A Guide to the Supreme Court's Rightward Shift

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.

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:04Ezra Klein?

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

• 0:22Ezra Klein?

  It isn't just Dobbs. I want to say this as clearly as I can. It is not just a Dobbs decision. For 20 years or more, the Supreme Court has been shifting this country's political and legal system to the right, 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. Dobbs may mark a new brazenness, the six three Republican court flexing muscle it didn't have until Amy Coney Barrett joined and John Roberts went from swing vote to near irrelevancy. But the cases that matter here have come out not just over these months, not just

• 1:03Ezra Klein?

  in recent years, but over decades. And so I wanted to do a show that tries to take the rightward shift as a whole, that tries to see the cumulative effect of these eras, not comprehensively, but such that you get a sense of it. And then the coming decisions and nature of government, they foretell. And in particular, I want to look at something I find really concerning here, which is the feedback loop that Republican politicians and a Republican court have created, where the court has put forward a series of decisions making the Republican Party stronger, and the party hasn't turned on everything in its power to strengthen the court's Republican majority.

• 1:43Ezra Klein?

  Kate Shaw clerked for the legendary Judge Richard Posner and then on the Supreme Court for Justice John Paul Stevens. She is a professor of law at Cardozo Law School and co-host of the legal podcast Strict Scrutiny, which is invaluable right now. And I almost wish she wasn't as good as she is here at putting it all together. Because when you put what the court has done in recent decades together all at once, it is startling. 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 and where, because of it, we really are. I should note, we recorded this on Wednesday afternoon before the court ruled on West Virginia versus the EPA. That is a case we talk about in here. And as we

• 2:25Ezra Klein?

  predicted, the court severely limited the agency's ability to regulate carbon emissions and undercut administrative power more broadly. As always, my email, [email protected].

• 2:41Ezra Klein?

  Kate Shaw, welcome to the show.

• 2:43Kate Shaw?

  Ezra, thanks so much for having me.

• 2:45Ezra Klein?

  So 50 years ago, conservatives find themselves, really, I guess, further down the road liberals are on today. They're coming off of decades of this liberal activist court that had reshaped the country's laws on race, on abortion, sex, school prayer, integration. And I think we're now at something like the apex or the apex period of that conservative counterrevolution. So how does the view of the Constitution and the court's role that dominates the court today contrast from the view that dominated then?

• 3:22Kate Shaw?

  So you're asking about the difference between this conservative supermajority. So six of the nine justices were appointed by Republican presidents, three of them appointed by Donald Trump. And they are just sort of beginning to kind of flex their muscles and tell us about the way they're going to interpret the Constitution. So I don't feel fully equipped to answer that question yet. But we're coming off an incredibly consequential term. This is their first full term together, this six-justice supermajority. And it's obvious that they're approaching the Constitution in a radically different way from the Warren Court that you were just referring to, Ezra. So right from 53 to 69, roughly, and in the early 70s as well, in the kind of early Burger Court, the court

• 4:06Kate Shaw?

  Read the Constitution very, very differently from the way it reads it today. So, you know, I'm a con law professor. So of course, we think about constitutional methodology. Like, what do the justices do when they sit down to interpret a provision of the Constitution? And there have been many, many changes in their methods, right? They approached the Constitution and its kind of broad, open-ended guarantees back then, without really fetishizing words or phrases, but, you know, kind of trying to get their arms around the principles and values that the Constitution meant to enshrine. And that's basically absent today. So that's kind of the methods shift. But of course, substantively, what the Warren Court did was many of the things that you just listed, right?

• 4:50Kate Shaw?

  It decided Brown versus Board of Education. It said that the equal protection clause of the Constitution did not permit segregated public schools, and it fundamentally transformed American public education. It, you know, later into the 1970s, found that the Constitution guaranteed a right to sex equality. It found that sufficiently distorted political processes, and in particular with the drawing of legislative districts, to contain radically different numbers of people, violated basic equality principles and representation principles in the Constitution. So those are the one-person, one-vote cases.

• 5:30Kate Shaw?

  You know, I could go on, but much of the work of the Court was trying both to enforce meaningful participatory democracy, but also actually make good on some of the broadly worded rights guarantees in the Constitution. And in some ways, we are not only seeing kind of a retreat from those kind of goals and values in this newly constituted Court, but actually a lot of work that runs directly contrary to them.

• 5:55Ezra Klein?

  Let me pick at something in there that I think you described very well, that the Warren Court was working with the deep values and principles and intentions of the Constitution, at least as it understood them. And what you'll hear from conservatives, not just in defense, but in advocacy of this Court, is that this is a shift from...

• 6:21Ezra Klein?

  An ideological to an interpretive approach, a shift from seeing what we want in the Constitution to seeing what the Constitution said or was meant to say at the time of its founding, a shift from interpreting it philosophically to interpreting it rigorously. Do you buy that explanation?

• 6:42Kate Shaw?

  I mean, no, I guess in a word. So I think what you're getting at there is originalism. And that's just basically the idea that the Constitution should be interpreted as it was understood, either by those who wrote it or those who were alive at the time that it was drafted and ratified, and that basically the meaning of the Constitution is frozen in time, either then, when the Constitution was originally drafted, or if you're talking about later added provisions of the Constitution, like the Fourteenth Amendment, which is added in 1868, that that's the relevant time period. But in any event, it is looking to the time right around when the constitutional language was written and deciding what the language

• 7:22Kate Shaw?

  means based on what it meant at the time. So that's, of course, the explanation that originalists kind of offer when they explain the superiority and indeed the sole permissibility of this method, right? That the only way to get judges' values out of constitutional interpretation is to look largely or exclusively at history and to try to discern what the drafters of the Constitution and those around, those who mattered, those who were in the political community at the time the Constitution was drafted. Now, I should say, there is kind of a fetishization of the late 18th century history, I think largely to the exclusion

• 8:04Kate Shaw?

  of the Reconstruction era history, right? The Fourteenth Amendment is arguably the most important part of our Constitution, and yet it gets much less attention when originalists do constitutional interpretation than the founding era 1789 or 1791 history does. So there's the, you know, that's, of course, the explanation that is offered. But history is complex and contested. And so to suggest that this kind of method actually is objective in a way that earlier approaches to constitutional interpretation were not, I think is just At worst, sort of bad faith, at best, unconvincing. Because history can always tell us many, many different stories.

• 8:46Kate Shaw?

  And so the way that to take, you know, the court's two most recent constitutional decisions, the Dobbs decision overruling Roe, finding the Constitution doesn't protect a right to abortion, and the Bruin decision, finding that New York's permitting regime for carrying concealed weapons around New York City and New York State and other parts of the country that had previously required people to, you know, go through some screening to get licenses to carry concealed weapons was inconsistent with the Second Amendment, both involve incredibly selective readings of the relevant historical record in service of, it seems, you know, outcomes that actually are philosophical, as you said, or substantive value-driven outcomes, they're just dressed up differently.

• 9:33Ezra Klein?

  One thing I find strange about the court's constant appeal to history is that if these questions are truly to be decided historically, it really seems we need a different kind of institution staffed in a very different way. I mean, the Supreme Court is important, what it does is important, we could definitely give it some budget, and it could have a team of 20 excellent constitutional historians at the top of their game, consulting, who are part of it, who work full-time for it. I'm sure lots of great people, great institutions, would happily spend two years or five years at a time on the Supreme Court for that experience.

• 10:18Ezra Klein?

  And instead, it's nine lawyers with a bunch of 20-something clerks who are arguing about American history. And really using history as the core of what is then claimed to be a legal ruling, it just seems very bizarre. Like, if we have to find the right answer, to the extent there is one in our history, I don't think this is how you would build an institution to do that.

• 10:43Kate Shaw?

  Totally. No, there's a profound mismatch between the justices and their kind of skill sets and training. And even more, the law clerks, who, as you said, are in their 20s, have typically just gone to law school and done one or two clerkships, maybe spent a couple of years at a law firm. But what are they trained in? Reading statutes, reading the Constitution, reading Supreme Court cases? That's actually most of what you do in law school, is read Supreme Court cases, for better or worse. So, in an era, really any era prior to the present one, it made sense to have clerks trained the way clerks are trained, because much of what they were doing was reading the Supreme Court's precedents, trying to synthesize them, trying to distill and understand

• 11:27Kate Shaw?

  the right rules and to give on the edges. And this court, among many other shifts, is pretty uninterested in precedent, or at least in relying on precedent. So, I think it's a really smart point. So, these lawyers trained to do a different kind of job may not be particularly well-suited to this, and historians probably are better qualified. I don't think historians are really the answer either, because I'm not sure that the method is actually seeking deep historical truth, were such a thing even ever knowable. So, I'm not sure, from the perspective of the justices, really deploying this method, that would be a welcome development. But I think you're right to point out how bizarre it is to see this institution trying

• 12:10Kate Shaw?

  to do its work in the way that we have seen on display in the most recent cases.

• 12:13Ezra Klein?

  So, let's take a tighter timeframe. I asked you about the Warren Court, the apex of the liberal court. But let's go back to 2000. There was a 5-4 conservative majority on the court in 2002. How did that court's view of the Constitution and its own role differ, in your estimation, from this one?

• 12:37Kate Shaw?

