Justice Sotomayor: Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?
Kai Wright: Justice Sonia Sotomayor has posed what may be the most weighty question before the Supreme Court this term. She vocalized what so many people were thinking this week as the court heard oral arguments and the challenge to Mississippi's law, banning abortions after 15 weeks. Coming up on The United States of Anxiety, we'll try to answer the justice's question as we look back at the year law and forward at the widely expected overturning of Roe v. Wade.
Regina de Heer: Can you name the Supreme Court justices.
Alma: Brett Kavanaugh.
Alma: The lady that replaced RBG, the obsessive Christian. What's her name?
Sneha: Oh, this is embarrassing.
Regina: Do you trust that the Supreme Court is fair?
Sneha: I would say no. It's definitely been influenced by lobbyists and politicians and it's not a truly fair democracy, especially with the abortion laws, it's definitely not representative of the majority of women who make up more than 50% of this country.
Alma: The United States government, at the way it is now, can't do anything for Black people, can't do anything for Black women.
Regina: Has your opinion of the Supreme Court changed at all in the past year?
Alma: I was always rather annoyed with the Supreme Court, but I think after RBG died, it went from annoyance to I've given up on y'all. At some point, you just got to realize all white men ain't going to change the way that we changed. So long as we don't change that it's all white men, we're not going to change the way we're living under them.
Kai: Welcome to the show. I'm Kai Wright. The Supreme Court is an odd thing. It sits at a distance from us and from democracy by design. We don't vote for the justices and maybe as a consequence, they feel so distant. Most of their work seems technical, abstract ideas about the Constitution, and yet of course their rulings touch our lives so intimately. This is particularly true on matters of public health and civil rights, both of which are for the current court in dramatic ways.
As we reach the end of the year and start taking stock of what we've seen in this first year of the Biden era, we also want to take stock of the current Supreme Court, what they've done so far and how those rulings sit in historical context. I'm joined by two dynamic court watchers, Imani Gandy and Jessica Mason Pieko, sorry, Jessica Mason Pieklo. Ooh, I'm going to get it right Jessica, are co-hosts of the podcast, Boom! Lawyered from Rewire News Group. Jessica is a former litigator and law instructor before becoming the executive editor of Rewire and Imani is Rewire's senior editor for law and policy and says she's a recovering lawyer. Imani and Jessica, thank you so much for joining us and for your patience with my trouble with a microphone and names.
Jessica Mason Pieklo: Oh, thanks for having us, and no worries.
Kai: Obviously, we should start with this past week's oral arguments in Jackson v. Dobbs. This is the case challenging Mississippi's ban on abortions after 15 weeks. Imani, I was following your Twitter discussion about it after the arguments ended and you have been emphatic that having heard the oral arguments, that this case will unquestionably conclude in the overturning of Roe v. Wade. Why are you so clear on that?
Imani Gandy: Because it's not possible to uphold Mississippi's 15-week ban and uphold Roe at the same time. It's literally impossible and if there's one thing that anybody listening to this takes away from that, it is this. If the Supreme Court upholds this ban, then it is necessarily overturning Roe v. Wade. Jess will probably talk about this soon, but there's been a lot of gaslighting that's going on. What's difficult about doing this work and having done this work for a decade is that I've seen this end game coming for a really, really long time, so I've been preparing myself for it.
I truly believe that there are a lot of people in this country who didn't see this coming or who thought that it would somehow not be as bad as it is, and it's just as bad as you think it is. It really is. Abortion has been basically illegal, nullified in Texas already for 94, 95 days, so it's really, really serious and the Supreme Court is going to overturn Roe. Roe has been effectively unavailable as a legal principle, abortion has been unavailable as a constitutional right, as a fundamental right for so many people for so long and it's going to get worse.
Kai: You said you've seen this endgame coming for 10 years. What do you mean by that? What is it you've been seeing?
Imani: Well, when the Tea Party explosion happened in 2011, that was the point at which Christian evangelical conservatives really began to ramp up power at that point. It was just a deluge of abortion laws and it just wasn't adequately or accurately covered in the media. Honestly, that's why I got into this job because I was looking at the landscape and I was seeing people like Jess and people like Robin Marty. There were some people who were really in the core of this fight covering it from a journalist's angle, but there just wasn't enough discussion about how dire these bans were and how difficult these regulations of abortion providers were making it for people to access care.
I got into the game knowing and seeing the legislation year after year-- This 15-week ban was a culmination of years and years of work. We're talking organizations like Americans United for Life and ALEC, for example, that have been distributing essentially mad lib legislation through outstate legislatures across the country. If you track these laws and if you track the court, it was easy to see this coming particularly once Donald Trump installed himself in the White House and began installing judges on the bench.
Kai: Jessica, Imani said that you might be able to tell us about the gaslighting she says, that it's been going on. What's she talking about there? What is the gaslighting that's been happening since the oral arguments this week?
