How Trump is Using the IRS to Resegregate America

26:39He was out. So then Hoskins and the GOP in Missouri decide to file a Hail Mary suit in the Missouri Federal District Court, challenging the use of the 2022 map in the upcoming midterm election. And again, the rationale is that using the old map that was drawn after the decennial census in the traditional manner would disenfranchise voters who, because of Denny Hoskins' own machinations, voted under the new Trump-ordered map in the primary elections. Again, you cannot make this shit up. But I will also say the Missouri Supreme Court was totally on to Denny Hoskins. They made sure to note in their September 3rd decision that, quote, the secretary's delay in certifying the referendum for the ballot created the confusion, expense, and practical difficulties of which he complains.

27:32Shorter Missouri Supreme Court. Sit your ass down. Anyway, okay. Despite the fact that Hoskins was complaining about lying in a bed of entirely his own making, Trump-appointed U.S. District Judge Stephen Clark issued a temporary restraining order that appears to require the use of the new Trump-ordered map in the upcoming midterm election cycle. So let that sink in for a minute. A district court judge is now saying F.U. to both the Missouri Supreme Court and the United States Supreme Court, or maybe just Coach Kavanaugh, but basically a lot of middle fingers being shot here. Okay, a lot going on.

28:11And again, the United States Supreme Court basically said, we're not going to second guess the Missouri Supreme Court's decision. So this is two high courts, the U.S. Supreme Court and the Missouri Supreme Court, getting bench slapped by a district court. Like, you hate to see it. This is some stuff. This is like dynasty level. So where do things stand now? Well, a citizens group that opposes the Trump-ordered redistricting that's called People, Not Politicians, intervene in the case, and they are appealing Judge Clark's TRO ruling to the Eighth Circuit. At the Eighth Circuit, a panel of three Republican appointees, including two Trump appointees, David Strauss and Justin Smith, ruled that the district court's TRO requiring the use of the new Trump-ordered map could remain in place.

28:59So they refused the intervener's request for a stay of Judge Clark's TRO. The interveners are now headed to the U.S. Supreme Court to try and get a stay and an administrative stay of Judge Clark's TRO pending an appeal. And again, there's so much stuff going on here. The Missouri Supreme Court has taken all of this personally, and they have issued an order for Secretary of State Denny Hoskins to show cause as to why he should not be held in contempt of court for violating the Missouri Supreme Court's September 3rd decision, and oral arguments on that question were heard on Thursday morning. I wish I had been in that courtroom because that was going to be a bench slapping of epic proportions.

29:40So we're waiting for the Supreme Court's ruling. We're waiting for a bench slap from the Missouri Supreme Court. Rashad, what does this mean if you are a voter in Missouri right now? Are you just like confused beyond belief and maybe just sitting it out and watching your stories at home on election day? I think you are absolutely confused that you had one set of options in the primary that don't show up in your general. That strategically, they've gotten us in this place now where we are fighting to keep maps that weren't great in the first place. Right. And so like and so now we're like in this place.

30:17It's like, oh, the old maps. Let's keep the old maps. The 2022 maps, to be very clear. Yes. Weren't that great. No, they weren't. The 2026, yeah. Absolutely. And so now they've just moved. They've changed the floor and the ceiling on us, where now we are like fighting for something that we don't even want to, you know, that we didn't like in the first place. And so this is once again the type of confusion, the type of chaos, the type of things that in this election cycle is what happens when folks don't actually have a plan to actually reach voters, engage voters and convince them that their policies and their leadership are the things that people should get behind.

30:58So I think this is such an important point. They don't have a real plan for getting us out of the economic mess we are in. They recognize that there is malaise among the voters. And instead of just trying to convince people, they're playing dirty. I mean, and I do think the chaos is the point. I mean, this is such a brazen move. I mean, literally. And the district court facilitating it. Like, I mean, this is wild, the idea of the district court basically, being like F you to the Missouri Supreme Court, F you, Coach Kavanaugh, is just wild. I mean, like people are out of their minds, but there's so much chaos.

31:31And I think that's kind of the point, right? Where there's chaos, that too is an active way to suppress the turnout. You know, and as a non-lawyer who sits at this and looks at it from the outside, the forum shopping that happens with these cases of like, and this is not just in this situation, but so many of these cases where folks are going out trying to find a judge that will step in and do the thing. And it does a lot to like how. But I think they got a lucky break getting a lucky break here. Yes. And so and so and so helping the public even understand like, you know, Brett Kavanaugh says this.

32:12The state Supreme Court says this. We've got a federal judge that says this. It feels like you need a PhD in civics to even understand sort of like, how does this all work and how and how does this even make sense in terms of like, who's actually has the final say? And in the end, like what gets implemented and what gets enforced by who, like who who holds the actual power in the end? What should Democrats in Missouri be doing right now? Democrats in Missouri should be doing everything they possibly can to like explain why they are doing this. I literally drew a flowchart for this. Not the details, not the particular details of the court case, but the underlying reason of why they don't want to like operate under the rules that they were already winning under.

33:10They were winning under in Missouri. They were winning under the old rules. They controlled statewide office. They controlled the legislature. They controlled sort of the state as a whole. And so the fact that even with all of that control, they still had to change the rules because they have failed so badly in terms of their leadership that they needed more sort of a deeper unfair situation. Well, and this president needed more, right? I mean, it all kind of goes down to his effort to restructure Congress to prevent control of the House going to the Democrats. Yeah, yeah. And so, you know, the redistricting that he's calling on all the states, it almost feels like a parody of itself.

33:57It feels like something that would, that if, you know, 10 years ago, 15 years ago, someone had wrote this up as like a screenplay, it would probably get sent back as saying it was just too unrealistic. So listeners, as promised, we knew that there would be some breaking news. And of course, we got a decision on that question about what map Missouri is going to use in the upcoming midterm elections. The court this Thursday afternoon once again prevented Missouri from using the Trump-ordered congressional map in the November election. The state will have to use the 2022 map, the traditional map drawn after the 2020 census.

