MARA S2EP5: JOHN & CIARAN
THE SUPREME COURT
TRANSCRIPT
Samia: This is Make America Relate Again, presented by Better Angels Media. I’m Samia Mounts.
I want to start this week’s episode off by thanking some listeners who have shared the show on social media! Janet @muchtoodutch on Twitter said:
“The last episode of Make America Relate Again was amazing. My family voted for Trump. I have had a hard time reconciling this with the people I know. But your podcast has helped me to look for similarities between us. ITS HARD!! But not un-do-able. Thank you!!!”
Thanks, Janet! The whole point of this was to help people whose close personal relationships took a hit because of the polarized political climate. I’m so glad the show is helping you reconnect and reconcile with your family members.
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Okay, on to the conversation. This week, I’m bringing you the two gentlemen who are responsible for bringing the show into the Better Angels family. John Wood Jr. and Ciaran O’Connor run the media team at Better Angels, and today, they’re going to talk about what’s been going down with the Supreme Court.
Let’s see what they have to say.
MUSIC
Samia: John and Ciaran, welcome to Make America Relate Again.
John: It's great to be on, Samia.
Ciaran: Samia, it's a true pleasure. I've been looking forward to this.
Samia: Why don't you both introduce yourselves so the listeners can distinguish between your voices and then we'll get started talking.
John: Okay. I'm the guy with the guy with the sexy Barry White voice.
Ciaran: I was going to say, I'm already jealous.
John: No, Ciaran's got the great NPR vibe, that's what I tell him, anyway. My name is John Wood, Jr. I am the Director of Media Development for Better Angels. In a prior incarnation, I was a Republican nominee for congress in the 43rd District of California, and also served for, I guess, it must have been about a year and a half or so, as vice chairman of the Republican Party of Los Angeles County. But I grew up in sort of a diverse political and cultural background. Yeah, that's my basic bio.
Ciaran: My name Ciaran O'Connor. I'm from New York City. I serve as the Better Angels Director of Communications. I also am leading our marketing efforts. My background is in Democratic politics starting on the 2012 Obama campaign and most recently, having worked on the 2016 Clinton campaign. Now I'm here with John in LA working on depolarization.
Samia: You don't quite get more of a real Democrat and a real Republican together than you do with you guys, which is why I'm very excited to have you on the show. You're here today to talk about the Supreme Court and what's going on now with the justice retiring, possibly Brett Kavanaugh coming in, most likely. I want to see where you guys both stand on that first. John, why don't you start?
John: I should say to start off with that I don't consider myself particularly to be an expert on the court, although, I certainly view it as an institution that affects everybody and certainly affects me and so forth. With regards to this vacancy, I think, it took a lot of people by surprise that Anthony Kennedy upped and decided he was going to retire at the time that he did. I think that a lot of people are worried about that, particularly on the left, because Anthony Kennedy even though he is… you wouldn't think of him as a reliable liberal or progressive minded judicial thinker. He was an independent thinker. He was a swing vote. If he's replaced with Justice Kavanaugh, I guess we'll have a situation where the court becomes much more predictable in a conservative direction in terms of the decisions it tends to produce. I mean in general, I'm fine with that. I don't know too much about Kavanaugh in particular other than the fact that he has a reputation of being something of a kind of an establishment conservative legal thinker. On the one hand, he tends to take what they call in the academic parlance, I guess, a strict constructionist view of the Constitution. He's also, I think, very pro law enforcement, which isn't necessarily a bad thing although it could be a damaging bias, just depending on the situation and so forth. I seem to recall there is some case where he could have taken a strong stand in support of right to privacy and taking a stronger stand for the Fourth Amendment than he did, although the details of that escape me. In general, I'm just a person who feels like there's this question of what's good policy but that's a totally different question than what is it the constitution says. What worries me is when people start thinking of the law as being too flexible, particularly in the context of interpreting what the Constitution means and so forth. Even though I was not a Republican who is at all thrilled about Trump's candidacy or even various aspects of his presidency, to say nothing of other parts of the Trump's presentation, as far as the Supreme Court goes, Gorsuch and so forth. Overall, I'm pretty well satisfied because I think that the conservative justices kind of just more or less reflect the intent of the constitution at least a little bit more reliably than more left-leaning justices do. I've got no problems with the Kavanaugh pick so far or with the potential Kavanaugh pick so far.
