The Trump Indictment, the 2024 Presidential Primary, and Affirmative Action

Jun 30, 2023

TOPICS DISCUSSED

Trump’s Federal Indictment
2024 Presidential Primary
The Supreme Court
Affirmative Action and Equal Protection
Outside Politics: Favorite Children and Parenting

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EPISODE RESOURCES

TRUMP INDICTMENT

2024 PRESIDENTIAL PRIMARY

THE SUPREME COURT

AFFIRMATIVE ACTION AND EQUAL PROTECTION

Read the Supreme Court decision reversing decades of precedent on affirmative action (NPR)
The State of the Schools: Higher Education (Pantsuit Politics)
Where You Go Is Not Who You’ll Be Frank Bruni (Bookshop.org)
Michelle Obama’s statement on the Supreme Court Decision on Affirmative Action (Instagram)

TRANSCRIPT

Sarah [00:00:07] This is Sarah Stewart Holland

Beth [00:00:08] And this is Beth Silvers.

Sarah [00:00:10] Thank you for joining us for Pantsuit Politics.

[00:00:26] Welcome to Pantsuit Politics, where we take a different approach to the news. As so often seems to happen to us when we take our traditional summer sabbaticals, June has delivered a lot of intense news. Donald Trump likes to get indicted when we go on vacation, Beth, this is what I've noticed. There is a pattern. Last time we went-- Disney.

Beth [00:00:43] Kind of like when you go to the bathroom, it makes the food come. That's what happens.

Sarah [00:00:46] Yes, that's it. On today's show, we're going to catch up on some of that news. We're going to talk about the 2024 presidential race. And we're going to cover two major decisions that came down from the Supreme Court this week. And as always, we'll end the show with what's on our mind Outside of Politics, which is, do you have a favorite child?

Beth [00:01:05] Before we get into all of that (and it is a lot) we would love to invite you to take a minute to give us a five star rating and review on your favorite podcast player. There's a reason that podcasters somewhat annoyingly ask for this at the beginning of their shows, and it is because ratings and reviews really do make a difference in helping new listeners find the show and become part of the community of the show. And that community of the show is why we do this. It's so fun to hear from all of you and to get to know you and to have our perspectives enhanced by yours. It only takes a quick minute to do this. You can do it right now before we even start to dig in to the Trump indictment and all the things. So please just take a quick second. It means the world to us.

Sarah [00:01:45] In fact, I bet you could do it right now in the amount of time it takes for these next ads to play. Before we come back in the first segment and talk about the Trump indictment.

Sarah [00:02:02] Beth, while you were on summer sabbatical, Trump got indicted again. Did you catch that news?

Beth [00:02:09] I did. I saw it as a breaking news alert on my phone while I was sitting at a swim meet.

Sarah [00:02:15] Well, this time it was your friend of mine, Jack Smith. I just love him so much, just developing a real affection for him. With the help of a Florida grand jury, brought 37 felony counts against the twice impeached former president. Including the mishandling of classified documents, obstructing justice, and making false statements. I think it's a delightful little read. It doesn't take much time. I highly recommend everyone read the indictment for themselves. There are pictures. It's pretty easy to follow. And there's not a lot of editorializing; although, I really did appreciate when they would go back and cite all his previous statements during the 2016 campaign about classified documents. If I was Hillary Clinton I would like frame that page and hang it in my house. But other than that, it's just like this happened and then this happened. Then he lied to his lawyer, then he used staff to hide things from his lawyer and from the FBI. Then he lied to the FBI and then he recorded himself saying that he couldn't declassify these documents anymore and then showing them to someone, which we got that actual audio from CNN this week. So that was a fun addition.

Beth [00:03:27] What I thought was so smart about using those previous statements in the indictment is that you rarely see such a tight case from go, that says we know his mental state. We know that he knew the law. We know he knew he was breaking the law. He told people as he was breaking the law, that he was breaking the law. It's pretty remarkable to have this much evidence out in the public eye. And you're right. I guess you could read some of that as dunking on him. But it was a really effective way to say he knew, he knew, he knew at every stage.

Sarah [00:04:02] I mean, that is the thing about Donald Trump. He is very, very many things, but secretive is not one of them. You know what I mean? He cannot keep his mouth shut. He thinks everything belongs to him. Anything in his boxes is his. He controls it. Everything. The information, the documents, just the whole the whole kit and caboodle it's his. He will tell anyone who listens. I thought the audio recording in particular is just... The way they kissed his ass is-- I don't know how it's still shocking, but it is shocking to me. But I guess that's what he wants, so that's what he Surrounds himself with.

Beth [00:04:49] I read that the staffer on that audio was Margot Martin. She's a comms person. She's the one if you've heard of her, it's probably because she looks so much like Melania that people mistake her for Melania.

Sarah [00:05:00] Okay.

Beth [00:05:01] The interaction that they had was so consistent with the portrait of him that emerges in this indictment. He's just someone who clearly feels no sense of responsibility beyond ownership. He owns these documents. They're his. He'll do what he wants. And if there's a problem, someone else needs to clean it up for him. I thought one of the most interesting notes about his interaction with his lawyers in the indictment was where he seemed to be telling everyone a story about how Hillary Clinton must have had better lawyers than he has. Her lawyers fixed this for her. Someone deleted those emails for her. And why couldn't someone just delete this stuff for him? You can tell he's just had a lifetime of always pushing responsibility when rubber meets road on to someone who works for him. And as you hear this, obsequious doesn't even begin to cover the relationship--

Sarah [00:05:49] It's not a strong enough word.

Beth [00:05:50] In the recording.

Sarah [00:05:51] Well, and he's just past oriented. He's just always looking back, where was I wronged? Where was someone unfair to me? Where can I prove that they were unfair to me? I mean, this recording is about sort of his beef with Mark Millay. He just can't ever let it go. And he just shows that over and over and over again. He can't let the documents go. He can't let the fights from the White House or even the 2016 election go. He certainly can't let the 2020 election go. And it's just that refusal to, in any type of clear eyed manner, look forward to assess what risk could be coming his way that puts him in such precarious, dangerous positions where he's now facing 37 felony counts. And this is just like a side thing- the classified documents. We have not even gotten into January six yet. It's just mind blowing to me.

