0:00:01.4 S?: Next [0:00:02.0] ____ 71-1332, San Antonio School District v. Rodriguez.

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0:00:11.9 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon and Michael are joined by civil rights lawyer Alec Karakatsanis to discuss San Antonio Independent School District v. Rodriguez, an Equal Protection case from 1973. In this case, parents from an under-privileged school district in Texas sued over inequitable school funding.

0:00:35.0 S?: Well, are you saying that you're discriminated against in this school district because you're poor and these children's education, they're suffering because of that?

0:00:42.6 S?: They are. Well, the district is poor.

0:00:46.9 S?: And so what?

0:00:48.1 S?: So we have poor education.

0:00:50.0 Leon: But the Court rejected their claim.

0:00:52.1 S?: Today the Supreme Court in effect conceded the system may be discriminatory, but ruled 5-4 that it is constitutional.

0:00:58.6 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:07.8 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have dilapidated our liberty, like rising ocean temperatures have bleached the Great Barrier Reef. I'm Peter, I'm here with Rhiannon.

0:01:20.8 Rhiannon: Hey, hi, everyone.

0:01:22.2 Peter: And Michael.

0:01:23.0 Alec Karakatsanis: Hey, everybody.

0:01:24.1 Peter: And our special guest, Alec Karakatsanis. Alec, welcome.

0:01:28.0 Rhiannon: Hi.

0:01:28.3 Michael: Hey, Alec.

0:01:29.2 Alec Karakatsanis: Hi everyone.

0:01:30.2 Peter: Alec is a civil rights lawyer and the founder and Director of Civil Rights Corps, an organization dedicated to systemic litigation, attacking injustice in the criminal legal system, most notably, in the recent challenges to cash bail systems across the country. His most recent published work is a book called Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System. Great to have you on, man. We appreciate you being here.

0:01:53.9 Rhiannon: We're so excited that you're here, Alec. Thank you.

0:01:56.7 Alec Karakatsanis: It's wonderful to be here. Thank you all.

0:01:58.4 Peter: Alec is best known for his work concerning the intersection of poverty and our legal system, and so we thought it would be great to have him on for today's case, which is San Antonio Independent School District v. Rodriguez. This is much requested by our fans. It's a case from 1973, and it is a case that asks a very simple question: Does the Equal Protection Clause of the United States Constitution protect people from being treated differently, based on their wealth? If you understand the premise of this podcast, or if you're otherwise familiar with the concept of America, you know how the Court answers that question.

0:02:38.9 Peter: This case is sort of tragic, not just because the outcome was terrible in and of itself, but because it really symbolized an opportunity for the Court to recognize the systemic, government-endorsed disparities between rich and poor and use the Constitution to do something about it. Instead, the Court turns a blind eye and leaves us with a deeply inequitable public school system that has continued to perpetuate horrific cycles of poverty in the ensuing half century.

0:03:06.2 Alec Karakatsanis: There's so much to say here. This opinion represents a very particular vision of what the US Constitution is, it's very formal and full of technicalities and based on guaranteeing certain sort of lofty legal principles at the expense of material reality. And education is a good thing, but then utterly denies the material resources that are needed to make that a reality. It's the product of a court system that, for centuries, has cared more about legal formalities than about the material sustenance of individual human beings and their bodies. A legal system that has said, for example, it can be a crime to be hungry and take groceries from the store or to be cold and shoplift a coat, and this opinion makes you wonder what could our world and our legal system have been like, if the Court was willing to require our society to meet its lofty commitments in actual material fact?

0:04:06.8 Peter: Right, a couple of weeks ago, we covered McCleskey v. Kemp, a case about systemic discrimination in the administration of the death penalty. I view this case in almost a similar vein, a huge missed opportunity on the part of the Court and part of a pattern of cases in the '70s and '80s, especially, that threw cold water on the idea of the Constitution as a vessel for addressing systemic inequalities. So Rhi, you're gonna walk us through some background here.

0:04:36.0 Rhiannon: Yeah, that's right. And first of all, can we do a study about how many Texas cases we've covered on this podcast, because it feels like a not insignificant portion of the worst Supreme Court cases come out of my absolutely deranged home state. So you're welcome. I don't know. But actually really quick, before I get into the background, I wanna talk really quickly about something else, something I think it'd be cool for listeners to be clued in on before we get into the discussion. And it's two things, actually.

0:05:06.6 Rhiannon: First, we sometimes get feedback from listeners, kind of special requests, listeners who want us just once to cover a positive story, a good case from the Supreme Court. And second, a few episodes ago, this has really stuck with me, Peter talked about the aspiration and the possibility of the 14th Amendment, that there's no reason that we have to be reading the 14th Amendment the way conservatives are, the way it's been read in the past, and that a more expansive, dare I say, curious or imaginative view of the 14th Amendment could alleviate inequality and lead to more just outcomes in the law. And I think this case is actually a good example of these kinds of things. I'm not gonna say that Rodriguez is a good decision, it is not, it definitely is not, but I do think it provides a really interesting peek into small 'l', liberal, legal institutions, conservative ideology, and just like a jumping-off point, a track for legal challenges that imagine something so much better. And that's one reason that I'm really, really glad that we have Alec here to talk about this stuff with us today.