  Well, so if we're going back 22 years, that's a court on which justices sit and the political party of the president who appointed the justices is not at all perfectly predictive of the votes cast by the justices. So it's a really different institution in that way. So I clerked there eight years after that, or 2007 to 2008. And that was a court where Justice John Paul Stevens had been appointed by Republican President Gerald Ford. David Souter was a Republican appointee, Sandra Day O'Connor, Anthony Kennedy. These were all Republican appointees who especially justices Stevens and Souter, but Kennedy and O'Connor as well, often voted in ways that were out of step with the prevailing wisdom

• 13:22Kate Shaw?

  in the Republican Party. And that was sort of just part of the court. It wasn't in any way something unusual or unexpected. And that wasn't anomalous either. We're just talking about 2000, but for most of the court's history, for all of the court's history until the very recent past, justices have routinely defied the expectations of, disappointed the presidents who appointed them. You did not have perfect alignment between party platforms and justices' votes. And that, of course, has really changed.

• 13:54Ezra Klein?

  So I want to go through some of the areas of the law and talk about what the court has changed in the past 22 years. And I want to begin with the area I find on some level most frightening, elections and voting rights. And I say that because it's here that the court is able to alter or affect the political system that then decides the composition and power of the court itself. It is able to help create the rules by which it operates. So let's actually start by staying in the year 2000. Tell me about Bush v. Gore.

• 14:34Kate Shaw?

  Sure. So I think for many people, Bush versus Gore is kind of an important inflection point for the Supreme Court and kind of our understanding of the kind of political entity the court is. I don't think that anyone can really claim the court has ever stood entirely outside of politics, but I think the court started to act and I think people started to perceive the court as political in a different way in Bush versus Gore. That's a case in which the court intervenes in an election dispute in the state of Florida, but all of the conservatives are in the majority and it's a 5-4 majority. And they reach into a state law dispute and decide that the federal constitution prevents a state from continuing

• 15:15Kate Shaw?

  to try to correct the state's own errors in administering a federal election. And by doing that, they functionally hand the presidency to George W. Bush. And, you know, I think for many people, the court was forever changed in their minds. And I think that's true for some of the people on the court as well. But in terms of, you asked more broadly about the court's role in kind of elections and voting cases, you know, it wasn't totally clear, I don't think, at least in the immediate aftermath of Bush versus Gore, whether it was kind of a one-off, you know, a presidential election so close, you know, a well-litigated case that presented this legal theory that the federal constitution's equal protection

• 15:56Kate Shaw?

  clause was being violated by uneven treatment of ballots from different parts of the state. And thus, you know, it was sort of, you know, the majority opinion itself says, basically, this case is a ticket, good for one ride only. And we're not saying anything more broadly about the court's role in adjudicating election disputes, or the role of equal protection principles in, you know, interfering with state decisions about voting. But I do think that in, you know, maybe some ways, it really was a turning point for the court. And the court has been involved in many, many election-related cases, whether we're talking about the Voting Rights Act or campaign finance in the intervening decades. And of course, you know, the court has been incredibly active and largely in ways that have undermined the effective functioning

• 16:41Kate Shaw?

  of a genuinely representative democracy.

• 16:46Ezra Klein?

  One reason I start with Bush v. Gore, and I don't pretend to know how a counterfactual would have played out. I think there's a very good chance that in a number of counterfactuals, probably the likelihood, is that Bush still becomes president, but we don't know that. And what is always very striking to me about Bush v. Gore is that it put the court simultaneously upstream and downstream of its own decisions, which is by, I think, being seen to and in fact intervening on behalf of the political party that had appointed most of the members, Bush becomes president in at least the history we lived. And then particularly in a second

• 17:29Ezra Klein?

  term, having won the presidency that way, he is able to alter the composition of the court. And, you know, Chief Justice John Roberts, Samuel Alito, who ends up authoring the Dobbs decision. And that just puts the court, to me, in a very strange position where it looks more like an alliance than an outside actor. And so you might expect that would create a sense of fear or restraint on the side of the court in the future on these kinds of issues, but it doesn't, including on the part of the members George W. Bush ends up appointing. So let's talk about voting rights. Tell me about Shelby County v. Holder.

• 18:11Kate Shaw?

  Sure. So in that case, the court, using basically an invented doctrine about equal sovereignty, strikes down the heart of the Voting Rights Act of 1965, which had a couple of key provisions, but one of the most important of which was a requirement that covered states. And there was a formula for determining what states were covered, and it was mostly states in the deep south and then pockets of other states, including New York and California, where there were serious histories of racial and also later language discrimination in voting. Those states were required to get permission, either from the federal Department of Justice or a federal court, before changing Their methods or anything to do with voting.

• 18:56Kate Shaw?

  So even things like moving the sighting of polling places, changing registration requirements, things like that needed to get prior approval, again, from a federal court or from the federal executive branch. And the court struck down basically the formula that indicated what parts of the country were covered by this, what was called a preclearance regime. And again, as I said, it did it based on this completely invented constitutional principle, and in some ways as troublingly, by substituting its judgment for the judgment of Congress, which had just virtually unanimously reenacted the Voting Rights Act about what was necessary

• 19:36Kate Shaw?

  and whether continuing racial discrimination in voting warranted the continuation of this regime. And from a constitutional law perspective, one of the things that was the most disturbing about the case was that this is a Roberts majority opinion. And Roberts just basically says, well, I disagree with Congress. I disagree that the Voting Rights Act is still necessary. I disagree that racism endures, at least in the way that Congress decided it endured, in a way that warrants allowing this regime to continue. And there's never really articulated what the standard of review is. Like, "I disagree" has not ever been the basis for the court to strike down an act of Congress, right? Typically, there needs to be deference given to Congress, a clearly articulated standard

• 20:21Kate Shaw?

  for announcing the reasons for diverging with, you know, the judgment that Congress has reached. And in particular, when you have a law like the Voting Rights Act, which had been, you know, enacted in 1965, but then reauthorized a number of times, including by virtually unanimous Congresses each time, it had been reaffirmed, its constitutionality had been reaffirmed by multiple Supreme Court opinions. And in light of all that history, Roberts still kind of cavalierly sort of brushed it aside and basically said, "The South is different. This law is no longer necessary." You know, and I think that within hours of the announcement of the Shelby County opinion, states that had previously been prevented from doing so moved to enact restrictive voting laws they would not have been able to enact.

• 21:05Kate Shaw?

  Prior to Shelby County. And so, you know, in terms of the immediate on the ground consequences of Shelby County, there are not a lot of competitors. I mean, Dobbs, I think, is very much up there, but in terms of huge impact in modern Supreme Court opinions. And I think it has everything to do with the kind of wave of restrictive voting laws we've seen in the decade since Shelby County.

• 21:26Ezra Klein?

  I'm really glad you brought up the fact that the Voting Rights Act had been nearly unanimously reauthorized just a couple of years before by Congress, by also, it should be noted, a Republican president, because it, one, speaks to the durability, or lack thereof, of a principle you might think this court holds very highly if you read something like Dobbs about the respect it has for the people and their representatives making decisions on these crucial issues. But there's another dimension of it that I think is interesting to look back on from this current moment, which is, we were talking a couple of minutes ago about how Alito and others have created this approach to the

• 22:09Ezra Klein?

  Constitution wherein our past must govern our present. If you can't find Congress making these laws, if you can't find these practices in our past, then you can't find these rights in our present. But here, in a way, Roberts does the exact reverse thing. He says the Voting Rights Act is based on, quote, "decades-old data and eradicated practices," and he makes an argument, his own argument, that the present is so different than our past that our old understandings no longer hold, and he can strike down these parts of the law.

• 22:47Kate Shaw?

  It's such an interesting question. I mean, a couple of things. I mean, one, I think that the court is pretty selective in deciding when to defer to the democratic process, or at least announce a principle of deference to the democratic process, and when to assert that, you know, it is sort of the final arbiter of constitutional meaning and even these kind of structural democratic principles. Taking seriously what

• 23:13Kate Shaw?

  The political branches have done, and not just in a particular case, anytime a court is reviewing a constitutional challenge to a statute, it's of course asserting that it has a role and it has since Marbury versus Madison announced to the country that it is the final word on the meaning of the Constitution. But in many cases, the court will basically say, settled practice and kind of the consensus of the political branches of government, or you know, the other political branches of government, the court likes to talk about the other branches as the political branches. But settled practice is often a really important factor in the court's assessment of the constitutionality of, say, a statute or some type of executive branch practice. And there's not a hint of that kind of deference in the Shelby opinion.

• 23:58Kate Shaw?

  It's such a judicial maximalist opinion. And again, it's not, it's sort of this evidence-free zone in which Roberts basically says, I think, and you know Barack Obama is the president, he doesn't say this, but this clearly lurks in the background, I think serious racism in access to the vote is done, right? The South is different and the country is different. And so we can't be yoked to the past. And of course, in these recent cases, Dobbs and Bruin, very different contexts and very different constitutional principles, of course, but the court says exactly the opposite. It says, we get to decide, but the way we decide what the Constitution means and what it allows and what it requires is by just binding ourselves to historical practice.

• 24:42Kate Shaw?

  And we can never recognize constitutional rights if they have not been previously recognized. So it is very hard, I think, to reconcile the approaches in those cases.

• 25:20Ezra Klein?

