Transcript:

00:00:00 Michele Goodwin:

Welcome to On the Issues with Michele Goodwin at Ms. Magazine. As you know, we’re a show that reports, rebels, and we tell it just like it is, and on our show, we center your concerns about rebuilding America and also how we, the people, become centered again in American democracy as much as we are imprinted in the United States Constitution, and joining me as we dive in to understand this moment of constitutionalism and democracy are two very special guests. 

I’m joined by Professor Stephen Vladek. He is a law professor at Georgetown Law and also the author of the New York Times bestselling book The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. It’s won numerous awards. I’m also joined by Moira Donegan. She’s a writer and resident for the Clayman Institute and a columnist at The Guardian. Her first book Gone Too Far: MeToo, Backlash, and the Future of Feminist Politics is forthcoming from Scribner. In this episode, you’re going to hear from my guests as we dive right in.

But before we get to that, I want to level-set just a bit about where we are in the Supreme Court, which has now dismantled key provisions of the Voting Rights Act, most recently, just last week, Section 2 of the Voting Rights Act, and I want to talk with you about why that’s important. Want to lean into an op-ed that I’ve recently written as part of my work also at The Nation, and there, I’m talking about the 6 to 3 decision, the United States Supreme Court, which involved the Callais decision, out of the state of Louisiana, which, basically, left no stone unturned in eviscerating or gutting Section 2 of the Voting Rights Act.

The Voting Rights Act was landmark legislation from 1965, enacted by Congress at the height of the Civil Rights Movement to stamp out voter suppression and to promote the equality at the ballot box. To be clear, this was an urgent concern for Black Americans, especially given the violence and the vile actions that took place during the Jim Crow Movement, but voting rights has been very important to women. It’s been very important to people who are second- and third-generation Americans. What the Voting Rights Act did was that, nearly 100 years after the ratification of the 15th Amendment, it made real the promise of the Constitution.

That Black voting power could exist. That it would not be diluted. That the interest of people who cared about education, housing, employment, the ability to be able to go through the front door of a restaurant, that that could not be undone by members of the legislature, or at the very least, that Black people would be able to elect people, have a real shot at electing people, who would see their humanity and who would agree that Black children shouldn’t be banned from being able to swim in the local swimming pools. Shouldn’t be banned from playing checkers in parks.

Shouldn’t be banned from the places where billiards were played. Shouldn’t be banned from going into the front door of department stores. Shouldn’t be banned from being able to actually sit in a taxi that is driven by someone white. Now, you might think what I’ve just shared with you is something that’s from a whole different planet. That it could not be possible that, in the United States, there would be such ridiculous, Draconian laws.

But they did exist, and they existed throughout the American South, and they continued to exist after the Civil War, and they continued to exist after the ratification of the 13th Amendment, 14th Amendment, and 15th Amendment, which brought an end to slavery and brought equality for us all, and they continued to exist in the 1920s, ‘30s, ‘40s, ‘50s, ‘60s, and it wasn’t until the passage of the 1964 Civil Rights Act and the 1965 Voting Rights Act that those laws began to fade away, but not without much at stake, including violence. Legal and extralegal policies and practices were engaged in to discourage Black Americans from voting, and they were unabashedly vile and unapologetically violent.

In 1964 in Mississippi, Andrew Goodman, Michael Schwerner, and James Chaney, three young civil rights advocates, were brutally murdered in response to their efforts to register Black voters. Their deaths were dramatized in the 1988 film Mississippi Burning. Famously, Fannie Lou Hamer explained to the entire nation that her courage to come forward and press for voting rights was inspired by these young slain voting rights advocates, but they were not alone, and it was not just Mississippi. It was also in Alabama in 1965, mere months before the passage of the Voting Rights Act.

