The Reactionary Social Vision of the Supreme Court

The Reactionary Social Vision of the Supreme Court

On this episode of The Time of Monsters, Moira Donegan discusses the court’s rollback of a century of economic and social progress.

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Time of Monsters: Moira Donegan on the Reactionary Vision of the Supreme Court
byThe Nation Magazine

The Supreme Court ended its term last week with a spate of extremely right-wing decisions that included severely restricting affirmative action in elite universities and colleges, clawing back on anti-discrimination protection for LGBTQ citizens under an argument for expressive free speech, and squashing the Biden administrations plan to give relief to student debtors. These ruling come after earlier decisions curtailing labor rights and the end of a constitutional right to abortion. Taken together, the court has emerged as the powerful reactionary force in American society, one that is working overtime to roll back a century of expanding rights for workers, people of color, women, and LGBT citizens.

To survey the reactionary agenda of the court and the extremist social vision undergirding that agenda, I talked to Moira Donegan. She’s a frequent guest of the podcast and a columnist for the Guardian. She brings her characteristic incisiveness to analyzing the courts and warning of the dangers ahead.

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The Supreme Court ended its term last week with a spate of extremely right-wing decisions that included severely restricting affirmative action in elite universities and colleges, clawing back on antidiscrimination protection for LGBTQ citizens under an argument for expressive free speech, and squashing the Biden administration’s plan to give relief to student debtors. These ruling come after earlier decisions curtailing labor rights and the end of a constitutional right to abortion. Taken together, the court has emerged as the powerful reactionary force in American society, one that is working overtime to roll back a century of expanding rights for workers, people of color, women, and LGBT citizens.

To survey the reactionary agenda of the court and the extremist social vision undergirding that agenda, I talked to Moira Donegan. She’s a frequent guest of the podcast and a columnist for The Guardian. She brings her characteristic incisiveness to analyzing the courts and warning of the dangers ahead.

This transcript was computer-generated and may contain errors:

[00:00:00] Jeet Heer: The old world is dying. The new world struggles to be born. Now is the time of monsters. With those words from Gramsci, I welcome you once again to the Time of Monsters . I think. One of the biggest monsters of the age, and it’s gonna be a monster, you know, for the next 20, 30 or 40 years is the Supreme Court of the United States which has a six three majority of Republican appointees.

And that’s gonna be something very hard to change. And we. Have been seeing what a completely unleashed conservative court is willing to do in the last few years. Most notably with the Dobbs decision, overturning the constitutional right to reproductive freedom. But I think Dobbs is just the beginning.

I think there were some. Liberal commentators and even the courts themselves that kind of tried to push off Dobbs as a one-off, like saying like, you know, well abortion is such an exceptional issue that they would take the step of overturning not just one, but like many constitutional many previous court decisions that it affirmed the right to abortion.

But that, you know, like. After that, you know, the, the court might draw in its clause a little bit because, you know, like they’d be afraid of public opinion. Well, it turns out not to be the case. We over the last few weeks we’ve seen. A host of court decisions that in their totality point towards the use of judicial power to reshape American society along very reactionary lines.

And I think how reactionary. Can be seen in the kind of frequent references in various court decisions to the French Revolution. This came partially through the liberal justice brown Jackson, who sarcastically noted that in overturning affirmative action, the court is showing let them eat cake obliviousness, suggesting that the court is like Marie Antoinette.

And the, but the funny thing is that the reactionaries on the court accept this analogy, but, but they see the French Revolution as bad. The justice Roberts on that same decision said that the on a decision involving student debt said that the idea of modifying rules to allow student debt is the same way in which the French Revolution modified the status of French nobility.

It has abolished them and supplanted them with an entirely new regime. Well, you know, like I think most listeners here are probably not fans of the Armstrong regime and probably think like it’s good to get rid of aristocratic rule. But not, not not justice Roberts, and not just this Clarence Thomas who had a.

In their abortion rulings often cited in competing ways, the ideas of Edmund Burke, the counter-revolutionary theorist of reflections on the revolution in France. So this is very much a sort of counter-revolutionary court counter the, what they see as the usurption of the true America by the New Deal and by the sexual and social liberation of the 1960s.