Jessica: Sure. I think Imani's right on with everything that she said so far. I think just to add a little bit more context to that, it's not just in the abortion rights context that we see this with the court, it is really, truly all of their big decisions that they know will be unpopular, and there's a way that they try to walk them back. Even we can go back as far as Shelby County v. Holder, for example, which was the decision that gutted the voting rights act. In that decision, they say, "Well, look, we're functionally a post-racial society and so we don't need to have this remedy anymore." In oral arguments in Dobbs, we heard very much of the same kind of arguments from the conservative justices.
Amy Coney Barrett, for example, was very interested in the fact that all states have what's called a safe harbor law that allows somebody who has just delivered a baby to surrender that baby to the state without fear of prosecution for neglect and to have this parental rights terminated. To have that conversation and to have a suspension of parental rights, for example, be suggested as a substitute for abortion and then to just say, "No, that's the conversation we're having," that's gaslighting. You're not having that conversation about the fact that you're really here undoing 50 years of precedent.
I just want to add a little more to what Imani said, everything she said about this seeing copycat bills in states across the country is true. From 2010 on, we have seen states pass increasingly more restrictive bans. The only thing that hadn't changed was the federal courts. They had done a really great job of blocking all of these bills, even Mississippi's bill, and Mississippi petitioned to the Supreme Court when Ruth Bader Ginsburg was still alive.
A lot of us watching this case were like, "Oh, there goes Mississippi. They want this to go to the court we'll see what happens." The court thought about this case for 11 months and didn't do anything about it, and then Justice Ginsburg died and Amy Coney Barrett is nominated and then the court takes the case. When we talk about seeing signals from the conservatives who have the votes, by the way, to overturn Roe v. Wade entirely. They don't have to do any measured ruling, they don't have to chip away at the sides here. They have five, six votes to reverse this law, those are some of the clues that we're looking for.
Kai: One of the things that may be along these lines that I found confusing, I guess, in listening to the oral arguments was there's this, all this conversation about the burden that this law in Mississippi would put on a woman who wanted to seek an abortion. Honestly, the whole thing felt very disingenuous. The questions felt disingenuous and even the responses from the solicitor and from the Center for Reproductive Rights also felt weak sauce. No one seemed to actually be having a conversation about the burden of it.
Help me understand what I was hearing and maybe that's because I'm not a lawyer and so there was some subtext here I didn't understand, but I thought, "Boy, obviously the burden is going to be totally personal individual by whoever shows up." This isn't an unanswerable question, whether or not there's a burden. What is the point of that conversation?
Jessica: One of the reasons that we're having a about burdens at all is because abortion is a fundamental constitutional right. Whenever a court whether it's a district court or the Supreme Court determines whether a government action, in this case, Mississippi trying to ban abortion at 15 weeks is constitutional, it has to look at what is the impact? What is the burden on that right? What are the rights here when we're talking about abortion or the right to privacy, their liberty interests, their rights to bodily autonomy? The conversation around the burden of that, as you said, did feel very disingenuous but unfortunately, it's a constitutional necessity.
I think it felt very disingenuous, in part because the Solicitor General Scott Stewart for the state of Mississippi, was really just trying to hide the end game here. We even heard him say, "Look justices, if you uphold the 15-week ban, we promise you it ends there" and we have no reason to believe him. Why? Mississippi has a six-week ban that they're trying to enforce, for example, and also the same legal principles that uphold the right to abortion, the right to bodily autonomy in Roe v. Wade, uphold your right to marriage equality, uphold your right to birth control, and we know in states like Mississippi, Texas, Louisiana, that there's legislation that conservative lawmakers are trying to pass right now to roll back those rights as well.
Kai: You're saying the point is that the outcome of this ruling could set a precedent for rolling back all of those civil rights laws as well.
Jessica: 100% and if conservatives tell you no, don't believe them.
Imani: Part of the issue, if I may be so bold with respect to why maybe you felt the arguments felt just disingenuous or weren't robust is the manner that the case got to the Supreme Court. Jessica talked about how Mississippi passed this law in 2018. It was struck down by the district court, it was struck down by the Fifth Circuit, then it gets up to the Supreme Court and the Supreme Court sits on it for 11 months. Mississippi when it asked the Supreme Court to hear this case, it asked a very specific question. It asked the court to consider whether or not its 15-week abortion ban was constitutional under current law.
That means when it asked the court to take this case, it said, "Can you please tell us Supreme Court, whether or not our ban is constitutional under current law?" Current law, meaning Roe v. Wade and Planned Parenthood v. Casey. The answer to that question is no. It is absolutely no. What happens is and, this is really where it gets really devious and diabolical. Ruth Bader Ginsburg dies, Amy Coney Barrett ascends to the bench and then Mississippi filed its merits brief after the court says, "Sure, we'll take a look at this question as to whether or not your ban is constitutional under current law."