34:39That map, again, as Rashad and I just mentioned, is not fantastic, but it does have the advantage of keeping in place a seat that traditionally has been held by a Democrat in the Kansas city area. So Secretary of State Denny Hoskins and the Missouri GOP have been thwarted. The Supreme Court has, in a very brief order, decided that Missouri's Supreme Court's decision will stand. Before we go to break, I have some great news from the Crooked universe. Because, folks, we are so excited about the launch of Crooked's newest series, Still Counting, hosted by the excellent journalists who brought you the FiveThirtyEight podcast.

35:21There's a ton of data information just coming at us all the time, and a shocking amount of this data is manipulated or misunderstood. Guess what? Nate Silver, Claire Malone, and Galen Druke have spent their careers breaking down political polls and data. And every Wednesday evening, they are going to dig into the most up-to-date political numbers to explain what's happening and why. They will cover everything from elections to prediction markets to AI. and you can get in on the action by subscribing to Still Counting wherever you get your podcasts or on YouTube.

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38:42Well, I have another parody for you. This one involves the IRS and the new regulations that, in my view, are basically a plan to resegregate American education from K through 12 all the way up to college. So settle in, folks. It's time for a little strict scrutiny history. So, listeners, in the wake of the Supreme Court's 1954 decision in Brown v. Board of Education, which desegregated America's public schools, the South engaged in what was known as massive resistance. TLDR, the former Confederacy, wanted to continue doing a little light Jim Crow. One of the ways that Southerners dragged their feet on integration was by creating what were known as segregation academies.

39:25So these were all white private schools that served as alternatives to integrated public schools. And one of the things that made these seg academies so attractive to many Southern families was that they were relatively affordable, even though they were private schools. So how's that, you say? Well, many of these SEG academies actually operated as tax-exempt organizations, meaning that the federal government gave them a tax break because they were a quote-unquote charitable organization. And because money is fungible, the money you save on paying your taxes can be directed to your operating costs, allowing you to lower the cost of attendance and keep tuition relatively affordable.

40:05It was such a good model that it even migrated to higher education. So Bob Jones University in Greenville, South Carolina, basically operated as the higher education analog of a psych academy. You love to see it. All right, there is one wrinkle here. So by the 1970s, the IRS get hip to the fact that money is fungible and they're basically subsidizing discrimination. And so they decide that private schools with racially discriminatory policies will not qualify as tax-exempt charitable organizations under Section 501c3 of the Internal Revenue Code. In 1971, just a year after these IRS regs took effect, Bob Jones University, lo and behold, began admitting Black students, but only if those Black students were already married to someone of their own race.

40:56Unmarried Black applicants were still rejected and not admitted to Bob Jones. That changed in May 1975 when, following additional legal pressure and some court rulings against racial exclusion in private schools, Bob Jones University allowed unmarried Black students to apply and enroll. Very big of them. But Bob Jones University still drew the line at permitting interracial marriage and dating on campus. And the IRS took that personally, revoking the school's 501c3 status. Bob Jones took that personally and the school sued, along with a group of segregation academies, arguing that the IRS regs prohibiting tax-exempt institutions from discriminating violated their freedom of religion because, according to them, the ban on interracial dating and marriage was rooted in their fundamentalist interpretation of the Bible.

41:50Shorter Bob Jones, Jesus made us do it. In 1983, the Supreme Court issued an eight-to-one ruling against Bob Jones University, upholding the IRS's power to revoke the tax exemption of institutions that are engaged in discriminatory practices. Well, folks, fast forward to 2026, and the IRS, under the auspices of the Trump administration, has now issued new regulations that it maintains are in the spirit

42:22consistent with the Supreme Court's 2023 decision in Students for Fair Admissions versus Harvard. Under the new regulations, an institution's tax-exempt status may be revoked if the institution engages in race-based discrimination. There are some notable exceptions. The proposal, the IRS website notes, would not prevent a private school from maintaining a religious mission, curriculum, or program of religious observance. Religious schools may continue to select students based on genuine religious affiliation or membership to remain consistent with federal law. The IRS website goes on to note that the proposal allows schools to continue expanding educational opportunity to assist disadvantaged students using race-neutral criteria such as family income, geographic location, first-gen status, individual hardship, military family status, or academic achievement when awarding admission or financial assistance.

43:16They may not make decisions or confer benefits on the basis of race, color, or national or ethnic origin. So here's my question. What counts as making decisions or conferring benefits on the basis of race, color, or national or ethnic origin? According to the New York Times, which covered the regulations, this could include, quote, offering targeted support to Black or minority students. By my reading, that could be anything from scholarships that are intended to target minorities or to recruit minorities, or even sponsoring affinity groups for underrepresented minority cohorts. In reporting on this, most of the media outlets have really focused on the impact of these proposed regulations on higher education.

44:01And again, that's not surprising given how diligently this administration has prosecuted its zeal for ridding higher education of, quote unquote, wokeness and illegal DEI. As we know, this administration, armed with its own breathtakingly broad reading of SFFA versus Harvard, a reading, I should add, that no court has credited, the administration has sought to dismantle DEI throughout higher education, from admissions criteria to affinity programming for underrepresented groups. But here's the thing that no one is covering. This is probably, to my mind, the most impactful aspect of these new regulations.

44:39they will also implicate K-12 education. So these regulations apply to all tax-exempt institutions, including the thousands of private schools that provide K-12 education for millions of American students. And I get it. For many, many years, these private schools were regarded as the bastion of the preppy elite. But over time, they've actually become much more diverse, serving a wide range of students. And indeed, in the era where public schools are increasingly segregated, I'm looking at you, New York City public schools, private schools have actually become enclaves of racial, gender, and socioeconomic diversity.

