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The Ezra Klein Show

A Guide to the Supreme Court's Rightward Shift

The Ezra Klein Show

New York Times Opinion

Society & Culture, Government, News

4.611K Ratings

🗓️ 1 July 2022

⏱️ 96 minutes

🧾️ Download transcript

Summary

In the past few weeks alone, the Supreme Court has delivered a firestorm of conservative legal victories. States now have far less leeway to restrict gun permits. The right to abortion is no longer constitutionally protected. The Environmental Protection Agency has been kneecapped in its ability to regulate carbon emissions, and by extension, all executive branch agencies will see their power significantly diminished. But to focus only on this particular Supreme Court term is to miss the bigger picture: In the past few decades, conservative court majorities have dragged this country’s laws to the right on almost every issue imaginable. Shelby County v. Holder gutted the Voting Rights Act and opened the door for states to pass restrictive voting laws. Rucho v. Common Cause limited the court’s ability to curb partisan gerrymandering. Citizens United v. Federal Election Commission unleashed a torrent of campaign spending. Janus v. AFSCME Council 31 weakened unions. A whole slew of cases, including some decided on the shadow docket during the Covid-19 pandemic, undercut federal agencies’ power to help govern in an era of congressional gridlock. And that’s only a partial list. Kate Shaw is a law professor at Cardozo School of Law, a co-host of the legal podcast Strict Scrutiny and a former clerk for Justice John Paul Stevens. In this episode, she walks me through the most significant Supreme Court cases over the past 20 years, from the court’s decision to hand George W. Bush the presidency in 2000, to the dismantling of the Voting Rights Act, to the assertion of an individual’s right to bear arms. Along the way, we discuss the right’s decades-long effort to transform American law from the bench, how Republican-appointed judges have consistently entrenched Republican political power, the interpretive bankruptcy of constitutional originalism, how the Warren Court radicalized the conservative legal movement, what might happen to decisions like Obergefell v. Hodges now that the court majority seems to be so comfortable throwing out precedent, what cases to watch in the Roberts Court’s next term, and more. Mentioned: “After Citizens United: How Outside Spending Shapes American Democracy” by Nour Abdul-Razzak, Carlo Prato and Stephane Wolton “The Most Important Study in the Abortion Debate” by Annie Lowrey Book recommendations: The Turnaway Study by Diana Greene Foster Torn Apart by Dorothy Roberts Who Decides? by Jeffrey S. Sutton 51 Imperfect Solutions by Jeffrey S. Sutton Thoughts? Guest suggestions? Email us at [email protected]. You can find transcripts (posted midday) and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast, and you can find Ezra on Twitter @ezraklein. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs. “The Ezra Klein Show” is produced by Annie Galvin and Rogé Karma; fact-checking by Michelle Harris, Rollin Hu, Mary Marge Locker and Kate Sinclair; original music by Isaac Jones; mixing by Isaac Jones; audience strategy by Shannon Busta. Our executive producer is Irene Noguchi. Special thanks to Kristin Lin, Kristina Samulewski, David A. Kaplan, Ian Millhiser, Aziz Rana and Kate Redburn.

Transcript

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0:00.0

I'm Mr. Klein. This is the Ezra Klein Show.

0:22.5

It isn't just dobs. I want to say this as clearly as I can. It is not just a dobs decision.

0:29.7

For 20 years or more, the Supreme Court has been shifting this country's political and legal system to the right.

0:36.4

Far to the right. It is done so in ways flagrant and obscure, in cases that are famous and in cases that rarely make the news.

0:45.4

Dobs may mark a new brazeness. The six-three Republican court flexing muscle it didn't have until Amy Coney Barrett joined,

0:53.1

and John Roberts went from swing vote to near-erelevency.

0:57.5

But the cases that matter here have come out not just over these months, not just in recent years, but over decades.

1:05.2

And so I wanted to do a show that tries to take the right word shift as a whole.

1:10.9

That tries to see the cumulative effect of these eras, not comprehensively, but such that you get a sense of it.

1:18.0

And then the coming decisions and nature of government they foretell.

1:22.6

And in particular, I want to look at something I find really concerning here, which is the feedback loop that Republican politicians and our Republican court have created,

1:32.5

where the court has put forward a series of decisions making the Republican party stronger, and the party has interned on everything in its power to strengthen the court's Republican majority.

1:42.2

Kitsha clucked for the legendary judge Richard Posner, and then on the Supreme Court for Justice John Paul Stevens.

1:49.3

She is a professor of law at Cardoso Law School and co-host of the legal podcast Strix scrutiny, which is invaluable right now.

1:56.1

And almost wish she wasn't as good as she is here at putting it all together.

2:02.8

Because when you put what the court has done in recent decades together, all at once it is startling.

2:07.9

But if we're going to chart a different course forward, we're going to need to see truly what the Supreme Court has become,

2:14.3

and where because of it we really are.

2:16.9

I should note we recorded this on Wednesday afternoon before the court ruled on West Virginia versus the EPA.

2:22.8

That is the case we talk about in here, and as we predicted, the court severely limited the agency's ability to regulate carbon emissions and undercut administrative power more broadly.

2:32.7

As always, my email is reclinedshowatnytime.com.

2:41.5

Kitsha, welcome to the show.

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