Mississippi changed the game, it changed the nature of its appeal. It said, "You know what? We don't want you to answer that question anymore. Actually, we just want you to answer whether or not Roe and Casey should be upheld at all," whether or not there exists a right to abortion at all. When you change the nature of an appeal in the middle of the game, you're precluding the opposing party. You're precluding Jackson Women's Health from making a full argument as to why it is Roe v. Wade should be upheld, why it is Planned Parenthood v. Casey should be upheld, why abortion is so important to women and pregnant people, social science studies, all of these issues that you would expect to arise when you're dealing with such a momentous question as "Should we overturn Roe v. Wade?"
Normally, when Supreme Court litigants are asking the court to overturn precedent, they ask the court directly. They don't say, "Hey, can you analyze this law under your current regime." Wait for a liberal justice to die, wait for a conservative justice to pump up the numbers, and then change the nature of the question knowing that the Supreme Court doesn't really care about institutional norms, civil procedure, the rule of law. It is a lawless court. It is a court that has gone rogue, and for a group of people, conservatives love to talk about how liberals are legislating from the bench. When the court does what we know that the court is going to do, it will be because it has legislated from the bench and taken a case it shouldn't have.
Kai: I want to talk a little bit more about that in a little bit but first let's go to Dan in New Jersey who I think has a basic question about the Jackson v. Dobbs case. Dan, welcome to the show.
Dan: Hi. I'm a physician and I'm a brain researcher. I do brain development research. I can understand if someone is against abortion. I am against abortion, but I'm personally against abortion, meaning I wouldn't want my wife or the woman that I impregnate to abort. That's my personal decision and this does not seem to be based on the idea that abortion is bad, this seems to be based on the idea of a 15-week viability issue. I don't know what they mean by viability because if they were to discuss the medical viability of the fetus at that point, there's no such thing. It would be a horrendous existence for that child. I think you guys in the law are leaving the planet and the rest of us are stuck here with your extraterrestrial judgments. You are not real when you discuss this stuff.
Kai: Thank you, Dan. I think Dan's getting a little bit at what I was getting at of, it feels very unreal, this conversation, but what about this question of viability is a core debate. Explain what he's talking about there quickly, and then try to answer it for him.
Jessica: Sure. This goes to Imani's point that she made right at the top of the show, which is that there's no way for the Supreme Court to uphold Mississippi's law without overturning Roe v. Wade. That's because one of the key principles that Roe and Casey stand for is that a state can't ban abortion before fetal viability and under the law that means a meaningful existence outside of the womb. Typically that has landed around 24 weeks, medically indicated. Although the case law also says the viability is an individual standard as well to be determined between the person having the pregnancy and their physician, which is why Roe and Casey say states can't ban abortion before viability. We are in the land of circular logic here with Dobbs.
Kai: I'm talking with Jessica Mason Pieklo and Imani Gandy, co-hosts of the podcast Boom! Lawyered from Rewire News Group. After the break, we're going to look back at the year in the Supreme Court with cases beyond just Dobbs and Jackson and we'll take more of your calls. Jessica and Imani follow the court through civil rights and public health cases, so if you've got a question about either, call us up. We'll take more of your calls after the break.
Kousha Navidar: Hi, everyone. This is Kousha, I'm a producer. Here's a listener voicemail we got in response to our episode about the history of secession and disunity in the United States. If you have a response to this episode or anything else, record yourself and email us. The addresses email@example.com. Again, that's firstname.lastname@example.org. Thanks. Here's the message.
Juan: Hello. My name is Juan. I wanted to highlight another sentiment of separation from the United States that occurs in South Florida. I think that Miami itself has even created a homogenous culture between all the Hispanic cultures that exist there. It's not just purely Cuban, Colombian, Venezuelan, Argentine, Brazilian, but a mixing bowl of it that creates Miami culture. A standing point for people to go off and say, "You know what? Miami is a very separate place. It's a very unique thing in the United States."
It might not politically be a secession movement but I'm wondering if has occurred in Los Angeles or any other multi-ethnic city, where a homogenous group starts to form its own culture and then starts to create this idea of separation. I wonder at what point, if there is any, there's a secession occurring. Thank you.
Justice Burger: We will hear arguments in No. 18, Roe against Wade.
Justice Rehnquist: We'll hear argument No. 91-744, Planned Parenthood of Southeastern Pennsylvania v. Robert P. Casey.
Justice Roberts: We will hear argument this morning in Case 19-1392, Dobbs v. Jackson Women's Health Organization.
Attorney 1: Mr. Chief Justice, and may it please the court.
Attorney 2: Mr. Chief Justice, and may it please the court.
Ms. Kolbert: Whether our Constitution endows government with the power to force a woman to continue or to end a pregnancy against her will is the central question in this case.
Mr. Stewart: Roe v. Wade and Planned Parenthood v. Casey, haunt our country.
Justice Sotomayor: Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?
