Podcast / Start Making Sense / Jul 10, 2024

Our Failing President, and Our Right-Wing Court

On this episode of Start Making Sense, John Nichols on Biden, and David Cole on the court’s big 6-3 decisions.

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.

Our Failing President, and Our Right-Wing Court | Start Making Sense
byThe Nation Magazine

On this episode of Start Making Sense, John Nichols on Biden, and David Cole on the Court’s big 6-3 decisions. Biden’s efforts to renew his candidacy are “risk-averse, uninspired, and dangerously misguided” – that’s what John Nichols says, as we review the efforts to persuade him to drop out of the race.

Also: During the Supreme Court term that just ended, the conservative majority granted new constitutional rights to hedge fund managers, big business—and Donald Trump. David Cole explains the shocking decisions that have transformed our government.

Finally, Jane McAlevey died Sunday–she was The Nation's strikes correspondent, and one of our best.

Advertising Inquiries: https://redcircle.com/brands

Privacy & Opt-Out: https://redcircle.com/privacy

President Biden delivers remarks on the Supreme Court’s immunity ruling at the Cross Hall of the White House in Washington, DC, on July 1, 2024.

(Mandel Ngan / AFP / Getty Images)

Biden’s efforts to renew his candidacy are “risk-averse, uninspired, and dangerously misguided”—that’s what John Nichols says. He joins us on the podcast to review the efforts to persuade the president to drop out of the race.

Also on this episode: During the Supreme Court term that just ended, the conservative majority granted new constitutional rights to hedge fund managers, big business—and Donald Trump. David Cole explains the shocking decisions that have transformed our government.

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.

Our Failing President, and Our Right-Wing Court | Start Making Sense
byThe Nation Magazine

On this episode of Start Making Sense, John Nichols on Biden, and David Cole on the Court’s big 6-3 decisions. Biden’s efforts to renew his candidacy are “risk-averse, uninspired, and dangerously misguided” – that’s what John Nichols says, as we review the efforts to persuade him to drop out of the race.

Also: During the Supreme Court term that just ended, the conservative majority granted new constitutional rights to hedge fund managers, big business—and Donald Trump. David Cole explains the shocking decisions that have transformed our government.

Finally, Jane McAlevey died Sunday–she was The Nation's strikes correspondent, and one of our best.

Advertising Inquiries: https://redcircle.com/brands

Privacy & Opt-Out: https://redcircle.com/privacy

Jon Wiener: From The Nation podcast, this is Start Making Sense.  I’m Jon Wiener. Later in the show: The Supreme Court in the term just ended granted new constitutional rights to hedge fund managers, big business—and Donald Trump.  David Cole has our analysis. But first – our failing president.  John Nichols will comment, in a minute.
Where do we stand with Joe Biden – today?  For comment and analysis, we turn to John Nichols. Of course, he’s national affairs correspondent for The Nation. John, welcome back.

John Nichols: Pleasure to be with you, Jon.

JW: We’re taping on Tuesday, July 8th. More elected Democrats have been saying Biden needs to step down. House Democrats met today. Biden has been angry and defiant this week. On MSNBC, he said, “Go ahead, announce for president. Challenge me at the convention.” On Monday, AOC endorsed Biden staying in. She said, “He is in this race, the matter is closed.” And Bernie also pretty much endorsed Biden staying in on Monday, and Gretchen Whitmer announced she would not run even if Biden stepped aside. What do you make of these developments?

JN: Well, if we step back and look at it from 30,000 feet, it’s not good. When you’re in the midst of a presidential race and you’re a matter of weeks away from your convention and there’s an open dialogue where people have to step up and say whether they want you to be the nominee or not, it’s a bad situation by any measure. And I think that we have to always keep that perspective because if we follow things from day to day and we say, oh, well, maybe today it’s leaning a little bit more toward Biden staying in, tomorrow maybe it’s leaning a little out, whatever, we lose sight of the fact that this is a bizarre circumstance. We have what was looking like a kind of set in stone presidential race between Joe Biden, current president, and his predecessor, Donald Trump, both of them basically controlling their parties ready to go, and then suddenly they have a debate and it’s all thrown up for grabs.
That tells you a lot about the instability that is beneath this campaign in general. I think it’s raised exceptionally serious issues for Biden because while he may, and I think it’s a very good chance he will survive this current debate about whether he should be the candidate, there is every possibility that a development later this week or next week or at some point could reopen the discussion. And I think that when I talked to Democrats, both Democrats who are on Biden’s side, want him to stay in, and those who want him to get out, the one thing they kind of agree on is that’s what they fear. That Biden decides to stay in, and then things blow up again at a point where they can’t get the off ramp. Effectively, we’re at the last off ramp.

