On this episode of Our Body Politic, we focus on two hot topics in the news: the wave of white supremacist sentiments that has taken hold inside and outside of government, and the state of voting rights in America. First, Our Body Politic host and creator Farai Chideya speaks with Pulitzer Prize-winning journalist Wesley Lowery about his latest book,“American Whitelash: A Changing Nation and the Cost of Progress,” examining the “whitelash” to the notion of a “post-racial America” after the election of President Barack Obama. Then, Farai is joined by Tiffany Jeffers, associate professor of law at Georgetown Law and Our Body Politic contributor And Kimberly Atkins Stohr, senior opinion writer and columnist for Boston Globe Opinion, to discuss the latest Supreme Court ruling on voting rights, the legitimacy of SCOTUS, and President Donald Trump’s indictments, and how all of these factors may play a role in the 2024 presidential election.
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This is Our Body Politic. I'm Farai Chideya. In 2008, Senator Barack Obama was elected as the next president of the United States and, of course, the first Black American commander in chief. Some people saw this as a historic victory for what was called a post-racial America. But instead, President Obama's election incited a new wave of white supremacist sentiment both inside and outside of government. That's the opening premise of a new book by Pulitzer Prize winning journalist Wesley Lowery. It's titled American Whitelash: A Changing Nation and the Cost of Progress. Lowery, who won his Pulitzer at The Washington Post for the Fatal Force Project, which documents on duty police shootings, is currently a contributing editor at the Marshall Project and a journalist in residence at the Craig Newmark Graduate School of Journalism at CUNY. Thanks for joining us, Wesley.
Wesley Lowery [00:01:36] Thanks so much for having me. It's great to be here.
Farai Chideya [00:01:37] Yeah, it's great to talk with you. You know, let's talk about President Obama's election at the start. You name the surge in racialized violence immediately following the election as American whitelash. So what is “whitelash” and why did it happen at this time in history?
Wesley Lowery [00:01:58] Sure. So what we see and what we've seen in moments following the revolts of enslaved people, in the moments in the years following the Civil War and Emancipation and Reconstruction, in the moments following the civil rights movement, what we see is a backlash from the country's white majority. Right? By the way, is not just about Black and white. Right. We see this happening in moments when the country is changing demographically and when there are big amounts of immigration. And so we've seen this time and time again. What I was looking to write about here was actual violence. Right. Was this sense of that in moments when you have a hyper anxious and worked up and frustrated and scared white American majority facing what they perceive as advancements and therefore disadvantages for them of the Black or brown minority. What we see necessarily is an increase in violence and aggression, and that has real cost. They're real people's lives that are lost because of that.
Farai Chideya [00:03:08] One thing that strikes me is obviously notable is describing a lynching and shooting of Italians in New Orleans in 1891. And there have been many books about how different ethnicities became white. But it sounds like Italians in 1891 did not have a full entree into the world of whiteness in New Orleans. Tell us a little bit more about that case.
Wesley Lowery [00:03:36] I think it's important for us to remember that when we talk about whiteness or we talk about race, that race is a societal construct. It's not a biological reality. Right. And so I think that trips up a lot of people. Right. People don’t understand, well, how could the Italians have become white? Are they white? Are they not? And we have to understand the way that race functions societally, this sense and this idea that in a white supremacist society, everything is constructed around a whiteness, and that the closer to it you are, the better off, the more human, the more fully franchised you are. The further from it you are, the Blacker you are, the most unhuman you are. Right. And so what you see throughout the course of American history is different groups have arrived, Different ethnic groups and racial groups and groups in different parts of the world have arrived. They have almost always been perceived more closely to Blackness and then have had to do the work of assimilating themselves into whiteness. And when you look at the lynchings in New Orleans of the Italians, this is still one where you had Sicilians who've been showing up immigrant workers, and they were being slimed in the local press and by local politicians in ways that might feel familiar to us. Right. That these were dirty immigrants who were bringing with them violence and disease. And they don't have the same culture as the rest of us. And so there is a crime that's committed and the killing of a police chief. And in his dying words, he’s said to have accused Italians of doing it. And it leads to this massive lynching in New Orleans. Now, what's remarkable is that this event begins in some ways to set off a series of events that lead to and eventually help Italians become white, right in that because Italians had a foreign government to advocate for them…the government of Italy called the United States and said, you know, this is insane. We're going to break off diplomatic relationships with you if we don't get justice for our murdered citizens. And so the United States actually to send reparations to the families of these lynched Italian-Americans back in Italy, which provides in some ways a precedent for this idea that if if the government fails to protect you here, that you might be owed money. But beyond that, it allowed and opened the door for the beginnings of a conversation to normalize these relationships between Italian-Americans and those living in America already by ushering Italians into American whiteness.