Kai: Welcome back. This is The United States of Anxiety. I'm Kai Wright, and we are considering the question you've just heard Justice Sonia Sotomayor pose during this past week's oral argument over Mississippi's ban on legal access to abortion after 15 weeks. I'm joined by Jessica Mason Pieklo and Imani Gandy who are co-hosts of the Boom! Lawyered podcast from Rewire News Group. Let's go to Mabel in Trenton, New Jersey. Mabel, welcome to the show.
Mabel: Thank you for accepting my call. I wanted to tell you, the last time that I went to a gynecologist, she asked on the application whether or not I'd ever had an abortion. I didn't feel comfortable answering that question because of some of the talk that I'd heard before, so I told her, "I don't want to answer that question." She just nodded and I guess, checked it off, I don't know.
What I wanted to say about the court-- No, I don't trust them, because I believe that these conservative justices who have been supported all of their lives by people whose religion believe that women should be subservient to men and should not have autonomy through their own body, want to please these people for the sake of their own careers. It is very scary because I wonder, a party who seems to be against wealth fare or giving children lunches at school, why are they so concerned about the unborn children that women who don't have the means to care for these children should have to bear and bring into this world that they can't afford, and they have to make an emotional decision as to whether they want to bring a child that they know they can't afford?
Kai: Let me ask you, Mabel. Has your opinion changed? You said you don't trust them, you're being very clear about that. Is that different for you than it's been in the past?
Mabel: No, of course, it has not changed. I feel that women are going to be treated as second class citizens and we are going to lose our autonomy and the right to choose how to live our lives or whether or not we are ready to bring another person into a world that does not care about people, about its citizens.
Kai: Thank you for calling Mabel. Let's go to Joe in Sunnyside, Staten Island. Joe, welcome to the show.
Joe: Hi Kai, thank you for having me. I feel as though I'm going to be parroting what the guests from Boom! Lawyered have said, but it's more than just gaslighting. It's also 1984 doublespeak when you have conservatives saying that they don't want liberal justices legislating from the bench when they have slotted in a whole bunch of people who are going to legislate based on ideology, and not on rule of law.
As far as whether I have always felt this way, no, I haven't. We've watched over the last couple of decades as they've moved people in who are definitely based on ideology not whether it's conservative or religious or anything else. They're away from the rule of law. If you look at Roe in the first place, it wasn't about religion, it was about privacy. It was about a woman's and US citizen's right to privacy. Now, we're going down this ideological path that is taking not just this decision, but all other decisions and in a weird, as I said, doublespeak. I think it's--
Kai: I'm going to leave it there, Joe.
Joe: Yes, go ahead.
Kai: Thank you. Thank you for that call. The doublespeak question, Jessica, you have studied the movement that led to which a shift in who was being appointed to the Supreme Court. How much has this doublespeak thing been part of that movement? You were nodding along as Joe was talking. Is that something that you followed?
Jessica: Yes. We would not be in the position where the Supreme Court was considering reversing nearly 50 years of civil rights precedent in Roe v. Wade if it was not for a heavy assist from Mitch McConnell and Senate Republicans, for example. This has been a 20-year campaign in the making to reshape the federal judiciary, not just to undo Roe v. Wade, but basically all of the new deal. What civil rights do you care about? Conservatives are coming for them and they're doing so via Federalist Society judges.
The Federalist Society, you'll hear folks talk about. They're an organization that exists on law student campuses across the country, and they promote conservative legal principles. Recently, they've gone on steroids and have now taken the most extreme positions of the conservative legal movement and taken them mainstream. Things like a complete and unfettered Second Amendment right which the Supreme Court took up this term as well. We're talking about abortion but there's a huge gun rights case out of New York, for example, conservatives on that. We got to the place where the Supreme Court decided to take a direct challenge to Roe v. Wade when there's no conflict in federal law, and they did so because those judges were put on the bench for this purpose. This is absolutely a campaign.
Kai: Let's hear from Claire in Hartsdale New York. Claire, welcome to the show.
Claire: Thank you very much. I just wanted to say one thing is that my late husband who was very into reproductive rights, he first realized when he was a resident in OB-GYN in Boston, that women were coming in and dying from having had botched abortions. I fear that it's going to go back that same direction if this is not upheld. He used to testify before Congress as well of why it was important and go to the women's march. Maybe we need more women's marches again.
Secondly, I don't understand why these people care so much about unborn children when they don't care about children being shot at schools, they don't care about gun laws and they don't care about people going to war and killing other people. It's very, very crazy. Thirdly, women should have the right over their own bodies. That's the main thing. They should really have the choice over their own bodies. What they do has nothing to do with men deciding that.
Kai: Thank you for calling Claire. There two things in there I want to follow up on with you guys. Imani, this question of whether or not they care about guns as well, as we've talked about, there is a gun case in this term as well? Have you been following that gun case and if so, what can you tell us about where it's going?