There were folks there who were killed in response to their advocacy for Black voting rights, and these were not Black people that I’m talking about, though there were Black people who did die, who were murdered, like Jimmie Lee Jackson, who was a 26-year-old deacon. Was shot by an Alabama state trooper as part of his voting rights advocacy, but it wasn’t Black people alone. It was also white people who supported equal voting rights for Black Americans. I’m talking about Reverend James Reeb. He was one of them, a father of four, beaten. He was beaten to death by a mob of angry white guys who were upset about his advocacy for Black voting rights.

Viola Liuzzo, who came down to Alabama from Detroit, a mother of five, killed by members of the Klan because she gave a ride to Black folks who had successfully finally voted. Gotten to the capital, at least, to be able to register to vote. Throughout our history, this has been a very sad reflection on American efforts towards democracy. In Louisiana, in fact, during the period of Reconstruction, hundreds of Black people murdered within a space of just a couple of weeks, because they were exercising the right to vote, and in fact, after this mass massacre…can you imagine 200 people murdered, slain, because they wanted to be able to vote, a right that the Constitution had granted them?

So afraid were they, that these folks in Louisiana, these Black people, began wearing arm bands that were red and strings that were red tied around their arms. Basically, a nod to the fact that they had given up on this fundamental American right, which was to vote, because they did not want to be murdered at the ballot box or after leaving the ballot box. So, where are we? Louisiana v. Callais, the Supreme Court permitting the state to basically gerrymander for political reasons, basically ensuring that, in the state of Louisiana and other places across the country, that voting rights will be diluted, and that was what the Voting Rights Act protected against, against voting dilution.

Well, I’m joined in this very episode by Stephen Vladek and Moira Donegan, such that we can unpack this all and also spend a bit of time thinking about what this means in terms of reproductive freedom, as well. How do voting rights and reproductive freedom tie together, and how do all of these issues tie together for us in just thinking about how we keep we, the people not only in our Constitution, but also in practice towards a better America? So, sit back, and take a close listen. So, let me start with you, Steve. What the hell is going on?

00:09:09 Professor Stephen Vladek:

That’s a big question.

00:09:12 Michele Goodwin:

Yeah. I mean, like, there’s Callais, mifepristone, emergency hearings. Right now, we’ve got a Virginia judge that says no go on Virginia and redrawing of maps. In Tennessee, they’re carving up Memphis. Dr. King is rolling over in his grave, and then, in Alabama, there’s just a fresh, hot pot of…what would we call that? It’s not oatmeal.

00:09:39 Professor Stephen Vladek:

So, I mean, I think what’s going on right now is the race to the bottom that we all anticipated was going to happen, if the court both, one, did what it did in Callais, and two, didn’t do anything to slow this down. I mean, there was, very much, the possibility that the court could’ve said, you know, our ruling’s not going to go into effect until after this election cycle. The court could have denied Louisiana’s request to expedite the issuance of the judgment on the ground that we’re not going to, you know, sort of stir this pot, and instead, the court leaned int, and we’re seeing, I think, exactly the entirely foreseeable consequences of the Supreme Court green-lighting, Michele, not just this, you know, to my view, deeply prejudicial and discriminatory map redrawing by all of these red states, but also chaos, the very chaos that the Purcell principle that the Supreme Court so gleefully wields to prevent district courts from correcting election problems is supposed to prevent, and yet, you know, here, we’re fine with it.

00:10:43 Michele Goodwin:

For our listeners, Purcell, what does that mean?

00:10:45 Professor Stephen Vladek:

So, the Purcell principle is about a 2006 ruling the Supreme Court had, also on The Shadow Docket, that stands for the not entirely controversial principle that the closer we get to elections, the less federal court should intervene in them. We are turning that its head because, you know, Louisiana is in the process of, basically, throwing out votes of Louisianans who already voted in their congressional primaries. Alabama’s on the verge of doing the same. South Carolina’s trying to. Tennessee is trying to, and so it really, I think, puts the lie to the notion that this was ever about some neutral legal principle. It’s about maximizing partisan political power, which is ironic, given that it’s this very week that Chief Justice Roberts made these public comments about how it really is a shame that the court is perceived as political. Yes, Chief Justice Roberts, we are all trying to figure out, you know, who did this.