So. I think in, there’s a lot to unpack with what the court is doing, and we’ll do it over many subsequent podcasts. But for this episode, I, I really wanna like look at what is the social vision that is driving this court as it overturns. Affirmative action as it disallows Biden administration attempt to give relief to student debtors.

And as it like expands the free speech rights of homophobes to deny service to queer customers, what is the overriding vision that holds all these decisions together? And to discuss all this, I’m very happy to have Frequent podcast guest Mora Donogan, who’s a columnist at The Guardian and who has kind of made it the specialty of court washing watching and has written many excellent columns analyzing the court.

So once again welcome to the podcast and maybe just start off like, what do you think is the, the vision of the court?

[00:03:57] Moira Donegan: Hi. It’s great to be here. So I think this is. A term where we can really see the continuation of the project that the court made very visible in Dobbs, right? Which is a project of rolling back the past century or so of social proje progress of attempts to fully.

Honor the citizenship of women and people of color and to encourage upward mobility of like previously disenfranchised groups. Right? So you saw that in Dobbs, the attempt to undo the sexual revolution. You see it this term in three or three creative, a case that Dramatically limits the coverage of public accommodation, civil rights law for gay people under a very flimsy and strange freedom of speech arguments.

And then you especially see it and I think what will be the landmark case of this term which is. Robert’s decision overturning affirmative action in college admissions. And I hope, I hope we also get to talk to, I think, a very significant talk about a very significant case in which the court eliminated Biden’s student debt.

Mm-hmm. Elite program.

[00:05:13] Jeet Heer: Yeah. Yeah, yeah. And I, I, I think, I think it is right to frame this in the terms that you have, which is like, in terms of the broader politics that really go back to a century. We, we’ve had, you know, like within the American constitutional order, which is already, you know very conservative in many ways.

We have had attempts to expand economic freedom and upward mobility through the New deal and social policy, and also the expansion of civil rights and sexual freedom. And, and, and the court really is sort of drawing a line and going against that. And I mean, it, it seems On the affirmative action decision.

There was a curious kind of exemption, which I think really brings out the nature of what is seen. It’s not because they said that the issue of military academies is perhaps separate from this decision. Overturning. Affirmative action. And in previous decisions it had been suggested that there is like a military rationale of why you would want affirmative action in military academies.

That is to say you have a lot of people of color that are enlisted troops. You want officers a certain number of people of color as officers to have unit cohesion. And for morale purposes. And justice Jackson in dissenting from the ation of affirmative action in higher education with this exemption basically said that the, the, what the court is saying is that you want people of color, In the bunker, but not the boardroom.

So if, and I think that that framing is very useful because it really points to like it’s not just specific court decisions on this policy or that, it’s like what sort of America do you want? So you know, taking that as a starting point, like what sort of America are we seeing being created by the courts?

[00:07:03] Moira Donegan: Well, it’s a, it’s a dark narrow America one with very Sperm and immovable hierarchies of race and gender. One in which there will not be institutional interventions meant to ameliorate those hierarchies or to ease the path of people to lift themselves up out of the degradations imposed by those hierarchies.

And it’s one in which, you know

there, there is a sort of requirement. To blindness. I mean, you mentioned Kaan Brown Jackson comparison of the court to Marie Antoinette, she says like, with let them eat cake obliviousness. This court like, you know, insists that, that we cease to acknowledge the reality of how racism impacts American life, you know, and that’s, it’s, it’s something that I think sort of gives away the game a little bit in the affirmative action.

Decision in particular. You see the conservative justices, chief Justice Ron Roberts, who wrote the com controlling opinion indulgences this in this. But I think the real illustrative example is from the concurrence from Clarence Thomas who tells this story of the moral arc of, of American racial projects progress.

Right. It’s a, it’s a. Story that he starts with Plessy Plessy versus Ferguson, which is a case in which a black man tried to board a train was put into a segregated section and the Supreme Court ruled that it was constitutional to segregate on the basis of race so long as the separate spheres were deemed equal.

