The Supreme Court Is Back in Session. What’s the Progressive Plan? (with Amy Kapczynski)

Michael: I’m Michael Tomasky, editor of The New Republic.

Felicia: And I’m Felicia Wong, President and CEO of the Roosevelt Institute.

Michael: And this is How to Save a Country, our podcast on the ideas and the people contributing to a new political vision and a new economic vision for the United States. We connect the economy, democracy, and freedom

Felicia: Because progressives need a common purpose and a common strategy to win. So today’s episode is a bit seasonal. You know, it’s that time of year, a chill is in the air. Halloween candies hit all the grocery store aisles and perhaps scariest of all

Michael: What, the great pumpkin? Herschel Walker’s campaign?

Felicia: Yeah. Maybe that, but also, Michael, the Supreme Court term has begun.

Michael: Oh yeah. That is pretty spooky.

Felicia: It is, and I think I actually fear that with the overturning of Roe v. Wade, a lot of Americans are looking in the rear-view mirror and maybe don’t realize that there’s even more that we could lose. So I’m not trying to add to anyone’s anxiety here, but we do want to go into this Supreme Court term with our eyes wide open.

Michael: We could see the last vestiges of affirmative action overturned. We could see a decision that gives state legislatures the power to essentially overturn federal election results. And we might see a more definitive conclusion of the right of business owners to refuse to serve gay customers. You know, the wedding cake question.

Felicia: Yeah. Anxiety producing for sure. But with all of that said, I’m glad to see this nation’s newest justice, Ketanji Brown Jackson, on the bench. I’m happy to see that she’s asking questions already and I love that she’s focused on the Fourteenth Amendment. We had talked about the importance of that amendment with Heather Cox Richardson a few episodes ago. I’m happy that Justice Jackson is there. But anyway, our guest today is the perfect person to talk about all of this, what the Supreme Court could do and why we should not let our fears get the best of us.

Amy Kapczynski [clip]: I think the way to think about it so as not to imagine that they control our politics is about what we can do to react to this, because it’s actually only a relatively modern phenomenon actually, that people have taken the view that the Supreme Court is the only one that can interpret the Constitution.

Michael: Coming right up, it’s our guest, Amy Kapczynski. Amy is a faculty co-director of both Yale’s Global Health Justice Partnership and the Law and Political Economy Project. The LPE project, as it’s colloquially known, turns the common understanding of the law on its head. It seeks to explain the relationship between our legal system and the economy. It asks, how can the law be better used to solve our biggest social problems? Amy Kapcizynski, welcome.

Amy: Thanks so much. So glad to be here.

Michael: So glad you joined us. Start by telling our listeners a bit about yourself and your work.

Amy: I teach law and I’ve done that for 15 years or so now. I focus, I would say, on questions of political economy, questions of how our law structures markets and our economy and how we can make the economy that we want to have in part through our politics. So a lot of my work is focused on health issues, and that’s part of how I came to run this health justice partnership, including access to medicines issues and global trade questions. That’s actually how I got into questions of how law structures the economy. I was working as an AIDS activist on questions of treatment access and coming to see how things that I never knew anything about, like patent law came to be really important determinants of these life and death questions that, that matter so much to all of us.

Felicia: Amy, I think it’s so interesting and important for our listeners to know that people who are law professors at esteemed places like Yale also have backgrounds in activism and in organizing. I want to turn now to a question about the Supreme Court and you, because you clerked the court for both justices Sandra Day O’Connor and Stephen Breyer. How has that shed light on your view of what the court is doing today?

Amy: Gosh, there’s lots to say about what it’s like at the Supreme Court. It’s the kind of building that when school kids come into it, they often ask whether it’s a church. It’s a very intimidating place. It’s a very intense place to work. It’s a very small and intimate place. I can think of no government agency that has anything like the amount of power that it has with so few people working for it and it’s a place about which I would say there’s a lot of secrecy. So some of that has been drawn back a little bit recently, as we started to see both the leaks of the Supreme Court, and also I think with more public attention, people realizing how much power the court has and how a concerted majority that’s really not afraid of public reaction can use that power.

