0:00:00.0 Rhiannon: Let's talk about Jackson Giles.
0:00:02.3 Peter: Hold on. Are we saying Giles? I was saying Jiles?
0:00:03.4 Rhiannon: Oh, is it Giles?
0:00:05.2 Peter: I doubt anyone knows. So.
0:00:06.7 Rhiannon: We can go with Giles.
[music]
0:00:11.7 Leon: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter Rhiannon and Michael are talking about Giles v Harris, this case from 1903, centers on voter registration practices that discriminated against Black citizens. The holding in this case helped usher in the Jim Crow era, setting the stage for another century of inequality in the United States. As you'll hear, we still see echoes of this case in our contemporary politics and not in a good way. This is 5-4, a podcast about how much the Supreme Court sucks.
0:00:52.3 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have flattened our civil rights, like a four wheeled high flyer phaeton carriage flattening a local street Urchin.
0:01:03.5 Michael: That's right.
[laughter]
0:01:05.4 Peter: I'm Peter. I'm here with Michael.
0:01:08.4 Michael: Hey, everybody.
0:01:10.5 Peter: And Rhiannon.
0:01:10.6 Rhiannon: Hi.
0:01:11.5 Michael: Guess what era case we're doing today, folks?
0:01:14.5 Rhiannon: Yeah. Yeah. Little turn of a certain century humor up top. Yeah.
0:01:19.3 Peter: Yeah. Problematic humor. As I know most of our listeners are technically Street urchins.
[laughter]
0:01:25.5 Rhiannon: Got 'em.
0:01:29.3 Peter: Today's case, Giles v Harris. This is a case from 1903 about voting rights, and specifically it's about whether the state of Alabama can design a new state constitution in order to disenfranchise Black Americans. And whether that's, you know, constitutional. The Supreme Court in a six to three decision, admitted the Constitution was likely being violated, but said that they couldn't do anything about it. This case is emblematic of how the court turned a blind eye to voter disenfranchisements and thereby green lit Jim Crow practices across the south at the turn of the 20th century. It's also a crucial part of the story of how our constitutional law came to ignore democracy as a principle which not only allowed Jim Crow to flourish, but laid the groundwork for modern voter suppression tactics.
0:02:30.4 Peter: So Rhi I'm gonna hand it off to you for some history. Some of our nation's rich history.
0:02:36.5 Rhiannon: Yeah. There is some really good history in here. You know, about reconstruction, about the failures of reconstruction, about the abandonment of reconstruction principles around the turn of the century. It's dark stuff, let's just say that right. So at the end of the Civil War...
0:02:53.4 Peter: Or is it white stuff?
0:02:54.3 Rhiannon: Oh.
0:02:55.4 Michael: Wow. [laughter]
0:03:00.6 Rhiannon: Comedic genius, the law boy.
[laughter]
0:03:01.4 Michael: De nuked from orbit.
[laughter]
0:03:04.5 Peter: I'm at the top of the game folks.
0:03:06.4 Rhiannon: So at the end of the Civil War, the Confederate states were required by the US government to adopt new constitutions in order to be admitted back into the union. The passage of the reconstruction amendments, that's the 13th, 14th, and 15th amendments. The Confederate states were also not allowed to deny anyone the vote on the basis of their race. So for a period of time this actually worked, and Black voter turnout was extremely high across the south. You start to see Black elected officials, for example, the first black senator is elected in 1870 in Mississippi, the first Black state Supreme Court justice is elected in South Carolina the same year. And in fact, the number of southern Black legislators elected in 1872 would not be matched again until the 1990s. We're talking about, you know, just not even 10 years after the Civil War and Black enfranchisement is having a massive effect on politics in the South.
0:04:11.4 Rhiannon: In response to this, quite predictably, White officials across the south launched this extended campaign to seize political power from Black citizens. There were campaigns of violence, intimidation, there was localized manipulation of voting results. If White officials didn't like the outcome of elections, they would just say that their desired candidate won. There was gerrymandering, there were laws designed to restrict the franchise, you know, all sorts of new ideas they were coming up with. So over the course of the ensuing decades, those tactics allowed White southerners to wrestle away enough political control that they could host new constitutional conventions within their states. Right. They had changed their state constitutions to make it back into the union, and now they are wanting to change those state constitutions again. So after re-centering control in, you know, conservative White populations, federal troops have left the south, they start to rewrite those state constitutions, and this time it's with the explicit intent of reestablishing the legal and political regime of White supremacy.