Farai Chideya [00:06:14] Is it possible to deal with whitelash by a negotiation method for Black Americans?
Wesley Lowery [00:06:23] I mean, Black Americans have had to do it on their own. And what's very interesting is that. Advocating for African-Americans has always fallen to African-Americans themselves, for the problem is because African-Americans have been so disenfranchised in our country. There hasn't actually been the ability. There was a movement of formerly enslaved people within 20 years of emancipation, petitioning Congress for reparations and collecting hundreds of thousands of formerly enslaved people who were signing petitions because the Union government had seized all the tax revenue from Confederate cotton. And so there was a lawsuit arguing that that tax revenue belongs to the enslaved people who did the picking. And so there was a pot of millions of dollars that they sued over at the time the suit was tossed out, saying essentially, you cannot that you're not allowed to sue the U.S. Treasury. Right. It was it was a legal, technical jurisdictional issue or an upstanding issue as opposed to an actual issue of the merits. Right. What's fascinating is the extent to which this is a conversation that has been ongoing as long as there have been formerly enslaved people, the United States of America, there have been people arguing that those people are owed something reparative for the labor that was stolen from them. What was interesting and unique in this specific case around the Italian-Americans was that because they had a country, not just a country who had a clear claim to them and clear connection of families, but also a country, frankly, that for diplomatic reasons, the United States of America cared about. It mattered for military reasons, for trade reasons, if Italy decided to cut off the United States there was an issue there. Right. And historically, our relationship with African countries has been so different than that that there is not the same leverage that if Ghana or Senegal will say, well, we're going to cut off relationships, the United States, in many cases, the United States would say, well, okay, we'll stop sending the checks then. And so because the African nations have rarely, if ever, had that type of leverage over the United States, there's not the same ability to advocate for the people who descend there.
Farai Chideya [00:08:23] I want you to talk about your work in Charlottesville, Virginia.
Wesley Lowery [00:08:26] What I think is really interesting is, you know, so I get out to Charlottesville. I go out there several years after the Summer of Hate in 2017 and the Unite the Right rally. And I start my time in Charlottesville, walking around with Dr. Julianne Schmidt, who is a local activists, an academic who has done kind of Charlottesville history tours. And she's just walking me through the city. And she raises a lot of what I think are remarkable and important points Among them is that we look at this place that in the popular memory is painted as this kind of Confederate stronghold, this southern city that has all of this history. And she points out that on the day of emancipation, the majority of people living in Charlottesville were enslaved Black people. The day of emancipation would have been the most exciting day in Charlottesville history. Yeah, right. And yet the way in which we are centering and imagining Charlottesville as like a white Confederate southern town, when in fact it was a majority Black city at the time.
Farai Chideya [00:09:27] Yeah, yeah, yeah.
Wesley Lowery [00:09:27] Already speaks to how we imagine our history. Right. She then points out how across this city you have in Charlottesville is not unique. This was the case for cities across the country that most of the Confederate iconography that is constructed in Charlottesville is not constructed until the civil rights era. Right. This is not it is not as if in real time they built the statue. Right. But that rather following Brown vs Board of Education during desegregation at a time when there was the perception of white advancement. What we saw was a whitelash, was an assertion of power by a white majority saying, we're going to remind you all. Who runs this and who's in charge. And so we're going to build statues to people who would have had you in chains. And we're gonna build those statues. The first set of them in the early 1900s. Amidst the rise of the Klan following reconstruction, the second set of them later on. This fight then plays out. I think a lot of people don't know or don't remember that so much of the fight in Charlottesville was based on a 15 year old girl writing an essay for her English class. Right. There's this Black woman, Zy Bryant, who. He's given an essay prompt about what's one change you could make in your community. And she writes essay and says, well, you know, we could take down some of these Confederate statues. They don't really make me feel like I belong here. And she does a good job. And so her teacher suggests that she sends it into the local paper and runs it as a letter to the editor and then the city council. And what's Bellamy at the time was the vice mayor. They said, Oh, look at our precocious, hardworking students. Let's have a task force to look at this. All of this in a lot of ways is like basic level encouragement of a young person and the response to a young woman looking around and saying, maybe there shouldn't be statues. People who thought I should be enslaved was a literal Nazi Klan rally in which someone was murdered. In the face of advancement or perception of advancement, when Black Americans assert their humanity and their full citizenship, when they demand both equality under the law and equality of opportunity and outcome. Right. What you see is a majority that feels a real loss. And in some ways it is a loss, right? Because if you have superpowers, yeah, you get to treat a whole class of people like they're not humans and suddenly you don't. Well, you once had something you no longer have. And so in response to that, we see this violent lashing out that leads us very directly to Charlottesville.