JW: I want to review how Biden has been doing since that disastrous debate. How much has he persuaded people that he’s in good shape and will be a strong and compelling candidate? You went to his recent campaign rally in Madison, which was right after that disastrous debate performance. Tell us what you concluded.

JN: I found it to be an unsettling event, and the only way to put it in perspective is to talk about what happened a dozen years ago when Barack Obama had a lousy debate. 2012, he debated Mitt Romney, the first debate of that presidential race. It was Obama’s reelection run, and it was pretty much universally agreed that Romney won the debate, but also at the same time that Obama lost the debate.

JW: I remember. Obama was bad.

JN: Yeah. And there was this concern that kind of Romney’s on the rise, Obama’s not doing so good. And then the next day after the debate, Obama flies to Madison, Wisconsin. The Democratic heartland, the stronghold, the place that they have to weigh the Democratic votes, there are so many of them. And he does a rally, relatively hastily organized rally on Bascom Hill by the University of Wisconsin, and they thought they’d have a good crowd. They got 30,000 people. I mean, it was just a mass of people. Obama takes that stage, tells a joke, which is a very good joke actually. He says, “Had a weird experience the other night. I was on stage, and I ran into this guy, this very spirited guy who claimed to be Mitt Romney.” And so everybody laughed because blah, blah, blah, and that was it. I mean, Obama had the crowd there. He delivered a long but fun and engaging, powerful speech, and I think it really shifted the tenor of the race.
Fast-forward to 2024, Biden has a much worse debate performance. And then after a week, not immediately, but after a week, he flies to Madison, and they had plenty of time to organize a big rally. Instead, they do a rally at Sherman Middle School. And I mean, it’s a little middle school in a neighborhood, and they do it in the gym where one mom whose kids go to school told me, “Yeah, the last big thing we had here was the choir concert.” And then within this little, tiny gymnasium, they set up a press stand that takes up pretty much half the space. Then they got a stage that takes up a good quarter to the space so that the room for actual people is tiny. There’s about maybe 300 people if that, and they were all party stalwarts. There were people who literally, these weren’t even activists.
These were like county chairs and delegates to conventions and things like that. This was the hardcore, and so it was such a stage-managed event, and it was the opposite of the Obama event. The Obama event was stage-managed to some extent, but it was big and robust, and it was taking risks, trying everything to shift the tenor of the campaign. This looked like what it was. A staged event to try and present Biden as dynamic as you could. Biden gave a decent speech. It wasn’t bad, but it was only 17 minutes, and at one point he looked away from the teleprompter and kind of lost his stream and then came back over to it. And it wasn’t horrible. If you hadn’t had the debate, you would’ve thought it was fine. But it wasn’t sufficient to undo the damage.
And then he turns around moments later and does this debate or does this interview with George Stephanopoulos, which frankly was, I think, on most levels disappointing.

JW: So you wrote in The Nation that Biden’s efforts to renew his candidacy have been risk averse, uninspired, and dangerously misguided. Our basic problem here is summed up in that recent CBS YouGov poll. 72% of registered voters say Biden does not have the “mental and cognitive health to serve as president.” 49% said Trump didn’t either. And another poll, The New York Times Siena College poll, one of the best polls last week showed pretty much the same thing. 74% of voters said Biden was too old to be effective, including almost 60% of Democrats. And I’ve heard reports from groups that are doing door-to-door work now. They say the only thing people want to talk about is Biden’s mental state. They don’t want to hear about the issues. They don’t want to talk about Trump. So it seems like a lot of people want to vote against Trump. Seems like a majority, but they are reluctant to vote for Biden, and that’s where things are right now.