Separate but equal. Right? And this was a. In Thomas’s view, a way of the court acknowledging race and in itself was wrong. And then Thomas ends the story at Brown v Board of Education, which in his mind was the removal of race consciousness from the law. But it’s completely a historical, as Justice Jackson points out in her dissenting opinion because brown and the 14th Amendment equal protection clause that it was based on Really required race conscious remedies.

And this is the substance objections dissent, right? Like you cannot actually work to eliminate race hierarchy and to provide equal protection for people who have been punished by that hierarchy, particularly black Americans without race consciousness, right? And there’s this sort of Attempt to take the moral cover of the Civil Rights Movement and divest it of that moral project on the part of the conservatives, right?

They’re saying, no, no, no, it’s raised blind. I don’t see color man. John Roberts rather keeps referring to the color blind constitution and you know, it’s just, it’s a farce because they know as well as we do that we do not live in a colorblind country. Right. They’re trying to, Divest the government of the ability to deal with the realities on the ground of American life and to try and ameliorate them for the betterment of its citizens.

And I think, you know, I think this military academy exception, as Justice Jackson pointed out, and as you pointed out, she is like incredibly telling, right? Because the argument made by the military in favor of the benefits of diversity. It’s almost identical to the argument made by these civilian universities for the benefits of diversity.

It’s like, oh, these people bring in unique skills and perspectives that are useful in our educational environment. These people boost morale for other members of minority groups who can, you know, see their own experiences reflected there. These people help us have. Cohesion and a sense of community by being part of it.

You know, it’s it’s the same argument and it’s, you know, in favor of the benefits of diversity in this forward-looking way. The remedial we need to remedy the, just the injustice of the past has been eliminated by the court in previous precedent, right? So we can’t a university or a college cannot make the argument in justifying its affirmative action race conscious admissions policies that We want to do something different and to try and work towards creating a different America, but they can say, this is beneficial for us as an institution.

And that argument was only accepted by the court for the universities that sh their students off into the line of fire and war and not into those that funnel them into the halls of power and influence. You know, when we talk about race conscious admissions, The fact of the matter is we’re talking about like a fairly small but disproportionately influential number of colleges and universities.

Most American colleges post-secondary institutions, they admit the majority of the people who apply. That’s the kind of school I went to. It’s the kind of school most people go to, right? It’s a place where you apply, you’re probably gonna get in. But those are not the institutions that manufacture our elite, right?

Institutions that manufacture our elite places like Harvard, Yale, Stanford, Columbia, you know, even like Georgetown, like they admit five, six, 10% of the people who apply and those are the passport. Mm-hmm. To leadership, to prosperity, to upward mobility in a way that other schools still aren’t. Right?

Yeah. And by forbidding those institutions from seeking out a diverse class, What the court is doing is ensuring that the hyper elite that is created by those institutions will remain very, very white.

[00:12:30] Jeet Heer: No. Absolutely. Yeah. Yeah. And it should be said that the larger admissions policies of the universities are all geared towards elite reproduction and not towards any sort of like educational goal.

And that, you know, that’s why you have things like legacy scholarships, sports scholarships special admissions to people with low grades whose parents like Jared Kushner’s, you know, donate millions of dollars. Yeah. You’re trying to create a student body that has one particular purpose, which is elite reproduction.

And until this decision, elite reproduction included, you know at least some affirmative action to try to create a diverse elite. And I mean, just as a as I said, I wanna talk about the sort of social vision and it seems like in some ways that sort of colorblind policy with no attempt at.

Diversifying Elite has actually been tried and one sees it actually in Europe where there’s never been a affirmative action. Where you do have, especially like in France, you know, searching elite schools that are play a huge disproportionate role in shaping who rules and in, in England as well.

And you know, like what you. End up getting is something very similar to America except like perhaps even more white and, and, and you know, like just looking at these sort of riots that are breaking out in France. I, I don’t think that that colorblindness has quite worked towards solving any of their problems.