00:11:38 Michele Goodwin:

Right, and on that note, Moira, we’ve talked across many different issues, democracy, women in democracy, abortion, reproductive healthcare, it all. Before we get to that piece, I want to pick up on what Steve just mentioned, which is Justice Roberts, the Chief Justice of the Supreme Court, asking how did this happen? You know, why is it that Americans perceive the court as being political? What’s your response to that?

00:12:14 Moira Donegan:

I don’t know how to interpret John Roberts. I do not have the gift some people have for deciphering the inner psyches of the justices. So, I am left wondering whether his comment is presuming that the American people are very, very stupid or whether he is actually quite delusional and believes that he is operating, he and his colleagues are operating, on defensibly neutral principles. I think that is an open question as to John Roberts’ state of mind.

00:12:51 Michele Goodwin:

So, let me follow up with this. So, Sherrilyn Ifill has recently stated that what we can see here is a legacy that extends beyond Shelby County v. Holder, but actually dating back to the chief justice when he was a young lawyer and this desire to dismantle the Voting Rights Act. What’s your sense of that? That, as a young lawyer, he already thought that, look, this is just too much attention that’s being placed on race. There doesn’t appear to be the kind of racial dogma and violence that occurred in the 1950s and ‘60s, and so, what the hell? You know, why still the Voting Rights Act?

00:13:34 Moira Donegan:

Yeah, you know, I think this is an important bit of context to keep in mind. That, for John Roberts personally, the dismantling of the Voting Rights Act has been a 40-year project. He has been at the forefront of this legal movement, that has depicted the Voting Rights Act as excessive, unnecessary, and burdensome on the rights of states and their legislatures, since his time in the White House council office under Ronald Reagan, and I think what you see in John Roberts’ jurisprudence around the Voting Rights Act is this kind of faux naivety about the disproportionate impact of factually-neutral policies, right? He wants to pretend that the law forbids the acknowledgement of race, and in so doing, he is creating pathways for racial discrimination.

00:14:28 Michele Goodwin:

So, then let’s pick up on mifepristone and what’s taking place there, because, you know, after the Dobbs decision, the thought was that leave these matters to the states. We knew that there were already these trigger bans, meaning that states were just waiting to basically make sure that Roe was gone, and then the bans that they were waiting, you know, to implement went into effect, but the idea was, you know, blue states, where you protect reproductive freedom and rights, you know, go at it. You’re not going to be affected by this Dobbs decision. How do you read what’s happening with mifepristone on that point?

00:15:06 Moira Donegan:

Yeah, you know, I think mifepristone also is a case study in the sort of false pretense of neutrality here, right? So, the Dobbs decision was written so as to factually preserve the ability of states to implement their own abortion policies as they preferred. What we’ve seen, in reality, is a move to extend the maximally-restrictive abortion policy across state lines into democratic-controlled states and states where the people’s representatives have decided on a more lenient or pro-access abortion policy, and that’s the case with mifepristone. What you see with mifepristone is the much broader expanded use of this abortion medication drug, particularly as sent through the mail, which now, you know, telehealth, medication abortions account for something like 25% of abortions in the United States in the years since Dobbs, and that is a direct result of the court’s actions, right? The lack of access…

00:16:09 Michele Goodwin:

It’s an irony, isn’t it?

00:16:10 Moira Donegan:

Yeah, it’s the lack of access in these Republican-controlled states. Means that people in those states are accessing abortion through the mail because of other states that have decided to enact shield laws to allow their providers to mail those medications that are allowed in those states, for the purposes of abortion into other states. The conservative legal movement is now trying to curtail access to mifepristone not just in those states that have abortion bans on the books, but in fact, nationwide. Trying to say, blue states, you also should not be able to have this medication as widely available as you might like, and they’re really stepping on federal regulatory prerogatives in doing so.