JN: Yeah, and they may not even be reluctant to vote for Biden. I think that when you got down to an actual election, as the polls tell us, Biden would continue to hold a very substantial amount of the vote. What’s fascinating is that when you look at polling data that shows that only about 21, 22% of people think that Biden’s up for the job, he still often in those same polls will pull 45, 46% of the vote. So a lot of people are saying even if he’s got challenges, going to vote for him. Separate and apart from the debate about whether Biden should run as the Democratic nominee. Put aside the whole debate about whether he should stay in or get out, there is this next challenge, which is that the Biden camp, should he go forward with a campaign as he seems to intend to do.
The Biden camp has been so shellshocked, so overwhelmed by this that they are hyper-cautious. They are scared about everything that happens, and they’re hyper-cautious with him. They’re doing these small events, they’re trying to stage-manage even interviews, giving radio shows prepared questions to ask him and stuff like that. It’s just too much. It’s too controlled, and you can’t win a vital dynamic presidential race with so controlled a campaign. If Biden’s going to stay in, they need a complete retooling of his campaign. It’s got to be different. And if they don’t think he’s up for that, well then that should influence the decision making. It is a recipe for disaster, and it holds out the possibility that you keep Biden the race and he does okay, but not sufficiently well to beat Trump and frankly to make sure that Democrats hold the Senate and the House.

JW: The obvious question is, is there a candidate who could do better than Biden? And the first person in line of course is the vice president, Kamala Harris. People are saying if it’s not going to be him, it pretty much has to be her or it should be her, or it needs to be her because the risk of rejecting the elected vice president are greater than the possible benefits. And her polls are pretty good. The CNN poll has her losing to Trump right now by two, while Biden would lose by six. 43% of independents say they support Harris over Trump versus only 34 for Biden. But other people say, we need an open contest. You wrote last week quoting James Zogby, who served on the Democratic National Committee for decades, saying that if Biden can be persuaded to stand down, the DNC can establish a transparent, fair process to choose its nominee. Do you still think that’s true?

JN: I think all of this and more. I have interviewed the vice president three times over the last couple of years at some length and spoken to her in different settings about different issues. She is, A, she gets better and better in my view as a communicator and stronger and stronger in her grasp of everything that’s going on. She came in strong. I mean, I may not have always agreed with her, but I always thought she was a very, very strong figure. Her Senate tenure was especially, I thought, effective, but I really think she’s up to it. If she’s the person that they’re going to put in there, I think she has the benefits of having been the vice president, and that’s so good. By the same token, I think she would also benefit, if you were in a situation where you’re going to replace Biden, I think she would benefit by an open process because I think she’d win it.
If Biden were to stand down, she’d be the front-runner. I think she would be the logical person to put into this position. By the same token, if there’s a little bit of a process, a little bit of openness and say, well, if somebody else wants to try for this, that’s fine. I think she’d still win it and maybe might even come out stronger in that setting. That’s what Zogby, that’s Zogby’s suggestion. So I guess when we boil it all down, Jon, it comes to this.
Should Biden stand down? The likelihood is that no matter what the process might be, Kamala Harris would be the Democratic nominee. And then the great question becomes, who would her running mate be, and how would the platform, the agenda, the focus, the program of the party going forward, subtly shift to address not just a personnel shift moving from Biden to Harris, but also a recognition that the campaign at this point isn’t doing all that well and that you do need to do more, right? You need a boost. I do think that that could generate a great deal of excitement within the Democratic Party.

JW: Well, we wonder who can tell Biden that he has to change his mind and agree to step aside. A lot of people say it has to be Obama and Bill Clinton and Nancy Pelosi and Chuck Schumer. We really don’t know what they have said privately. We hope they’re already telling him, but this really shouldn’t become public knowledge because it should be his decision. He should announce, “I have decided.” Not, “I’m being pressured to do this.” And it seems to me if Bill Clinton or Nancy Pelosi or Chuck Schumer publicly come out saying he has to step down, that will mean their private efforts have failed and that will be a bad sign, I speculate. What do you think?