But, but no, no. And I wanted, tell something more about that. Elite Aspect because like, you know, from, from a certain point of view, one could say, well, okay, you know, this, these affirmative action policies only affect a small number of people. And, you know, it’s not really great that Harvard has so much power, right?

So one could envision an alternative policy, you know, and there are people from a, a left background who are kind of sympathetic to this, where, you know, okay, let’s just like, you know, raise taxes. Especially on places like Harvard that don’t, as far as I know, don’t even pay property tax. But like, like let’s just like destroy the capacity of these institutions to generate lead and then, you know give a lot more money.

Towards colleges and universities that are public, that have a much wider admissions policy and have that as a path where it’s for mobility. Now the interesting thing is that in a separate decision, the courts are kind of foreclosing that possibility as well. So, so with the student debt thing, I mean, like, I mean, one could look at it in.

Serve legal terms that the court framed it as which is that they granted themselves a huge amount of prac saying like, well, because this is such a, a huge decision. Which again, like, you know, justice Roberts compared to the French Revolution, he said, well, we have to turn this back because it is as huge of a significant matter as overturning aristocratic rule.

And, and for, for that reason, the courts ha have the right to say that. So, so that’s the sort of legal argument, but the social vision. That is like there is you know, like really foreclosing, like a major path of upward mobility. It is like, you know, basically the people who needed student debt, who took it out, who were encouraged to take it out by government policy are gonna be like, you know, like stuck with this for like forever.

[00:15:38] Moira Donegan: Yeah. So you’re talking about the Decision that came down on Friday in which the Supreme Court eliminated cleared legal biden’s program to. Forgive up to $10,000 of student debt, or 25 thou, or $20,000 for Pell Grant recipients. They declared this an excessive use of agency authority under something called the Major Questions doctrine, which is sort of a vibes based, very new legal doctrine in which the Supreme Court declares that in issues that are of.

Two great political or social significance. And that significance is determined by, you know, the court cannot in fact be delegated to administrative executive agencies. They have to be decided by Congress. And because Congress is not functional and does not decide anything that functionally means that all of these, like quote unquote major questions have to be decided by the courts.

Right? So it’s a sort of wraparound way. The court has delegated itself a lot of power to enforce this social vision, and yeah, I’m in agreement with you. I’m in, I’m very sympathetic to the idea that really the way to make places like Harvard and Yale and these elite institutions egalitarian is to kind of dismantle them brick by brick and like redistribute their assets.

You know, maybe with the exception of the one that employs me, which I would like to keep operating for a little while. But, you know, there’s a, a, an argument to be made right, that relying too heavily on affirmative action to try and mitigate the harms of the past and to meaningfully integrate talented people of color into the elite just does sort of rely on.

Reproducing those elite structures that are themselves, like quite unjust, right? Like I get that. But in the meantime there is no way to institute a more robust policy change because the Supreme Court has very conservative Supreme Court has allocated to itself absolute power over these major policy making questions.

Yeah. And has now foreclosed an exceptionally popular. Economically essential humane intervention of the Biden administration to forgive this debt that was taken on by people who have exactly one way into the middle class through education that has been placed financially out of reach for them.

[00:18:10] Jeet Heer: Yeah. No, no, absolutely. Yeah. Yeah. So, so, so again, like what I wanna underscore here is that there’s a kind of social vision that is in place and perhaps a like, sort of thread the needle a little bit. The, the the military exemption aspect. Is not disconnected from the student debt. There was like a Republican congressman who basically like came out against student debt relief because saying like, you know well military recruitment is already low.

Like, how are we gonna recruit people if we don’t have this this stick of student debt as a way of making military joining the military, much more attractive. So, so, so again, like, you know, like it is a vision of society. Where like if you’re poor you know, the, the password of upward mobility will be you know to join the military.

And as I say in Starship Trooper, you know service equals citizenship. So the just say, you know, like a quite dire dystopian view. The other court case where I think like, you know, one can see a social vision. Coming out is zero three creative versus a Elenas which is you know, like really claw back the civil rights of gay people by creating this kind of exemption through free speech.

You wanna like, just talk a bit about that and like, you know, like where, where we think this is gonna like, lead head towards.