I think one of the things that I was fascinated by as a young person going to law school and then working at the Supreme Court is how people in power think about the power that they hold. And clearly, I think one thing that we’re seeing about the Supreme Court now is that you have a slim majority that’s very, very conservative and that’s very eager to use the power that they have to advance a vision of America that doesn’t look a whole lot like America today. It’s part of the reason they talk so much about 1789.

Michael: I think most of our listeners are people on the broad left in some way, shape, or form, and they’re feeling pretty pessimistic these days. The Supreme Court is probably the single biggest reason why people are pessimistic. Are we just doomed to a series of 6-3 decisions until the middle of the twenty-first century?

Amy: I think it’s unfortunately right that we should prepare for a lot of bad 6-3 decisions, sometimes 5-4 and certainly we’re going to see a ton of litigation around abortion. Now, I think the way to think about it so as not to imagine that they control our politics is about what we can do to react to this because it’s actually only a relatively modern phenomenon actually, that people have taken the view that the Supreme Court is the only one that can interpret the Constitution, for example. There’s a long history that we can look back to where there have been fights about the court, where the court has overreached, and where there have been ways that the public and our political branches have responded that have curbed the court’s power.

And sometimes it happens because the amount of public outcry actually causes those individual people sitting there and reading their newspapers to think, “Well, gosh, maybe we are overstepping and maybe we’re really going to face the loss of our legitimacy or changing of our composition if we don’t pull back.”

The court just pulls back sometimes because of the public outcry, but also there’s lots of things that in history Congress has done to assert more of its own authority, both over the courts and over constitutional interpretation and we can look to those traditions. But I think all of those kinds of things require public awareness and then public and political pressure, and require institutions like Congress to sort of do their job, to stand up for a better understanding of what our legal system and our laws and our Constitution are for.

Michael: What are the three or four areas where you really fear that this court is going to give us really damaging society altering decisions?

Amy: In some ways, one of the things that’s hard about picking a couple areas is that this court can touch every law, and so there’s not an easy way to say just this area and this area and this area are the ones we have to pay attention to. I would say anticipate that any major progressive agenda that’s passed, it could be drug pricing, it could be childcare, it could be that they can face attacks in the courts, either sometimes on constitutional grounds or grounds that the statute doesn’t really allow you to do whatever the progressive administration might want to do.

So something called the major questions doctrine which they’ve almost entirely invented recently that says, Well, Congress can’t give such major questions to an administrative agency, and so cutting back on agency’s power precisely in these cases where Congress has passed broad authorizing statutes that say, “Hey agency, you figure out how to protect public health,” because of course it’s hard to write all that down in detail. Think about something like managing a pandemic, we’ve all learned over the last couple of years that you don’t know everything you’re gonna need to do in advance, right? You’re just going to see a broad skepticism about administrative power to do things that progressives want to do. Not a lot of skepticism about the power of the government when it comes to the police, for example. Right? So these are the ways that you obviously can tell that it’s ideologically charged and coded. It’s not just, “Oh, they have a particular view. Well, they want a limited state, right?” No, they don’t want a limited state. Then you get a police case in front of them and you can see that they’re very eager for a kind of aggressive form of state power that’s absolutely racialized. So the court’s really preparing to take authority away again, only where it wants to, and this is where the sort of ideology of the current majority comes in, to take authority away from the regulatory state.

Michael: That would have massive, massive consequences.

Amy: Absolutely. Massive consequences. What we’re all here to talk about in part is how to think about the new economy. And of course a lot of the institutional resources that we need to protect people from fraud or to reign in big tech, those are government agencies. And if they can be just sort of like the court just takes potshots at them anywhere they don’t like the substance of what they’re doing, I think you could see very, very major structural kind of effects, whether we have the kind of power that we need, in fact, to govern markets and make them more democratic.

Felicia: Amy, let me just break in here to say that if you could imagine in its most extreme, a world in which this court would require that Congress literally write every single piece of guidance, every single instruction, and then pass that instruction for everything from managing a pandemic to figuring out what to do about Facebook and speech to how to get money out the door in the case of an agricultural crisis. You can really imagine a neutering of the federal government.