Farai Chideya [00:12:13] Wes, one of the things that's happened in America is that I believe a lot of white Americans feel much less secure in their futures. And it's about the intersection of the economy and race because racism is durable everywhere. So why do you think that the whitelash is so attractive to people who could otherwise find common cause with other people who also aren't getting the best from American society?
Wesley Lowery [00:12:36] I think so often we construct this as a is it race, as a class push pull debate? Is it? And the reality is you cannot understand class if you don't understand race, because race is the way that those class divisions get enforced and reinforced. I write in the book about how in the American context, American whiteness is invented. It's created as a means of separating Black people and white people in colonial times where the ruling class is dealing with an increasingly restless class of indentured servants and working class and labor class. In the wake of several revolts and riots, What the ruling class does is it defines and creates a racialized caste system to create a common cause between the rich white people and the poor white people against the Black people. Yeah, and at least now there are three tiers and you're in the middle one, you're not at the bottom one. And what we see is race being used as a scapegoat at a time when it's in fact, these much deeper capitalistic issues and income and wealth and economic issues. This moment we're in right now is extremely similar. And I think it's one of the reasons we're seeing so many smart books about the 1920s. When you look at the 1920s, what you see is a time very similar to the moment we're in now. The twenties are the time when the country goes from being majority rural to majority urban, where you see massive technological advances, massive social advances. It was a time of massive change in our understandings of race, of gender, of sexuality, a time of massive Black cultural advancement, something Jazz is everywhere. And so so think about that, right? Here you have this moment where you have an America that looks and feels a lot different than the America you maybe grew up imagining it would be. All of those things happen at the same time that there's a massive stratification of income inequality, where you have the rise of the Gilded Age of men who become the richest men in the history of humanity, off of the industrialization and the expansion of the American economy, even as the average American is poorer and down on his luck. And even if that's not true, even those who aren't that way are scared they will be that way because the country has changed so much. And what happens in that time? What happens in that time is we see the election of an openly bigoted president in Woodrow Wilson. We see the rise of the Ku Klux Klan, the second Klan, in part due to The Birth of A Nation media portrayal and the selling of a myth about American history and the Klan. That Klan, it's not the pitchforks and white hooded thing that we imagine. Not that they didn't do those things right, but that Klan is a social club. It's a political movement. They're electing senators. They're having fairs. Right. And what do they do? That Klan has one major policy victory, and it's the passage of an immigration act, 1924 Immigration Act, providing racialized quotas of who's allowed in the country and who is not. And so when we look at that and we read that history and we read that history now in our time, a time where technology and societal change has allowed the rich to become the richest people in the history of the world, while those of us in the middle class and the poor feel as if the country is changing, where there's massive advancement for racial minorities, for women, where there's different conversations now about gender and how we define it, and what that means, where there's Black cultural advancement can't turn on the Super Bowl without seeing Beyonce and Spider-Man's Afro-Latino now. Right. And what have we seen happen? The rise of a nativist, conservative political movement that gets elected on the back of ‘we want to be able to be more openly bigoted’ and ‘we want to be able to change and restrict who's allowed into our country because we believe we're losing our country’, that we're in a moment of whitelash, extremely similar to the moments we've seen before.
Farai Chideya [00:16:52] Let's talk a little bit about immigration. How do you bring the anti-Blackness elements of the whitelash into the same structural understanding with immigration and nativism?
Wesley Lowery [00:17:07] I think we can hold different things to be true at the same time. The first is that there are, whether it be anti-Blackness, anti-immigrant sentiment, anti-Muslim sentiment, anti-Semitism. Right. That there are unique strands and unique histories of different types of racism and racial prejudice. But what is also true is that American white supremacy combines all of those things into one ideology. And so we can acknowledge those unique histories. But I think it's a mistake sometimes when we see the Tree of Life shooting in Pittsburgh and go okay, That's an anti-Semitism issue. Mm hmm. We see in Buffalo or Charlottesville or Charleston. Okay. That's an anti-Blackness issue right now. It is. It's a yes and. Right. But it's a part of a bigger puzzle. We just saw the conviction of the man who shot up the Tree of Life Synagogue in Pittsburgh. And as it was noted in the trial, he chose that synagogue specifically because he believed they were helping resettle refugees in the United States of America. His anti-Semitism was joined with and it was in part of it, foundational to it, was belief in this bigger white supremacist conspiracy theory. This theory that there's a white genocide going on being driven by the Jews who were trying to bring in immigrants and refugees and get you to marry off with Black people so that the white race gets destroyed.
Farai Chideya [00:18:26] Yes.