0:06:14.5 Rhiannon: So, let's get to the background. This case comes out of a challenge to the way Texas funds its schools. So in Texas, public elementary and secondary schools are financed through both state and local participation. The state funds all school districts at roughly the same amount, and so that establishes some minimum educational offerings at every school, but schools rely on local property tax revenues for supplemental funding, okay. So this led to a long history of financial inequality across the school districts in Texas. A school district in a poorer area had less funding than a school district where the residents were wealthy because the majority of the district's funding was based off of property values in that district. And so the result of this funding system is stark disparities in per pupil expenditures between wealthy school districts and poor school districts. The wealthy, primarily white areas of town, are able to contribute a much higher amount per child into their schools than poor minority areas.

0:07:21.6 Michael: Yeah, that's right. And there's an aspect of the Texas scheme that kind of flies under the radar because it's not really in issue in this case. I don't think the majority even mentions it, I'm only aware of it because Marshall mentions it in dissent, but it's just something that I found deeply offensive. And so I wanna highlight it really quickly, and it's that in this scheme, if any given school district wanted to raise its property tax rate in order to send more funds to the school, it had to do so by passing a referenda with the majority of all property owners, not voters. The idea of tying voting rights to property ownership is so insanely antiquated. I didn't believe it at first. And I re-read the paragraph that Marshall mentioned it multiple times, trying to make sure that I was not misunderstanding it, but then he says it again several times after that. And it's just such a vivid illustration of who the state is concerned with and who it is not, which is like, as we'll talk about, is very much what it's the heart of this case.

0:08:29.2 Peter: It's the equivalent of having only billionaires vote on a billionaire tax, right?

0:08:34.4 Rhiannon: Right, right, exactly. That's a great illustration. Yeah, so in 1968, parents from the Edgewood School District sued several other school districts in this same area, including a wealthy district called Alamo Heights and another one called Northeast, and they sued the state of Texas as well. And at trial, the parents from Edgewood, the poorer school district, showed just how serious these funding disparities were. Edgewood is a poor district with a low tax base, and they demonstrated at trial how because of that, they couldn't hire qualified personnel to staff their schools and teach their kids. Their schools couldn't provide the facilities, the books, equipment, activities, all kinds of stuff that were afforded by the wealthier districts around them. And in fact, they provided a study that compared Edgewood with one of the other wealthy districts, the Northeast one, and that study found that the inequities permeated kind of every aspect of the quality of education and services that children were receiving in these two places.

0:09:36.4 Rhiannon: Like in the category of classroom space, Northeast, the rich district, had 70 square feet per child while Edgewood had 50 square feet per child. Northeast, that school district, had nine library books per student while Edgewood had less than four on average. Northeast, the richer district, their teacher-to-student ratio was 1:19 while Edgewood's was 1:28. It goes into other things too, like counselor services, right? Northeast, the richer district, had a counselor-to-student ratio of 1 to about 1500 while Edgewood was one to over 5000 students, and it goes all the way up. You could see it in drop-out rates at the high school level. Northeast's drop-out rate was 8%, while Edgewood's was 32%. We're talking one in three students dropping out of high school in the poorer school district, and that inequity, their studies showed, actually was growing, it was trending upwards.

0:10:38.9 Rhiannon: In 1968, when the study was originally done, the disparity between spending per student between Edgewood and Northeast was about $310. Northeast was able to spend about $300 more per pupil. In 1972, just four years later, it was almost $400, up to about $390. So parents in this poorer school district sued in Federal Court and their argument constitutionally is that their kids are being denied equal access to education based on their lack of wealth, and that this is a problem under the 14th Amendment.

0:11:14.0 Peter: Right, right. The lawsuit's brought on behalf of these students in impoverished districts and the Court in a 5-4 decision written by Justice Lewis Powell, back on our podcast for the second time...

0:11:25.3 Rhiannon: Being a dipshit again.

0:11:26.6 Peter: Putting in tons of work, rejects the claim. The basic question, to dig into the opinion a bit, that the Court tackles is whether this public school financing system is violating the Equal Protection Clause, and the students are saying... Are making what is a fairly novel claim, not entirely novel, but one that the Supreme Court has not addressed, that discriminating on the basis of wealth violates the Equal Protection Clause. This is particularly important because what they're really saying is that poverty should be a protected class, the same way that, for example, race or gender is, right?

0:12:00.6 Rhiannon: Right.

0:12:00.9 Peter: The Equal Protection Clause works by saying that if there is discrimination across protected categories such as race or gender, the Court will scrutinize it more aggressively. So they're saying, hey, poverty, just like race and gender, is a category with a long history of oppression and discrimination in this country, you should use the Equal Protection Clause to protect the impoverished from being treated differently under the law just because of their wealth or lack thereof. And the Court essentially dodges this question. I read it through a few times and I thought it was a very convoluted analysis, but what they're basically saying is, look, there's no clear definition of who is poor here, right? Is it the people below the poverty line, is it people who are poor relative to another person or is it anyone in a poorer school district?

0:12:46.7 Peter: And without getting too granular, what they basically say is, look, the relationship of poverty to school districts is too imprecise. The poorest people don't always live in the poorest districts, and so we're not sure if we can do anything here. And then they say, this is not an exaggeration, although it's going to sound like one, they say, look, these people are getting some public education, right? It's not like they're getting no public education. The Court's argument is that the Equal Protection Clause doesn't require everything to be perfectly equal, just that everyone gets some sort of baseline education, right?

