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Brian Lehrer: Brian Lehrer on WNYC. When Ginsburg and Scalia were both alive, there was a certain diversity on the Supreme Court that was probably never achieved before. Ginsburg was from Brooklyn, Scalia was from Queens, there was Justice Kagan from Manhattan, and Justice Sotomayor from the Bronx. Now, to achieve true diversity, of course, they would have had to have justice from Staten Island and complete the set although justice Scalia represented Staten Island values pretty well based on how Republican, the borough votes. It's funny to think of Ginsburg and Scalia as good friends, which they were, such good friends that they spent New Year's together every night. Can you imagine if you're a Democrat getting together with your most Trumpy friend for New Year's Eve every year? Maybe it was a different time. Of course, it lasted till the end, but that was them. More people these days than in the past have lost friends or broken up with friends over political differences, and it goes both ways. Trump supporters, can you imagine spending New Year's with your most avid Democratic friends and having that be your idea of a New Year's Eve good time? What tied them together? One thing is ironic, and outer-borough New Yorkie, in its own way, we think of both she and Scalia as powerbrokers in recent times, but Scalia's son, Eugene Scalia, who is currently Trump's labor secretary, wrote this in The Washington Post yesterday, "They had a bond and that they both grew up as outsiders to the elites who had ruled the country, she, as a Jew and a woman, he, as a Catholic, an Italian American." That, from Eugene Scalia. I actually think of Scalia and Trump as being motivated by a similar outsider's resentment, nevermind how much of a silver spoon Trump had in his mouth as a kid. He and Scalia were both conservative Queens guys who considered themselves looked down upon by the elites, but as Eugene Scalia points out there, so Ginsburg have considered herself looked down upon by the elites, and for both she and Scalia, their New York American life experience probably informed their view of who the constitution is supposed to protect. I think about that. That's why it's important to have representation on the Supreme Court and in any public institution, of course, but in the case of the Supreme Court to not only have justices for whom the law is an intellectual exercise but for whom there is a personal or community experience of what's at stake. Now, certainly, it had to come as a to Justice Ginsburg, when late in life, she got identified with a very different community than she grew up in. She became The Notorious RBG, such an icon to younger women and compared through that nickname to the rapper notorious BIG. Here's Ginsburg being asked about that in the 2016 interview on PBS with the late Gwen Ifill.

Gwen Ifill: You've become something of a folk hero to some women, did you see that coming?

Ruth Bader Ginsburg: It is utterly amazing. Of course, I didn't see it coming, and it was all the creation of a second-year law student at NYU. It came about this way. She was reading the court's decision that invalidated a very significant part of the Voting Rights Act of 1965, and she was angry. Then, she remembered that I had said, "Anger is a useless emotion. It doesn't get you any place. Do something positive." She created this Tumbler, starting with my descent, and then, it took off into wild blue yonder.

Gwen: Some people would say it's about politics, but I wonder if it's not also about your presence, your very existence on the court, and the way that you write and the way that you sometimes take on your colleagues.

Ruth: I would like to think so, but I certainly was given a tremendous boost into the public arena by The Notorious RBG. When I was asked about it, I said, "Well, it's exactly right because Notorious BIG and I had something in common." "You did? What?" "We were both born and bred in Brooklyn, New York." [laughs]

Brian: Born and bred in Brooklyn, New York. You got Scalia from Queens, Kagan from Manhattan, and Sotomayor from the Bronx. With all this going on, you might've missed a really good New York Times magazine article this weekend by Theodore Johnson from the Brennan Center for Justice called How the Black Vote Became a Political Monolith. Theodore Johnson joins me now. Thanks for doing this. Welcome to WNYC.

Theodore Johnson: Thank you, so good to be here.

Brian: I'll ask you later about the intersection of the two notoriouses, RBG and BIG. To introduce you to the listeners first, you begin the article by saying you didn't even vote in presidential elections until you were 33 years old. Can you tell us a little bit about your backstory and why that was?

