The Supreme Court: Political Tool or Arbiter of Justice? Featuring Dr. Nicole Nguyen

Episode Transcript
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Emily Williams (01:00):
Hey, everyone. We're so glad you joined us.
Since our last episode, I'vebeen thinking more about my
conversation with criticaltheorist and scholar, Alberto
Toscano. Alberto and I talkedabout what fascism is and what
its growing presence inmainstream politics means for
the state of liberaldemocracies. If you haven't
listened yet, I highly recommendthat you go check it out.

(01:23):
But I've been reflecting on whatAlberto referred to as law fair.
Lawfare is essentially whenpoliticians and institutions
waste political war againsttheir ideological opponents
using legislation, governmentinstitutions, and law
enforcement. And thoseideological opponents can be
opposing party members orcertain classes of people like

(01:43):
you and me. Project 2025 is aperfect example, and we'll talk
a bit about how later in theepisode. The use of lawfare is
nothing new.
But in the past, we've had somereasonable assurances as
Americans that ifunconstitutional laws were
passed, we could depend on thecourts, namely the Supreme
Court, to eventually strike themdown. Of course, despite being

(02:07):
assured that they'll uphold theconstitution, increasingly, we
can't count on those assurances,whether it's recent
controversial Supreme Courtdecisions overturning Roe v Wade
and granting presidents nearlyblanket immunity from
prosecution or the alarmingevidence of corruption among its
esteemed justices, it's easy tounderstand why Americans have

(02:29):
lost faith in this institution'sjudgment and its ability to
protect them against the threatof insidious lawfare. It's
undeniable. We have a SupremeCourt legitimacy crisis on our
hands. So what, if anything, canwe do about it?

(02:58):
I'm Emily Williams, executivedirector of the Arcus Center For
Social Justice Leadership atKalamazoo College. This is
Beyond Voting. We started thisshow for people like you and me.
People who care about making adifference in the world. People
who want to share in redesigningthe democracy we deserve outside

(03:20):
of the typical political binary.
This podcast is rooted in ourconviction that democracy
requires more participation thanjust voting. It's up to all of
us to take action if we wannasee real change. We'll feature
conversations with leaders,activists, and educators
discussing the state of ourcountry's institutions, ongoing

(03:42):
systems of oppression, and mostimportantly, how We The People
can take critical actions inpursuit of true equity and
justice. Talking about theSupreme Court can be tough.
Oftentimes, discussions aboutthe court and its cases are
confusing and inaccessible.

(04:03):
It's not always clear why weshould care about the cases they
hear. But the court's influenceon our lives is inescapable.
They have power over the mostintimate aspects of our personal
lives, from reproductive rightsto the most fundamental
democratic ideals enshrined inthe constitution, our right to
vote. So whether or not we payattention to the courts or even

(04:25):
fully understand their role ingovernment, they play a critical
role in protecting our freedomsand upholding our democracy.
That is until they don't.
Project 2025 has been all overthe news and the campaign
trails. If you're unfamiliarwith project 2025, it's a 920
page plan written by theultraconservative think tank,

(04:46):
the Heritage Foundation. Theyuse lawfare, meaning they intend
to use new policies and laws,sometimes the dismantling of
critical institutions to reshapethe federal government into one
that is explicitly far moreconservative and politically
partisan. And although theycan't officially say it without
endangering their nonprofitstatus, it's all for the benefit

(05:08):
of Donald Trump and his allies.The effect would eliminate many
of our hard won civil rights andliberties in the US.
And it would strip severalgovernment agencies of
oversight. That's if theysurvive at all. It would
eliminate entire governmentagencies like the Department of
Education, make deep cuts toMedicare and Medicaid, and give

(05:30):
broad powers of enforcement ornon enforcement to agencies that
regulate our food, environment,and our infrastructure. It's
also worryingly aligned withundemocratic Christian
nationalist movements that seekto strip long established rights
from women, trans people, peopleof color, and other marginalized
groups. It would be hard to lookat the political horizon, see

(05:53):
those possibilities in ourfuture, and not come away
feeling deeply distressed.
So I wanted to speak withsomeone who could give me a
clearer view of our judicialsystem and the protections it
could offer us against thosedetermined to weaponize it
against the American people. Myguest today is doctor Nicole
Wen, associate professor ofcriminology, law, and justice at

(06:17):
the University of Illinois atChicago. She's also a feminist
geographer whose researchcontributes to and draws on
grassroots struggles challengingracialized policing, war, and
empire, particularly incollaboration with community
organizations. Nicole is theauthor of terrorism on trial,
political violence andabolitionist futures, in which

(06:39):
she advocates for a rethinkingof popular understandings of
political violence andencourages readers to consider
anti imperial abolitionistalternatives. I wanted to talk
to Nicole in particular becauseshe's someone who is firmly
grounded in social justice workand analysis.
She can give us an idea ofwhat's possible when it comes to

(07:00):
the Supreme Court in theseunprecedented times. When we
talked this summer, Nicole wrotedown how the Supreme Court is
meant to function versus how itactually does, why it's facing a
legitimacy crisis, and how someof their recent rulings are
already eroding our establishedrights, and how we as activists

(07:20):
can hold the highest court inthe land accountable. Doctor
Nicole Wen, thank you so muchfor joining us. Thanks for
having me. We're so happy tohave you.
Let's just dig right in. Can youtell us what is the Supreme
Court, and what impact does ithave on our individual lives?

Dr. Nicole Nguyễn (07:43):
So I think there's a difference between the
idea of the Supreme Court andthen what the Supreme Court
actually does in practice.Right? And so as a part of the
federal judiciary, the idea isthat the Supreme Court provides
oversight above all of thesedifferent courts. Right? It's
sort of the Supreme Court of theland, and it's supposed to
provide some form ofaccountability.

