August 11, 2022

Opinion | Let’s Talk About How Truly Bizarre Our Supreme Court Is

ezra klein

I’m Ezra Klein, and this is “The Ezra Klein Show.”

[MUSIC PLAYING]

So before we begin today, we’re looking for a managing producer for “The EK Show.” This person will run our operations, bring some more logic to them, oversee our processes, manage our producers. Editorial and management experience here is a must and so particularly is a genius for process and schedule. But your experience doesn’t specifically need to be in audio.

We’re looking for the right person, not just the right resume here. So we’ll put a link to the listing in the show description. And if you apply, do not forget the cover letter. We don’t look at applications without them. All right, on to today’s show.

This is going to be a crucial year for the Supreme Court. Stephen Breyer is retiring, the 6-3 conservative court is expected to flex muscle on really the most divisive issues in American life, abortion, affirmative action, guns. They already did vaccine mandates. And so this is the time, I thought, to bring on Jamal Greene.

Jamal Greene is a professor at Columbia Law School. He’s the author of a book called “How Rights Went Wrong.” And in it, he argues that America does constitutional law all wrong, that we do it in a way that other countries don’t, in a way that is tearing our country apart. And the key mistake, he says, is that, quote, “U.S. courts recognize relatively few rights, but strongly. They should instead recognize more rights, but weakly.”

So let me unpack that for a minute. Greene’s argument is that U.S. constitutional law is built around a canon of cases that have shaped not only the legal character of the judiciary and the way it thinks, but also its social and cultural dimensions. He’s got this great idea of the anticanon, the cases that stand as an example of where the Supreme Court went badly wrong, the things that lawyers swear they’re never going to do again.

Every lawyer learns the anticanon. So do most school children. Dred Scott v. Sanford, Plessy v. Ferguson — these are the cases where the court wiped out the rights of human beings, particularly, of course, Black human beings. And it stands against the canon, the cases where the court got it right: Brown v. Board, Loving v. Virginia, the cases where the court stepped in front of politics, often in front of the majority of the country, and protected the fundamental rights of human beings.

And to Greene, the legacy of these cases, the desire to not get it wrong in that way again, has created a strange and poisonous way of thinking about rights in America. For one thing, because American courts believe the government has to protect a right at all costs — because that’s almost how we define a right — we only recognize rights we think we can protect. That’s what he means by “recognizing few rights strongly.”

Other countries, they recognize more rights, but they don’t assume the government can fully establish them. And so a right to education or shelter, it may be recognized, but the government may or may not fulfill it. And so in other countries, courts mediate between the more numerous rights they recognize, the capacity of the government to fulfill those rights, and the social conflicts over those rights. And they recognize also, more often than our courts do, that rights often conflict with each other, that they do not stand alone.

But because America recognizes few rights but recognizes them strongly, we’ve inadvertently set up a contest to try and convince the Supreme Court that whatever it is you want is actually a right. Because if it can become a right, then it’s unassailable. And Greene argues that this raised the stakes on both political and legal conflict beyond what the country can bear, that it’s led the Supreme Court to these bizarre contortions where it’ll protect corporate absurdities that are framed as free speech, and then ignore human necessities because they’d be too difficult to secure.

And it’s created a situation where legal argument in America, it’s a dizzying tower of rhetorical abstractions trying to find or argue for rights in this fog of constitutional interpretation, not, as it often is in other countries, more pragmatic arguments meant to balance the complex needs of a diverse society. This, for Greene, is incompatible with the country we’ve become and, even more so, the country we need to be. It’s made the stakes too high and the decisions simply too weird.

In a lovely line, he writes, “The last century gave us constitutional tools to fight political exclusion. In this century, we need the tools to build a politics of pluralism.” And so what would it mean, under these circumstances, to build the legal tools of pluralism? How do we lower the stakes of the Supreme Court and create a judiciary that can ease our conflicts rather than exacerbating them?

As always, my email is [email protected], if you’ve got guest suggestions, recommendations of things we should read or look at or think about or listen to, or just feedback. Here’s Jamal Greene.

Jamal Greene, welcome to the show.

jamal greene

Good to be here.

ezra klein

So the news of the day, as we’re talking, is the retirement of Justice Stephen Breyer. But even if Biden does get to replace Breyer, the court remains the 6-3 conservative majority we see right now. So I want to look at this with some length to it. How do you think 10 years of this court will change the country?

jamal greene

I think the first thing I’d say is, we shouldn’t be so sure that there’ll be 10 years of the court. I think things change quickly and they change unexpectedly all the time. But if you’re looking at the 6-3 majority you have on the court now, no matter who replaces Justice Breyer, you’re seeing a court that is pretty eager to get some historically conservative wins pretty quickly.

That includes abortion rights. That includes affirmative action. That includes rolling back the administrative state. That includes making some progress on gun rights. That includes rolling back labor rights in various ways, increasing the rights of corporations to engage in what’s known as commercial speech.

So I think you’ll see a court where John Roberts, a very conservative person, has five people to his right. And so, therefore, he doesn’t have a lot of control over where the court goes. And I think it’ll be as one would expect, with a rock-solid conservative majority.

ezra klein

Now I want to take the counterfactual here. It’s not hard to imagine a world where Hillary Clinton won in 2016, where Democrats took the Senate that year. So imagine that she appoints replacements for Scalia, she appoints a replacement for Ruth Bader Ginsburg.

Let’s assume Anthony Kennedy steps down and she replaces him too. So we have a 6-3 liberal court. Over the same time period, how do you think that would have changed the country?

jamal greene

Well, so this is interesting, right? Because it’s not entirely symmetrical what liberals and conservatives are asking the court to do. And I think that’s why you’ve seen a lot of focus within the political right on making sure that the court is at the front of political conversations because the ways in which the court changes, a 5-4 court changes jurisprudence over a 10 year period isn’t that dramatic.

It’s sort of keeping in place a lot of what are perceived as progressive gains on things like abortion rights, on things like affirmative action. You might see a state or a local jurisdiction try to pass a pretty aggressive campaign finance law. And you might see a court try to overturn a case like Citizens United if you’re a left court.