  So in 2000, the court weighs in on Bush v. Gore on Bush's behalf. In 2013, in Shelby v. Holder, it weighs in on the Voting Rights Act on the side of states that would like to functionally pass much more restrictive voting rights bills or voting on rights bills. And then there's a series of cases beginning coming to the court about political gerrymandering. Can you tell me a bit about what the court ends up holding here?

• 25:46Kate Shaw?

  Sure. So there, basically, beginning in the 1980s, there are a series of cases in which the court is wrestling with the question of whether there's a constitutional principle that either places some limits on or totally invalidates the ability of self-interested political actors from drawing legislative districts in ways that entrench themselves in political power and disadvantage their political adversaries. And in each of these cases, there is a bunch of earlier ones through the 80s and 90s and early 2000s, the court sort of wrestles with, is there a limit? What is the limit? How could we announce a judicially enforceable standard?

• 26:25Kate Shaw?

  And divides 5-4 in a bunch of cases, leaving open the possibility that partisan gerrymandering, right, you know, again, politically self-interested drawing of legislative districts violates the Constitution, never quite holding that it does, never saying the court can't ever decide if it does, but leaving the door open to these challenges. So I think in these decades, state legislatures are drawing legislative districts with kind of a background concern that if they are too aggressive, they are too maximalist in doing so, maybe they'll cross some as-yet-to-be-identified constitutional line and the court will invalidate what they have done. So I do think it has some effect on actual map drawing, but the court has never said

• 27:06Kate Shaw?

  exactly that this practice violates the Constitution or when it might. So then in 2019, Russo versus Common Cause.

• 27:15Kate Shaw?

  This is actually the second case. There had been a previous one from Wisconsin the year before, but this case involves a map out of North Carolina and a map out of Maryland. So first a Republican map in North Carolina and a Democratic map in Maryland, and both drawn to maximize the partisan advantage of the party in control of the legislature that's drawing the maps. And in that case, the court, after having kind of danced around the possibility of what to do about this problem of partisan gerrymandering for all of these cases, basically says, you know what, these cases are non-justiciable. And what that means is federal courts have no role to play in deciding whether this practice violates the Constitution. And Roberts actually goes out of his way to say, gerrymandering is a problem. Everyone should be worried about it. Other political institutions might

• 27:59Kate Shaw?

  be in a position to address it, and, you know, maybe they should. But federal courts don't have the tools to decide if and when a partisan gerrymander violates the federal Constitution. And so we are just going to declare these cases off limits. Federal courthouses are closed to these kinds of challenges. So it emboldens legislatures. And by this point in 2019, there are many, many more Republican-controlled legislatures than Democratic. I mean, 2010, obviously, is a big, important pivot point. And so it just means that legislatures are basically off to the races to try to draw district lines that allow, you know, the party that is sometimes in a minority in states. I mean, this 2018 data from Wisconsin

• 28:41Kate Shaw?

  is, I'm sure there's other data since that's better, but what is sort of top of mind right now is in 2018, you know, Democrat won statewide for governor and attorney general. And the legislature ended up, I think there are 99 seats in the Assembly, and there were, you know, well north of 60 seats of the 99 were won by Republicans because the maps had so successfully been drawn to carve voters up by party so that there was a supermajority in the Wisconsin Legislature for the Republican Party, which had a numerical minority statewide in voters. And there are, you know, other states that have done similarly in the wake of Ruchel, as some even were before.

• 29:21Kate Shaw?

  Now, the Roberts opinion does say, look, we are not suggesting that there is no recourse to challenge partisan gerrymanders. State courts and state constitutions may be a possible avenue to bringing these challenges. Independent redistricting commissions, as exist in other states, states can consider adopting those. So there has been actually some important activity at the state level post-Rusho to actually place limits on or to, you know, take completely outside of partisan processes, sort of, you know, partisanship in district drawing. But that was a hugely significant case in basically saying the federal constitution is completely agnostic on this. Other institutions can address this or not.

• 30:00Ezra Klein?

  I feel my blood pressure rising. Let me note two things about this that have always struck me. So one, as I understood the Roberts decision, one thing he says there is it's not really something the court can decide whether a gerrymander is truly a political gerrymander, right? Whether there's been an excess level of politics in a gerrymander, which is a little odd to say that the court can decide if there's too much racism in society or just enough that the Voting Rights Act no longer applies. But how much politics there was in a gerrymander that you can actually run through a math problem, you can actually

• 30:41Ezra Klein?

  look mathematically at how much it was designed to enhance partisan advantage is beyond the court's capability to discern. And you can tell me if I'm missing some subtlety there. And then the second just gets to the thing you said there at the end, which I also noticed in the Kavanaugh opinion, concurrence, I should say, on Dobbs, and then how it relates to Bruin, which is, it seems to me, and these tend to track Republican and Democratic views on things, but when the court makes a ruling in the direction that Republicans

• 31:14Ezra Klein?

  Would like it to. It tends to rule very strongly for whether there isn't a right or there is, right? There is not going to be this part of the Voting Rights Act. You cannot have these gun laws. And then when things are kind of pointing in a democratic direction, right? A liberal direction like Roe and Casey, or maybe an effort to reduce partisan gerrymandering, the court moves to neutrality, right? We're not taking a position on this. We're just saying that it's really up to the states, of which Republicans control most of them. And it's this weird shifting back and forth between weighing in strongly that the Constitution does not allow states to do something, and then moving, when it suits them, to the position of neutrality.

• 31:59Ezra Klein?

  The Constitution does not allow them to say states cannot do something. And it just seems to conveniently track Republican political and ideological interests in a way I find suspicious.

• 32:14Kate Shaw?

  And I actually think that, you know, in the cases where the court does deliver these kind of ostensibly liberal results, they are far more cabined, those results, than in the kind of more maximalist cases that you were talking about. So even thinking about Roe and Casey, these are cases that announce and then reaffirm that the Constitution protects a right to terminate a pregnancy. But those decisions place massive limits on the ability to exercise that right. So, you know, Roe sort of uses a trimester framework. Casey replaces the trimester framework with viability. But kind of however you decide to divide up a pregnancy temporally, both of those opinions take very seriously that states have an interest in promoting life.

• 32:56Kate Shaw?

  They can regulate, you know, so long as they don't create what the court described as an undue burden. But as interpreted, that standard gave states tons of latitude to act in all kinds of restrictive ways to regulate abortion, including, you know, Casey said this is fine, putting a thumb on the scale to try to convince women to continue pregnancies rather than to terminate them. So even in those cases, the court goes very far out of its way to Sort of accept and credit countervailing interests. And these are not in any way absolutist opinions. I mean, the Dobbs majority sort of seems to characterize Roe that way. But that's just not remotely a faithful reading of Roe. And I mean, I think even cases like Obergefell, the case that finds a right to same-sex marriage

• 33:41Kate Shaw?

  in the Constitution, there's, you know, significant discussion of individuals with good faith, religiously based objections to same-sex marriage, and the importance of our legal and political processes accommodating those kinds of objections. So, you know, even when the court does side with the existence of a right that, you know, those on the political and legal left are advocating, they are much more cabined in the way they describe and announce those rights than, you know, in other kinds of cases. And the other kinds of cases are more often about disabling, right? Disabling government from acting than recognizing a right, although I suppose you're recognizing a right, you're disabling certain kinds of regulation as well. So, so I'm not sure that, you know, the direction, I suppose, can be either of enabling or disabling in both instances.

• 34:25Kate Shaw?

  But what's so wild about Shelby in certain ways is that it's a, it's a disabling of government, the federal government, not a state in that case. And the countervailing interest is so hard to really get your arms around. It's this kind of, it's state sovereignty, really, is what it is. But it's not even so clear on what basis the court is disabling Congress from acting to protect these important rights secured by the 14th and 15th Amendments. And yet, that's one of the most sweeping decisions the court has issued in recent years.

• 34:58Ezra Klein?

  Tell me about the set of cases that we refer to as Citizens United. What did they hold?

• 35:04Kate Shaw?

  Sure. So, we're stepping back a little bit earlier than Shelby County. So Citizens United is 2009. And in that case, the court, you know, we're talking about sort of throwing out a lot of congressional enactments as Shelby County represented. This is quite similar in many ways. So they're the court. Strikes down these very longstanding limits on corporate spending in federal elections. Those are limits that had existed as a matter of statutory law in some form for over a century. They had also been affirmed and reaffirmed by a number of opinions of the court, so similar to Shelby County that way. And the case there, five-four, strikes down those limits, finding that they intolerably undermine the First Amendment speech rights of the corporate actors who were prevented

• 35:49Kate Shaw?

  from directly spending money on elections, just in the very narrow window of time, right before a primary and right before a general election. They couldn't spend the money outright. They could still do so through other legal entities. And the court still found that an intolerable encroachment on First Amendment rights. And so that case and a couple of cases that followed, a case that struck down aggregate limits on contributions to campaigns, a really important case out of the D.C. Circuit, that's really what created what we know now as super PACs, really unleashed an enormous amount of spending in federal elections. And substantively, the case basically took the position, both that precedent could be discarded relatively cavalierly, because again, a number of cases were overruled in

• 36:32Kate Shaw?