Beth [00:06:54] If you've listened to coverage of the indictment, you've probably heard it referred to as a speaking indictment. So the prosecution did not have to lay all this out from the beginning. They could have just written up the charges and then put their evidence on in court. What I think was really smart about the way this is all laid out is that it says clearly to the public, "What did you expect us to do? How could we not charge this?" And we did quickly go from the Republican Party saying a two tiered justice system is so unfair, to most serious people saying, yeah, if they can really prove all of this, it's pretty bad.

Sarah [00:07:29] It's bad. Yeah, I think it's bad. And the judge with the case is Eileen Cannon. She's a Trump appointee. People are worried about her, but she set a really aggressive timeline. It was like August, which I was psyched for. But then Jack Smith was like, that's too soon. We got to move this back some. I don't anticipate a trial probably before the 2024 election-- or at least a verdict, let me put it that way. But I think we'll have so many indictments at that point from either Georgia. I think Jack Smith is far from finished, but I just cannot fathom a scenario where his name actually is on paper ballots in front of people. And even the most far right wing ideologues look at it and say, yeah, we should definitely do this. But I don't know why I feel that way. When you look around the world, people have no problem nominating strongmen leaders under lots of criminal probes. But I don't know. I think it's the future orientation of Americans. And we don't like repeats here in America that there's just a part of me that thinks, will the Republican Party actually nominate him if he has four, five, six indictments that he's under? I cannot fathom that. I do agree the worst kept secret in Washington, D.C., is that all Democrats secretly hope he is the nominee because he would be easy to beat under that scenario. I just cannot fathom that he would be nominated, but people surprise you.

Beth [00:09:01] I can fathom that he would be nominated. I can fathom that he would run a very close election and potentially win, because I just think we have so many strange dynamics coursing through our body politic right now. The most important thing to me to say today about the indictment in this particular criminal case is that there's going to be a lot of reporting about this case, and it's going to come out slowly and it's going to have a different momentum than the political cycle. And I just don't want people to feel too emotionally invested in every stage of the reporting. It's not a basketball game. Trump will have some wins in motion practice here. This is in Florida. Yes. We're not going to write off all of Florida and say that an impartial jury can't be impaneled here. And even if a jury acquitted Trump against rock solid evidence, it matters very much that the government did its work and charged this case. And it's also important to remember that every criminal trial tests the conduct of both the defendant and the state. The government needed to do this right, and that will be tested in the course of the proceedings. So, to me, how this develops is very much about the long term system and our long term processes. It is not about persuasion; it is about accountability for both the government and for Donald Trump. And the persuasion piece is a much more productive place to put our energy as citizens who don't have a role in the trial.

Sarah [00:10:35] I agree, and I think the media has a little bit of work to do on the way that they cover this process. That's probably a good lead in to some of the strange energy surrounding the 2024 election because there has been increasing coverage. The campaign of Robert Kennedy jr (infamous anti-vaxxer) and sort of the polling around him. Particularly, I think in right wing libertarian circles, he is what I would call surging. Of course, that doesn't matter because this is the nomination for the Democratic party. My dad texted me and said, "What do you think about Robert Kennedy Jr?" And I said, "I think vaccines save lives and there's no role for conspiracy theories in the nominating process." And so, I'm hesitant to even talk about it. I don't want to give more oxygen to his candidacy. There was really great profile on The Atlantic that I thought sort of held that tension well and named something that I just keep noticing in my own life, which is there is just so much distrust, trauma, anger, energy, frustration around health care and the medical industry in America. And that is being tapped in all areas of political life and civic discourse and pop culture. And it's not surprising our health care system kind of sucks. It's not a great system. The way we build it leaves a lot of people left out, harmed, dead. And I guess it's not surprising that has been allowed to simmer and boil to the point that it's boiled over and people like Robert Kennedy Jr. can really tap that. Because that feels like the point of so much. Even that weird video we watched about reclaiming America. I was so struck by the lisping distrust of medical elites. It's this thread that connects so much right now.

Beth [00:12:35] And no surprise that that's bubbling over post-COVID, just as our distrust of the financial system bubbled over during the 2007/8 financial crisis, any interaction that we have with institutions is going to have imperfections that leave us wounded as individuals, even as those systems try to make progress for us on the whole. It's clear to me how Robert F Kennedy got where he is from his personal story. It just doesn't make that personal story right for governing this entire country. I have a lot of sympathy for his perspectives. I don't think that they are perspectives that would steward the country well on the whole. And I think that's the tension that we've got to figure out. When I reflect on my own coverage of the Donald Trump years, I really don't like the person I was during that time period. I got really comfortable with denouncing things, and I started to believe that denouncing things is political action and is productive and is persuasive. And maybe it is political action, but I think it's not super productive and it's definitely unpersuasive. We wouldn't even be having a conversation about Donald Trump right now if denouncing him constantly had been an effective strategy to combat his political rise.

[00:13:58] That said, I am encouraged that there are Republican candidates willing to stand up and say, "No, Donald Trump is not qualified to lead this party or the country." I've given five U.S. dollars to Chris Christie, Will Hurd and Asa Hutchinson, because I would like for them to qualify for the debates. To the extent that I have a feeling about Robert F Kennedy Jr, it's that at least there's a place for people who feel this way to go other than Donald Trump right now. And maybe that gives us more of an accurate understanding of that population of people and what they really care about and a place for them to express that in the primary. That is largely harmless. It's a really small percentage that he's going to get, I think. I also think the media can't be faulted for covering him relentlessly because he's a Kennedy, because there's so much history there, because the tech world is rallying around him. All the things that get outsized media coverage are present when it comes to Robert F Kennedy Jr. So there's something to take seriously here, but I don't think it's something to take so seriously that we fear it or feel the need to constantly denounce because, again, that's not super persuasive.

Sarah [00:15:08] The media coverage feels very much like, well, this is our chance to be neutral and make sure we're covering challenges to Biden as much as we're covering the Republican nominating process relentlessly.

Beth [00:15:21] Yeah.