But it’s really preserving gains and making sure that legislation that’s passed by that more progressive or more liberal federal government gets upheld. So liberals are putting a lot of faith in the legislative process. And conservatives, what they tend to want out of the court, at least the modern conservative movement, what they tend to want out of the court is striking laws down.

ezra klein

One thing that has always struck me about the role of the Supreme Court in American political and simply daily life is that it is a lot of power and flux that all hinges on whether a handful of very elderly people die or choose to retire at a certain moment. And so we talk about the court as being undemocratic, which it is in many ways. But it’s very randomly so.

Vacancies don’t come up on a schedule. Different presidents get to appoint very different numbers of justices. Is this normal, internationally? Is this how other countries do it?

jamal greene

It is emphatically not normal internationally. And it’s really a confluence of a bunch of different things. It’s life tenure, which is a big part of it. It’s also a very small court relative to other high courts internationally.

So most countries have much shorter tenures, eight years, 10 years, 12 years. And they’re picked on a pretty regular schedule because they’ve got those particular terms. And so you have life tenure. And you have this pretty small court that always sit together. They always sit, en banc is the legal term.

So you have a court that’s, in a lot of ways, very driven by specific personalities or specific justices. So if you’re someone who’s really internal to the law like me, you know what Sam Alito thinks. You know what Brett Kavanaugh thinks. You know what John Roberts thinks. You know what Breyer thinks. And that’s going to be the court for the foreseeable future. That’s really a kind of personalization of the law in ways that I think go beyond, as you say, Ezra, it’s undemocratic. But it goes beyond that in a way because all courts have some undemocratic tendencies to them, all constitutional courts anyway.

But it goes beyond that to be a very oddly idiosyncratic court. So you’re paying a lot of attention to, over the course of two decades, Anthony Kennedy is shaping the law, this single person. I think that’s actually a serious problem for the court no matter what side of the political aisle you sit on.

ezra klein

I’ve always liked, actually — to your point about this being a problem for both sides of the political aisle — my favorite part of Rick Perry’s 2012 campaign was he had a proposal for term limits for Supreme Court justices. And I’ve always wished to see that become something we actually did. But I doubt there’s going to be a lot take up for that on the Republican side right now.

jamal greene

Probably not, because it seems like it’s to their political advantage to have this court sit for a long time. But among scholars, there’s a pretty wide spectrum, ideological spectrum of people in support of term limits for the Supreme Court. And the real debate among constitutional scholars is, can you do it through a regular statute? Or would you need to amend the Constitution?

So that’s a real debate. But there’s a lot of consensus, actually, that there aren’t really good reasons to have a life-tenured court.

ezra klein

So you argue in the book that there’s something more fundamental separating American courts from international peers. And it’s how we treat rights. And before we get to abstractly into this, something that I enjoyed that you did is you have a bunch of examples where you contrast the kinds of rights the court ends up protecting and discovering and the rights the court ends up not even recognizing, much less protecting. Can you just walk me through some of those examples?

jamal greene

Sure, and a lot of the book is pointed at the gap that the way we think about rights creates between what you might call rights and justice. And I don’t want to suggest that the court should just be out roving, looking for injustices. What they do should be grounded in the Constitution.

But you have a right to watch pornography. If you’re a pharmaceutical company, you have a right to data mine the prescription drug data and try to market your drugs to doctors. That’s a First Amendment right that you have under our Constitution.

But you don’t have a right to food. You don’t have a right to education. You don’t have a right to health care, just basic things that anyone would really associate with justice. And it’s not because most people think that it’s more important that we peddle porn than people have food. It’s because there’s this very constrained, very jaundiced way of looking at rights and how far they can go and how they can be protected by courts.

That leads us to all sorts of distortions in how we understand rights. And the book tries to catalog the ways big and small that affects our politics and affects the way even people outside of courts end up thinking about rights.

ezra klein

I think the way someone might initially hear this is to say, well, wait. Isn’t the way this works that the court simply protects the rights in the Constitution and that whatever is not in the Constitution, it does not protect? But one thing you argue in the book, one thing that I think is obvious and we’ll get into more in this conversation, is the court has discovered, read in a number of rights to the Constitution. And there are other places where they could have done that. But you note that they sometimes will not, simply because it would be too hard. That a right that they can’t enforce is a right that they won’t recognize. Can you say a little bit about that?

jamal greene

Yeah, you could imagine a Constitution that just kind of lists every right that we think you should have. There’s 1,000 rights in the Constitution, let’s say. And every time you want a new right, you just amend the Constitution and add that right. And any time you want to take one away, you amend the Constitution and take that right away.

We have a very what we call a “framework” Constitution. It lays out rights and structure in very broad terms. So usually what we’re arguing about is not, does the Constitution have a right to abortion or something like that. We’re talking about whether really vague language — the right to due process of law, the right to equal protection of the laws — whether those really broad principles apply to much more specific things.

So I’ll tell you, there’s no specific constitutional right to vote. There’s no specific constitutional right against racial discrimination, things that we think of as really core rights. There’s no right to freedom of speech against a state government. Those are not specific in the Constitution, but, of course, they’re there. And the reason they’re there is because, over time and for lots of good reasons, courts have read them into the Constitution.

So it’s not really going to be adequate to say, well, we’ll just look at the Constitution and protect the rights that are there. And the ones that aren’t, the Constitution doesn’t give us enough guidance. To do that, what the courts have ended up doing over time is protecting rights in what I view as a fairly narrow way.

And as you say, because we’ve, in some sense, given rights to the courts, we really rely on courts to speak for us when it comes to rights. They speak for us in ways that are kind of familiar and easy for them to manage. So when I talk about a right to food or a right to health care or right to education, the reaction of a typical American judge is, well, of course we can’t give everyone an education.

We can’t give everyone food. That’s just too much. And so that means it must not be a right, because if we can’t manage it judicially, it must not be a right. And that’s not how other countries think about rights at all.

ezra klein

So tell me how they do think about rights. What does it mean to have a right to education in a country that doesn’t have the operational capacity to give everybody an education, or a right to food in a country where not everybody gets food?

jamal greene

So those are both rights, and I talk about this a little bit in the book, that you see in the Indian Constitution, for example. And that’s just one example. There are lots of constitutions that protect both the right to food and the right to education.

And the Indian Constitution is an interesting example because you’ve got over a billion people, mass poverty, a lack of state capacity in relation to the United States. And yet they protect those constitutional rights. And the way you protect them is not by saying, what it means to have a right is that we must maximally protect it at all times.