JN: You speculate well, Jon. Here’s the complexity of it. You know who should tell Joe Biden whether he should stand down or shouldn’t? Some county party leader in New Jersey. Now, New Jersey is a Democratic state, yet there’s been some polling of late that shows that after the debate, it might actually be competitive. If Democrats who are kind of at the grassroots around the country were kind of bubbling up through this process, I’d be much more interested in hearing what they say than what Schumer or any of these, Pelosi or any of these other people say. Because the fact of the matter is it’s that county party chair in New Jersey or the county, the precinct captain in Wisconsin or whoever. These are the people that are going to have to actually pull Biden across the line. And I think it would benefit Biden tremendously to spend a lot more time not giving speeches but doing round tables and town halls across the country with Democrats.
He doesn’t have to, it doesn’t have to be the expanded campaign at this point. But literally going out among partisans and saying, having honest dialogue. “What do you think?” And I know that that’s not where the Biden people tend to be and where political parties tend to be at this point because it’s risky. You do potentially face someone who says, “I think you should quit.” But you see, that’s where you sort it out. You either shine or you don’t. And if you shine, if somebody says, “I think you should quit,” and you say, “I think I shouldn’t, and here’s why,” and you really nail it, then you’ve strengthened yourself greatly, and also, I think gotten the perspective. So yeah, everybody’s got a solution for this thing. My solution would be hit the road. Travel.

JW: Last question – how much time do you think we have?

JN: Well, we’ve got to the convention. And it would not be the first time in history that a convention, you went in one way and you came out another way. But I will tell you, Jon, if we wait that long, it will be total emergency. It’s the complete crisis mode. The ideal situation for Democrats would be for Biden to get this really well sorted out by the time the Republican Convention is done. Because remember, the Republicans are going to steal the limelight for a week, right?

JW: Next week. It’s next week.

JN: And once they’re done, the attention’s going to come back toward Biden. At that point, if Biden’s got things sorted out, he’s got the party with him and he’s pretty well focused on this and they’ve got a plan, then I think you’re headed forward. If they don’t at that point, we run the risk of kind of re-upping this whole conversation. There’s a narrow window here for everybody to talk a little more, for everybody to sort this out; B because not that many people – if Biden’s press conference on Thursday goes well, et cetera – not that many people are going to be paying attention to the Democrats. They’re going to briefly be paying attention to how crazy the Republicans are.

JW: John Nichols – read him at thenation.com. John, thanks for talking with us today.

JN: It’s a great pleasure to be with you.

Jon Wiener: The Supreme Court made history in its 2024 term, and not the good kind. For our review of their actions, we turn to David Cole. He’s National Legal Director of the ACLU, and he’s on the faculty at Georgetown Law School where he’s the Honorable George J. Mitchell Professor in Law and Public Policy. He writes for The New York Times, The Washington Post, and The New York Review, where he recently analyzed the Supreme Court decisions in the term that just ended. And he’s legal affairs correspondent for The Nation. David Cole, welcome back.

David Cole: Always a pleasure to be here, Jon.

JW: We know there was a lot of terrible news in the last days of this year’s Supreme Court term. Tell us the headline here.

DC: I think the headline here is that this is a term in which the court granted new constitutional rights to hedge fund managers, big business, and former President Trump, while turning away constitutional protections for the homeless who are being locked up for sleeping in public, where they have nowhere to go; to Black voters in South Carolina who were racially gerrymandered into a particular district to serve Republican ends; and an American citizen who was denied any rights whatsoever with respect to the denial of a visa to her husband and the father of her child.

JW: Who were non-citizens.

DC: Who were non-citizens, yep.

JW: And was there any good news this term that we could start with?

DC: I think it’s important to keep the big picture in mind, which is unfortunately a bad news picture. It really is sort of the opposite of what the Supreme Court is supposed to do. I mean, we give unelected judges this, the power that they have in our otherwise democratic Republic so that they can protect those who can’t protect themselves through the political process. And instead, we have a court that seems to be protecting the powerful and turning away the powerless.
On the good news front, I think the principal area of good news, affirmative good news, is in the area of the First Amendment in free speech and somewhat good news in the area of abortions. So on the First Amendment, the court had a lot of First Amendment cases this term. It had two cases on whether states could control the content of social media platforms because they think those social media platforms are biased. Texas and Florida had each enacted laws doing that. The Supreme Court essentially said, “No, you can’t.” The social media platforms are like newspapers or bookstores. They choose what they post and they can choose not to post things if they don’t like their viewpoint and the government can’t try to control that.
In a case that I argued on behalf of the NRA, as the legal director of the ACLU representing our sometime nemesis, the NRA, the court ruled that the New York Attorney General and Governor Cuomo and his top financial regulator, Maria Vullo, had violated the NRA’s First Amendment rights by essentially seeking to coerce banks and insurance companies that they controlled if the state controlled into blacklisting the NRA. A pretty good term in terms of free speech rights at the court.