Ciaran: I would echo John's caveat that I am by no means an expert on the Supreme Court, although I did take a constitutional law class in high school. Shouts out to Mr. Kagan, my high school con law teacher who is actually the brother of Supreme Court Justice Elena Kagan, which is pretty wild. With respect to the court, I certainly recognize its importance, especially when you consider how the decisions affect everyday people and the fact that Supreme Court nominations are lifetime appointees. The balance of the court is extremely impactful in the long term and obviously touches fundamental questions on the role of government, how people go about their ordinary lives and their relationship to their government. In terms of Kavanaugh, I think his credentials are relatively impeccable, and by all accounts he seems very smart and is certainly approaching issues in good faith. I have a little bit of concern with his background in partisan politics, having worked very closely with the investigation into Bill Clinton, which was obviously very fraught. Although, I don't think that can be avoided, and I don't think that should be necessarily held against him in a confirmation. I think a lot of the objections that progressives have to Kavanaugh is a process one, given the fact that when Antonin Scalia died, there were still, I believe, almost a year left of President Obama's second term. Traditionally, there would be the right of President Obama to appoint his replacement, and President Obama went out of his way to select a jurist who he thought would attract some bipartisan acceptance in Merrick Garland. Rather than hold a vote, the congressional leadership decided not to even have any hearings. This time around, the opening on SCOTUS comes only a few months before the midterms. So I think one of the things that is driving polarization, and this is true on both sides, is the operation in bad faith and some of the hypocrisy you see. I know a lot of my democratic colleagues and friends say that by Mitch McConnell's logic, we should wait until after the midterms, when the people have had a say in the composition of the Senate which will be voting on the justice. I guess, the last point I would make is we talk a lot about polarization in the electorate and in the legislative and executive branches of the government, but I think there's also a lot of polarization on the court. I think historically, there wasn't such a strong ideological division in terms of how the justices voted. I think right now, it almost reflexively mirrors their… or at least, the political affiliation of the president who appointed them. I think on the right, especially, there's been an effort to groom justices who won't deviate from orthodoxy as much as possible, through the Federalist Society and other organizations like that. On the left, with Justices like Elena Kagan and Sonia Sotomayor, they obviously are also hewing to pretty strong progressive ideals and values. I think that's led to a polarized court, and I think that's also a problem because it becomes predictable, and it becomes another reflection of partisan politics, which I think is dangerous and also undermines the credibility of the court.
Samia: All right. A lot of progressives are freaking out about this situation, while a lot of conservatives like you, John, are not. One of the big issues that's really bothering people is the prospect of Roe v. Wade being overturned. Do you guys have anything to say about that? I know I'm running scared, as a woman. I don't want to lose my right to a legal safe abortion.
John: Yeah. First of all, I'm not really convinced that that's going to happen, which is to say nothing of my own opinion going one way or another. I mean, I do consider myself to be fundamentally pro-life, and for a number of reasons and on a number of levels, but I also feel like the answer, not to get us too far off of that topic, unless we want to go there, but I also feel like the issue of abortion is one that's more… I mean, if we're ever going to arrive at a place to where we've truly minimized the number of unwanted pregnancies in our society, I feel like that’ll be a reflection of changes in the culture more than changes in the law. With respect to that, there's a degree to which I'm a little ambivalent, but Roe versus Wade is very firmly established in terms of president at this point. Is it possible that that will be overturned? Well, it is possible, it's definitely possible. I'm not going to say it's not going to happen. I'm not just convinced that it will. Clearly, I don't necessarily feel precisely the same kind of urgency about it, just for various sorts of cultural reasons. I do have personal experience with abortion in the context of my own family and so forth, and I've got personal stories to tell there. So I'm not at all numb to why it's such a frightful and difficult thing, as an issue that affects people in their real lives. I can't really render any confident prediction as to which way it's going to go, other than to say that I don't think it's guaranteed to disappear. If it wound up being the case that we just went down the same basic legal course that we've been doing down, it wouldn't surprise me too terribly much.
Ciaran: I agree with John in so far as I don't necessarily think that Roe v. Wade will be explicitly overturned. I do think that states, particularly in the south and more conservative leaning states, will begin to pass restrictions that effectively make it impossible for a woman living in that state to obtain an abortion, requirements that basically preclude abortion clinics from functioning. And so in order to get an abortion legally, a woman might have to cross state lines. I think that's problematic, because I think it will lead to safety issues and women seeking out abortions regardless and not having the resources and support they need to make that decision and to support their families. I also think it will perpetuate inequality in some ways, because the women and families who have the resources to get an abortion, I think, will always be able to do so in America. And so I think this sort of change in policy will unduly affect vulnerable populations, poor populations, immigrant populations. That's something to keep in mind as well.
John: Yeah. I mean I think that those are all worthy concerns. The upside for me with respect to the abortion issue, downstream of any potential change in terms of Roe v. Wade itself, probably lies in the fact that I do think that you have kind of a parallel threat, parallel to what Ciaran just illustrated here, from the vantage point of the law in the direction of potentially constraining pro-life groups that want to offer family counseling, that obviously encourage people not to make the choice in the direction of abortion. That those groups will probably receive a level of protection that, in some cases, they're not, and which I think they should. Evidence of that would be the case that just came up in California, which this court ruled on, where you had, I guess, alternative family planning centers or something like that in the State of California. There was a law that was just struck down by the Supreme Court. The question that the case was deciding on was whether or not it was constitutional for the State of California, in this case, to mandate that the alternative family counseling centers provide information about the options, I guess, to have an abortion and so forth. I think that both as a matter of conscience and as a matter of basically just your right to run your own sort of proprietary establishment as you see fit within the confines of common sense, more or less. I think that they should have the right not to provide that information, because it runs directly countered to their ethical mission in a way that in and of itself doesn't do any harm to anybody. People know where they can find information about abortions if they want that. Yet, the State of California saw fit to restrain their operations in a way that seems super oppressive on some level. Legal access can go on either direction, that’s absolutely true, but I was happy to see that decision come down from the Supreme Court as evidence of a conservative position on the law that I thought was reasonable.