Sarah [00:15:21] Not my favorite energy when it comes from the mass media. They just want something to talk about. They desperately want a way to talk about the fact that Joe Biden, in case you hadn't heard, is 80 years old. I just sort of roll my eyes at that. I don't love that instinct. I don't think it's helpful. I don't think it's productive. Attack prose. I just think can someone check on them? With the cage fighting challenges. And just obsession with artificial intelligence, and is it going to destroy the world? Is it going to save the world? Just the energy there is really weird right now, so it doesn't really surprise me that they would find a beautiful mirror for their very weird energy in Robert Kennedy Jr. But I do think somebody needs to go check on them because I'm a little worried and I don't really want all that weirdo energy in the primary that's going to be filled with enough. I am delighted by Chris Christie's entrance into the field. I love his vibe right now. Maybe I will give him $5 as well. He desperately needs to be on the debate stage because he cares not at all about Donald Trump. And I dig it. I also talked about it when he was on the podcast and I said it's not about like morality to me or even the fact that if he's ethical or not, he's just authentic because you can just tell. You just mad at him, can you blame him? He got COVID from Donald Trump and almost died. Every chance that Donald Trump got to screw Chris Christie, he took it. And so I'm just here for that honesty fueled not in small part by revenge. I'm here for that on the Republican side.

Beth [00:17:02] He just claims that there is a redemption element at play here too, but I think it most certainly is. His reputation has taken such a beating over Donald Trump. I wouldn't vote for him in the general election, but I am really happy that he's doing this. And I am really happy that more than Chris Christie is doing it right now, I think that field needs to be pared down before people actually start voting so we don't do a repeat of 2016. But you have multiple voices in the presidential contest getting media attention, out talking to voters. I think it's part of the essential work of turning the Republican electorate. And I think it's even more essential as we see this tension in the House of Representatives where the far right continues to try to freeze the party and the entire House in place. And I think those Republican members of Congress who are not part of the Freedom Caucus need the energy of presidential candidates out there saying enough is enough. So I'm really encouraged, even if they get a tiny percentage of the vote, even if they don't even make it to the state where I'll get to vote in a primary, I'm just encouraged that someone is trying to make the stand that needed to be made years ago.

Sarah [00:18:22] Well, are we ready to move on from Trump, Beth?

Beth [00:18:25] Always and forever. Yes.

Sarah [00:18:28] Want to talk about the Supreme Court? Another disappointing institution.

Beth [00:18:32] I have a feeling I'm going to be talking about nothing about the Supreme Court for the next month. I have a lot of reading to do. I need them to slow down just a little bit, but they're not going to. We're cruising to their break. So I get that energy.

Sarah [00:18:44] That's right. We're going to talk about their decision with regard to the independent state legislator theory and affirmative action. Beth, it's that time of year. The Supreme Court has some thoughts I'd like to share with the rest of us, issuing lots of opinions because of its term. Earlier this week, we got the decision in Moore v Harper, or, as I like to call it, Zombie Bush v Gore. It's like Bush v Gore won't die. Keeps coming back to us. This is the case that garnered a great deal of attention because it was about the independent state legislator theory. We're going to get into that. So let's go back to 2021. The Republican controlled North Carolina state legislator. State. Drew a congressional district map. Well, I know it's confusing, but those are state reps drawing a map for federal representatives- as is their right, as is defined by the Constitution. Okay. So it was challenged in state court as a partisan gerrymander. Well, what does that mean? Let's put some numbers around that. So North Carolina is pretty evenly divided between Democrats, Republicans and unaffiliated voters. But this new map gave Republicans 10 of the 14 seats in the House of Representatives. I don't know exactly what you'd call evenly divided and I'm not that great at math. So back in 2019, the Supreme Court, in a decision written by Chief Justice John Roberts said, "Not it, we're not going to get involved as federal courts and claims of partisan gerrymander, but state courts could if they felt like it." So back in 2021, when they drew this map, it got challenged, not surprising, and the North Carolina Supreme Court said, okay, we have an issue with this map and we'd like it redrawn. So that led to a map that was drawn with 77 split in the state's congressional map and probably contributed to a smaller House Republican majority in 2022 because of the way the map was drawn. But the Republican state legislators were not done and they were mad. And they went to Supreme Court and they said, well, we know you said state courts can consider claims of Partisan gerrymander, but what about independent state legislator theory? Y'all love that. Some of y'all do. Some of y'all are independent State Legislator theory curious. So let's talk about that. And this is why I call it Zombie Bush v Gore. Because that theory was espoused by Chief Justice Rehnquist and a concurrence and Bush v Gore, which always important to remember, was not supposed to have any presidential value. Very clearly the quote was, "Our consideration is limited to the present circumstances." So if you would like to go back in time and find the source material for the conservative courts disregard for president, may I recommend Bush v Gore to you? So in this concurrence, he says, if you squint your eyes and you look at the elections clause and the electors clause-- which a lot of coverage did not clearly distinguish between these two. Clauses in the United States Constitution. He said, If you squint your eyes and you look at them together, you can come to the conclusion that state legislators would be free to violate their state constitutions, and state courts would be powerless to stop them because they have all this power with regards to elections. Now, fun fact, this theory was also and the Bush side, which at the time had some young lawyers named John Roberts, Amy Coney Barrett, and Brett Kavanaugh on it. So Bush V Gore zombie case, here we are before the court.

Beth [00:22:24] Chief Justice Roberts wrote this opinion for a six justice majority and said simply, state legislatures are not free agents as it relates to federal elections. They are created by their state constitutions. And so, they have to comply with their state constitutions and their state supreme courts can make sure that they're doing that. Which is a pretty unremarkable assertion, but it is remarkable that it came out of this court with Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett all in the majority. That to me is where the good news of Moore V Harper stops. When you think about Bush V Gore, if the Supreme Court is writing an opinion that should have no presidential value, then you have to question whether the court should be writing that opinion at all. The court is not supposed to just make decisions that don't contribute to a larger body of law. Moore V Harper's dissent, authored by Justice Thomas, joined in part by Justice Alito and in full by Justice Gorsuch, makes what I think is a really important point in this case, which is what is the point of us deciding this case at all? We're really just announcing our thoughts on something, and we don't exist to do that. Because in North Carolina for the people of North Carolina, they had elections in the meantime. And not only did they elect federal representatives, they also elected new Supreme Court justices. So North Carolina's Supreme Court has now reversed itself completely and said we no longer will assess partisan gerrymandering as a constitutional issue in our state. So Moore V Harper at the Supreme Court level says the 2021 map can't be used because we reject this independent state legislature idea. But the legislature can now draw a map just as bad as that one, and there is no one to review it for Partisan gerrymandering.