What it means to have a right is that that particular interest, the particular value protected by the right, is a subject of constitutional concern. It means that when the government acts in ways that restrict that right, courts have to care. It doesn’t tell you how to win the case. It doesn’t tell you whether you’re going to win the case or not. It just means that it’s a subject of constitutional concern.

And so the state has to justify itself if it’s not providing education to people. It has to justify itself if it’s making decisions that are going to impact how much food people have. And the focus of attention is on, what is the government’s justification for what it’s doing?

That’s what court cases are about in much of the world. That’s a much more granular, much more contextual, much more incremental way to think about rights and I think more productive in a pluralistic society. In the United States, court cases in constitutional law are often about, do you have this right or not?

ezra klein

An argument you make throughout the book is that, because of our emphasis on recognizing relatively few rights very strongly as long as they can be found or argued to be found inside the Constitution, that American legal argumentation is very much legalism. It’s very much how many angels can dance on the head of a pin stuck in the Constitution. And it’s not like this everywhere.

You write, quote, “Courts should devote less time to parsing the arcane legalisms, probes of original intentions, pedantic textual analysis, and mechanical application of precedent that they use to discriminate between the rights they think the Constitution protects and the ones they think it doesn’t, and spend more time examining the facts of the case before them,” end quote. And what’s interesting about that to me is that — at least in our mythos of what the court is supposed to do, at least if they are justifying their work by saying, well, we have special knowledge of the Constitution — well then, in theory, even if we don’t really believe it, it’s not just nine folks in robes telling everybody what to do.

But when you get into that more factual question of, now they’re just looking at the case before them, asking factual questions, deciding if the government is making a good-faith effort to give everybody an education, well, on whose authority? Why do you need them and not just normal politics? Tell me a bit about how you think about that question of legitimacy.

jamal greene

It is the right question to ask. The way in which courts should talk about rights conflicts should be continuous with, should be in dialogue with, the way that the rest of us talk about rights. We talk about facts. We talk about relative burdens. We talk about costs and benefits.

And there’s this mythos within the United States that that’s not what judges should talk about. That’s just something that should be part of politics. And I think it’s really something that needs to be continuous because in the first instance, questions about rights are granted to politics, that political actors should be thinking about exactly these kinds of questions. And courts need to be encouraging them to think about these kinds of questions.

Now, it doesn’t just mean that courts are just politicians in robes. They have a different institutional orientation. We talk about life tenure. We talk about political installation because courts are differently situated. They have different incentives.

They don’t have the same partisan or professional incentives that other actors do. So they can call out the blind spots of the political process. That’s an important role for courts to play. I’m not one who thinks that courts have no role to play in these controversies. But it doesn’t mean that the thing that courts are doing when they have a rights case is something fundamentally different from what the government should be doing when it has a rights case, which is seeing what the values on either side of the conflict might be, trying to make a contextual judgment about what the government is trying to do and how it’s trying to do it, and making sure that anyone who enters that rights conflict leaves it knowing that their interests have been taken into consideration in an important way.

ezra klein

So I want to keep circling this question of, well then, what is the role of the court, if it is so continuous with politics? But I want to move into some concrete examples that maybe will help us look at it more closely. So let’s begin here. The court, the Supreme Court, recently handed down two rulings on the Biden administration’s employer vaccine mandate policies. Can you walk me through at a high-level those two cases and what the court decided in each?

jamal greene

Sure, so these are two cases involving policies, ultimately by the Biden administration, but in some formal sense, by agencies within the administration. In one case, the Occupational Safety and Health Administration, the other case, the Health and Human Services Department. The first mandate is a mandate that says, all employers who have 100 employees or more need to either require vaccination or have people who are unvaccinated wear masks and get weekly Covid tests. The other policy was one that said that facilities that take Medicaid and Medicare patients have to have vaccinated health care workers.

And the court upholds the vaccine mandate for health care workers but strikes down the vaccine or test requirement. And these aren’t actually constitutional cases. So these are cases where the question is basically, is there a federal law passed by Congress that gives these agencies the power to pass this kind of regulation?

And in the one case, the court says no because OSHA, the Occupational Safety and Health Act, only gives power to agencies to regulate workplace hazards or occupational hazards. And Covid is too broad, the court says, to be a specifically occupational hazard. And in the other case, they say it’s actually tailored perfectly well.

What I think is interesting from the perspective of the arguments in my book here is, I’ve just told you a pretty technical way of understanding these cases. And it’s very easy to imagine the listener just kind of falling asleep and saying, well, is this just some kind of technical thing? But as we all know, the temperature of these cases, the kind of jazz of the cases was that these are about people’s rights. These are about whether you have a right to be unvaccinated.

And the core problem in the OSHA case is, you have the federal government without a lot of statutory or specific statutory authority saying, basically everyone who works for a big employer is going to have to be vaccinated. Now, it turns out, and here is really where I really get frustrated with the court, is that the law or the regulation did not, in fact, require people to be vaccinated. It gave an alternative. You could either be vaccinated or wear a mask and be tested weekly.

But the case was argued as if it was just a vaccine mandate. And I think part of that is precisely because — and the court is very much a part of this — we tend to reduce a wide range of political conflicts into conflicts about whether people have certain rights or don’t have certain rights, and then you lose sight of the facts.

You lose sight of, oh, by the way, this was not a vaccine mandate at all. But it barely shows up in the court’s opinion. And that’s a problem for the court’s legitimacy. It’s a problem for our democracy.

ezra klein

I found these cases and all the legal argumentation around them, as I often do, just really baffling. Because slightly as you say, and then slightly to the side of what you say, there’s just a very clear effort to make the cases about things they’re not really about. For instance, this idea that OSHA regulates workplaces, and Covid is too big to be about workplaces.

Well, OSHA regulates all kinds of things that come in and out of workplaces. Like, ergonomics do not only exist in workplaces. Issues to lung safety and so on are not only in workplaces. But they are there as well. Fire safety deals with both things.

So then the court says, well, you can’t undo your vaccine when you go home. But on the other hand, if you catch Covid at your workplace and bring it home, your whole family gets sick. It is one way in which it seems almost like a fallacy to say that there are facts to these cases that are deciding them because, from an outside perspective, it seems 100 percent clear that you just had Republicans on the court less comfortable with the government intruding in this way and Democratic appointees on the court more comfortable with it.

