Jon Wiener, host: From The Nation magazine, this is Start Making Sense.  I’m Jon Wiener.  Later in the show: The Supreme Court, in the term that just ended, was not completely terrible –in fact it surprised us all — by doing some good things. David Cole will explain what happened – and why–he’s national legal director of the ACLU.  But first: Cornel West is running for president – as the Green Party candidate. But he ought to run in the Democratic primaries.  D.D. Guttenplan will explain why – in a minute.

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JW: “Cornel West should run as a Democrat, not as the nominee of the Green Party.” That’s what The Nation’s editor, D.D. Guttenplan says, along with Bhaskar Sunkara, The Nation’s president. Don’s books include American Radical: The Life and Times of I.F. Stone, also The Nation: A Biography, and The Next Republic: The Rise of a New Radical Majority. We reached him today at home in Brooklyn. Don, welcome back.

D. D. Guttenplan, guest: Great to be back, Jon.

JW: Some of our friends say Cornel West’s announcement that he’s running for president is not serious. It’s just an ego trip of some kind. You open your piece, “Cornel West is a very serious man.” Please explain.

DDG: Well, quite simply, Cornel West has been involved in politics, however you call politics, for a very long time. He’s also a major public intellectual. In fact, as we say in the piece, aside from Noam Chomsky, it’s hard to think of another public intellectual with Cornel West’s breadth of engagement or political experience. He was advisor to the Bill Bradley campaign in 2000. He was a very important surrogate and endorser of Bernie Sanders in 2016 and 2020; and was a supporter of Barack Obama in 2012. So, he’s someone who has a track record in electoral politics, although not as a candidate, and he certainly is someone who deserves to be taken seriously.

JW: Cornel supported Biden in 2020. His argument that year was that “A mediocre, milquetoast, neoliberal centrist is better than fascism, and a fascist catastrophe is worse than a neoliberal disaster.” Now, he says, “By refusing to speak to the needs of the poor and working people, the Democratic Party helps to facilitate and enable the Trumps and DeSantises.” What do you say to that?

DDG: I think he’s absolutely right. Thanks in no small measure to Bernie Sanders, Biden ran on an incredibly progressive platform in 2020, and as we know, he defeated Trump. But his first term has matched every success with a disappointment, because let’s remember, the Biden administration did terrific things to end childhood poverty in America, to support people’s incomes during the COVID pandemic, but let many of those measures lapse. He advocated climate and industrial policy initiatives with the Inflation Reduction Act, but also approved a massive new drilling project in Alaska. The choice between four more years of Biden or Donald Trump is not difficult, but if ever there was a president in need of a left opposition, it’s the centrist now in the White House.

There is a great deal of disappointment in the land. David Dayen makes a very important argument in The Prospect, which is that you can’t appraise the utility of improving people’s lives as a means of winning votes unless you actually improve people’s lives. The Democratic Party has delivered a great deal of rhetoric under Joe Biden about delivering people’s lives, but time and again, it has failed to deliver. In that sense, Cornel West is absolutely right. He’s also right, I think, to point out the danger of this kind of cynical politics, which is that it leaves people disillusioned with government. It leaves people disillusioned with the potential for social democratic change. As I’ve written in The Nation before, if you close the door to a populist left and you leave the door open to a populist right, you are walking on very dangerous ground.

JW: Yet, Cornel’s plan is to run against Biden as a third party candidate for the Green Party that is itself helping to facilitate Donald Trump or whoever the Republican candidate might be.

DDG: Actually, that’s not quite my view, Jon. My view is that it is, to pitch it at Dr. West’s level, an “expense of spirit in a waste of shame” to run as a Green Party candidate.

JW: Nice.

DDG: That Democratic platform is available and is the best public platform for raising policy issues, and that if he is as serious as we hope he is, he ought to run as a Democrat, that failing to run as a Democrat lays him open to exactly the kind of condemnation you laid out, which is, this is a self-indulgent ego trip at best and at worst, a vote sucker in the general election, which may enable a Donald Trump to squeak past. So, that’s why we think he should run as a Democrat, but that’s different from saying that what he’s doing now is preparing the way for Donald Trump. I think what he’s doing now is preparing the way for his own political irrelevancy.

JW: Cornel, as you say, worked hard to elect Obama, but our colleague, Joan Walsh, pointed out at thenation.com, once Obama became president, Cornel called him, “A Black mascot of Wall Street oligarchs” and “a Black puppet of corporate plutocrats.” He went on to claim that Obama was afraid of, “free Black men,” thanks to his white ancestry and Ivy League education. I think Black voters who know those quotes are unlikely to vote for Cornel in 2024, and it casts a shadow over his present campaign, seems to me.