45:19And that is largely because many of them have incorporated the programming that's needed to support a diverse cohort of students, like student and parent affinity groups, scholarship funding to recruit certain groups of students who are otherwise underrepresented. Under these new regulations, I think these kinds of interventions would prompt the revocation of tax-exempt status. And taken in that view, I think these regulations have the potential to utterly remake education from K-12 all the way up to college, turning the dial back to a time when American education was truly racially divided in every sense.

45:57And the irony of all of this is that the administration is using Bob Jones University versus the United States to underwrite this. The administration says all of this is consistent with Bob Jones University, as though having a Black student union is exactly the same as prohibiting interracial dating or marriage on your campus. Again, I'm not saying that these regs couldn't be challenged. I'm not saying that if they were challenged, the challengers wouldn't prevail in accord. Part of the Bob Jones decision says that the institution's policies to be found problematic under the IRS regs would have to be a violation of, quote unquote, fundamental national public policy.

46:40Not clear that having a black student union violates national public policy. But I don't think we have to get to a court case for this to be impactful. All you need is a bunch of schools whose entire financial model is predicated on being a tax-exempt organization. they will roll this back just because they don't want the smoke from the administration. They don't want to take the chance. And once they roll this stuff back, they're not bringing it back again if it's later determined that these regulations were wrong. So Rashad, this is a lot to get your mind around. If the media isn't even covering the K-12 aspect of it, how do we get ordinary people to understand what is at stake?

47:19Because I want to be really clear. These are proposed regulations. There's an open public notice and comment period where the American public can weigh in and say what they think about this and whether they support this. How do we get people to understand that we are literally going back to 1953 with these? Well, I think we have to talk about that we are going back to 1953. We can't talk about this as IRS rulemaking. We have to talk about this as what does this mean for my kid's school? You know, I have a lot of experience in this, particularly in this sort of rulemaking process and mobilizing public comment, whether it was sort of at the FCC around net neutrality, whether it's been around many of the sort of mergers, the AT &T T-Mobile merger or the Comcast merger.

48:03And in each of those situations, you have to get very clear to the heart of sort of what's at stake. So like, what does this mean for my kid's school? Sort of getting to the lift experience and then helping people sort of understand what the public comment and rulemaking period actually means and what it doesn't mean. And being able to mobilize enough energy to like make sure that it impacts like how politicians show up, how the media shows up, what stories you can collect, how you can build a large enough public response and engagement because the rule period in and of itself may not actually mean anything if you don't surround it with the type of sort of energy and public outrage.

48:45But, you know, in the net neutrality fight, which once again is a very sort of complicated issue of like the Communications Act and Title II and making sure the kind of ways in which internet is classified is very different than sort of making sure that the content that I want to see isn't held back or throttled by the internet provider. And getting really clear about that, I think, is important. I think they're counting on the fact that people are going to look at this and be like, oh, it's Harvard. Or if you can think about K-12, they're like, it's private schools where everybody talks like this and everybody wears a mask on.

49:21It's like Buffy. But this could affect charter schools. We are seeing the increasing privatization of K-12 education as more and more parents, including minority parents, want diversity for their children. and they're not finding it in public schools because of the resegregation of American public schools. Like, it actually isn't an elite problem. It's a bigger problem, I think, than many people appreciate. And, you know, the investment that has really gone into, like, getting Black parents and Black organizations and churches on board with things like vouchers and charter schools, like, that, this is a moment, right, for that to be called out, right?

50:05for those folks to be engaged, that people have been sold a story that, you know, is quite problematic in some respects about sort of what a voucher program or sort of a full charter program would actually provide at large. But people have wanted the best for their kids and in many cases have walked through this process only to get to this point of watching sort of public resources be privatized. And now we're at this place where like, you know, many of these people that have sort of taken this opportunity are going to perhaps be shut out or not actually get the things that they thought they were going to get.

50:45You know, your point that I think is really important, and I see this in my advocacy work as a whole, is that when the administration sort of goes down this road, particularly around diversity, all of the sort of compliance in advance that happens that is sometimes even worse than the actual policy, the changes that happen. You know, many of us who run advocacy work right now, you know, in order to get certain grants, you are partnered with a lawyer that the foundation wants you to work with, right? And I have been on the other side of these calls where we'll have a plan or a project, and I'll get the feedback from the lawyer and I have to ask, go back.

51:29And, you know, I love my lawyers. And they will, just for the audience, and they will say things. This is not just a lawyer audience. We have rage, Rashad. We have rage. Good, good, good. So the lawyers will say things like, you know, I don't think you want to do that particular thing because you might be explaining your strategy. So let's say I want to put out a newsletter about the issues that I'm working on around diversity with a bunch of groups in there. And the lawyer might say, you may not want to put all that out there on paper because you may not want your opponents to see what you're doing.

52:03And my question is like, is that legal advice or strategy advice? Is that legally not the thing I should do? Or are you making a strategic call because the lawyers now have outsized power over the advocacy that we're doing? And so if every single advocacy step that we have to take has to go through a set of lawyers that are not looking at all of these things, even through a legal framework, oftentimes through a risk-assisted framework, what ends up happening is so much of the sort of creativity, the advocacy, the pushback can be really reduced because we are now trying to avoid risk. And if you're starting from a place of avoiding risk, no great social change, no great sort of movement that has like overcome something has started by.

52:52Wait, wait, what are you saying is Martin Luther King Jr. was not a management consultant? No, he was not a management consultant. But our movements are now in this sort of management consulting risk assessment of like in a lot of the sort of creative projects and plans that have come in many of these schools to attract diverse students and to, you know, support parents have not come through the lens of first a risk assessment. They've come through people trying to be creative to solve a problem. And what we're going to end up with is that all of these things are going to be about risk assessment.

53:27And we're going to actually lose the innovation that actually leads to the type of things that actually help us solve real problems. And for those of us who care about social change and progress, that's going to be a real problem. Because on the other side, what we are watching is them take all sorts of innovative steps to do whatever they can to throw all sorts of things at the wall in order to be able to stop us from being able to have inclusive spaces. spaces. And on our side, we are doing deep risk assessment to not like harm or upset the Apple card. And that in and of itself means that we are starting from a place of loss, from a deficit, from a place and not from a place of aspiration and push.