[00:19:27] Moira Donegan: Yeah, so 3 0 3 Creative versus Aleiss is a interesting little case out of Colorado. It is sort of a rerun of Masterpiece Cake Shop, which was a case I think five years ago in which the Supreme Court upheld Colorado’s civil rights public accommodations law that requires businesses to serve.

All comers equally, including gay people. And they carved a huge hole in that. And other public accommodation, civil rights laws. This is a case in which a website designer, or rather an aspiring website designer named Lori Smith who says that she wants to a, start a a website design business, B design wedding websites, and C exclude.

That service from gay couple customers including putting up a sign at the homepage of her website saying that she will not serve gay couples. She has never been asked to design a wedding website for a gay couple or seemingly for anyone. This is a hypothetical case. At the time she filed she didn’t even have her website design.

Business. She has one now. The websites are not they’re not gorgeous. It’s very like, graphic design is my passion, you know? And there does seem to have been, according to reporting by Melissa Gura Grant in the newer public, that was like confirmed this weekend by the Washington Post. There does seem to have been sort of a fabrication of a.

Request. There was a, you know, an affidavit issued by her lawyers at this like conservative legal outfit called the Alliance, defending Freedom that basically constantly brings anti, anti gay cases and, and anti-abortion cases. And they, you know, signed the sworn statement saying that she had been.

Asked to make a wedding website by a guy who wanted to, you know, get married. And it had this guy’s, you know, name and contact information and reporters called him. He says, Hey, I live in another state. I happen to be heterosexual and have been married to a woman with children for many, many years.

And no, I never made this request. So there’s, you know, some speculation that perhaps that was invented. But you know, there’s this is, this is a recurring theme in this court that’s standing and facts are kind of Not relevant, like in the well,

[00:21:45] Jeet Heer: And I, I, I think that, that I mean, I wanna just hold on that point just very briefly because I think that there’s two different ways that people are talking about this.

One of which is like I don’t think very useful, which is I think that there’s some liberals who. Have been trying to raise these issues as a way to like, you know, challenge the ruling with the idea that, you know, like well, you know, they, they didn’t fill out the proper forms. They didn’t have like, you know, done all the Ts and they didn’t do the follow the rules and we, we got them, right.

Like, you know, as if like, you know, if you have the right formula and the right set of words, you can overturn this. And I think that that is like, if that’s what people are thinking, that is totally, you know, like not gonna work. And it’s not a useful way to think. Because it just, it, it sort of implies that, you know, like if the courts follow the rules, we’d be okay.

I think that the more pertinent way to use it is to like illustrate what a power grab the court is engaged in, how arbitrary it is and capricious and that. You know they can get away with it. And I, I, you know, like you know, I’d mentioned the French Revolution before. And I think the greatest representation of the French Revolution is not Edmond Brooks reflection of the revolution in France.

But Mel Brooks says history of the world, part one. Whereas Louis the XIV Brooks says, you know, it’s good to be the king. You know, and yeah imposes himself upon everybody in the most disgusting ways possible. And I think that the for John Roberts and his court, you know, it’s good to be the king.

And, and if you, if you’re the king, you can just like, you know, make up a case out of whole cloth. And, you know, that’s totally based on fabrication. Issues of standing don’t matter. And I think that that’s the way to understand. What is happening here? You know, like, not to say gotcha. You didn’t fill it all, you know dot all the i’s and cross all the T’s, but like, you know, like this is a court that really does not care about like, you know any set rules that can stand in the way of their social vision.

[00:23:36] Moira Donegan: Yeah, I think that’s, that’s absolutely right. And you know, God bless the liberal proceduralists who think that we can sort of preserve the social progress of the past century through these kinds of Gotcha. Like technicalities. But like, the fact is that it is the, the frivolity, the absence of fact, this is not a sort of bit of sloppiness on the court’s part.

It is an assertion of their power. Right? So. You know, the 3 0 3 creative gay rights case is an imaginary case. There’s been no injury the same term in the student debt relief case. Missouri sued on behalf of a loan servicing agency. In the state that was independent from the state government, and in fact very much did not want to be a part of the lawsuit, had no interest in being a party to the lawsuit.