Ciaran: I think John alluded to an important distinction between legal considerations and moral considerations, the latter of which you would see greatly divergent views from the two sides. When you think about legal considerations, if you're an originalist, someone who believes that we should hew very closely to the explicit language of the Constitution, obviously, abortion is not mentioned in the Constitution.
John: Yeah.
Ciaran: Privacy is not explicitly mentioned in the Constitution, who's to say that states can't make laws regulating this? Because generally, an originalist would say things that are not specifically addressed in the Constitution should be left to the legislative branch and individual states. I think a lot of progressive jurists and progressive legal minds would argue that there are moral considerations as well that the constitution is a living document and you have to weigh those considerations. I think many of the most important Supreme Court justices that have advanced equality and advanced the cause of justice have tried to tow that line in a way that more conservative justices wouldn't. So I'm not necessarily passing judgment on either side, because I think there's an argument to be made, particularly on the legal side, that liberals might have more difficulty countering. I think that's just another thing that's interesting to keep in mind. I think you can see that reflected when you read the opinions of the various justices, in terms of what they're emphasizing. That's another very polarizing divide within the court.
John: I think that that's a great dynamic to bring up, because I have a certain tension within myself in terms of the way I think about these things, owing to a similar dichotomy, this issue of the moral versus the legal. In general, I definitely believe that, even in cases where the moral implications of a certain policy is one that is regrettable, it's still important to uphold the integrity of the law and the way we think about the law because that winds up becoming the foundation for everything else. But it's not always an easy thing to reconcile. I think about, for instance, Ciaran, you just said that in the past, conservative justices were probably, in general, less likely to rule on cases in ways that would be supportive of, or in the other direction even be exacerbating of inequality and very pernicious types of inequality, such as we observe with Jim Crow segregation and other things. I think that that's true. I think for instance about the Civil Rights Act of '64 and so forth. I remember Rand Paul got to a lot of trouble a few years back. I think, he was on MSNBC or something like that. They asked him a question. They said, "Was the Civil Rights Act constitutionally?" I think he said something like, "Probably not." It's not like he's a segregationist or anything like that. But part of what the Civil Rights Act did was, it didn't just prevent racial discrimination through public services, like the public school system and government run institutions and so forth. It went a step farther than that and actually told private business owners how they ought to operate their establishments, making the case that you cannot deny service to people on the basis of race. Obviously, this case history becomes relevant today with the baker and the gay couple and so forth. I guess, we can talk about that, too. But when I look at that, I sort of sympathize with the conservative constitutional logic there, and that was the case that Barry Goldwater was making in the '60s. It's interesting because Goldwater - Goldwater was not, if you actually look at his personal history, pretty clear that he wasn't a legit racist or a person who was promoting segregation personally. But he felt that folks in the south or anywhere had the right to segregate or to deny service to people on the basis of whatever it is that they want to decide on. That ultimately, the market of social condemnation or approval would sort it all out. From a legal perspective, looking at the Constitution, it's not immediately apparent to me where he's wrong in that, and yet, I do think that society has largely benefited by the civil rights movement, the movement towards integration. If I can name drop a little bit, I was talking to Avik Roy, who's this brilliant conservative leaning policy analyst, a younger - younger guy, anyway. He was making the case that, well, if you look at court cases, Supreme Court cases that preceded the Civil Rights Act including something regulating interstate commerce, where I think that there was a decision rendered that said something along the lines of, well, there was already a law saying that you couldn't deny service to interstate travelers, in accordance with the interstate commerce clause, and there's a law saying that you couldn't deny service to white people who are traveling interstate and that equal protection therefore means that if you can protect white people in that way, you have to protect black people in that way. There are indirect ways to justify constitutionally. But just fundamentally speaking, I can definitely see situations where it's like, "Geez, you know what, the law is wrong, but this may be right." Even still, I feel like… And I'm not regretting history here because what's done is done. I'm glad that it's done from where I'm sitting now. I'm still really reluctant to say that we got to make the law such an elastic thing, because I think that that's how societies fall apart overtime, whether it's the French Revolution or anything else. I think that when people start losing respect for what the law is supposed to be, then you invite a lot of trouble there. So it's difficult. I'm not saying it's not.
Ciaran: I think it's important to consider the moral implications of law and policy in determining their constitutionality. If private businesses are allowed to continue discriminating, that is going to advance inequality, which goes against the 14th Amendment, which has been interpreted to secure that equality for all citizens, particularly protected classes or classes of people that have traditionally faced discrimination. That comes to mind. And the other thing this discussion brought to mind was Samia's views on this topic as a woman, and particularly, the distinction between legal and moral considerations for the court. I don't know if I'm allowed to ask you questions, Samia, but that just popped into my head.
Samia: I actually would like it if you guys would start ask each other questions, yeah, to delve into the issues more and see why personally and emotionally and viscerally, you both feel the way you do. Let's get deep. Let's get into your personal stories.