0:13:21.4 Peter: And they're sort of dismissing the idea that poorer communities are not getting that baseline education. In fact, what they say is, look, Texas claims that everyone gets an adequate education and we have no reason to believe that that's not true.

0:13:34.4 Rhiannon: Boom, lawyered. Great lawyer brain on that one. [chuckle]

0:13:37.7 Peter: They don't quite reach the issue of whether poorer people are not a protected class. They're just saying, in this circumstance poorer people aren't definable or identifiable enough to be protected, which is I think absolutely bullshit and absolutely a dodge of the reality of the situation. Just because identifying the class in question is difficult or imprecise does not mean the Court should ignore the issue altogether, right?

0:14:02.7 Rhiannon: Right.

0:14:02.7 Peter: Even clearly defining race or gender, to use the same examples, or nationality, is not always simple, but the Court has consistently held that those are protected categories. And what the Court is implying here is that because poorer school districts might contain some people who aren't poor and poor people might live in other areas, it can't really help them because anything it does would be a little too imprecise. This is a rhetorical tactic that reminded me of other conservative rhetorical tactics, if you've ever heard conservatives debate, they sort of hang their hat on technicalities like this to ignore systemic issues with some frequency. So if you've ever seen a discussion about racial privilege, for example, get derailed by a conservative pointing out that there is white poverty too, or something along those lines. It's not necessarily inaccurate in a vacuum, but it's an argument that is proffered in bad faith to deflect from the idea that systemic injustices exist and must be addressed as such. So the Court is relying on this idea that there's no meaningful correlation between impoverished people and impoverished school districts, and I think the bottom line there is, are you fucking kidding me? That can't be the whole thing here.

0:15:08.0 Rhiannon: Right, right, exactly. And I think that the benefit of hindsight has this kind of being like, this is an absurd holding but definitely in line with conservative ideology. And now we look at it as if this holding maybe was predictable, but at this time, in the early '70s, we are just on the tail end of the Warren Court era, and there had been some Supreme Court cases before this that seemed to indicate that poverty could be ruled a protected class at the Supreme Court. There were a couple of cases in criminal law, for instance, in 1956, the Supreme Court held that states have to provide poor defendants with free copies of their trial transcripts so that they could appeal their cases, and they said in that case, "In criminal trials, a state can no more discriminate on account of poverty than on account of religion, race or color."

0:15:57.5 Rhiannon: A famous case from 1963, Gideon v. Wainwright, that's the case that ruled that the Sixth Amendment requires a state to provide you with an attorney if you couldn't afford to hire one, and it was outside of criminal law, too. A case in 1966, just a few years before this one, Harper v. Virginia Board of Elections, that case struck down the use of a poll tax in state elections, and that case said that a state "Violates the Equal Protection Clause whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth." So this claim in Rodriguez that the families are making from the poorer school district, this ask of the Supreme Court, it's not out of left field, there was solid precedent to point to and say like, look, the Civil Rights Movement opened up the stark inequity this society is built on, and we're continuing to push the law in new ways to remedy those kinds of injustices.

0:16:57.6 Michael: Really quick, listening to you talk, Rhi, just reminded me, the majority relies on this student note in the Yale Law Journal, which basically said that there is actually not freely a connection between poverty and living in a poorer district for the purposes of this litigation. And I looked up the note, I was curious, I wanted to know who wrote it. I wanted to say their name on the podcast and talk about what sort of broken soul they must have that they felt the need to do this when they were in law school. It's unsigned, multiple authors, apparently. But what I thought was interesting was the very first sentences were, to your point, Rhi, and that the note was motivated by a concern that the Supreme Court was gonna do this, and they were talking about all these court cases that were suggesting it was gonna do this and decided to... The district court case, and the fact that it was probably gonna be accepted by the Supreme Court, there was a real fear amongst conservative ideologues that this was gonna come out the way we think it should have come out.

0:18:02.2 Rhiannon: Right, right. Alec, I know you've written and thought a lot about how lawyers and judges are actually a big part of the problem in sort of creating the injustices in the law and then perpetuating them. And I just wonder if you have any thoughts there about lawyers writing to the Supreme Court basically and saying, "Don't decide it this way, we're concerned about it."

0:18:21.9 Alec Karakatsanis: There's a constant dialogue between conservative future law clerks at elite institutions like the Yale Law Journal and the Harvard Law Review and their future employers in a year or two, there's a constant set of institutions and getaways and retreats and other sort of formal and informal mechanisms by which all of these people are constantly talking to each other and warning each other about the things that are gonna be threatening the conservative legal movement. It's something that people on the left just have not created, a whole infrastructure of accountability really is actually what it is. You cannot succeed in the conservative legal world without demonstrating for years your fealty to a certain set of principles, such that when you make it to certain positions, everybody knows that you're gonna toe the party line.

0:19:06.8 Alec Karakatsanis: But I think what's much more profoundly interesting to me about this case, and I liked what you said, Rhi, at the very beginning about how there's something... The opinion highlights how beautiful the law could be. It could have been a force for guaranteeing that children receive meaningful adequate resources for education, and instead, it's just yet another in a long line of cases by the Court that furthers the dominant hierarchies of power and wealth in our society.