And it broke down in a completely predictable political split. But we have to spend all this time pretending that it’s really an argument about the major questions doctrine or OSHA’s specific workplace powers when, to go back to the counterfactual, if Hillary Clinton had made the appointments, it probably would have fallen the other way. And it gives the whole thing a feeling of unreality to me, that we are constantly having an argument about the shadows on the wall and not the thing casting the shadows.

jamal greene

I think that’s exactly right. And I think this particular case may have driven over the edge the last remaining of those who believed in a firm law-politics distinction, because I think it is very hard to imagine this case coming out the same way if you had five Democratically appointed justices. It’s part of a broader issue, that judges tend to translate real-world conflict involving actual people, things that are not a game, are translated into these kinds of language games. And I’m enough of a realist to know that in difficult, complex, divided cases, courts are going to come out in ways that are consistent with their ideological priors.

But what that means is that what we need to be able to ask of them is to do it in a transparent way. Do it in a way that shows us exactly what is at stake. If you want to argue that you actually don’t think getting vaccinated is a big deal, rest on that, and let’s have an argument about that. Let’s have a political conversation about that instead of pretending that this case should come out on the basis of, as you say, the major questions doctrine, which is an arcane thing that you need to go to law school to understand.

ezra klein

This is what I spent the most time wrestling with in your book, which is whether or not there is value to the American effort, the effort we have in the way we treat the courts in this country to create a fig leaf of separate authority for this other, less democratic institution. And that’s a complicated way of saying this: so long as the argument of the court is that they’re not judging anything.

Their power all comes from the Constitution and they’re simply interpreting the Constitution. That’s why there’s a lot of rhetorical power in, say, the originalism of a Scalia, even if I don’t think he was always that faithful to it. Because if it’s just Scalia making the decisions, well then who are you? Why should you trump politics?

But if it’s the founders making the decisions, then it has a different weight. It seems to me that in what you’re putting forward, which is this argument that courts should recognize more rights and mediate more honestly and transparently between them, you’re asking us to trust judges to do something in the name but that we don’t truly trust them to do, which is simply judge. You’re saying that we should have appointed these people, and then their role in the government is to judge, with some reference to the legal framework of the country, whether or not things are being done correctly.

And I noticed how much trouble I had simply accepting that, which probably means I have bought into — on some level that I don’t even recognize — the court’s mythos. But I guess people in other countries just accept that: that you’re going to have these people out there. They’re called judges. And the reason they’re called judges is we’ve trusted them to judge.

Is that the difference? Is that a way a court can maintain legitimacy? They’re just supposed to be thoughtful, as opposed to have secret Constitution powers?

jamal greene

I do think that’s the way they maintain legitimacy. I will acknowledge that we may be too far gone to claw this back to the place where I think it should ideally be. And by that I mean, we have a very different confirmation process than other countries. There’s no place in the world where there is nearly as much attention paid to who’s on the court, what are the confirmation processes like?

A part of that is life tenure. And part of that is there going to be there for a long time. And they are a small number of people. So they have enormous amounts of power.

So I think that a lot of what I’m saying really has to go hand-in-hand with court reform that reduces the amount of power that individual judges have within our system, so that they go back to being people who no longer have the luxury of reading their own press clippings and are really are just thoughtful people. But I think there is something deeper here. And when you talk about the court’s own mythos, it’s Brown v. Board of Education, it’s our history of race relations and what the court’s role in that has been.

And we do tell ourselves a story that the court helped to rescue us from a deep pathology, and that that’s what courts are able to do. They are going to be heroes when the government goes to pot. And I talk about race and the role that race has played in this story quite a lot in the book.

And I think that turns out to be quite dangerous because it makes us think that the ordinary case, the ordinary case is if you can claim a right, it means the government is pathological. It means the government is doing something on the order of the Jim Crow South. Instead of saying no, no, no, no, no, the reason Brown v. Board of Education was a problem is not because rights are always sacred and must overcome and must trump everything else. The reason Jim Crow is a problem is because it involved a pathological government, and judges are the ones who have to play a role in recognizing that.

ezra klein

You have a really potent line, I thought, in the book about this where you write, quote, “The last century gave us the constitutional tools to fight political exclusion. In this century, we need the tools to build a politics of pluralism.” Tell me about that distinction.

jamal greene

I think back to the famous W. E. B. Du Bois line, which I also reference in the book, of “the problem of the 20th century is the problem of the color line.” And he said that in 1903. And that was so prescient.

The 20th century in American constitutional law, the story of that century is a story of bringing people who were excluded from our politics into our politics. Now, when they get there, in a formal sense — and roughly speaking, this is the 1960s — there is a lot of churn. When you genuinely become a pluralistic society, you can no longer, if you ever did, hang on to the myth that there is a single “we the people” who have some set of rights that always point in the same direction, or some sort of interest that always point in the same direction.

What it means to be a genuinely pluralistic society is that people are going to have really different interests. They’re going to have really different values. They’re going to have really different sets of commitments that are going to come into conflict with each other. And you don’t have a choice other than to go back to exclusion. You don’t have a choice but to try to blend those together in some way.

So a lot of the book is pointing to one of the ways in which we can start to talk about rights and pluralism as coexisting. And the only way they can really coexist is if we recognize more of them because we have to recognize that people’s rights and interests and values are going to take different forms. But they can’t be recognized absolutely because they’re going to clash with each other.

So the only real possibility for living together going forward is to think about and to build resources for trying to mediate between different kinds of rights and different kinds of commitments. Our courts have to be part of that. And our ordinary politics have to be part of that and have to understand that that’s really inherent in the idea of marrying a commitment to rights to a genuine commitment to pluralism.

[MUSIC PLAYING]

ezra klein

So let’s take the hardest possible case and talk about something the court is likely to do this year, which is they’re considering a case called Dobbs v. Jackson Women’s Health Organization, which many think will spell the end of Roe. Can you give a brief overview of the case and what you think is going to come out of it?

jamal greene

Sure, so Dobbs is this case out of Mississippi in which Mississippi has essentially banned abortion after 15 weeks of a pregnancy. This is in the second trimester of pregnancy. Under Roe v. Wade, this would be clearly unconstitutional. Under Planned Parenthood v. Casey, which is the follow-up case, the 1992 follow-up case to Roe v. Wade, also fairly clearly unconstitutional.