  Citizens United, but also really disabled government, the federal government here, but this applies to states and cities as well, from fighting corruption in the political process. There is all this language, and this is a Kennedy opinion in the majority opinion, about how government's ability to fight corruption or prevent corruption is limited to preventing or addressing quid pro quo corruption. Access, influence, those are things that are baked into the political process, and government does not have the constitutional authority to try to root those things out. We just have to live with them. So I think that kind of created a climate, both legally and politically, in which it

• 37:14Kate Shaw?

  seemed as though practices that might have once felt like they were going to be skirting some legal line were unlikely to be addressed because both statutes and prosecutors pursuing criminal prosecutions for corruption-type activities were likely to meet an audience in the Supreme Court that was very skeptical about the ability of government to address corruption.

• 37:40Ezra Klein?

  I want to say it's worse than you're saying here. This particular opinion. Yeah. And if you listen to this show, I think you'll have seen over time that I don't have very much respect for the Supreme Court. And it's because of opinions like Citizens United, where I read them and I realize that they're doing what I do, just worse. They're just running crappy punditry. So you were talking about Kennedy's views there of whether corruption can be addressed. But Kennedy goes further. He talks about whether or not corruption is present. He makes as core to his opinion, like an actual view about whether or not political contributions of this kind will either create real corruption or the appearance of it,

• 38:22Ezra Klein?

  because he agrees on some level that there is an interest in reducing corruption and the appearance of it. So he writes, "We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." He goes on to say, "The fact that speakers," by which he means here donors, "may have influence over or access to elected officials does not mean that these officials are corrupt." Then he goes on to say, "The appearance of influence or access furthermore will not cause the electorate to lose faith in our democracy." And I don't understand how you can see that as anything but punditry.

• 39:07Ezra Klein?

  I mean, bad punditry. I would be embarrassed to make that argument. But nevertheless, it is a crucial decision that is not in any way that I can tell truly illegal decision. Much like John Roberts decides racism isn't that bad anymore, Justice Kennedy decides political corruption isn't that bad anymore. And what is so weird about it to me is if you would imagine that there would be anywhere in the world, in the law, that you would obviously defer to elected politicians on what is going on here, it would be on the question. Of whether or not unlimited independent campaign contributions lead to corruption or the appearance of corruption

• 39:50Ezra Klein?

  in political practice, and Kennedy decides he knows better than that.

• 39:53Kate Shaw?

  Yeah, yeah.

• 39:54Ezra Klein?

  I'm sorry, it just, it drives me insane.

• 39:57Kate Shaw?

  And in some ways, Alito takes the point that you just made, not in Citizens United, but in another case, and basically turns it on its head and says, it's actually the fact that it's elected officials passing these laws that should make us skeptical of these laws, because surely there is some ulterior motive there. Otherwise, they wouldn't have enacted the laws at all. They must be trying to game the system in some way. So it's like, it really flips ordinary presumptions of deference. But no, your point is the idea that these justices would have any comparative advantage in deciding what kinds of schemes of financing elections are more and less likely to give rise to corruption is just laughable. And once upon a time, the court was deferential to,

• 40:40Kate Shaw?

  you know, within limits, if courts had previously struck down some, you know, your ability, say, to fund your own campaign. Congress once tried to prevent that. And the court has said, well, you know, you have a right to spend your own money to get yourself elected. So that's actually kind of longstanding. That way predates the current conservative court. But basically, to say that we know best as to both racism and corruption in politics is just a pretty hard claim to defend. And yet, the court with a straight face in just a few years makes both of those claims in Citizens United and Shelby County with, I think, tremendously significant consequences for our political process.

• 41:14Ezra Klein?

  And let me note some of those consequences before moving on. There's very important political science research by Nora Abdul Razzak, by Carlo Prato and Stefan Wolten. And I apologize if I butchered anybody's name. But they find that Citizens United and those decisions increased the GOP's average seat share in the state legislature by five percentage points, which is a pretty big increase. And then we're talking about these other cases where the court takes things like gerrymandering out of their purview and gives them to state legislatures. And at the same time, is making other decisions that we know increase Republican power in state legislatures. And you get this sort of feedback cycle beginning, which brings me, I would say, to the Janus case. Can you talk a bit about that one?

• 41:59Kate Shaw?

  Sure. So that's a 2018 case. So we're now stepping ahead a little bit in time. It's another Alito majority opinion, and that basically strikes down schemes in which public sector unions collected fees from public employees and, in the course of striking down that scheme, overruled 1977 opinion, Abboud versus Detroit Board of Education, in which the court had allowed such schemes as permissible under the First Amendment. So Janus is grounded, as is Citizens United, in this really expansive vision of the First Amendment, but one that really expands the kind of power of the already powerful rights. So Citizens United is about expanding, on grounds of the First Amendment, the ability of corporations to spend money on elections.

• 42:44Kate Shaw?

  Janus is really about finding that individuals who are opposed to unions and collective bargaining have a First Amendment right against paying fees to subsidize the activities of their union. And maybe could I just say, in terms of, I said earlier that some of even the court's sort of liberal decisions already have baked into them countervailing interests and kind of balances. That was true about Roe and Casey. That's actually true about Abboud, the case the court overturned in Janus, because Abboud had already said that, no, you know, you don't have, as a public employee, a First Amendment right not to pay what are called fair share fees to a public sector union, but maybe you do have a right not to subsidize the political activities of the union.

• 43:27Kate Shaw?

  So Abboud actually already said that public sector workers couldn't be forced to subsidize political activities of unions. All they could be required to make payments for was for the collective bargaining activities and representation of the unions, to which they were going to be the beneficiaries by virtue of their public employment. So there was a balance already struck in Abboud that said, you know, there's a bunch of countervailing values, you know, this is a pretty sensible compromise. And Janus, you know, in a way that really feels very animated by an anti-union kind of animus on the part of Justice Alito, it sort of, you know, drips from the opinion, basically says, no, that it's a First Amendment problem to require...

• 44:09Kate Shaw?

  Public sector employees to pay their fair share of subsidizing collective bargaining activity by unions. And that's an enormous blow to public sector unions, which are a huge part of, you know, these are important sites of, you know, mobilization and the exercise of political power. And individuals could already withhold their contributions from actual political activities. But it really had an impact on the coffers of public sector unions, you know, obviously very much to the worse.

• 44:36Ezra Klein?

  So before we move on from this category, I just want to wrap it a little bit. We've talked about a number of different kinds of cases here, a very unusual case in a contested presidential election. We've talked about political contribution cases, voting rights cases, gerrymandering, public sector unions. And they're different. And they all have their own reasoning. Some of them move in the direction of giving state legislatures more power. Some of them move in the direction of giving the court more power. But if the only heuristic you had had to predict these cases is what would be good for the Republican Party, you would have gotten every one of them correct. And that fundamentally, is what really worries me about the court's political operations now,

• 45:21Ezra Klein?

  which is they are intervening in profound ways in elections, through Janus, in the structure of interest group coalitions, in Citizens United in those cases, and how spending had happened. And they come up with all kinds of different ideas here about what they can and can't do. But always, it seems, without one exception I can think of, in the direction of the Republican Party's interests. And I'm not accusing them exactly of insincerity. But it's all very, it's all very convenient. And then because, of course, this ladders up ultimately, in all kinds of ways to who has the Senate, who has the presidency, you get into real trouble here.

• 46:03Kate Shaw?

  I mean, I'm, you know, I teach law students. I, of course, am a lawyer. And so I too am reluctant to jump to the conclusion that the majority of the court is simply doing the bidding of the institutional Republican Party. But I think when you sketch it that way, certainly that is one very compelling narrative that in each of these cases that are dressed up in and justified by constitutional theories and language and modes of reasoning that are kind of identifiable as such. That is, you know, one way to kind of zoom out and understand these cases. And I mean, we should say, even though the Republican appointees of an earlier era were very different from Republican appointees today, you know, there has been this, you

• 46:45Kate Shaw?

  know, real asymmetry in just kind of the raw numbers of justices Republicans and Democrats have appointed, right? So Republican presidents have appointed 14 of the last 18 justices on the court, right? So since Nixon, there have been, well, KBJ will be the fifth, but four Democratic appointees, right? Clinton had two, Obama had two, that's it since Nixon, like, you know, KBJ, Justice Jackson, who I think is being sworn in this week, will be, you know, make it five of 19 rather than four of 18. But those are really striking numbers. And some of it is just, you know, the timing of retirements and deaths of justices. And then some of it is, you know, this unbelievably aggressive kind of power politics of Donald Trump and Mitch McConnell, because, you know, two of the three justices that Trump appointed

• 47:28Kate Shaw?

  were arguably not appointments that were his to make. And so, and we are seeing the trends that you have just described are being supercharged, I think, with this really emboldened new conservative six justice supermajority.

• 47:40Ezra Klein?

  Well, what a week to be sworn in. That, that welcome to the court coffee klatch is gonna be, it's gonna feel awkward.

• 47:48Kate Shaw?

  Awkward, yes, it will.

• 47:49Ezra Klein?

  So I want to move to an area that gets less popular attention here, but is incredibly important for how policy is actually made, which is administrative law. And just to start, what is administrative law?

• 48:02Kate Shaw?

  So in a sentence, right, it's sort of the constitutional and statutory law that governs the work of administrative agencies. And obviously, as you know, that's really how most of the work of governance is done, through administrative agencies. And so it's kind of the constitutional principles and big statutes that govern the way they do their work. So that, broadly speaking, is administrative law.

• 48:23Ezra Klein?

  And I'm not going to go through this case by case in the way I did for the political cases, but how would you describe the way the court has reshaped it and is signaling it will continue to reshape it in the coming years?

• 48:36Kate Shaw?