0:19:34.1 Peter: Yeah. It reminds me of an aspect of the opinion, which is their discussion of the fundamental right to education. The analysis here can be pretty complex but generally speaking, the Court would look at the Constitution and our history and what society puts value in and decide whether or not that is a fundamental right under the Constitution. And what the court says is like, look, education is important, right? Of course, who could deny it, but nothing in the Constitution implies that a right to education exists, a fundamental right to education. In the Court's view, they can't say something is a fundamental right unless the Constitution sort of implies that it is. And what the plaintiffs had argued was, "Well, look, we've got rights to free speech and rights to vote, doesn't that sort of require implicitly a right to education for them to be meaningful?" Right, surely, an informed citizenry is really the goal here.

0:20:28.9 Rhiannon: Right. And meaningful civic engagement, that's only possible through an educated public.

0:20:34.4 Peter: Right. And the Court just outright rejects that and they literally say, "Well, look, you have the right to speak and vote, but that doesn't mean you have the right to be particularly informed when you do." And I gotta say that sounds wrong, that sounds like maybe it's undermining those rights a little bit.

0:20:50.7 Michael: That'd be right.

0:20:51.5 Rhiannon: Yeah.

0:20:52.4 Peter: I think it's important to say here. A little note about Lewis Powell, Justice Lewis Powell, who's writing this opinion. He used to work in education in Virginia prior to the Supreme Court, and he traveled to the Soviet Union, and upon his return was very terrified of the prospect of centralized education, and spoke to various different organizations about that. And so what he is framing as this sort of strict constitutionalist interpretation of the right to education or of the Equal Protection Clause's protection of indigent people, is in fact actually really colored quite heavily by some red scare alarm-ism that goes unspoken, and I just think it's something that when you're reading the opinion, especially if you're just... For example, in law school, reading the opinion, you would never like [0:21:45.7] ____ but this guy is absolutely being influenced by his perception that if you start to have a centralized system of education, down the road somewhere is communism.

0:22:00.0 Rhiannon: Right.

0:22:00.4 Alec Karakatsanis: Right. And I think there's another really interesting thing going on here with the opinion, which is it does a very typical conservative move, where it says something like, "Well, if we grant that education is a fundamental right, what about the need for decent food and adequate shelter?"

0:22:14.1 Michael: Where does it stop?

0:22:15.0 Alec Karakatsanis: Because you couldn't have a good education if you're starving your child, and so it's... One might think, well, yeah, what about those things? Those things should be fundamental rights too, right?

0:22:24.4 Rhiannon: That sounds important as well, yeah.

0:22:26.5 Alec Karakatsanis: And in the Supreme Court's view, the fact that there might also be other things like shelter and housing and clothing that are fundamental rights becomes a reason to reject education as a fundamental right. And this is what I, in our work, all over the country, all the time, I call the McCleskey problem, so I'm glad you guys covered McCleskey on your other podcast. This problem for me is really the guiding principle of much of the Court's modern jurisprudence, and that principle is, simply stated, that if a case threatens the existing distribution of wealth or power or the functioning of the mass incarceration bureaucracy, if a case threatens that too much, like McCleskey was really threatening the idea that we could even have this massive system of injustice because if we took racial disparities seriously, we'd have to re-think how we do everything.

0:23:14.5 Rhiannon: Exactly, yeah.

0:23:15.0 Alec Karakatsanis: This case is threatening so much about how our society is structured, because if you recognize poverty as a suspect class, that the government actually has to address and do something about in real ways for people's lives, it would totally up-end the distribution of wealth in our society, and of course, the Court's not gonna allow that because the Court sees itself much more as an agent of stability and maintaining certain hierarchies of wealth and power and various norms than it does as an agent of social change.

0:23:42.8 Michael: Yeah, that's right, I think that's right. And Marshall, Justice Marshall wrote a dissent in this case that I thought was fantastic and I was struck reading it.

0:23:50.8 Peter: Before... Yeah, before we get into that, can we just take a quick break?

0:23:54.8 Michael: Alright.

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0:23:58.6 Peter: Hey, folks, thanks for listening to 5-4. If you've already joined us on Patreon, we hope you enjoyed our premium episode about Antonin Scalia and our Zoom events and the various antics going on in our Slack. If you haven't joined us yet, come see what you're missing. Got special premium episodes, generally gonna be bigger picture stuff, more thematic episodes about the Justices, about things like originalism and textualism and the occasional really important case, and maybe just us reacting to the news in real time, sometimes, just I'll read a newspaper out loud, and that'll be a whole episode. Discounts on merch, membership, in our 5-4 Slack with the hosts and access to exclusive events. We've already had a Q and A with our listeners, we've got more planned of all shapes and sizes. You can support us by visiting patreon.com /fivefourpod, that's fivefourpod all spelled out. Thanks for supporting us. And thanks for listening.

0:24:58.2 Rhiannon: Thank you so much.

0:25:00.1 Michael: Yeah, thanks everybody.

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0:25:09.2 Michael: So Marshall's dissent, Justice Marshall wrote this dissent that I think was very comprehensive.

0:25:14.8 Rhiannon: Another dissent for the ages. It's a good one to go read if you haven't read it before.

0:25:18.7 Michael: Yeah, it very patiently and sort of methodically picks apart like every single argument the majority makes, and in the process I think reveals how sort of impoverished the majority's vision of the Constitution is. And so, Alec had mentioned that this is sort of a very formal and technical vision, and I think that's how I learned equal protection, but my professor called it the Equal Protection Architecture, because it's such an intricate analysis, for my exam, I made a flow chart.

