- Excellent, all right.
Can everybody hear me okay?
I hope, all right, great.
Well, welcome to a wonderful
event this evening.
I wanna welcome you to NYU School of Law
and to thank the Brennan
Center for Justice
who is partnering with the law school
in putting on this event tonight.
I am Rachel Barkow, I
am the vice dean here.
And I will be the moderator.
But there's not gonna be super moderation
taking place here, we're gonna
have more of a discussion.
I am joined by my colleagues, Adam Samaha,
who is the Inez Milholland
Professor of Civil Liberties,
and Burt Neuborne, the author
and center of attention tonight,
the Norman Dorsen Professor
of Civil Liberties.
And we are here tonight to celebrate
and talk about the publication of Burt's
fantastic new book, "When
at Times the Mob Is Swayed:
"A Citizen's Guide to
Defending Our Republic".
I think it is a must read for anyone
who is worried about the state
of our country right now,
and who wants to think
about ways to tackle it.
So the book takes a close look
at the pillars of our
constitutional republic
to see how they're holding up.
On the jacket, it talks
about thinking of this
as a kind of stress test to
see how things are doing.
And finds there are some stressors
that are really calling into question
how well things are holding up.
But in a positive vein offers some reforms
and things that we can
all think about doing.
So we're gonna hear from Burt first
about the premises of the book
and some of the key ideas.
But I just wanted to add
how uniquely situated
he is to be the author of this book.
For decades, Burt has been
one of the leading voices
in our country about constitutional law
and constitutional rights,
and he comes at this question
as a prolific scholar
and also as an advocate
who has participated
in more than 200 cases
in the US Supreme Court.
He is the former legal
director of the ACLU
and the founding legal director
of the Brennan Center for Justice.
I don't know that there is
an area of constitutional law
that he hasn't put his
fingers on and improved
in his long and wonderful career.
So I think the best way to start
is to have you kick this off
with a kind of an overview of the book
for folks who haven't yet
had a chance to read it.
Which they will remedy tonight.
You can do it after the
debate if you want to.
So Burt, can you kick it off
with a little overview of
what we'll be talking about?
- Thanks, Rachel, and thanks
for the lovely introduction.
She's right, there isn't a
piece of constitutional law
that doesn't have my
gummy fingerprints on it,
but not necessarily for the better.
I have worked on lots of cases,
but I've lost lots of
cases and won some as well.
So the, let me start by
just saying a personal word
that it's lovely to be here.
This is my 48th year on the NYU faculty.
I find it remarkable to look back
on the progress of the school,
having it be one of the great intellectual
sites of the law in the world.
And how wonderful it's
been to be on that ride.
And just to say to you tonight,
on a very personal level,
that I miss Norman Dorsen,
and very much wish that
he were with us tonight.
(audience applauding)
So the purpose of the
book, as Rachel points out,
is to give a stress test to
the, to our institutions.
When you get my age,
stress test or something,
you think about a lot.
So it's a stress test for
American institutions,
and the reason and I
think it was important
and is important to administer
a stress test like this
at this time is that the
institutions are under
a kind of pressure that
I never would've dreamed
in earlier in my career that I would see.
And as those of you
who've looked at the book
and those of you who may read it,
this is the second chapter, chapter two,
which is the chapter
that nobody gets past.
They warned me that if I put it in there,
nobody would get past.
But the second chapter is the chapter
where I do a serious comparison
between Trump's rhetoric and the rhetoric
that Hitler used in 1933
to 1936 in Weimar, Germany.
And I wanna clarify something,
'cause it's very important.
Because people get to that point,
and they don't go any further.
And they wanna talk about Trump and Hitler
and Trump and Hitler and Trump and Hitler.
That's not what this book is about.
The reason that I thought it
was important to write the book
was that the kind of
rhetoric that Trump is using,
which is very similar
to the kind of rhetoric
that Hitler used in '33 to '36,
has the capacity to put immense stress
on Liberal Democratic institutions.
It's a rhetoric of divisiveness,
it's a rhetoric of fear,
it's a rhetoric of anxiety,
it's a rhetoric of anger.
And that it has the capacity to erode
and essentially corrupt the institutions
of liberal democracy that depend upon
a more tolerant and a
calmer approach to things.
I am not and do not
compare Trump to Hitler.
I think it would be odious to trivialize
the horror of what Hitler did
to suggest that anything
that Trump has done
or is even talking about doing comes close
to that level of odiousness.
And it trivializes Hitler to be,
to just use him in an
ordinary comparative sense.
But I think it is legitimate to point out
that the rhetoric is the same.
And that the rhetoric is what
chapter two is all about.
Now assume that I'm
right, that there's lots
of tough, very difficult
rhetoric floating out there
and that it is particularly parallel
to much of the rhetoric under Weimar.
What do our institutions,
how are they structured to deal with it?
And I try in the book to
divide the institutions
into two kinds of categories.
I call them the internal brakes,
which are the brakes that democracy itself
should bring into play to
control this type of behavior.
And the external brakes, which are brakes
that outside people will
bring in to do that.
Now the internal breaks are the Founders'
development of democracy that
has relatively constituencies,
made up of very diverse people,
where it's very hard for a single group
to capture a constituency
and capture the democracy.
And the theory, and that's why,
that's why the Founders have
large congressional district,
it's why we have large Senate district.
They thought that the bigger the district,
the harder it is for a small
group of people to capture it
politically and to abuse their opponents.
We've got three problems
with the internal brakes.
The first one is the fact that the Senate
does not actually provide us with anything
remotely resembling
Democratic representation.
The Senate is badly distorted
and it's badly distorted
rural, urban, and voter of color, White.
So for example, Wyoming,
with 600,000 people,
at 97% of whom are White,
elects two senators.
California, with 40 million people
of enormous diversity
also elects two senators.
That's a 65 to one breakdown
in the idea of one person one vote.
So we go into our democratic system
knowing that there's a tilt
and that there's a very difficult tilt
based on both race and rural-urban split.
That's made a little worse
because the Electoral College,
the representation in
the Electoral College
is key to the Senate.
You get as many electors as you have
senators and representatives.
Well the representatives are fine
'cause they're allocated by population,
but if the Senate is not
allocated by population,
it means that the same small rural states,
that tilt that have greater
disproportionate power in the Senate,
also have greater disproportionate
power to elect the president.
