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Melissa Harris-Perry: This is The Takeaway, I'm Melissa Harris-Perry. It's good to have you with us. In the span of just a few weeks, the Supreme Court's conservative majority ended the constitutional right to abortion, limited the power of the government to enforce agency regulations like climate protections, reverse state gun laws, and weakened the separation of church and state. Those decisions followed political wrangling that led to the confirmation of justices Gorsuch and Barrett. When President Obama nominated now attorney general Merrick Garland to the court in March of 2016, Republicans blocked the confirmation saying the president shouldn't be able to appoint a justice so close to an election.
Speaker 2: One of my proudest moments is when I looked at Barack Obama in the eye and I said, "Mr. President, you will not fill this Supreme Court vacancy."
[cheering]
Melissa Harris-Perry: In 2020, after the passing of Justice Ruth Bader Ginsburg, Republicans confirmed Trump nominee Amy Coney Barrett, just eight days before the 2020 elections. Now, these developments have reinvigorated some Democrats like Senator Ed Markey of Massachusetts to propose action.
Senator Ed Markey: We have a bill, the Judiciary Act to expand the Supreme Court, reclaim the stolen seats and begin to restore the legitimacy [cheering] of the Supreme Court in the eyes of the American people.
Melissa Harris-Perry: Senator Markey's legislation would bring the number of justices from 9 to 13. Now, if that were to happen under Democrats watch, they might be able to rebalance the court's alignment. That would not be entirely unprecedented. Since the court's founding, it's shifted in size between a total of five seats at its smallest and 10 and its largest. Other court watchers are calling for more permanent change.
Crowd: [chanting] Abort the court, abort the court, abort the court.
Melissa Harris-Perry: In other words, abolish the Supreme Court. Now let's put aside for a moment the question of whether expanding the court or abolishing it are practical realities. Instead, what I want us to do for a second here is just go behind these calls to the fundamental belief underlying both, a belief that the Supreme Court is uniquely powerful in affecting social and cultural change.
What if that's not entirely true? That's part of the argument of my guest today, Dr. Gerald Rosenberg, associate professor emeritus of political science and lecturer in law at the University of Chicago Law School. Gerry's book, The Hollow Hope: Can Courts Bring About Social Change? is foundational, examining landmark Supreme Court cases that are often credited with creating sweeping social and political changes and questioning whether they truly did.
Dr. Gerald Rosenberg: The court is a hollow hope in the sense that it is unable, absent some very unusual conditions, to further the interests of the relatively disadvantaged poor people, people of color, political dissidents, environmentalists, and the like. In that sense, when progressives turn to the courts to further their agenda, they will be unlikely to do so even if they win.
Melissa Harris-Perry: I feel like I can hear the folks saying, wait, wait, wait, what about Brown v. Board of Education? What about the 50 years under Roe v. Wade? Surely, it was the court that stepped in, that protected, that expanded the capacity for a more fair and equitable America.
Dr. Gerald Rosenberg: I always believed that I did go to law school, but as I began to examine the effects of Brown v. Board, which of course said that racial segregation in public elementary and secondary schools denied Black school children the equal protection of the laws as guaranteed by the 14th Amendment. I asked, what happened to Black school children in the Southern states that required segregation by law until Brown? 10 years after Brown, barely 1 in 100 Black school children in those 11 states of the old Confederacy was in a school with any whites. For 99 out of every 100 Black schoolchildren, Brown made no difference.
Melissa Harris-Perry: In a more recent piece, you make a similar, I think, what feels like a jaw-dropping argument. When you in a similar way walk through the notion of rights, civil rights, women's rights, queer rights, and you say, "This rights language is also not going to get us anywhere."
Dr. Gerald Rosenberg: I know that. That tends to wake people up, doesn't it, Melissa? [laughs] Here's the problem. If you don't pay your taxes, you're probably going to get arrested because the executive will step in. If you violate a Supreme Court decision, what are the justices going to do? Their only power is to persuade the executive to enforce their decision.
Melissa, you and I have the right to burn an American flag. Using Chicago as an example, I say, well, you and I, let's go down to Bridgeport Working Class Community and burn a flag. We'll be fine. We'll be protected. You know what will be protected. Here's the point; courts have no power. If people, if officials are unwilling to implement their decisions, those decisions will only be on paper. They will make no difference in people's lives.
Melissa Harris-Perry: I think it would be hard for us to hear post-Dobbs, the court has no power. It sure feels powerful in Texas, in Florida, in Mississippi right now. Where is that power located?
