Jamal Greene: “How Rights Went Wrong”

CHRISTIANE AMANPOUR, HOST: Now, after reversing Roe v. Wade while loosening gun laws in New York, it looks more like political body than an independent judiciary, say experts like Jamal Greene. He is a Columbia law school professor and he’s author of “How Rights Went Wrong.” He talks to Hari Sreenivasan about the high stakes of America’s constitutional conflict.

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HARI SREENIVASAN, CORRESPONDENT: Christiane, thanks. Professor Jamal Greene, thanks for joining us. First, right now, every Supreme Court decision seems to boil down to fundamental rights. So, what happens when I have a right and I take you to court because you say you have competing right, and we decide that there is a winner and a loser. I mean, is there an in between? Should there be?

JAMAL GREENE, AUTHOR “HOW RIGHTS WENT WRONG” AND DWIGHT PROFESSOR OF LAW, COLUMBIA UNIVERSITY: Well, I certainly think there should be an in between and I think courts have, at least, implicitly understood that there should be an in between. The fact of the matter is we live in a society in which we are pluralistic, we have very different views, we’re diverse from each, we have different values and commitments. And so, the idea that you sort of take our competing rights and decide the constitution believes in one of those rights but doesn’t believe in the other is not consistent with the kind of society that we live. And I think we are seeing that in the polarization that we see is everything gets kind of dialed up to 10 instead of trying to figure out ways of reconciling our competing rights. You know, saying that people have a right to go to the government to try to protect themselves from gun violence, and also right to own guns, is something that has to be reconciled. It’s not something that where you just pick one or the other because that denies either of the agency and self-government of one side, or the rights and the dignity of the other. And we’ve got to learn to have those things coexist.

SREENIVASAN: The originalist, the folks who believe that we should be interpreting the text of the constitution as close to what the founders would’ve wanted, it they’re going to say, this was how the framers designed it. But you argued in your book last year that this was not the design.

GREENE: No, that’s a very narrow view of what the framers had in mind even and I don’t count myself among originalist. But even on an originalist view of how do you think about rights, the framers believed in what was once been called the state police power, you know, the state house, the power to pursue the general welfare, to pass laws for health and safety, and that is totally consistent with the idea that we have rights, someone has to decide whether the state goes too far, so the state cannot do whatever it wants. But when you are very important interest on one side but also, basic rights and self-government on the other, there’s — you know, judges have a role to play in trying to figure out where the balances between those things and sometimes you have to work that out overtime. The framers fully understood that. But we’ve come to a place where the court doesn’t believe that. And so, you end up awarding victory to one side and really ratcheting the stakes of politics up very high, rather than, I’m kind of working out overtime where that reconciliation between our rights should be.

SREENIVASAN: So, what is the effect then if the Supreme Court is either perceived to be or is a political body? What does that do to the balance of power that the framers intended? How we have methods to redress?

GREENE: Viewing the court as a political body is, I think, in some ways necessary, because the court makes political decisions. So, the court makes decisions that help the governess. In that sense, they are political. What — the problem comes in when the court’s decisions are perceived as being partisan, perceived as being holding water for one side or the other, whether it’s Democrats or Republicans. And when that happens, you really have a court that is simply serving one side or the other in a partisan battle. And the American people are not going to tolerate that for very long. We have other institutions that engage in partisan fights. And I really think the court is sacrificing some of its own legitimacy when it is perceived in this way. We all have different views. Judges have different views in each other. I have different views from the court. You and I, no doubt, have different views about how to understand our rights, how to understand the constitution, but it’s exactly for that reason that the role of the courts should be and for a long time has been, to lower the stakes of our political conflicts rather than to raise them, to — not to align one side or the other in a partisan fight with what the constitution requires, because that — at that point, the other side loses their stake in the constitutional project, and that is not very good for the health of the nation.