Sarah [00:24:29] In North Carolina.

Beth [00:24:30] Right.

Sarah [00:24:31] Well, I think the Moore's argument-- God, I can't believe I'm going to say this. I kind of agree with Clarence Thomas and the Biden administration. The Biden administration argued this is Moot; don't take this case. They threw it out. Now, do I think that this was some particularly heinous behavior from the North Carolina state Supreme Court under its new Republican majority? I do. The politicization here is off the charts because now what are you supposed to do if there's partisan gerrymander? I guess just be sad about it. That's your only option, which is a great option in a democracy, I think. And so, yeah, I mean, I think the mootness argument, Justice Roberts is like, well, they reversed it, but they didn't vacate it. I'm like, friend, come on. That is a tough argument. So I think he's right. And I think Thomas's other argument, which is now you've said federal courts can get involved in these state court decisions interpreting state constitutional law which, again, original virus from Bush v Gore. That was the problem there. That's what they upended from the beginning because for hundreds of years, the idea that United States Supreme Court would get involved in a state court interpreting its constitution and election law was pretty bananas and, oh, I don't know, kind of political. And so they avoided it for lots of good reasons. But then they said, we're going to do it but just this time it doesn't count, except for it keeps coming back up like a damn zombie. I don't have a lot of high opinions about Bush v Gore, in case you couldn't tell. And so now they're saying, well, in certain situations, the United States Supreme Court can get involved. And I think, God, I can't believe I might say this again. Clarence Thomas is right when he says, okay, but what does that mean? When? How? What's the standard if Kavanaugh-- because he just loves to hear himself talk-- had a concurrence where he was like, well, let's use Rehnquist's standard. But that's barely a standard. And I think it's going to create chaos. I think they're going to have lots of issues with the 2024 election. I think they still haven't resolved or even addressed the ways in which they use the shadow docket with these cases and the problems there. So I'm thrilled that they shockingly didn't restrict their own power, which institutions aren't really excited to do most of the time and said no, state Supreme Court is getting involved and we can review this too. State legislators aren't free agents when it comes to federal elections. That's good, I guess. But I think they left open another door for more chaos later on.

Beth [00:27:09] I'm covering this case in a lot of detail from a legal perspective on Monday on More to Say one of our premium shows. The citizen perspective of this case to me is that we get very drunk on rights in America without thinking about responsibilities. We don't have a backstop for legislators who operate without principle and conscious. We just don't. It is true that the upshot in this case for North Carolina is that all you can do about a partisan gerrymander from a legal perspective is be sad. From a political perspective, you have to find a way to elect new people who will not behave this way and who will reverse this kind of conduct. And that's really hard when they have operated in a way that makes your chance of electing new people more difficult structurally. And I think we often talk about the court as though they should always figure out a way to fix things, and we just can't fix everything through the court if our legislators are willing to consider their power more than their responsibility. I don't disagree with the Supreme Court that there could be a circumstance where a state Supreme Court weighs in on an election in a consequential way that is entirely partisan. North Carolina's Supreme Court acted in an entirely partisan way in its second go round with this case. So in theory, I think it is important that it is out there the possibility of the Supreme Court stepping in to check a state Supreme Court, even around state law. We just all have trust issues because of the way the court has been operating. And so every sentence I read, even from the six justice majority, that includes Elena Kagan and Sotomayor and Justice Jackson, I thought, well, this feels right, except when you put some personalities behind it and imagine where this could go.

Sarah [00:29:13] Yeah, I agree. When I was reading or listening to arguments, particularly from the progressive side, that was like, this is so terrible that the United States Supreme Court could step in. And I want to be, like, is it? Because back to my zombie metaphor, the virus has spread guys. Bush v Gore was that initial infection and it just keeps spreading. And the problem, though, is when we say the United States Supreme Court can get involved because there is politicization at the North Carolina Supreme Court, for example, the assumption there is that there isn't at the United States Supreme Court, which is also not true. So we're in this sort of death spiral. Like, how far does this have to go? How obvious does this have to be before we step in and say it's not about the personalities? We have structural problems. There has been too much politicization at both the state and federal level when it comes to the courts. And so nobody trusts anybody. And, therefore, checks and balances is not functioning in the way that we had originally intended. And, listen, these guys are originalists. They be up for that argument.

Beth [00:30:12] Yeah, I should amend my statement. We don't have a backstop for legislators who operate without conscience or principle or for judges who operate without conscience or principle. There are so many aspects of our system that just completely depend on people in positions of power doing the right thing.

Sarah [00:30:29] Before we get to affirmative action, that seems like a great intro to the newest scandal-ito, which I am stealing from the women at strict scrutiny because I thought it was so good. In case you missed this, Sam Alito, my least favorite Supreme Court justice at this particular moment in time-- and there is some really stiff competition-- pinned a little op ed in The Wall Street Journal trying to preempt a story from ProPublica about the fact that-- I think it was like 15 years ago, several years ago. He took a private jet to Alaska and stayed at the lodge of a billionaire who just so happened to have some cases before the Supreme Court that he just so happened to decide in this particular billionaire's favor. And so he tried to get in front of it in the worst possible way. If you have not read this op ed, I highly recommend it. This is what I said to Beth. I said, "Does this man not have anyone who loves them who would look at him and say, 'This is a bad idea. Do not publish this. You sound like an asshole.'"

Beth [00:31:42] The people who pretend to be publicists on Instagram could have advised him better than whoever green-lighted him putting this in the Wall Street Journal. I think the current justices are going to have to live with the reality that ProPublica now now lives in their trashcans. ProPublica is going to be publishing more and more and more stories until someone pays attention. And by someone, I mean the members of the Judiciary Committees in the House and the Senate. Because we have to have an ethical code that makes sense to the public and saying, I took a seat on a private plane that would have been empty were I not there, so it doesn't count." Does it make sense to the public?

Sarah [00:32:27] Beth, it would have been vacant otherwise.

Beth [00:32:30] Can you imagine going into the Supreme Court and saying, "This thing I have is valueless because if I didn't have it, no one would have." They would reject that argument because it's silly. They would also reject the argument that I would have decided this case this way anyway. That argument means there is no bribery as long as you were going to do the thing that you got paid for.

Sarah [00:32:51] Yes. What about his argument that the definition of facilities includes private jets?