And they happen to be White rural states.
The third is partisan gerrymandering.
Partisan gerrymandering,
at least under a
Republican administration,
tries very hard to increase the power
of the rural districts,
vis-a-vis the urban districts,
and to tilt the voting situation
where the voters in the urban districts
are packed into a few urban districts
that they win by overwhelming majorities
while the rest of them are
spread out over the state
in ways where they're
outvoted by the rural voters.
And that's what they
did in North Carolina.
That's why North Carolina,
which is a 50:50 state,
sends, reliably sends a
congressional delegation
to Washington that's
10 to three Republican.
And one of the gerrymander
districts was North Carolina
that was won by the Republican yesterday,
not surprisingly because it
is a gerrymander district.
Tailor-made to make sure
that the Republican wins.
So we start with those three problems.
And those three problems are difficult.
And I would say, therefore,
there is a kind of,
we suffer, the democratic process suffers
from a kind of weak racist fever.
Because White America and rural America
are disproportionately represented.
And with all of the
problems that we'll have
in creating disenchantment
and creating anger,
in not creating fair representation.
But I don't think that's
what's gonna kill us.
In the book, I have some workarounds,
there's no way to fix the Senate really.
We could fix the partisan gerrymandering.
The Supreme Court wouldn't,
but the people will.
We will get around the
partisan gerrymandering issue.
And the Electoral College,
I'm not sure we can fix it.
I think we just have to
learn to live with it.
But what's killing us as a
democracy is low voter turnout.
'Cause, and I don't care
who the voters vote for.
I don't care who the voters vote for.
Because if you think of
the Founders' theory,
the Founders' theory was that
if you have large constituencies
and large varied constituencies,
it is very difficult for a
single ideological grouping
or a single racial or religious grouping
to capture the polity.
Because there are so many voters
that you have to really
get a lot of votes.
Now if people don't vote,
then those same districts
become subject to capture.
So for example, if 30% of
the people turn out to vote
in a gubernatorial election
or as in North Carolina yesterday
about 35% turn out to
vote in the election,
that means that yesterday
in North Carolina,
a shade over 18% of that district
now controls the district.
That's exactly what the
Founders were afraid of.
That's a number subject to capture.
That's a small enough
number subject to capture.
And once you capture,
then you try to keep yourself in office.
So it seems to me that for me at least,
the way to help the democratic
brakes, the internal brakes,
is to do everything we possibly can
to increase voter turnout.
And I had some funny suggestions to do it,
some real suggestions, but I
end up in an interesting place.
I end up in mandatory voting.
I end up by suggesting that
Australia's got it right.
They have turnouts between 97 and 99%.
And they do it because there's a mild
civil sanction if you don't vote.
And my sense is if people don't vote,
they are not only penalizing themselves,
but they're penalizing the rest of us
by creating low voter turnout situations
that are capable of partisan capture
and they're frustrating the genius
of the American Constitution.
Now just a quick word
about the external brakes.
The external brakes are the Supreme Court.
That's supposed to be judicial review.
That's people outside the system
who stop the train before it hurts anybody
by recognizing that it's unconstitutional.
Now I've been in my career
playing with the external brakes.
Urging Justices to go
one way or the other.
But the one thing I'm sure,
I was sure of it when I was winning,
and I'm sure of it now when I'm losing.
It is folly to believe that
there is some sort of machine
in the sky that keeps us free.
That it runs by itself and that there is
some sort of self-perpetuating machine
where the Supreme Court will get signals
and use those signals to protect us.
It's coming from inside the Supreme Court.
Those signals are generated
by the Justices themselves.
Now they generate them usually I think
in an honest, intellectually, admiral way.
They are not partisans,
I don't think any one
of the nine Justices thinks of themselves
as partisan or acts as partisan.
But they're human beings
and they have values.
And those values break
ties in close cases.
So one of the things I argued is that,
in many of the cases I've
argued over the years,
the legal issues have been a tie,
basically a tie, plausible
arguments on both sides.
Each lawyer screams and yells
that their argument is better,
but that's what we get paid to do.
But the truth is, if you were objective,
they're pretty close to a tie,
purely legal formal arguments.
What breaks them are the values
that the arguments advance.
So that if you have an argument
that advances autonomy,
like a First Amendment argument,
the right to say whatever you
want, individual autonomy,
that's a value that
resonates with the Justices.
And they think great, that's a really,
that's an interesting legal argument,
it's plausible, maybe not overwhelming,
but it's plausible, and
it advances autonomy.
I love it, so I'm gonna
endorse the argument.
There's also arguments
that advance equality,
the Justices love that too.
But what happens when you can't have both?
What happens when you have a case
where there is tension
between autonomy and equality?
Like hate speech, like
campaign finance reform,
like affirmative action.
There, you have to
hierarchically rank the values.
Decide whether autonomy is
more important than equality
or whether equality is more
important than autonomy.
Over the years, Republican Justices
acting decently and honestly
and with intellectual rigor
have tended to rank autonomy
more important than equality.
And Democratic Justices
have tended over the years
to give greater weight to equality
than their Republican colleagues.
And that much of constitutional law
can be understood as the
interplay of those arguments.
And so when we get mad or angry or do,
look to the Supreme Court for guidance,
we have to remember that
they're human beings
being driven by values
and that they are honest
and doing what they can.
But for us to expect that our freedoms
will be perennially protected
by this group of people
in Washington would be a terrible mistake.
The only way our freedoms
will be protected,
the only way is if we protect them.
And if we protect them through the ballot,
and we protect them through
the processes of democracy.
There is no deus ex
machina waiting in the sky
to come down and protect us.
If we're not worthy of the
freedoms that we hope to engage.
- Excellent, thank you, Burt.
So I think what we're gonna do is
Adam and I are gonna take turns,
it doesn't have to be in order,
asking some questions and I'll open it up
for you all to ask
questions in a little bit
after we have our discussion first.
So I'm gonna--
- This is a tag team match.
It's two against one.
- (chuckles) So Adam,
you wanna kick it off?
- [Adam] Thanks for inviting
me, it's good to see you.
- Thanks, Adam, I appreciate it.