Amy: I think so unfortunately, and this comes back to a topic that we’re going to have to talk about a lot, because I think the American people are going to have to think about it a lot, which is the scope of judicial power that this particular majority wants to wield. Sadly, one of the best case scenarios in some of these contexts is like, pass a really popular law and then let the Supreme Court strike it down or try to strike it down. But where they do strike things down, take that opportunity to get people to really see how out of step this court is with what America needs right now, and then learn about and come to support some of the ways that we can try to fix it.

Michael: And what about court reform? Are you for expanding the number of justices or what’s your feeling on that? And then just other things that are out there, the 18-year terms and each president gets to appoint at least one and so on and so forth. I mean, those things will take a generation to kick in, but will they make a difference?

Amy: So there are lots of options. All of them require lots of power, right? You need really strong majorities and committed majorities in Washington, so not just the presidency, but a stronger majority than we have in Congress and the Senate and so forth to really take those kinds of things forward. And you do need a party and a base that’s more educated about why this is important, that understands the structural power at stake and cares about that. So I do think it takes some time to build those things. That said, there are options. Court reform can look like adding justices. It can look like life terms so this ridiculous idea that people can serve for 40 years or even longer in a position of such personal power in a democracy. It obviously doesn’t make sense to a lot of people, doesn’t make sense to me. There’s other things like saying that the courts have to stay out of particular areas when Congress passes a law that that the courts don’t have jurisdiction to review it or to mess with it. As lawyers, we call it jurisdiction stripping. You know, you aren’t allowed to have jurisdiction over this case. There are precedents for that in history. So all of those kinds of things are things that we need to be thinking about. It’s going to be very hard to do, to tackle changes that are existential for the United States, like climate change without addressing the actual persons and the majority on this court.

Felicia: We’ll have more with Amy in just a moment. But coming up, Michael and I will dive into a term “originalism” that’s been fueling a lot of debate around the Supreme Court.

Welcome back to the show. So Michael, let’s talk a little bit about legal originalism. What do you think about it?

Michael: Nothing very good. I think a lot of people know it started in the 1970s as conservative legal movement. What they said on paper was that judges should follow the original intent of the Framers in writing the Constitution and shouldn’t interpret laws. What it really was, was an excuse to limit rights and stop the expansion of rights that happened in the United States in the ‘50s, ‘60s, and ‘70s. That’s basically what it was, but it’s gone mainstream and it’s kind of taken over not the legal profession, but certainly the federal bench.

Felicia: It’s certainly taken over this court. We saw that in the last Supreme Court term, and I fear that we’re gonna see more of it again. And the thing that really gets me is that progressives, liberals have had decades to come up with an answer to originalism and really we have not.

Michael: We think we have an answer, which is that the Constitution is to be interpreted in modern times, under modern morays and values, and that’s what we believe. But originalism probably sounds pretty appealing to people who don’t quite understand the implications of it.

Felicia: Yeah. I don’t think the progressive or the liberal answer is sharp enough. That’s my critique.

Michael: Yeah, I think you’re right.

Felicia: Well, Amy, all of this about originalism is central to your work and your thinking. Give us your take.

Amy: So, originalism is an invention and it’s a conservative project to create an idea about how you interpret the Constitution that says, there’s one right way to do it, and you do it by looking to the views of the founders. It’s really important for people to understand that this court, even the people who had kind of embraced originalism, were not originalists in a consistent way. And so we’ll give you one example, which is the First Amendment, the modern First Amendment and all of First Amendment law does not have any basis in what the founders thought about free speech. You look back in American history and there were sedition laws. There was not the same kind of free speech tradition that we had today and none of these characters.

Felicia: Yeah, the First Amendment at some points in our history protected union rights and workers, right?

Amy: That’s right. Also, there was no First Amendment protection for commercial speech, for corporate speech until the 1970s. None of these guys want to go back to an originalist view of the First Amendment. It’s always selective in how it’s applied. The reason that I think Originalism had an appeal, and the only thing sort of defensible about it is that it was on the face of it, not in truth, but on the face of it, it was a story about keeping judges in their place, saying, “Well , judges only have authority because we tell them what to do and so you got to stick to what we told you to do.” There’s a lot of problems with that when originalism is your story about how to do it. One is what do you mean “we,” right? A lot of us around today who can vote, couldn’t vote at the time that these founders were.

Felicia: Or who were allowed to hold a job for pay or whatever.

Amy: That’s right. Couldn’t own property, weren’t citizens.