(08:05):
And I think that's good sort ofin theory. I think the way that
we often think about the SupremeCourt in the United States is
that it's this apoliticalinterpreter of the law and an
enforcer of the law. So ifthere's a question about if
something, is lawful or not, theSupreme Court takes up those
questions, right, when there'sthese debates at the local and

(08:27):
state level. And what we've seenhistorically is that the Supreme
Court is an enormously politicalbody. So it's not a neutral
arbiter and enforcer of the law.
It actually is inherentlypolitical, and it's making
political decisions through itsinterpretation and enforcements

(08:47):
of the law. And I think that'sreally an important distinction
because when we're fighting tochange the Supreme Court, are we
fighting for it to be used as apolitical tool differently, or
do we have some idealized notionthat we can somehow return it to
its apolitical and neutralstatus? And I think once we shy

(09:08):
away from the idea that theSupreme Court is apolitical and
neutral, different possibilitiesopen for us.

Okay. So if I understand you correctly, that
in theory, the Supreme Courtshould actually be apolitical
and neutral. But in practice, ofcourse, it's not because
individuals, human beings, siton the Supreme Court, and then
they use their interpretation ofthe law to make rulings.

Yes. And the law also itself is not
apolitical or neutral. Right?The law is defending certain
kinds of ideas and people andproperty. And so the enforcement
of those laws is then doublypolitical.

Could you just say a little bit more about,
like, where the bias from thelaw comes from? I mean, is that,
like, the lawmakers, our ourpolicymakers? Does this go all
the way back to, you know, our,quote, unquote, founding fathers
and their interpretation of thelaw and what was important,
where does that bias come fromwith the law?

I mean, it's both the creation and then the
interpretation and enforcement.So, for example, we get to
decide what forms of theft weconsider to be really bad. And
so if someone steals $20 fromsomeone, we consider that to be
really bad. But if employersengage in wage theft and take
money from employees, that'slike, oh, like, sort of the cost

(10:30):
of doing business. So there'ssort of different kinds of
values and power that are bakedinto the law, and that's at the
law's creation because it'shumans obviously are creating
the law, and, you know, this isabout an exercise of power and
enforcement and protection ofpower.
And so I think it's reallyimportant to think about the the
formation of the law itself as apolitical exercise of power

(10:54):
that's not neutral, that's notapolitical. And then what laws
get enforced and how they getenforced is also sort of
inherently political.

Yeah. Thank you for that. Okay. So according to
a poll taken by the Pew ResearchCenter last month, the supreme
court's favorability ratingswith the American people are at
nearly an all time low. 47% havea favorable view, while 51% of
Americans they polled said theyhad an unfavorable view of the
court.

(11:24):
What are some of the factorsthat you think go into that
perception, and why shouldpeople, especially activists,
even care about the SupremeCourt?

So I think the favorability has a lot to do
with, to what extent do we thinkthe Supreme Court is this
neutral arbiter, and does ituphold the values and rights and
protections that we think we, asthe US public, deserve and want
to uphold. It's important thatefforts to reform the Supreme

(11:57):
Court are not about restoringthe court to some better time
when it's was apolitical orneutral. I think here of the
1857 Dred Scott case, and theruling from the Supreme Court
was essentially the constitutiondoesn't grant citizenship to
black people, that theconstitution doesn't provide a

(12:18):
way to ban slavery in the UnitedStates. And Abe Lincoln's
response to this before he waspresident was the Supreme Court
doesn't represent the people,the people represent the people,
and so he expanded it, when hebecame president, but he also
set aside proslavery precedent.And so for him, he wanted to

(12:39):
change the supreme court, notbecause he thought there's a way
of making it apolitical, butbecause he saw it as a political
tool.
So we can expand the court. Wecan pack the court. We can use
the court as a political tool.And I think that's a really
important lesson to learn thatwe can't see the Supreme Court
as somehow restoring it so it'ssort of above all of this

(13:01):
politics and that we're gonnasomehow, again, create a neutral
institution. The idea is, likemany things, it's a political
tool.
And so we should, sure, pack thecourt, expand the court, reform
the court because it's apolitical tool that's available
to us to begin to challenge someof these power structures at
play. And so I think when we saythat there's an unfavorability,

(13:24):
like, we're upset about Roe vWade, we're upset about Dobbs,
like, we're upset about all ofthese decisions, it's not that
the Supreme Court of it initself can sort of restore our
sense of justice. It's that itbecomes a tool for us as
communities, as individuals, tofight the power regimes that are
encroaching on our sense ofjustice and fairness and equity

(13:48):
in the United States.

Yeah. You just mentioned Dobbs, and, of course,
you mentioned Roe v Wade. Butwhat are some of the ways in
which the Supreme Court's recentrulings on reproductive rights,
Chevron affirmative action incollege admissions, voting
protections, etcetera. What aresome of the ways in which those
rulings have eroded establishedrights, and what, if anything,

(14:14):
we as activists can do to changethat?

I mean, a lot of this is about the
consolidation of power in sortof the wake of a lot of
successful social movement work.Right? So the the fact that
there were these great advancesthat were made through political
struggle is now being sort ofcountered through institutions.
And I think, again, we can'trely on state institutions, for

(14:38):
freedom and liberation becausethey're sort of inscribed with
this power and they can bemobilized to begin to repress
some of these advances. So Ithink how we got here is is sort
of the slow chipping away atsome of these advances.
I think we can see thishappening in the lower courts as
well with strategic judicialappointments or judicial

(14:59):
elections. Now, again, the ideais we shouldn't fight for
certain judicial appointmentsbecause those judges are gonna
grant us our liberation, butbecause they can make struggles
at the local level easier ormore possible. And so I think
then the response is we canengage in these struggles over
the criminal legal system, overthe judicial system, but we

(15:21):
can't depend on them. And so howdo we organize rides for people
to go to other states to getaccess to reproductive care.
Right?
How can we raise funds forpeople? How can we create these
sort of systems of care that thestate isn't going to provide?
There are many different entrypoints in how to engage in this
political struggle. And for somepeople, that's gonna be getting

(15:41):
different kinds of judgesappointed at the local level.
For other people, it's gonna beorganizing their communities to
ensure access to care.
And for other people, it's gonnabe, how do I mobilize my
neighbors, my family members toengage in political study to
differently understand thestruggle for reproductive
rights. Because in part, we onlyget here because there's been

(16:01):
this sort of cultural shift.Right? The the sort of
resurgence of we're gonna attackgender based rights in this
country. We're gonna attackqueer and trans people, or we're
gonna attack, DEI initiatives.
And part of that is aboutpolitical study and political
struggle together.