Casey says you can’t impose what’s called an undue burden on abortion rights prior to fetal viability. No one thinks that a 15-week-old fetus is viable. And so therefore, Mississippi is violating the Constitution as the court has understood it so far.

Of course, it’s a different court than the one that decided those cases. And the state is taking a bet — and lots of other states have taken the same bet — that this court is going to either overrule or pare back either Roe v. Wade, which has already been pared back, or Planned Parenthood v. Casey. I think that’s a good prediction on their part. I think it’s very likely that the court will pare back the Casey decision.

If I had to bet on it, and I’m not really in the prediction business, but if I had to bet on it, I’d say the court probably doesn’t outright overrule Roe v. Wade and say there is no right to abortion. But rather, says something along the lines that 15 weeks is sort of long enough for a pregnant woman to make a decision about whether to terminate the pregnancy or not.

And so it’s perfectly reasonable and not an undue burden for Mississippi to forbid the practice after 15 weeks. That sounded like that’s maybe where Chief Justice Roberts is going. But there’s very little question that the court is going to pare back Casey in some way. And it’s possible that they, in fact, overrule Roe v. Wade outright.

ezra klein

So you spend quite a bit of time in the book on abortion. And you use the legal path that took in Germany as a counterfactual for what could have happened here. So tell me what happened in Germany and what you think the lessons of it are?

jamal greene

I find this a really fascinating story. And I’ll say, I give the account of what happens in Germany as a model of what it might look like for there to be a genuine politics around abortion rights. The idea is not, we should all have the German abortion regime. It’s that this is a regime that is arrived at through politics. And it’s arrived at through politics with the assistance of the court.

So Germany has some eerie parallels to U.S. abortion cases, where the Constitutional Court of West Germany hears an abortion case right around the same time as Roe v. Wade, just a little bit after Roe. And it comes from a very different direction. So Roe v. Wade is about whether states are allowed to forbid abortion or prohibit abortion or heavily regulate abortion, given that women have rights to reproductive autonomy or some basic rights reproductive autonomy.

Germany comes at it from the opposite direction. There is an abortion liberalization law, where the federal legislature liberalized it. It had been illegal before that. It liberalizes access to abortion. And the question that the court understands itself to be answering is whether a liberalization law sufficiently protects the constitutional value of fetal life.

Now this is, from an American perspective, a startlingly conservative way to think about the question, which is, fetal life has constitutional value and you actually can’t pass too liberal of an abortion law. So it sounds like a really conservative decision. And the West German court actually upholds the value of fetal life and strikes down the liberalization law.

Now, the key is that the court doesn’t say, because fetal life has constitutional value, you can’t have any kind of a legal abortion. What it says is, this is a value that has to be protected in combination with, complementary to, the value of women’s autonomy. So these values have to be jointly taken into consideration. They have to be jointly optimized.

So what ends up happening is the court gives some leverage to both sides of the abortion dispute. And it was a very, very controversial dispute in the 1970s, way more divisive in Germany in the 1970s than it was in the U.S. in the 1970s. But what happens over time is you get a bunch of political compromises, winding up in a 1992 law that’s known in Germany as the Group Bill. And it’s called the Group Bill because a bunch of different constituencies got together, and what they end up doing is figuring out where their common ground is.

So rather than say, well, I believe in women’s autonomy. You don’t. I believe in fetal life. You don’t. And so there’s no middle ground. It’s, well, where is the middle ground? Well, we can all agree that women having some degree of choice over whether to terminate a pregnancy is a value that should be of constitutional concern. We can also all agree that we would like there to be fewer abortions, that we want people to have pregnancies that they want and have genuine choices about bringing a fetus to term.

And so the debate ends up being really focused on, how do you give women genuine choices when they’re pregnant? And the way to do that is not to criminalize abortion. The way to do that is to give lots of prenatal care, is to give lots of social services to women after they have children, to give child care, to give employment guarantees, to use the tax system and the housing system to make it easier for people who are facing hardships to become parents.

And both on the right and the left of this issue, the debate ends up really focused on those kinds of things. So you look at the controversy in Germany as a much more holistic perspective because the court requires the government to take into consideration a wider range of values.

ezra klein

When I was reading this example and thinking about it, one of the questions that kept occurring to me was whether this reflected primarily differences in the legal decisions and frameworks, or in the broader political systems. So one of the things you note is that the anti-abortion side in Germany really does come into this compromise to offer more wraparound social services. The idea is, if we’re going to make it hard for you get an abortion, which they did, you should have paid leave off to take care of a sick child.

You should have child care and expanded child care. You should have better child support. You should have help if you can’t do your job while you’re pregnant, and so on and so forth.

But a pretty big difference between German politics and American politics, between, in general, Western European politics and American politics, is you really do have a lot of these more socially conservative, economically populist or even liberal parties out there. Whereas the American right, at the exact same time Roe is being decided and politics is beginning to polarize around it, I mean, this is a period of the rise of the post- Goldwater conservative movement, the rise of Ronald Reagan, an American right that is extremely against social insurance, that sees Medicare as a step to socialism.

And so there have always been arguments for these kinds of third-way compromises and coalitions. But that that space has long been off the table in American politics because the coalition that is pro-life is also the coalition that is, at the same time, trying to get rid of welfare for, by the way, mothers, primarily, and trying to do all kinds of things that make it harder to access social insurance. So what makes you confident this was a legal difference, not a political and coalitional one?

jamal greene

So it’s a very good question. And I’m not confident that it’s entirely a legal difference. And I’m not someone who thinks that you can explain these kinds of complex phenomena through single-cause legalism. But I do think it’s part of it. And I think it’s important to not be anachronistic about these differences.

So as you say, in the 1980s, of course, the Reagan coalition is firmly against social welfare in various ways. The differences between Germany and the U.S. — in terms of the eagerness of the political parties to support social welfare — is much larger now than it was in the 1970s when these cases are being decided. And there’s lots of evidence, at least when it comes to pregnant women and families, that the way in which the German court framed the abortion conflict contributed to a willingness to provide social insurance.

And when we think about the U.S., the debate in the U.S., in part because of what Justice Blackmun, who writes the majority opinion in Roe v. Wade, frames the right in privacy terms, which focused very much on the individual choices and decisions of the pregnant woman. And there are lots of reasons to frame it that way. There’s quite a lot of nobility in that argument. I don’t mean to fully criticize it.