54:10And that also means it becomes harder to mobilize our people, get our people excited. Because if you are, you don't get people excited about risk assessment. You get people excited about plans and projects that they are willing to stand up and fight for, even if they may be risky. That is how advocacy and activism works, and that's how it attracts people onto our side. All right. Rashad is going to stay with us. But next up, Kate Lee and I are going to talk to Daphna Renan and Nicholas Bowie about their new book, Supremacy, How Rule by the Court Replace Government by the People.

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57:40And for this segment, we are thrilled to be joined today by Professors Nico Bui and Daphna Renan to discuss their new book, Supremacy, How Rule by the Court Replace Government by the People, which is out tomorrow. Nico is the Louis D. Brandeis Professor of Law at Harvard Law School and a former law clerk to Justice Sonia Sotomayor. Daphna is the Peter B. Monroe and Mary J. Monroe Professor of Law at Harvard Law School and a former clerk to Justice Ruth Bader Ginsburg. Welcome to the show, Nico and Daphna. although I think it's technically welcome back to you, Nico. Thanks so much for having us.

58:09Yeah, thank you for inviting us. Well, we're delighted to have you. And together, the two of you have spent several years developing a comprehensive challenge to the major separation of powers narratives that have fueled the rise of judicial supremacy. In 2022, you published a really influential article in the Yale Law Journal titled Separation of Powers Counter-Revolution, which documented how, and I'm going to quote here, modern separation of powers law is premised on a misunderstanding of what the separation of powers is. It is a great article. I've assigned portions of it in my constitutional law courses.

58:38And it traces the rise of the flawed understanding to the lost cause myth that emerged in the late 19th century when an ascendant white South violently returned to power after the Civil War and was hellbent on ending Reconstruction. And your new book, Supremacy, builds upon that important work. It offers a fascinating and, in our view, urgent new history of the Supreme Court. and it's a history that challenges a lot of our most basic assumptions about the court's role in our democracy. And it also shows how the immense power that the court now wheels was seized, a kind of power grab by the court rather than given.

59:16The book starts with a striking claim, quote, the United States Constitution was written in the name of we the people, yet we have lost the ability to give meaning to its words. Instead, nine robed lawyers have claimed the power to make the rest of us live under whatever rules they say the document requires. You then go on to describe how, quote, the Supreme Court has played a starring role in the unraveling of our democracy. Nico, can you elaborate on some of the court's threats to democracy and rights that you had in mind when writing this book? Sure. So I think a good illustration of the problem is the Voting Rights Act.

59:48So even before Congress passed the Voting Rights Act in 1965, 100 years before, Congress wrote a 15th Amendment designed to protect the ability of Black people to vote. And the Supreme Court interpreted it so narrowly that states for years enacted laws like literacy tests or poll taxes or other restrictions that basically disenfranchised the Southern Black population. And when Congress passed the Voting Rights Act, it was after people like John Lewis marched in Selma. Marchers, you know, died in the name of winning the right to vote. Congress debated it at length. And they enforced the 15th Amendment differently than how the Supreme Court had interpreted the amendment to that point.

1:00:38And the statute was incredibly important. It extended multiracial democracy throughout the country. Future Congresses in 1970 and 1982 reaffirmed the Voting Rights Act. By the time Congress most recently reenacted the Voting Rights Act in 2006, it was just an overwhelming vote signed by George W. Bush. And yet, in 2013, five justices decided that the Voting Rights Act was not constitutional. or at least a key component of it wasn't. Just this past term, the court has finished off the rest of the law. And the question our book asks is, what gave those five justices that kind of power? Why is it that we can have this incredibly important statute that Congress has passed over and over again, but five people claim this authority to declare that statute unconstitutional?

1:01:37And it's not as though there's anything in the Constitution that says you can't have a Voting Rights Act, the language they're interpreting is Congress can pass appropriate legislation. So it's kind of who gives them the authority to say what is and is not appropriate. So one of the points that you make really emphatically in the book is that there are real dangers associated with the court's interpretive dominance. And obviously the Voting Rights Act is a great example of this. You say it in this way, quote, this form of governance has a name, judicial supremacy. And although Americans treat it as if it were natural, something expected by the Constitution's authors and accepted uncritically since the Constitution's ratification, in reality, it is anything but.

1:02:20Daphna, can you elaborate on that, I think, a sort of upending of the conventional wisdom that this isn't something that was given or conferred to the court? This is actually something the court has affirmatively taken for itself and expanded over time. Yes, absolutely. This is something that the court has taken for itself and Americans across history have pushed back. So we start with the anti-slavery abolitionists who really developed an understanding of what we call democratic constitutionalism, an idea that we want the Constitution to be an anti-slavery document that's foundational to our most deep and fundamental moral commitments.

1:02:59And the way to get there is we have to reject the power of the Supreme Court to have a final say over these kinds of questions. And so you see Frederick Douglass in letters with Garrett Smith kind of developing this theory of democratic constitutionalism that's saying the intentions of the framers are not what matters. The words of the Supreme Court are not what decide the meaning of the Constitution. What we need is a politics that will change who is in power in Congress. And Congress has laws at its disposal from the Guarantee Clause to a range of provisions in the original Constitution, only amplified with the Reconstruction Amendments, to give multiracial democracy genuine meaning in our country.

1:03:44And that was the vision of the founders of the Republican Party. That was the vision of the party of Lincoln, the creed that Lincoln brought to government that we see throughout Reconstruction. Charles Sumner, Thaddeus Stevens, we see the embodiment of this idea manifest in the first civil rights laws passed, the first federal agencies that are administering what members call practical freedom, the first vote protections. and we see it again in labor leaders pushing back on the idea across the early 20th century that the court gets to decide whether what we have is a constitution that focuses on the property rights of corporate power or that enables the labor movement through democracy to vindicate commitments through federal laws like an eight-hour workday, prohibitions on child labor, a federal income tax.