Beth [00:32:59] I think he would say that's silly were he on a judicial seat on it too. At best, you can read this op ed and think, are you up to being a Supreme Court justice anymore? Your legal skills seem shoddy to me.

Sarah [00:33:14] Well, listen, the other component of this very scandalous little insight about Justice Alito, speaking of is he up to being a Supreme Court justice, is that he currently has written the fewest decisions of any justice on the Supreme Court by like half. I think Gorsuch has written six and he's written three. And if you are not aware of the inner workings of the Supreme Court, good for you. Chief Justice John Roberts assigns which Justice will write the majority opinion and all Supreme Court cases. And so, we think maybe Justice Alito is in the time out chair.

Beth [00:33:51] Also, Justice Alito is terrible to read, so I'm pleased about this. Can I just say, it always pains me to be publicly critical of the Supreme Court because I so believe that a trusted judiciary is essential to what we have going on here in America. It is essential. I do not know how you run a functioning democratic republic without a trusted judiciary. And so I do worry about undermining institutional confidence and trust. At the same time, I'm not going to lie about what I see going on. And I think with Justice Alito in particular, he himself is out there eroding confidence in this body's ability to be impartial in cases through his public statements. He clearly believes that he is a victim of a liberal media. Justice Thomas, through his public statements and certainly through his wife's activities, puts all his cards on the table about his politics and how they influenced his thinking. I'm not going to put my fingers in my ears about these two men who are two of nine people and pretend that everything's okay, because I believe the body is so important.

Sarah [00:35:07] You know what I'm going to say, I sound like a broken record. But I think we can trace a lot of this back to Bush v Gore, where it was just the politicization with total disrespect for the institution itself. And, honestly, I think some of this goes back to just the conservative campaign through the federalist Society to stack the court. Because when you operate like that, when you say we are picking with this particular goal in mind, then it becomes about the Justices and not the court. The court is a means to an end. That's how it's treated by the Federalist Society. So what do we expect the health of the institution or the ethical behavior or the justice itself to reflect when it's being treated like a means to an end? A means to a political end in particular.

Beth [00:35:57] And good judges often arrive at decisions that are surprising in the abstract. This morning, as we were sitting down to record, the court released a religious liberty opinion that's unanimous. So it's not like the liberal justices are never going to protect religious liberty. They're going to analyze the right on the facts of the case and see what conclusion leads them to. The court should often surprise us because that partisan leaning doesn't neatly stack up with the law on either side. And I think that the real damage done by this op ed from Justice Alito and by much of what he has said in public is revealing that he thinks of himself as a partisan operative more than as a judge and as a partisan victim more than as a judge.

Sarah [00:36:45] Yeah. Well, I think he cannot distinguish between partisanship and righteousness. He just thinks it's not political how I am, it's right. That's what I am. I'm right. And God is on my side. So the deck is really stacked in my favor. I think that's how he views himself in the world, and particularly his role in the court. The decision in Dobbs was dripping in that. Every sentence, every footnote it was like, I don't really care what you think because I'm right. Now, talking about decisions made by the Supreme Court this week is probably a good lead in to the affirmative action cases. Decided this morning, Thursday, June 29th, as we're sitting down to record the Supreme Court with the conservative majority, all three liberal Justices in dissent have decided to end any race-based admissions at colleges and universities across the country, saying that they are unconstitutional under the equal protection clause.

Beth [00:37:51] Since we were just talking about court ethics. I just want to note again that Justice Kentaji Brown Jackson recused herself from one of these cases because of her position relative to Harvard University. And I think that's a good practice and I applaud it and I encourage it in Supreme Court justice analysis all the time.

Sarah [00:38:08] It is confusing, though, because there were two cases, one versus Harvard and one versus UNC. So she recused herself from the Harvard, but she wrote a dissenting opinion. So it's confusing when you hear she recused herself and you're, like, why am I reading an opinion written by her?

Beth [00:38:22] But those particulars matter, the particulars are the job when you're on the Supreme Court. And I'm glad that she is invested in the particulars.

Sarah [00:38:30] So let's talk a little bit about the constitutional history of affirmative action. The reality, in a very similar track to abortion rights in America, is that affirmative action has been on shaky ground from the beginning. So in 1978, we have the Berkeley decision. We have four liberal Justices in favor. And then you have Justice Powell alone in the center, and with the support of four Justices ruled that this particular numerical quota could not withstand constitutional scrutiny, but that racially diverse educational environments was a compelling state interest sufficient to overcome any constitutional bar. Okay. So, we get you can't do a quota, but diversity is important. I was in a lot of concrete legal guidance that people were looking for. In 2003 we have the Grutter and Gratz decisions where the court was distinguishing between two types of system. One that was, I think, a law school, one was an undergraduate, and one used a numerical factor. They said, "No, cannot do that," but they did allow for prioritizing racial diversity I guess more vaguely, which is not a word you want to search for when describing a Supreme Court decision. And what you really get from these two decisions is Justice O'Connor in a concurrence saying, there should be a time limit on this. Twenty five Years. We should really not be prioritizing racial diversity in college admissions. This should get us to a place. To get us to the promised land where we don't have to worry about this anymore. Okay. So that brings us to a case in 2016 where they again affirmed in Fisher that it was a compelling state interest, this sort of diversity in college admissions, but didn't clarify any further. And then we get the cases here against Harvard and UNC, where you have white students and Asian-American students saying that it violates the equal protection clause because they're being discriminated against in college admissions. And they go into a lot of great detail in the decision about the processes themselves at Harvard and UNC, which I thought was really interesting. But the court, led by Justice John Roberts, who writes the opinion, with the five other conservative Justices basically say, well, we did it; we're here. We don't need this anymore. It's been 20 years. O'Connor said 25 on a whim. So we're ready to discard this. This is no longer a compelling state interest to have diversity in education, and we will not be allowing for any race conscious admissions at colleges and universities.

Beth [00:41:08] I struggle to talk about Supreme Court cases before I've read them. And the court issued 237 pages of opinions as we were sitting down to record this morning. So I want to be careful in how I characterize anything. We did a full episode, though, on affirmative action to prepare for these decisions, and we'll link that in our show notes. Nothing about this is surprising. As I read through the syllabus this morning, the summary that the court provides of the opinion it is a very straight forward, passionate argument that white people are included in the Equal Protection Amendment. And I think that's an opinion that Chief Justice Roberts has felt very passionate about for a long time. And I'm not surprised by the defensiveness of this opinion, because I think he knows how controversial it will be. I also am not surprised about the intensity surrounding this case because as we talked about in our first episode on this topic, higher education just always gets an interest from media and scholars and people who love higher education. That is disproportionate to how I think the majority of Americans view it.