DDG: Again, we’re going to have to differ, Jon. After all, Joan Walsh is the person who thought that Black voters who knew that Hillary Clinton had described young Black men as super predators and had rubber-stamped her husband’s crime bill were going to nonetheless choose to vote for Hillary in 2016. I think Black voters are as discerning as any other voters, and they’ll decide whether Joe Biden or Cornel West speaks to their interests on the issues. I do think that Cornel West’s – among his great talents – is a talent for pungency of expression, which you and I as fellow writers can only envy.

JW: Yes.

DDG: That doesn’t mean he’s always on the money.

JW: Yes.

DDG: But certainly, he has a way of putting things that sinks in and lets you remember it and that’s yet another reason why I think he would be an adornment to the Democratic primary debate stage.

JW: In 2016, Cornel worked hard again for Bernie in the primaries, and then switched his support to Jill Stein rather than Hillary in the presidential race. The latest news on this front is that this week, Obama strategist David Axelrod compared Cornel West to the Jill Stein campaign of 2016 and reminded us that some people at least have blamed the Green Party 2016 campaign for splitting the vote for Hillary Clinton in key electoral states. Jill Stein did win more votes than Trump’s margin of victory in Wisconsin and Michigan and of course, if Hillary had won Wisconsin and Michigan, she would’ve become president. But of course, that argument assumes that people who voted for Jill Stein would’ve voted for Hillary if Stein were not in the race. But of course, they voted for Jill Stein because they did not want to vote for Hillary.

DDG: Well, that’s correct, and the only people who really make that argument regularly are the Hillary Clinton supporters who refuse to look in the mirror and acknowledge what a terrible campaign she ran, including failing to actually campaign actively in Wisconsin and Michigan, and also the many reasons why she was an awful candidate at that moment. I am not a fan of spoiler candidates.

If it comes down to the choice between Donald Trump and Joe Biden, I will vote for Joe Biden just as I did in 2020.  But that doesn’t mean that Joe Biden doesn’t need a hard shove to the left, both for the good of the country, because right now, he’s running a Rose Garden campaign, which is not only uninspiring, but desperately depressing, but also for the sake of his own campaign because otherwise, as John Nichols has argued, we cede the spotlight to the Republicans during the entire primary sessions. If there’s no Democratic primary action, then as people become engaged with the election, all they have to do is try and figure out whether Ron DeSantis is better or worse than Donald Trump. That’s not a task I think anybody should be condemned to.

JW:  I think the best argument for Cornel running in the Democratic primaries is Bernie Sanders’ history as a candidate in the Democratic primaries. Bernie Sanders has never been a member of the Democratic Party. He always says he’s a Democratic Socialist, but he made that very bold decision to enter the Democratic primaries with his politics. I think we all agree that Bernie’s primary campaigns really did make the Biden presidency more progressive, and that’s the role that you and I are hoping that Cornel could play.

DDG: Well, yes, I partly agree. Today’s going to be a day of partial agreements, Jon.

JW: Okay.

DDG: I think if Cornel West only has the same influence that Bernie had, which is to say completely revolutionizing the Democratic Party platform, firing up the activist base, giving young people a reason to turn out and be excited and think about politics, that would be great. But I think there’s a difference between Cornel West and Bernie Sanders that cuts both ways. Bernie Sanders is a senior senator from the state of Vermont. He’s a very experienced legislator and he’s got a lot of savvy when it comes to Washington.

Cornel West is none of those things. On the other hand, Cornel West is a comparatively young man and he could actually become president. As Bhaskar and I argue in this editorial, that would be historic and we think he’d be a terrific president. So, running just to influence the debate may not be worth the candle. But nobody runs for president just to influence the debate. You have to have, as Barack Obama acknowledged, a certain kind of psychosis to think you can be president.  I would encourage Cornel West to entertain that kind of psychosis and see how far he gets.

JW: D. D. Guttenplan; you can read his editorial, co-authored by Bhaskar Sunkara, titled, “Cornel West Should Run as a Democrat.” That’s at thenation.com. Thank you, Don. It’s great to be partially in agreement.

DDG: Thank you, Jon. It always makes me feel better when we’re at least in partial agreement.

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Jon Wiener, host: The Supreme Court, in the term just ended, was not completely terrible. It surprised us all by doing some good things. For comment, we turn to David Cole. He’s National Legal Director of the ACLU and a professor at Georgetown Law School. He writes for The New York Times, The Washington Post, and The New York Review, and he’s legal affairs correspondent for The Nation. David Cole, welcome back.

David Cole, guest: Great to be here again.