Missouri, in order to sue Nolie on, on on this debt servicing agency’s behalf, had to like subpoena all of their records cuz they weren’t cooperating voluntarily. You know, they didn’t wanna, they didn’t wanna do it. And they said, you know, actually your theory of r. Injury that we’re gonna lose all this money because the debt forgiveness is actually not consistent with our own calculations of how this is gonna work out for us.

And then, you know, this also echoes a case called Ken Kennedy versus Bremerton from last term in which this Football coach in a suburb of Seattle wanted to pray at the games, and he said that he was doing these private little sideline prayers to himself. And in fact, what he was doing was standing like at the 40 yard line in the middle of the field and having all of his student athletes come with him.

Yeah. Including a lot of you know, atheist and non-Christian athletes who said they felt. Pressured. And, you know, their religious freedom was being infringed upon, but the court sort of declined all these facts and all these photographs of him. Yeah. And so, you know, declined to consider all this to like rule as if the fiction that he was doing these private prayers to himself was the facts of the case.

So, you know, the imperiousness to fact, I think it’s just an assertion of their impunity. Yes. And their ability to assert. Their social vision without any kind of democratic check. Mm-hmm. Without any kind of need for. Restraint. You know, there was some commentary like sort of before this last like, blockbuster week of rulings from the court that’s like, oh, you know, Robert threw out the independent legislature case because it was too sloppy and he threw out the Voting Rights Act case because he was too, cuz it was too sloppy.

And he wants really better cases from these liberal, from the conservative legal movement that won’t embarrass him. And I don’t really buy that. I think Roberts was saving his political capital. For affirmative action, for student debt, for gay rights I don’t think he really cares if it’s a sloppy case because he rules in favor of sloppy arguments all the time.

[00:26:24] Jeet Heer: The sloppiness is an assertion part, and I would add to this issue of fact that like, o often the courts they make arguments based on history and like, if you talk to historians, you know, the kind of history that one finds in sort of Clarence Thomas’s decisions and Alitos decisions.

It’s just a completely, you know, Oh, fantastic. Fabricated history that, you know, might convince someone from the sort of Claremont Institute, but like, you know, like would be rejected by the vast majority of historians. But it doesn’t matter. Like, like, like I think it’s good to record these violations of facts and norms and procedures and rules.

As part of a project to de-legitimize the courts to say that, you know, the courts are this completely arbitrary institution. But I you know, I do worry that like sometimes it is a case of like, kind of like liberal fact checking and fact checking by itself without, like a political project doesn’t get you very far.

You know, you could only, you can’t get very far by saying like, well, that quote. It doesn’t really exist. Like you actually have to have, like, you know, w w what’s the goal of bringing up these violations of facts, norms, and, and presentations of incredibly sloppy arguments. Right. It doesn’t really make sense unless your goal is to de-legitimize the courts.

[00:27:38] Moira Donegan: Right. But we definitely know, I definitely agree with you, but I, I, we also know what the purpose of. The lies is yes, yes, yes, yes. To advance this very clear social agenda. Yes. Very regressive social agenda. And just to get back to 3 0 3 creative, cuz we sort of strayed a little. Yeah, yeah. But I think it’s a really important case.

Mm-hmm. Because what public accommodation, civil rights law has said for decades is that if you are operating a business that is available to the general public, you don’t get to pick and choose which members of protected classes. You’re gonna serve. If it’s a protected class, you have to serve them. And gay people have been a part of most state civil rights laws, public or municipal civil rights laws for a very long time, right?

It says, this is one of the characteristics you’re not allowed to discriminate on. You’re not allowed to say you’re not gonna serve people on the basis of their race. You’re not allowed to say you’re not gonna serve people on the basis of their religion. You’re not allowed to say you’re gonna not gonna serve people on the basis of their sex, which in most.

Interpretations of sex. And then, you know, also included specifically in a lot of these particular laws includes gender expression, gender identity, and sexual orientation. Mm-hmm. And this case is nominally about free speech, right. It says, Gorsuch in his majority opinion for all six of the Republican appointees, says that Lori Smith, who again has never been asked to make a gay website, is being forced to speak in favor of gay marriage against her beliefs by the civil rights law and what that distinction does.