  I agree, these cases tend to fly under the radar, but I think the court is in the process of taking a sledgehammer to the administrative state, which really means the capacity of government to do the work that we are now absolutely accustomed to it doing, from regulating climate, to workplace safety, to food and product safety, to responding to public health emergencies. I think the court may well be on the path of dismantling the capacity of government to do all of those things. And it should be getting much more attention than it is. I mean, you know, some of this gets pretty technical, but there are a couple of cases, and I will avoid getting excessively technical, but you know, there's one line of cases in which the court has basically struck down agencies, or parts

• 49:19Kate Shaw?

  of the structures of agencies, on the grounds that they give too much power to officials within the executive branch in ways that insulate those officials from presidential control. Because the theory here is that the president has to exercise all of the executive power, and all other officials within the executive branch have basically to be answerable to the president, subject to very narrow exceptions. So the big case here is Sela law, which struck down these protections that the head of the Consumer Financial Protection Bureau had by statute. The president couldn't just fire the CFPB head because he, you know, felt like he didn't like the way he looked at him. In a meeting, he needed to have some justification for removing the head of the CFPB. And the Supreme

• 50:03Kate Shaw?

  Court said that was an intolerable encroachment on the president's Article II authority. That's the part of the Constitution that gives the president his power. And, you know, there are other officials within the government where statutes protect them from summary presidential removal, and those are some pretty important parts of the government, like the Federal Reserve. And I do think this theory, taken to its logical conclusion, could throw into question the constitutional permissibility of any official within the executive branch who has some degree of independence by law from the president, and that's pretty terrifying. And then there are other cases, some of which, you know, were decided around COVID policies,

• 50:46Kate Shaw?

  that place real limits on how much and how Congress can delegate authority to administrative agencies at all. And there, too, I think the court could be poised to really disempower administrative agencies from doing much work at all. And they'll say they're doing this in order to return power to Congress, where it belongs under our constitutional scheme. But of course, Congress is never going to be in a position of legislating with the degree of detail and specificity that would be required to do most of the work that agencies do. So returning to Congress really means removing the ability of government to address problems at all. And, you know, and that's something that this court, I think, is really just getting started on.

• 51:26Ezra Klein?

  Can you talk a bit about those vaccine and mask mandate cases? Because, as you say, some of this is technical, but I think those ones put a pretty fine point on what the court is doing here.

• 51:37Kate Shaw?

  Sure. I mean, so the airline mask case was actually just decided by a district court, but it was basically following the script of two cases the Supreme Court decided. One that struck down the CDC's eviction moratorium, and one that struck down this test or vax mandate for large employers that OSHA had promulgated. That's the Occupational Safety and Health Administration. So these were both agencies, basically heeding President Biden's call to use whatever statutory authorities they had to address the COVID pandemic. And the CDC had temporarily paused evictions and OSHA basically took a look and invoked

• 52:18Kate Shaw?

  a statutory provision that gives the head of OSHA authority to take interim emergency measures to create workplace safety rules. And so this was, you know, what OSHA had done. It said, if you have, you know, 100 or more employees, they have to either be vaccinated or test weekly. So this wasn't even a vaccine mandate, although the court several times in its opinion described it as such. And in both cases, these were cases decided, well, the CDC eviction moratorium was decided on the shadow docket. So without any kind of full briefing or argument and OSHA was decided on an expedited basis as well. But in both cases, the court sort of said, well, these agencies, we're not sure. We took a look at the statute, even though honestly, the language in both, especially

• 53:02Kate Shaw?

  in the OSHA case, pretty clearly gave the agency authority to address public health emergencies. But the court took a look at the statute and said, well, OSHA is about regulating workplace safety and COVID is not just a workplace problem. Ergo, OSHA doesn't have the authority to mandate, again, either vaccines or testing in workplaces. So again, this is the court second guessing actors in other parts of the government. Here it's second guessing both Congress for having passed a statute empowering OSHA to take these emergency measures and has second guessed the way these agency officials have interpreted their statutory authority and done it in a careful way, following, you

• 53:45Kate Shaw?

  know, significant consideration. But basically to say, we think we know best what the statute means. And we're not quite going to say, we think we have a better read on what public health policy should be, but it sort of feels like that. And those are cases with enormous consequences, both in that, you know, that mandate never went into effect, the CDC eviction moratorium ended. And more broadly, those are now precedents on the books that basically send a pretty clear signal to agencies that we're going to look skeptically anytime you try to exercise any novel authority or anything that feels like aggressive authority. So back to the kind of, you know, the historically oriented nature of this court. In both of these cases, no, the CDC had never issued an eviction moratorium. No, OSHA had never issued this kind of mandate,

• 54:30Kate Shaw?

  although it had issued plenty of mandates previously. And that somehow to the court is a signal that there's something deeply suspect about what the agencies have done. But of course, agencies need to be able to innovate and respond in new ways to new problems. And the court seems fundamentally distrustful of that ever happening or ever being permissible when it does.

• 54:50Ezra Klein?

  And I want to pull out something that you're gesturing it there that I think is very important, which is the way, one, just the modern world is much too complex for Congress to be able to constantly detail every dimension of every policy, particularly in a fast-moving context like COVID. But two, also, how at a time of congressional polarization, this move the court is constantly doing, which is just say, well, it should really be Congress making these decisions. Maybe you might want to rewrite the Voting Rights Act or, you know, you want to have Congress begin dictating COVID policy. You're really just saying these decisions won't get made. And I'm not entirely unsympathetic to the court here.

• 55:33Ezra Klein?

  It's not exactly their fault that Congress is highly paralyzed and highly polarized. But the reality is that, given that I don't think the court is full of idiots, that what they're really doing is they are making the decision and saying, well, of course, Congress can always revisit this, but they know Congress can't. It doesn't have the technical or political capacity to act as quickly as a court does, to move as quickly as the world does. And so it's fundamentally a veto on actions of the administrative state posing as a return of power to elected representatives.

• 56:09Kate Shaw?

  No, that's right. I mean, I do think that the effect, if the court is able to fully implement this vision, is to return us to a pre-New Deal vision of the role of government in our lives. And I'm not sure that, like Neil Gorsuch, for example, would even dispute that characterization. But we would be winding the clock way, way, way back in ways that I'm not sure that any of us really grasp what those would look like, but pretty cataclysmic consequences.

• 56:37Ezra Klein?

  What is Chevron deference and what would it mean if it were overturned?

• 56:41Kate Shaw?

  Sure. Well, Chevron deference, Chevron is a case in which the court basically says, when there's a statute that an agency administers, a provision, say, of the Clean Air Act or the Clean Water Act, if a provision in the statute, you know, about something like emissions, say, is ambiguous, then when an agency has interpreted the statute and taken some action pursuant to that interpretation, the court is going to defer to the agency's interpretation so long as it is reasonable. Okay? So it is, you know, it is one of these kind of traditional tests that court has long used to basically empower other entities in government and to demonstrate a degree

• 57:22Kate Shaw?

  of kind of humility in its own ability to know and discern the correct answer in every case. Can basically say statutes can be a little confusing. Agencies have real expertise. They actually also are politically accountable in a way the court is not, right? Bureaucrats and agencies are not elected, of course, but they work for political appointees who are chosen by the president, who is, of course, elected. I mean, through the fiction of Electoral College, but the court loves to say the only person chosen by the entire country is the president. But so they have both the technical and the political accountability advantage over courts. And so if there's a choice whose interpretation should carry the day, of course, it should be the agency. So that's the idea of Chevron. And of course, it should

• 58:03Kate Shaw?

  be no surprise this far into the conversation that this kind of maximalist and judicial supremacist court is very, very dubious about the soundness of Chevron. And so there has been, I think, a long kind of conservative legal movement drumbeat to overturn Chevron. And that could well happen. But I think actually with Chevron, more likely, the court is just going to start ignoring it. So there have been a couple of cases this term where there's a question about whether to defer to an agency interpretation or whether to just substitute the court's own interpretation. And the court kind of just reads the statute without even mentioning Chevron and certainly without deferring to the agency. Now, actually, in one of those cases, the court agrees with the agency, but because it happens to as opposed to because it is, you know, compelled to by this principle. But that's another

• 58:48Kate Shaw?

  of these important and kind of under the radar for a lot of people administrative law doctrines that has long kind of kept courts out of the game of second guessing what agencies do. And I think is is very likely to no longer do that, or at least do that with the same force.

• 59:04Ezra Klein?

  There's a case coming with pretty profound implications for all of this, and frankly, for the world. Can you talk about West Virginia versus EPA?

• 59:14Kate Shaw?

  Sure. And in addition to these presidential independence cases and Chevron cases, there's this other administrative law doctrine that is very closely related to the doctrine that was deployed directly in the COVID cases we were just talking about. So in those cases, the court used something called the major questions doctrine, and that's related to something called the nondelegation doctrine. And they're both, these are just the technical names for these ideas that either Congress has to be really, really specific and precise when it is handing power to agencies, or that there are certain kinds of powers that Congress can't give to agencies at all. The second one is this nondelegation doctrine. Congress just can't delegate what is actually legislative power to agencies. That's the idea of the

• 59:57Kate Shaw?

  nondelegation doctrine. So in this case, West Virginia versus EPA, the court, probably on the basis of this major questions doctrine, is going to find, at least that's what I expect, and I think many people watching the case will expect, that there are significant limitations on the EPA's authority to address carbon emissions. A very narrow, it's specific, but very, very significant question in this case is what types of regulation the EPA can issue for governing the emissions of power plants. So the original administrative action was the Obama administration's Clean Power Plan that was replaced by the Trump administration's

• 1:00:40Kate Shaw?