Felicia: Since originalism has been around for 40 plus years, liberals and progressives have had decades to come up with an answer to it, or even better to develop an affirmative view of the Constitution ourselves. But it seems to me like we haven’t, so is that right? Or maybe we actually have an affirmative view over the Constitution, but it’s just not yet well known outside of the legal Academy, so talk about that

Amy: I think where we are at today and, and it’s really just emerging, is a new and maybe more important attempt on the left to sort of change our relationship to the Constitution, which is trying to grapple not just this like, “well let’s just pivot something like originalism to focus on the right kind of history,” but that is thinking more about what kind of relationship to the Constitution progressives, or people who really see the need for equality, to be at the core of democracy. Like how should we relate to the Constitution?

I’m thinking here of a book that people might want to read called The Anti-Oligarchy Constitution, which I think is one of the books that’s trying to build a new tradition for thinking about a positive vision for thinking about the Constitution. What this book is trying to do is at the one and the same time, trying to take on the idea that the Supreme Court is the only institution that gets to say what the constitution means and try to argue that we shouldn’t just be on the defense and say, “Well, don’t strike down the Affordable Care Act” and “don’t strike down a wealth tax” and “please leave labor unions alone.” But in fact, argue that we need a wealth tax to have a Constitution that makes good on the promise of equal protection of the laws, that we need health care for all, that we need unions, right? So having a positive vision, they call it the equality of opportunity tradition, but it turns out that there are lots of materials to draw upon that would not just have a liberal rights story to tell about the Constitution, but a political economy story to tell about the Constitution, that our Constitution and our democracy cannot thrive without more material equality among persons, without a deeper structural commitment to racial justice, without a commitment to women’s reproductive freedom, that those are the preconditions of democracy and that we have to weave together a political economy that can sustain a constitutional democracy. That’s actually very different than how liberals talked about the Constitution for the last many decades, where the thought was that what the Constitution was about was a couple of individual rights, and then you leave all the socioeconomic stuff to the legislature.

Michael: You’ve begun to talk about the political economy, so let’s shift away from the court and let’s shift to that. You’re spearheading a law and political economy project at Yale called the Law and Political Economy Project. The news business in general treats the law and economy as completely separate things, so how’s your work helping to connect the dots between the two?

Amy: Every law student who comes into law school is required to take courses much to their dismay. They think they’re going to come to law school to learn about justice, and they learn instead about contracts, and they learn about torts, and those are some of the foundational first year classes that students are required to take. When you take those classes, you realize that law makes all kinds of choices about things that we think of as the market. The only reason that pharmaceutical companies can charge high prices for the drugs that you need to take is that the government gives them something called a patent. There’s also FDA regulatory law that keeps competitors from coming in. It’s this kind of structure that makes this thing we call a market. Back when I was a full-time AIDS activist, I would love to tell people that they think these new AIDS medicines are expensive because they’re so complicated to make, but guess what? They cost $10,000 a year if you buy them from the patent holding companies, but $100 a year if you bought them from a generic company. That’s the difference that law makes. So what does it mean that there’s a “ market” or market forces, right? We’re making these markets. We’ve constructed a system that’s very organized around giving monopolies to companies and then letting them charge whatever they like, subject to maybe how good your insurance company is, how good your insurance is, whether they can sort of negotiate down a little bit.

Part of what we’ve been focused on in our law and political economy project is asking how has law and legal ideas and policy choices been complicit in the construction of an economy today? Has so much inequality in it, that has made work so precarious and unpleasant for so many people, and that really in some ways extracts our time, our lives in some sense, even our bodily health for many people in the service of this thing called the economy. Like how’s law helped that along? What happened over the last couple of decades to make some of that true? We’re trying to both describe how that happened and as you say, sort of turn the traditional story of law on its head. Law is not this sort of neutral thing, but it’s wielded powerfully by groups who have used it to their own ends and that’s part of the story we’re telling, but also trying to figure out what kinds of laws do we need to change it.

Michael: Let’s make this a little more concrete for people. If you can give just two examples of areas of law that you would change if you had a magic wand and we made you emperor. You mentioned patents for

Amy: No emperors, no emperors in the democracy, Michael.

Michael: Well, Amy would be okay.

Felicia: Maybe Amy can be an empress.