Wesley Lowery [00:18:27] Right?
Farai Chideya [00:18:27] Like the chant ‘the Jews will not replace us’ in Charlottesville.
Wesley Lowery [00:18:31] And that's what they mean by it, that that is the core. And that has been the core, give or take of the white American white supremacist movement for its entire history. So the Klan believes what the neo-Nazi groups believe is what the military militia groups believe, its what the Christian identitarians believe and now the Christian nationalists. And so while it's important for us to look at Tree of Life, for example, and understand anti-Semitism, it's also important for us to understand the person who walks to that synagogue could just as easily be walking into a mosque or to a Black church or driving to the border to El Paso. There's a hatred that spreads beyond just one group. In reality, it's all of us. And so I think that that's really important, right? When we understand racism in this moment and white supremacist violence in this moment, we have to understand the role that the massive demographic change in the country is playing into feeding that.
Farai Chideya [00:19:26] Mm hmm.
Wesley Lowery [00:19:27] And what we also have to understand is how those who are arriving at our shores and arriving in our country themselves are now going to have an incentive to assimilate into whiteness. I also think sometimes on the left or in the media, like there can be a naivete. That was the country gets what we can perceive as browner, more Hispanic, more Latino, that it is going to become more liberal or more progressive on issues of race. And I actually think that that's a mistake to believe that. It would be like sitting there in the early 1900s and going, well, the Italians aren't white. And so the more of them who come, the the easier this will get. And so I don't think we want to make that same mistake or have that naivete in our thinking.
Farai Chideya [00:20:12] So how would you describe the current whitelash in terms of politics? You know, we've talked about the breadth of whitelash. What are the hallmarks in our era?
Wesley Lowery [00:20:21] I think that when you look at our era, it's extremely, clearly and explicitly nativist. That is the only thing that is consistent in Donald Trump's ideology. That there's no position he will take other than a nativist position and a pro-white position. Right. That he's hyper law and order until a Black Capitol police officer shoots a MAGA person, and then that officer is a thug. Right. Well, wait, that's inconsistent. I thought he was the pro-cop guy. No, there's a consistency there. There is an ideological consistency throughout this movement. Now, that's not to speak of the entirety of the Republican Party, but when you look at the movement that Donald Trump leads, it is extremely clear what is driving that movement, where his power is derived from and what is motivating these folks.
Farai Chideya [00:21:23] Wesley, thank you so much.
Wesley Lowery [00:21:25] Of course. Thank you so much for having me.
Farai Chideya [00:21:27] That was Wesley Lowery, author of the book American Whitelash: A Changing Nation and the Cost of Progress.
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Farai Chideya - We turn next to another hot topic for democracy voting rights. It's been a decade since the U.S. Supreme Court, in a 5 to 4 decision, overturned a central component of the 1965 Voting Rights Act. Following the ruling, Shelby County v Holder, state legislatures began to enact new laws that restricted voting. The Brennan Center found that states have added nearly 100 restrictive laws since that decision. But the U.S. Supreme Court upheld a lower court's ruling, which states that Alabama's 2021 congressional maps violated the Voting Rights Act of 1965 because it purposely diluted Black voting power in the state. And while this sounds like a victory affecting only one state, the downstream effects could be huge. In this week's edition of our roundtable Sippin’ the Political Tea we’ll be talking about SCOTUS. No, not affirmative action, though we'll be talking about that on our show soon. But voting rights and what it means for the 2024 election. To understand all of the moving pieces, we speak with Tiffany Jeffers, associate professor of law at Georgetown and Our Body Politic contributor. Welcome back to the show, Tiffany.
Tiffany Jeffers [00:22:49] Hi, Farai. It's so good to see you.
Farai Chideya [00:22:51] Likewise. And we've also got Kimberly Atkins Stohr, senior opinions writer and columnist for The Boston Globe Opinion. Thank you for joining us again, Kim.
Kimberly Atkins Stohr - It's a pleasure to be with you again. Thanks for having me.
Farai Chideya - So, Tiffany, I'm going to start with you. Remind us about the 2013 case, Shelby County v Holder and the decision that the U.S. Supreme Court made there.
Tiffany Jeffers [00:23:13] So the decision in the Shelby v Holder case essentially was that it defanged the Voting Rights Act and took away the ability for legislatures and governing entities to come after organizations and legislatures that were trying to disenfranchise residents in their jurisdictions. And so it eliminated one particular type of framework that allowed individuals who were claiming that they were being disenfranchised or excluded from the voting process to have the power to go to court and litigate that.
Farai Chideya [00:23:51] And Kim, we're a decade post Shelby County without federal oversight. What types of laws have we seen states pass that they might otherwise not have been able to pass?