  ACE rule. This was a different rule. Neither of these rules is currently in force. The Biden administration is in the process of a new rulemaking. So in many ways, this is not a case the Supreme Court should be deciding at all. It's foundational in our system that the court sits to decide cases and controversies where there's a live dispute between adverse parties, and not to opine in the abstract or in general about

• 1:01:08Kate Shaw?

  Legal questions or the limitations of authority or anything like that, that's just not its job. And that actually, I think, is what West Virginia and the other states that have challenged the Obama era Clean Power Plan are actually asking the court to do here, to offer broad guidance and broad guidance that narrows the scope of EPA's authority to regulate in this sphere, but in a way that actually really exceeds the judicial role. So I don't think the court should be deciding this case at all, but based on the tenor of the questions at the oral argument, I expect that they will. And I expect that they will place real limits on EPA's authority in this sphere. And the only question to me is whether that's going to be limited to the context of power plant emissions

• 1:01:52Kate Shaw?

  or whether they're going to say something much broader about the limitations of the EPA in the face of broadly worded statutes like the Clean Air Act and other 1970s era statutes, where Congress just wanted to give agencies power to respond to and to update their responses to evolving problems. But if the court basically says no, Congress has to go back to the drawing board every time it wants to empower an agency to act. Just as you said, Ezra, it's going to basically mean no regulation in these spheres at all. And obviously, when we're talking about climate, that's literally a cataclysmic prospect.

• 1:02:23Ezra Klein?

  And not to be repetitive, but the cases around Chevron, what is expected in the EPA case, the cases around vaccine mandates and COVID regulations, these don't sound to me like a court that views its role as limited and that thinks that in general, it should be returning questions to the people and their elected representatives. That pose seems to fall apart really quickly. Again, on all these cases that, as far as I can tell, have a pretty consistent valence ideologically in terms of how they play out.

• 1:03:00Kate Shaw?

  Yeah, I mean, and the court will absolutely say in these cases, if it does what we're expecting in West Virginia versus EPA, that it is doing it in the name of returning to the most accountable branch, right? Congress, the important work of deciding how and if and how to regulate something like this. But it's just incredibly selective in its invocation of democracy, right? It is absolutely the case that Actors within the executive branch who work for the president are much more democratically accountable than the court is. And yet, in the name of democracy, the court is doing some incredibly anti-democratic things. So it does, and I feel like I don't like overusing the term "gaslighting," but it

• 1:03:40Kate Shaw?

  actually does feel like when the court undoes with this kind of aggressiveness and speed the outputs of the democratic process in the name of democracy, I'm not sure there's a better way to capture it than gaslighting.

• 1:04:25Ezra Klein?

  Let's move to a topic where the opposite is really happening. And this is one I think people know a little bit more about, which is guns. Last week, the court struck down a New York state gun restriction in a case called Bruin. You mentioned that earlier. Before we get to that case, I want to go back a little bit. Can you tell me about D.C. versus Heller and how that changed the court's understanding of the Second Amendment and thus what was possible in gun regulation?

• 1:04:51Kate Shaw?

  Absolutely. So Heller is a 2008 case in which the Supreme Court, for the first time, held that the Second Amendment protects an individual right to gun ownership independent of service in a well-regulated militia. So the language of the amendment says that "a well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." And the court basically says, in a 5-4 opinion by Justice Scalia, The language of that first half of the amendment about a well-regulated militia doesn't limit the scope of the right. The right is a right to individual gun ownership. And in that case, there was a D.C. law that prohibited handgun ownership. And the court said, no, you have to have a right under the Second Amendment to own and keep at home a usable handgun.

• 1:05:36Kate Shaw?

  But that was just about ownership at home, right? People, I think, are sometimes surprised that until 2008, the court had never interpreted really the scope of the Second Amendment. It had mentioned it in previous cases. It had dismissed a Second Amendment challenge to a federal gun law in the 1930s, basically saying that, no, it's really about militias. So there's no individual right that the Second Amendment protects. So Heller really transformed the constitutional law of guns. And in the intervening decade-plus, there has been a lot of lower court litigation around what Heller means for other kinds of gun laws, both state and federal. And Bruin, the case that the court just decided, is really the first big post-Heller case on the meaning of the Second Amendment.

• 1:06:19Kate Shaw?

  There was one case, two years after Heller, that extended Heller, which was about a D.C. law, and thus a federal law, to state law. So states, after this 2010 case, could also not ban handguns. But not until Bruin did the court tell us a little bit more about how other kinds of gun regulations that weren't bans, the way the D.C. law and Heller was, would be evaluated. And as we alluded to earlier, the court in Bruin basically said, we are just completely yoked to history in deciding what kinds of gun laws are permissible. So if a right is within the scope of the Second Amendment, and the court said the right to carry a gun outside of the home is within the scope of the Second Amendment, any regulation of that gun has to be judged against what history tells us about how

• 1:07:02Kate Shaw?

  regulation has historically looked with respect to guns. And in Bruin, the court said, the New York law, which required you to show a proper cause before getting a permit to carry a gun, was inconsistent with the historical practice of regulating the carrying of firearms outside of the home, and thus the New York law is struck down. So this is, you know, New York is one of, was one of the states that had these kinds of proper cause regimes in place, but these were big populist states. We're talking about a quarter of the country that, prior to the Bruin opinion, lived in a state where it was very hard to get a permit to carry a gun outside of the home. And those states are now scrambling to figure out how to rewrite their gun laws. To align with what the court has said in Bruin.

• 1:07:46Kate Shaw?

  So that is, in terms of what it means for living, particularly those of us who live in crowded places like New York City, where we're around each other all the time, that's going to be a massive shift in the conditions of our collective lives together.

• 1:07:58Ezra Klein?

  This is a place where I find originalism, as the court practices it, not just unconvincing, but actually poisonous. Because the way they are, the court has framed itself under this textual approach as the actual arbiters of American history. Which is weird, not just the arbiters of what the Constitution says, but because they are trying to decide what the Constitution says in their telling, based on what they and their clerks. I'm sorry, it's so, like, when you say it aloud, you just, I feel like I've lost my mind. But they and their 20-some-year-old clerks have decided the history of guns are in America. They're making an argument about that the court is a final arbiter

• 1:08:41Ezra Klein?

  of American history, and it's just so weird. I mean, James Madison in Virginia, the fundamental drafter of the Constitution, is proposing gun regulation laws in the Virginia State Legislature. And they don't pass, but he clearly believes that it is permissible to regulate individual gun ownership for this or that reason at this period. And yet, the court, which, you know, to the extent people trust it and should be able to trust it, is trying to tell us, I mean, as you put it, gaslight us into saying, well, look, unfortunately, the founders had an unbelievably expansive vision of gun ownership, and we are bound to follow

• 1:09:25Ezra Klein?

  the simple truth, whether we like it or not, of what the historical record tells us. And so in doing that, I don't just think they're distorting the Constitution. I think in this very profound way, they're distorting our history and the shared factual basis upon which we can make collective decisions, which is, somebody who, you know, works within the question of the American narrative and American politics, I actually think is, in certain ways, a more toxic move to make than to simply say, we have decided grammatically on an expansive reading of the Second Amendment.

• 1:10:02Kate Shaw?

  I think that's such an amazing point. I mean, assuming the ultimate authority on what the Constitution means is one thing. Assuming the ultimate authority on what American history shows and should be understood to mean is really kind of a step the court has not previously taken because there actually really hasn't been an originalist majority on the court until very recently. And, you know, originalism as a method is a new method, though it obviously fetishizes old sources. And so I think that's right. And even as history, there are all kinds of flaws in the Thomas majority opinion in Bruin. There is lots of evidence of historical regulation of carrying guns outside of the home, and it is cherry picked. The evidence that Thomas decides matters in Bruin. And whenever there

• 1:10:47Kate Shaw?

  is at least even an acknowledgement of some of the inconvenient or unsupportive evidence, there is like a Goldilocks, well, that's not too much, or that's not recent enough, or that's too recent, kind of quality to the dismissal of any evidence to the contrary. And there's another weird asymmetry that's more of a specific critique of Bruin than a broader critique, which you're making of originalism as a method. But that is this weird feature of the Bruin opinion, which is to acknowledge that guns today are completely different from the muskets of the founding era, but that all of the guns today are protected just as were the guns of the founding era. So we're not in any way tied to history when understanding what guns, what has a right to possess. But we are bound to history when

• 1:11:32Kate Shaw?

  we're asking what regulations of those guns are permitted to be issued by those chosen by the democratic process. And that is both a bizarre and illogical, but also profoundly dangerous kind of asymmetry, because we're stuck with old laws that we can use to regulate far, far more lethal weapons. And there's not really any explanation for that divergence that the Thomas opinion offers.

• 1:11:56Ezra Klein?