- So one of the highlights
of the book for me
is far beyond chapter two,
probably not shared experience much,
but it's,
(audience mumbles)
it's when you talk about the fact
that there are wide range of fairly easy
legal questions for skilled lawyers,
that there is really a wide
area of agreement there.
And I think that's an
important reminder for people.
And it's, it also suggest
a broader question
in my mind about agreement.
And it's connected to
constitutional values,
the values you think associated
with our Constitution.
And I'm wondering if that book is mainly
about the litigated Constitution.
It is some about
non-litigated issues for sure,
such as the structure of the Senate,
but I wanna ask about some of
those cross cutting values.
So a number of them that
you highlight in the book,
and rightly so, have a feature of zero sum
and the version of catastrophe
that are obvious important.
There are many issues
where we can't all win.
And so that's the theme of,
there's a left and a right
or a red and a blue way
of understanding rights.
And then catastrophe avoidance,
importantly about avoiding
concentrations of power.
So I get that, but I'm
wondering if there's
another set of values
not foregrounded here,
that are constitutional at their root,
and they have a quality of collaboration
and even experimentation for mutual gain.
Now one possibility is that
that's not a fair rendering
of what our Constitution represents.
Another is it is part of
it, but it's not really
part of the litigated Constitution.
The place where people fight about.
And so maybe it's that area where lawyers
can agree on say think it out,
but it may not be especially important.
But in light of divisions that we have,
I'm wondering if you think
that our Constitution
actually does reflect importantly,
as importantly about collaboration
and not so much disagreement
and for mutual gain and not for zero sum.
- Right, that's a great observation.
I tend to think of the world from someone
who is thinking about it from
inside the court room out.
Since so much of my career has
been a career of a litigator,
I tend to think of the world
as a litigated institution.
But Adam is right, of
course, in pointing out
that only a small slice of our experience
is ever shaped by litigation.
So for example, I was, there are two ways
that I think is clearly right.
One, there's something that I
call the psychic Constitution,
not the written Constitution,
not the stuff that's written down,
but the stuff that's in all our heads
about how things are supposed to work.
And one of the, for me,
scary parts of the Trump era,
has been the constant smashing
of those psychological barriers,
those assumptions about,
the pundits call them norms,
but whatever it is in the back of our head
that makes us think about how
things are supposed to work.
That's hugely important
and maybe more important
than the written Constitution.
More important than the
litigated Constitution.
But then the other, the
second point that Adam makes
that I think is so important,
and that's that the world
is not necessarily a zero sum game.
Litigation is a zero sum game.
One guy wins, one guy loses.
But legislation doesn't
have to be a zero sum game,
although sometimes we make
it out to be that way.
And certainly, thinking about politics
and thinking about the Constitution itself
doesn't have to be a zero sum game.
We could think of a way to
try to reach sweet spots,
a sweet spot where each
side gets what it needs.
Any good negotiator,
any, not our president,
but a real negotiator who negotiates,
who doesn't bluster and bully,
a really good negotiator tries to identify
the point at which each side can enjoy
the maximum of what it really needs
and then try to reach that sweet spot
so that each side walks
away from the table
thinking they've got what,
you can't always get what you want,
but if you try sometime,
you just might find you get what you need.
And you can do that through
really good negotiation.
And really good politics,
perhaps, should be thought of
as encouraging that kind of activity.
So I welcome the question.
And I tell you know,
it's, that's my next book,
in three years we're all gonna meet here
to talk about that all of why.
- All right, well then I'll
be the negative side of this,
which is, I mean, in a
realm of party politics,
I guess the part of the book
and what you said tonight
that I wanna question is this idea
that if we just have voter turnout,
that will solve things
because it'll represent
lots of diverse interest and therefore
they'll compete with each other.
But the Framers weren't thinking
the party politics that we have today,
they weren't thinking about
the tribal allegiances
that people have to the Republican
or the Democratic Party.
And so those parties end
up being the amalgamation
of different interest that people
are willing to sacrifice some for others.
And so I guess I'd like to hear more
about why you think we
could have better outcomes
with turnout if it turns out that,
you could have lots of turnout,
but given what you just said
about the Electoral College
and what you just said about the Senate
and what you just said
about gerrymandering,
if that all is pointing in
favor of Republican wins
and that's, we have tribal party politics,
I actually don't see that many areas
where there's any kind
of compromise at all
'cause that's just not what
partisan politics look like.
- So let me take that on head on.
'Cause that, obviously, that's
a very important observation.
The observation that so much of my,
so much of my chapter
three is all about how,
gee, if only we could
get more people voting,
what a great place this could be again.
And I claim, and I don't
even have my fingers crossed,
but I make the claim,
that I'm not saying I
want my people voting,
that I want Progressives
voting, I want everybody voting,
because the more people
who vote, the better it is.
And Rachel says that's based
on a pre-political party assumption,
that political parties have
now organized ourselves, us,
we've organized ourselves
through political parties
into two tribes with
strong ideological views
that are so inconsistent with each other
that we look at different
television stations,
we read different newspapers,
we see different worlds.
We're talking past each other,
and there just isn't
any room for compromise.
Politics is a zero sum game.
We can't get back to Adam's world
where we can work toward
collaboration and compromise,
that the political
parties have in some sense
rendered it impossible to do it.
She's right of course, that the Founders
didn't think about political parties.
They didn't anticipate them.
In fact, they hated them.
They call them factions and thought
that they were beneath the dignity
of people who would live in a democracy.
But it's quickly turned
out that you can't run
a complicated democracy without
a coordinating mechanism.
And the coordinating mechanism
is political parties.
It coordinates activities.
You certainly don't want to
have the government do it.
They won't do it well or fairly.
So it's better to do it through these
individual political parties.
And until very recently,
it all worked beautifully.
Why?
'Cause the political
parties were big tens.
They were great big tens within which
there were enormously diverse interests
that didn't necessarily line up
in any kind of ideological way.
So that when I was a kid,
Conservative Democrats
were considerably to the right
of Progressive Republicans.
And there was a real, and so
within the parties themselves,
the Founders operation work,
no one group in the party
could dominate the rest,
and therefore was essentially
a politics of cooperation,
collaboration, coordination,
and shifting alliances.
Which is very close to
what the founders imagined.