Yeah. And I think that's important for
activists to understand thatoften when we are successful,
there is gonna be a backlashthat comes. So part of it means
that we just have to stick inthe struggle. This is actually
when the struggle begins, and wehave to keep going. But I also
hear you sort of in this momentof backlash that we have to kind
of adjust our strategies.
Right? And I think that's apoint that you're making about,

(16:39):
well, if abortion is illegal inyour state, then you need to
organize rides and resources forpeople who need them. At the
same time, I also hear youtalking about the lower courts.
So can you talk more about,like, the lower courts and their
impact on society and theirrelationship with the Supreme
Court?

Yeah. So I think even if you look at
something like student loanforgiveness, right, it's
actually local and state courtsthat are challenging Biden's
different plans. And they'rethey're essentially creating
legal challenges that thensuspend any attempt at student
loan forgiveness. And so I thinkpart of shifting our struggle is

(17:20):
also learning from what theright is doing. And I think one
of the examples of this is inFlorida.
The right elected people to theboard of trustees at the New
College of Florida. They passedcertain policies. They fired
faculty, and now they'vetransformed the landscape of
higher education in Florida. Sonow you don't have gender

(17:40):
studies. You don't have queerstudies.
You don't have ethnic studies.And I think I hate to admit
this, but there is enormousstrategy in getting that done
that we were not thinking aboutboard of trustees. We were not
thinking about school boards.And so, again, packing a school
board isn't going to guaranteejustice within the education
system. But again, it becomes atool to engage that particular

(18:02):
terrain of struggle.
And so I think we have to alsolearn from where our losses are
to better prepare ourselves forthe next round of fighting.

Yeah. Absolutely. You know, I think we
also have to learn to be morestrategic, and that's certainly
one thing that I think has beenvery apparent by these, if we
wanna call them gains in theirown agenda on the right, even
these things like project 2025,that they have this very
detailed plan just like theexample that you gave in

(18:33):
Florida, and it's taken a lot oflong term planning and
strategizing to do that. So,Nicole, how does the Supreme
Court impact each presidencydifferently, or how does the
presidency impact the SupremeCourt?

I mean, I think right off the bat, you
know, one of the most directways is presidents getting to
select or attempt to selectpeople for the Supreme Court. I
think we all remember PresidentObama choosing Merrick Garland
and just never gettingconfirmed. And of course, we've
had Kavanaugh and other folkswho have been confirmed. And I
think for folks who might nothave believed in electoral

(19:10):
politics or saw the shortcomingsof electoral politics, we can
see actually how a presidentialrace matters enormously in terms
of overturning Roe v Wade, forexample. And then, you know, the
Supreme Court impacts whatpresidents are able to do, to
what extent they can exerciseexecutive authority, executive
power, to what extent legaldecisions are appealed through

(19:35):
the law and can circumscribepresidential power, can advance
presidential power, can overturncertain efforts.
So I think there there's asymbiotic relationship in one
sense where the presidentobviously is empowering the
Supreme Court and empoweringcertain people to be on the
Supreme Court, and then theSupreme Court itself can
challenge presidential power aswell.

So what do you think the Supreme Court would
look like under a Harrispresidency?

I assume that she would advance some of the
kinds of reforms that Biden isproposing, term limits, ethics
reform, adding additionaljustices, ensuring that, you
know, that you're addingjustices x number of years. So I
think that would be her effort.To what extent that's
successful, I think that dependson the congressional makeup over

(20:25):
the next 4 or 8 years. But Ithink it's going to remain a
site of political struggle underboth either Trump or Harris'
presidency. And so I think wehave to be careful that, like,
even if we get the Supreme Courtwe want that grants us all of
these things that that we'vebeen fighting for, but that's
not the end of the struggle,that the supreme court has to
remain to sort of site a astruggle, and that's something

(20:49):
that we have to continuouslypush back.
This is the entire judicialsystem. Right? There are
immigration judges who just,like, get to decide, oh, today,
I'm not letting you in thecountry. And then tomorrow, oh,
I'm compelled by your story. I'mletting you in the country.
Right? Like, these judicialdecisions have enormous power.
And so how to continuously holdthe courts in our viewfinder as

(21:10):
a part of the struggle, I think,is really important. It's not
just these moments of crisis.Right?
It's this slow build up to thecrisis that was happening
through the judicial system thatI think is is really important
to think about.

Yeah. Yeah. What would the Supreme Court look
like under a Trump presidency?

I mean, I don't think there would be any
effort at reforms. I think theSupreme Court is sort of working
the way a Trump administrationwould want the Supreme Court to
be working. You know, he's gonnaget conservative decision making
from the court. And so I thinkit's it is sort of working the
way that would benefit hispresidency.

Okay. And I also just have this question about,
like, accountability. You justmentioned that currently, the
Supreme Court is functioning theway that Donald Trump would like
it to. So are there any ways tohold the administrations
accountable with their influenceon the Supreme Court?