Theodore: I really had no good reason, frankly. I think that's often the case for most Americans except for this one thing that I also have in common with most non-voting Americans, and it's that I didn't really think my vote mattered. My parents are children of the Jim Crow South. They both grew up as children of sharecroppers. When they came of voting age, they immediately leapt at the opportunity because they recognized the fight that went into securing that right. My father leans more conservative and for much of his life was a Republican until really just recently, over the last decade or so. My mother has always been a Democrat even when sometimes she disagreed with certain stances of the party. I largely was an independent because I was conservative on some things and liberal on other things, but generally, didn't think the government was going to deliver on much of its promises or deliver on those campaign promises of those elected officials. Instead, I went to the military after college and felt like my military service was plenty civic engagement and I didn't really feel that bad for not voting. The first two elections, I was in the military. First, at college, and then, preparing for deployment, so voting wasn't high on my list of things to do. Actually, in 2004, I cast a ballot, but because I was in the service states away, I didn't mail it off in time, so that was actually never counted. It generally-- [crosstalk]

Brian: You could have done a whole article on that for this.

Theodore: I know. It was actually in the early drafts, but we are limited by word in the print magazine, so that's the part that got cut.

Brian: Your premise in the article is that Black Americans vote almost unanimously for Democrats even though they are scattered across the ideological spectrum, I guess, like your parents as you were just describing.

Theodore: Exactly.

Brian: Can we take the second half of that first and go deeper on it? Scattered all over the ideological spectrum, in what ways that you're thinking of?

Theodore: Mostly, around political ideology, about a quarter of Black Americans identify as conservative, about 28% or so identify as liberal, and 44% identify as moderate, and then, the remainder are undecided. Just like every other race and ethnicity in the United States, Black people are scattered across that ideological spectrum. However, whereas most other races vote the party most proximate to their ideology, where white conservatives vote for Republicans more times than not, white progressive vote for Democrats more times than not, Black voters no matter where they sit on that spectrum, 90% of them support Democratic candidates in presidential and congressional election for a couple of reasons. One is because, in Black America, conservatism is conceived of differently than it is in white America. That is, we weigh different principles at different levels, so fiscal conservative may not be as important as social conservatism when looking at it across racial lines. The other is that presidential elections, especially, tend to boil down to one question, which party is going to be better for civil rights protection? If you're conservative on a number of things but progressive when it comes to racial equality, you ended up for the Democrat because of the civil rights protections part of your electoral calculus is the most important thing. This is why we begin to see-- Actually, since Black Americans have voted, we have seen them almost always vote as a bloc because these elections are usually reduced to a simple question of which party, which person is better for my civil rights and not which person is better on a range of a dozen issues that we have to weigh.

Brian: You cite the presidential election of 1872 as the debut of the Black electorate as monolith. One of the reasons I loved your article is because of some details of history in here that are known to historians but not so well-known to the general public and really relevant to understanding race relations and racial justice today and even the election of 2020. You want to take us back to 1872?

Theodore: Will do. Right after the Civil War, Black freedmen are given the opportunity to start participating in state elections in the Slaveholding South. About 90% of Black Americans live in these former slaveholding states. As they begin voting, especially after 1870 and the passage of the 15th Amendment, they have so much electoral power that they're now putting Republicans in office for abolishing slavery and removing Democrats who, at the time, were white segregationists and wanted to keep Black folks out of political office. The Black monolith immediately formed as a way of supporting the party that's antislavery and trying to tamp down the political power of those that are for racial segregation. What happened in 1876 is that, Rutherford B. Hayes, who was a Republican governor out of Ohio, is short of the popular vote and the electoral college vote but he creates a deal, the Republicans traded deal with the Democrats that said, "If you allow our guy to win, we will remove all federal protection for newly enfranchised Black Americans in the South." What that would allow those states to do is recapture the political power that they had lost once all these new Black voters came into the electorate. This was the compromise of 1877. Hayes follows through on the deal. He wins the election. He's inaugurated. Federal troops largely stopped enforcing federal law against those states that are infringing on Black folks newly acquired civil rights and Black people are removed from the electorate. In about 40 or 50 years after that, we see Black people starting to leave the South and go North where they changed politics there, but the whole of American history, certainly since a Black voter had entered the electorate in large by 1870 and Black women in 1920, has been a Black Americans voting against the party that's looking to infringe on their civil rights and that there is always a party that's willing to court the vote of, in the older days, white segregationists who wanted to keep Black people out of political power and keep their economic opportunities suppressed. The monolith is the creation of this dynamic, of one party that is looking to expand civil rights protections and one party that's looking to restrict it either explicitly a century ago or more covert or less than a more implicit way today.

Brian: Yes, and that devastating compromise of 1876 that you were just describing between the white Democrats in Congress and the white Republicans in Congress, basically, that helped solidify Jim Crow as a legal thing at the time, in fact, you point out the word compromise. While we might see the word positively, as different sides coming together, kumbaya, that compromise in American history is too often associated with compromising the rights of Black people. You want to take even further into that?