1:04:38We see it also in the arguments of early civil rights pioneers that are saying, look, we have these old statutes from Reconstruction. They're still on our books. And if we have a Supreme Court that actually is willing to enforce them, we can vindicate these equal protection guarantees. So this is a vision, this more democratic constitutionalism that we trace throughout American history and that we offer as this is our constitutional story. This is our constitutional tradition. And we don't need to imagine that Marbury began and ended the conversation. We'll get to Marbury in a second. But was this vision of democratic constitutionalism that you are describing, you know, a departure from the 1770 framers' understanding of how the court would operate?

1:05:24No. I mean, one of the surprising things that we found during their research is, you know, we went into it thinking of Marbury versus Madison the way a lot of people think of it, where the Supreme Court announced it had this power to strike down acts of Congress, and everyone was like, great, I guess it has this power. But what we found is as people first made that argument, there was a tremendous amount of resistance, including among members of the Constitutional Convention. You know, James Madison later said, I definitely did not intend that. As well as, you know, the members of Congress and the public who realized presciently what it would mean.

1:06:05because, you know, they had just written this constitution and voted for this constitution that in theory empowered people to elect Congress to give meaning to what the constitution meant. There was no federal government in, you know, 1789 when Congress first met. They had to create the thing. They had to decide, what can the president do? What does our court system look like? What kinds of protections do people have? And they weren't just making it up on the fly. They were defining what the constitution meant. And when the Supreme Court in Marbury said, hey, we think we should be able to defy federal laws, a lot of people resisted that or they just ignored it.

1:06:43And part of one lesson that we hope people who read the book come away with is the first time the court actually disagreed with Congress about what the Constitution meant was not Marbury, but Dred Scott. Dred Scott was the first time that Congress said, here is what we think the Constitution means. It means that we can ban the spread of slavery in federal territory. And the Supreme Court said, no, you can't. We're interpreting the Constitution to say that's not possible. And it wasn't as though the Republicans or the abolitionists of the time just, you know, gave up and said, I guess we have to wait until, you know, the court members retire.

1:07:28They said, who gave them this authority? And if anything, Congress has a duty whenever it sees the court issuing bad decisions or bad interpretations of the Constitution. Congress has the duty and the power to enforce an alternative interpretation. And that's what Congress did. five years after Dred Scott, Congress passed a law to ban slavery in federal territories, precisely where Dred Scott said Congress lacked the power to do that. So speaking of designing the thing, I wanted to note first, this is a rare summer episode where all three of us are here, which speaks to exactly how much we love this book.

1:08:09Another testament is that I volunteered to do a giveaway for someone who is not a strict scrutiny co-host. So we are actually writing a giveaway. If you get a copy of Supremacy, you can enter a giveaway. The form will be on the show notes and enter to win some of the merchandise designed to reflect the book's inspirations. I'm wearing a t-shirt. It says Overruled Judicial Supremacy and there is also a mug. So again, if you order the book before Friday, 5 Eastern, you can enter the giveaway on the show notes. Can I win the giveaway? Because I did order my book and... No, I'll just gift one to you because you're a co-host.

1:08:47Okay, I would like to be on that list as well. It's a really nice shirt if you're listening and not watching. So definitely get on that. If you happen not to be lucky enough to co-host the show with Leah. Or have written the book. Or have written the book. I guess the authors get free shirts too, but everybody else got to buy the book to enter the giveaway. Okay, so I want to pick back up where you left off, Nico. So you guys pose this sort of twin set of questions that you say the book aims to answer. So first, if the power of the court to review the constitutionality of federal statutes has been widely viewed as dangerous since the beginning, why is it taken for granted today?

1:09:21Second, when the court invalidated important federal legislation, how did Americans respond? Now, Nico, you were just talking about in the wake of Dred Scott, it's not as though everyone said, well, the court has spoken, like the answer is that Congress lacks the power to ban slavery. Congress responded. Lincoln, when he was president, responded. It was not as though everyone decided that the question was settled. So I think that you've spoken a little bit to that. What about the first question? Daphna, let me bring you in on this. So if this power has been viewed as so dangerous since the beginning, as you were elaborating earlier, why is it so taken for granted today that the court rightly possesses this power?

1:09:56Yeah, so judicial supremacy or the power of the court to set aside and invalidate federal statutes really takes on verve and regularity in a reaction to Reconstruction that we describe as really a double helix of anti-Black racism and anti-labor politics. So what we see is a rise of influential, many of them are politicians who turn on the Republican Party itself and develop a kind of spinter party called Liberal Republicans. several of them are influential newspaper editors at the time, that start to turn their back on Reconstruction and to weave together a story that is the Lost Cause narrative that originates in the South, that a kind of reckless Congress has turned its back on constitutional traditions and run amok in empowering multiracial democracy in the United States.

1:10:59And they're weaving together this story with fears at the time of the Paris Commune and the growing in the north of a labor movement that's starting to see some of their statutory goals being met at the federal level. And so you have writers describing multiracial legislatures in South Carolina as kind of the new Paris Commune that has come to the United States. And the force that liberal Republicans turn to to put an end to all of this reckless democracy is the court because they're losing elections, right? So they're actually running for federal office and losing. But what they have is significant influence on the court.

1:11:44And the court during this time starts to just unwind the legislation of Reconstruction and more generally to assert its power and its preeminence in regulating the boundaries between federal and state power. And it's doing this in a range of cases, and it's doing this in an increasingly aggressive and muscular way. And we lose what we had during Reconstruction, which was a Congress willing to tell the court no, and a Congress willing to stop the court from putting in jeopardy its most consequential laws. So during the height of Reconstruction, when the landmark Reconstruction Acts that bring Black suffrage to the South are in the crosshairs of the court, members of Congress are debating, how do we protect our laws from the court?