0:05:24.5 Rhiannon: So let's talk about Jackson Giles, the Black man who sued the state of Alabama over the new state constitutional provisions that effectively kept Black men off of voter registration lists. Giles was born into slavery in 1859, just before the Civil War, and he grew up in Alabama. After emancipation, his father worked as a gardener. His mother was a Laundress. Giles and his sisters went to school and learned to read and write. And in adulthood, Giles had several different jobs, including in the cotton industry, in newspaper publishing and as a grocer. But he was also always really involved in local and state politics. He would go to county GOP meetings, but also organize conferences and meetings focused on racial and labor issues in Montgomery and in Alabama more broadly. He was registered to vote in Alabama and had voted from 1871 to 1901, we're talking 30 years he had been on the voter rolls and was actively voting, but that was before Alabama remade its constitution to take away the vote from the vast majority of Black men. So in 1900, Giles was named Secretary of the National Negro Race Conference in Montgomery, and he was so known and involved around these issues that he really became the face of this legal push to reestablish Black voting rights in the South.
0:06:50.4 Peter: Right. So, some of the legal background here, and where this comes to a head, in 1901 Alabama redrafts their state constitution, and like Rhi mentioned, it was with the intent of establishing White supremacy in the state. Now, how do we know that? Through very careful detective work, the president of the constitutional convention, said, "What is it that we want to do? Why it is within the limits imposed by the federal constitution to establish White supremacy in this state." So if you read between the lines there...
0:07:30.5 Rhiannon: Yeah, hard hitting investigation we had to do.
0:07:33.5 Peter: So the new state constitution imposes a host of the most aggressive voter suppression measures in the country's history, from criminal disenfranchisement to poll taxes, residency requirements, vague good character requirements. Nearly all of which have grandfather clauses designed to exempt White people and wealthier White people in particular. And that's what Giles seeks a challenge. Right. He's saying, look, this is obviously racial discrimination and voting that is now illegal.
0:08:08.3 Rhiannon: Under the 15th amendment. Yeah.
0:08:10.4 Peter: Right. So he's asking the court to compel Alabama to register him and thousands of other Black men to vote.
0:08:19.2 Rhiannon: Yeah. An interesting historical fact to just point out here, this litigation was actually funded. It has financial backing by Booker T. Washington, the Black educator and presidential advisor and leader of the Tuskegee Institute, and that financial backing and support for Giles v Harris, which makes its way to the Supreme Court. That was all done in secret actually, since Booker T. Washington's kind of publicly facing philosophies were focused on Black advancement through education and entrepreneurship rather than like direct civil action against segregation and disenfranchisement. So just kind of interesting historical fact here. Booker T. Washington is in the background of this case.
0:09:03.4 Michael: That is interesting.
0:09:04.6 Peter: Yeah. And before we move on, I do wanna give some credit. We took a lot of our historical legal background here from Rick Pildes who wrote a law of the article about 20 years ago called Democracy, Anti-Democracy, and the Cannon, about this case. I wanted to mention it first because we rely on that piece quite a bit. And second, because just a few episodes, I made fun of Rick Pildes for being an idiot for not recognizing what the Republicans were doing in the independent state legislature case.
0:09:33.7 Michael: Yeah.
0:09:34.4 Rhiannon: Oh. Shout out on this one, Rick.
0:09:37.4 Peter: You gotta give credit where it's due. Right. This was 20 years ago. Rick was in his prime. So the legal claim being brought by Giles here is pretty simple at its core. Right. There are some fancy new constitutional amendments passed to prevent racial discrimination in voting. Alabama's new state voting requirements are designed to do exactly that. So the court needs to step in and void those requirements and let these dudes vote. But the Supreme Court, in a six to three decision written by Oliver Wendell Holmes, says no can do. So the court concedes that this is almost certainly an orchestrated effort to disenfranchise Black voters, but they say the following, "The plaintiff alleges that the whole registration scheme of the Alabama constitution is a fraud upon the Constitution of the United States and asks us to declare it void. How can we make the court a party to the unlawful scheme by accepting it and adding another voter to its fraudulent lists?"
0:10:48.4 Rhiannon: Oh, boy.