But what it did do is it gave an opening for those on the right who were opposed to various forms of social insurance, and particularly Goldwater Republicans who weren’t necessarily as animated by social issues but were animated by fiscal issues. So you pass the Hyde Amendment in 1976. And the argument behind the Hyde Amendment is, you Democrats or you progressives say, this is a private decision. So why should the government have anything to do with it? As opposed to making the kinds of arguments that were much more prominent before Roe, which is, if you’re going to have restrictions on abortion rights, those must be accompanied by support for people because people need help to make these kinds of choices.

People need help if they’re going to raise families. And that kind of middle ground, which was actually taken by a number of prominent Democrats including Jimmy Carter, including Ted Kennedy in the middle of the 1970s, that just goes off the table as the abortion conflict gets cleaved into, on the one hand, people claiming privacy rights and the other hand, people talking about fetal life.

ezra klein

One argument you’ll hear in this — more from the left on this side — is, well, this shouldn’t be a middle ground question. That this should be up to the person bearing the child because it’s ultimately going to fall on them. And it’d be one thing maybe if Germany was the only example. But Canada is a kind of interesting counter example here too.

So in 1988, its court decriminalized abortion at really all stages of pregnancy. And the political result, in terms of the defanging of abortion and its politics, seems to be closer to what you see in Germany than in America. There’s still disagreements. But the issue’s become more depolarized over the past 30 years.

It’s rare for a major party leader now to come out as pro-life. Now, I want to be very clear that I’m not saying that a corresponding Supreme Court decision in America would depolarize abortion. But I’m curious what you make of the Canada example, which went in the highly legal, highly rights-oriented direction, but also seems to have resulted in a less polarized politics.

jamal greene

I might push back a little bit on saying that Canadian constitutional law is in the sort of highly legalistic, highly rights-oriented direction. But you’re quite right that the Canadian Supreme Court basically struck down some procedural limitations on abortion rights and then it never, basically never got revisited by the legislature. I’m not someone who believes that you can separate the legal culture entirely from the political culture or the society.

It is certainly the case that in the U.S., abortion politics are highly contingent on what’s happening in broader national politics. And the cleavaging of the Democratic Party, the destruction of the New Deal alliance between Northern Democrats and Dixiecrats, using various social wedge issues to do that, Ronald Reagan shows up and the Moral Majority show up at a certain time in our political history, and it doesn’t mirror Canada in nearly the same way. So the cultural politics are very different in Canada than in the U.S. And there’s only so much the legal regime can do about that.

So that’s what I make of the Canadian case. When you have a case like Roe v. Wade, in which the court explicitly takes off the table the animating and central argument of one side of a divisive dispute — and what the court says in Roe v. Wade is fetuses cannot be understood to have constitutional rights — that’s a very risky thing to do in politics. And it has what, to my mind, are bad political consequences.

I’m not coming down any particular way on whether there should be some middle ground. It’s when you live in a country that has really diverse views about this and in a country where those views, the views on the right of this issue are held in good faith. And in other realms of our politics, we do care about issues like the value of life.

And so to say that this is just not something that the state’s allowed to care about at all seems to me to be unnecessarily extreme. And again, you look across the Atlantic to Germany, and they acknowledge the constitutional value of fetal life but wind up in a very different place, in part because they bring the issue back into politics instead of overly constitutionalizing it.

[MUSIC PLAYING]

ezra klein

So if you were Chief Justice and you had a movable, mutable court. I’m not saying you’ve got this court. What would you like to see done? What would balancing the rights here and taking a mediating and politically open approach look like in 2022?

jamal greene

I think, in general, there are any number of issues, including abortion rights, where I would start to change the way the court talks about these issues. You start from the proposition that the case is not about whose rights are more valuable or which communities’ rights are the ones that the court will recognize and which are the ones the court is not going to recognize. You start from the proposition of, there’s a conflict here, but often between the state and a citizen.

The state’s trying to prevent a citizen from doing something. Why is the state trying to do that? What are they trying to accomplish? Are these objectives that we think, within our traditions, are objectives that we credit and give value to? And then what are the rights on the other side?

And there are frameworks for doing this. “Proportionality” is a legalistic term, but one that is used in courts around the world, for having a kind of structured approach to thinking about the different interests on either side of rights conflicts. And it doesn’t focus most of the attention on the kind of abstract interpretive question of, are there rights at stake here?

It focuses a lot of attention on, what’s the government doing? What’s it try to accomplish? What are its purposes? Is it going too far?

ezra klein

So are courts in these other countries just bringing different tools to bear? Because, again, I think what ends up being useful about the emphasis on constitutional and statutory text analysis in American courts is the courts are saying the value we bring to this is that we understand the Constitution. We understand the laws. And we make this a country of laws.

So if they changed that and they’re saying instead, hey, is the government doing a reasonable job here? Are they being fair? Are they being transparent? Then what are they doing that’s different than, say, a political analyst like me?

I mean, I’m a pundit. I’m also trying to ask if the government is fair. But my punditry doesn’t have very much force behind it. So what separates them from me?

jamal greene

Not a lot separates them from you, other than that they are in a position. They play a certain role within the society. And they’re socialized to take a less partisan approach to particular issues, to maybe see things that a legislature might not see.

I’ll use Citizens United as an example, really polarizing case. What’s the court’s approach to Citizens United? It’s a case about corporate speech rights. Do corporations have free speech rights or do they not have free speech rights? I’m not overstating too much that this is exactly how the court frames the question.

And so when I talk about being too abstract and being too legalistic, this is what I mean. Take it out of the abstract. Do corporations have speech rights? And take it in a much more granular way to, well, what is the conflict here?

So Citizens United is an ideological corporation. So that makes it very different from General Motors or very different from Coca-Cola. Citizens United is a closely held corporation. It’s not a publicly traded corporation. So that makes it very different from something traded on a major stock exchange.

What they were trying to do in Citizens United was put out a movie about Hillary Clinton. So they weren’t putting out a TV ad, which is what the target of most of our campaign finance laws were at the time. They’re trying to put out a movie, which is much longer, much more ideological content. And it’s a video-on-demand movie, so the only people who are going to see this are people who have asked for it, so there’s no issue of captive audience.