SREENIVASAN: So, just this past week, we had a couple of cases that seem to sort of poll against each other. On the one hand, you had the gun rights case that — with the Supreme Court kind of decided to overturn some of the power the local jurisdiction could have in the case of New York. And then, the next day, you have the abortion case where it was almost the opposite, let’s take this back to the states.

GREENE: Well, you have a situation where if you only look at these cases through the lens of, is the legislature the decider or is the court the decider? It looks like the court is doing something very different in each of these cases, and you’ll get criticism of the court accusing it of hypocrisy and you’ll get criticism the other way saying, well, of course. If you say it should come out the other way, you are also being a hypocrite of some — in some sense. But what I think you are really seeing is a court and a toggling between two extremes because it doesn’t believe, or seems to not believe, that there is some reconciliation between values that are on either side of the conflict. So, in the gun control case, there’s a conflict between public safety and a conflict between gun rights, and the court awards the answer to the gun rights side. And in the abortion conflict, there is a conflict between a potential life of an embryo and the rights of a pregnant people to control their reproductive freedom, and the court essentially says, there can’t be a right on the side of the pregnant person, because there’s a value in fetal life. That hasn’t been the law of abortion for more than — for almost half a century to Roe v. Wade. That hasn’t been the law of gun control for hundreds of years of our existence. We work these things out overtime through politics, also through court decisions, this is how we govern ourselves, through a combination of political decisions and decisions by courts. What you’re seeing here is the court stepping in and deciding what that one side or the other is going to get total victory. And that’s a very dangerous thing in the democracy.

SREENIVASAN: What did you learn from reading the opinions, both Alito and the concurrent opinion of Thomas, and Thomas went further than Alito saying that the court should revisit things that contraception and same-sex marriage?

GREENE: Well, the Dobbs decision, that’s the abortion case, it really goes much farther than any opinion has ever been written about this subject, and that includes the dissenting opinions in Roe v. Wade. Those dissenting opinions said that Roe v. Wade goes too far, and that is not an uncommon view, even among people on the left. But the idea that the alternative to that is that there is simply no constitutional value at all in the ability of women, the right of women, to control their — whether they become parents or not is an extreme position. There’s no way around that. And it’s — really, if you look around the world, if you look at our particular history, it’s a startling denial of significant constitutional values. Again, you can say that Roe is — you have problems with Roe v. Wade, you think it goes too far, but to go entirely in the other direction is to deny women agency over their lives. In the gun control case, you also had what I think is a startling suggestion on the part of, not just suggestion but it’s the law in how — on the part majority that public safety has no relevance to whether a gun control measure is constitutional or not. The only question is whether it is the traditional way in which guns had been regulated or not. Again, that’s a startling denial of agency and self-government to the American people of today.

SREENIVASAN: We also had a couple of cases that, from the outside, seem to blur the lines between separation of church and state. We had one ruling where tuition assistant programs in Maine need to also be able to fund religious schools. And then, earlier this week, we had a case where a high school football coach was, in fact, according to the Supreme Court, within his right of free speech to exercise prayer on the 50-yard line after high school football games, and the school district was found violating his rights. When I’m looking at this from the outside, am I saying, wait a minute here, is there a risk of either any one religion or religion creeping into matters of how we collectively hold ourselves?

GREENE: Potentially, yes, the court is certainly giving more leeway to what the majority views as the religious freedom of particular people. These are quite complicated issues, you know, in the sense that the constitution has both a free exercise clause that gives religious freedom to individuals, but also an establishment clause that says that the state should be basically out of the business. For religion, those are sometimes a very difficult to reconcile when we are talking about, in one sense — in one case, a public employee and a public- school teacher, and in another case, a public tuition assistance program. What I think you are seeing is a court that is very reliably on one side of the political spectrum pushing its advantage very aggressively. We are going to have lots of disagreements as a people about how to balance these out in the clause and the free exercise clause. And I don’t perceive the court as doing something especially radical in those cases. But I do think that, you know, seeing the result of a six – three very conservative court where the Supreme Court is arguably several of the most conservative judges in the entire country are sitting on the Supreme Court. And that’s a very unusual situation and really does shape our perception of the court is being political or partisan institution.

