was in the wake of the George Floyd protests. She had endorsed abolishing the Minneapolis police. He was against that. This year, that’s not going to work anymore, and so he has made Gaza his, initially, most important issue. He criticized the Minneapolis City Council when it passed the resolution back in January, calling for a permanent ceasefire in the Israel-Hamas war.

Ilhan Omar, of course, is one of the first members of Congress to adopt that position, but it’s an interesting sign of the times that Ilhan Omar’s opponent now calls for a ceasefire. He said, “Over time, the conflict of Israel and Palestine has become so frightening that everybody agrees it is too extreme, and I do too. We need a ceasefire.” Omar told the MinnPost that, “AIPAC has always played in my primary races, and it’s not going to be different this year.” It’s not clear yet how active AIPAC will be in that race. What’s your sense of Ilhan Omar right now?

AM: Well, I actually think that, for Ilhan Omar’s race and Cori Bush’s race, the table will be set by the result in Jamaal Bowman’s race. If Jamaal Bowman can defeat George Latimer in this race, I think it would be a game changer in a number of ways. First of all, it doesn’t speak to the general issue of defeating big money in politics, though that would be a huge victory there because nothing will have changed in terms of those relations. However, it will represent a singular defeat for AIPAC, more than any other opportunity we have right now.

And here is where this has real geopolitical significance. Everybody in the world understands that the United States of America is the country that Israel relies upon for its continuing operations, not only militarily, but also generally, even though there’s been a little bit of a warble in this over the past few weeks, which has been a good thing from the Biden administration standing in opposition to the Netanyahu position per a ceasefire, including at a UN vote recently. And the United States is the country that Israel relies upon, the most powerful institutional force that locks in place U.S. policy towards Israel is AIPAC. This is an opportunity to defeat AIPAC. If Jamaal Bowman can defeat George Latimer, have no illusions, this will create more room for Joe Biden to separate himself from Netanyahu internationally—which, by the way, I believe is essential for Joe Biden’s reelection chances.

Okay, one more thing to say, and I do want to end with this. I think everybody who is in the New York 16th has to reflect on this issue: If you are considering voting in a way that is influenced by what’s going on in Israel and Gaza, and I believe you probably are, it’s a huge issue in this election. Let me ask you this. If you are somebody who considers the welfare of Israel in terms of the whole conflagration in the Middle East—that’s not exactly my position. I try my best to prioritize the welfare of the Palestinians, and all the people in the district, equally; support self-determination for all the people.

But if that is the way that you approach it, and I know there must be many of the voters in the district are, why on earth at this hour would you vote for an AIPAC-backed candidate? AIPAC has locked in place support for a set of policies that have proved to be the most devastating for Israel and the entire history of the state of Israel.  I’m just echoing someone like Tom Friedman here who says that Netanyahu has not only been the worst prime minister in the history of Israel. He’s been the worst leader in the history of the Jews, right?

JW: Yes.

AM: If you support the welfare of the state of Israel, which I know many voters in the district do, I would say a vote for George Latimer is a vote against the best interest of Israel.

JW: Alan Minsky – he’s Executive Director of Progressive Democrats of America. Alan, thanks for talking with us today.

AM: Thank you so much, Jon.

Jon Wiener: When the Supreme Court abolished the constitutional right to abortion, the right-wing majority there said they’d leave it up to the states. You remember what happened then. Activists immediately started proposing amendments to state constitutions to provide the protection denied by the court in Washington. Thus far, they’ve won every referendum. And abortion isn’t the only right which, in some states, goes beyond the Supreme Court and the US Constitution. For that story, we turn to Eyal Press. He’s a contributing editor at The Nation. His work has also appeared in The Atlantic, The New Yorker, and on The New York Times Op-Ed page. He’s a Puffin Foundation writing fellow at The Type Media Center, and author of the unforgettable book, Dirty Work. We talked about it here. And his new article on State Supreme Courts appears in The New Yorker magazine for June 10th. Eyal Press, welcome back.

Eyal Press: Thank you so much, Jon.