Sarah [00:42:16] Yeah, I think there's a lot of big feelings going on here. And I think they are clouding some of the reality. And let me try to explain this as much as I could. First of all, I don't appreciate even the language in the dissent or the language in so much of the coverage that's, like, they are taking away the progress we've made. They are reversing the progress we've made. They're erasing the progress we've made. No one is going to come and take people's college degrees earned during this time where race-based admissions policies were constitutional. That's not going to happen. So I just want to say that, first of all, because I think that language is not helpful. And as a progressive, I always have to stop myself and think, wait, what am I actually fighting for? Because I think when you are sort of a pro-government political person or a person that believes we've gotten things wrong and we should try to fix them and we've made progress, you get blinded. I think that happened with reproductive rights. Roe v Wade was not a great decision. Viability is not a great foundation upon which to build reproductive rights. But you just get so defensive. You get so protective. Protective is probably a better word. That you have to stop every once in a while and go, "What am I protecting?" Does anyone think that college admissions right now is the path to a diverse and equitable Utopian future? I don't. Everything I read as the mother of a soon to be freshman in high school is that it's a mess. It's a broken mess. The Times did some really good reporting on Proposition 16 in California, a very liberal state where it was trying to restore race conscious admissions at public universities because it had this referendum decades ago that said we're getting rid of it. And they were trying to reverse that and put back race conscious admissions. And it failed badly. It failed badly. It failed badly with many, many portions of California's very diverse population. Because I think to your point of this is an obsession of particularly elite media, I think when you look at people and say people whose kids are in wildly inequitable public schools, public schools that are struggling post-COVID, public schools that were struggling pre-COVID, and say the real issue here is that elite university should have diverse student bodies, they're going to roll their eyes at you. And I think that's deserved. I don't even think if you look at someone and say we have a racist college admissions process but the solution is to really strive for a diverse student body, that's really not what we're saying. That's the debate underneath the debate, is we don't think the solution is diversity for diversity sake, which is what the Supreme Court kind of settled on. Like that has its own value. To me, what we're really emotionally wrapped up in is where are we at on this timeline of racial progress? I think Justice John Roberts and I disagree dramatically about how close we are to this sort of racial perfection. I don't think that's ever achievable, but I also don't think that we haven't made progress. And I think that's what gets lost a lot of time in the progressive debate. It's this sense of like nothing's gotten better. Well, then what are you fighting for? If it's not working and everything's still terribly broken, then why are we defending this system to begin with? And I think that is what is the undercurrent here. And the foundation we built affirmative action on constitutionally was shaky, just like with reproductive rights. And so we can't really argue, debate, discuss the real issues because we're too busy defending this very precarious constitutional foundation.

Beth [00:46:44] A bunch of listeners recommended Frank Bruni book to us called Where You Go is Not Who You'll Be. Frank Bruni is an outstanding writer. I love reading his work. And so I picked up the book and I read about half of it and it was great. But I stopped reading it because I realized he was making an argument that doesn't even feel like it needs to be made for me, because I've never thought that where you go is who you'll be. And I put a lot less stock in Ivy League education than many people in our country do. It's not that I think it's valueless and it's not that I think that it doesn't matter how race is considered in admissions at these universities; I just don't think it matters as much as it starts to matter when you really get into the contours of this debate. And I think the average American-- and I do not mean the average white person. I think the average American would say that, yes, the equal protection clause applies to all races, including white people. And it is important to start to think of white as a race alongside other races. That is how we advance towards equality. I think you can hold that thought alongside the fact that the idea of being racist against white people is envisioning a landscape that we don't exist in yet because white people still hold so much power. I think you can believe those things together. And the difficulty in talking about that illustrates for me the fact that, again, we're in territory where the Supreme Court is ill equipped to advise us. The Supreme Court cannot take us to a racial utopia. They cannot make us a multicultural democracy that truly values every person. They can do a lot of harm in this space and they can do some good in it. And I think they did some good in it by allowing these policies to operate. I probably would have continued to allow these policies to operate and accepted that sometimes that produces really bad results and sometimes it produces really good, ones and that a lot of us will not agree on what's good and bad around college admissions. But my problem with this being so outsized in even discussion of this court's term, is that ultimately who gets a college degree ignores a lot of other places for our political energy. By the time you get to the admissions process, how much racism has impacted the lives of students going into that process? That's where I would rather put my focus.

Sarah [00:49:13] Yeah, I 100 percent agree. I don't think anybody, even the most passionate proponent of race conscious affirmative action, believes that college admissions or even college graduation fixes any racism a child has experienced up until that point. Now, let me say something. In the same way that I would like to see less hypocrisy from the pro-life side and more concern with all aspects of life, I would also like to see less hypocrisy for Mr. Blum and the students for fair admissions and more concern about the inequities at all points in the educational timeline. Look, if I want a constitutional revolution, I can tell you where I'm starting. It's not with affirmative action. It's with San Antonio Independent School District versus Rodriguez, where the Supreme Court said you don't have a constitutional right to a public education and we can set up funding models based on property taxes that are wildly inequitable. With a famous dissent from Justice Thurgood Marshall, who I think knows a little bit, probably has some great historical experience with inequities in education cited often by the defense and the majority of this opinion, saying that decision can find countless children to be in an inferior education and is an actual betrayal of the equal protection principles. And that's where I'd like to start, honestly. And I think that's where you lose people when you say you don't have a constitutional right to an education, and we can't really do anything about the fact about where you live determines what quality of education you get in America. But we better be really consumed with the admissions process at Harvard and UNC. I mean, can you blame them for sort of rolling their eyes and saying no? I thought it was really, really interesting that Michelle Obama released a statement about this decision. And she started with talking about how being one of the few black students at the university she attended left her wondering how many people felt like she was there because of affirmative action. That's how she started. Now, she doesn't like this decision. She thinks there should be race conscious admissions, as do I. But again, let's just be honest and upfront about what we're defending and the problems with what we're defending. We don't make our case stronger by saying you're evil, there's no problems here. This was going to fix everything, and you stopped it. That is not a strong argument. But that is not to acknowledge the real heartbreak. I think students across the country are going to feel. They're going to feel like the deck is even further stacked against them. And that sucks. And what I hope is that in the same way I think Dobbs wiped the board and really start over, I really would like a wipe the board situation with admissions. Get rid of legacy admissions. Please stop. Would that part of the decision where they talk about they consider four things at the very final round at Harvard and one of them is legacy admissions. I'm like, tell me about how you care about the student body when one of the four things you prioritize is the children of former students. Get out of here. If we want to prioritize diversity, if we want to address inequity, which I think is the actual goal, then let's find an admissions process that does that without trying to build this complex process that doesn't it piss off the Supreme Court, right? Let's do this in a way that addresses inequities that we know exist, parts of the process that really do stack the deck against all types of students in both. Racial ways, economic ways, geographic ways. Let's do that.