0:25:52.3 Peter: Right, right, right, yeah.

0:25:53.4 Michael: It's crazy. And I think this case exemplifies how rigid that is and how much gets left out of that sort of rigid approach, whereas Marshall's dissent is far more nuanced, far more ambitious and is thinking very seriously and engaging very seriously with the individual's interests at stake and the material reality of the plaintiffs and the people in this country. And I think he has a case also that like this isn't how the Court had been treating these cases prior. He goes through and he shows that it hadn't been so rigid, this rigidity is sort of the Court's own invention in this case. Their hands aren't tied, they are tying their own hands.

0:26:38.8 Rhiannon: Yeah, exactly.

0:26:39.4 Michael: And the other thought that kept coming to me is the historical moment that this case came down, Marshall mentions multiple times, Rhiannon, you mentioned earlier about minorities being more likely to live in these poorer districts. Marshall cites to Brown v. Board of Education multiple times and I kept thinking about all the racial stratification that sits beneath this. In 1973, we're 15 years into white flight, the mass exodus of white people from desegregated urban areas in response to the Civil Rights Movement, heading to very homogenous white suburbs and rural areas. We're four years removed from the passage of the Fair Housing Act.

0:27:21.8 Michael: So the effects of red lining are present in full force, which if you're not familiar with, that was a practice of literally drawing red lines around minority neighborhoods on maps and making sure those areas got fewer government benefits, were left out of private sector benefits like mortgages and had the effect of severely depressing real estate values and overall wealth of minority populations. And so of course in a case where you're looking at education being dependent on the gross property wealth of a given district, all this stuff matters, all this stuff is in play and it's all hidden, it's all behind this sort of veil and it's hard not to just see this as one piece in this larger holistic project to recreate the status quo ante before Brown v. Board, before the Civil Rights Movement.

0:28:16.6 Rhiannon: Yeah, absolutely.

0:28:17.8 Michael: And it makes me angry.

0:28:18.3 Rhiannon: Yeah.

0:28:19.2 Peter: Something we haven't talked about in a good 50 episodes or so is affirmative action and it's back center of mind for a lot of people because there is a case pending before the Supreme Court now that many people think will be the end of affirmative action. And the basis for that will be the Equal Protection Clause, and it's just mind-boggling to take a step back and think that there is this framework that requires equal protection under the law and it is currently doing nothing to protect the poor and might end up doing quite a lot to protect wealthy white students from college admissions. The scope of the failure of the Court is just unbelievable on this front. Not only has the prospect of an Equal Protection Clause that could foster a more just world been rejected, it's been turned around and weaponized on behalf of the privileged classes.

0:29:16.6 Rhiannon: Yeah, I heard one time this professor over at Rutgers, Chenjerai Kumanyika. He referred to "the economic design of the Constitution" one time and I think that's so important to talk about. He was saying on the one hand, we know the Constitution is far from this perfect ideal document, we know the founders were slaveholders, right? We know this is fundamentally about racism in a lot of ways. But the thing about sort of just brushing it off as such, about saying, oh, yeah, they were evil and it's all evil, is that there's a sort of jurisprudential buy-in to the idea that as history progresses, things get better naturally and organically. Slavery was outlawed 100 years after the founding. So that mortal sin of how the nation was started, that's remedied, it's gone, but what that does is allow us to not really be critical of the intention of the Constitution, the sort of granular machinations of our legal structures, the fact that this was a fundamentally capitalist document, the Constitution was.

0:30:23.2 Rhiannon: And that takes away class analysis and recognition of the context in which this document, the Constitution is being drafted. This is a context in which the people who wrote that document are people who owned human beings as property and they wanted that protected. This is a context in which it was important to financial elites at the time to create a new federal government that could tax and further entrench creditor and debtor classes. These are people who were educated and wealthy as a direct result of land and property ownership and who saw themselves as better for that very fact, better morally, better genetically, better fundamentally than everybody else and it's an approach of deep skepticism for popular government, for the common person, and that was written into the Constitution.

0:31:14.8 Alec Karakatsanis: And I think that point is absolutely vital to dwell on for just a second. And to that end, I think it's really important to note two facts about the history of the Supreme Court and this opinion in particular. Number one, when I was in law school, I went and I wrote a paper and I went and read all the equal protection cases from the first 70 years after the 14th Amendment was passed and something fascinating shows up when you do that. They struck down 232 state laws under the Equal Protection Clause. Almost all of them were rulings in favor of corporations. I think it was something like 179 of them were in favor of corporations and 55 of them were in favor of the booming railroad industry at the time. Only nine cases did they rule in favor of black people, even though the whole point of the Equal Protection Clause, we were told, was to change the relationship between black people and the people who had owned them. Seven of those nine cases in favor of black people were on the single sort of technical issue about jury selection.

0:32:17.8 Alec Karakatsanis: And there were no cases in favor of women, for example. So if you look at the entire history of the Supreme Court, it has always used formal, legal, whether it's amendments or statutes or laws or rules, to preserve the basic distribution of power. And so this is a fight that we have to have I think outside the walls of the Supreme Court and then I think the thing about this opinion which is just funny in light of that history, is it was written by Lewis Powell who just two years prior to that wrote the famous Powell Memo, which if you haven't seen, I suggest you Google and read. He was a very famous corporate lawyer and right before coming on to the Court, he wrote a strategy document for how large businesses could preserve and ensure the survival of American capitalism. And it was a call to arms for corporations to dominate the political system, to assert their power, to increase inequality and to stamp out any notion of equal rights for people, and it was really a stunning document and then two years later, you have him writing this case for the US Supreme Court.