John: Yeah, right. Let's see how visceral we can get about constitutional law here.
Ciaran: Right.
John: The reason I brought up the Civil Rights Act, I'm suddenly now conscious of the fact that people are hearing me but not seeing me. I am a black man. I'm biracial. My father's side of the family is white, my mother's side is black. And so, you know, if that law had been struck down as unconstitutional, there would still be lunch counters in America that I could not eat at. So I'm painfully aware of that as I think about the Constitution and so forth. But geez, I just think that the American experiment is such an incredible thing, because I feel like in this country, people have a history of really taking the law seriously. And I think that when we think in terms of law, a lot of times people think of terms of like coercive restrictions and so forth. But in a constitutional framework like we have, it's so cool, because the idea is we all have an ability to change the law. There's a process that's really complicated and there's legislative aspect to it and there's a judicial aspect to it. I’m a weirdo, because I've grown up very interested in politics and civil society and so forth, from the time I was a little kid. I always had a little bit of a reverence for the history of this country and the Founding Fathers and so on and so forth. So I take all that stuff really pretty seriously and so forth. I think that it's important to honor that. I hear folks - not Ciaran necessarily, although Ciaran, I'd be interested to know how you feel about this - when I hear people on the left saying that they look at the Constitution as a living, breathing document, I feel like that is kind of an attempt to run around what the Constitution is actually saying in many cases. Precisely because it is difficult, right, to get it passed and so forth, to amend the Constitution and so forth. And it's just so much easier to think like, “If we can just get the right people on the bench, they can interpret it however they want and the right things will get done at that point." It's hard enough to get a bill passed through Congress, right, let alone amend the Constitution if that's what we want to do. I feel like that's really subversive, somehow. Even if I get why. And I'm just wondering, do you have the same reaction if you listen to people, sort of more left leaning legal perspective, talking about it and so forth? Do you ever feel like there's a little bit of political or intellectual laziness at work, or something else that might be dangerous?
Ciaran: Yeah, certainly. I think there's a danger of dismissing the Constitution or wantonly massaging it to meet your political agenda. I think there's massaging on both sides. The right is taking an originalist approach…
John: Too much massaging in politics, that's the problem.
Ciaran: Yeah. Not enough massaging in other areas.
John: Yeah, that's right.
Ciaran: Even if you look at the Citizens United case, which was addressing whether the legislature had the right to regulate campaign finance. I believe the conservative majority essentially came to the opinion that the First Amendment protected corporations’ rights to spend unlimited amounts of money in politics, essentially equating money and speech, which I think some would argue was a bit of a massage, as the British would say. It also just brings to mind, during the 2012 election when Mitt Romney said, "Corporations are people, my friend," which we mercilessly harped on during the Obama campaign.
John: He wasn't completely wrong, though. Corporations are made of people..
Ciaran: They're made up of people.
John: Therefore, they're kind of people, aren't they?
Ciaran: I suppose. I think corporations, their primary goal is to increase value for their shareholders, whereas people are, you would hope, not entirely driven by profit. And just to go back to your question about our democracy, I think I agree with a lot of what you're saying, but I think there's also a significant breakdown in many of the processes and institutions that are protecting democracy and self-governance in the United States. Even if you think about amending the Constitution, which requires, I believe, three-fourths of state legislatures.
John: Yeah. It's a big hill.
Ciaran: And when the vast majority of those state legislatures have been compromised by gerrymandering, or by money and politics, by forces that have sort of corrupted the democratic process and negatively influenced the impact of the people and its accurate reflection in policy, I think, those are important things to consider as well, because those regulating institutions have always depended on people operating in good faith. You know, the idea of the commons. The Senate was designed to be a thoughtful and deliberative body, which it obviously isn't anymore. In some ways, we have to think about, to move forward and to protect and strengthen our democracy, do we need to consider some, not necessarily radica,l but significant changes to some of our core structures, institutions and processes?
John: Yeah, right. I definitely think that the legislative branch is the one that needs rehabilitating first. When I was talking about people being politically lazy, part of what happens is we just get this sense that justices are going to be the cure-all, I guess. You get the right people on the bench so they can block or, I guess, re-construe the constitution so as to ratify any number of things that you just can't get done through the normal legislative process. I just think that there's something lacking in that kind of attitude about it. There's never want for hypocrisy on both sides of these issues, I think. The Merrick Garland thing is interesting, because when Mitch McConnell and others were pushing to delay that vote, they were pointing to the fact that, I guess, there was some previous history of the Senate or the Congress delaying confirmation votes until after an election. Although I think that was probably the most extreme case of it, right? When did Obama first nominate Garland? Was it like a year out or something, or…?
Ciaran: It was definitely at least eight or nine months before his term. I know by far, it was the largest window that had existed.
John: Right.
Ciarran: Just speaking of the hypocrisy - by that logic, it would make sense to hold off the vote on…
John: On Kavanaugh.
Ciaran: …on Kavanaugh until after the midterms.