Kimberly Atkins Stohr - Yeah. So Shelby County was just the beginning. As Tiffany said, it did gut that crucial part of the Voting Rights Act that allowed the federal government to pre-clear any changes to voting laws and voting rules in states that had histories of racial disenfranchisement. And then the court subsequently also weakened Section 2, which is the provision in the Voting Rights Act that allowed people to bring suit after the fact, claiming that there was racial discrimination. So both of those things had already been weakened, which is why I think we were all braced for when the court took up another Voting Rights Act this term to see a further erosion and a further destruction of that law. And that did not happen. The court actually chose to enforce the Voting Rights Act. They did it belatedly, and we can get into that, according to my opinion. But they did that this term in finding that the Alabama map drawing that was done, there was an illegal racial gerrymander. But to answer your question, a lot of states were doing a lot of gerrymandering since those two cases came down, those two rulings came down, it seemed to be a pretty open invitation for state legislatures, primarily Republican legislatures seeking to hold on to their power as their base dwindled. One surefire way to do that was through both political and racial gerrymandering. But the Supreme Court seemed to indicate that there is enough left in the Voting Rights Act to at least guard against racial gerrymandering in states like Alabama.
Farai Chideya - So, Kim, this was a surprise ruling to a lot of people, particularly the way that the court is aligned ideologically with, you know, roughly a 2 to 1 right to left majority. This didn't break down along those lines. Any thoughts about why that might have been the case?
Kimberly Atkins Stohr - Yeah, it's hard to say. Each justice doesn't say why they ruled in the way that they did. But I think one idea is that the court is aware of its perception of itself as an institution in the eyes of the public, and they had seen losing the American public's faith by doing things like increasingly making decisions of impact on the shadow docket, which is this emergency docket, which is not meant to make final decisions in big cases. It's just meant to make sort of emergency interim rulings. But we saw even Dobbs coming, the abortion case coming through, a ruling that left this really restrictive abortion law in Texas stay in place while the court was taking it up and considering which really forecasted even before the leak what the court would do. And so we see the court doing that again with this Alabama case. The court allowed what they ultimately ruled was an illegal racially gerrymandered map to stay in place for the midterms. While this case played out, what the court didn't have to do that, the lower court had decided that it was racially gerrymandered in order to that there be different maps put in place for the midterms and the Supreme Court stopped that from happening while they took it up and then a year later said, ‘Oh yeah, we agree. What's a racial gerrymander?’ But meanwhile, the control of the House could have been different because there were other maps in states like Louisiana, which the Supreme Court this just this very week allowed to go forward and have their maps that were ruled to be racial gerrymandered to be thrown out and new maps put in place. Also states like Ohio and Georgia. So this had a major impact. And I think the court saw that it was losing the trust of the public and perhaps said, all right, let's tread carefully here. If there is a way to enforce these laws rather than just continue to destroy them, maybe this is a good time to do that.
Farai Chideya - Tiffany, let's talk a little bit more about Louisiana because this Supreme Court ruling that we're discussing has had already one domino effect. Tell us about Louisiana and also what you see as possible future domino effects.
Tiffany Jeffers [00:28:06] I think what's happening in Louisiana is going to be instructive for not just states that are in the South, but for democratically led states in the north to use their state constitutions as a mechanism to protect voting rights in their states, in their jurisdiction, without looking to the federal government for those particular protections. And so this is one way where progressive legislatures, Democratic run states see an avenue where their state and this is often true, this is the case a lot of times in criminal law where a state constitution is more progressive and more protective to individual liberties and civil liberties and rights of accused than the federal Constitution itself. And so that's the avenue that progressive and Democratic run states are looking to now is if the federal government is not going to maintain preclearance and maintain the ability to regulate what these states that are working to racially gerrymander voting districts are doing, then we're going to look to our state constitutions to do so. However, Southern states and Republican led states are going to push back on those efforts. And Republicans always want it both ways. You know, for thee and not for me. So Louisiana will be a really interesting test case to see how this plays out. And because it's already happened where these rights are protected in progressive states like New York, California, they're already protected in those jurisdictions.
Farai Chideya [00:29:42] Kim, There's also the North Carolina case where justices were asked to eliminate the power of state courts to strike down partisan gerrymandering. Tell me about that one.