Theodore: Yes, absolutely. All of the major deals in the United States history where the word compromise has been used, Compromise of 1877, I just described, the Three-Fifths Compromise, that was written into the constitution, that undercounted Black Americans in order to give slaveholding states a little bit less power in Congress but still give them some power without giving Black people any representation, the Compromises of 1850, land deal, the Missouri Compromise, about how far the institution of slavery could expand North or not. All of these compromises were basically saying how much of Black people's humanity can we deny in order to create this political deal that will be somewhat advantageous to both sides but leave both sides pretty much unhappy with the state of things afterwards. Compromises has never resulted in good outcomes for Black people. It's been the removal of that compromise, when the Three-Fifths Compromise is removed from the constitution, when slavery was abolished from the United States, that's when Black Americans get a win. When compromises are put in place, it's often at the expense of Black people's rights.

Brian: My guest, if you're just joining us, is Theodore Johnson from the Brennan Center for Justice. Maybe you saw his New York Times magazine piece this weekend, How the Black Vote Became a Political Monolith. We have time for a few phone calls. Black listeners, do you wish you had more of a choice between American political parties? Obviously, people generally feel they don't, with 90% of Black American votes typically going toward Democrats. Do you ever get tempted to vote Republican just so the two parties have to compete for your vote and you don't get taken for granted, or anything you want to say to or ask Theodore Johnson from the Brennan Center? 646-435-7280. 646-435-7280. Let's take a call. Shawnee in St. Albans, Queens, you're on WNYC. Shawnee, thanks so much for calling in. Hi.

Shawnee: Hi, Brian, thank you for taking my call. I do want to interject the idea that it is actually politically shrewd for Blacks, I myself am a Black voter, to vote as a voting bloc, as a monolith. I think that the idea that a monolith, in this regard, could be criticized comes from this racial stereotyping of Blacks as not being critical thinkers, really. I saw that after the RNC. There were a number of white pundits who were surprised as if this has never been presented to us before, that we could vote for another side. We all have an uncle or a conservative friend or someone who is of the Black community. This is not new to us as your guest is illustrating, but what is clear to us is that we're more politically a force if we vote all on one accord and we see that with the Latino vote, unfortunately, that often their vote is canceled in part because they're not voting as one unit. We even see that in this selection. We've been able to get someone Kamala Harris because we have so much clout in one party. It's a critical move that we make every two years or every four years to make the decision, to make the conscious choice, which escapes most of the political commentary that assumes that we're sort of this passive agent that's not really thinking about our best interests or are not thinking about how we can be independently-minded. This is very much an individualism that is pervasive in American politics, that just if you think as an individual, it's advantageous, but this is not the case in the Black community. You can go to the Black church and see that conservatives and liberals will all come on a consensus on a number of things.

Brian: Great. Theodore? A lot there.

Theodore: Yes. It's a great point. The key thing is she's exactly right that uniform Black voting, 90% of voters supporting the same party in elections, does not mean uniform Black politics. The diversity of political ideologies can coexist with a uniform voting strategy, which as she also pointed out, which is also right, is a strategy that leverages the Black's electoral power in order to move politics in a direction that's advantageous for them. The open question in political science and in society at large is, is a group better served by voting as a bloc and moving a party, or it's a better served by making the parties compete for their vote so that both parties have to deliver on policy asks if they want to have that support continue? It's an open question. I think the strategy depends on the situation, the timing, but in our two-party system of democracy we have today, it's racially polarized, it's hyperpartisan, and the only rational choice left for most Black voters is to vote as a group for one priority, and that is when it comes to civil rights protections. You will see the diversity of Black voters more clearly in local and state elections, especially on direct democracy referendum, where you see 60-40, 70-30 splits. In the state of Maryland, Republican Governor Larry Hogan won 30% of the Black vote just last year or maybe the year before. It's possible to make these appeals, but our national politics is so divided right now that civil rights protections is a priority that is often not subjugated to other political concerns that Black voters have.

Brian: Since we're all Supreme Court-obsessed today, with the passing of Justice Ginsburg, I wonder if you have a view of Clarence Thomas and the context of Black ideological diversity as you were laying out in the article. I don't think you cited him by name. Is he such an outlier in the context of Black politics that he doesn't even share the 90% view on most civil rights issues, as you use that term, or is that the wrong way to look at him?