John: Right, but that's exactly my point, because Dick Durbin is now making the same argument on the Democratic side. You know, he was on Meet the Press, and I heard Chuck Todd making the case to him. He said, "Well, wait a second. You hammered Mitch McConnell for this back when McConnell was doing it, what makes it right for you?" His response was basically that, "Well, the fact that McConnell did it in the first place is what makes it right for us now." In other words, he seem to be saying that, "Yeah, I was telling Mitch McConnell that this was not the right thing to do back then, but since he did it, the precedent has been set."
Ciaran: Well, it puts Democrats at a competitive disadvantage, politically speaking, if they are resistant to stooping as low as the Republicans, one could argue. Perhaps morally, that contributes further to the degradation of our political culture.
John: Yeah, that's my point. That's the whole polarization dynamic right there. That side did it, therefore we should do it, and then it just becomes, like, the cycle is in place there and it never breaks, you know? I see that playing out here. Not to say that I don't sympathize with Durbin a little bit, in as much as just like, yeah, because you’re right, you do put yourself in a competitive disadvantage as a party. You really do if you take the high ground on that. This is why I'm so concerned about the way regular people deal with these things, because at the end of the day, it's like, you rely on the judges and the politicians and so forth. It's going to be difficult to fix so many of the more fundamental problems that we have here.
Samia: For me and a lot of liberals that I've spoken to, the problem with what's happening with the Supreme Court is that it's not necessarily reflective of what the majority of the country wants. For me personally, the fact that there's only three women in a group of nine people who are making these huge decisions for all of us is a clearly unfair thing. I'm not comfortable with men making decisions for me. And also, a lot of progressives are very passionate about the idea that a conservative leaning Supreme Court is bad for minorities and women. People are very scared right now, so I want to hear you guys talk about that. Like John, you're such a caring person, you're also a man of color, so I know you sympathize with minority communities. But do you see a problem with a Supreme Court that is so conservative leaning and not necessarily reflecting the desires of the majority of the American people?
John: Yeah. I've got a lot of feelings about that. On the one hand, I hear what you're saying. There's a real natural tendency to want to say that, look, in a representative democracy like we have, it makes sense that we would be represented by people who can, as much as is possible within the realm of their also being qualified and so forth, sort of relate to the experiences and so forth that people have in life and have that inform the decisions they make whether from the bench or in office, or whatever the case may be. I think this is what Obama was talking about when he… when President Obama was talking about the importance of a justice having empathy. I think that's the word he used when Sonia Sotomayor was in the process of being confirmed. But then I think about the conservative response to that, which is just that, frankly, understanding what the Constitution says doesn't really require empathy, it just requires understanding what the interpretation of the document is. So it just gets back to what it is Ciaran laid out before, the difference between the legal consideration and the ethical consideration. Now as far as being a person of color goes, in particular, looking at the prospects of there being a really conservative Supreme Court going forward, it all just depends. I think that one issue people are worried about is the issue of voting rights, right? Things like voter ID and so forth. And on the voter ID issue, though, it's another one of those to where I definitely have a policy opinion about it. I don't actually mind voter ID, just as long as the way it's carried out is one wherein the state is taking it upon itself to make sure everybody has IDs. So I don't mind it being required, as long as the effort is exerted to make sure that everyone has it. Because I think that there is something to be said for the spirit of the law. I think that ultimately - well, just the overriding ethic of our society is that we give everybody as much opportunity to participate as we can. But I'm not sure that that invalidates, just from a legal constitutional perspective, a contrary sort of view there.
Ciaran: Yeah, I think, again, it comes down to the distinction between purely legal considerations and the moral implications of the law, which I, in this case, think are paramount. I think our democracy is based on people being able to make their voice heard. And I think one party is trying to make it easier to vote, and the other side is trying to make it harder to vote. I think that a lot of Republican leadership is cloaking what is essentially a cynical partisan play within this myth of widespread voter fraud, which has obviously most notably been pushed by President Trump, when he said that three million fraudulent votes is what tipped the popular vote to Hilary Clinton. On that issue particularly, I think, I agree with John that the state should be doing what they can if they're going to get everyone an ID, or make sure everyone is registered automatically, or make sure there's enough polling places. I mean, you see in a lot of states that are controlled by Republicans, they're actively cutting the number of polling locations so that the lines are over an hour, which just seems like a relatively obvious deterrent when it comes to voting. I think there's number of things we could do to make it easier to vote without compromising the integrity of our elections. Maybe making the election on a weekend, so that people who have 9 to 5 jobs can vote. But I think, from a purely judicial and constitutional perspective, I take John's point. Unless you can show that the government's efforts to change the voting laws were explicitly racially discriminatory in their intent…
John: Yeah.
Ciaran: …which has been shown in North Carolina, for example, they got racial data on voters that was used to inform their redistricting. But ust to get back to the larger question, because I think the voting rights issue, it's a very polarizing issue, but it's very important because it's one that's so fundamental to our democracy on a really basic level. I think, just to jump back to Samia's original question about the makeup of the court, Democrats have won six out of seven of the last popular votes for president, and yet, they are in the minority on the Supreme Court. So if you look at that, on the face of it, it doesn't seem like the Supreme Court represents the country. Obviously, the makeup in terms of race and gender doesn't represent. And obviously, the last two women who were appointed were appointed by President Obama. And I think it just mirrors this overall impression that there is on the left. When you see the photos released of the White House, of President Trump signing an executive order or surrounded by his cabinet, it's twenty white men making decisions about immigration policy that are predominantly affecting populations of color. So clearly, there's a disconnect there. What can we do about it? And what can we do about it from a legal perspective, and what should we do about it from a moral perspective? And how can the interpretation of the law take in account the moral implications that are made by those who lead us, especially when we feel that those who lead us do not accurately represent us, often because of some of these structures that some would argue, bastardize our democracy?