Kimberly Atkins Stohr - Yeah. So there is a fringe legal theory called the Independent State Legislature Theory, which essentially holds that when it comes to making rules about elections, that stands within the sphere of state lawmakers and state lawmakers only. And I don't mean state lawmakers in terms of passing a law which a governor would have to sign to make it go into effect. Just the lawmakers with no input from the governor, no input from state courts, which normally would have judicial review, and then no input from federal courts, which would also have judicial review. And what that could mean is that state lawmakers, Republican state lawmakers, could do some finagling that at the very least could affect congressional elections and if extended, could also affect the presidential, because since that case began, North Carolina had an election. Republicans took over the legislature. They redrew the districts the way they wanted to and kind of said ‘Nothing to see here. You know, we don't need you, Supreme Court.’ And I thought the Supreme Court would dismiss the case is moot and just not decide the issue, but leave it kind of hanging over democracy like a dark cloud. The Supreme Court surprised me at least, and rejected the Independent State Legislature Theory and said, No, that's not what's happening here. We are going to put a nail in that. It was a decision that was written by the chief justice and that had only three dissenters in the case as a whole. So it was an important case. But again, it might be the chief justice saying, okay, you know, I'm conservative, I'm not down with all the ways that the Voting Rights Act have been used. But I'm also not going to embrace something that's clearly crazy and not contemplated by our Constitution at all. I feel bad that the bar is so low for the Supreme Court right now that we're celebrating as victories things that ten years ago would have seemed commonsensical. But that's where we are.
Farai Chideya - Some of this question of the independent state legislature theory has been embraced by people who are really on the political fringes. I'm not saying everyone, but there's definitely been an enthusiasm for that among people who have been part of white supremacist movements, for example. Tiffany, what does it mean to have the interest of all Americans in mind when you are making these legislative decisions?
Tiffany Jeffers [00:32:10] I've been thinking about this a lot, Farai, because what I see is this court working to maintain its own legitimacy and their own individual reputations. And particularly when you think of Chief Justice Roberts in the position he's in, as Kim said, a conservative, but moderate jurist. Right. One who's always had a reputation of doing what's right in the eyes of the law, regardless of the outcome. And when that for him begins to unravel and not just his own reputation, but dismantle the authority and legitimacy of the court itself under his leadership, I think that's a personal affront to him, because the Supreme Court is unraveling, Their authority is becoming diminished. Every opinion they released, it's so polarized, it's 100% a political organization at this point. I don't think the justices have the capacity to think about… I don't say America first and the frame of Make America Great Again, but I don't think that the court has the propensity or capability at this juncture to think about what's best for the American people holistically, outside of what's best for the Supreme Court, and secondly, their own individual reputations. And that's a really dangerous position to be in. It puts all of us in peril, and I think that's really where we are.
Farai Chideya [00:33:30] And so, Kim, what does it mean for the court to be confronting a crisis of legitimacy and also the changing nature of American politics right now?
Kimberly Atkins Stohr - I've been covering the court since 2006, and I've watched just this incredible change in not just the way the court is perceived, but the way it is constituted, the way it operates, including the way that justices are selected and confirmed onto the court. And that process has become so politicized. And I think that has seeped into the court in a way that is affecting it, that even the Chief Justice as the institutionalist that he is and doesn't want to see the court's legitimacy questioned, even he can't control. I mean, the biggest example of how politicized the confirmation process was, the blockade of Merrick Garland's nomination. Barack Obama nominated someone to the court and Mitch McConnell said no. And the president did not get his duly selected Supreme Court pick. That was crazy. Like, we can't forget how crazy that was. That was insane. We saw a justice who was later nominated, Brett Kavanaugh, who had credible accusations made against him. And rather than just answer those allegations and have those be investigated, the way he won confirmation was to double down and in a very Trumpian way, give a politicized speech at his own confirmation hearing, basically accusing the Democrats of a witch hunt and saying that there would be payback. And that's how we made it onto the court. So how can we expect the court not to be politicized?
Farai Chideya - Well, you know, I mean, when you're talking about that, I'm reminded of Clarence Thomas and the “high-tech lynching” I don't think it's 100% new.
Kimberly Atkins Stohr - It's not so new. But we've seen it increasingly and very tangibly affecting this court. And that's a reason why we are where we are now. There's also dark money campaigns, rich people wining and dining these justices in order to bend their ear on issues from abortion, the business issue. I mean, it's just the politics are there. They're happening in real time. And you have at least some of the justices that are pretending like, no, you still shouldn't question us in our lifetime tenure. You know, that's how crazy we are, infallible. We are unquestionable. Clearly, at least the Chief Justice realizes that's not the case and that the court can't operate in that way. Now, I'm not going to throw any parties yet. John Roberts is still a very conservative jurist. He has this sort of colorblind constitutionalism that I think is completely wrong and very dangerous in the way that's how we got to Shelby County. This whole idea is the only way to stop discrimination on the basis of race is to stop discriminating on the basis of race he said, as if he has no idea how America works. So I'm not saying that he's some sort of savior, particularly on issues like this, but I am saying that he realizes that the house is on fire and that something needs to be done in order to restore the legitimacy of the court in the eyes of the American public.