I remember as a young person then,
you don't get what you wish for.
I remember writing when I
was just out of law school,
writing a piece, bemoaning the fact
that the parties didn't mean anything.
That it didn't mean
anything to be a Democrat
or it didn't mean anything
to be a Republican
because they were all
things to all people.
I said what we really need in this country
are parties that have an ideological basis
so that people can make,
so that people can make choices
and be able to decide
what's going to happen.
And so that came true in space.
What we have now is we have
these intensely, intensely,
tribal parties in which parties,
people don't even talk to each other,
they shout at each other
because they don't think
they share anything.
But I don't think that's inevitable.
I don't it's inevitable.
I think that the reality
is that if you can get
underneath the screaming and
underneath the cable television
and underneath the personalities,
the issues that we as
people have to decide
are issues that don't
necessarily line up that way.
Deciding exactly what kind
of healthcare system will really work.
Deciding what a social security
system should look like.
Deciding what kind of a
tax system will encourage
individuals to produce
and, but nevertheless,
produce enough income so that the country
can take care of its other needs.
And most importantly,
as Peter Schuck has written
so persuasively about,
we can come together as people
and rationally talk about what kind
of immigration policy we want.
It's not automatically
rendered ideological.
These were all issues
that people are capable
of discussing rationally if we could only
put ourselves into a position
where rational discussion is possible.
The reason why, one of the reasons,
I don't say it's the only reason,
one of the reasons, Rachel,
why rational discussion is not possible
is because when so few people vote,
a very small group in the electorate
can capture the power and that small group
can be organized on ideological lines.
So it isn't necessarily the fact
that the parties have become tribal,
it's the small groups
that control the parties.
You know in primary elections,
it's not uncommon in the United States
to have a primary election,
we have a 10% turnout, or a 14% turnout.
Do the math.
The winner of that primary
has to get 6% if it's a 10%
or just over 7% if it's a 14%.
That's a small group of
ideologically driven people.
Because nobody's voting.
Get to take over the hall and run it.
Now if everybody were voting,
I don't think they would
replicate the ideological fervor
of the small group of people
that we've empowered to take it over.
So I think where we may differ
is in empirical prediction.
I don't think the two
parties from the ground up
are made up of a uniform group
of ideologues who hate each other.
What I do think is at
the base of each party,
there is a group of ideologues
that hate each other.
And the way we're structured now,
that small group is encouraged to capture
both the party and the polity.
And the best antidote to it is to force,
is to get more people voting.
And if you get more people voting,
then you drown the ideologues
in a greater centrist mass
where it's much harder
for them to take over.
At least that's my hope.
You don't do what I've done for 50 years
without being a romantic.
(audience laughing)
So I acknowledge that that's
a romantic view of democracy.
But I ask then, what's the alternative?
The alternative can't be kind of arms race
where each side tries to beat
the other by just a little bit
and then takes power and slams
the other as hard as they can.
That's a future that it's not
gonna be worth living in for us.
So we have to escape it.
And I think we can escape it
if we can just get enough people voting
to get over that critical mass.
- Yeah, I agree that the
type of partisan divide
we have now is not inevitable.
That's gotta be right.
And I think it's not
just your hopefulness.
There's evidence to indicate,
better evidence that
political leads are divided
more than everyone else.
It's not hard to ask a polling question
to foreground divisions.
And there's some scattered evidence
that if you can get people to pay
just a little bit of attention
for a minute or so on policy details,
they don't display the
same kinds of divisions.
They're still a problem though,
both rhetorically and structurally
about enhancing participation.
So just took a quick two
prong question for you then.
So one is, do you think
it's better or worse
to have much of these divided debates
in constitutional terms
or is that actually an
instigator of division?
Different people have
different views about this.
And then a real specific
law based question,
and that is on mandatory voting,
I do think it's a really
interesting option,
it should be thought about.
I'm wondering though, as a
proponent of a free speech model
for analyzing voting
rights, electoral process,
whether we could have mandatory voting.
Wouldn't that just be a
form of compelled speech
you'd have to rule out by adopting
one of your, that kind of proposition.
- Let me do the second one first,
'cause there's a funny story.
Adam's second question, how can I,
who spend a lifetime arguing
in favor of free speech
and making your own
autonomous political choices,
how do I wake up one day and say,
I'm coming with a hammer to make you vote?
The state is coming to make you vote.
And there's this funny story.
One of the last board meetings of the ACLU
that I attended before I left,
I was legal director in the Reagan years,
but then was active ACLU person for years.
And one of the last board meetings,
I raised the question of mandatory voting.
And one of a really funny board members
from Massachusetts got up and said,
"I have a motion.
"I want the aliens to give us
back the real Burt Neuborne.
(audience laughing)
"Because this guy has been beamed down
"and he's not the real Burt Neuborne."
But I, and so, and I take
that argument seriously.
This is serious argument.
You don't force people to
do things they don't want.
So I should really amend what I said.
It's not mandatory
voting I'm talking about.
It's opt out voting versus opt in.
We run a system of
voting now in the country
that is an opt in system of voting.
You have to overcome a relatively
minor series of hurdles.
And through much of our country,
of our country's past,
the hurdles were huge.
And one of the great, I think, triumphs,
of the Supreme Court during
my years of practice before it
was the elimination of those hurdles.
One after the other, we got rid
of the legal hurdles to voting.
Not the Republicans are
trying to bring them back
in the form of IDs and
difficult purging statutes.
But the truth is, the hurdles are low.
Hurdles are very low.
But you have to go over
them in order to vote.
So it's an opt in system of voting.
You have to choose to opt in.
I would make it a little, I
would flip the initial burden,
I would say look, you have to vote,
unless you carry out a very
modest form of opt out.
You file a statement that
you don't wanna vote.
You essentially demand
conscientious objector status
and don't have to vote,
because you don't want to.
I think if we did that,
we would ease the pressure
on the libertarian model, and it works.
You know why I know it works?
401K plans.
401K plans are like minting money.
They are a great deal.
If you put your money in the 401K plan,
it grows tax deferred.
It is a terrific deal for
building retirement income.
Now if you go, if you take a look
at the economic statistics in the country,
employees who are entitled to 401K plans
had that have matching
payments by their employers,
and that grow through
a tax-deferred basis.