It completely obliterates the distinction between commercial speech, commercial conduct, and private speech, right? Yes. And that is basically the end for public accommodation, civil rights law, because this opinion that Gorsuch issued has no limiting principle. There’s nothing in there to say, okay, you know, this is actually kind of what I was afraid they were gonna do.

I was afraid they were gonna say, Gender, sex, sexual or sexual orientation specifically, those just matter less. Like they are just not as robustly protected by civil rights law as races. Mm-hmm. And that would’ve been terrible. That would’ve been an unraveling of all kinds of civil rights protections for gay people, for trans people, for women for anybody who is gender nonconforming.

It would’ve sort of started unraveling the sweater, but what they actually did was kind of worse. Which they said that, you know if you can make any kind of argument that your commercial enterprise is expressive, even a stretch argument, such as when the commercial enterprise is website design. But you know, it could be.

Like making ice cream sundaes, like it could be anything. Sure, sure, sure, sure. Yeah. Yeah. Then you have the right to discriminate based on identities, regardless of, you know, the protected class. So the people who seek to give you their money. There was actually no limiting principle in terms of who you could discriminate against.

The, not only eliminating principle was it has to be expressive speech, like mm-hmm. You, it can’t be. Actually, I can’t even imagine what it can’t be, right? Like

[00:30:57] Jeet Heer: Yeah, no, exactly. No, I mean this is, this is the exact issue because everything is expression, right? Like this is, you know, like once you sort of semiotics was devolved as like a field, it ran into this problem that like, everything is a sign because humans are immersed in culture.

Yeah. And so, so, so like, like You know, Donald Trump famously wrote a book or had a ghost writer write a book called The Art of the Deal. And so the premise of that is deal making is an art, you know? Yeah. And, and he, I think he, he said like, you know, like how like Michelangelo works in paint and Hemingway worked in prose.

You know, I worked in the deal and, you know, like under this decision, like I, I don’t see how, you know, like that could not be applied deal making. Can be seen as an art. And therefore, like if you you can’t limit the free speech of deal makers with civil rights laws. I, I just, I, I think you’re exactly right that there’s no limiting principle.

And this is especially true of this court, which has repeatedly used free speech rights and expanded them into the commercial realm and expanded them into business activity which is a real innovation. And so, you know, like, you know, I think listeners will be aware of the sort of, you know, the doctrine that money is speech and that, you know, was used to challenge election.

Spending laws so United, if money, money is

Citizens United 2010 Yeah. Money, money becomes speech. Yeah. Yeah.

So if money is speech and and you have an expressive right to free speech that overrides. Anti-discrimination laws then, like, well, what is the limit? Well, like, you know, like, now, now this decision might be narrowly expressed in terms of like expressive industries, but like, does anyone doubt that, like, you know, like the, the, the range of industries that will claim this rate could very easily expand in the coming years?

[00:32:47] Moira Donegan: Oh, no. What’s gonna happen is that any. Bigot who wants to, is going to make an argument under this very capacious definition of like our expression that their business is expressive and that they therefore get to discriminate against disfavor groups, right? Yes. That’s gonna happen. And what’s gonna happen is that the court is going to invent the limit on who you get to discriminate against when, when they want to, right?

Yes. It’s gonna be. A flood of litigation, a flood of discrimination, A lot of incredibly just potent dignity harms, right? Imagine like you’re trying to celebrate your wedding and you have to go from vendor to vendor and like check and see if they’re gonna serve you or not, or if they’re gonna be a.

Spigot about it, and yet, like I’m just trying to, I’m trying to buy thousands of dollars worth of flowers. Yeah, yeah, yeah. And you’re telling me like, well actually in Leviticus, you know, it’s insane. And it imposes this terrible dignity harm on anybody who’s a disfavored group who no longer has access to the public commercial sphere who’s dollar no longer counts the same amount of as anybody else is.