  Larry Kramer, who is a former dean of Stanford Law, and he'll be on the show in a couple of days, he has this great analogy about originalism, which has been on my mind recently, which is, he says, you know, imagine that I gave you the blueprint of a boat. And the point is, I'm trying to help you build a boat that you can sail and that will remain seaworthy. And so you build the boat. And then as soon as you get out on the sea, you realize, oh, there's this or that problem. We need to make this improvement over time. You build out new parts of the boat. You move the bathroom. You change some pieces because it's leaking. And you sail the boat for 200 years. And then later on, some set of crew members say, actually, going forward,

• 1:12:39Ezra Klein?

  all repairs must be made explicitly and only based on the original blueprint. And also, things we have added need to be taken away based on the blueprint. And all you're going to get is a boat that's six. And I think it's a quite correct way to think about this. I mean, even if you bought into originalism, which I cannot state more strongly that I don't, and I hope everybody can hear the contempt I have for it. But nevertheless, even if you buy into it, to your point about the guns have changed dramatically, it's just very, very weird to think that a view about muskets would even, if you talked to the founding fathers about it and explained assault rifles,

• 1:13:24Ezra Klein?

  that they would be of one mind about what they were intending there. It like, it's almost disrespectful to them, I think.

• 1:13:32Kate Shaw?

  Oh, and an early critique of originalism was that certainly they were not originalists. They would never have suggested that they were bound. They knew they were doing something radical and new. And to the extent that it even matters, what they would have thought about the later interpretive endeavor, I find it almost impossible to believe that a single one of them would have subscribed to this method.

• 1:13:51Ezra Klein?

  And they all disagreed with each other. And I'm sorry, I will do one more. I will do one more thing on this, which is it.

• 1:13:58Ezra Klein?

  I find it so frustrating to hear people who will in one breath honor the great experiment that is America and the experimental entrepreneurial innovative spirit of the framers, and then say that we should have no such spirit today, that what made them great was like their their willingness to create this experiment and what will make us great is a complete fidelity to what they thought at the moment they created and understood at the moment they created this experiment, knowing as we do how much they couldn't know and knowing as we do how much they got wrong even then, it just, I don't know. I mean, it's not that I think there's a logic to this anyway, but it is so profoundly illogical that I find it extraordinary. Our

• 1:14:42Ezra Klein?

  political system has bought into it as much as it has.

• 1:14:45Kate Shaw?

  And I have to say, even like in the immediate post founding, first couple of years and decades, again, to the extent that this is even particularly relevant. I mean, I have written recently about the Electoral College and the creation of and selection of the presidency, within a couple of decades, not only had they passed the 12th Amendment to fix some obvious glaring errors in the original Constitution, but they were all sort of saying, you know, or at least Hamilton and Madison were saying very clearly, this, we did not get this one right. Like, none of them were under any illusions that they had crafted every single balance perfectly in the document, and they made some changes very quickly, but kind of more broadly, the originalists today fetishize the document in a way that those who drafted the document never did.

• 1:15:28Ezra Klein?

  So, we've talked a lot here about, I think, the scope of the rightward move. And so I want to talk before we close out about a couple of cases that, in my view, have distracted a lot of people in the political system who are not legal scholars from actually how sharp this rightward move has been. And I guess we should probably start with the King case here, which is Obergefell v. Hodges, where a right to same-sex marriage is seen in the Constitution. How do you understand that case in the context of the broader move we're talking about here?

• 1:16:06Kate Shaw?

  So that's a case in which the court finds that the Constitution does not permit states to restrict marriage to opposite-sex couples. So it has the effect of declaring same-sex marriage as the law of the land nationwide. And, you know, in some ways, it just may be that that case, which built on several earlier cases, Windsor, Lawrence, Romer, these are all cases in which the court invalidated laws that discriminated on the basis of sexual orientation. Lawrence is a really important one. This one struck down state laws that criminalized same-sex sexual intimacy, which until 2003, some states still did. And so the court struck those laws down. And in several other cases, invalidated laws, again, that discriminated on the basis of sexual orientation.

• 1:16:50Kate Shaw?

  And each of those cases was written by Justice Anthony Kennedy, as was Obergefell, the marriage case from 2015. And they're enormously important cases. And the Supreme Court is a complex institution. And I don't have a narrative to offer that neatly reconciles these cases with the other cases that we are talking about. I don't know that one can. I'm not sure the court is or stands for one thing. But I will say that those who have been the architects of the cases that we have been talking about were in dissent in all of those cases, right? So they screamed their dissent. Obergefell had separate dissents from Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito. They each wanted to have their say in how wrong Obergefell was.

• 1:17:35Kate Shaw?

  So, you know, I think in some ways, that was just a case in which Anthony Kennedy actually just deeply believed the Constitution did not allow discrimination on the basis of sexual orientation. And he happened to have with him on the court during those critical moments in the 1990s, in the 2000s, and the 2010s, the votes to make that kind of moral intuition constitutional law. But it was over the fierce objection of the justices who now control the direction of the court and who could, I think, seek to revisit the holdings in those cases in Obergefell, in Lawrence, if given the opportunity. Because, of course, the math of the court has changed. And there are not just the four dissenters from Obergefell. We now have Justice Gorsuch, Justice Kavanaugh, and Justice Barrett.

• 1:18:20Kate Shaw?

  And it does not seem to me that difficult to imagine that one or two or three of them would certainly be willing to revisit and potentially to overturn Obergefell.

• 1:18:31Ezra Klein?

  And just to draw something out, I think there that is fairly obvious, but I think worth saying explicitly. So there's a question of whether or not they will revisit it. And in the Dobbs opinion, the most of the Republicans in the majority say, go out of their way to say, we won't. Thomas says, we definitely should. And an opinion that I found darkly amusing for his unwillingness to just keep quiet to help them politically a little bit. But nevertheless, if you imagine Obergefell coming before this court the first time, it seems pretty clear it doesn't get decided the way it did.

• 1:19:05Kate Shaw?

  Yep, I agree with that. Yeah, I mean, that's and the only question is how much of an obstacle stare decisis is because it did come before a different court and it did get decided the way that court decided it. And I don't think there's any reason to take too much comfort in the court's reluctance to overturn its precedents in light of cases like Dobbs. Now, I think with Obergefell, the court might be more receptive to some of the reliance interests. Certainly would never, I cannot imagine a world in which it would throw into question existing marriages, but prospective marriages would be the ones in question. But a world in which individuals were lawfully married but reside in a world in which their marriages are, you know, would not be possible and thus must be, you know, how recognition of marriages entered into prior to the overturning of Obergefell would

• 1:19:50Kate Shaw?

  even work. It strikes me that the court might appreciate the complexity of unringing the bell of marriage equality, that it might, you know, it might take some kind of off ramp and not do it. So I would not confidently predict that Obergefell will be overturned by any means. But I think we have to take seriously the possibility, given what we have seen from this court in the last two terms.

• 1:20:12Ezra Klein?

  And then to talk about a case, and then some cases that unlike a lot of these, I covered very, very closely for many years, I want to talk a bit about the Obamacare cases. NFI B v. Sebelius, and then of course, there were a bunch more, but that's a big one. And I'll say one thing on it as I set this up, which is that when I began covering that case, the consensus from legal scholars, including ones who had clerked for right-wing judges, was this is ridiculous. The idea that the Supreme Court is going to even consider overturning the Affordable Care Act is an absurdity. I think Orrin Kerr, who had clerked on the court, he said, you know, it's like a couple percentage points of probability.

• 1:20:57Ezra Klein?

  And then by the time it's before the court, it's 50/50. And we now understand Roberts is having switched his vote on that case. And the Medicaid side of that case gets decided in a way that is very unexpected and leads to states not having to expand Medicaid if they don't want to. So can you talk a bit about the ride of that case inside the courts and what we learned from it?

• 1:21:22Kate Shaw?

  Sure. So, you know, the first, the big one, NFIB versus Abilius in 2012, that's so interesting that people were putting the odds that low in the early days, because I remember you were covering all this really closely. It always felt like a long shot, I think, to people. Congress has really broad authority under the Commerce Clause to regulate interstate commerce. And health insurance seems so obviously an interstate activity, right? Buying insurance is sold across state lines, medical care is obtained across state lines, all of it is incredibly interstate in this complex and integrated national healthcare economy. And so the idea that Congress would not have the authority to regulate healthcare in the way that it did, and in particular, we should say, the part of the ACA that was challenged was the, you know, minimum coverage provision, the

• 1:22:07Kate Shaw?

  requirement that individuals who didn't have employer-provided healthcare purchase healthcare or pay a penalty. And so it just seems like that was kind of a no-brainer, that the court would sustain Congress's authority under the Commerce Clause. And yet, the court did not, under the Commerce Clause, find that Congress had this power, also kind of à la Shelby County, by inventing a principle that Congress could not compel activity, that requiring people to purchase health insurance was forcing them into a stream of commerce in a way that differed from other kinds of congressional acts that the court had previously permitted. But, you know, this is not a principle that had previously appeared. And yet, the court upheld This individual mandate under Congress's

• 1:22:51Kate Shaw?

  power to tax and spend, and that is what it appears that Roberts changed his vote on that part of the case. That's the part of the case that got the most headlines. But invalidating the Medicaid expansion, you know, still permitting states to choose, but not requiring them to expand Medicaid, was an enormously important part of the ACA, which obviously you know better than I do. And the court, I think, was kind of cavalier in, you know, Elena Kagan and Stephen Breyer joined the part of the opinion, striking down the Medicaid expansion, you know, maybe as part of the compromise to get Roberts' vote to uphold the individual mandate as a tax. And that seemed to me like it just potentially, I was not inside the court and I don't know this firsthand at all, but based on the reporting on it, it seemed as though that was potentially

• 1:23:36Kate Shaw?

  a trade that was made. And that feels like the court not actually fully understanding enough about the dynamics that it was setting in motion. When it did that, the Medicaid expansion was not a like minor or secondary aspect of the law, but obviously an enormously important one. So, you know, maybe it's just another example of the court both not fully understanding conditions on the ground, arrogating to itself tremendous power, and here just kind of, you know, picking and choosing what parts to sustain and what parts to strike down and deciding that at the end of the day, you know, this is they delivered a defensible opinion. But it's not an easy decision to defend actually kind of any of the different aspects of it on the merits.