If you do it on an opt in basis,
only 37% of American workers
opt in to 401K plans.
If you change the dynamic to say
that you're in the 401K plan
and will withhold money from it,
unless you say you don't wanna be in it,
the number goes up to 68%.
So that the difference between,
the difference between
opting in and opting out,
and any lawyer will tell you that,
class action notices for example.
If I send a notice to you that says
I would like you to be part of my class.
If you had to opt in to that class,
there would be no such
thing as class actions.
'Cause nobody would,
'cause the number of people
who would opt in would be too small.
But if I say, if you
opt out, you can leave,
then that's tolerable,
because the initial burden is enormous.
If we put the initial burden on voting
instead of on not voting,
overnight we would
increase turnout by 40%.
Overnight.
And at no cost.
So, and without I think much of a tension
on people's conscience.
So that's the way I'd
answer the second question.
Now, I will tell you how old I am.
I forgot the first question.
(audience laughing)
- Whether you think
constitutionalizing these debates
is, or less device,
there can be a lot of
different feelings about it.
- I think the reason I forgot
it is because it bothers me.
He's right, Adam is right.
I don't like the idea that,
de Tocqueville said it first.
He said that so many things
in the American political structure
that would ordinarily in Europe
be fought out as a political issue,
in the United States
get constitutionalized.
It's places like this that do it.
We produce very good lawyers
and they manage to make arguments.
But I think it's unhealthy.
It's unhealthy for a democracy
to constitutionalize too much,
to assume that a group
of platonic guardians
is gonna come down with the
right answer in too many issues.
There are fundamental
issues, free speech issues,
equality issues, that I
wouldn't give an inch on,
and I would insist that judicial review
be powerful on those issues.
But I can understand an argument
that says that we're better
resolving our disputes
through democratic means
than giving it to the Supreme Court.
But I would never accept that argument
if what it does is condemn a weak person
to always losing in
the democratic process.
When the democratic
process fails to adequately
take note of the needs of the weak,
it's at that point that you
desperately need judicial review.
- I'm gonna pick up on that to ask you
about increased voter turnout,
and as voters think
about some of the things
that you're talking about,
one thing that always strikes me
is that Republican voters
understand the importance
of the Supreme Court in our society.
And it is actually a voter
turnout issue for Republicans.
They get people out to vote thinking
about vacant seats on the Supreme Court.
And I've always been surprised
that Democratic voters
aren't the flip side of that.
They even, the last election,
people talked about Citizens United,
they talked about Supreme Court cases,
we have some of the idea of
constitutionalizing politics.
And it did not mobilize voters
in the same way on the Democratic side
as the Republican side.
And even now, with all the,
it's hard to keep track of all the news,
but there are 150 life-tenured judges in
as part of the Trump administration.
They will be here for the rest of my life.
- Every single one of
them has ruled against me.
- Yeah, and I think the
stakes of the Court,
that's what the Republic party
has successfully gotten through.
Maybe other parts of
the agenda have stalled.
But they have been a machine
when it comes to the
Court and the judiciary.
And the Democrats have
not been as successful.
And so I am kinda curious
to get your thoughts
on where that fits into
your model of reform,
because it seems like that
is actually a mismatch
between the parties and
maybe even just the public
voting for the parties in terms
of how they view the Court in our society.
- Yeah, well it's a
great question, Rachel.
Most of the time, up until very recently,
we wouldn't have been
having this discussion.
It would've been considered to
be an illegitimate discussion
because the argument it would have been
that Supreme Court Justices
operate outside of politics,
that there is no such thing
as a Democratic Supreme Court Justice
or a Republican Supreme Court Justice.
Partisan labels, you have no
right putting partisan labels.
And that the beauty of the process
is that it operated in
such a non-partisan way.
And it's only recently it's
maybe since Bush v. Gore,
maybe since the
tribalization of the country,
it's undergone so much more intensity
that people pay much more
attention to the fact
that Democratic Justices
tend to vote one way
and Republican Justices
tend to vote the other way.
Even though I believe it's not partisan
but its values that are making them do it.
So it's healthy that we're
having this discussion,
because it's always been this way.
And it's been swept under
the rug for too long.
So now, let's get it out
into the middle of the room
and talk about what we can do with it.
From just a descriptive standpoint,
to answer your question
about why Republicans
are so much better at this than Democrats,
I don't think it's all Republicans.
I think what they've done is managed
to galvanize the evangelical
base of their party.
To recognize that certain things
the Supreme Court is doing is so central
to what their core beliefs are as people.
It's the single most important thing
they can do is to be able to get the Court
to be predictable for them.
That's why you have this
remarkable spectacle
of people who claim to
be deeply moral people
who care deeply about marriage
and raising children right
and not using bad language
and not abusing sex.
Jumping as loud as they
can at Trump rallies
in favor of a man who spits on every value
that they had claimed as important.
And the answer is, they're willing
to make a pact with the devil.
Because that pact with the devil
gets them the Supreme Court,
which gets them the
really important values
that they think are
necessary for this society.
And I think if we got them
in this room in a candid way,
many of the evangelical
leaders would say exactly that.
Of course we think he's a terrible man.
But he's a terrible man who is delivering
something that we desperately need
and the Republican party is
the engine by which we get it.
Now why don't Democrats have
the same sense of urgency?
Well, once they did.
The early burst of women voting
was essentially reproductive freedom.
That women realized that
their reproductive freedom
depended in some sense on the
makeup of the Supreme Court.
And the Democrats galvanized that vote.
And there are still the huge gender gap
in American politics, I think,
is ultimately traceable to that issue,
to the fact that it's an
issue of reproductive freedom.
Now, interestingly enough,
when we all fell asleep
and thought everything was safely there
because the deus ex machina in the sky
was protecting all of our rights,
we all fell asleep and
the voting went down.
And I think one of the reasons
we will never see Roe v. Wade overturned.
We will never see Roe v. Wade overturned
is that John Roberts knows
that the day he overturns Roe v. Wade,
he turns American women
into the same force
that the evangelicals are now.
And that they will vote
in overwhelming numbers
to get the Court back.
And so instead of overturning Roe v. Wade,
what you're gonna see is they're
gonna erode it from underneath.