JW: Before we talk about the Supreme Court term that just ended, we need a reminder about the term before this one, the one where they repealed constitutional protection for abortion. In that term, the Republican majority was so far to the right, that they left a lot of us thinking there was no limit to what they could do or would do. Precedent meant apparently almost nothing, and not just on abortion rights. Remind us about 2022 at the Court.

DC: So yeah, this was only the second term that you had the six to three Trump inflicted majority, and they threw off all constraints. The biggest one obviously, was the decision to overturn Roe v. Wade, to deny to half of the country, a right that they had enjoyed for 50 years. But they also struck down a century-old law in New York that required you to show a good reason to carry a gun in public.

They rewrote religious freedom jurisprudence quite radically. They struck down a rule put in place by the Environmental Protection Agency, that required producers of electrical power to switch to cleaner forms of energy on the basis of something, a newly-minted doctrine called the major questions doctrine. It was an extreme, extreme term, and I think many people coming into this term thought we were going to see more of the same.

JW: Turning to the term that just ended, I’d like to start with the good news, the surprises. The most important were on voting rights and gerrymandering, challenges to congressional maps enacted by Republican state legislatures after the 2020 census. Two big cases. In the first, Alabama urged the court to declare unconstitutional, a central provision of the Voting Rights Act. In the other, Republican legislators in North Carolina invoked this new theory of the independent state legislature, to argue they could override a state constitutional limit on partisan gerrymandering. Tell us about those two.

DC: The Alabama case was a case that we at the ACLU did with the Legal Defense Fund, and we won under the Voting Rights Act. We demonstrated that Alabama could have two majority Black districts, consistent with traditional districting principles. That it has a history of racially polarized voting, a history of discrimination in access to the electoral process, and therefore under the Voting Rights Act, it’s required to have two districts in which African Americans have a meaningful opportunity to elect candidates of their choice.

Alabama appealed and made some very extreme arguments, that even though the doctrine requires you to show that you could create a second majority Black district, you should have to make that showing without considering race at all somehow. You should just randomly show that you could make a second Black district. They argued that the statute should be read to be violated, only when the state is found to have intentionally discriminated on the basis of race, even though Congress had amended the Act in 1982 expressly to reject that intent test and instead put in a results test. They argued that the statute was unconstitutional under the 15th Amendment, even though it’s been in place now for about 50 years.

These were extreme arguments, but they got a stay from the Supreme Court of our win. That suggested that the odds were against us, and I think many people expected us to lose, many people expected them to adopt these kinds of colorblind theories of the Voting Rights Act, and they didn’t. We prevailed in a very strong opinion by Chief Justice Roberts.

The same thing was true with the second case you mentioned, Moore v. Harper, that involved partisan gerrymandering by the North Carolina legislature. Found as such by the North Carolina Supreme Court. Then the Republican legislatures of North Carolina went to the US Supreme Court and said, “Hey, because the elections’ clause of the US Constitution says legislature should set the rules for federal elections, we have the final say here. The state court cannot overrule a legislative line drawing exercise by the state legislature.”

JW: Let me interrupt to say that the implications for the presidential election next year were extremely disturbing.

DC: Absolutely, and for partisan gerrymandering, because the court has said already that the United States Constitution doesn’t impose a sort of justiciable constraint on partisan gerrymandering, but you can go to state courts to make that claim. That’s exactly what happened in this case. At the end of the day, the court rejected this independent state legislature theory and said, “No. State legislatures from the beginning are the creatures of the state constitution, and so of course they are constrained by their own state constitution, and state courts have an appropriate role to play there.” So those were two huge victories on racial gerrymandering and partisan gerrymandering. Again, everybody was surprised.

JW: And, the North Carolina decision means a lot more action is going to be happening in state Supreme Courts. And that makes our efforts to win elections for state Supreme Court justices, in the states where justices are elected, all the more important. Wisconsin recently provided a splendid example of how Progressives can mobilize to elect good state Supreme Court justices.

DC: Absolutely. And make no mistake about it, the right wing is putting a lot of money behind state court elections of state Supreme Court justices. People who care about civil rights and civil liberties, they really need to focus on these elections and make sure that when you vote, you vote like your rights depend on it.

The wins were not limited to voting rights. There were other significant wins. There was a challenge to the Indian Child Welfare Act, which is a law that seeks to keep Native American families together. The court rejected that challenge by a vote of 7-2. 

I mean, big picture, the three liberal justices on the court were in the majority in divided opinions, more often than Justice Alito and Justice Thomas.

JW: Now we turn to the bad news.  At the top of the list, you already mentioned affirmative action and college admissions; also student debt, also a first amendment right to discriminate against gay couples. Let’s start with affirmative action.