Dr. Gerald Rosenberg: What I mean, as I said, is that depends on the interests and preferences of the citizenry and government. When the court in Dobbs overturned Roe v. Wade, in roughly half the states that's not going to change anything because elected officials and the people they represent support a woman's ability to access abortion services. In other states where it turns out in almost all of them there's majority support for abortion access, Republicans have so gerrymandered their legislatures that they do not represent the people. There, they will act and they are acting, as you pointed out, to restrict abortion access.
One of the perhaps unfortunate, perhaps ironic aspects of the court is it appears better at supporting privilege and status and wealth than at helping the relatively disadvantaged. That's because elected officials have a preference for supporting wealth.
Melissa Harris-Perry: Is this in part an argument about change-making strategy and about the ways that advocates and activists should direct their energies, or is this about providing an opportunity to take a deep breath, even in the context of a court that feels so lopsided ideologically?
Dr. Gerald Rosenberg: It's an argument that says turning to courts, believing in rights as a strategy to actually improve the lives of the relatively disadvantaged is a hollow hope, it won't work even if these progressive forces win. Melissa, here's an example. Let's say after Brown you and I decided to open a racially integrated private school in the Mississippi Delta.
Melissa Harris-Perry: Okay.
Dr. Gerald Rosenberg: Yes, because we believe in rights, Melissa, and the court said there's a right here. However, after Roe v. Wade, if you and I decided to open an abortion clinic in the Mississippi Delta, we would've done fine. That's because there was a demand for the service. Second, there was public support. When there is what I call a market mechanism for change, the market can meet it. The problem with the market mechanism is it's uneven. In Chicago, there's great access, in New York, in California, but in large parts of the country, access became very limited very quickly because state legislatures tried to limit it.
For example, Missouri, since Dobbs has basically banned abortion, but the latest data we have from the Guttmacher Institute which has the most accurate tracking numbers on abortions shows there were very few abortions performed in Missouri pre-Dobbs because Missouri had so restricted it. In Missouri, Dobbs is not going to make that much difference in the aggregate.
Melissa Harris-Perry: Again, if you spend even five minutes in social media, [chuckles] you will hear either pack the court or abolish the court. Can you speak to both of those and to whether or not messing with the court is even relevant?
Dr. Gerald Rosenberg: If I am right that from the perspective of the relatively disadvantaged the court is a hollow hope, then it does not matter that much who is on the court. The caveat is to say courts can do a lot of damage to the interests of the relatively disadvantaged, to voting rights, to equal treatment, so to that extent it does matter. What do we do about it? Well, the traditional answer is justices do not create themselves, they're appointed by the political process. In the long run, historically, the court has come with some lag to represent political preferences.
There have been some lags, the most famous lag historically has been around the New Deal. When a court staffed by justices of Republican presidents tried to stop the New Deal in the end, it failed. The second example is the court we have now, which, again, is peopled by, appointees of Republican presidents in an era where public opinion differs dramatically. The question is what you do about it. Packing the court is a possibility. Problem with that is there's insufficient political support for that. If that's not going to happen, abolishing the court is certainly not going to happen.
Melissa Harris-Perry: As a final question let me ask this. For those who feel a bit hopeless at this moment, do you have a thing that you hold onto? Whether it's a historic moment when things seemed challenging, but the nation found a way to make a change or maybe comparatively some other place where meaningful change came out of difficult moments.
Dr. Gerald Rosenberg: Let's take marriage equality. One of the things I've discovered is a question that was asked over many decades. Do you know a friend, family member, or coworker who is gay or lesbian? It turns out over about a 30-year period, the number of Americans who said yes quadrupled. Two explanations. One, the number of gays and lesbians quadrupled. Unlikely. Possibility number two, gays and lesbians became more comfortable coming out and it turned out knowing a gay person changed one's views of marriage equality. What that suggests to me is that cultural change can lead to political change.
Merely thinking of litigation or political organizing may not give sufficient attention to the ways in which our political preferences are found. If you think back to the woman's movement and the pro-choice movement, pre-roll there was a lot of guerilla theater. A lot of television shows began to treat gays and lesbians in respectful and dignified ways. There are lots of cultural ways that can start conversations that can open up political possibilities. That's my hope.
Melissa Harris-Perry: Dr. Gerald Rosenberg, associate professor emeritus of political science and lecturer in law at the University of Chicago and author of The Hollow Hope: Can Courts Bring About Social Change? Thank you so much, Gerry.
Dr. Gerald Rosenberg: Thank you, Melissa.
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