Yeah. I mean, I'm not a huge fan of electoral
politics, but I do think this iswhere senate races, house races
become really important in termsof who gets confirmed and who
doesn't get confirmed. And so Ithink there is a lot of local
political struggle available tofolks to challenge tight races.
I even think former presidentTrump has sort of backed off

(22:22):
some of his comments on abortionin the way that he's voting in
Florida, for example. And I dothink some of the backlash he's
received is shifting, at leasthis his sort of public stance on
reproductive rights.
And so I do think that even ifTrump were to win, there is
space and possibility forchallenging some of those

(22:42):
decisions. I think it's muchharder to hold the Supreme Court
accountable for, you know, pastdecisions. I think that's what
made, you know, Lincolnbasically saying, I'm gonna you
made all these proslaveryrulings, but I'm just gonna,
like, pretend that they don'texist. Right? And I think
that's, like, a more extremeexample of holding the Supreme
Court accountable.

(23:03):
But to not sort of give up onthe idea that the Supreme Court
is above accountability and thatthere are all these sort of
ways, whether it's at the locallevel or with presidential
election, to really push backand challenge, like, hey, this
doesn't represent us and itdoesn't represent any sense of
equity or justice, in the UnitedStates.

What do people mean when they talk about a
supreme court legitimacy crisis?And how is an illegitimate
supreme court a threat to ourdemocracy?

Yeah. I mean, I think the way people are
talking about supreme courtlegitimacy now is that it's
somehow become hyper politicizedand that these rulings don't
reflect a rationalinterpretation of the law, but
are themselves an exercise ofpolitical power. I think some of
that crisis can come to bear onour sense of democracy in that

(23:56):
the government is clearly notrepresentative of the people,
because state institutions,political authority has never
represented everybody in theUnited States. Right? It
intentionally has left peopleout, intentionally has
marginalized, excluded and harmsdifferent communities.
And so I think the idea thatsomehow these institutions are

(24:17):
going to be what confers justiceand freedom and liberation on
people, I think, is sort of thewrong way to think about those
sites of struggle and to notsort of get swept away in this
current galvanizing struggleagainst the current makeup of
the Supreme Court and some oftheir decisions. And the long
term goal isn't really just,like, make better government
institutions, but it's how do weuse those government

(24:40):
institutions as tools for sortof some of these social
movements' struggles that we'reengaged in.

Right. And social justice movements,
particularly abolitionistmovements, have been saying for
a long time that, you know, whenwe're experiencing these extreme
inequities and violations to ourhuman rights, that our
institutions are functioning asintended, right, as they are
supposed to. Therefore, wecannot see these institutions

(25:08):
and reform of them as an end allbe all to an ideal society where
everyone has the sameopportunity to thrive. I'm
curious to know what you believeare some of the most outrageous
things that the Supreme Courthas decided recently. And then,
also, I wanna know whether theSupreme Court is functioning in

(25:32):
a way that paves the road for afully fascistic society With the
ruling on presidential immunity,in particular, is that paving
the way for a fully fascistsociety?

Yeah. I mean, I guess one of the most
outrageous decisions from theSupreme Court is the
presidential immunity question.I do think the overturning of
Roe is important just becauseit's such a galvanizing moment.
And I think it shows some of thelimits of using the Supreme
Court to advance such aregressive political agenda. I

(26:06):
don't know.
Maybe the Supreme Court didn'tanticipate so much public
backlash from it. I think theSupreme Court can facilitate the
sort of continued rise ofauthoritarianism or fascism
within the country, but it's notlike the Supreme Court has been
some great arbiter of justiceover the last 100 or 200 years.
And so I don't want to grant theSupreme Court that much power in

(26:29):
thinking about it. I do think,you know, having sort of a
grounded sense that the SupremeCourt, just like it can be a
tool for the left, can also be atool for the right. I think the
Supreme Court continuing on itsway isn't sort of like some
inevitable moment for the riseof authoritarianism.
Just because the Supreme Courtis the way it is doesn't mean

(26:50):
it's sort of gonna give way tothe ascendancy of of fascism.
Like, I think that there's stillenough places of struggle and
contestation and resistancethat, sure, the Supreme Court
could go full blown right wing,and I don't think we would see
the immediate rise of fascism.

Well, Nicole, let me tell you that that's a
relief to me because becausewhen I heard about the ruling on
presidential immunity, that mademe feel like, okay. We're
already here. I mean, if theSupreme Court, you know, and
particularly the ruling onpresidential immunity, if that
doesn't pave the way for a fullyfascist society, then where

(27:31):
would the accountability comefrom?

I mean, I think it would come from the
streets. I think it would comefrom from the people. I think
the presidential immunityquestion was important, but
Trump did a lot of terriblethings that would be considered
lawful. I mean, this is true ofevery presidency. I mean,
president Obama had a kill list,and he won the Nobel Peace
Prize.
Right? So, again, like, I don'twanna imbue the Supreme Court

(27:56):
with so much power and authoritythat, like, it's the thing that
we depend on for accountability.Like, yes, I think that decision
certainly enables Trump to domore dangerous and terrible
things, but the things that havealways stopped some of or or
challenged, some of thatbehavior and policy has been
struggles from the people.Right? And I think that that

(28:18):
will always be sort of theultimate form of accountability
is that at the end of the day,you're answerable to a group of
people who will take over thestreets, right, who will try to
upend any institutional processthat's put in place.
And I think institutions, thejudiciary is a site of struggle,
and we shouldn't give up onthat. And, also, we shouldn't

(28:39):
sort of give over to the factthat, like, oh, we lost the
Supreme Court. There's no moreaccountability. Right? Because
we still can continue to providethat kind of accountability and
also push for not justaccountability, but social
change.