So my point is that when we see a conflict between a campaign finance law and a company that wants to put out this kind of ad, instead of asking the really ideologically divisive questions like, do corporations have speech rights? We should be asking all of those questions like, should we think about this differently if it’s a small company? Should we be thinking about this differently if it’s a privately held company? Should we be thinking about this differently if it’s an ideological company? Should we be thinking about this differently if it’s video-on-demand rather than ads, those kinds of less culturally interesting questions.

But we used to think that what judges were especially good at was listening to facts and deciding about the relevance of those facts to the legal dispute. I mean, that’s what trial courts often do. And I don’t think that Supreme Court justices are necessarily separate from that. The notion that courts have some knowledge or some special knowledge that the rest of us don’t have, where it makes a lot of sense when it comes to a technical statute that we might not be able to parse, don’t have the legal training to parse.

But if they’re asking, what is equality? And it’s our Constitution. It’s not theirs. It’s all of our Constitution. Those are not technical legal questions. Those are questions of political morality.

And all of us have major stakes in answering those questions. And where the court intervenes is in making sure that the political branches are not missing something or not refusing to value something that’s really important within the case. It’s not deciding our values for us. That is an autocracy, not a democracy.

ezra klein

So in some of the sequence of decisions that we refer to as Citizens, Justice Kennedy, Anthony Kennedy, he writes some things that, as somebody who actually does cover politics and campaigns, to this day, I just find unbelievably bizarre about political corruption. He’s not just doing punditry there. He’s doing bad, hack-level, uninformed punditry.

But of course, on the other side of that, you have his decision in, say, the Obergefell v. Hodges case to make same-sex marriage constitutional. And the majority opinion that he wrote for that case, it’s celebrated. And that night the White House lights itself up in rainbow colors. And part of the reason liberals like the court is for these kinds of decisions, like the Obergefell decision, but also like Brown and others where, as you say, there’s a feeling that the court stepped in for freedom and equality at a time when the government would not. So under your approach, do you still have something like the Obergefell decision?

jamal greene

I think you might. And I think, from my perspective, a case like Obergefell is an easy case. But the way the court watcher, the way a law student might think about this is, well, it’s easy if sexual orientation is a suspect classification. That’s a very legalistic way of thinking about this question.

Well, no, the reason it’s easy is because there are people who are trying to get married to the partner of their choice. We all believe that that’s an important thing in our society. And someone’s preventing them from doing that for no good reason.

Some of us are going to disagree about the importance of that particular value. Some of us are going to disagree about whether there are good reasons or not. But those are the right questions to ask in a case that is fundamentally a case about political morality. How are people being affected by the government’s choices here? And what are the government’s reasons?

And I can articulate the case for why I think that it’s an easy case. Maybe someone else can articulate the case for why they think it’s a hard case. I’m not suggesting a decision procedure that tells you the answer to these questions. What I’m suggesting is that the kinds of questions we should ask are not, is sexual orientation a suspect classification, which is a meaningless question to most people. But instead, what is the nature of the burdens here? And what is the government trying to accomplish? Questions that all of us can ask and answer. Judges are not more morally wise than the rest of us. But they aren’t running for election. And so they can make these decisions without fear or favor.

But that’s it. That’s what makes them different. It’s not that they have superior wisdom about the value of marriage.

ezra klein

That conception of judges, it seems to me, is the piece of the court’s edifice that has taken the most damage over the past, let’s call it 20 years. And there’s very good evidence on this. For much of the 20th century, the party that nominated a Supreme Court justice did not tell you very much about how that justice was going to end up voting.

You had huge surprises like John Paul Stevens and others. But that got absorbed in the political system as terrible errors. And the parties have really resolved to never make any mistakes like that again. And so it’s true, of course, that these judges don’t run for re-election. But they are now nominated by people who do and who see part of their contract with their voters as ensuring that anybody they put on the court is going to be reliable for their side, which seems to me to be a very, very big problem for this kind of judging.

If we’re saying, we’re actually just going to have judges and trust them to be a thoughtfulness check, fundamentally, on lawmaking and rights and how the country is governed and structured, then there needs to be a kind of legitimacy that I think they’re losing. So you had gestured at this earlier when you said that Supreme Court reform would need to be part of this. And so I’d like to hear a bit about that.

Right now, we’re going to get a replacement for Breyer by Joe Biden, an elected Democratic president, using the machinery of the Democratic Party and his White House to pick somebody they think will be really good on their version of really good. How do you think judges should be put forward and named and put on the bench? Would it vary dramatically?

jamal greene

Let me just first say something about the legitimacy of the court on my conception versus on the status quo. I think it’s totally right that because of polarization, because of partisanship and the perception of partisanship on the court, the court’s capacity to make the kinds of nuanced judgments that I’m suggesting might be called into question. One way in which I do agree with Justice Scalia, who used to say this all the time, is that part of the reason the legitimacy of the court has been questioned is because the kinds of questions that they’re answering are questions that are fundamentally moral questions, rather than questions that look like technical legal questions.

So in the 1960s, when the court dramatically increases the range of rights questions and the kinds of rights questions that it hears, well, of course, these are the kinds of questions that we’re all going to have opinions about and we’re all going to disagree about because we’re different from each other and because we’re committed to pluralism. And so when we see courts making those decisions, it’s going to undermine their legitimacy if they make decisions in ways that we don’t like. And that’s going to happen in both directions.

I don’t think that that problem goes away if the court pretends that what it’s doing when it makes these moral decisions is making them on the basis of what James Madison thinks, as opposed to making them on the basis of the actual benefits and burdens associated with government action. I think it’s actually a bigger problem on the status quo because you make a decision for all time. If you say, this is what the First Amendment means and it’s thus and so and it always means this and here is its exact scope, then you don’t have a way to accommodate changes in view. You don’t have a way to accommodate pluralism and ways in which important facts can change over time. But on the question of, how do you nominate judges? Well, in my ideal world, the Supreme Court doesn’t have life tenure. It’s much, much bigger, in fact, so rather than nine judges, you have 16 or you have 18 or you have 24 judges on the court. And they sit in panels. And so the law is not nearly as personalized.

The stakes are different because any particular judge is not going to be on the court forever. And it’s not going to be deciding every case. And so the stakes of any individual appointment change quite a lot. That lowers the political temperature so that it looks much more like the confirmation process that we see in lower courts.