In a kind of stealth
way that will take away
the rights for women, but never in a way
sufficiently obvious or
sufficiently widespread
to galvanize the women's
vote the way it once was.
- Yeah, on judicial review then.
What, if any, is the
affirmative case for the left
supporting constitutional judicial review?
'Cause I think descriptively,
you're pretty much right,
which is it's, if you just
go by left-right spectrum,
right lean of the Court has
quite outweigh the left lean.
And so I can think of
some sort of defensive
crouch justifications like while you can't
unilaterally disarm or,
we don't actually care,
it's just an outgrow with politics anyway.
But is there an affirmative
case from the left?
Is it some sort of precedence
that can't be budged
that are just so important
that the left out of you
willing to take systematic loses over time
and then just tag along question for that,
is that you mentioned the alteration size
of the Court at one point in the book.
And I'm wondering if
there's any circumstances
you can envision in
which you would support
a change in the size of the Court.
- Again, two hard questions.
You know historically judicial review
has not been a left issue.
If you look in the '30s and
the history of judicial review,
the left always looked
at court suspiciously.
Courts were the place where the rich
got their protection.
Courts were an elitist group of people
drawn from a particular social strata
pledged to enforce laws that were made
through processes that
would help the wealthy
continue to subordinate the poor.
That was the story of judicial
review that I grew up with
as a young kid in New York,
as a left wing kid in New York.
I was told never trust the courts,
don't trust the courts.
They'll lead you into a dead end.
And that's why there are no
judicial review in France,
that's why no judicial review in England,
no judicial review in Germany.
It's because the left wing parties
wouldn't let it happen in those years.
And then came, then came
this remarkable event,
the Warren Court.
And the question is, was the Warren Court
a one time strange aberration
in which a system of prophetic Justices
call the nation to be
better than it had been?
And the nation listened.
And it helped get us out of the trough
that we were in of racial,
of refusing to acknowledge that
we even had a racial issue.
And legal norms that impose racial
discrimination.
And then watching the Court
respond to McCarthyism
and begin to impose really
serious free speech protections.
And then seeing the Court sweep away
all of the restrictions to voting.
And then seeing the Court acknowledge
the Equal Protection Clause and protect
discrete and insular
minorities in significant ways,
people of color, women,
gays, the disabled.
Watching the Court as an engine
of reinforcing the power of people
who was systematically
outvoted at the polls
struck a number of us
as a remarkable event.
I saw judicial review very
differently when I watched,
Brown versus the Board of Education
just changed my entire idea
about what a court could be.
That it didn't have to be a
reinforcement of the status quo,
it could be an engine for breaking
the status quo on behalf of the weak.
And that's been what has,
that's been my philosophy
of being a lawyer,
my entire life, that
the Court could be used
as a vehicle to assist
groups that simply lacked
the power to defend themselves
in the rough and tumble
of the democratic process.
And to protect those groups
through the imposition of rules.
Now, as Adam
quite correctly argues,
the Warren Court is gone.
I can give you the day that it went.
The Warren Court died on January 7, 1972.
It died on January 7, 1972,
when Lewis Powell took office
and the Democrats lost
control of the Court.
Now, when you think of the
Supreme Court as an institutions,
a remarkably stable political institution,
Republicans control the
Court from 1865 to 1937.
There was a Republican
majority on the Court.
It didn't make much difference
in those days as far as race went
because Republicans and
Democrats were equally terrible.
And only John Marshall Harlan
was the only one who
spoke up in those years.
But it was, and that's
why, that's what brought us
the idea of substandard of due process.
That's why they struck down minimum wages,
that's why they struck down maximum hours,
that's why they struck
down health and safety.
'Cause they were violations
of the employer's autonomy.
And the Republican
Justices went down the line
for autonomy and said it's too bad
that the equality of these
people is being hurt,
but autonomy is more important.
And now, and then when the Republicans,
the Democrats control the
Court from 1937 to 1972.
And in 1972, the Republicans
took back control,
and the Democrats have
never controlled it since.
They had a chance in the last
days of the Obama administration,
but the Republicans would not allow a vote
on the fifth Democratic Justice.
So there has not been a Democratic
majority on the Court since 1972.
And if you watch the jurisprudence
of the Court evolve over that time,
what you see is you see a
jurisprudence of autonomy.
Remarkable autonomy.
More and more and more human freedom.
Freedom to be religious, freedom to,
which is great, which I,
and less and less and less equality.
Occasional burst of
equality, but less and less.
And so that the question
that a lefty like me
has to ask now is if I
have to face a future
where I am doomed to have to
continue to argue to Justices
that will not take equality
argument seriously,
do I give up on the institution?
Do I say that the left was
right back in the 1930s?
And the answer is I don't.
I don't, I don't for two reasons.
One Adam has alluded to.
In the years that it was possible
to make real progress on equality,
precedent after precedent
was embedded in the law.
And the one thing lawyers
and Justices do well is enforce precedent.
They don't overturn it, even
when they think it was wrong.
It's the reason Roe has lasted as long.
It's lasted basically on stare decisis.
So that you don't wanna turn your back
on the existence of this
wonderful body of law
that does protect people.
And so I would not weaken the institution,
because the institution has
committed to protecting that.
And my hope is eventually,
maybe the control of the Court will shift,
but that's a long way off.
But it's possible that the
control of the Court will shift.
But I would not.
I would not, I would not
give up on the Court.
- All right, so on that note,
we can open it up for
questions from the audience.
There is a microphone in the back there,
up that little stairwell,
if people have questions
and wanna use that
to ask their questions.
- Oh, while you're doing that,
Adam asked me another question.
Would I ever consider changing
the numbers on the Court?
I wouldn't necessarily
consider changing the numbers,
but I do think that there's an interesting
proposal to term limit them.
In other words, to have each
Justice serve for 18 years,
and then go back to a lower court,
wouldn't have to leave the judiciary,
but serve as a Supreme
Court Justice for 18 years
on a rotating basis so that every
president gets two appointments.
And that seems to me,
it would lessen the
randomness of the Court.
I feel like a ghoul on
a death watch sometimes
thinking about the Supreme Court.
Who's gonna die?
Who's gonna then have a random
ability to control the Court?
Nixon got four appointments
in one term randomly.