JW: Of all the big decisions the court made this term, of course the most shocking was Trump’s case claiming that he had absolute immunity from criminal prosecution for his actions as president, starting with his actions around the January 6th attack on the Capitol and the attempt to prevent the certification of Joe Biden as the president-elect.
That case had the wonderful name, Trump v. United States. It’s an issue that’s come up before in our politics. Nixon of course said, “If the president does it, it’s not a crime.” But then Gerald Ford pardoned Nixon because everyone assumed Nixon otherwise would’ve faced prosecution for his involvement in the crimes of Watergate. And more recently, Mitch McConnell after the Trump impeachment trial said, “Trump is still liable for everything he did while in office. We have a criminal justice system in this country, we have civil litigation and former presidents are not immune from being held accountable by either one.” Mitch McConnell.
And the arguments made by Trump’s lawyers seem absurd to most of us. The famous question was asked of them, “Could the president really order SEAL Team Six to assassinate a political rival?” But the conservative majority didn’t think Trump’s arguments were absurd. Tell us about Trump v. United States.

DC: Yeah, very disappointing decision here. Ordinarily, when the court faces these big questions of presidential power, very sort of political and the like, they try to rise above partisan politics to find some common ground and speak with one voice, or at least not along partisan lines. That’s what they did at the Nixon cases, for example, back in the ’70s. But here the court divided exactly along partisan lines. The purportedly originalist justices created out of whole cloth a brand new immunity that had never before even been asserted by any president or former president. And the fact that Nixon accepted the pardon that Ford gave him, he had to formally accept the pardon, meant that he understood that he could be criminally prosecuted for things he did as president. Every president from George Washington on has assumed that they could be criminally prosecuted if they engaged in criminal conduct while in office.
The line that the executive branch has always drawn is presidents can’t be criminally prosecuted while they’re in office because we have an impeachment process for that. And otherwise, you could even give a jury the power to remove a president who we’ve elected from office. But once they have left office, the position always was, of course they could be prosecuted. And Trump’s lawyers themselves took this position in the impeachment proceedings. They said, “Don’t impeach us.” And essentially what Mitch McConnell said, “You can prosecute after the fact.” Well then, they did prosecute after the fact and Trump reversed his prior position and now asserted that he had this immunity. And the court again created out of whole cloth. And essentially what they said was, “There’s such a risk that presidents will be chilled by the prospect of being prosecuted after they leave office, that they won’t be able to do their jobs. And therefore, we have to cloak them in this immunity that allows them to send Navy SEAL Team Six to assassinate their political enemies and get away with it.”
The problem with that argument, other than it seems farcical, is that every president has assumed this risk. No president has thought, “Oh, I can commit a crime and I’m going to be let off Scot-free.” And yet I think if you look at the – you’re a historian, you look at the history of American presidents, it is not a history of timidity, of hiding in a closet and not wanting to engage in righteous action on behalf of the United States people. Quite the contrary. So it really is a very, very disturbing decision and essentially says presidents are not immune for private acts, personal acts, but are immune for official acts. And then it defines official acts, very, very capaciously, so that for all practical purposes, it’s going to be very difficult to hold President Trump accountable. And every future president is going to know, “I can commit a crime with my official powers, and I cannot be prosecuted for it.”

JW: The next really bad one was the one voting rights case they took up this term, racial gerrymandering in South Carolina. Tell us about that one.