JW: Abortion rights, of course, have the highest profile in news about state constitutions. In the two years since Roe was repealed, four states have added abortion protection to their constitutions. And this year, there will be referenda on the ballot to add a right to abortion to the state constitutions of Florida, probably Arizona, and several other states. The referenda on abortion rights amendments in key states have brought key victories for Democratic candidates in midterm elections, not just in blue states, but especially in swing states and red states. In many ways, sending the abortion issue to the states, while it was terrible for women in the red states, has been one of the best things that’s happened to the Democratic Party in a long time. But this focus on the states, of course, as a response to the larger change at the Supreme Court, maybe you heard about that, since Trump added three right-wing justices, the court now has a solid Republican majority. How long do you think that’s going to last?

EP: Well, your guess is as good as mine, but I would say we can safely assume that the conservative majority on the Supreme Court will be there for years, if not decades. And what that means is that, on an array of issues, you mentioned abortion, but we can expand that to other rights, voting rights, the rights of criminal defendants, the rights of incarcerated people, the rights of Americans to breathe clean air and to have environmental protections, what one sees is a federal judiciary that is hostile. So what do you do? That’s what my article is about.

JW: I learned from your article that in many ways the biggest area of state rather than federal jurisdiction is in criminal law. You report that 90 percent of people confined in US prisons were sentenced under state laws, 90 percent. That means the focus of most criminal justice reform efforts has to be on the states. The Bill of Rights to the US Constitution includes, of course, the 8th Amendment prohibiting “cruel and unusual punishment.” But this, in the federal court, has turned out to be a high bar. In your New Yorker piece, you report that the constitution of Wyoming of all places, along with several other states, contains an analog to that–with a small but potentially important textual difference. Please explain.

EP: Yeah. Wyoming’s constitution, like that of Massachusetts and a couple of other states, bans “cruel or unusual punishment.” And what criminal justice reformers are doing now is bringing cases in state courts to say, “Let’s use that provision to go after excessive punishments in this country.”
And just to put it in context, the particular cases I write about in my story are life without parole sentences for young adults. These are people who are 19, 20 years old when they committed their crimes. And in the United States, mandatory life without parole is barred for juveniles, for people who are younger than 18 when they committed their crimes. In most of the Western world, life without parole is unheard of for anybody, not just for people who are under 18, for anybody. In fact, there are more people in the United States serving these sentences, what reformers call “death in prison” sentences, than in the rest of the world combined. And so what criminal justice reformers are doing is they’re going to states like Washington, like Massachusetts, and yes, like Wyoming, a conservative state, and bringing cases on behalf of people who were given life without parole sentences when they were 19 and saying, “Let’s expand the protections. Let’s use the 8th Amendment analog in the state constitution to expand protections and to get these folks recent missing hearings.” And in several states, that succeeded.

JW: Another key area: the words “right to vote” did not appear anywhere in the Constitution of 1789. That was intentional. The Founding Fathers didn’t think there was a right to vote. They didn’t want everyone to have the right to vote. That phrase, “right to vote” was added only after the Civil War in a limited context where in the 15th Amendment, which guarantees “the right of citizens to vote shall not be denied or abridged on account of race.” I learned from your piece that 49 states have stronger protection for voting rights than the US Constitution does, 49 out of 50. Tell us about that.

EP: That story of the fact that the right to vote is recognized in state constitutions is part of what I thought was the most fascinating difference between state constitutions and the US Constitution, federal constitution, which is that the state constitutions tend to be infused by what Miriam Seifter, a legal scholar in Wisconsin, calls “the democracy principle.” That is the idea that popular sovereignty should prevail, that equal participation in the political system is something that is fundamental to our society and to the rights of citizens in these states. And so you have very explicit assurances of the right to vote and to suffrage and to political participation in a lot of state constitutions.