In large part because the Democrats,
talk about the Democrats,
the Democrats with 60-some-odd
senators in the Senate
were unable to orchestrate the succession
from the resignation of Earl Warren.
Warren resigned in 1968
to give Johnson time
to appoint a Justice.
He didn't want Nixon to have to do it.
So he resigned early, he gave
him a year, and they blew it.
They appointed Fortas, and Fortas,
and the wheels came off
of the Fortas nomination,
and that wound up giving
Nixon two appointments
that he didn't think he would have,
plus the two that he
got because people died.
Those four appointments swung the Court
in a conservative way,
and I think may have been
the single most important
political events of the 20th century.
If you go down, I list 25 cases in my book
that were decided five four,
that would've come out the other way
if the Democrats had managed to get,
to get the successor to
Earl Warren confirmed.
So I don't wanna continue to go
through that kind of randomness.
So the idea of an 18-year term
with each president getting
an orderly two votes,
it might take some of the steam
out of the people's craziness
about voting for president
only because they wanna
control the Supreme Court.
'Cause they'll know that
everybody gets two votes,
two appointments.
- Do you have a question?
- [Audience] Thank you,
this is just fantastic.
I really appreciate all of your thoughts.
I'm interested in whether
you think public finance
of campaigns would be the fourth,
or could be a fourth break,
or however you wanna phrase it?
- Great question.
I don't think, I said that the best way
that we can get more people voting
is people thought that voting matter.
The way most people don't vote now,
not 'cause somebody is stopping them.
Not because they're ignorant
or they're not worthy of voting.
But because they don't
think it makes a difference.
They're cynical about it.
They think they're better off
going to Walmart for the sale
than they are going down a voting place.
And until we persuade
people that's not true,
we're not gonna get large numbers
of additional people doing it.
And I think one way to do it
is to reintroduce competitive elections.
You gotta be crazy to take,
if I'm gonna gerrymander district,
and Walmart's having a sale,
you gotta be nuts to go vote.
And it is, it's a remarkable,
it's a remarkable
tribute to the commitment
that many Americans have in democracy
that we'd actually do it,
that we go through this ritual
knowing that it doesn't
make any difference.
We're not exercising power.
We're exercising some sort of pagan ritual
in which we go and press levers.
But it's wonderful because it's a ritual
that reinforces our dignity
and reinforces our commitment
to self-government.
Now, if we had competitive
elections, again,
where it really makes a difference,
then I think you'd get turnout.
There would a natural reason to turn out.
And then the second way to do
it is we gotta take the idea
that only the rich had the
capacity to make a difference.
That money talks and ordinary people
don't have any influence.
Because the rich set the agenda
and the rich decide who
is gonna win the election.
I think that's an overstatement,
but many people believe it.
And until we can get people's heads,
talk about the psychic Constitution,
until we can introduce into
the psychic Constitution
the idea that voting matters
and that your vote really matters,
more than just a symbolic event,
it's an exercise in power,
if we could do that, then you'd get people
running over each other to vote.
You wouldn't need all of these campaigns.
People would wanna vote.
But doing that, we have to increase
the perceived value of voting
by making elections competitive,
and by taking the big money out
and public funding is the way to do it.
- Next question.
- Along the lines of voting,
one of the things you mentioned earlier
was your opt in, semi-mandatory
version of voting.
One issue in voting right now
is the lack of informed voters.
And with the potential of 40% increase
of people voting overnight
as you mentioned,
do you think that along
with that increase,
the increase in what would presumably be
a decent amount of people
who are also uninformed,
do you think that would
also be a potential problem
for the Republic in general?
- Well, I get paid to be a teacher,
so I'm not supposed to
be in favor of ignorance.
An ignorant voter, an uninformed voter
is not as good as an informed voter.
But the vote is not a test.
An election is not a test.
There isn't a right answer
that you're supposed
to get on an election.
An election is an
expression of self-interest
and what will advance your needs.
And you can be uninformed
about the intricacies
of healthcare and know
about which candidate
is gonna do a better job in
trying to meet your needs.
So one of the fears are litigated
literacy test requirements.
And the argument was always, oh well,
we need a literacy test because
we need an informed voter.
And my response to that
is, yeah, would be nice,
the more they know, the better,
and we should really do that,
but you cannot say that you can't vote
'cause you're too dumb.
That is absolutely off the map.
Everybody is entitled to vote
because everybody has human dignity
and everybody is entitled to
express their wishes and needs.
And nobody, no matter how many
college degrees they have,
and no matter how smart they are,
has the right to say you
don't know enough to vote.
And so I reject the idea
of the problem of the
uninformed electorate.
The problem is the non-voting electorate.
And if we can get them in there,
they know what's good for them
better than all of the pundits
who tell them they're too stupid too vote.
- So, excuse me, we now have a decision,
I think out of the 10th Circuit,
which holds that presidential electors
are not bound by the vote in the state--
- [Burt] Yeah, the faithless
elector issue, yeah.
- So a couple of questions there.
First of all, do you
think, can you hear me?
- [Burt] No, no, it's not that,
it's just a light in my eye.
- Oh, I'm sorry.
- You guys are at real risk.
The light has been in my
eyes for almost an hour.
I'm about to confess.
(audience laughing)
I'm gonna tell you everything.
- Well I'm glad that I'm the one
that's doing the interrogation.
So two questions on that.
First of all, do you think
it's gonna get up to the Supreme Court?
And what do you think
their decision would be
vis-a-vis the circuit court ruling?
And two, if it does get to the Court,
and they do affirm the decision,
how does that come into play
with regard to your ideas
about universal voting
and increasing the number
of people if the presidential electors,
at least in presidential elections,
are not going to be bound
by the vote of the people?
What does that say for our
democracy in that sense?
- It's a good question.
I actually think it's more
of a theoretical question
than a practical question.
There's always been, forever,
there's been an argument about whether,
you know the way it works,
the Electoral College,
you don't vote directly for the president,
you vote for a slate of electors
who are pledged to support
one of the two candidates,
or any of the candidates that are going.
But you don't vote for
the candidate themselves.
You vote for the electors
pledged to the candidate.
The electors then meet
and cast their votes.
Now what happens when an elector says,
oops, I've changed my mind.
I know I was pledged to support this guy,
but I don't think he can do it.