Now, of course, some of that would change if you changed the way the court is structured. But I would lean into the idea that courts do not stand above us in some moral hierarchy and say, they’re just judges. And that’s OK.

They still have an important role in society. But that role is not to be oracles. That role is to be non-political decision makers who have pretty good judgment.

ezra klein

Two pieces of this that I want to dig in on a bit. One is the larger court sitting in panels. I think people are, at this point, relatively familiar with the idea of what gets called court packing. I think this is importantly a somewhat different idea. So I’d like you to expand on that a bit and why you think it’s important. And then also I want to come back to the question of how they are named. Because it does seem to me that in an era of highly polarized parties, making it so the only way you can become a Supreme Court judge or frankly any kind of federal judge is to be in good favor in the Republican and Democratic parties, at the very least, it disenfranchises everyone who is not a loyal Republican or Democrat from either being or being well-represented by the courts. So I’m also curious how you think about that part of the naming process.

jamal greene

I’ll say a couple of things. So one is I gave some testimony to the Biden Supreme Court Commission that talks in greater detail about my own views about the appointments process and what to do about it. One of the things that I say in my testimony to the commission, which was formed to think about the question of court packing, is that I favor a larger Supreme Court. But I don’t favor court packing.

And court packing is partisan, that the idea is you don’t like the current political imbalance on the court and so you increase the numbers so that you get the person who you like, in this case Joe Biden, to appoint a greater number of judges. I’m certainly sort of on the progressive side of the ideological spectrum. But I’m pretty uncomfortable with court packing, in part, because I think it doubles down on, it leans into the idea that these are really important decisions and the court should be the one making all these important decisions for the American people.

And so we need to make sure our people are on the court. And then, of course, you’ll get a reaction from the Republicans going in the other direction. And I think this is a bad form of escalation.

What I suggest is disempowering the court. And I don’t mean the court, in general, I mean individuals in the court, by making it so that not every judge hears every case. And they are also not on the court forever. They’re just on the court for a short period of time.

And there are a number of ways of doing that. It’s pretty complicated how you can do that without a constitutional amendment. But one of the kind of wackier ideas that’s out there, not wacky in the sense that it’s bad but wacky in the sense that it sounds unusual, is you could just designate all of the current court of appeals judges as Supreme Court justices. And only some of them would be Supreme Court justices at any individual time.

You still have lots of smart people, lots of people who have lots of protection against removal, even people who have life tenure making these decisions, but in ways that reduce the political stakes of any individual appointment, so that you can go back to these being, yeah, we’re just picking some judges, as opposed to, this is the oracle who will decide all of our important abortion cases forever.

ezra klein

Are there crisis points you worry about for the court in the coming years? Which is to say, we’ve talked a bit about controversial rulings that might come down, like Roe. There’s always this fear that the court is going to do something and that’s going to be the end of its legitimacy.

I don’t really buy that. But I do wonder, in the current collision over things like elections legitimacy, if the court could survive something like what happened in 2000, where it is brought in to rule on electoral irregularities in a place like Florida. Are there things you look at with this court where you say, people aren’t paying attention to this but there is a significant or at least realistic probability of a disruptive event that could throw us into crisis if we don’t fix things before then?

jamal greene

I can imagine any number of instances in which I think people would get extremely irritated and something that goes beyond an ordinary political irritation. If you had a major statute, let’s say you pass Medicare for all in some future Democratic administration and then the court, as I think it might very well do, this current court, just figures out a way to strike it down and does it in a way that you sort of make up a new doctrine, which I wouldn’t put past the court. I think that would contribute to a sense that the court is not an institution to be taken seriously.

What I will say is, there are so many other threats to the ordinary ways in which constitutional democracies go about their work. Whatever happens with the court is sort of dwarfed by the ways in which other political institutions threaten to behave in ways that are not normal: state legislatures overturning the results of an election, for example. Or Congress installing a president or something along those lines. I think that those are much greater threats.

Where the court comes in is, in prior years, as with Bush v. Gore, if you saw genuine shenanigans happening somewhere else, you might trust the court to be an institution that can speak. And then when they speak, people will listen. But I don’t have confidence that the genuine shenanigans that I think we have good reason to be worried about can be stopped by this court. The reserve of legitimacy that you want a court to have, I think we’re maybe already at a point where it doesn’t have enough to overcome the genuine risks of serious political dysfunction that might be coming down the pike.

ezra klein

I think it’s a good place to end. So always our final question here, what are three books you would recommend to the audience?

jamal greene

I’ll name a few that have been helpful to me in formulating my own thinking around some of these issues and for people who are interested in thinking about how we can think about constitutional conflict differently. One is a book called “Rights Talk,” which is an older book from the 1990s by Mary Ann Glendon, which diagnosis some of the same problems that I diagnosed in “How Rights Went Wrong.” But she’s a conservative. So seeing how these problems can be seen from across the ideological spectrum and where there’s actually a lot of common ground on some things I think would be really interesting for people.

Another is “Law and Disagreement” by Jeremy Waldron, who is a philosopher, but is more accessible than most philosophers, I’d say, whose book is really about the problem of law being so fundamentally connected to the fact that we reasonably disagree about so many things, as opposed to it being that some of us are right and some of us are wrong. The third book I’d say is a more recent book by Mary Anne Franks called “The Cult of the Constitution,” which emphasizes ways in which we tend to fetishize certain kinds of constitutional rights instead of stepping back and thinking more purposefully about what the Constitution is really for.

ezra klein

Jamal Greene, thank you very much.

jamal greene

Thank you so much.

[MUSIC PLAYING]

ezra klein

That’s the show. If you enjoyed it, there are a few ways you can help us out or shape the next episode. You can rate the podcast on whatever player you’re listening on now or send this episode to a friend, family member, if you didn’t like it, an enemy, or you can tell us who you think we should have on the show next by emailing me at [email protected]

We really do get suggestions for guests we have on from the email. And though we can’t respond to every message, we really do read every single one.

“The Ezra Klein Show” is a production of The New York Times. It is produced by Roge Karma, Annie Galvin and Jeff Geld and is fact checked by Michelle Harris. Original music by Isaac Jones, mixing by Jeff Geld. Our executive producer is Irene Noguchi. Special thanks to Shannon Busta and Kristin Lin.