John: Well, so I live in South Central LA, right? On the voter ID issue, I was watching some conservative YouTuber the other day do a man on the street segment, where they went to a college campus. The headline of the video said something about what smug white liberals really think of black people, something like that. The person went and interviewed, you know, just did little passerby interviews with white progressive college students, asking about the voter ID issue. And they're like, “Oh no, it's racist, because a lot of black people don't have IDs. Or it's harder for them to get to the DMV," and so forth, coming from this compassionate place. Then, they interviewed black people just outside of the campus, asking the question like, "Do you have an ID?" And they’re like, "Of course, I have an ID." "Do you have trouble getting to the DMV?" And they’re like, “Of course." He's like, "Do you know that these college students are saying that black people don't have IDs?" They're like, “Uh-oh, why would they say that?" "Do you think that's kind of racist?" "Yeah, I think that's kind of racist." I'm listening to this like, "Oh God, this is just so dysfunctional on so many levels." I'm giving credit to your point, Ciaran, because most black people do have IDs, obviously. But when you get into entrenched pockets where people really are poor and really do lack access to resources and so forth, that's when the number or the percentage of people who don't have IDs or don't have an easy time getting to the DMV or what have you, you know, your single mother with three or four kids who's got to work nine or ten hours a day and isn't going to be able to take off work to go vote, standing in line for two or three hours to cast a ballot. That's where that issue becomes acute. And in elections, it does matter. I see people in my own community who are activists and are out there registering voters and so forth. They know that elections are made up along the margins frequently. It's like every vote counts. You pass a law that makes it harder to make people to get ID, it will likely make a difference in certain circumstances and so forth. Although, to the point about voter ID being looked at as racist, I will note that I think that if history serves me correct, I think that Jimmy Carter headed a commission for Bill Clinton back in the '90s to address the question, I guess, of voter integrity or voter fraud, however big or small problem it actually is. It was Carter who, I think, supported that idea back in the '90s. I guess Clinton, whether tacitly or explicitly sort of supported it. But I get the concern. And there's some reason to think that if you had a more colorful court, so to speak, that you'd have a wider range of cultural empathy. Maybe that does count at a legal perspective in some way. It's always possible that it really just doesn't matter in as much as it's not necessary for understanding how the law need be interpreted. The more we talk about this, the more I don't know, and it would be good to reflect on a lot of things. But that's just my basic… my inclination is to just be concerned about a society where we're just like, forget the rule of law. Because then, to me, that's when things start to fall apart potentially.
Ciaran: Yeah. I think what you said about the spirit of the law is important and addressing the way things are, not necessarily the way we want them to be or the way they are envisioned in their purest constitutional sense.
John: Yeah.
Ciaran: I also think it's important when evaluating these policies to really look at the data, because I think the data can really illuminate the discrepancies in terms of the disproportionate impact of what I would argue is voting-restrictive laws on not just communities of color but also the working class. Also, the data that we have available on the prevalence of voter fraud as a phenomenon, I think, is pretty clear in terms of how negligible it is. {eople can argue about the interpretation of the facts. And I guess this also just speaks to a larger sort of epistemic crisis that we're having in this country, where people only really believe facts if they conform to their tribalistic identity. There's a study I read where they basically had voters, half of whom were Republican, half of whom were Democrat, and it didn't matter what the actual policy was. What mattered was the political affiliation attached to it. So if it was a clearly progressive policy that was presented to Republicans but it was identified as a Republican policy. they would overwhelmingly support it and also come up with ideas for why it was a good Republican policy, and vice versa. So I think that trend is increasing and is very worrisome. But yeah, I just think to sum up, it's really important to just keep in mind what's actually happening on the ground and what's affecting people's lives and affecting whether our leaders truly represent us.
John: What do you think both in terms of policy, and I think I know what you're going to think here, but in terms of that and in terms of constitutionality, what do you make of the Muslim ban or what's been referred to as the Muslim ban? Because I think that there's something interesting to unpack there but I'd be curious to know your thoughts on it generally.
Ciaran: Again, I don't have an intimate understanding of the case law that's relevant. I think on its face, the Muslim ban seems to very clearly discriminate on the basis of religion, which strikes me as unconstitutional. I mean, President Trump made very clear that it was a Muslim ban, that was his phrase. And then of course, his administration tried to backtrack and say that it was not a ban and that it was actually geographically targeted. So again, I can't speak to the legal intricacies because I haven't really studied this stuff. I don't have a law degree. But I think on its face, it seems unconstitutional and again, sort of the spirit of equal protection under the law and religious liberty. Then also, it just strikes me as morally reprehensible and not representing American values in terms of being a beacon to the world. And then, as a tertiary, I think it is also very counterproductive in our fight against extremism, because it can be used as propaganda and show that we're discriminating against Muslims and it reinforces this idea that this is a conflict between the Muslim world and the Western world. So on a number of fronts, I thought it was very repulsive. And I think that's why you saw a lot of protests. And I almost think sometimes the protests backfire, because then conservatives, in some corners of the internet, can use it to reinforce the argument that liberals are hysterical and being completely guided by emotion rather than logic.