Yeah. 100%. And I think you have noted some ways
in which Donald Trump has beenforced to change his position on
particular issues because hewants to get elected. And, of
course, the question is, wouldhe maintain that behavior if he
is elected? And that's the thingthat we don't know.
We think that we have somepretty strong evidence to go on,

(29:14):
but we don't know because thathasn't happened yet. Welcome
back to Beyond Voting. Today'sguest is associate professor of
criminology, law, and justice atthe University of Illinois at
Chicago, doctor Nicole Wen. Inthe first half of our
conversation, Nicole dug intothe details of how presidents

(29:36):
and the Supreme Court influenceeach other, how the Supreme
Court has always been wielded asa partisan tool, and how giving
the court too much power in howwe regard it contradicts the
real power in our democracy, thepower of the people. I wanted to
know more about whether ourfractured system of checks and
balances can be repaired, whichof our other rights are

(29:59):
potentially in danger on theSupreme Court's upcoming docket,
and if she thinks it's time toabolish the Supreme Court and
start all over again.

(30:40):
Okay, Nicole. So we often talk alot about having had social
studies class in elementaryschool and where I, in
particular, learned about the 3branches of government and that
the 3 branches are aboutaccountability. They're about
checks and balances so that noone branch, you know, the
executive branch, like thepresident, gets out of control.

(31:02):
Are those 3 branches currentlyholding up as they should?

Wow. It's a question I never actually really
thought about. And I'm I'm sortof my hesitation is because I'm
not quite sure that they've everprovided the kind of
accountability that we we mighthave thought. Again, this is
something where, you know, Ithink the framers were kind of
brilliant in in thinking aboutthis, that we don't want one
branch of the government to haveenormous unchecked power. And,

(31:29):
also, we've seen unchecked poweracross history.
So, again, I think I think it'show do we use the different
levers in these differentbranches to sort of push
different forms of socialchange. But I don't think having
a a strong independentfunctioning judiciary
guarantees, any kind ofaccountability. If we think of

(31:53):
ourselves as sort of theultimate orbiters of
accountability in this country,then how do we engage the
different branches to workdifferently? Not as the end all
be all, but as as sort of toolstowards some kind of
accountability and some kind ofjustice.

I mean, I hear you saying that, yeah, this is,
like, great in design, great onpaper, great philosophy, you
know, the checks and balancesbuilt into our government, but
they've never really functionedto create the kind of
accountability to fully checkthe power of 1 branch. So if
they've never worked completelyas intended, what could be the

(32:30):
worst case scenario? I mean, ifthose three branches continue to
break down, what could be theworst case scenario?

We have a civil war, which, I mean, the
acceleration is on the right orpushing for like, they have this
sense that some kind of civilwar is inevitable and that sort
of the fractures that are comingto light through these supreme
court rulings are demonstrativeof the need to sort of break up
the United States between theseconservative and nonconservative

(33:00):
states. So so I think, yes,you'd have sort of the
ascendancy of maybe a moreauthoritarian president, whether
that's Trump or somebody else ina future election, and that the
country becomes more fragmentedto the point it leads to
continued escalated violence inthe country. And and there is
some part of me that thinks,like, that's how it will end no

(33:20):
matter what, that we're pushingto the brink even if we have the
most loving and kind president.That's the the sort of place
we're in as a country, not justas a sort of political party, is
sort of leading to that. So Ithink that might lead to some
kind of disintegration of the USas we understand it to be.

Yeah. Yeah. And do you think that it's just the
right? Because I so often hear,you know, people on the left
talking about the need forrevolution and letting the
empire crumble, and we can'teven participate in the system
as it's designed. Do you alsosee the left as participating in
this fracture that you know ishappening in our country right

(34:03):
now?

Yeah. I think the polarization takes at least
two sides. You're not polarizedunless there's this sort of
widening gap. And I do thinkthat there's a reason that
people of color are armingthemselves at higher and higher
rates because of this sort ofsense of some kind of
inevitability, unless we somehowmanage to sort of turn the ship
in a in a different direction.So, yeah, the fragmentation is

(34:25):
certainly happening across thepolitical spectrum, across the
country, and it takes all folksto sort of agree, like, we don't
have the same values.
We don't have the samephilosophies. We don't have the
same ways of thinking about howto live together. Right? And
what do you do when you get tothat to that moment? Who gets to
decide, like, here's the rulesand and here's who who follows

(34:46):
them and who's included andwho's excluded.
And I think that's the the bigquestion of, like, who gets to
decide these things? And we havedifferent ideas of who gets to
decide and decide what and howand why.

Yeah. Nicole, so many people thought that Roe
would never be reversed. If theSupreme Court continues to
function as it is, what doesthat mean for human rights in
the US? What else could happen?What might be next that they
might rule on?

Yeah. I think anything is possible. I think
interracial marriage is sort oflike, what rights do you hold
dear, and you're always at riskof losing them. I think, like,
cuts to health care are probablyup next on the table, cuts to
education. I mean, I think,like, the affirmative action
stuff is is really demonstrativeof how these struggles are gonna

(35:36):
essentially go after every sortof form of of social safety net
that we know of.
I don't know. It just seems likethose are sort of the next sites
of struggle and unless there'ssome kind of community
resistance that that it couldcontinue. But I also think that
people are realizing this.Right? And so, sure, you have

(35:57):
the overturning of Roe, but thenyou have states doing different
kinds of things.
Right? And so I think people aresort of shrinking away from the
idea that the federal governmentcan be the the guaranteer of
certain kinds of rights andthat, maybe we have to look to
the local and state level to tosort of enshrine different kinds
of rights, which in some ways,you know, I think makes

(36:18):
community based struggle alittle bit easier because your
target isn't this abstractfederal body, but it is, like,
your local judge, right, or it'syour governor, right, where
these struggles can be made andmade visible. That might seem
more doable and possible thantrying to change the Supreme

(36:39):
Court makeup and undo some ofthese decisions that have been
made.