Farai Chideya - Kim, I think a lot about the. The phrase democratic norms. You know, it gets used a lot that we're in a period of history that's outside of democratic norms. But democratic norms also included the Supreme Court ruling that the Fugitive Slave Act was something to uphold. I mean, Democratic norms have been a lot at certain times. So is there a way back to something approaching what we think of as normalcy in how the court is constructed?
Kimberly Atkins Stohr - Yeah, I mean, I try to keep my eye on history and remind myself that these things are cyclical, especially when we feel like, ugh, this just keeps happening. So I try to remember that, but we also have to, in real time, identify what the problem is. And I too… I mean, listen, I am critical of Democrats sometimes more than sometimes. And in that, in those critical moments in 2016, when Merrick Garland's nomination was put on ice, they still were not making the case to the American people the way that Republicans were about the importance of the Supreme Court. You know, they were still talking about the Supreme Court and these ideals of lofty ideals of justice and doing the right thing and not saying, ‘No, no, you need to vote for members of the Senate who will put through nomination to the Supreme Court.’ Like this is real stuff. The Supreme Court is going to have a really monumental impact on your life. And I think it wasn't until Dobbs that people really got that.
Farai Chideya - There's definitely been documentation that more Americans support first trimester abortion rights than ever because of the loss of broad-based federal protections and many different downstream effects of this. You know, the Republican political field, many of the candidates are grappling with how to deal with the backlash to the Dobbs decision. But speaking of 2024, I wanted to sneak in one more thing before we go. And so I want to turn to a clip that was obtained by CNN and first aired on Anderson Cooper 360 of Donald Trump in a July 2021 conversation talking about retaining defense documents.
President Trump Recording [00:38:58] Isn't it amazing? I have a big pile of papers. This totally wins my case, you know, except it is like highly confidential, secret. This is secret information. [laughing]
Farai Chideya [00:39:09] So I wanted to turn to this question of the multiple rulings against former President Donald Trump and the question of the unauthorized retention of defense information, conspiring to obstruct justice, withholding government documents, scheming to conceal information from a grand jury, and causing false statements to be made to the government. So, Kim, we've had a little bit of time to see the shake out of public opinion. And then now there's this tape. So what do you make of this impact, not just the tape, but the whole shebang on the 2024 race and all of the different questions of how voters might respond in this political moment?
Kimberly Atkins Stohr - Well, first, I want to talk about this case and this tape as a piece of evidence in a case that he's been indicted in. He's essentially confessing in this case that he knows that these documents are not only classified, but secret, like very highly classified, as he said. He said that when he was president, he could have declassified them, but now it's too late. Yet he's still having them and showing them to people like party favors. And if there's any question whether this tape is authentic and really him, at the very end, he asks for a Coke like we know that he had the Diet Coke button in the Oval Office.
President Trump Recording [00:40:28] Uh bring some, bring some Cokes in please.
Farai Chideya [00:40:30] Is that the test now? Not a deep fake.
Kimberly Atkins Stohr - So it's just like, oh, my goodness. Like, what a piece of evidence for the prosecutors to have. So putting that aside, even given this evidence being out there, and even if there is a conviction before the election, which we don't know whether or not there will be, I don't know what it means for the electorate, because one thing that we have seen is at least the Trumpian segment of the Republican Party is pretty inelastic. They're in with him. They're in even if not with him, with the kind of Trumpism that he represents. And they don't care if he is a proven liar, a proven misogynist, a proven racist, a proven anti-democratic, authoritarian. They're still in with him. So I can't believe that. It's like, oh, well, this is going to make all the difference in 2024. Clearly not even when you have the other Republican presidential candidates, his opponents, entertaining the idea of pardoning him before the case has even gone to a jury. I think that's a really big problem for the Republican Party. I don't know when this Trump fever is going to break, but Democracy is imperiled until it does.
Farai Chideya - You know, Tiffany, as we wrap this up to tie all the pieces together, how do you see the state of these indictments and the presidential race and voting rights fitting together into a puzzle for 2024?
Tiffany Jeffers [00:41:54] That's going to be a puzzle where the ramifications will determine the longevity and ability of this country to maintain itself as a superpower, as a beacon of democracy in decades to come. How we put these pieces together and the voting rights piece of it for me… the states are working at the state level, but we haven't talked about how these state legislature voting rights laws can ultimately impact who we put into the Executive, who then appoints Supreme Court justices who then make determinations about the rights and liberties and access of rights for all of the people in this country. And so the Trump piece of it, what this indictment has done, is radicalized potential Republican nominees. And so they'll go to any lengths to attain the presidency, which means they have to do more than he had to do, which was already so extreme and so fringe. Putting that together with the peril that we're that our democracy is in, it's scary times. But as Kim said earlier, we have overcome more difficult trials.