John: Yeah.
Ciaran: So that's another point.
John: Well, I found myself feeling a bit hypocritical about something here, because I more or less feel the way you do about the policy. But on the constitutionality of it, I figured, he called it a Muslim ban and so forth. But truth be told, it's not as if Muslims in general are being barred from entering the United States. It's people from a select number of countries which presumably represent some particular national security threats. And that list seems to be pretty ad hoc to me. It just seems like dysfunctional policy and a dysfunctional rationale for it on all sorts of levels. But on the constitutional issue, I thought, regardless of what he called it, and maybe it's up to a judge to just look at the way it appears on paper and say, "Okay, but this is the way it's structured." He may have called it a Muslim ban. Maybe he was trying to get votes from…
Ciaran: You're saying you don't think the justices should consider the rhetorical context on president’s statements when evaluating…
John: Yeah…
Ciaran: …the intention of a policy?
John: I'm saying, this is the thought process I was going through in thinking about it. Because yeah, I mean, I think that there's an argument to be made for that, because you can say all sorts of things in the course of wanting to get votes but then turn around and actually structure policy in a different way.
Ciaran: Right.
John: But where I found myself feeling like, “John, you might be a little hypocritical on this,” is in thinking about the Supreme Court decision on the Affordable Care Act. Because I remember when that happened… I was never a person who was super furious about ObamaCare or whatnot. I never liked it as a policy, but I also I didn't think it represented like a Marxist takeover of the US government or anything like that either. To me, it was just kind of - I mean, it's a complicated issue - but to me it was just kind of, just a policy that I didn't like, but nothing more than that.
Ciaran: I think, originally, it was actually a conservative policy, ironically.
John: That takes us…
Ciaran: It came out of the Heritage Foundation …
John: Yeah, yeah.
Ciaran: …and Mitt Romney, you know, Romneycare was the precursor.
John: Yeah. That takes us down another lane.
Ciaran: Right.
John: But remember though, the thing that was most constitutionally dubious about it was the whole point about the individual mandate. Can you make people buy healthcare and so forth? And me, being young and irresponsible and so forth, I was one of those young… what do they call them, young invincibles and so forth. I wasn't buying health insurance because I was in pretty good shape and didn't necessarily feel like I needed it and I was pretty broke at the time, anyway. I was trying to do other things with my money. Then I got hit with a big tax bill after I didn't buy it the year after. I was like, "Oh, crap, now I got to pay this?” And geez.
Ciaran: Right.
John: First world problems, I know. The thing is that on a constitutional level, John Roberts employed what they call a saving construction, right, because the idea was that the individual mandate was a mandate and that you penalize people for not buying something. To many people, that sounds like a really unconstitutional thing to do. Where in the constitution does it say you can make somebody buy something, right? So Roberts kind of reinterpreted it and said, "Actually, what it really looks like is a tax on paper." So like the Democrats in congress called it a mandate and so forth, but the courts called it a tax. On the basis of that, it suddenly had a constitutional room to it and that had a lot to do with how they justified upholding it. And so with respect to the Muslim situation, again, just a straight-up constitutional perspective, it seems like either the court was right ultimately to say that the Affordable Care Act was constitutional on the basis of what it was as opposed to what they said it was, in which case, it makes sense to support the constitutionality of Trump's policy. Or it's the reverse. Or it's that, no, you got to look at what they actually say as opposed to just what they actually write down. It's really easy to let your - and I'm talking about myself here - it can be easy to kind of let your own ideological bias steer you in a direction where if you're not being really careful, you wind up taking a position on one thing in the name of being intellectually honest that actually makes you a hypocrite on the last thing you said a few years back. I feel like I see this happening with people all the time in American politics and American society. I don't know, I guess it just goes back to the whole polarization thing. I'm not super comfortable entirely with some of the implications of my own constitutional philosophy, just because I don't think the Constitution is a perfect vehicle to ensure equality.
Samia: You brought it back around to something I've been dying to ask and see what you guys both had to say, which is that, I understand the conservative focus on respecting the Constitution. I understand where constitutional originalists are coming from. But does it make sense for us in the 21st century to be so devoted to a document that was written by a bunch of white men in a time when slavery was okay and women couldn't own property?
Ciaran: Yeah. I was actually just… because when John said, "Maybe we need to acknowledge that the Constitution is imperfect." I think it's sort of by definition imperfect.
John: Yeah.