Imani: The gun case out of New York is actually rather frightening. Given the rhetoric that the justices were dabbling in, it seems that they are about to require states to allow any "ordinary citizen" to get a gun simply by filling out a form. They are removing any sense of discretion, any subjective criteria regarding who gets to own guns, and where you get to own guns. Following this case a little bit, I see a lot of people making the same comment, which is "Okay. If you're going to say that any New Yorker can have a gun pretty much wherever they want, then why doesn't the Supreme Court open up its stores and allow people to parade guns through its stores?"
I have similar questions when it comes to abortion rights and buffer zones. Why is it that abortion clinics can't get a few feet around the building in order to allow patients to get through the doors without being harassed by "sidewalk counselors" who are generally actually violent, domestic terrorists? Why is it okay for the Supreme Court to get a buffer zone and to protect itself and the justices who sit in that building, but not okay for abortion clinics, or not okay for regular New Yorkers who don't want to walk into a church, or a school, or a college campus and have to worry about there being guns? New York is such an overpopulated place. The idea that you are going to New York City that is, Manhattan, I'm talking about, the idea that you're going to allow anyone to have a gun in public, to have a concealed weapon is absolutely just shocking to me. It really is.
Kai: On the other thing I want to follow up from Claire, as you pointed out earlier, Imani, there are many states that already have functional bans on abortion. Have we already seen what the consequences of that would be? Is there other things that we already know are going to be true if in fact, as you predict Roe is going to be overturned next summer? Do we already know what that looks like?
Imani: Sure. We can take a look at what's going on in Texas right now to figure out what it's going to look like nationally once the Supreme Court overturns Roe v. Wade. Pregnant people in Texas are now going to Colorado, they're going to these regional points of access to get care, which is then making those clinics unable to serve the local population that they generally serve. People want to talk about whether or not upholding the Mississippi ban is going to be some sort of compromise or whether or not people who support abortion rights are really going too far in our call for complete bodily autonomy but the bottom line is that overturning Roe v. Wade is very unpopular.
If you ask specific questions of people related to abortion, not just generally, "Do you believe life begins a conception?" or "Do you "believe in abortion"?" as if abortion is some sort of fantasy that one can believe in or not believe in. If you ask targeted questions like, "Do you know that most people don't know they're pregnant at six weeks? Do you know that this Texas ban means that most pregnant people in Texas cannot access abortion?" If you begin to look at the ways in which these struggles have been ongoing for literally a decade, you're going to see a modicum of what it's going to look like once abortion has been either completely criminalized or just thrown back to the states, and we have this patchwork system where someone has to travel three, four states over just to get basic medical care.
Kai: Let's go to Bill in Crown Heights. Bill, welcome to the show.
Bill: Hi. Thank you very much for taking my call. I am an attorney's son. I'm 54 now but I grew up talking a lot about the courts and how you never knew how an appointed justice was going to vote later on in their career. I also grew up believing that what the law says and what is right were not always the same. The courts' job were to uphold the law. From my personal point of view, something may be illegal and I may believe it should be legal but it's still illegal until changed legislatively.
Now we really are seeing legislation from the bench. We saw it with the voting rights act, we saw it when the Second Amendment was reinterpreted to be an individual right to carry a firearm. The concept of originalism of saying we're going to analyze the text to the exact way the founding fathers had to it when we're in a world with computers and skyscrapers and airplanes, that in itself, it doesn't make sense. I don't know how to see this as anything other than political.
Kai: Thanks for your call Bill. Jessica, on this question of a political court. It is not like it's new that a Supreme Court has an ideological banner. It seems to me that's not new, that the Supreme Court has always had politics in it. What is different then about this court? To your mind, how is this distinct from previous political courts?
Jessica: That's such an excellent point because the court has, you're absolutely right, always been political. I think one of the things that really changed the game here though was when Senate Republicans blocked the Merrick Garland nomination, and really just amplified this fight because to the caller's point and to what you've said, we've always talked about justices' political views in the nomination process. We've long before even the Garland nomination talked about how even the Senate confirmation process felt thin in really getting to some nuts and bolts.
In large parts, that's because up until the Garland nomination, there was an understanding that the party in power got to have their judicial appointments. You may not like it, but that's why you have elections. That was just part of it. Mitch McConnell and Senate Republicans really broke the last of the norms in the Garland nomination, and they were inching. They were towing up to that line. They had started messing around with other procedural things to block Obama nominees early on, but that really changed the game.
We know it's changed the game because we hear Mitch McConnell now already talking about what would happen if, for example, Justice Stephen Breyer were to retire before the 2024 presidential election. As far as Mitch McConnell is concerned, he's holding that seat open. This is not about the justices necessarily being political actors entirely themselves, this is also about the Republicans in particular treating the Supreme Court and the federal judiciary as a political football and trophy where they get all of the spoils of victory.
Kai: The distinction here is partisanship as opposed to conservative ideology or liberal ideology?
Jessica: Truly. If you look at the way, for example, Justice Samuel Alito behaves on the bench, that's not political, that's partisan.