0:33:21.7 Peter: It's interesting that you mentioned the Equal Protection Clause being used in favor of corporations so many times. I've read more than one piece of academic literature on this that was relaying that basic fact, but framed as we should really be grateful for our history of corporate personhood, because without it, the Equal Protection Clause would have never developed. And you're like, "Well, [chuckle] if we're going to be idealistic, surely, surely we could go another route with this."

[chuckle]

0:33:53.6 Rhiannon: That's so fucked.

0:33:56.8 Michael: That is... That's like back almost a year ago now. There's a basketball player, Rudy Gobert, who famously was like, "Oh, I don't think COVID's a big deal."

0:34:08.5 Rhiannon: Right. You're right.

0:34:09.1 Peter: Yeah, coughed into a mic.

0:34:09.9 Michael: He purposely coughed into a mic, and hit it and stuff. And then it turned out he had COVID and the NBA had to suspend the season, and then a lot of states started taking COVID seriously. And there were people who were like, "Look, we should all be thankful that Rudy did that."

[laughter]

0:34:24.3 Michael: Because look how that made everybody take COVID seriously.

0:34:28.6 Peter: If any of our listeners are wondering how into basketball Michael is, now you know. He hears about the Equal Protection Clause's history, and he's like, I've got a great recent NBA metaphor.

0:34:39.1 Michael: Yes. [chuckle]

0:34:39.5 Alec Karakatsanis: I think the opinion also does something else which is very typical of conservative judges, which is that it doesn't actually answer the question of whether poverty is a suspect class. It dodges that question in the way that Peter was describing earlier. However, Powell and his other conservative comrades, I use that word because Powell would be so offended by it.

[laughter]

0:35:02.8 Rhiannon: Right. Yeah, yeah.

0:35:04.2 Alec Karakatsanis: His conservative comrades on the Supreme Court just a few years later issued another opinion where they cited San Antonio, but said something softer like, "We have never yet held that poverty is a suspect class under the Equal Protection Clause." And then a couple of years after that, they're just citing to those two cases, they say poverty is not a suspect class. And so in this way, they manufacture a holding, which now when you think about it, like in our bail cases around the country, conservative judges in almost every case will cite San Antonio v. Rodriguez and say poverty is not a suspect class, and so there's no problem with keeping a human being in a cage just because she can't make a payment, and they cite that case.

0:35:49.0 Alec Karakatsanis: And as Peter said, they never say that in this opinion, because there's no way to argue that that's consistent with our values. And they couldn't come right out and say it, so what do they do? They just talk around it and then later they say that they said it in the past and it becomes this historical truth, and then when you go back and peel away all the layers they actually never have.

0:36:08.1 Rhiannon: Yeah, exactly.

0:36:09.2 Michael: I was just curious, and I looked at my con law outline and I had a lot of case briefs and some of them were more detailed and some were less, but for this case, it just said, "Education, not a fundamental right. Poverty, not a protected class." [chuckle] That's it. Two little lines, and that was it. That was... I was like, "This is all I need to know about this case."

0:36:25.1 Rhiannon: Yeah, that's how it's taught. In preparation for this episode, I pulled up a couple of Law Review articles, and one of them, I just read it a couple of days ago, one of them literally said, "It is black letter law in the United States that poverty is not a protected class" and black letter law means literally written down, this is the law, right, and that's just not accurate.

0:36:47.4 Peter: Yeah, and I think it speaks quite directly to how legal formalism launders itself.

0:36:53.3 Rhiannon: Yes, yes. It's a fucking scam.

0:36:56.2 Peter: Every Supreme Court case is actually like 10 sentences long, but after every sentence are 10 citations. And if you're a layperson or a law student or a young lawyer, whomever, you might think that there is almost necessarily a lot of authority baked into each sentence because you see the citations that follow it. In reality, if you started digging through them, you would realize how few of them stand for the proposition that they are intended to stand for. But they are meant to give weight and authority to the statements of the Court and give legitimacy to the whole operation. The idea that you can build these precedents on top of one another with some accuracy and reliability, that idea is being laundered through this system of citation and reference. And just the way that it is presented to the reader, I think it's important to know, especially if you're a law student.

0:37:50.6 Alec Karakatsanis: I think that's one of the key ways in which the Court manufactures this thing called the rule of law. It makes people think that there is this rule of law that is historical and supported by the weight of so many smart people that have come before us who've thought about these things. And we're taught this idea that the common law is this great enterprise where the intellectual work of prior generations builds upon itself. And then you realize that actually many of the things that we take as settled law actually were never decided by the Court at all because it would be impossible to do consistent with our values.

0:38:25.8 Alec Karakatsanis: And this myth of the rule of law, when in fact what's going on is the law is being applied for some people against some people, some of the time, in some places, for some reasons. And throughout the history of this country, that is just deeply connected to white supremacy, it's deeply connected to empire, it's deeply connected to the worst aspects of our world, and it's laundered through these formalistic legal citations and these opinions. And that to me is one of the great tragedies of this case. It took what could have been a moment where we meet our rhetoric with actual commitments to the concreteness of what it might take to help human beings flourish. We instead use it as the seminal case now, which establishes that the government has no role to play in equalizing the distribution of wealth in our society.