Mhmm. I have just a few questions in response
to that. One is there and andforgive me for my ignorance. I'm
not a legal scholar, even thoughI do know the three branches of
government. I remember that fromsocial studies class.
But is there no way that theSupreme Court could confine what
happens at the local level? Imean, is there no way for them

(37:05):
to impact that? Oh, they I

mean, Greg, because those things can get
appealed all the way up to theSupreme Court. Right? So they
certainly could. I think rightnow, we're seeing the inverse.
Right?
We're seeing conservative judgeswho are trying to to throw into
chaos part of the the Bidenadministration's policy plans,
and so they could do that withinwith the next presidency. So

(37:28):
it's not a perfect solution, butI think the idea that we're
somehow gonna undo Roe at theSupreme Court I mean, we could
we could undo Roe at the SupremeCourt level. I think it's just
more likely that there's gonnabe these local struggles at the
state level. And if localpolitical leaders wanna stay in
office, they might have to bemore responsive to those

(37:49):
decisions, and local judgesmight be less willing to
overturn those decisions if theyalso fear that they're gonna
lose their seat as well. So so Ithink, you know, like, local
leaders have less power and moreto lose in some ways.
And so I think there's morepossibility and more space for
resistance there.

You also said earlier when I asked, like, what
could come next before theSupreme Court, you had said
something to the effect of anyright that you hold dear could
be next. You know, so often wethink that authoritarianism is
something that happenselsewhere, or we think about
governments that violate thehuman rights of their citizens
as something that happenselsewhere in the world, not
something that happens here inthe citizens as something that

(38:29):
happens elsewhere in the world,not something that happens here
in the US. But clearly, we're ina position where our human
rights actually are beinginfringed upon. To make it plain
for our listeners, are there anyparallels to other countries
that you could make toillustrate exactly what's
happening and what's at stake?

So this isn't a unique story to the United
States. Right? The rise of thefar right and the rise of the
far right within governmentinstitutions. That's certainly
not a unique story and it'scertainly happening across the
globe. I mean, I think a lot ofthe EU, like I think the UK,
France, Belgium, and some othercountries maybe not have been

(39:09):
using the judicial system inthis particular way, but we are
seeing sort of the rise of notjust authoritarianism, but just
a rise in the rollback ofdifferent kinds of rights.
Right? The, the sort ofcriminalization of like, being
Muslim in the UK and in France,right, through different kinds
of policies and laws. I thinksometimes when we think it's,

(39:29):
like, happening over there,we're thinking about the global
south. But this is happening inEurope predominantly. And I
think there's something to belearned from studying those
different contexts of not onlyhow the rise of authoritarianism
has happened in differentplaces, but also what were
successful strategies inchallenging that rise.

(39:51):
And, like, how did people indifferent countries try to undo
some of that damage and undosome of that sort of
authoritarian regression indifferent places? And so I think
we also have to take stock ofwhat does it mean that there's
more of a transnationalmovements towards sort of right
wing fascism or just sort ofright wing regression that's

(40:11):
happening, and how might weengage in a transnational
struggle against that resurgenceof authoritarianism?

Yeah. And you're right. So often when we think
about authoritarians or, youknow, governments who violate
the human rights of their owncitizens, we do think about the
global south. We don't thinkabout UK and France, but there
certainly are clear examples ofthat. Okay.
So if I were to say what aresome of the more egregious
examples of behavior from theSupreme Court, I would think

(40:42):
about Clarence Thomas and the1,000,000 of dollars he received
from conservative donors whothen also had cases go before
the Supreme Court, theinvolvement of his wife in the
actions around January 6th. Mymind goes there. My mind also
goes to justice Toledo and anAmerican flag being hung upside

(41:05):
down outside one of his vacationhomes after January 6th. You
know, these things certainly arenot neutral. Right?
So what can be done? There's aperception that the Supreme
Court is untouchable. It's thehighest court in the land, and
there are some nascent effortsto address the problems that
we've talked about. We know thatAOC introduced articles of

(41:26):
impeachment for Clarice Thomasand for justice Alito. You
mentioned that the Bidenadministration has talked about
expanding the Supreme Court.
What's the viability of all ofthose efforts or any of those
efforts?

Yeah. I think Biden introduced some kind of,
like, code of ethics or ethicsreform to address some of these
issues with Clarence Thomas andAlito. And it it doesn't seem
like the constitution providesthe space for that kind of
ethics reform, which which,again, I think is interesting.
And it's interesting that, like,the constitution dictates this
much of much of our lives atthis point. So I I think more

(42:01):
important is the question that'sbeing asked is instead of seeing
the Supreme Court justices asagain, on both of the laws, it's
actually call into seriousquestion the ethics of their
decision making and then whatare some of the pressure points
to begin pushing.
And I do think introducingthings like articles of
impeachment, introducing ethicsreform, I think they're

(42:24):
important even if they'reunwinnable because they're
trying to change the discourseand change the narrative of how
we think about the Supreme Courtand and turn it into a site of
political struggle. So even ifit doesn't even if the push for
ethics reform doesn't result insome kind of change in how the
Supreme Court functions, thoseSupreme Court justices likely

(42:45):
will begin to feel some pressurein sort of the way that they do
business. And I also think itwould impact then how presidents
make decisions about who to tryto appoint as a supreme court
justice. So, again, not lookingfor, like, an end all be all
sort of mechanism through somekind of reform, but to see it as
a way of shifting the narrative,a way of creating more space for

(43:07):
struggle, and also to, like,bring more people on board. So,
like, maybe you're fine withRoe, but, like, you have a
problem with that flag going up.
Right? Or the blaming of yourwife for the flag going up.
Right? So it's bringing morepeople into the conversation to
ask, like, is this what we wantof the highest court in the
land? And who gets to decidewhat what counts as ethical or

(43:30):
proper behavior within thecourt?

Yeah. Absolutely. And I think that's a
really important lesson foractivists or people who young
people who wanna becomeactivists is that even if you
can't win at all, still raisingthe issue makes a difference.
Right? It influences theconversation.
It raises awareness for peoplewho had no idea that there were
conflicts of interest happeningon the Supreme Court. So those

(43:53):
efforts still matter. We stillhave some power to hold them
accountable.

