The Ezra Klein Show Folgen

For decades now, the conservative legal movement has been on a mission to remake this nation’s laws from the bench. And it’s working. On Friday we released an episode with the legal scholar Kate Shaw that walked through case after case showing how conservative Supreme Court majorities have lurched this country’s laws to the right on guns, voting, gerrymandering, regulatory authority, unions, campaign finance and more in the past 20 years. And if the Dobbs majority is any indication, this rightward shift is just getting started.But this conservative legal revolution is only half of the story. The other half is just as important: the collapse of liberal constitutional thinking. Liberals have “lost anything that would animate a positive theory of what the Constitution should be,” says the legal scholar Larry Kramer. “And so they’ve been left with a kind of potpourri of leftover things from the periods when liberals were ascendant in the ’60s and ’70s.”Kramer is a former dean of Stanford Law School, the current president of the William and Flora Hewlett Foundation and the author of“The People Themselves: Popular Constitutionalism and Judicial Review.” And according to him, it hasn’t always been this way. For most of American history, politicians, from Jefferson to Lincoln to Franklin Roosevelt, believed that constitutional interpretation was inextricable from politics. And they put forward distinct visions of what the Constitution meant and the kind of country it was written to build. But then, in response to the progressive victories of the Warren court, liberals began to embrace the doctrine of judicial supremacy: the view that the final authority on the Constitution rests with the courts. This has resulted in both the conservative legal victories of the past few decades and liberals’ muddled, weak response.So this is a conversation about the collapse of liberal constitutional politics: why it happened, what we can learn from it and what a renewed, progressive vision of the Constitution could look like. We also discuss why the founders weren’t actually originalists at all, whether liberal constitutional thinking has been captured by the legal profession, what a liberal alternative to originalism could consist of, why changing the size of the court (despite its controversies) has been an important tool for staving off constitutional crisis, the case for an “anti-oligarchy Constitution,” the merits of imposing supermajority requirements on court decisions and nominations, why Kramer views Roosevelt’s infamous court-packing effort as a major success and more.Mentioned:Larry Kramer’s testimony at the Presidential Commission on the Supreme Court of the United States“Judicial Supremacy and the End of Judicial Restraint” by Larry D. Kramer“Marbury and the Retreat from Judicial Supremacy” by Larry D. Kramer“The Judicial Tug of War” by Adam Bonica and Maya SenBook recommendations:The Anti-Oligarchy Constitution by Joseph Fishkin and William E. ForbathThe Second Creation by Jonathan GienappWhen We Cease to Understand the World by Benjamín LabatutWe’re hiring a researcher! You can apply here or by visiting nytimes.wd5.myworkdayjobs.com/NewsThoughts? Guest suggestions? Email us at ezrakleinshow@nytimes.com.You can find transcripts (posted midday) and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast, and you can find Ezra on Twitter @ezraklein. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.“The Ezra Klein Show” is produced by Annie Galvin and Rogé Karma; fact-checking by Michelle Harris, Mary Marge Locker, Kate Sinclair and Irene Noguchi; original music and mixing by Isaac Jones; audience strategy by Shannon Busta. Our executive producer is Irene Noguchi. Special thanks to Kristin Lin and Kristina Samulewski. Subscribe today at nytimes.com/podcasts or on Apple Podcasts, Spotify and Amazon Music. You can also subscribe via your favorite podcast app here https://www.nytimes.com/activate-access/audio?source=podcatcher. For more podcasts and narrated articles, download The New York Times app at nytimes.com/app. Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