I'm gonna vote for somebody else.
And there were a number of,
I think there were four
in the last election
that indicated that that's
what they were gonna do.
I can't remember how many of them
actually pulled the trigger
and voted for somebody else.
But one of them was in Colorado,
and that's why the case
comes up in the 10th Circuit.
And so the question is,
having pledged yourself
on the ballot to vote for
a particular candidate,
are you then free to walk away?
Are you free to say I've chosen not to?
And the 10th circuit said yes.
10th circuit said the original structure
is to elect autonomous people
who are gonna meet in
the Electoral College
and choose who the president is gonna be.
And they're not forced
to vote for anybody.
They have to exercise their own autonomy.
Now, as a practical matter,
nobody gets on that slate
unless the political leaders in the state
have made very sure that
they are reliable people
who are gonna vote for the candidate.
You don't just stand on a corner and say
would you like to be an elector?
They are recruited from the,
for the heart of the political class,
and so the likelihood of
large numbers of people
ever doing this I think is very very rare.
But as a theoretical matter,
I think the 10th Circuit's right.
I don't think you can look
at the original drafting
of the Electoral College
and come out any other way but to say
that the Founders thought that they were
not having a direct
election of the president,
but they were going through
kind of indirect election
where some really smart people
were gonna be elected as electors,
and they were gonna chose the president.
And that therefore they
have the right to do this.
I think it highlights the
fact that if we could,
we should get rid of
the Electoral College.
We can't get rid of the Senate, because,
gee, that's a great idea,
why didn't I think of that?
We can't get rid of the voting
disproportion in the Senate,
'cause there are three
things in the Constitution
that can't be amended.
There are only things that are listed
in the Constitution as non amendable.
The first one is you can't
amend the Constitution
to prevent people from
importing slaves before 1808.
We had to give the slave owners
20 years to get enough slaves,
and that could not be
changed by amendment.
The second thing is, you
can't have a per capita tax,
and that was also to
protect the slave owners,
'cause the way to get rid of slavery
was to impose a per capital
tax on all the slaves
that would've put the slave
owners out of business.
So two of the three
non-amendable provisions
are designed to protect slave owners.
The third non-amendable provision
is you can't touch the requirement
of equal suffrage in the Senate.
So even if we wanted to have
a constitutional amendment,
we can't fix the Senate.
The only way you can fix the Senate,
there is a way to do it,
I mentioned it in my book,
but no one will ever do it.
You can break states
up into smaller states.
So you could have a rule that said,
when you reach a 20 to one disproportion
in one person one vote,
the state is automatically
authorized if it wishes
to break itself up into
more than one state.
Each of which will have
two votes in the Senate
as long as the state legislature
can agree on boundaries.
So California could break
itself up into two states,
New York could, Illinois could,
Pennsylvania could, Texas
could, and Florida could.
Under 20 to one, you could do it on less,
but if you just add the 20 to one.
So it is possible to minimize
the dreadful disproportionate
nature of the Senate by doing two things.
Making Puerto Rico a state,
making the District of Columbia a state,
and busting up some of the big states
into smaller states that would
each have two representatives.
Only a founding generation could do that.
And this generation
doesn't have what it takes.
They are not a founding generation.
I just don't see it happening.
So I think it's possible,
but it's not gonna happen.
- So I had a question in
regards to your earlier comment
about President Trump
kinda breaking the norms
that we've had as far
as presidential actions
and the Senate not really checking him.
Even before that, the idea
of an imperial presidency
had kinda starting to take hold through,
still adhering to norms
and more of kind of
warming his way through.
So now that Preident Trump has kinda moved
the Overton window as far as
what is acceptable behavior,
do you think that a
more tactical, skilled,
and maybe somebody that's
more like less impulsive
would be able to take advantage?
Or is there a way that we can kinda
put the genie back in the bottle
now that he's kind of
taking the cork away?
- It's a good question.
The question is, one of the things
that I've lived through
and you've all witnessed,
is the growth of an imperial presidency.
Slow, accretal growth
of an executive branch
that has enormous amounts of power
and that dwarves the legislative
or the judicial branches.
In large part, it's because the Congress
gave away its power.
Congress chose not to exercise its power.
They couldn't wait to delegate
national emergency power to the president,
and now that's coming home to roost.
I mean, it's not that, Trump
isn't making this stuff up.
Congress created hundreds,
hundreds of national emergency exceptions
in all the statutes that they back.
Saying yeah, you gotta do this, in case,
unless the president says
it's a national emergency.
And then he can say what he wants.
That's what happened with the
travel ban, it's what's
happening with the border wall.
Congress has given the power away.
And now it may be very
difficult to ever get it back.
But the question is a good one.
Is there some way that we can,
that we can somehow control the existence
of an imperial presidency and
start taking the power back?
And the answer is absolutely yes.
My book has a dozen suggestions
that could snip, just
snip and when you're done,
you really do have pruned
the imperial presidency
back to some sort of control.
But the ultimate issue,
the ultimate issue,
is whether the Supreme
Court will have the guts
to stand up to the president.
Now, in 1952, when Truman
tried to nationalize
the steel mills in the
middle of the Korean War
on the grounds that we have
fighting man on the ground.
I need steel for bullets.
So if you guys are going on strike,
forget it, I'm nationalizing the mills.
Supreme Court said absolutely not.
Of course it's a national emergency,
but only Congress can do that.
You can't do that yourself.
If, that Court had the courage to say no.
This Court does not have
the courage to say no.
This Court knows only one word,
and this, or five of them do anyway,
and that one word is deference.
Deference to the president.
Deference to the president
is what brought us Korematsu.
Deference to the president
is what brought us
the McCarthy era.
And deference to the president
is what is bringing us
the slow, accretal growth
of a presidency that can't be controlled.
And so what we really need,
is one, to beg the Supreme Court
to put a little spine in its voting,
and secondly, to have Congress
start taking the power back.
- All right, so on that note,
I have to tell you one thing,
is that we will have books for sale over--
- Books for sale, yes.
- Available.
And that you can get
Burt to sign your book
at this table when we are finished.
And I wanna thank everyone for coming.
But most especially, Adam,
thank you very much
for being on the panel,
and thank you so much for writing--
- Thank you guys.
- This really important book.
(audience applauding)
