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The Ezra Klein Show

Liberals Need a Clearer Vision of the Constitution. Here’s What It Could Look Like.

The Ezra Klein Show

New York Times Opinion

Society & Culture, Government, News

4.611K Ratings

🗓️ 5 July 2022

⏱️ 74 minutes

🧾️ Download transcript

Summary

For decades now, the conservative legal movement has been on a mission to remake this nation’s laws from the bench. And it’s working. On Friday we released an episode with the legal scholar Kate Shaw that walked through case after case showing how conservative Supreme Court majorities have lurched this country’s laws to the right on guns, voting, gerrymandering, regulatory authority, unions, campaign finance and more in the past 20 years. And if the Dobbs majority is any indication, this rightward shift is just getting started. But this conservative legal revolution is only half of the story. The other half is just as important: the collapse of liberal constitutional thinking. Liberals have “lost anything that would animate a positive theory of what the Constitution should be,” says the legal scholar Larry Kramer. “And so they’ve been left with a kind of potpourri of leftover things from the periods when liberals were ascendant in the ’60s and ’70s.” Kramer is a former dean of Stanford Law School, the current president of the William and Flora Hewlett Foundation and the author of“The People Themselves: Popular Constitutionalism and Judicial Review.” And according to him, it hasn’t always been this way. For most of American history, politicians, from Jefferson to Lincoln to Franklin Roosevelt, believed that constitutional interpretation was inextricable from politics. And they put forward distinct visions of what the Constitution meant and the kind of country it was written to build. But then, in response to the progressive victories of the Warren court, liberals began to embrace the doctrine of judicial supremacy: the view that the final authority on the Constitution rests with the courts. This has resulted in both the conservative legal victories of the past few decades and liberals’ muddled, weak response. So this is a conversation about the collapse of liberal constitutional politics: why it happened, what we can learn from it and what a renewed, progressive vision of the Constitution could look like. We also discuss why the founders weren’t actually originalists at all, whether liberal constitutional thinking has been captured by the legal profession, what a liberal alternative to originalism could consist of, why changing the size of the court (despite its controversies) has been an important tool for staving off constitutional crisis, the case for an “anti-oligarchy Constitution,” the merits of imposing supermajority requirements on court decisions and nominations, why Kramer views Roosevelt’s infamous court-packing effort as a major success and more. Mentioned: Larry Kramer’s testimony at the Presidential Commission on the Supreme Court of the United States “Judicial Supremacy and the End of Judicial Restraint” by Larry D. Kramer “Marbury and the Retreat from Judicial Supremacy” by Larry D. Kramer “The Judicial Tug of War” by Adam Bonica and Maya Sen Book recommendations: The Anti-Oligarchy Constitution by Joseph Fishkin and William E. Forbath The Second Creation by Jonathan Gienapp When We Cease to Understand the World by Benjamín Labatut We’re hiring a researcher! You can apply here or by visiting nytimes.wd5.myworkdayjobs.com/News 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, Mary Marge Locker, Kate Sinclair and Irene Noguchi; original music and mixing by Isaac Jones; audience strategy by Shannon Busta. Our executive producer is Irene Noguchi. Special thanks to Kristin Lin and Kristina Samulewski.

Transcript

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0:00.0

I'm as reclined, this is the Ezra Kuncho.

0:22.7

About 50 years ago, when Roe was first decided, the conservative legal movement was in a

0:28.5

utterly desperate place.

0:30.2

They were coming off decades of a liberal court that had reshaped, truly reshaped the country's

0:35.8

laws on race, abortion, sex, school prayer, and much more.

0:40.8

It was a legal revolution, and it created a conservative counter-revolution in the law,

0:45.8

one that has now taken power and is wielding it.

0:51.3

But something else happened in this period.

0:53.4

It isn't just the conservative legal thinking rose.

0:57.1

It's that liberal legal thinking fell, collapsed.

1:02.3

Depending on who you talk to, you will hear very different accounts here of what went wrong.

1:07.0

One version holds that liberals outsourced too much to the law and they abandoned politics.

1:12.2

Another is that liberals became legal institutionalists.

1:15.3

As they captured the heights of a legal profession, it captured them.

1:19.3

Their thinking became defensive.

1:21.8

Their thinking became small and cramped.

1:24.5

Professional.

1:25.5

A third is that liberals came to buy into the conservative critique of their own approach.

1:31.9

Liberal jurists don't believe in originalism exactly, mostly.

1:36.6

But they have believed in it.

1:38.0

At the very least, they took to heart the attack the right mounted on so-called activist judges

1:44.2

who read their own values into the Constitution.

...

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