In the past few weeks alone, the Supreme Court has delivered a firestorm of conservative legal victories. States now have far less leeway to restrict gun permits. The right to abortion is no longer constitutionally protected. The Environmental Protection Agency has been kneecapped in its ability to regulate carbon emissions, and by extension, all executive branch agencies will see their power significantly diminished.But to focus only on this particular Supreme Court term is to miss the bigger picture: In the past few decades, conservative court majorities have dragged this country’s laws to the right on almost every issue imaginable. Shelby County v. Holder gutted the Voting Rights Act and opened the door for states to pass restrictive voting laws. Rucho v. Common Cause limited the court’s ability to curb partisan gerrymandering. Citizens United v. Federal Election Commission unleashed a torrent of campaign spending. Janus v. AFSCME Council 31 weakened unions. A whole slew of cases, including some decided on the shadow docket during the Covid-19 pandemic, undercut federal agencies’ power to help govern in an era of congressional gridlock. And that’s only a partial list.Kate Shaw is a law professor at Cardozo School of Law, a co-host of the legal podcast Strict Scrutiny and a former clerk for Justice John Paul Stevens. In this episode, she walks me through the most significant Supreme Court cases over the past 20 years, from the court’s decision to hand George W. Bush the presidency in 2000, to the dismantling of the Voting Rights Act, to the assertion of an individual’s right to bear arms.Along the way, we discuss the right’s decades-long effort to transform American law from the bench, how Republican-appointed judges have consistently entrenched Republican political power, the interpretive bankruptcy of constitutional originalism, how the Warren Court radicalized the conservative legal movement, what might happen to decisions like Obergefell v. Hodges now that the court majority seems to be so comfortable throwing out precedent, what cases to watch in the Roberts Court’s next term, and more.Mentioned:“After Citizens United: How Outside Spending Shapes American Democracy” by Nour Abdul-Razzak, Carlo Prato and Stephane Wolton“The Most Important Study in the Abortion Debate” by Annie LowreyBook recommendations:The Turnaway Study by Diana Greene FosterTorn Apart by Dorothy RobertsWho Decides? by Jeffrey S. Sutton51 Imperfect Solutions by Jeffrey S. SuttonThoughts? Guest suggestions? Email us at ezrakleinshow@nytimes.com.You can find transcripts (posted midday) and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast, and you can find Ezra on Twitter @ezraklein. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.“The Ezra Klein Show” is produced by Annie Galvin and Rogé Karma; fact-checking by Michelle Harris, Rollin Hu, Mary Marge Locker and Kate Sinclair; original music by Isaac Jones; mixing by Isaac Jones; audience strategy by Shannon Busta. Our executive producer is Irene Noguchi. Special thanks to Kristin Lin, Kristina Samulewski, David A. Kaplan, Ian Millhiser, Aziz Rana and Kate Redburn. Subscribe today at nytimes.com/podcasts or on Apple Podcasts, Spotify and Amazon Music. You can also subscribe via your favorite podcast app here https://www.nytimes.com/activate-access/audio?source=podcatcher. For more podcasts and narrated articles, download The New York Times app at nytimes.com/app. Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

On Friday, a Supreme Court majority voted to overturn Roe v. Wade. On Sunday, we released an episode with Dahlia Lithwick that goes through the court’s decision in detail, and we will continue to come out with new episodes on the ruling — and its vast implications — in the days and weeks to come. Today, we’re re-airing an episode that we originally released in February of this year with Columbia Law professor Jamal Greene — a conversation that is even more relevant now than it was when we originally released it. The Dobbs ruling may be the most poignant example of how extreme the U.S. Supreme Court has become in recent years, but it’s certainly not the only one. “Getting race wrong early has led courts to get everything else wrong since,” writes Greene in his book “How Rights Went Wrong.” But he probably doesn’t mean what you think he means.“How Rights Went Wrong” is filled with examples of just how bizarre American Supreme Court outcomes have become. An information processing company claims the right to sell its patients’ data to drug companies — it wins. A group of San Antonio parents whose children attend a school with no air-conditioning, uncertified teachers and a falling apart school building sue for the right to an equal education — they lose. A man from Long Island claims the right to use his homemade nunchucks to teach the “Shafan Ha Lavan” karate style, which he made up, to his children — he wins.Greene’s argument is that in America, for specific reasons rooted in our ugly past, the way we think about rights has gone terribly awry. We don’t do constitutional law the way other countries do it. Rather, we recognize too few rights, and we protect them too strongly. That’s created a race to get everything ruled as a right, because once it’s a right, it’s unassailable. And that’s made the stakes of our constitutional conflicts too high. “If only one side can win, it might as well be mine,” Greene writes. “Conflict over rights can encourage us to take aim at our political opponents instead of speaking to them. And we shoot to kill.”It’s a grim diagnosis. But, for Greene, it’s a hopeful one, too. Because it doesn’t have to be this way. Supreme Court decisions don’t have to feel so existential. Rights like food and shelter and education need not be wholly ignored by the courts. Other countries do things differently, and so can we. We also discuss the reason we have courts in the first place, why Greene thinks Germany’s approach to abortion rights could be a model for America, Greene’s case for appointing nearly 200 justices to the U.S. Supreme Court and much more. Mentioned: “The Dobbs Decision Isn’t Just About Abortion. It’s About Power.” by “The Ezra Klein Show”Book Recommendations:Rights Talk by Mary Ann GlendonLaw and Disagreement by Jeremy WaldronCult of the Constitution by Mary Anne Franks We’re hiring a researcher! You can apply here or by visiting nytimes.wd5.myworkdayjobs.com/NewsThoughts? Guest suggestions? Email us at ezrakleinshow@nytimes.com.“The Ezra Klein Show” is produced by Annie Galvin and Rogé Karma; fact-checking by Michelle Harris and Kristina Samulewski; original music by Isaac Jones; mixing by Jeff Geld and Isaac Jones; audience strategy by Shannon Busta. Our executive producer is Irene Noguchi. Special thanks to Kristin Lin and Kristina Samulewski. Subscribe today at nytimes.com/podcasts or on Apple Podcasts, Spotify and Amazon Music. You can also subscribe via your favorite podcast app here https://www.nytimes.com/activate-access/audio?source=podcatcher. For more podcasts and narrated articles, download The New York Times app at nytimes.com/app. Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.