DC: Yeah, that was our case. ACLU did that case with the Legal Defense Fund and a firm Arnold & Porter. Every 10 years when they do the census, you have to readjust your district lines to make sure that each district, each congressional district in the state has roughly the same number of people. And from 2010 to 2020 people had moved. And so South Carolina had one district that had 88,000 too many people and another district that had 88,000 too few people and they were adjoining districts.
So it doesn’t take a math whiz to figure out how you would fix that problem. You move 88 from the one that has too many to the one that has too few and you’re done. But did they do that? No. Instead, they have ultimately moved over 200,000 voters in and out of the two districts, disproportionately moved Black districts and ultimately came up with a 17% Black voting population in the district that they want to ensure would be a Republican district. And they had reason to believe that if you keep the Black voting population at 17% or lower, it’ll be a safe Republican district. If it’s any higher than that, there’s a real risk that a Democrat might actually have a chance of winning and Black voters might actually have a chance of electing someone of their choice.
The courts below held unanimously that this was racial gerrymandering. They had race, the map makers had race data on their screen as they were adjusting the lines. But the Supreme Court reversed and essentially said, “Anytime that there are politics and race overlapping, we should assume the good faith of the legislature. Meaning we should assume that they’re only interested in partisan advantage,” which I wouldn’t think is good faith to begin with. But you cannot assume – there’s a strong assumption that it’s partisan, not racial even where, as happened here, the court that heard all the evidence, heard the testimony of the map makers found them to be incredible when they said they weren’t looking at race when it was right there on their screen and they came up with this 17% end goal and moved 140,000 extra people.
The Supreme Court says, “Nope, we don’t think it’s racial gerrymandering. We have to presume the good faith of the legislature.” And so they’ve made it extremely difficult to bring racial gerrymandering claims and to protect voters from race discrimination in the drawing of lines going forward.

JW: We record our show in Los Angeles, where tens of thousands of homeless people sleep outside in the streets every night. And that’s of course because they have nowhere else to go. And it’s not a crime to be homeless. Seems like it would be cruel and unusual to make it a crime to sleep in public. At least that’s what we thought. But the Supreme Court majority didn’t agree with us.

DC: That’s right. And lower courts and particularly the Ninth Circuit had said exactly what you’re saying, that they relied on a case from California from the ’60s, I believe, in which the court held that a California law that made it a crime to be addicted to narcotics was cruel and unusual because it criminalized the status of being an addict. Not conduct, but the status of being an addict.
And so the courts in California, the Ninth Circuit in particular have ruled that when you punish a person, a homeless person for sleeping in public, if they have nowhere else to go, there are no shelters available to them, that is their status. The fact of being homeless means you have to sleep in public because you have nowhere else to sleep. And so if you’re punishing someone for sleeping in public because where they have nowhere else to go, you are effectively punishing them for their status. The Supreme Court said, “No, it’s not a punishment of status. It’s a punishment of conduct. The conduct is sleeping.” As justice Sotomayor said, sleeping is a biological necessity. It is not a crime, but not to the six Republican justices who voted in the majority.

JW: The Trump immunity case was the most shocking decision. But you say the court’s most consequential decisions concerned the executive agencies that govern so much of our lives. They regulate financial markets, healthcare, energy, the public airwaves, the environment, the workplace. Ever since the New Deal, we’ve thought that governing would be impossible without these agencies. And ever since the New Deal, Republicans been opposed to regulations, they call it big government. And all Republican candidates since the New Deal have run as opponents of regulations or promising to reduce regulations. But since the New Deal, no Republican Supreme Court justices have gone as far as the six did this year. Tell us about what they did.

DC: So yeah, this has been a long-term strategy of business interests of the Federalist Society of the Conservative right, and that is to weaken the administrative state, the federal agencies that protect us. They’ve done a number of things over the years to do that. They went very far this year to do that. First, they ruled in a case called Jarkesy v. Securities and Exchange Commission that the SEC cannot impose fines on hedge fund managers or others who violate securities fraud regulations without taking them to federal court, giving them the right to a jury and the like. That overturns about 200 statutes, which give federal agencies the power to fine those who violate the rules that they set out. All those agencies now have to go to federal court. And many of those agencies don’t even have statutory authority to go to federal court. So Congress will have to give them the statutory authority to go to federal court, and according to federal court obviously costs a lot more. And what that means is there will be less enforcement of the rules, even where people violate them.
Then in a case called Loper Bright, the Supreme Court overturned a 40-year-old precedent called Chevron, which essentially said that when a statute is ambiguous, Congress is presumed to afford the agency that enforces the statute, the power to fill the gaps, to interpret the ambiguity because the agency understands the scope of the problem, the agency has the expertise, et cetera, et cetera, et cetera. And courts had for 40 years said, “That’s right. And therefore, as long as the agency adopts a reasonable interpretation, we should uphold it.” No longer. Now the court decides what the statute means. The instances in which this arises often involve very technical questions that the justices on the court or federal judges have absolutely zero expertise in.

JW: You pointed to the example cited by Justice Elena Kagan in her dissent – I believe it was about squirrels.