0:39:13.9 Michael: That's right. And I do think it's also, for all these reasons, a great example of what I think is a real failure of the mainstream legal left in legal academia, and it's this total just lack of ambition. Mainstream conservative legal thinking is constantly arguing for overturning cases they dislike. They're constantly twisting precedent, like we just described in regards to this case, to fit their own ideological needs. We discussed that process as well in our Roe v. Wade series. You see it all the time. I'm not even sure if there is a mainstream liberal or left legal project beyond maybe something like, let's try to hold on to some good decisions from the '60s. But if there is one at all, it's more interested in process-based issues, in preserving institutional legitimacy, than it is with imagining something bolder and more value-centered jurisprudence, that takes on directly cases like this one and all the awful cases we talk about.

0:40:21.5 Alec Karakatsanis: Yeah. Even the people that are on the Court that are called liberal, if you look at the last 50 years, they're mostly white, they're all fairly wealthy. First of all, they're lawyers, so they're coming from a very particular social class, with a very particular perspective. There's not a real left on the Court, or even in legal academia, because it's not really a sort of working class intersectional analysis, it's not coming out of real struggle. And so these are the representatives of the quote unquote left are mostly corporate lawyers and former prosecutors, and that has real consequences in the actual work that they do on the Court. And so we have a conservative movement that is deeply committed to very right-wing values and a quote unquote liberal movement that's mostly happy with the way our society looks, and it's just trying on the margins to preserve some of the ways in which our society is a little bit less cool. And so, we need a real movement that actually creates a real left.

0:41:20.3 Rhiannon: I think this is a good place to turn, Alec, because I am such a follower of your work and the litigation that you're bringing across the country. I think it's a really good way. We keep talking about re-imagining the world where poverty is a protected class, where the Supreme Court chose differently, in this case, in San Antonio v. Rodriguez, or a world where we do have a legal left movement that comes out of struggle, that is pushing for better and more just outcomes. And so I'd love to give you an opportunity, Alec, to just talk about the work you're doing in the cash bail area, challenging cash bail and talking about what the 14th Amendment means in that context and what...

0:42:01.7 Peter: Or could mean in that context.

0:42:03.0 Rhiannon: Right. Or could mean in that context, and how you see the sort of proactive construction of a better 14th Amendment.

0:42:12.0 Alec Karakatsanis: Wow. Yeah, that's tough. It's a hard question to think about what could be a better 14th Amendment when you look at what our judicial system looks like right now. The judicial system is dominated by people who have a very different view of the Constitution and what it could mean, and unless pretty radical change happens, we are gonna have this judicial system led by these people for the next generation or two. It's a painful exercise, thinking about what might our legal system do differently. We're litigating all over the country in many issues, but this one issue that's gotten a lot of attention is the constitutionality of the American money bail system.

0:42:56.4 Alec Karakatsanis: And really, all over the country, when people are arrested after being accused of a crime, they're told they're free to go home to their children and their families, their jobs, their school, their church, their home, if only they had cash. If they have enough cash, they can get out of jail. And not only that, but this country has privatized that system, so it's dominated by a multi-billion dollar, for-profit, commercial money bail industry, which exists only in the United States and the Philippines, a former US colony.

0:43:23.6 Alec Karakatsanis: And the idea has led to extraordinary discrimination on the basis of wealth. So there are right now about 400,000 human beings in Coronavirus-infested jail cells, in horrific conditions, where they're likely to be physically and sexually assaulted and denied adequate exercise, food, medical care, mental health treatment. The conditions inside our cages are absolutely unspeakable. I was tweeting out over the last few weeks about what it is like to be in a jail cell in Texas right now, and the unspeakable pain of being forced to be laying on top of each other, people with feces and mold and mucus and blood everywhere, and the lack of water, and this is what's going on all over the country, in every jail that we go into.

0:44:14.6 Alec Karakatsanis: And that is a consequence of the Supreme Court's decisions that people can be caged prior to trial and the decisions of courts all over the country that people deserve to be in a cage just because they don't have cash. And so we've been challenging that system under the Equal Protection and Due Process clauses of the 14th Amendment for the last five or six years, and I think the cases will probably work their way up to the Supreme Court in the next six months or a year.

0:44:39.7 Michael: If you need any help on the brief...

[laughter]

0:44:43.2 Michael: I like that laugh. The first time Alec laughs.

0:44:46.4 Rhiannon: He's like, "Oh, yeah, we're good, bro. Yeah, it sounds real good."

0:44:51.1 Alec Karakatsanis: We need all the help we can get. We're not bringing these cases as lawyers, thinking that winning in the US Supreme Court is a panacea. The Supreme Court long ago held that police need probable cause to stop someone, arrest them and search them, and yet that happens millions of times a year, people are arrested and searched without probable cause. The Constitution is not self-executing, and so we're not under any illusions that winning in the Supreme Court would really mean anything.

0:45:16.2 Alec Karakatsanis: I think we see these cases more as a way of changing the narrative in our society, in our culture, about what these institutions do, what they are, undermining people's faith in them by asking a simple question: If Sandra Bland can be left to die in a jail cell because she couldn't afford a few hundred dollars, if Kalief Browder spends years on Rikers Island because he can't pay cash, if this legal system is making the decision about who's in a cage and who's free with their family, on the basis of how much cash is in their pocket, what else is it doing? And how can we trust anything that it's doing?