Kai: Is there a ideological framework that you could then provide for this current court in historical context? Are you saying, "No, you can't. You just have to throw that out. This is just about partisanship"?
Jessica: I do think it's just about partisanship. I think Chief Justice, John Roberts really wants it to be not about partisanship, but that ship has sailed and we need to talk about the fact that that ship is sailed because there is no way to fix the court unless we do. We cannot talk about the fact that any progressive policy measure that Democrats and the Biden administration hope to pass is dead on arrival with the Supreme Court. It's not just them, it's the lower courts now too. The Trump administration successfully appointed one in four federal courts of appeals judges, that changes the game. That doesn't just block rulings, that changed the law. Those opinions shape the way that the other courts below think and analyze issues that come before them. This is really a slow-moving radical shift to the right.
Kai: Let me ask the question rather, where do you guys come down on this idea of expanding the court?
Imani: I think we need to expand the court. As Jess said, any progressive measure that reaches the Supreme Court is absolutely dead on arrival. I think what's a shame about that is that we are able to predict that now. That's what makes this court so partisan. It used to be, we don't have any David Souter, for example, who's going to write some side memo and rescue the right to abortion. The conservatives learned their lesson from David Souter and they were never again going to appoint a justice to the Supreme Court without knowing in advance how they're going to rule, which is why you get these shows, these circuses, at these confirmation hearings where these nominees have to sit in a Senate confirmation hearing and pretend that they believe in Roe v. Wade as precedent.
That's what Brett Kavanaugh did. He was downright offended when asked whether or not he believed Roe v. Wade was still a good precedent. Then he's asking questions, during oral arguments last Wednesday and the Dobbs case that makes it obvious that he doesn't view abortion as a fundamental right. That makes it clear that he's almost annoyed that he has to even hear the question.
I think you could say the same thing about John Roberts. If you think back to his confirmation hearing, he's the guy who was talking about, "He's just calling balls and strikes." There are no calling balls and strikes when you're sitting in the Dobbs oral arguments and asking questions about whether or not the viability line is even the holding of Roe v. Wade. This is not good faith that we're dealing with here.
Kai: Let me ask you this though Imani, just that we got about a minute and a half left here. Given everything that you've just said, how do you think about the fact that the courts, the Supreme Court isn't and never was, a place to pursue the social change that you want to see? That it never was going to be a place that is going to be a place for racial justice and that we should be looking elsewhere for racial justice. How do you respond to that?
Imani: I don't think it's the case that we don't see social change coming out of the Supreme Court, I think Brown v. Board of Education is a clear example of that. What I think the problem is that we are dealing with justices who favor some rights and disfavor some rights. The fact that I favor abortion as a constitutional right, as a human right, I don't think should be couched as me advocating for some social change. It's advocating for what fundamentally puts us on this earth, which is whether or not we have on what we do with our bodies, whether or not the Liberty that this country was supposedly founded on extends to women and pregnant people. I certainly don't think that we can look to the court for grand social change, but certainly, the court has a very, very strong role to play when it comes to shaping law and social change.
Kai: We'll have to leave it there. Imani Gandy and Jessica Mason Pieklo are co-hosts of the Boom! Lawyered podcast from Rewire News Group. Thanks to both of you for joining us. Thanks to everybody who called in, sorry to those we couldn't take. You can still talk to us. We'd love to hear your thoughts by email. Just record a voice memo on your phone and email it to email@example.com. Before Thanksgiving, we gave you some homework testing out your own, so-called, filter bubbles online. Coming up, we'll see what you learned. I want to know who's this Topher guy and why is he all up in my YouTube searches? That's next.
Justice Roberts: We'll hear an argument this morning in Case 28-43, New York State Rifle & Pistol Association, Inc. v. Bruen.
Mr. Clement: Mr. Chief Justice, and may it please the court.
Justice Roberts: Thank you, counsel. The case is submitted.
Kai: The Supreme Court is supposed to be a place where our heated disputes and competing interests get resolved among cooler heads considering the facts of the law. As I mentioned earlier in the show, I don't know that I ever believed that idea but it seems clear that a lot of people who did believe it have changed their minds because even at the bench of the highest court in the land, facts themselves are elusive, never mind truth and justice.
We seem to be living in alternate realities, an experience that many people blame on the internet and the way it can distort reality, particularly when it comes to politics and hard conversations about stuff like race and gender and the effort to live in this country together. We began a new beat on this show just before Thanksgiving. We're frankly just looking for a happier, healthier political engagement in our own digital lives, so we are inviting you all along. We began by giving you an assignment to just build some basic literacy about it all and we are now going to follow up on that homework. I'm joined by our senior digital producer, Kousha Navidar, who's going to bring us up to speed. Kousha, hey.