Farai Chideya [00:43:16] You're a mother, and when you discuss politics with your kids, how do you tell them about what's expected of grown-ups when we get to make decisions?
Tiffany Jeffers [00:43:25] I took my kids to the portrait gallery here in D.C., and they're little kids. They thought every white man was Donald Trump and they would boo every picture. And then when I finally told them which one was actually Donald Trump, they pointed and said, ‘Shame on you.’ And I was internally proud and a little externally embarrassed because there were people there. So it's a delicate balance of teaching them about humanity without telling them that if someone is not being kind, being empathetic, doing the right thing, that they don't cut them off, and that, you know, trying to teach hopefulness in these conversations as well. And it's not an easy thing, but definitely shame on Donald Trump.
Farai Chideya [00:44:09] And so, Kim, we like to talk about hope on this show. And I was at a wonderful dinner party and someone was like, oh, your show has made me cry, you know, tears of joy for real. But sometimes I'm so stressed out by the politics. And I think that's a pretty common feeling. But we talk about the politics because we need to understand them. So how do you deal with the pressures of it from the inside of the media and the law?
Kimberly Atkins Stohr - Yeah, I get stressed out, too. I mean, I was. Every morning I wake up and I tell my husband I was just that I am about what's going on, whether it's waiting for Supreme Court opinions or wondering what else is going on. I get that. But I think it's in talking to people who I think are the true heroes. I mean, I was lucky enough to talk to a bunch of social studies teachers who were came to Washington, D.C. as part of a program by the American Bar Association, and just talking to them and their concerns about their ability to teach history and teach civics, teach the truth, despite whatever state laws are being passed that make that more difficult, there are questions about what the Supreme Court is doing, and they're concerned about it. It just gave me such hope and reassurance that there are these are people from across the country and people from South Dakota, California, Massachusetts, Florida. And these are the people who are helping to shape the next generation. And they get it. And I talk to my stepchildren and my nieces and nephews and they get it. They understand what the stakes are. And I have to trust in the good people in our electorate, in our citizenry who do get it and who do understand the stakes. And, yeah, our politics, especially here in Washington, D.C., get amplified in very weird ways. And even within the two party system where you have this segment of the Republican Party that is really taking it over. But a reminder that is not the majority that's not even close to the majority who are taking on these really fringe, these really out there ideas. It's a broader electorate out there. And I have to have faith that they do get it, or at least the majority of them do get it, and that we will see an end to this cycle. We don't exactly know how it will come, but that it will come.
Farai Chideya - Well, Kim, thanks so much for joining us.
Kimberly Atkins Stohr - Thank you for having me.
Farai Chideya - And, Tiffany, thank you for joining us.
Tiffany Jeffers [00:46:26] Thanks, Farai. It's always my greatest privilege to be here with you.
Farai Chideya [00:46:31] That was Tiffany Jeffers, associate professor at Georgetown Law and Our Body Politic contributor, and Kimberly Atkins Stohr, senior opinion writer and columnist for Boston Globe Opinion.
Before we wrap up here, we are talking about affirmative action in an upcoming episode. So for all of you who are students, what are your thoughts on how the Supreme Court's decision regarding affirmative action in higher ed will impact your future? Tell us by leaving a voicemail at 929-353-7006 That is 929-353-7006. Or share with us on Instagram and Twitter @OurBodyPolitic.
Thanks for listening to Our Body Politic. We are on the air each week and everywhere you listen to podcasts. You can find us on Instagram and Twitter @OurBodyPolitic. Our Body Politic is produced by Diaspora Farms and Rococo Punch.
I'm host and executive producer Farai Chideya. Nina Spensley and Shanta Covington are executive producers.
Emily J. Daly is our senior producer. Bridget McAllister is our booking producer. Natyna Bean and Emily Ho are our associate producers. Monica Morales-Garcia is our fact checker. This episode was produced by Mona Hazan and Monica Morales-Garcia. It was engineered by Mike Garth and Carter Martin.
This program is produced with support from the Luce Foundation, Open Society Foundation, Ford Foundation, Craig Newmark Philanthropies, the Charles and Lynn Schusterman Family Philanthropies, Democracy Fund, The Harnisch Foundation, Compton Foundation, the Heising-Simons Foundation, the BMe Community, Katie McGrath & JJ Abrams Family Foundation, The Pop Culture foundation, and from generous contributions from listeners like you.