Beth [00:53:21] And let's address those inequities early- pre-K. Let's start looking at what kind of opportunities are available to all students. That's a lot more important to me than this decision. I will read these opinions. I will cover them in detail on More to Say. I care about this. I'm not trying to be dismissive. I just also I'm trying to keep it in perspective.

Sarah [00:53:46] Look, our perspectives are limited and so we look really forward to hearing from all of you who work in the college admissions process, who have firsthand experience with race-based admissions. And we always get the best feedback from our episodes on higher education. So we can't wait to hear from all of you. Beth, today for Outside Politics, we are going to have a discussion about favorite children. Are you excited as an Enneagram two?

Beth [00:54:27] It sounds like a nightmare to me.

Sarah [00:54:31] Okay, here's where this idea came from. We had a dinner. It was my three kids, me and my husband, and Mimi and Ron- my parents. And we had to talk about everybody's favorites. Like tongue in cheek. It's not we're like, we actually love you more.

Beth [00:54:47] Here's the sharp elbows in the Holland house that I do not like.

Sarah [00:54:49] That's exactly right. So we had a conversation. The funniest part was we said, "Okay, well, Griffin is Ron's favorite." Ron was like, "What? I don't have any favorites." And literally everyone at the table was like, "Ron, yes, you do. And it's Griffin." And then I said, "Amos is my favorite and Felix is Mimi's favorite." And Nicholas claims neutrality because I think his favorite sort of shifts. And we've been on a journey. When they were really little, I would tell them secretly, like I would find them when they were by themselves and I would whisper in their ear "You're my favorite," but I would do It's all three of them. And then when they get older and they're bigger, they'd be like, "Why did you let Felix do it?" And I would be like, "Well, because I love him more. That's why I let Felix do that." Always, sort of jokingly. And so when I said we're going to talk about this, I asked Griffin, I was like, "How do you feel about this when we have this conversation?" He's like, "Well, it's like joking. And also you don't treat us any different." So that helps. But I'm assuming you even jokingly do not reference any of your children as favorites.

Beth [00:55:51] I don't. And I also wonder if the dynamic is different because I only have two. Two kids versus three kids seems drastically different to me in every way.

Sarah [00:55:58] Yes. That's a minefield with two. I totally agree with that.

Beth [00:56:03] I would say I connect very differently with my two and I can imagine that sometimes they perceive that as you like her better than me. So I have one sister. I'm 12 years older than her. We only lived in the same house for like five years of our lives. It would be easy for me to say that she seems like my parents favorite, but the truth of that is that they connect with her differently because they have been parenting her more recently. I've been an adult child to them longer. And so I'm sure that I do things that at times Jane or Ellen would say, "No, you like her better than me." In fact, I know I do. They tell me sometimes, but I don't use that language with them even jokingly. And when they say, "Whose do you like better of these paintings or who did a better job singing this or whatever," I would say, "You're too different to compare. I love you both. I love different things about each of you. Your too different to compare."

Sarah [00:56:57] Yeah. I don't pick favorite art, favorite projects. Like when they make the same thing I don't pick favorites. I don't love that energy. I think just from the beginning you sort of reacted to the idea, especially with three, that you could live in this neutrality is just false. They're different kids. Of course I'm going to treat them differently. And if I was to say, "I love you all equally. I love you all at 100 percent," well, that's 300 percent for me, and that math doesn't add up. So I think I was pushing back against this idea that as their mother I could be the totality of everything to all three of them at the same time, equally and forever in perpetuity. I was like, no, I don't love that. So I sort of kind of just embraced this vibe of like, oh yeah, I love him more right now; or no, you're my favorite or whatever. And also because my parents live down the street. We have four adults and three kids. So there's like just a lot of attention. We're not at a deficit. My kids are not lacking for attention literally at any point in their lives. And so, we sort of just play around and laugh at the idea of, like, of course, Ron is Griffin's favorite because Ron just fell in love with Griffin as a baby. Like, he would never really been around a baby. It was his first baby. And also I do think that's true. Like, your first is so different. Your last is so different. But I do think the two versus three is for sure a different dynamic.

Beth [00:58:21] Their ages make such a difference too. It's more fun right now to shop with Jane than with Ellen. It's more fun to go to Starbucks and read with Ellen than it is with Jane, because Jane wants to chat the whole time and Ellen actually wants to read her book. When we shop, Jane is engaging, she's fun, she's interesting. She has a great sense of style. They're just different places in life. This conversation makes me real paranoid about how they internalize some of those things that I choose to do with each of them or how I talk about it. But they're just such different kids and I am just a human, so I'm not neutral either. I probably on different days or in different activities like one of them better than the other. But love is a different category.

Sarah [00:59:09] Yes. Well, and you know how you can tell that's true? Go to TikTok and search like sibling order. There are 3 million videos where kids and adults are joking about the different ways that their parents treated them. You can't treat them the same. That's impossible. They're different. You're different. When you're parenting them is different. I do think that there is a gendered component about this. I don't know how this would play out if I had boys and girls. My kids know that I had gender disappointment. They know that I thought Griffin was a girl. They know that I was very sad I never had a girl. I say sometimes it's hard being the only girl in this family. And at the same time, I hate the way people talk about especially all-boy families. Although, I think all-girl families get it too. Like, are you trying for a girl? You never got your girl? Are you going to try to have a girl? As if they're just throwaways.