And how do you, like, inspire movement
lawyers, for example, to becomejudges, to run for for some kind
of judgeship? Right? Like, I Ido think that those are also
important points as well. And,again, like, a judge isn't the
end all be all, but having aprogressive judge the way, like,
a progressive prosecutor isn'tgonna, know, fundamentally
change the criminal legalsystem, but it can make things
more possible for communities.And so, like, again, I think to

(44:22):
not shy away from trying to sortof play with these different
institutions.

I think that's another really important point
because so many of our folks insocial justice movements,
particularly abolitionists,think that we can't have
anything to do with the systembecause it's so corrupt or it's
so stacked against us. But,actually, if we stick to our
values, we can be in thesesystems and make big difference
for the people in ourcommunities. Right? And I think

(44:48):
that that was something that'sreally evident in the level of
Chicago when Kim Fox resolved tono longer lock people up for low
level marijuana charges. Thatmakes a huge difference for
people in our communities.
So we can make a difference evenif it's not tearing down the
entire system all at once. Okay.So going back to this notion of

(45:08):
tearing it down, whatprotections might we lose if we
were to tear it down and, like,abolish the Supreme Court? Could
those protections orvulnerabilities be addressed
elsewhere, like in anotherinstitution or in our
communities?

Yeah. I guess I think it depends on what
tearing it down looks likebecause I think, you know, I
think most abolitionists havethis I mean, this is a Du Bois
concept. Right? It's both anegative and positive project.
And if you're tearing somethingdown, you also have to
simultaneously be buildingsomething up.
And so I think that that shouldbe in our sights. Like, what are
what do we intend to replace itwith, and how how can we be sure

(45:46):
that it won't reproduce some ofthe same problems, power
imbalances, political agendas,and so on. And again, like, I
don't think if we tear it downand we're trying to build
something else, we can't imbueit with all of this power that
this is somehow gonna be thething that frees us all, but
that it is, again, a tool or astrategy to engage in sort of

(46:06):
the longer struggle.

Yeah. Absolutely. And I think when I
hear you saying that, that'sexactly the kind of strategy and
long term planning that those onthe left need to be doing. What
are we building to replace it atthe very same time that we're
employing these efforts toabolish it or tear it down?
Okay.
So when we talk about expandingthe supreme court, what does

(46:30):
that mean, and how could doingthat restore faith in the
judiciary?

I think when we talk about expanding the
court, we're talking aboutpacking the court. I think the
proposals that I've seen is thatwe would continuously be
expanding the court and thateach presidential administration
would be able to add people tothe court as a way to sort of
provide this balance. I thinkthat's fine. I I just don't
think the idea that we're gonnaget a balanced court is real.

(46:56):
And so for me, it's like, if weadd 3 justices, just pack the
court.
That should just be thestrategy. It shouldn't be like
we're gonna find this, like,long term balance to the Supreme
Court because we're not like,that's never happened. And it's
always flip flopped between aconservative agenda and a
liberal agenda. And that's,like, baked into the design of
the Supreme Court. That's sortof the way that Lincoln, I

(47:18):
think, saw the Supreme Court is,like, I have this opportunity.
Like, there's no rules right nowaround the Supreme Court, so I'm
gonna add somebody. I'm gonnapack it and undo some of this
proslavery stuff. Not thinking,like, in a 100 years, it's still
gonna live up to this sort ofjustice framework that I have in
mind. But I do think that therewill be a push with the Harris

(47:39):
campaign. And if there's aHarris presidency, I do think
that there will be this push toreform.
It might be successful ifthere's the right kind of
Congress in place. And I dothink you could get popular
support for it at the locallevels because there's so much
outrage, right now about thesedecisions. So if that were to
happen, I think it openspossibility.

Yeah. And I also I think there's a message in
that to our listeners and peoplewho would wanna see these kinds
of reforms is that even if we doget some of the reforms, our
work is not done. Nicole, thishas been so wonderful, and
informative. And my lastquestion for you is, what's your
vision for how the courts upholdjustice in the United States,

(48:21):
and what's your hope for thehighest court in the land?

Wow. That's a really tough tough question. I
mean, I am hoping to end onsomething hopeful or optimistic.
You know, I think right now, thedebate about the Supreme Court,
I think, is actually a reallyripe organizing opportunity that
I think people are outraged.They're wanting to do something.
And so I don't know if I haveI've never really considered,

(48:49):
like, a long term vision for thesupreme court. I guess I would
like to see that outrage sort ofcoalesce around some, like,
really exciting politicalactivity and that people get
engaged. And that could begetting engaged in electoral
politics as a tool. It couldjust be getting engaged as a
community organizer. I think wetalked about organizing rides

(49:12):
for reproductive rights at thebeginning.
It's a way for people toidentify with a really clear
political issue and have so manydifferent avenues to contest
what's been happening. And so Ithink for me, that's what's sort
of exciting about this thisstruggle. It's not like the
endpoint of where we wanna getwith the Supreme Court. It's

(49:33):
what are we gaining through theprocess of challenging the
Supreme Court that I think isactually really exciting and has
a lot of potential and energybuilt into it that I think, you
know, we can garner and pushreally far.

Mhmm. But if you could, like, design, like, the
judicial system in the US, like,what would that look like? Like,
I think that this is, like, soimportant that we have some
ideas about what could be, like,what's possible because we know
how the current judicial systemfunctions. We know, And we know
that there's, like, constraintsand all of it. But what could be

(50:09):
possible?