It’s important that there were some really devastating losses, and affirmative action is front and center. Diversity, which the court had always found was a compelling interest that justified the consideration of race as a factor in a holistic assessment of individuals for admission to school, was not sufficiently clear and precise to be a compelling state interest to justify that kind of action. Well, the court has recognized many compelling interests that are just as amorphous and difficult to quantify as diversity.

National security, that’s a compelling interest. But how do you quantify national security or integrity of the court? The court has previously said that integrity of the court is a compelling state interest. Those are not quantifiable. But nonetheless, the court has said that they’re compelling. In finding that diversity is, because it’s not quantifiable it can’t justify this action, the court makes no effort to justify its overturning of 45 years of precedent, the kinds of settled expectations that are in place. It just does what it does, because now it has the votes to do so.

My favorite was where they say, “Well, we always said it was going to be temporary,” and they point to a decision in 2003, Grutter v. Bollinger, a case from University of Michigan, which upheld affirmative action, but said, “We hope and expect that in 25 years, this will no longer be necessary.” So, that’s what they said. It was a hope. Hope and a prayer. But they said, “No, no, it’s a limit.”  Well, 2003 plus 25, that gets you to 2028.

JW: Yes, it does.

DC: Not 2023. So what did they do? They drop a footnote and they say, “Well, it may be 2023, but the students who are applying for next year’s admission will be the class of 2028.” I mean, that’s math for lawyers. Somehow that justifies the erasure of five years. No, what justified the erasure of five years is that they got three more votes.

JW: I want to ask you about one part of the Roberts opinion here, because it seemed like he did provide instructions for how schools could still consider race in the admission process. He wrote, “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise.” If kids write about their experiences of race and racism in their personal statement, that’s fine, and colleges can invite them to do that in their applications and colleges probably will. Of course, that makes the whole process more subjective, which I don’t really think is what the Republicans had in mind here. The majority also did not ban class-based affirmative action, programs giving preference to low-income applicants, first-generation applicants, or applicants from schools in low-income districts. How important are these other issues in the wake of what they did decide?

DC: Yeah, I think very important. I think that sentence you read may be the most important sentence in the decision, and it comes right out of the argument. At the argument, the first question that Justice Barrett asked the challengers of the affirmative action programs at Harvard and UNC was, “What about an essay?” I think Justice Kavanaugh may also have showed interest in that. And so, I think they needed to have that sentence in there to cobble together a majority, and it does leave open some consideration of race–as long as it’s very individualized and it’s tied to some characteristic, some race neutral characteristic like courage, or ability to overcome adversity or stick-t0-it-iveness, or whatever it may be. It can be considered.

Now, at the same time he says, “Now this doesn’t mean you can do indirectly what you can’t do directly.” And so I think there’s going to be a lot of litigation over whether that is in fact individualized, and whether it’s become a proxy for racial targets and goals and the like. It’s an important, very important caveat as is the caveat with respect to race neutral.

It means, as you know, in California, it’s been a long time that the voters have said ‘no’ to affirmative action. So to maintain any semblance of diversity, the California universities have had to look at a lot of other race neutral factors that are aimed at attracting a diverse class. Essentially, I think the court has said those are permissible, but they’re not holdings, and then there will be challenges coming down the pike.

JW: Of course, the overwhelming majority of students do not attend the elite schools that practice affirmative action. They go to colleges that admit most applicants or all applicants. The ruling on student debt in contrast affects a lot more people, 43 million people. Tell us about that one and about this major questions doctrine.

DC: Yeah, so this is that same doctrine that they newly minted last term to strike down the EPA rule. I mean, basically in this case, the question was whether President Biden had the authority under a statute that gave him in emergency situations the power to suspend or waive various student loan obligations. And so, on its face it said waive, that he had the power to waive, and so he exercised the power to waive. He waived it for 43 million people.

A textualist court, a court that is supposedly–this is what the conservatives say, they are textualist, “We are bound by the language Congress used, and we will enforce that, whether we agree with it or not.” A textualist would say, “Well, Congress said he could waive, he waived. That’s the end of the story.” But no, the court said, “Well, this is a major question because it’s new and big. Never before has a president waived this many debts on this kind of a scale. So it’s a new and big action. It’s a major question. We require Congress to be super clear, super specific about authorizing these kinds of actions. We’re not going to allow the president to do so on the basis of a term like waive,” which literally says he can do precisely what he did.