Beth [01:00:02] Yeah. That dynamic is real bad when you don't have a boy either. Absolutely. It goes the other way too.

Sarah [01:00:06] It's so obnoxious. I got on this algorithm where I was getting gender reveals, particular gender reveals of women who'd had a bunch of boys and were finally getting a girl, and the fervor with which they reacted made me so angry. It was just like, "Come on, what do you think you're presenting to the world?" You were just trying to get the girl. They were just what you were getting through to get to the girl.

Beth [01:00:35] That kind of stuff is parenting as possession or treating your kids like accessories to your life. And I think that as silly and obnoxious as that is, it is also silly and obnoxious to act like you are going to have the exact same relationship with all of your kids. Again, they're not things. They're fully formed human beings really early, astonishingly early. And the relationship that I have with each of my girls is a function of them as well as me; not just their differing personalities, but their investment in their relationship with me. I think I'm really working, especially in the past couple of months, on understanding that you don't escape childhood without some wounds caused by your parents. You just don't. You can have the best parents in the world, and because people are people, you will have some wounds from your parents. And I am creating wounds in my children, even though I don't intend that, even though I'm doing the best I can every day. And that is okay because I am also a person in this relationship. And how can I expect them to go out into the world having empathy and care for others if I don't teach them to have some level of empathy and care for me? That gets tricky. I don't want them to feel responsible for my emotions at all, but I do want them to recognize me as a complex human that they have to put some effort into having a relationship with as well, especially as they get older.

Sarah [01:01:59] Oh, you know I feel very strongly about this. Lisa, my mother, had a phrase when I was growing up where she'd say, "You'll need something to talk to your therapist about." It's always like, I'm not perfect. I'm going to screw things up. You can work that out when you're an adult just like I did. But I'm newly obsessed with Liz from Shrinking. I finally got through the first season of Shrinking during June, and there is this fabulous moment at a party. Where Paul is struggling that his daughter has showed up and exhibited such care for him around his Parkinson's. And Liz is like, "She should. You should feel grateful." She's like, "My kids, I did a lot for them. They should do some things for me." She texts her oldest son and says, "I'm sad and super blue. If you don't call me right now, I'm going to be so mad." And she holds up the phone and he starts to call and she goes, "Declined." I just died. I just thought that's it. I love that so much to acknowledge this is here. I love that she just declined his call. I thought that was hysterical. I like Liz on lots of levels. I think Liz's approach to life is good. She's also overbearing like me, so I l love her for that too. Yeah. I just think that this is a relationship. They're not objects. You're not trying to get a grade. This is a living breathing relationship. And what I found with my kids, is when I just show up and say that, when I say, "Yeah, sometimes it's easier to be around him than it is you. Yeah, sometimes I yell and I should not have yelled and that you didn't do anything wrong. I shouldn't have yelled at you just because you screwed up because you're a kid or, yeah, I was sad that I didn't have a daughter. It is hard to be the only girl around here sometimes." When I trust them with my humanity, they rise to the occasion. When I protect them and try to treat them like I'm manipulating them into a certain outcome, it doesn't end well. But when I just trust them to show up and be empathetic and mostly kind depending on their age, they meet me where I'm at.

Beth [01:04:03] Yeah. And I think the best way that I can support that sibling dynamic, which is also always going to wound you in some way, no matter what best efforts and intentions everybody has, is to say, "Yeah, I bet it does feel weird sometimes that we all share this space together. Yeah, it is hard that Ellen decides to like all the music that you like, Jane. I know that you want some room from her, and she doesn't give you that room."

Sarah [01:04:27] "Have an original idea, Amos."

Beth [01:04:30] "Yeah. It hurt your feeling, Ellen, that Jane blew you off. That that does hurt." And just say, like, "We're all people. Dad and I hurt each other's feelings all the time. We love each other so much. My favorite person in the world, if I have a favorite, is Chad." And I think they know that we are in life together and we will still be living here together when they have left us. And that's always been, I think, clear to everyone. But even with that, we hurt each other all the time and we all just keep going together because we love each other. And I think it's important for parents to allow children to invest in those relationships too and maybe especially when they become adults. Every time I go down, like if my mom has a medical emergency, which she does, she has a chronic health condition that comes up, and I will arrange things as best I can here and drive to them to be with them at the hospital. And every single time both my parents will say, "You really didn't need to come. You didn't have to do this. We know how full your life is. We know how busy you are. You get your own kids. You didn't have to do this. There's really nothing to do but sit here and wait." And I finally said to them this last time, "Hey, you did this every time I come. I'm coming, so we don't have to do this because I'm going to come anyway. And please don't pretend that I don't have value when I'm here for you. I know it matters that I'm here and it's okay for us to all say that, and it's important for me that it does." And I want to show my girls that we are still a family even when you don't live here anymore. We're still a family. I'm still a family with Gran and Grandaddy and I am going to get there when they need me, even if they tell me they don't. And I hope that you all will do that for us too.

Sarah [01:06:04] Yeah, I love that. I do take more of the Liz approach, which is you will be here for or I will send you threatening text messages. No, I'm just kidding. We do talk about it though. Like, yeah, this is expected. I expect you to be here for me as we get older. Like that's what being in a family means. It's not this individual pursuit where I pour myself into you to make sure you take flight, because I think we're just on the limits of that. I think that's part of what the loneliness epidemic is. As we told people that their individual pursuits of success were the path to happiness. And it turns out human beings are social animals and they need more than just individual success to make them happy. Shocking. I know. All right, we've covered a lot of ground today. Thank you so much for being with us. We always appreciate you share your incredibly valuable time with us here at Pantsuit Politics. And since you've made it all the way to the end of this very long show, presumably you like what you hear. And it would mean so much to us if you would share that sentiment with the world. Rate and review the show or recommend it to a friend. Even better, if you didn't do that at the start, you can do it now before the credits even finish. So thank you for joining us for another episode of Pantsuit Politics. Next month, Beth will be here sharing all kinds of cool interviews and episodes with you. I go on break in July. We will both be back together in August. And until then, keep it nuanced y'all.

Beth [01:07:37] Pantsuit Politics is produced by Studio D Podcast Production. Alise Napp is our managing director.

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The Trump Indictment, the 2024 Presidential Primary, and Affirmative Action

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