00:16:56 Professor Stephen Vladek:

I mean, that’s the irony, to me, of the mifepristone case, which is, you know, the Trump administration could cause much of this havoc all by itself, just by having the FDA, which used to be independent, you know, do its bidding with regard to the 2021 and 2023 REMS regulations, and it hasn’t done it yet, I suspect, because it doesn’t want to turn this into a political issue that might actually show up in the midterms in 2026, and here comes Louisiana and the 5th Circuit and says, you know, hold my beer, because the…and it’s one of the really sort of…this is really nerdy, but I think it’s striking.

The federal government is the defendant in this lawsuit. It hasn’t filed anything in the Supreme Court one way or the other. It won’t even take a position on whether the 5th Circuit’s ruling should be blocked or should be allowed to go into effect. You know, I mean, I think that really sort of, in some respects, is the perfect illustration of just how messed up this all is. That even the Trump administration can’t be bothered to take a position on this, because what it really underscores is Moira’s point, which is this is not about, you know, out-of-state doctors sending mifepristone into Louisiana. This is about the 5th Circuit trying to set nationwide policy, that even the Trump administration can’t be bothered to set itself.

00:18:14 Michele Goodwin:

Right, and especially at a time in which they’re deeply concerned about midterm elections, right? I mean, it’s all around us, and so, I want to pick up on that point with you, Steve. So, here we are with these various red states…and blue states are getting involved with this, too. Let’s just carve up our states, such that it looks like Swiss cheese in terms of voting districts. Do you have any predictions here, given what’s taking shape? Tennessee, Alabama, Virginia?

00:18:45 Professor Stephen Vladek:

So, I mean, I think the best prediction I have is that all of this is not going to affect the result in November. That it’s going to be, you know, such a large margin for Democrats in November, that all this will do is, perhaps, take a bite out of that margin, and so, maybe, you know, you have a House next year where Democrats have a 25- or 30-seat majority instead of a 35- or 40-seat majority, at least the way things are going right now.

The larger problem, Michele, to me, right, is the marginalization of minority groups, and especially of Black representatives across the board, which now, blue states will also be incentivized to pursue, because they can’t afford to unilaterally disarm on the question of partisan gerrymandering, and more than that, what’s going to happen next year, where we’re not in the middle of the election process already and where every state that has more than one seat, right, is going to now want to redraw its maps in some way, shape, or form, and that’s just a race to the bottom where, Michele, you know, I don’t know whether it’s better for Democrats or Republicans.

It’s bad for all of us, because the result is a Congress that is completely polarized, where the Democratic members are all pretty far to the left, because they all had to win primary elections, not general elections, and the Republican members are all to the right, and we all look around and say, why won’t Congress, you know, do anything? And the answer is because they weren’t elected to do anything because of the way these districts were drawn.

00:20:10 Michele Goodwin:

Moira, your thoughts on that?

00:20:17 Moira Donegan:

I have been really chilled by the speed with which many states, particularly across the South, have moved to dismantle Black political power. I think the redrawing of these maps into, like, functionally non-competitive districts is really bad for the integrity of our democracy, and the deliberate removal of the Black electorate in these, like, you know, historically, quite violently racist districts marks a turn for the worse for both the integrity of American citizenship and the dignity of American voters. So, I’m with Steve on the sort of pragmatic concerns about the functionality of our legislatures, but I’m also just wondering about the dignity of voting and the dignity of citizenship, when those votes have been sort of gerrymandered out of meaning and effectiveness.

00:21:22 Michele Goodwin:

Yeah, it’s such an important point that you make. We are beyond the time of having a narrative that is exported to the rest of the world which shows a dignified America that embraces notions of equality, to now one where it’s very clear, around the world, just what the level of cheating happens to be, right, and the level of disregard for equality, egalitarianism writ large.