• 1:24:17Kate Shaw?

  And in terms of the larger trajectory of the court, it's clear that this was an important kind of breaking point between Roberts and the other conservatives on the court, right? It's very clear from the most recent Obamacare case that ended up being dismissed on standing grounds, that the more conservative members of the court continue to harbor tremendous ill will against John Roberts for voting first in NFIB versus Sebelius, and then in 2015 in King versus Burwell, which he wrote, which was a statutory case that also rejected a different, but you know, potentially also fatal attack on Obamacare. And in both of those cases, the conservatives seemed to believe, well, Roberts wasn't with the program. I guess the program was just, you know, undermining or destroying Obamacare through

• 1:25:01Kate Shaw?

  whatever legal theory they could kind of muster. And I'm not sure that those relationships have ever recovered.

• 1:25:08Ezra Klein?

  I do want to note, I apologize, I overstated the chances Orin Care gave that case at the beginning, that the actual quote is that there is a less than 1% chance Oh, wow. that the court will invalidate the individual mandate. But I do want to say it wasn't just him. I did a lot of reporting here. Sanford Levinson at University of Texas, he said, "The argument about constitutionality is if not frivolous, close to it." Erwin Chemerinsky, then the dean at UCI Law School, said, "There is no case law post 1937 that would support an individual's right not to buy health care if the government wants to mandate it." And so I bring that up because I do think both in the way that Roberts ended up deciding the case, right, moving, agreeing with the Commerce Clause argument, moving to the taxing

• 1:25:50Ezra Klein?

  power, we seem to think making that trade on Medicaid, it nevertheless, even as I think it seemed to many liberals, like a kind of victory, the court doing its job of, you know, not rocking the boat too much despite maybe the political winds, it actually moved the underlying law quite a bit to the right, moved the boundaries of what people thought was possible if you brought cases against these laws quite a bit to the right. And really defied what was understood about the court, seems to have alienated the right from Roberts. I mean, there's been a lot of reporting on how disappointed people are in him now, even though I think by any measure, he's still a quite conservative judge.

• 1:26:31Ezra Klein?

  And I guess I'd end this part by asking you, my take from all of this, particularly now with the 6-3 court, is that if Democrats had the power in the coming years, if they are, you know, if they do get more votes in the Senate and do win power to govern, they're really going to have a very tough time with this court. I mean, I think we've seen a move from believing the court will fundamentally have deference to what the elected branches do, to believing that they either fundamentally won't, or at the very least, it is truly unpredictable.

• 1:27:07Kate Shaw?

  I think that's right. I mean, one thing I would say, you know, there are unexpected vacancies occasionally, so the personnel composition of the court could change and obviously that. But even just to say that is to acknowledge just what outsized power these nine unelected jurists have over our political and collective lives. But were there to be a vacancy, you know, that could dramatically change the likelihood of progressive legislation or executive action, you know, depending on what the elected branches look like in the coming years to actually be passed and be sustained. But, you know, in the absence of any significant personnel change on the right side of the court, yes, I think that this court is going to be an enormous obstacle if there isn't, you know,

• 1:27:50Kate Shaw?

  either personnel change, if there's no structural change, that is, the addition of new justices to the court, or term limits, or other kinds of structural reforms to the Supreme Court. And I guess maybe the last thing I'll say is, you know, I guess historically, the court has not wanted to get too far out of step with political preferences, right? There have been moments in the past when it has, and the political sort of process, and be the most sort of famous example of this is when the New Deal Court, after striking down a number of both congressional enactments and presidential action, ended up basically walking back and allowing, sustaining a lot of this New Deal era activity after FDR failed to succeed in actually packing the court but proposed the plan. But there have been

• 1:28:35Kate Shaw?

  other moments in history, and the sort of the kind of classic political science story is that the court typically doesn't get too, too far out of step with the preferences of the American public. And I make that historical point actually to say that I don't know that any of that is necessarily going to hold true today. So I have no confidence that this court is going to be concerned in the way that even, you know, five years ago, I really thought the court is going to be concerned about

• 1:29:00Kate Shaw?

  Potential backlash if it gets too far out of step with the American public. And this last term has disabused me of that. So I actually don't think we can count on significant public pushback necessarily changing the course of this Supreme Court. So responses are going to have to take other forms and resorting to states and state constitutions is going to be critical. But of course, that's not going to be a viable solution if we're talking about things like climate, which by its very nature is not susceptible to meaningful regulation or not a complete solution, of course, at the state or local level.

• 1:29:35Ezra Klein?

  And of course, on the margin, for everything we talked about in the first half year, the court has been putting its thumb on the scales of the political system itself, such that it's very hard for people's voices to be heard. They are making it harder and harder for the system to generate a response, even if people are very upset about it. I'll end here by going back to something you said at the beginning, which is you said that this is the first session we've seen from this particular 6-3 court. You think they might just be getting started. If that's true, what do you think we might be here in five years saying they've done? What do you think is next up potentially on the block?

• 1:30:18Kate Shaw?

  Well, next term, we know that they are going to consider the constitutionality of affirmative action, and I think they are very likely to overturn their cases, allowing for some consideration of race and admissions in colleges and universities. So I think that's exceedingly likely to happen. They've got a big case on not the Clean Air Act, which is the case they're going to decide in West Virginia versus EPA, but the Clean Water Act. They could also really disable the EPA's authority in that case. There's a big, important case about the Indian Child Welfare Act, or ICWA, that is facing a number of different constitutional challenges, and I think one or more could be successful. I mean, long term, the sort of capacity of the administrative state and thus of government,

• 1:31:00Kate Shaw?

  I think, is in real question. I worry a lot about the cases, really about how important it is that the president control subordinate officials within the executive branch. I worry about the civil service, which by its very nature, you know, has government workers insulated from political reprisal. If the president needs to control the whole executive branch, I worry that the civil service is susceptible to constitutional challenge. So, I mean, I think these are really pretty existential threats that our sort of system of governance is facing from this Supreme Court if we don't see significant change that right now in the next five years I don't see on the horizon.

• 1:31:35Ezra Klein?

  Kate, I want to thank you for really an extraordinary tour through the scope of what has happened on the court in recent decades. I came in thinking I knew a lot about this and I'm not saying I'm going to leave feeling better, but certainly feeling like I have a fuller sense of it. Always our final question, what are three books you'd recommend to the audience?

• 1:31:56Kate Shaw?

  Okay. So I know we weren't mostly talking about Dobbs, but these are all kind of Dobbs-related books, so I hope that's okay. The first of these is Diana Green Foster's Turnaway Study. And I know that Annie Lowry, to whom you are married, did a great Atlantic piece on the book recently, and we actually had Diana on my podcast, Strict Scrutiny, last month. But the book is an amazing, amazing look at the on-the-ground tangible effects of being denied an abortion for women who want one and of getting an abortion. And, you know, whatever people's moral intuitions about abortion are, the data in this study about what happens to women who don't get abortions that they want, what happens to them and to their existing children, because the numbers show that most people who seek

• 1:32:39Kate Shaw?

  out and obtain abortions are already parents trying to care for the kids they have. It's extremely damaging both to women and to their children to be denied wanted abortions, and the book is fantastic. Dorothy Roberts is a law professor at Penn and has this great book, Torn Apart, that is a searing indictment of the child welfare system. That's my second recommendation. And the third is actually two books. I hope it's okay that I squeezed two in, in the third category, but they're both by Jeff Sutton, who's a very conservative judge on the Sixth Circuit. But there are two books on state constitutions. One is called Who Decides? One is called Fifty-One Imperfect Solutions. And I think that in this next era that, you know, you were talking about in your last

• 1:33:21Kate Shaw?

  question, Ezra, people are really going to need to turn to state courts and state constitutions to try to find and succeed in, you know, making rights claims. And that's not a new suggestion, right, to turn to state constitutions when it feels like the federal constitution is not a hospitable source of rights and protections, but it's a really important one right now. And those books are actually really useful starting points for how to think about and how to use state constitutions and state law when a federal constitution is failing us. So those are my recommendations.

• 1:33:52Ezra Klein?

  Kate Shaw, thank you very much.

• 1:33:53Kate Shaw?

  Thank you so much, Ezra.

• 1:34:06Ezra Klein?

  The Ezra Klein Show is produced by Annie Galvin and Rajat Karma. Fact checking by Michelle Harris, Roland Hugh, Mary Marge Locker, and Kate Sinclair. Mixing and original music by Isaac Jones. Audience strategy by Shannon Busta. Our executive producer is Irene Noguchi. And special thanks to Kristin Lin, Christina Samulewski, David Kaplan, Ian Millhiser, Aziz Rana, and Kate Redburn.