One of those states is Montana. There was a challenge to voting rights restrictions that Native Americans in Montana felt disproportionately impacted them. It was brought under the state constitution. In federal court and with the US Supreme Court, which has watered down voting rights so much right now and is very hostile to voting rights, generally speaking, you will only get the federal courts to do anything about a law that severely burdens the right to vote. Well, that’s not what the Montana Supreme Court decided. They decided that a law that impermissibly interferes with the right to vote, as these restrictions did, as these laws did, is enough to violate the state constitution. And so you have this language that is a potential tool for people to say, “Okay, we’re not going to win taking voting rights cases right now to the Supreme Court. We’re going to lose potentially. We might even get rolled back even further. What can we do? Well, we can bring cases in state courts to expand this right.”

JW: Another fascinating area: public education. There is no right to education in the federal constitution, but I learned from your piece there is that right in several state constitutions?

EP: In fact, there is that right in every state constitution. It’s phrased differently in different states. Some are quite explicit about the access to a free public education. Others use different language. I had known about a Supreme Court decision. It was a Texas case actually, where a very poorly funded district, there was a lawsuit filed from parents in that district basically saying, “The district next to ours, which is wealthy, has better schools. This is unconstitutional. Something should be done about this.” And the Supreme Court said, “No, we can’t really remedy that. There’s nothing unconstitutional about this arrangement.” Well, what happened after that ruling is that cases were brought in State Supreme Courts, including in Texas, and they have won in the plaintiffs in many of these cases. In fact, that original Texas case, that poor district that brought the case is by, I think, 15 years after the original Supreme Court case was actually had gotten a remedy and was getting more funding per pupil than the wealthy district next to it. And this was purely because of the state court’s intervention.

JW: The most surprising one to me in your piece is the right to a clean and healthful environment. It turns out two states have that right protected by their state constitution.

EP: Yes. One of the other key differences, aside from democracy principle, one of the big differences between state constitutions and the US federal constitution is that they’re easier to amend. And you mentioned the amendments that are pending on abortion. Many of them have been written and rewritten in more recent times. So in one of those states, Montana, which rewrote its constitution in 1972. And inspired by the environmental movement, works of Rachel Carson, the first Earth Day had just happened, they include language in their constitution that people have a right to a clean and helpful environment. Well, that becomes important very recently because there was a lawsuit brought by 18 Montana youth claiming that fossil fuel emissions green-lighted by the State Environmental Commission were imperiling their right to a clean and helpful environment and to a future basically of being able to live in the state. And they won that case.

And again, you can see just a very stark contrast with what’s happening in federal courts, which are tossing out these lawsuits saying, “No, no, no, the Clean Air Act should be limited. The Supreme Court, of course, has issued several rulings that have rolled back environmental protections.” So in the face of this, the room to really get a hearing is happening in places like Montana and also Hawaii, which is another state that has that language in its constitution.

JW: We’ve been talking about how, in many ways, liberal and progressive groups have expanded constitutional protections in state constitutions beyond what’s in the federal constitution. But don’t we also have to worry about conservative and right-wing groups using state constitutions to deny rights? Abortion, of course, is a starting point for everything these days. Five State Supreme Courts have held there’s no right to abortion in their state constitutions. And the other big area of litigation in states right now is gerrymandering and reapportionment, where we haven’t had a lot of success. So what about right-wing efforts to use state constitutions to restrict or deny rights?

EP: Absolutely. That is a danger. And by the way, if we go back historically, as you know, federalism and states, “states’ rights,” was a dirty word, was a dirty term to progressives throughout the latter half of the 20th century because it was a cover for Jim Crow. You had an era where the Warren Court was issuing rulings to invalidate state laws that sanctioned racial discrimination in various forms. If we fast-forward now, what we do have is some states where Republicans have pushed very hard to either stack State Supreme Courts or exert control over them and turn the elections to the State Supreme Court into a partisan battle and use a lot of dark money to judges who will roll back rights or who will ban abortion and do other things that are ideologically and do gerrymandering and other things.
So it’s not an instant cure for what ails the current Supreme Court, but that old story of thinking of state courts as this kind of backwater and where only regressive things happen and of the federal courts as the progressive light that has to be thrown on these backwards places, that paradigm doesn’t apply anymore. It doesn’t apply by the way to the story, of course, of marriage equality. Same-sex marriage is a very vivid example of how the Supreme Court lagged behind state courts in Vermont, in Massachusetts, in other places that issued rulings saying, “Look, our state constitution does not sanction this form of denying a right to a same-sex couple that is given to a couple of a different sex.” The Supreme Court ruled on that in 2015, 12 years after the Massachusetts Supreme Court legalized same-sex marriage.