You know, as an abolitionist, I I like to
think about, like, what kinds ofsystems of accountability and
checks and balances do we wannahave in our own communities, and
how do we begin building towardsthem? Like, we all have to,
like, figure out how are wegonna live together. There have
to be I don't wanna say rules,but, like, some agreements about
how we live together. Andthere's some way of holding
people accountable. And so Ithink, for me, it's like

(50:32):
starting at that most basiclevel rather than saying, like,
we're gonna reform the SupremeCourt so it looks like this.
Really think about, like, okay,how do we do this, like, within
my family? How do I do thiswithin my neighborhood or within
my community, my synagogue, mychurch? Like, whatever whatever
sort of site you're at, how doyou think about those questions?
And then how do you think aboutbuilding that up at a

(50:54):
municipality or a city level?Right.
And then how do we begin toimagine what that might look
like across the country? Andmaybe it's not having a federal
judicial system. Maybe that'snot how we address harm and
violence as it happens, or it'snot how we arbitrate who gets
rights and what are thoserights. Some of it is just like
rethinking the entire system aswe know it. And I think that

(51:15):
that can be really hard becausewe all took social studies, and
we learned that there's thesethree branches.
And sometimes we can't rememberwhat they are. But we know that
there's these three branches.And that's how our government
should be organized. Right? Andthat's what accountability is.
And I think it's like actuallyquestioning that premise. And,
like, trying to think about thisfrom a different perspective.
And maybe the starting point is,like, where I live and who I'm

(51:38):
in community with, and whatwould accountability look like
from there.

Yeah. 100%. And I love that because how does it
fundamentally transform thingsif we see ourselves as needing
to create the accountability incommunity with others as opposed
to looking to this institutionor the system outside of
ourselves? So thank you so much,Nicole. This was wonderful.

Yeah. Thanks for having me. This was a cool
conversation.

Yes. It was. And a much needed one. Thank you so
much. Talking with Nicole wasgreat.
And, honestly, I cannotunderstate the deep sense of
relief I feel. Knowing thatsomeone who studies and teaches
the law and who has applied anabolitionist lens to the
judicial system still believesthat We The People truly can

(52:24):
hold the president accountablegives me hope despite the
Supreme Court's ruling onpresidential immunity. We have a
role to play. Even if everybattle isn't totally winnable,
we still must raise our voicesand demand answers to the most
important questions. We have toremember that part of the reason
why we're here is because oursocial justice movements have

(52:45):
been successful.
The increase in diversity,equity, and inclusion
initiatives and the money that'sallocated to those efforts is a
success. The visibility of transpeople and the availability of
gender affirming care is such animportant win. The solidarity
that women showed when they cametogether for the women's march
was a triumph in the face ofunprecedented political

(53:08):
circumstances. And this is adirect result of radical
organizing and movement work.We'll talk more about how we can
come together and organize tomeet the political moment on our
next episode.
But so much of the lawfare thatwe see today is not only a
backlash against thosesuccesses. It's also a testament

(53:28):
to how incredibly powerful WeThe People can be, especially
when we coalesce around amovement and keep pushing until
something shifts. As Nicolesaid, the Supreme Court has
always been used as a politicaltool. And when we talk about a
tool, that suggests that it'smerely one part of a broader

(53:49):
organizing effort. Reforming theSupreme Court is not going to
restore all of justice in theUnited States.
It's not going to fix ourcriminal justice system, for
example. But when we have thesebroader organizing efforts, we
can also think about the SupremeCourt as a tool that should help
us in those efforts. I wannahighlight an extremely important

(54:10):
point that Nicole made, the callto be more engaged and involved
in politics at the local level.That means having to educate
ourselves and our communities onthe judicial candidates before
we get into the voting booth. Ifyou live in a city like Chicago
or Detroit, that's a lot ofjudges.
But part of holding themaccountable means that we have
to know who they are, what theystand for, and what impact they

(54:34):
could have. How you vote inthose local judgeships and
district attorney races makes adifference in the lives of the
people in your community.Finally, one point really stuck
with me after our discussion. Wecan't imbue more power into the
Supreme Court and otherinstitutions than they actually
possess. When we believe thatour institutions are all

(54:55):
powerful or have an enormousamount of power over us, that
ultimately encourages us todisengage.
But if we own the right to speakup, take action, and hold our
institutions and electedofficials accountable, then I
believe our movements will befar more effective. We spend so
long underestimating our power,but now is the time for change,

(55:19):
and we're the ones to lead it.So tell us, how are you staying
engaged and using thisopportunity to organize? Does
the state of the courtsinfluence how you vote during
elections? Tell us on IG atArcus Center or drop it in your
5 star review of the show.
It helps more people decide tolisten to the show. Shout out to

(55:39):
doctor Nicole Wen for takingtime to talk with us and helping
us understand the role of thecourts and the role we play in
shaping and holding themaccountable. You can find Nicole
and her work on Twitter atgeognicole, that's geognicole,
and on her faculty webpage atuic.edu. If you like today's

(56:05):
show, hit us up on IG. And whileyou're at it, make sure to share
this episode with everyone youknow, friend, family, and foe.
Also, please take a minute tovisit us at
https://arcuscenter.kzoo.edu andcheck out the important work
we're doing to develop andsustain the next generation of

(56:26):
social justice and human rightsleaders. That's a wrap on this
episode of Beyond Voting. Thanksagain for joining us. We'll see
you next time. Beyond Voting ishosted by me, Emily Williams.
Keisha TK Dutas is our executiveproducer. Kristen Bennett is our

(56:50):
producer. And this episode waswritten by Kristen Bennett and
me. Our sound designer andengineer is Manny Faces.
Marketing is courtesy of FabianMickens, and our music is
provided by Motion Array.
Special thanks to my team at theArcus Center For Social Justice
Leadership, Quentin, Crimson,Tamara, Winter, and Kierra.

(57:13):
Beyond voting is a production ofPhilo's Future Media.

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The Supreme Court: Political Tool or Arbiter of Justice? Featuring Dr. Nicole Nguyen

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