0:45:49.0 Alec Karakatsanis: I see these cases as undermining some of the faith that the legal establishment bureaucracy needs to survive and to keep inflicting all this harm, and so I think these cases are a very small part of a much broader movement that is really led by the people that are most harmed by these systems, trying to change the way we all think about them, rather than depending on one particular ruling from one particular court.

0:46:12.4 Michael: Yeah.

0:46:12.7 Rhiannon: Yes.

0:46:13.4 Michael: Beautiful.

0:46:14.6 Peter: We've often talked about the... And talked on this episode about the turning point of the Court's jurisprudence that took place, primarily starting in the 1970s. The prior Court, though, the Warren Court, had sort of begun the process of embracing, enfolding more modern understandings of equality, modern understandings of social science into their jurisprudence, and when the conservatives regained control of the Court in the '70s, they started to push back against that. And Justice Powell writes about this in expressly reactionary terms, basically saying, as Alec mentioned, if we change this, how much change is down the road? Just inherently taking the position that change is dangerous.

0:46:52.4 Peter: It can't be overstated how badly the last 50 years of jurisprudence and legal theory poisoned the minds of everyone in our profession. And I think this discussion was valuable, because if you are learning the law in America, how you conceptualize it is colored by the narrow, formalistic framework that is built atop the foundation of reaction that happened in the early 1970s, especially. The conservative view of poverty has always been, in some form or another, that it is inevitable that society will divide into winners and losers and there is nothing you can do about that. But the law doesn't need to accept that. The law doesn't need to accept the status quo. The law could protect the weak, it could force the status quo to justify itself.

0:47:40.6 Peter: Lawyers would tell you that having poverty be a protected class is a pipe dream. And my response to that would be, we live in a world where the Court has, just for example, picking one thing, stretched itself remarkably thin to protect the rights of corporations to engage in arbitration. You shouldn't feel like a dreamer for imagining a world where it gave poor people the right to go to better schools. That world is right there in front of us.

[chuckle]

0:48:06.7 Rhiannon: Right.

0:48:07.3 Peter: It's not far away. And a lot of what Powell does in this opinion is sort of devolve into abstraction. But this isn't a particularly abstract issue. Funding education is quite simple. It drives results up, it increases graduation rates and decreases dropout rates and increases wages for adults who had higher levels of funding. Those aren't abstractions. Those are real, concrete ways to help poorer students across the country. And the idea that this is somehow out of reach, out of bounds for a constitutional analysis is ridiculous.

0:48:42.7 Rhiannon: It's a choice.

0:48:44.9 Peter: It is.

0:48:45.5 Alec Karakatsanis: One final point as we've been talking that just occurred to me, and there's all these debates now about to what extent more spending on education gets results. And I think that one of the things that I've noticed from conversations all over the country with our clients and their children and families is that schools in areas that have trouble meeting basic funding, they are the first to lose things like music and theater and sports and poetry and other kinds of experiences that I think are very central to the cultivation and development of not only a flourishing life and a beautiful life, but also a life that can dream and that can vision out a different world, and a life that resists and understands how to communicate in ways that are maybe different from standardized tests.

0:49:43.5 Alec Karakatsanis: And I think that one of the projects of both liberal and conservative elites in this country has been to starve the education system to a point where all we can think about with the education system is meeting very minimal standards and needs, and instead of thinking about, how do we create incredible people who can dream and who have all of the basic needs met so that they can do what makes all of the things that many very privileged people take for granted about the best aspects of life? Totally beyond my area of expertise and probably very silly, but it strikes me that a lot of these cases and their discussions about this have created a world that is so starved for basic resources that we're not even fighting about the really profound things that we really should be talking about with education, and we're stuck fighting on the most basic things that you would think and hope that a civilization like ours would have confronted a long time ago.

0:50:42.3 Rhiannon: Yeah.

0:50:42.5 Peter: That's right.

0:50:42.9 Rhiannon: Gorgeous.

0:50:44.8 Peter: Yeah, it's a good place to leave it. Alec Karakatsanis, thank you so much for joining us.

0:50:49.0 Michael: Yeah, thank you.

0:50:49.7 Peter: Anytime you feel like coming back, let us know.

0:50:51.9 Alec Karakatsanis: Careful what you wish for.

0:50:53.2 Peter: That's what Josie Duffy Ric‪e said.

[chuckle]

0:50:56.1 Peter: We can stop being on this podcast so much if we can start cycling in more guests.

[laughter]

0:51:00.2 Alec Karakatsanis: It was really fun. Thank you all.

0:51:02.8 Peter: Next week, Toyota v. Williams, a case about disability law. You know where this is going. It's not good.

0:51:11.2 Rhiannon: Yeah.

[chuckle]

0:51:12.6 Peter: Follow us on Twitter @fivefourpod. Subscribe on Patreon, patreon.com/fivefourpod, all spelled out. Tons of benefits, premium episodes. Access to our Slack, where you can chat with us and our friends. Subscriber-only events, we've just had a really, really successful Zoom Happy Hour and Q&A.

0:51:34.3 Michael: It was. It was a lot of fun.

0:51:35.5 Rhiannon: Yeah, that was super fun.

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0:51:41.4 Michael: Yes.

0:51:44.8 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward, with editorial support from Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.