SREENIVASAN: You know, and I wonder, some of the critics push back and say, would these cases have turned out differently if the religion was at the center of that prayer wasn’t Christianity?

GREENE: Well, I won’t speculate about what the courts who do if we were talking about another religion. There are cases in which the Supreme Court, including the court’s conservative majority have upheld the rights of Muslim prisoners, for example, or people on death row who are not necessarily Christian. I will say that, in general, when there — when the — when courts give leeway for people to do things like engage in school prayer at a public school, the results of that, given where we are as a country, is that people who practice more popular religions are going to have the leeway to practice those religions. And people who practice less popular religious may not have that leeway. So, the person going to the 50-yard line and praying to Allah of or engaged in a Hindu prayer of some kind is not going to get the same reception from the audience. And so, that is why you don’t see that happening, right? So, in some sense, by default, you end up privileging one religion or another. But I won’t speculate on what I think the court itself might do in that case.

SREENIVASAN: Shouldn’t a single individual have this much power in a lifetime appointment that’s unelected role?

GREENE: Well, you’re seeing people ask those kinds of questions in ways in which they haven’t in the past. I think exactly for the reason that the court is so reliably on one side of the political spectrum. So, it seems to be countering the briefcase of the Republican Party. If you look around the worlds, the idea of a life tenured Supreme Court or high court is extremely rare. The only other country in the world that has the life tenured Supreme Court is Iceland. Every other country in the world either has a retirement age or has a term limit. We also have a very small Supreme Court, and our Supreme Court also hears all of its cases of what is called in bank. So, at the same time, all of the justices hear all of the cases. And what that means is that the law becomes extremely individualize and personalized, where in every case, you have your justice in the middle, what does Kavanaugh think, what does Roberts think becomes the question as opposed to, what is the law? A much more impersonal approach to the law in many of these countries. Again, I think it’s not very healthy for a democracy. It feels almost like a monarchy when you have a very small set of individuals with life tenure deciding extremely important questions central to our values, central to self-governance and doing it, you know, over 30 or 40 years, and then, deciding that the timing of their retirement so they pick the ideology of the replacement, that is no way to conduct the democracy. And if we were starting from scratch, there is no way to do it this way.

SREENIVASAN: You take time in your book, and you point out that other countries do this very differently. I mean, you talk about, for example, abortions exist in Germany. How do they solve this situation? How do they balance these rights or how do they mediate through these solutions?

GREENE: Well, it is very ironic, and that the German constitutional court, and it is not alone in doing this, in — when it comes to abortion rights, they are very controversial abortion case back in the 1970s, just as we did in the United States with Roe, they had a very controversial abortion case in the early 1990s, just as we had with a case called Planned Parenthood v. Casey. And the German constitutional court insisted then and insists now that the value of fetal life is a constitutional value. So, in the United States, that codes as an extremely conservative position in which suggest that abortion not only be regulated by the state, but maybe must be regulated by the state. But in Germany, what that meant was that there has to be some reconciliation between the value of fetal life on the one hand and they conceded value of women to control destiny or the other. What’s that led to in Germany is a — is political negotiation around what it takes to make abortion a meaningful choice for people, which ends up redounding to the benefit both of woman trying to choose how to structure their lives, but also, fetal life. So, how do you choose — how do you encourage people to choose life? Well, you give them social support. You give them paid leave. You give them paid childcare. You give them employment guarantees. That is where the political negotiation is happening in Germany. And I don’t know I need to say that that is a more healthy thing to negotiate about politically than to see who can take people’s rights away as quickly as possible. There are other ways to thinking about rights where courts forced people to the table, force people to negotiate. Don’t just hand the victory to one side or the other, and you can end up in a much more healthy place.

SREENIVASAN: Professor Jamal Greene, thank you so much for joining us.

GREENE: Thank you.