So it’s a very disturbing and at argument in that case, the whole question was simply whether “waive” meant “waive.” And yet you had people like Chief Justice Roberts saying, “Well, do you think it’s fair that the president waived the student debts for students who go to college, but not for students who developed debts while doing lawn care?” It may or may not be fair, but that is not the question before the court. The question before the court is, did the president have authority under the statute to do it? And the court said ‘no,’ even though the statute on its face said ‘yes.’

JW: Then there was the Colorado gay rights case, which involved a website designer who claimed she wanted to design wedding websites, but not for same sex weddings. Tell us about that one.

DC: For over a century, there have been public accommodations laws which basically say, “If you choose to open a business to the public, you have to serve the public.” And you can’t discriminate based on who customers are. Those kinds of laws have been around for over a century, including Colorado’s law, have been around for about a century. And over time, various businesses have said, “That violates my First Amendment rights.” And the court has always rejected those arguments. A law firm said it violated its first amendment to, not to associate with women, but to require it to recognize a woman as a partner in the law firm. A school and a college said, “Admitting Black students would violate our first amendment to choose not to associate with Black students and to choose to promulgate segregationist points of view.” And the court has always rejected those arguments.

And the reason the court has rejected those arguments is, the question is whether the government, whether the law is targeted at speech and designed to suppress particular conduct because of what it communicates, or whether the law is neutral as to expression and is aimed at some kind of conduct. If it’s the latter, if it’s a generally applicable law, if it applies equally to hardware stores and architecture firms, which are expressive, and bookstores which sell First Amendment protected materials, and it’s about discrimination against customers based on who they are, it’s not about what the book says or what the architecture’s design looks like. Then the courts have said, “The First Amendment does not give you a right to discriminate.” In this case, they turned that on its head and Justice Gorsuch wrote an opinion for the six Republican justices, saying ‘No. If you’ve got an expressive business and you object to the message that providing your service to a particular person or class of people would send, you get a First Amendment license to discriminate.’

JW: Justice Gorsuch wrote that, “If a website designer could be made to serve a gay couple, nothing would stop states from requiring a Muslim film director to direct a film with a Zionist message.” Well, we certainly wouldn’t want that.  But was that what was at stake here?

DC: No, absolutely not. And that’s a straw man. I mean, here’s the thing. Artists, film directors, writers, for the most part, they’re not public accommodations. I’ve written for pay for my entire career, and I write for who I want to write for, and I don’t offer my services to everybody. And so I’m not a public accommodation, I’m not a business open to all. And I can discriminate. I can decide I want to write only for Christian magazines, or only for Jewish magazines, or only for white supremacist magazines. I have that right. And the court, the public accommodations law, would not apply.

But if I take my writing skill and I say, “No, I’m not going to engage in this freelance enterprise. I’m going to open a business that serves the public, and I’m going to provide editing assistance across the board to the public.” Now, I can’t say, “We’re going to turn away. Jewish students need not apply.” So that’s the difference. The film director is not a business open to the public. But if he had opened a film studies department and offered it to the public, he could not say, “If you’re Jewish, don’t bother applying.”

JW: Big picture here: the court delivered many surprises this term compared to last term, and more bipartisan opinions. And a lot more protection for civil rights and civil liberties than anyone expected. How do you explain this shift?

DC: It’s anyone’s guess, but here’s my guess: protest matters. People responded to last term very loudly and very clearly. We were not happy that the court overturned a right that had been in place for 50 years for half of the country. We were not happy that the court made it easier for people to carry guns in crowded public places without any justification for doing so. We were not happy that the court really weakened the EPA’s ability to protect us from global warming and climate change. And there was tremendous criticism on the court, not just for the substance of those results, but for the way it got to those results. And the court’s legitimacy fell to the lowest it’s been all century. All century. And you started to see a lot more criticism of the court on all fronts, including ethics fronts, right? Justice Thomas has been not reporting about his various trips for a very long time, but suddenly now, there’s great focus on it.

And I think all of that shows that protest matters. I think the court hears it. The court recognizes that it’s power ultimately turns on its legitimacy and its legitimacy turns on its being perceived as an institution that does not simply engage in political power plays, but actually applies law, follows precedent and tries to do justice in a nonpartisan way. And so, I think this operates in a more subconscious way than a conscious way. But I think they pulled in the reigns a little bit this time and they picked their battles. Again, some very, I don’t want to underestimate the devastating losses, but at the end of the day, I think what it showed is we can push back. We can push back. And if we speak up, if our voices are heard, that can be a constraining factor on how even a six to three Supreme Court acts.

JW: Protest matters. David Cole is National Legal Director of the ACLU. He wrote about this year’s Supreme Court rulings for The New York Review. David, thanks for talking with us today.

DC: Thanks for having me.