0:10:48.5 Peter: In other words, they're saying adding Giles and other Black voters to the voter rolls would simply be adding voters to the fraudulent scheme so the court won't do it.
0:11:01.4 Rhiannon: Real big brained legal analysis here.
0:11:05.3 Peter: Pretty bad argument, I think in my opinion.
0:11:10.5 Rhiannon: I give that an F.
0:11:11.5 Michael: Do you need to break that down into like formal logic symbols to really figure out what's, the issues with this?
0:11:18.4 Peter: This is like one of those things that I feel like it's like meant to just cause you to pause and be like, "huh," before, like, someone runs away, like this...
0:11:26.4 Rhiannon: Yeah. There's also something about the like historical context, the language that's used in this opinion. Like, you read a sentence like that and you're like, oh wait, this must mean something else because of the time, and I just don't understand. The language that's being used here, the sort of fancy legal jargon of the time. Right. It's 1903 or whatever. You know, so you read the sentence fucking 10 more times and it's like, oh no, he means that dumb shit.
0:11:55.3 Peter: Yeah. Yeah. Back in the day when Supreme Court opinions were like three pages long, the like logical crux of your opinion had to be like two sentences. Nowadays you stretch it out to like five pages and then like, remember last week with McDonald, you're reading that and you're like, oh God, you know, by the time you're at the end of it, your brain is mush, but with this you're just looking at the sentence and you're being like, well, that's not right.
0:12:20.5 Rhiannon: Yeah. Right, right. No, no, this cannot be right. Yeah.
0:12:22.4 Michael: I mean, look, just like grammatically speaking, like it's just like the syntax, the language itself, he says, we're being asked to declare the scheme void. And then he says, well, how can the court be a party by accepting the scheme? You just said you're not being asked to accept it. You're being asked to declare it void. What are talking about? Like you are totally turning on your head. Like his characterization of the relief being sought is entirely backwards. Right?
0:12:53.5 Peter: Right. They're not saying leave all of the illegal requirements in place and add us to the voter rolls. Although for the record, that would still be better than not having them in the voter rolls. So he's basically like, well, if we do this, we are sort of partaking in the fraud of Alabama's voter scheme. But no, the fraud is that it disenfranchises Black voters. So if you remove that requirement and re-enfranchise...
0:13:21.4 Michael: Enfranchise.
0:13:21.6 Peter: Black voters that doesn't contribute to the fraud. Like, what are you talking about?
0:13:27.3 Michael: It undoes the fraud.
0:13:28.1 Peter: It undoes fraud.
0:13:30.1 Rhiannon: Quite simply.
0:13:30.5 Peter: It's just in like incoherent argument from one of the most famous and well-respected jurist in American history.
0:13:38.4 Michael: Right, right. Can, could you, I'm sorry, I can't get off this, I can't get off this. Can you all imagine like in a monetary sense, right? Like, somebody is scammed by like an MLM or something and being like, the plaintiff asks us to declare this scheme void, but could we contribute to the fraud by returning their money to them? We're like, what are you talking about? What like...
[laughter]
0:14:05.4 Rhiannon: Do we legitimize it by refunding the harmed party?
0:14:11.5 Michael: Refunding the people?
0:14:13.4 Rhiannon: Yeah.
0:14:14.1 Michael: Right. Like what, what? It's nonsense. It's total nonsense. Like, oh my God.
0:14:21.6 Peter: It's so bizarre, it's so bizarre.
0:14:22.4 Michael: This feels like a good time to take a break. And we're back.
0:14:28.4 Peter: So remarkably this decision gets dumber. The court also suggests that it doesn't actually have the power to address the problem here. Not in the sense that it's like lacking jurisdiction, but in the material sense. So Holmes essentially says that the alleged conspiracy to disenfranchise black voters is so vast that the court court would be unable to stop it short of ordering supervision of the vote by the court's officers, which he seems to believe is either logistically unfeasible or just inherently outside of the scope of the court's power. This part is jarring mostly because it's not a legal argument of any sort. It's literally just Holmes being like, well, trying to remedy the unconstitutional situation in Alabama would expose the fact that the court is powerless. So, we're not gonna do it.
0:15:20.4 Michael: Better to say this is fine. And let people remain in the mistaken belief that we are a powerful institution. That we're in charge here and not Alabama.