Ciaran: The Constitution is based on the pursuit of a more perfect union, and obviously much of the Constitution contains… You know, defining slaves as three-fifths of human beings. Obviously, that was later amended, and I don't want to put words to conservative's mouths. I think a lot of them would argue, well, we do have a process for changing the Constitution, and that was laid out amending it and there's a specific process for that. But I tend to agree with Samia's point about considering the context, and frankly, just how much time has passed and how much the world has changed. Maybe it's really a problem with how hard it is to amend the Constitution. I don't know.
John: I'm all open to a conversation about changing the Constitution, as long as we change the Constitution according to a constitutional process, which takes us right back to the issue where we started on there. I agree, it's hard, but I think that it should be hard. I mean, a constitution that was easy to change would be kind of worthless, and that's what I'm afraid happening, with respect to like legislating from the bench and so forth. But I've got a lot of confidence in people at the end of the day. I think that the answer to so many of the problems that we throw to the courts and even throw to Congress or things that obviously a working government needs to address in productive ways, but I think that ultimately people in their own society, that is to say, you and me in the cultural domain, having a conversation of our own values, what do we feel is right? What do we feel this wrong? Okay, we have different opinions on how to do things, but what are the values that we share and so forth? I feel like as we connect on those things on our own personal lives, it makes it a lot easier to be patient with all the political stuff.
Ciaran: I totally agree. My impression, John, is that I think a lot of your conservatism flows from a place of optimism and humanism, which I think is really interesting. It's interesting because I think progressives would sometimes try to take that same mantle of, "We're a humanist and we want to protect all classes." So I think it also comes back to the constitutional question - can a document that was rooted in a patriarchal and racist context be an explicit guiding post for our society, when keeping in mind that those structures are still very much present? Or can we just rely on the arc of humanity in America toward a more just and tolerant and accepting place?
John: Ciaran, if I could return your irony-flavored compliment to you, I would say that your progressivism comes from a place of genuine concern for the rights of people, for the importance of upholding the dignity and recognizing the struggles of diverse groups of people. Yet, I think that in listening to you talk here today, it's clear that you have a respect and an appreciation for the need for there to be integrity in the law. And I wonder if there are ever points in which you wonder yourself whether or not some people are stepping away too quickly from embracing the mechanisms that have kind of like undergirded the stability of our society, owing to the Constitution, and even those so-called racist white men and so forth, who actually did a pretty damn good job of drafting what I think was probably the most amazing political document ever put together, granted all of its limitations and the fact that it couldn't see the future and so forth and all the things we're dealing with now. So that's just the thing we got between us and maybe somewhere in the middle, man, we can find the right place to stand.
Ciaran: No, I totally agree. And I really respect your humility, and it's something that I seek to emulate as I engage with differing perspectives, which is what Better Angels is all about. Getting people to engage with those perspectives in a way that's not pressuring them to temper or water down their positions, but to engage in good faith. It all comes back to good faith, I think.
John: Amen, brother.
Samia: John and Ciaran, thank you so much for being on the show. I love the way you guys just wrapped it up. But if either of you have any final thoughts, this is the time.
John: Well, Samia, I just want to thank you for what you're doing with the Make America Relate Again podcast. It was a great show before it was associated with Better Angels, but I feel like Better Angels and Better Angels Media is so much richer because of it and because of your contribution, just the culture of our community and so forth. And it's becoming a really big part of what's making our overall endeavor to depolarize America, to get folks, reds and blues, on the right and on the left realizing the humanity that we all share. We're binding ourselves with that. It’s become a really great and dynamic part of that. So it's a real pleasure and privilege for me to be on with you guys today, it's really great.
Ciaran: Yeah. I would just echo that I think your…
Samia: Thank you.
Ciaran: …charisma, creativity and professionalism sets a pretty high bar that John and I don't always meet ourselves, so goals.
John: Kudos.
Samia: I asked you for final thoughts and you just blew me up and now I'm blushing, thank you. The pleasure and the honor is all mine. Thank you so much for being on Make America Relate Again.
John: Thank you, Samia.
Ciaran: Thanks, Samia.
MUSIC
Samia: John and Ciaran are clearly masters of civil political discourse, and we could all learn a lot from their example. They both work every day to depolarize America, and I'm so happy to be on their team. Even though I disagree with John on lots of things.
Next week, I have something really special for you. Cindy and Diana Kyser are sisters who once shared political views, but in the last three decades have veered from each other tremendously. But what's so cool about these two, the first pair of family members ever to be on the show, is that they came to me because Cindy, the conservative, sent me an email saying how since the 2016 election, she has been gripped by a growing need to understand her liberal sister, Diana. That's right, liberal listeners, you are finally going to get to hear a conservative who wants to understand. I know you thought it doesn't happen, but it does and you're going to get to listen to their incredible conversation, recorded with Diana in Brooklyn, Cindy in Arkansas and me in Osaka, Japan, next week on Make America Relate Again.
For a transcript of today's show, go to makeamericarelatepodcast.com.
To find out more about Better Angels and to become a Better Angel or workshop organizer yourself, go to better-angels.org.
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Special thanks to Podcast Center LA and Mike Nease for recording this conversation, Dukyun Studio in Seoul for recording my intro and outro segments, Dani Valdizan for creating the theme music, and Christopher Gilroy for mixing and editing this episode.
This is Make America Relate Again. See you next week.