1:12:38Do we pass a supermajority rule that says actually you need a significant supermajority of the court before you can set aside a federal law? The author of the 14th Amendment, John Bingham, is putting this proposal on the table. You have some members saying, actually, we want to protect our legislation entirely. We can say that the Reconstruction Acts are political questions and that the court shouldn't get to second guess them at all. So Lyman Trumbull, the author of the 13th Amendment, is putting that idea on the table. And ultimately, what Congress does is it enacts a specific jurisdiction strip.

1:13:09So it prevents the court from being able to decide the constitutionality of Reconstruction in the particular McCurdell case before it. And the court then complies with this. So what you initially had was a politics and a Congress willing to tell the court no. And to tell the court, we are protecting our laws and our interpretations of the Constitution. Once you lose that political ability and the narrative develops that actually we need a court to protect our property rights from democracy, right? and we need to protect our white citizens from what has developed as a too thick conception of multiracial democracy in the United States, the court starts to wield that power with regularity.

1:13:58Sounds very familiar, Daphna. Speaking of judicial power, I think it's important, I think, to do some table setting in terms of definitions. So Article 3 of the Constitution speaks of the judicial power invests the judicial power in a Supreme Court and the inferior courts that Congress may create. Judicial power is not quite the same as judicial review. In fact, the term judicial review is relatively recent vintage. It was coined in the 20th century. You argue in the book that the conflation of the judicial power with judicial review obscures a really critical distinction between two ideas about judicial power, one of which was settled by the Constitution.

1:14:41And the distinction that you are describing is what you term vertical review versus horizontal review. Can you explain the difference between these two types of review and why it matters for our purposes? Yeah, sure. So put yourself in the shoes, I guess, of a member of Congress after the Civil War. So you have just seen one example of the Supreme Court striking down a federal law. That was Fred Scott. And at the same time, there are all of these state legislatures who are full of people who are really hostile to the idea of enfranchising Black citizens. So on one hand, the court is a threat. It is a threat to federal legislation.

1:15:27But on the other hand, all of these states are, you know, in a position where they can really defy your legislation, like new voting laws, anti-discrimination laws, and other protections of civil rights. And so for those members of Congress, they argued that the role of the court is not to invalidate federal law, which is really dangerous, but it is to enforce that law against states or presidents or, you know, federal agents or anyone else who would violate it. And that's the difference between horizontal review and vertical review. Horizontal review is this power the court has asserted to defy federal legislation, whereas vertical review is the court's power to enforce that legislation against others.

1:16:18And so the Constitution does say that, you know, federal courts have the judicial power. But, you know, at the time, the relevant courts that people were thinking about were English courts. And English courts have never had the power to strike down acts of parliament. But what they did have the power to do was enforce those acts of parliament against, you know, lower subordinate governments. And that was kind of the argument among members of Congress when they tried to regulate the court because they saw the court's role as being basically one of enforcement and interpretation, at least interpreting federal statutes.

1:17:00But in the wake of the court's assertion of this power to basically defy federal laws, the kind of thing that the court was doing was pretty one-sided. Like if you think about what kinds of decisions was the court making with respect to federal laws, there's the general counsel of the American Federation of Labor in the 1920s reviewed this question and he wrote this report about it. And he was like, this is terrible. You know, the court is saying Congress can't pass an income tax. Congress cannot ban child labor. Congress can't protect the rights of immigrants in states. Congress can't protect, you know, the right to vote.

1:17:43It can't stop racial discrimination. Congress can't prevent monopolies. You know, it was very one-sided. And the members of the court were explicit about their goal. You know, Justice Joseph Bradley at the time was really vocal. He's like, our job is to protect minorities. The minority we have in mind are property owners. These majorities are out there trying to steal from them under the red flag of socialism, and it is our job to stop them. And so for the AFL, their position, as they put in their legislative campaigns, was we want to stop the court from reviewing these federal laws, but we want them to enforce these laws as they were intended.

1:18:26We want them to enforce the anti-monopoly laws, enforce the child labor laws, enforce the pro-labor laws because we need a federal legislature that's capable of democratically legislating. So I want to get into some of the history surrounding Dred Scott in particular and the rise of judicial supremacy and its reinforcement of white supremacy just to give people a taste for part of this story. So I think some people might be familiar with this, many not. There was actually a pre-Dred Scott campaign to make this, that is the lawfulness of slavery and Congress's power to ban it, a question for the federal courts.

1:19:05Can you talk a little bit about that? Yeah, and it was actually a very concerted effort by the president-elect Buchanan as he's getting ready to govern. and he'd really like this question of whether Congress can restrict the spread of slavery to just go away. So he writes a letter to his friend on the Supreme Court and says, can you guys just decide this as a judicial question? And the initial response that he gets is probably not because it's a legislative construction that's been in place for a pretty long time. But then he gets better news, which is actually I think you're going to be happy with what we're going to do in this Dred Scott case that we're sitting on.

1:19:45And then Buchanan goes before the nation and says, I'm going to cheerily submit to whatever the Supreme Court does. And lo and behold, what the Supreme Court does is say, actually, Congress, you don't have the power to limit the spread of slavery in federal territory because that would violate the property rights of enslavers. And so the Buchanan campaign was, let's, let's, this was a judicial question. It's finally settled by the Supreme Court. Nothing we can do in politics about it. And you make the point that he basically just lies and says, I don't know what the court will do. I will abide whatever it is.

1:20:27But of course, he knew exactly what the court was going to do because he had a direct line into not just the chief justice, but he's corresponding with at least one other individual justice. So that episode is wild. And there is so much more like it in the book that we haven't had a chance to get into today. So we are going to have to leave this conversation there. But I think we've made pretty clear from just how incredibly current so much of these dynamics sound that this is much more than just a work of history. It is incredibly relevant to conversations that are happening right now about how to respond to the Supreme Court's undermining of our democracy.