I mean, you know, when you think about what the world has just seen of the United States over the last year, the killing of Americans in the Twin Cities, being gunned down by ICE agents, the ripping through of voter districts to deny voting power for African Americans, all of this stuff with mifepristone and more, women having to flee states in order to get to safe places where they might be able to terminate a pregnancy. I mean, we are in a land right now where there are little girls who are going into elementary schools as mothers, because they live in states where there’s not even an exception for cases of incest and rape.

That’s it. You know, we always ask about a silver lining before we close out, and I know that was a lot right there, and this is a power punch. You know, we’re on for a very brief period of time today. So, I want to put it to you both, right? What do you then see, out of all of this, as anything that folks can lean into with some level of hope? And I’ll start with you, Steve.

00:23:04 Professor Stephen Vladek:

So, I guess I’ll say, I mean, I think…you know, Michele, you and I have known each other for a little while, and I think we both have thought that there’s been need for institutional reforms since long before Donald Trump was ever president. That we had been sort of coasting through a system that had all kinds of signs of inadequacy when it came to protections for minority groups, when it came to fairness of elections, when it came to…you name it. Accountability for federal official misconduct, and I think that, you know, the one silver lining, to me, of all of this is that all of that’s now out in the open, right? Things that people like you and me were saying were going to happen, and people said no, it won’t, it’s happening, and so…

00:23:44 Michele Goodwin:

That’s right.

00:23:46 Professor Stephen Vladek:

Right? So, no one can deny anymore what happens when you have no accountability for federal executive officers, when you have no constraints on extreme partisan gerrymandering, and so, if anything, I think we are making the case so much more aggressively for the kinds of institutional reforms that I think will make our entire constitutional system more able to achieve its aspirations than would’ve been possible before this. That’s going to take some work, and it’s going to take a lot of engagement from not just, you know, people like the three of us, but the folks who are listening and watching, but I think we weren’t here 5, 10 years ago, and that’s something I hope becomes a positive from all of this.

00:24:24 Michele Goodwin:

I really appreciate that. It resonates in so many different ways. It reminds me of what Black people in the South used to say, right? That they would prefer someone who is just really explicit with their racism. Don’t hide it. It’s much easier to know what you’re dealing with, rather than folks who pretend. Thanks for that, Steve, and Moira, we’re going to close out with you. So, what do you see, through all of the muckity-muck that we’ve talked about, where there’s some semblance of hope to be found?

00:24:54 Moira Donegan:

You know, I do have to echo Steve a little bit and say that I think the sort of plainness and the sort of brutality of the power, the bald power that’s being exercised by, you know, far right members of the judiciary and the Trump administration, I think that has made the stakes very clear, and what I am seeing, what I’m beginning to see, is a lot of, like, lucid anger on the part of a lot of American voters. People who had maybe not quite understood the stakes before are beginning to understand them now, and I do not think we should discount the power of those people’s righteous outrage.

00:25:28 Michele Goodwin:

Love it. Love it. Thank you both so much for joining on with these hot takes, because things are, like, getting hot, very hot, in the kitchen, like, throughout the entire house. The house is on fire, and I thank you, always, for your very clear analysis, and looking forward to the next time.

00:25:47 Professor Stephen Vladek:

Thanks, Michele.

00:25:48 Moira Donegan:

Thank you, Michele.

00:25:52 Michele Goodwin:

This has been your host Michele Goodwin, reporting, rebelling, and telling it just like it is. On the Issues with Michele Goodwin and Fifteen Minutes of Feminism, our Ms. Magazine and Ms. Studios joint production. I’m Michele Goodwin and the executive producer of Ms. Studios. Our producers for this episode are Roxy Szal, Oliver Haug, Allison Whelan, and our Ms. Studios intern Emerson Panigrahi. The creative vision behind our work includes art and design by Brandi Phipps, editing by Natalie Holland and Emerson Panigrahi, and music by Chris J. Lee.