DC: That’s right. The question was, is a particular kind of a squirrel, a distinct species, therefore covered by the Endangered Species Act? And Justice Kagan said, “Now, do you really want a federal judge to decide that question or would you like the Fish and Wildlife Service who actually study squirrels have the expertise to understand all the factors that go into what constitutes a distinct species to take a first crack at it?” Now the Supreme Court will be deciding which squirrels are distinct and which are not irrespective of what the Fish and Wildlife Service says.
And then on the very last day of the term, as we’re all waiting for the Trump immunity decision to come out, they slip in a technical case about when the statute of limitations begins to run to challenge an agency regulation. And they basically said, “Not when the regulation is published, but whenever it takes effect on any entity or individual.” What that means as a practical matter is that every agency regulation out there is open season. Even if it was passed 50 years ago, 60 years ago, 70 years ago, all one needs to do to challenge it is incorporate a business that is affected by the regulation and you can bring a new challenge. And now you can invoke that Loper Bright standard that says, “Don’t be deferential to the agency.” And so business interests, the Chambers of Commerce, the Koch brothers are going to be going to town on challenging agency regulations across the board.
And these are, yes, sometimes we certainly have too much regulation in certain areas, but many things in our lives are public goods that require public regulation, the environment being top of the list. And it’s going to be much, much more difficult for the EPA to protect the environment now than it was before this term concluded.

JW: Given this raft of 6-3 decisions, where does all that’s happened in the last term leave the ACLU and in other activist groups that have historically turned to the courts to defend freedom and equality?

DC: Well, we’re going to do what we’ve always done, Jon, and that is fight like hell and file lawsuits to defend the rights of the vulnerable and the underprivileged and those who can’t protect themselves through the political process. And we’re going to insist that it is the proper responsibility of courts to protect those folks. It’s going to be tougher and tougher to make that argument before this court, but it’s not impossible.
I recently ran the numbers on cases in which the ACLU filed a brief in the first four terms of the Trump-inflected Roberts court. And we filed briefs in 68 cases over the last four years, and we won. Or the court sided with the side that we supported 38 times, and we lost 30 times. So I think that’s important to keep in mind, right? You focus on the big cases. And many of the big cases go, in my view, the wrong way. But there are significant cases along the way where the court does not break along 6-3 lines, seeks to rise above partisan politics, seeks consensus, and often rules in favor of civil rights or avoids ruling against civil rights, which is what the court did in the abortion cases this term.
I think people were very concerned about the abortion cases this term. Two cases. One about medication abortion, one about abortion in emergency rooms. And in both cases, the Supreme Court stepped back from the brink and did not further restrict access to abortion in very critical context. And I think that’s in part because of precedent, in part because of the very powerful political pushback that the court’s decision in Dobbs overturning Roe versus Wade triggered.
So we have to keep up that political pushback. We have to vote like our rights depend upon it. We have to insist that the role of a court in a democratic society is to protect the vulnerable. And we have to do everything we can to advocate for those who can’t protect themselves in the political process.

JW: David Cole – he’s legal director of the ACLU and The Nation magazine’s legal affairs correspondent. And he wrote about the just-ended Supreme Court term for The New York Review. David, thanks for all your work and thanks for talking with us today.

DC: Thanks, Jon.

JW: One last thing: Jane McAlevey died on Sunday.  She was The Nation’s Strikes Correspondent and a frequent guest on this show.  She was an immensely talented and articulate labor strategist who trained tens of thousands of union activists on how to win strikes.
Her strategy was not complicated — workers should not rely on union officials to negotiate contracts.  They needed to strike, and to win strikes, they needed not only broad support among union rank and file, but they needed union members to organize support in their communities
— and then open negotiations with employers to rank and file representatives.
It worked – she advised huge and successful strikes of nurses, grocery workers, and communications workers.  She worked hard training organizers with the Amazon Workers Union
on Staten Island, – we talked about it here, where she also did segments on the auto workers’ strike, and the Teamsters at UPS.
In 2019 she led a free intensive six-week online course, “Organizing for Power,” at the Berlin-based Rosa Luxemburg foundation, a democratic socialist nonprofit.  Over four years, according to Margo Roosevelt in the New York Times, 36,000 people in 130 countries logged onto the workshops, which were simultaneously translated into a dozen languages, including Arabic, Hindi, Portugese and Russian.
Jane McAlevey — one of the best we had.  She was only 59 when she died of cancer on Sunday.

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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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