JW: You mentioned elections of State Supreme Court justices. This is a key area. It turns out almost all State Supreme Court justices are elected one way or another. Either they’re appointees who are subject to yes-or-no referenda, or they face election contests where conservatives and liberals fight for their candidates. The biggest one, just to remind our listeners, last year, was in Wisconsin where $50 million was spent on the campaign for one State Supreme Court seat. Liberals won that one. We all learned to pronounce the name Janet Protasiewicz. And we now have a liberal majority on that court, which then promptly struck down the previous legislative maps and ended 12 years of extreme partisan gerrymandering in the Wisconsin state legislature.
This year, 33 states will hold elections for their highest courts. Eighty State Supreme Court justice seats will be on the ballot in November. This includes Michigan, Ohio, Montana, lots of important states. Some justices will run against opponents, other incumbent justices face yes-or-no retention votes. Usually, these retention votes are pro forma ignored by the media.
This year, Arizona has a key contest where two justices on the ballot in November sided with the majority that decided in favor of the state’s near total abortion ban from 1864. There’s a group called Progress Arizona that’s campaigning to vote them out. If voters decide not to retain a justice in Arizona, the governor names a replacement. And for the first time in decades, Arizona has a Democratic governor, Katie Hobbs. And Arizona, as I said earlier, is also very likely to have a proposed constitutional amendment to protect abortion rights on the ballot, and that should bring more voters to the polls.

So all this is evidence of a larger thing you referred to briefly, state constitutions and State Supreme Courts tend to be much more democratic with a small D democratic than the Federal Court and the Supreme Court in DC. You can change state constitutions, you can change State Supreme Court justices. Now, some scholars argue it’s too easy to change state constitutions and replace State Supreme Court justices. We need more obstacles and restrictions and protections for unpopular rights and issues. What do you think?

EP: I think that the fact that you can, as a citizen, go and vote for a justice in a state whose values you think align with yours at this particular moment in American history, is extremely important, and also underscores the fact that State Supreme Courts and state constitutions are more open to the voice of the people.  That is a source of, I think, optimism and hope about what kind of country we have.  Because t the Supreme Court, the US Supreme Court, is, as I said at the outset, that this six to three conservative majority is not going away anytime soon. It could get worse. This is an institution designed to be insulated from the people, and yet it has incredible power to impose these decisions on all 50 states.

And so I think that the fact that, at the state level, citizens can organize as they did in Wisconsin to get a Supreme Court aligned with their values to end partisan gerrymandering there, to issue new maps for the Wisconsin legislature. That is a hopeful sign. The fact that citizens in Montana can win a case and get voting rights protected in an era when the Supreme Court is shredding voting rights, the fact that criminal justice reformers can go to a state like Massachusetts or Pennsylvania or Michigan or even Wyoming and hopefully expand protections guaranteed in the 8th Amendment beyond what the current Supreme Court sees the 8th Amendment doing, it should make people on the left think, again, about judicial federalism. This is not a right-wing concept. This is a concept that actually has some hope, I think, for people who value those rights.

JW: “A source of optimism and hope about what kind of a country we have” — Eyal Press.  His article “Can State Supreme Courts Preserve or Expand Rights?” appears in the June 10th issue of The New Yorker.  Eyal, thanks for talking with us today.

EP: Thanks so much, Jon. Great to be here.

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Jon Wiener

Jon Wiener is a contributing editor of The Nation and co-author (with Mike Davis) of Set the Night on Fire: L.A. in the Sixties.

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