Theodore: He's the Black conservative, without a doubt. I think he's probably further to the right than most Black conservative. There is another view of Clarence Thomas that sometimes gets expressed in his decisions. One is that he's Black conservative, but frankly, looks like a lot of other Black conservatives, and that they believe government sometimes doesn't really have the people's best interest at heart, that Black people will be better served with less government interference, and give them more opportunity to allow their work and their self-determination to shine through. That is often bundled with a view of Black America that says, "If left alone, we will be just fine," and sometimes that could feel like segregation, it often feels like a race pride that we saw in the Black Power movements of the '60s and '70s. It's a weird coupling of getting government out of our lives and leaving us for our own devices while also recognizing that government does have a role to play when our rights are violated. Clarence Thomas is there, but he probably leans further to the right, wants government removed in more places than most Black conservatives would like. The one exception that I would point out is, there was a state, maybe it was Georgia, I can't remember, that wanted to display the confederate flag on their license plates and a case went before the Supreme Court. When that question came up, Clarence Thomas voted with the side that says the government should not or cannot have that flag on their license plates or whatever. I can't remember the exact judicial question. Where you think he, based on his record, would side with those wanting to support the confederate flag he actually ruled against them, and that's a product of his growing up as a Black man in Georgia. He's more complex than he often gets credit for, but that's not to say that he's a mainstream Black conservative. I don't think that's accurate.

Brian: Let me take one more call. Marlin in Connecticut, you're on WNYC with Theodore Johnson from the Brennan Center for Justice, author of the New York Times magazine article this weekend, How the Black Vote Became a Monolith. Hi, Marlin.

Marlin: Hi. How are you doing?

Brian: Good.

Marlin: Long time listener, first time-- I'm sorry.

Brian: I'm so glad you a-- I was going to say with apologies, we only have about a minute for you, so go ahead. I'm so glad you're a first-time caller. Thanks for joining us.

Marlin: Okay. My issue is, well, talking about Clarence Thomas, I think less government will help Black community out more, I think that's an oxymoron because when there was less government, the Black people were more suppressed and more terrorized. I can't give a history lesson to the Black community, and I'm out in the streets, I'm out walking and I'm out talking, I'm out trying to get Black people to vote, what can be the one thing that I can try to use to tell my Black people, "This is the reason you should vote. This is why you should vote," because no one's going to sit still for a history of that length? [unintelligible 00:22:21] is well-versed, what, in his opinion, can I say, that I can use to mobilize Black people to go vote?

Brian: Marlin, thank you so much, and please call us again. Briefly, Theodore Johnson, as we're running at a time, do you want to give him that slogan, that sentence, that short paragraph?

Theodore: Unfortunately, I don't think it exists. I don't think you can leverage history. I think you have to speak directly to people's personal interests. If they are not satisfied with the quality of their life or the opportunities that they have, then, voting is the means by which they can change the structures, and that it's not just about presidential voting, it is probably more important for them to vote at the local and state level, if they are not satisfied with the nation that they have. It's not just about supporting parties or specific people but about bolstering the structures of our nation to ensure that we live up to our ideals and principles and that our rights are protected. If you can't, if that's not enough to appeal to people, that's not enough to get them off the couch to go vote, then, making appeals based off of Jim Crow or beatings on the Edmund Pettus Bridge often won't work either. People have to want to be engaged civic citizens in order to get the nation they want and for the government to be responsive to their needs.

Brian: As a thinker at the Brennan Center for Justice, I warned you at the beginning I was going to ask you about this, what do you think of Notorious BIG being adapted to Notorious RBG? Was there an intersection there as she commented on in the clip we played before?

Theodore: I think the intersection probably is pop icons plus Brooklyn bred is probably about the extent of it. There might be some-- RBG was very strong on voting rights, and to the extent, the Notorious BIG talked about politics. It was often about creating more opportunities for Black people, that circumstances of poverty, police brutality, and injustice didn't unduly impact their lives. I think her rulings are in Shelby County, for example, where the Voting Rights Act was gutted, speak to her recognition of the agency that should be afforded to Black lives in the United States. The one thing I'm most happy about is that making that connection with that nickname brought her to the public attention and called attention to the amazing work that she accomplished in her life and that her life represents. That alone, I am thankful that Notorious RBG became a thing because now more people are aware of her and her legacy.

Brian: Theodore Johnson from the Brennan Center for Justice, his New York Times magazine article this weekend, How the Black Vote Became a Monolith. Thank you so much.

Theodore: Thank you.

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