Amy: If I could convince you to join me, this is what we’d do.

Michael: Amy would be an enlightened despot, I have no doubt about that. You mentioned patents, like how would you change patent law and what kind of change would people see in their lives? If you could talk about that and maybe one other example of the way that law can be redirected.

Amy: So how could you organize the pharmaceutical industry differently? Well, so one thing would be to think about the whole research and development system for drugs in a little bit of a different way. So actually people aren’t necessarily aware of this, but we already have a lot of public investment into drug development. It’s public science that really laid the groundwork for things like the coronavirus vaccine, for example, the mRNA vaccines. We have a lot of publicly funded science and what we haven’t really publicly funded though is any of the stuff after the more basic research. What a lot of people who studied the pharmaceutical industry would like to see is cutting back on some of that monopoly power and some of that could be by making it easy to knock out bad patents because companies take out not just one patent on a drug, but there can be dozens of patents on all kinds of trivial things. These are what we call patent thickets because it might be worth a billion dollars to them to get one additional year of control over the market, and of course, that money means that fewer people have access to that drug at the end of the day.

So knock out some of those bad patents, deal with some of the monopoly abuses that we’re seeing, that’s one issue, and impose fair pricing requirements on companies so that we get and we pay more for innovations that really work and help us, and we pay less for ones that don’t. But we also have a public system, as most other developed countries do to ensure that we’re paying fair amounts and we are not bankrupting people along the process. But equally important is this other piece, which is how do we develop more and build on the incredible successes of our public R&D system so that we can not only have innovation of the kind we’ve had so far—we have a very innovative system, I think in substantial part because of the public investments—but also get better innovation than we have so far.

There’s lots of things which aren’t so profitable for companies, but that could be really great for patients. I have a colleague who’s a cancer doctor and who runs a lot of studies that only the government will pay for these studies, where they give you a little less of a drug, for example. That can make a far better experience from the patient’s perspective if it’s equally effective, because you have fewer side effects. If you could take a little bit less of that cancer drug and get the same effect, but no company’s gonna run that trial because they tend to, mean that you would have maybe charge a little less for a smaller dose of that drug, right? So there’s all kinds of innovations that we really don’t get investment in. Future pandemics are another one. There’s not a certain enough return on investments, so we don’t get private investment.

Michael: There are certain things that only the public sector can advance and invest in. It’s a really important point.

Amy: I guess another one that I’ll maybe talk about is the role of labor in the American economy. For a long, long time, I think the same kind of thinking that came to dominate law schools and you could call it neoliberal thinking or in law schools that kind of appeared as this thing we call law in economics. We’re very, very down on labor unions because of the idea that they were kind of interfering with markets. Of course part of the result of that has been a carving back on the existing laws that we’ve had to give people the right to organize in their workplace and make that more and more difficult to do, some sort of weakening of unions, but also all kinds of other changes that people are probably much less aware of, like changes in the law of franchising or that allowed corporations to control a lot of production but maybe not have a lot of employees, so that you didn’t have to be responsible for things like minimum wage. So another area where I think thinking differently about what our economy is for and the importance of having workers be empowered so that they can have decent working conditions is really key to thinking about, “why do we even have an economy?” Maybe we want good jobs out of it. Maybe for that we’re going to need more labor power and need to rebuild the laws that we need to facilitate that.

Michael: I want to ask you a political strategy question. Getting the American people to rethink a lot of assumptions about the economy, a lot of assumptions about markets, a lot of that work ultimately has to be done by elected officials because they have the megaphone. So how good or bad a job do you think they’re doing at this kind of thing? And what kind of rhetorical strategies would you recommend to them if they asked, “How do we explain this to people?”

Amy: That’s a great question. One thing that has been very interesting over the last couple of years is we started to see more Democrats who I think do see the importance of talking about economic power, about monopoly power, about employer power, and also about rebuilding infrastructures of care, not just the economy of hard hats, but the economy of care and how to protect people in that economy. So we see evidence of that in some of the way that the Biden administration has talked about and who they’ve appointed to the [Federal Trade Commission], so people who really are, have really—

Michael: That’s Lina Kahn, for those who don’t know.

Amy: Lina Kahn, yes, indeed, who helped create some of the law and political economy work that—

Felicia: I was gonna say, an LPE friend and ally.