0:15:31.4 Peter: Also, you know, at this stage, federal troops left the south in 1877 as a result of the compromise of 1877, which we'll talk about a bit. The court could try to order federal troops to reenter Alabama. In some limited capacity if that's what they're concerned about, like the need for force or whatever. That's not really outside of the scope of the court's power. It might be outside of what people like expect the court to be able to do within our system, but this was like the time if the court was ever going to assert itself in...
0:16:05.4 Michael: Look it back.
0:16:06.4 Peter: Yeah, in retrospect, this would've been the time to do it, I think.
0:16:11.5 Michael: Yes. Preparing for this podcast, I was reading a piece by Adam Serwer called The Second Redemption, or Welcome to the Second Redemption, something like that. And like the first line from it is between 1870 and 1901, there were 20 Black representatives in Congress and two Black United States senators. Between 1901, the year of Alabama's remade constitution in 1929, there were none. So we are like, this is like literally. Like this case is right there. Like right at the inflection point. In Black representation in Congress, in Black political power, the ability of black Americans to influence American politics very briefly. Right here this case is like at the pivot point of that.
0:17:00.3 Peter: Yeah. We are in the early days of Jim Crow. And you have the Supreme Court of the United States functionally admitting that southern states are engaging in an orchestrated conspiracy to unconstitutionally, disenfranchise Black voters and holding that they won't do anything about it. The final line of this opinion is, "Relief from a great political wrong if done as alleged by the people of a state and the state itself must be given by them or by the legislative and political department of the government of the United States." Meaning when there's a great political wrong, the court can't do anything about it.
0:17:36.5 Michael: I think a point I'm gonna be coming back to is like if you're wondering why we're doing a case from 1903 is because of the parallels to modern day, and this is one of of them, we did a case on Rucho v. Common Cause, which was about political gerrymandering. Right. And the claim in political gerrymandering is literally that, you know, the people cannot functionally elect representatives anymore. That the politicians have designed districts in a way that protect them from the popular will. And in states like Wisconsin, 60% plus of the population can vote for Democrats and Republicans control huge majorities. If not super majorities. Right? And the court there said, and this was just a few years ago. Well, you know, the solution to that problem is elections, is electing better politicians who won't draw bad district maps. But like the claim is we can't elect representatives.
0:18:42.4 Peter: Right. We are unable to.
0:18:42.5 Rhiannon: Exactly.
0:18:44.5 Peter: Like the system is compromised.
0:18:46.4 Michael: Right. We are unable to elect representatives despite having popular majorities. And the court's answer is, well just elect representatives that meet your values. And that's exactly what this is saying. Right. The claim here is "Hey, black people have political power in the south if we can vote, but we're being denied the right to vote" and the court's answer is, well just elect better representatives How? They're being denied the right to vote. Like how are they gonna do that?
0:19:21.1 Rhiannon: Exactly.
0:19:22.1 Michael: It's total abdication and nonsense and bullshit and it's enraging. Like when I read it, it's enraging. Like 'cause you're like they can't be this fucking stupid. John Roberts is not this stupid. Oliver Wendell Holmes is not this stupid that they believe this.
0:19:35.9 Peter: And this is like one of the seminal cases in the line of cases that really establishes this like political question concept that the court cannot touch these "political questions." These are for the political bodies to address. And the idea that this doctrine exists is not nonsense.
0:19:57.7 Michael: Oh, for sure.
0:20:00.2 Peter: You can imagine that there are things that should be left up to the body politic. And you know, the court would say, well look, this is something to be voted on. This is not something to, for us to weigh in on. But when people are challenging the legitimacy of voting procedures, that is like inherently not a political question. It is about the good functioning of the whole system.
0:20:26.8 Michael: Right. Or if it is a political question, it was one that was answered with the passage of the 15th amendment that guarantees you the right to vote that can't be denied based on your race.
0:20:40.1 Rhiannon: Exactly. We're now in the realm of a constitutional legal question.
0:20:44.9 Michael: Like the political question is, do some portions of the population get to vote? That's the political question. And that was asked and answered like years ago, years before this decision and the court is just being cowardly. That's sort of the story of this era is supposedly well-intentioned liberals saying maybe this was more trouble than it's all worth.
0:21:09.7 Peter: Yeah.
0:21:09.8 Michael: Making sure black people have political power.
0:21:13.7 Peter: Does someone wanna cover the Brewer dissent?
0:21:15.0 Michael: I found it so boring.