Kousha: Hey, Kai. A couple of weeks ago, we asked our listeners to do an experiment to see if we could get a peek into how the content we get online is filtered and personalized. Here's what happened. We asked listeners to go on to YouTube with their family and search for the word patriots. Now, this wasn't necessarily to prove anything about search results. We talked about that Kai. It was just to see if it could spark any interesting comparisons and conversations.
Kai: Right. Because of course, it was Thanksgiving, this might be a way to interrupt the Thanksgiving fight once to, "Hey, let's look on the internet and see what kind of bubble we're in." Okay, so what happened?
Kousha: Right. We got a lot of responses back, and a couple of interesting conversations. Thanks to everyone who participated. Overwhelmingly, people across this country actually decided to send us screenshots of their search results, which was great, too. We want to lean into that, we thought it'd be cool to actually share with those search results were but we're on the radio. You can't take screenshots on the radio, at least not yet. I don't know, Metaverse, maybe something happened there. Anyway, I went around WNYC Studios and asked people to read off the results we received in order and we stitched them together. I think there's some interesting stuff when you listen to everyone's results mixed in. Take a listen. Here are your search results to YouTubing the word patriots.
Voice 1: "Did the YouTube patriots search and got, one, "The Patriots."
Voice 2: "The Mel Gibson movie."
Voice 3: "Patriot movie."
Voice 4: "The Patriot."
Voice 5: "Steven Seagal."
Voice: "Patriots vs Falcons Week 11 Highlights."
Voice 7: "Patriots vs Falcons Week 11."
Voice 3: "Topher - The Patriot, featuring @The Marine Rapper."
Voice 1: "Two, Topher - The Patriot, featuring @The Marine Rapper."
Voice 3: "Topher - The Patriot."
Voice 1: "Topher - The Patriot."
Voice 5: "Topher - The Patriot."
Voice 8: "The Whole Bunch of SNL Clips."
Voice 9: "Patriots vs Falcons."
Voice 10: "Australia's New Ram 1500."
Voice 1: "Three--"
Voice: "The Patriot 2000."
Voice 1: "Patriot 200."
Voice: "Two Fox Contributors Resigned After Tucker Carlson Special."
Voice 12: "Hasan Minhaj Segment About American Obesity."
Voice 5: This is a Patriot and a Veteran.
Voice 1: "Four, Mike Pence Stabs Maga in the back-again. Shocking Info on Walker Shell Suspect.
Voice 7: "Trump Outsmarts TDS Libs Again. Whoa, guess what?"
Voice 3: "Trump Outsmarts TDS Libs Again. Whoa, guess what?"
Voice 2: "Trevor Noah; Trump Asks Pence if he's a patriot or a [beep]"
Voice 2: "Patriot Act with Hasan Minhaj. Why Billionaires Won't Save Us."
Voice 5: "Exciting New 2022 Ford Patriot AWD."
Voice 2: "Trump Outsmarts TDS Libs Again. Whoa, guess what?"
Voice 2: "A CNN Clip About Fox News Contributors Resigning Because of Tucker Carlson."
Voice 5: "This Is What Searching For Yoga Videos, Snowboard Reviews, Surf Instruction Videos, and Mercedes Repair Videos Get to You."
Kai: Honestly, Kousha, what struck me in this was how many of us got similar content in our YouTube searchers and how we all got some fairly far-right political stuff regardless of our own politics.
Kousha: Yes. Just as a reminder, the goal here was to try and prove that the filter bubble exists or it doesn't. It was more about looking thoughtfully at similarities and differences, and a lot of listeners who identified as either progressive or apolitical said to us they were surprised about the conservative content in their feeds. One listener, David, told us he tried this with four different family members, and they were surprised that they each got different political videos that didn't align with their own beliefs.
Kai: Okay, what about this Topher guy? I had assumed I was being fed him because he's a hip-hop artist, or because he's Black, and he has this pointed political message, but now I'm hearing that everyone's getting him. Again, he's got that very specific right-wing political message. Should I take something for that?
Kousha: Actually, Kai, what you shouldn't take from it is that it's about his politics, at least not explicitly, which makes Topher's music video case study of how something gets to the top of our feeds. Let's focus on him for a minute. Okay. I went to someone who's familiar with Topher, and how this content lives online. Will Sommer is a reporter who covers conservative media for The Daily Beast. He's got a book coming out next year on QAnon, and he follows the ideological trends on the right, particularly the internet. I asked him, "Who is Topher?"
Will Sommer: Topher is this rapper who's originally from Mississippi. He has a background in the military, he was in the Air Force, which obviously to his credit, establishes his bona fides, as this real-big American patriot on the right. I had heard of Topher as one of this universe of what you might call MAGA Rappers. In his marketing he there's a lot of red which is obviously a Trump color. Also, of course, a patriotic color. Topher has a vibrant TikTok presence. He's own cryptocurrency. His most recent one is this Brandon coin, which is a play-off of, 'Let's Go Brandon,' in this conservative model.
Kai: I don't know that model but his own cryptocurrency?
Kousha: Yes. He sounds like he's really well versed at operating within these internet trends.