Amy: Indeed and once my student. Pointing to people like that and some of the orders that Biden has issued, and the fact that care was included as part of the original infrastructure bill and then was central to the Build Back Better approach. We’re starting to see some of these shifts happening.

I think that some of what we also see though is obviously there’s many in the party who don’t see this as the future of their party, and even the Biden administration I think is quite mixed and it’s willingness to really use the tools of government and really take on some of the implications of what it’s saying. Just an example in an area that I think a lot about, with respect to the pharmaceutical industry, there isn’t really been yet a successful enough push to really challenge the industry’s power. There are tools that the administration has that it could use without Congress, for example, and they’re not really willing to do that and I think that they may well pay the price with voters. Yes, there’s a messaging challenge, but there’s also just a do something challenge of actually show people that government can work for them and that they’re willing to do things that challenge the status quo, even if it really upsets the pharmaceutical industry. I think that’s the kind of thing that I’m hoping to see from the Democrats going forward.

Felicia: Amy, I think you’re right that there is to some degree a messaging challenge, there is definitely a do something challenge and then I also that there is an education challenge. A lot of this rethinking takes time, it takes explanation, it takes repetition, it takes conversations. All of these things I think are part of the work that you are engaged in, that we are trying to be engaged in here at How to Save a Country.

What I really like in your description of your work and LPE’s work are the ways in which lawyers and academics can be superheroes as you generate new thinking, as you have new conversations, because that is a big part of what is going to make political change.

Amy: Really what we’re good at is we know a bunch of stuff that a lot of people don’t know, and that way we can be helpful in helping to point to what people can do.

Felicia: We’re not the only superheroes. Academics are not the only superheros, but academics can in fact be superheroes.

Michael: So I’m here to say the journalists are not superheroes. By and large, there are a few.

Amy: One of my good friends tried to keep me from going to law school by saying, lawyers are just like plumbers. I said, “ What’s wrong with plumbers? Sometimes you need one.”

Felicia: Often.

Amy: Often you need one. And when you need one, you really need one.

Felicia: Amy, thank you so much for spending this time with us. We’ve learned a lot. I’m sure our listeners will learn a lot. It has been a real pleasure.

Michael: Thanks a million.

Amy: My pleasure.

Michael: So Felicia, are you less afraid or more afraid of the Supreme Court term after that conversation with Amy?

Felicia: You know what, I’m pretty worried, and in particular, I’ve been paying attention to an upcoming case about affirmative action, which could see the court ruling that colleges can’t use race as one factor in admitting their student bodies. I’m worried both because of how I think they’re likely to turn out and because I think that answer, which would ban the use of race in admissions, is likely to further split the Asian and the Black communities, and that’s something I am very concerned about. When I grew up Chinese for affirmative action was really real. Today it feels like it’s fading.

Michael: That’s interesting and depressing. We’re in for a long dark haul here. She did say that there were certain strategies available to us for changing this and reforming the court. Of course, those are very heavy political lifts and I think that they’re going to take a long, long time. I was interested, and heartened, I guess, to see a recent poll, a Marquette University poll, that showed for the first time a slim majority, and I do mean slim, it was 51 percent but all the same, a majority open to the idea of expanding or changing the makeup of the Supreme Court. So if they continue down this road, that 51 is going to grow and then change will be more possible.

How to Save a Country is a production of PRX in partnership with the Roosevelt Institute and The New Republic. Our coordinating producer is Cara Shillen. Our lead producer is Alli Rodgers. Our executive producer is Jocelyn Gonzalez, and our mix engineer is Pedro Rafael Rosado.

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Felicia: We’ll be back in a week with another episode on what else: How to Save a Country. So if you’re not following the podcast yet, please do so.

Michael: And of course, throw us a rating or a review. Felicia, tell our listeners what they can look forward to next week.

Felicia: Yeah, we’re going to be joined by Deepak Bhargava, who will tell us why Progressives aren’t thinking big enough about immigration in America.

Deepak Bhargava [clip]: Our North Star goal would be to be the most welcoming country on earth for immigrants and refugees And to do that, we would actually set an immigration target. The target I propose is 75 million people over the course of a decade.

Michael: See you then.