0:21:17.4 Peter: I don't think either of them is like really worth it 'cause they're not cool dissents.
0:21:22.8 Michael: No. Which is like incredible to be like one of the three justices in dissent on this case. And what a fucking whiff man. Like you could have written a dissent for history that every law student would know.
0:21:35.3 Rhiannon: Yeah. There are a couple of dissents here. Justice Brewer files a dissent, justice Harlan files a dissent, could have really knocked it out of the park. There could be some really important substantive legal constitutional arguments and ideas posited in either of these dissents, there are none. Justice Harlan in his dissent, he also wants to dismiss this case. But on other grounds...
0:22:03.5 Peter: On technical grounds.
0:22:06.1 Rhiannon: On technical grounds, this guy is known as the great dissenter, Justice Harlan. He descends in the civil rights cases. He dissents in quasi...
0:22:13.3 Peter: He dissents in Quasi.
0:22:13.4 Michael: Yes. Of dissent that like every law student knows, and he could have had like a beautiful bookend to that here. And instead was like, what's the right to vote really works?
0:22:24.6 Peter: Is there money involved?
0:22:28.5 Rhiannon: Money amount doesn't sound right to me.
0:22:33.9 Peter: Oh, shit. Okay.
0:22:35.0 Michael: So Peter mentioned earlier the compromise of 1877. We just wanted to talk about that a little bit and, and I think generally, some of the political culture around this time. So there was a contested presidential election. There is another thing that will sound very familiar to people where there were disputed slates of electors from a few states. And depending on how those disputes were resolved would decide who would be President. Rutherford B Hayes or was it Sam Tilden? I think. So the compromise was that Hayes would have all the disputed electors resolved in his favor. He would be elected president by a margin of one electoral vote. 185 to 184. But the federal government would withdraw troops from the south, effectively ending the reconstruction era and leaving black Americans basically to the mercy of the southern redeemers as they like to call themselves, which were just the Confederates who lived on in a new political movement.
0:23:48.1 Michael: So this was the beginning of the end of reconstruction. This was the beginning of the end of the union's win in the Civil War and the reemergence of the Confederate state in the south. And I think Grant at this point, was saying maybe the 15th Amendment was a mistake and Republicans in the North were basically saying this wasn't worth the effort. Which again is like, I think we see the echoes of that in this opinion as well... So that, I think is sort of the context for this, but also if it feels familiar it should, because obviously we just had a very similar sort of dispute from a neo-confederate block of freaks in the Republican party today. Always nice to see history repeating itself. That's that we love to see.
0:24:39.1 Peter: And similar to Donald Trump. Hayes was a deals man. He was like, alright, yeah, there you go. I'll make a deal. A sweet deal. You give me the presidency, which I will do nothing productive with and in exchange, I will trade away the civil rights of half the country for 150 years. Does that sound good?
0:24:57.2 Michael: Yeah.
0:24:57.4 Peter: And the Confederates in the South were like, yes. That does sound good actually. That sounds great.
0:25:00.2 Michael: So that point reminds me of something I wanted to say before that I think sort of apologizing a little bit for Rick Pildes here and some of the people we often criticize. I don't think it's always easy in the moment to realize what historical moment you're in, what sort of ramifications there will be for what you're doing, for what feels expedient, what feels like the only option available to you perhaps. I don't think Grant and Ruther B. Hayes and Oliver Wendell Holmes were like, I'm making decisions here that people hundred years from now are gonna be like, man, what a fucking loser. That this is gonna take a century plus to undo 70, 80 years of struggle and pain. I don't think they're thinking like that when they make these decisions. Their view is far too narrow. And it can be difficult when you're in a moment to understand the full context of the moment.
0:25:58.9 Michael: Which is why we want to do cases like this and draw the parallels to modern day to emphasize that we believe we are in one of those moments. And these decisions right now are gonna take decades upon decades to undo, which is often why we get so animated and so frustrated with slow and uneven pace of fighting back from the modern Supreme Court. We talked about Ruther B common cause, and Shelby County is another one where the Supreme Court gutted the Voting Rights Act. Those are cases that are very similar to Giles and you know, I don't wanna wait 70 years to undo it. So I think it's important to contextualize those and understand we don't have to wait that long if we take it seriously. If we take this challenge, if we take the threat conservatives pose seriously, we don't have to wait that long.