And there’s just no cap on this to say. Where it ends and where it’s gonna end is where the Supreme Court justices find it personally distasteful. And that’s just not a, a foundation for a functional, pluralistic society like they are gonna say personally. Okay, well we think. We don’t like it when you do this for interracial couples.

Like we think that goes too far, but we don’t like the homos. So like their civil rights protections are just weaker now. And there’s just, there’s nothing principled about this. It reduces to their policy preferences which is a problem because nobody fucking voted for them.

[00:34:38] Jeet Heer: Yeah, yeah.

[00:34:39] Moira Donegan: They have like accrued all this power to themselves from these places of.

Unelected unaccountable and increasingly absolute influence. So I think I would love to close out talking about. The politicization of the court Yes. And the prospect for court reform.

[00:34:57] Jeet Heer: Yes. No, I, I, I think, I think that that’s a sort of like the logical ending as I said before, you know, like if you want one word sentence about what this court is all about, it’s, it, it’s good to be the king.

And and it is a real associate of like anti-democratic power. And then the question is, Yeah. What, what do we do about it? You know, and well, I wanna hear what you have to say cuz I, I have some pretty distressing thoughts about what is likely to happen. But let’s, let’s see what

[00:35:23] Moira Donegan: yeah, I mean, what is likely to happen is that, you know, we right now have a democratic party.

I’m particularly a president who has absolutely no appetite to confront the crisis presented by the courts, right? After the affirmative action decision. I think Joe Biden went about as far as he has ever gone. When he called the Supreme Court weird. He’s like, this is a weird one. Or he said they weren’t normal or something like that.

And then somebody goes, well, you know, would you con reconsider court expansion? This like basically the only option that will be a decade long project. And that needs to be pushed in the bully pulpit of the presidency to, to get, you know, popular support and become possible. And he goes, no, no, no.

I don’t wanna politicize the court.

It’s just, I think it’s a little fucking late. I think the court is very political. They politicize themselves. Yeah. And what the Democratic party is choosing to do in refusing to meaningfully engage with court expansion, term limits, any kind of rotation system is they have dedicated themselves to their own impotence.

Right? What we have right now, Is a situation where any policy agenda enacted by Democrats, any kind of effort they make to use power when they’re able to get it, is going to be yeah. They’ve given themselves carte blanche. They’ve shown themselves very willing, they have maximalist ambitions to undo lots of social progress, and they have zero qualms about curtailing the power of the elected branches.

And so it’s, you know, it’s either we have a weakened Supreme Court or we have only a Supreme Court in terms of our policy governance and it we’re hurling really disturbingly quickly towards the latter. Yeah.

[00:37:15] Jeet Heer: No, absolutely. Yeah. Yeah. No, I, it does not seem like right now the political will to have this fight is there although I, I would say, you know, democratic Party, obviously a coalition, and one is seeing like, you know, among some lawmakers at least more bold talk about court expansion.

What I’m not seeing, but which, you know I, I think what has to come is like, you know, like actually limiting the power of the courts in terms of, you know what cases that they can take. But it, it, it is really a sort of a cri a crisis of democracy like it is. And the only I always like to end on some sliver of hope and be the one sliver of hope.

I, I will say is, you know, the, the court’s reputation has never been lower in the modern era. You know, like perhaps it was lower, like after gRED Scott in the 19th century, but in the terms of the modern era, Of like polling, you know, like I, I saw recent poll where like only 29% of the population has a favorable view of the courts.

And, you know, so one would have to think that among the public at least, there’s a kind of recognition of this legitimacy crisis. And, you know, th. The only question is like, you know, like what political form this dissatisfaction will take. And I have to agree with you. You know, Joe Biden, whatever, you know, one can say about in his favor, he is on this issue, not the fighter that is needed.

Yeah. Okay, good. So, so anyways, thank you once again for being here. I actually I think we’re gonna have to like, revisit this. There’s a lot more we could have said about this court session and, and about this. I, I think really one of the fundamental issues for the the future for American democracy.

[00:38:49] Moira Donegan: Thank you so much for having me, Jeet it’s always really fun to talk to you.

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