Kai: He also sounds quite niche. Again, how does someone like that make a video that beats out hugely popular things that I think would be able to overcome him?
Kousha: It reveals a little bit about all the factors beyond politics that determine any given result. Here's Will telling us the story of this music video.
Will: In December 2020, Topher releases the song called Patriot.
Putting pressure on their necks until the truth breaks
Will: We have to think back to that time. This was a period where Trump supporters were really mad about the election, they were convinced it was stolen. Topher's song is I think channeling that anger and saying we're going to take the country back.
Enough with tyranny, we come to take our country back
For all citizens, white, red, brown, or Black
Will: The chorus is like this crazy Viking song, essentially, about hewing foemen, essentially cutting your enemies in half.
Steady course for the havens
Hew many foe-men (tell me).
Will: This song comes out in December, and it gained some popularity on the right. Then on January 6, Topher is in Washington performing at a concert, not around the Capitol, but at the same time, and he's performing the song as the riot is unfolding. After the riot, there was a big crackdown from social media companies on a lot of Trump content, and particularly content that was seen as violent. Topher, he claims he gets his music banned from YouTube and Spotify.
A lot of times these allegations of censorship can be a little more muddied. We're taking Topher at his word here, sometimes it's a random technical error, or there's something else going on here. I think what matters is Topher's claim about it, which is that he was this victim of censorship. We know among Trump supporters, being a victim of censorship or claiming to be, turns you into a martyr figure that increases a lot of attention on you. I think it makes people more likely to share your content or listen to your music in Topher's case because suddenly, it has this allure of the forbidden and this idea that this is the song Google or Spotify doesn't want you to hear. This is a song that's really telling the truth about what's going on.
Kousha: Kai, yes, it's a political song, but in the sense of getting to the top of a search result, it has a lot of things going for it that are actually apolitical. Will had a really good analogy using Lady Gaga.
Will: In the case of the YouTube algorithm, there's a lot we don't know, it's sort of a black box, but I think we can imagine a couple things. Number one, I think because of this tale of censorship, and we can see that Topher's story about this was picked up by a lot of right-wing blogs and this story spread like, "This was the forbidden song." I think from there people wanted to check it out. We know that, if a video is getting watched more, YouTube is going to be more likely to favor it in the search results.
I think also it helps that it's a song. We know that probably people are playing it all the way through so in the algorithm that's going to say, "Okay, people are liking this video. They aren't clicking off of it after 10 seconds so we will again favor it higher." It's just being named patriot, obviously, it's going to return for their search result patriot. If you think about other songs, for example, like Lady Gaga's Poker Face, let's say.
Lady Gaga: [lyrics]
Can't read my, can't read my
No, he can't read my poker face
(She's got me like nobody)
Will: If you search Poker Face on YouTube, the results may be Lady Gaga, maybe a How-To video about how to maintain your poker face during a poker game is going to be lower. Because it's a song and because it has like, I wouldn't say a broad appeal, but certainly, probably a broader appeal than most patriot videos, besides maybe the trailer for the movie Patriot. You can see it has 3, 4 million views on one version of it, it has nearly 2 million on another. These are big numbers in terms of YouTube so I think it's only natural that the algorithm would be returning it that highly.
Kai: What do we take from this, Kousha? People who did these experiments said they got all this political content, they didn't agree with, they didn't expect, good or bad thing?
Kousha: Well, we'll use the phrase that I liked a lot called value-neutral. In the case of Topher, agree or disagree, he's using strategies that any content creator would use. This doesn't let YouTube or Facebook or wherever off the hook, but it does ask what happens on that next video you're going to watch. It's the first step into that journey of deciding what to click on.
Kai: Right. It also brings up another question, if people like me, or some of our listeners who were apolitical or progressive got this over video, are people making far-right content better and making sure we see their video?
Kousha: [chuckles] That's a great question. Honestly, I don't know, and I'd like to find that out too so, maybe we could do our next segment on it.
Kai: We will look out for it. Thank you, Kousha.
Kousha: Yes, you bet.
Kai: Thanks to everybody who did this experiment with us. We love how game you all work. We'll be doing more of this with you. The United States of Anxiety is a production of WNYC Studios. Our theme music was written by Hannis Brown and performed by the Outer Borough Brass Band, sound designed by Jared Paul. Kevin Bristow and Milton Ruiz were at the Boards for the live show. Archival Supreme Court audio this week came from Oye.
Our team also includes Emily Botein, Regina de Heer, Karen Frillmann, and Kousha Navidar, and I, of course, I'm Kai Wright. You can keep in touch with me on Twitter @kai_wright or shoot an email at firstname.lastname@example.org. As always, I hope that you will join us for the live show next Sunday at 6:00 PM Eastern, stream it at wnyc.org or tell your smart speaker to play WNYC. Until then, thanks for listening. Take care of yourselves.
[00:50:38] [END OF AUDIO]
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