1:21:00It is happening now. It has happened before. And to talk about all of that, Nico and Daphna will be back in the hot seat for Thursday's episode of our Hot SCOTUS Reform Summer slash September. so definitely don't miss that conversation. Nico, Daphna, thank you so much for stopping by to talk about the book. We are all really excited for what you'll have to say about hot SCOTUS reform summer. Listeners, this book drops tomorrow. Supremacy, How Rule by the Court Replace Government by the People. You can get it everywhere you get your books. We are going to be getting our copies from bookshop.org but you can get it anywhere.

1:21:36Make sure you get one though. Incredibly important now, today, forever. Thanks so much for having us. Thanks so much. Supremacy drops tomorrow. It is a must read. Make sure you put it in your cart at bookshop.org. Rashad, I want to come back to something that we do in every episode. We always end by discussing our favorite things. I just want to say one of my favorite things is not just you, Rashad, but the First Amendment, right? I love the First Amendment. And I am especially enamored of freedom of the press, this idea that we have a media that can call our government to account, what it needs to be called to account.

1:22:14You recently kicked off your book tour from Presence to Power in New York City with Jane Fonda. And Jane Fonda, who continues to be a badass, just relaunched what is known as the 1A Committee, so the Committee for the First Amendment, which is inspired by the original committee that stood up to the Hollywood blacklist in 1947. You've been working with the committee to address concerns about the imposition on First Amendment rights, the growing concerns about censorship, and, of course, the growing consolidation of media presence and power within certain media organizations. And you've really focused on the potential consequences for the First Amendment that may flow from the proposed Paramount-Warner Brothers merger.

1:22:55What's at stake for Ordinary Americans and the constitutional order from a mega-merger like this one? Well, I mean, the consequences of putting more and more power, more and more of the channels that reach people, you know, under the umbrella of a single family, you know, already owning CBS, then we'll have CNN, more studio power. It will reduce sort of the type of content that can create it, the range of voices. Obviously, it will have economic impact, but it will have absolute impact on sort of free expression of voice. And we've already seen this family make really deep overtures directly to the president, directly to those in power about sort of what they will do with this channel.

1:23:46We've watched the FCC do something that, you know, as a person who's been, you know, there on multiple mergers and comment periods and pushback, the sort of speed at which the FCC moved, you know, on this merger was just, you know, like something we've never really seen. The fact that we do have state attorney generals really speaking up and standing out, I think is a testament to how unpopular. Rob Bonta has been all over this in California. He has been excellent. And even we are watching sort of astroturf campaigns sort of attack him, go after him, you know, create lies about that they really can't defend, attacking the opponents.

1:24:33And they always do a set of these steps, right? They sort of lie about the actual facts. They try to discredit those people that are working on it. They try to buy off opponents, which they've done. And then they get to the fact where they try to find some sort of settlement that still allows them to do all the things that they want to do. And, you know, what's been really important about the Committee for the First Amendment and Jane Fonda, who's 88 and tireless and is like— I don't think she'd want you to tell her age. No, she talks about it. And she's actually— She's a better man than I. She talks about it.

1:25:09She's a real one. She is here. She celebrates her birthday loudly and publicly. Good for her. And I think about it as a, I talk about it because I like to remind any of my friends who talk about being tired or talk about how the work is too hard. I like to remind them. Jane has been doing the work. Doing the work. and has been clear about the racial justice implications, the gender justice implications. But we'll get on the phone and call any celebrity. We'll get on the phone and call any media executive. And, you know, she and I, I got to be her date to the Oscars this past year where we went and we wore buttons.

1:25:53I know it was kind of the most surreal moment of my life because, you know, like, there would be no reason for me to go to the Oscars anyway. But if I had somehow gotten to the Oscars, nobody would really talk to me, right? Like, why would I be there? But like, you're there with Jane Fonda. Now everyone wants to come over and talk to you. So you're there and like, you know, like, you know, Usher and Nicole Kidman and all these people and Jane just - Not Usher. No, I mean, like they want to come over and they want to talk to Jane. And Jane's like, you should know my friend Rashad who's working on all these like important issues.

1:26:22But we wore the stop the merger button. Oh, great. The 1A buttons. And we went out and we talked, really talked about blocking the merger. And over time, continue to sort of build energy of a merger that was supposed to just kind of sail through. And fighting to protect the First Amendment, fighting to protect the First Amendment isn't abstract, right? If we talk about the amendment and abstract, but it actually has real implications on who owns the channels, who can be attacked. And so, and Jane has been there. I was in L.A. when Don Lemon was arrested and I called her that morning to say, hey, Don Lemon was arrested.

1:27:02He's out here in L.A. for the Grammys. And she was like, well, are we going down to the jail? And I was like, Jane, Jane. And so and so we went down to the jail and she, you know, she went out and she said they got the wrong Don.

1:27:20and talked about her history with CNN, being with Ted Turner at the time and what it meant to have 24-hour news. And so her history, her understanding of the industry, her connection to people, and her ability to speak and take risks, in my opinion as an activist, once again creates more space. It creates more opening for others to raise their voice. And we need that in this era. The First Amendment is incredibly important, but the First Amendment needs an army. It needs a defense. It needs advocates. And the Committee for the First Amendment is one of those. Certain parts of the First Amendment already have that army, but we need one for the free press.

1:28:03We need the one for the free press. Yes, yes. So I'm going to start my favorite things by saying that story about you and Jane Fonda, like kicking it at the Oscars, may be my favorite thing this week. I love that. Also, one of my favorite things this week is Rashad Robinson's From Presence to Power, How to Take on the Fights that Matter and Win. It is a fantastic, practical, practical guide for how we get out of this mess. And I recommend it to all of you. This week, I also read A Marriage at Sea, A True Story of Love, Obsession, and Shipwreck by Sophie Elmhurst. Truly amazing. And just a reminder to so many women, always choose the bear.

1:28:41If you get to a husband who's like, let's go take a trip on a yacht around the world, and we're the only crew, girl, pick the bear. Also want to say, I really, really had a great time at Sarah Lawrence College, where I was on Tuesday, September 8th, talking to those students about the Constitution. The school years just started there, and I ran into some fantastic stricties in the wild. So I just want to shout out Halliday and Owen, who are Mainers. them. Owen is a first year at Sarah Lawrence and they are great stricties and we really appreciate them. So Rashad, I'm going to invite you now to tell us about your favorite things.