0:27:03.7 Peter: To drill down a little bit, I mean Oliver Wendell Holmes did not need to like understand the macro context and how this would play out to know that this was a stupid decision.
0:27:09.9 Michael: Oh, absolutely.
0:27:10.8 Peter: Like, the 15th Amendment prohibits discrimination in voting rights based on race. And now, here you have state officials being like, that's what we're doing. They're saying it out loud. And the Supreme Court is saying there's nothing they can or will do about it. I don't think anyone listening needs to be told that the rights of black Americans have not been a priority throughout this country's history. But it is remarkable how quickly our political institutions abandon the promises of the reconstruction amendments, even to the point of fairly explicitly allowing them to be violated without repercussion.
0:27:44.8 Michael: Yeah. The idea that the court couldn't do anything. I mean, I'm not like a jurisprudence historian or whatever, so I don't know precisely what the law was like back then. But you could do a lot short of ordering the fucking military back into the south.
0:28:00.9 Peter: They could have just registered the voters.
0:28:02.7 Michael: They could have registered the voters or issued an order to the registrar requiring them to register the voters. And if the registrar doesn't comply with the order, then they're in contempt of court and a trial court can order them arrested. That's like their very basic things. The court just tells people to do shit and if they don't do them, then it's backed by the implicit.
0:28:21.9 Rhiannon: Exactly.
0:28:26.4 Peter: The idea that the courts can't tell states what to do or like local government officials what to do, if that were a principle that the court abided by, it would be a non-entity. It would basically not exist. Of course, the court can direct state and local officials to abide by the federal constitution. If they aggressively disobey, then you have a problem worth thinking about. But just saying these requirements are void, these people need to be registered to vote. We're ordering that. That's something the court can very obviously do and the court does. Its equivalent like we're in 1903, we're in the Lochner era. This is an era when the court was like aggressively stepping into labor disputes on the side of management. And it wasn't like, what if labor gets mad?
0:29:19.9 Rhiannon: Yeah. I'm thinking a lot about in that piece that Pildes wrote that we cited up top of this episode, he talks about a sort of democracy versus anti-democracy. This idea that we pay lip service in our politics to the idea of democracy, sort of feel-good aspects of democracy. But we don't have a political system and certainly not a supreme court that works on the project of democracy, has democracy as a political value. That's where I think the Supreme Court falls short in so many ways, but especially you see it on the reconstruction amendments. Where the court really falls short of doing anything to literally enact democracy. Rather than just say, these failings are sort of natural consequences of an imperfect democracy that we are in this vein and kind of superficial way always working to improve.
0:30:19.9 Peter: Yeah. You know, we live under a legal regime where your right to meaningfully vote is substantially less protected than your right to spend money in elections to influence how other people vote. That doesn't have to be the case. It's the output of a legal regime and an understanding of our constitutional law where democratic input is an ancillary concern. And that is in large part because the Supreme Court abdicated its responsibility in cases like this.
0:30:54.7 Rhiannon: Yeah. And you know, cases like this are what solidify, perpetuate really legitimize. For me, the idea of things like voter registration at all... Voter registration existed in the United States far before this time, even before the Civil War... But certainly since the civil War and since this sort of second reconstruction, if you will, or reverse reconstruction in the south, in the end of the 1800s, around the turn of the century, voter registration schemes are explicitly set up to keep many people out of the process.
0:31:26.3 Michael: That's right.
0:31:32.4 Rhiannon: And in these cases, explicitly set up to keep black people out of the voting process. That is still how voter registration works today. It keeps poor people and people of color from voting, and there are really easy ways to fix this. We don't have to have voter registration systems the way that we do.
0:31:49.3 Michael: No.
0:31:50.0 Rhiannon: Automatic voter registration is a thing. Plenty of states use it already. Your participation or activity connection with any other state agency in your state, you go to the DMV, you register your property, what have you, right? You register for school, whatever it is, can get you automatically registered to vote in a lot of places. And should be the standard, should be the baseline, the floor of what we're working with in order to ensure that everybody can participate. But instead, we have these voter registration schemes, which are legitimized by cases like this by Giles that only only operate to keep people from voting. And that's what we're saying with like, what are your democratic values actually in enacting a supposed democratic system? Why are things like this allowed when we have the reconstruction amendments, when our constitution supposedly says that people cannot be kept from voting? For arbitrary reasons.