1:29:19Yeah. So as a New Yorker, I have been enjoying as much as I can the U.S. Open and in particular, sort of the having three Black folks in the finals. You know, the fight to open up space and opportunity, you know, is important. Changing the written and unwritten rules. I grew up on, you know, Eastern Long Island in the 80s and 90s. And there was just such a clear message sent about what spaces were for you and what were for you. And each of these folks have had a different path to getting to these semifinals. Say their names, Rashad. Yeah, Coco, Francis, Ben. And, you know, like, and, you know, Coco, Francis and Ben, each of them have had a really different - I'm still gassed about Taylor Townsend too.

1:30:12Oh, Taylor Townsend too. And I love Taylor Townsend. And all of them have really just opened up, opened up, I think, hope and possibility and become a possibility model. And I just, I love that because, you know, activism and this work is not just like creating the space of opportunity, but people have to then go into it. have to make it their own, have to show that it's possible. And I... I was going to say, I tried to make tennis my own. It did not work. No, not me either. It was never for me. Another one is Adults, the TV show Adults. It's on FX. Ooh. It is a show about Gen Z. And I feel like it makes me feel like I'm 400 years old, which I think is good for me sometimes.

1:30:57We are compared to Gen Z. Yes, it reminds me like I'm not a young person, which I think is healthy. But, you know, in this second season, they had an episode called The Scrub, where the 20-somethings are having to sort of go on to their social media and scrub all of their content if they want jobs and figure out because they're unemployable for these things, right? They're on these platforms. They're told to like be themselves, be authentic, build brands. And now they're getting to the place where they need jobs and they've like had these videos that, you know, or have these pictures. And it's done in such a funny and interesting and irreverent way.

1:31:36And, you know, the five kind of— Five, six— The five main characters are diverse and interesting. You have a Muslim character, a South Asian character. You have a Black queer character. And that is also so rare to have a main character who's Black and gay and gets to be messy and funny and annoying. Not just the—not the sidekick, the main—one of the main characters. It's like a friends five. It's like a friends in that way. And they're all dealing with real economic uncertainty. They're not living in a really fancy apartment in the village. They are like living in a parent's house. And they're all struggling to make ends meet dealing with health care issues.

1:32:20And I think it's just an important show that sort of shows some of what's happening in this environment through a funny lens and getting to see, you know, these characters created. And then the final thing is a book that I have just started to get into, but I am sort of like captured. I've been listening to it and reading it, but it's It Disappears by Marlon James, by the great Marlon James, who, you know, absolutely a great Jamaican. And one of my other dear friends who's also Jamaican is one of the readers of the audiobook. My friend, Anu Okira, who's doing the first part of the book. And so it's good to hear Anu's voice.

1:33:07Anu and Marlon came to my pride party this year. And I was like talking about my book. And he was like talking about... But you were just flexing like all... Like I got Jane Fonda as my date. I got Marlon James coming to my pride. Like what do I have? I have a dog. I mean, I mean, I mean, I mean, you have a, come on, Melissa. But yes, but no, but, but he was talking about his book and I was like talking about my book and I, and, and just, and just like seeing the sort of just incredible piece of just the work of art that is this book. It is truly a work of art. And it is like, it is something that I think is so needed and so necessary in this moment.

1:33:50And telling this story, I just urge people to go out and get it. I'm in and I'm doing listening and reading. And I can't wait to get all the way through it. But I just want to recommend it and recommend sort of anything by Marlon, who's just an incredible author. Rashad Robinson, thank you so much for coming and helping me today on Strict Scrutiny. You are always a delight. Listeners, the book, in addition to The Disappearers, which again, I highly recommend as well, please also pick up Rashad Robinson's From Presence to Power, How to Take on the Fights that Matter and Win. This episode has been chock full of great books.

1:34:26Supremacy by Nico Bui and Daphna Renan. The Disappearers. And of course, the U.S. Constitution. And the U.S. Constitution. Which I keep saying, our books go together so well. They go together so well. Like read the U.S. Constitution. It will help you really understand how the rules work, how the written and unwritten rules work, how we get to like what actually, how things actually are enforced and implemented and worked. And then I think my book does help you think about then what do you do about it? And so. So you've got this constitution. Now what? Yes. Now what? From presence to power. From presence to power.

1:35:05And so, yeah, it's just thank you for having me. It's always great to be in conversation with you. So delighted. Thank you for coming by. Hey, Stricties. I know that this episode has been chock full of fantastic books for you to read, but I have one more. Our friend and crooked maven, Alex Wagner, has a fantastic new book out, and it's all about the origin story of this goblin Supreme Court. The book is called The Steal. Four right-wing hardliners, one Republican presidency, and the raid on America's courts, and it drops tomorrow, Tuesday, September 15th, and you can get it wherever you get your books.

1:35:43And if you are excited about this book the way I am, please come out and join me and Alex. We will be in conversation on Tuesday, September 15th from seven to 8 p.m. at McNally Jackson Books at Brooklyn Studios. That's one DeKalb Avenue in Brooklyn, New York, the Borough of Kings. And we're gonna be breaking it all down and talking about this fantastic new book. So add another one to the pile, compliments of your friends at Strict Scrutiny. Listeners, that's all we have for today's episode. We will be back in your ear holes very soon because of course, you know, the Supreme Court's gonna Supreme Court, can't stop, won't stop.

1:36:18And we will be there to break it all down for you. Thanks so much for joining us today. Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rowell and Michael Goldsmith. Our music is by Eddie Cooper. Our team includes Matt DeGroat, Ben Hethcote, Johanna Case, Kenny Moffitt, Adam Lippert, and Eric Shoup. Our production staff is proudly unionized with the Writers Guild of America East.

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