0:32:52.1 Michael: It's interesting, Rhi because it is funny what sort of these old cases, what parts of your brain they activate in terms of like modern associations. So for me, reading this case, I was thinking a lot just about, and maybe it's just the time too, the time of year, but I was thinking a lot about January 6th especially because as we're prepping for this case was the anniversary and the whole house fight over who would be speaker and you know. You know, a fight amongst Insurrectionists essentially. Insurrectionists.
0:33:26.7 Rhiannon: Yeah. Good way to put it.
0:33:26.8 Michael: And being reminded that a lot of people on the left didn't take it very seriously because of sort of vague anti-establishment feeling that like seeing the supposedly hallowed halls of Congress, [0:33:44.8] ____ the fame was a good according to some leftists. And to me that's just like, I can't get with that because my politics center democracy. And watching like a fascist mob try to effectively end democracy in America, however flawed and incomplete that democracy is, is like a serious thing for me. That's why I take that seriously. And I, and, and I don't know this case makes me think of that, and it just makes me think about how much we are still fighting the same political fights 150 years on.
0:34:24.8 Peter: I do have one last thought, which is that Oliver Wendell Holmes is sort of revered as like one of the great pragmatists. And that's why people like him. So I had this sort of thought about his type of pragmatism. And pragmatism in the law generally, because I think it often just means seating ground to powerful interests. It's never pragmatic to stand up for weak and marginalized people who are getting stepped on because they don't have political power by definition. And so they can't easily retaliate if you hurt them. So pragmatism often just means ignoring their interests. And a lot of judges who are revered for their pragmatism are people who were with some frequency willing to tread all over the rights of the marginalized because it's considered pragmatic to give very little weight to those interests. So when you hear a judge being praised for pragmatism, I think it's just worth thinking about who gets left behind in that calculation.
0:35:29.1 Michael: Also, as a reminder to our listeners, Oliver Wendell Holmes wrote the decision we discussed Buck v Bell. We did an episode one where he had the line, I believe it was the final line of the opinion was this was about sterilization, sterilizing women. And he said three generations of imbeciles are enough. There's some pragmatism. He was basically endorsing a eugenics idea that we can sterilize stupid or criminal people because the state doesn't have to subject themselves to these people, these terrible unwashed masses reproducing.
0:36:07.5 Peter: And you know, in the modern era, I think of people like Stephen Breyer who was sort of considered a pragmatist, and maybe more relevant now, John Roberts. Who is sort of like, even now being sort of praised for his pragmatism. Now, what does pragmatism mean when you're in John Roberts' position? It means trying to corral an institution to like 85% of the way all the way right on the spectrum, and being praised for anything short of like outright Clarence Thomas style fascism. That's what pragmatism ends up looking like, because all it means really is compromising between interests and you need to look at the interests that are actually being weighed because it's never the rights of marginalized people. It's never the rights of people being disenfranchised... It's always powerful interests. And I think you can see that when you have someone like John Roberts who people consider to be like a great institutionalist and a great pragmatist who is literally just more conservative than like 90% of the justices of the Supreme Court over the last half century.
0:37:32.4 Peter: All right. Next week, premium episode, we have solicited your questions, the questions you want us to answer in the new year. What's up next for the Supreme Court? We will answer them in ways that are smart, but also charming and show off our chemistry as hosts.
0:37:55.5 Michael: So if you don't yet subscribe, now's the time.
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0:38:13.8 Michael: Access to our Slack. You might meet the love of your life in our Slack.
0:38:20.8 Peter: Yeah. We just had two folks who met in our Slack get engaged.
0:38:23.8 Rhiannon: They're gonna get married.
0:38:26.1 Peter: But we don't want you to just think of the Slack as a place where you can like meet the love of your life. It's more than that. It's a place for conversation about the Supreme Court.
0:38:35.7 Michael: That's right.
0:38:39.0 Peter: It's not just a place where you do stupid stuff like fall in love. We'll see you next week.
0:38:46.1 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.
0:39:13.4 Peter: Welcome to five to four, where we dissect and analyze the Supreme Court cases that have flattened our civil rights like a four wheeled high fly... Fuck, how was it pronounced?
0:39:23.6 Michael: Phaeton.
0:39:23.9 Rhiannon: Phaeton.
0:39:25.5 Peter: Phaeton.