Supreme Court Nears ‘Unimaginable Era’: Big Brains podcast with Geoffrey Stone

Show Notes

Geoffrey Stone has spent a career studying, writing and thinking about the highest court in the United States, in particular around issues of free speech and free expression.

Never before has he been so pessimistic for where the judiciary branch is headed. “I think we are potentially on the verge of moving into an era that was utterly unimaginable at any time in our history before.”

Stone discusses the growing politicization of justices, amid the nomination of Brett Kavanaugh to the Supreme Court; his insights on Roe v. Wade (Stone worked as a clerk to Justice William Brennan during the landmark decision); and his influential work on shaping the free expression policy at the University of Chicago.

Transcript

NARRATOR: From the University of Chicago, this is Big Brains, with Paul M. Rand. Conversations with pioneering thinkers that will change the way you see the world.

RAND: Welcome to season two of Big Brains. You know, I had a lot of fun sitting down with some amazing guests last season, and I’m excited to share a whole new round of conversations with some truly amazing big brains. Today I’m going to be talking with Geof Stone, who is a University of Chicago law professor, and a First Amendment expert. You know, Geof’s had quite a career. In the ‘70s he clerked for Supreme Court Justice William Brennan, and he had a front-row seat for the Roe v. Wade decision. And here at the University of Chicago, Geof’s been hugely influential in shaping the University’s stance on free expression. Geof and I had a wide-ranging discussion about politics and the Supreme Court and his thoughts about the future of the highest court in the land.

RAND: Well, we are pleased to welcome Professor Geof Stone. Thank you for joining us.

STONE: Delighted to be here. Thank you.

RAND: We have a tremendous amount of things to talk to you about. What’s happening with our Supreme Court, talking about what’s happening to free expression, even Roe v. Wade. Do you feel optimistic? Do you feel pessimistic? Do you feel a wait and see? Where do you wake up and go to bed every day?

STONE: I feel pessimistic about the Supreme Court.

RAND: OK.

STONE: But cautiously optimistic about the nation otherwise.

RAND: OK.

STONE: I think that, as someone who has devoted his entire career to thinking, writing, teaching about the Supreme Court and about constitutional law, I think we are potentially on the verge of moving into an era that was utterly unimaginable at any time in our history before. And I think one that would be completely counter to the fundamental values of our Constitution. And that I find very deeply, troubling. And on the nation side, I mean, I think that I remain cautiously optimistic that, otherwise, the nation will preserve its democracy and begin to move in a better and more positive direction.

RAND: So as we start looking at the court—and as we’re recording this, Kavanaugh it is not yet appointed, but you may have a perception of whether that’s going to happen or not. Any sense you’d go in and think about, is it going to be a tough hearing, an easy hearing?

STONE: I think that a lot will depend on the ability of those who are concerned about Kavanaugh to make a case that is persuasive to the handful of senators who will be critical to this. Five senators, basically, are the ones who conceivably could move one way or the other. And there are two basic approaches, I think, in general terms that could be used here. One of them is about Kavanaugh himself. To see if there are things that he has written in his opinions, in lectures, in articles he’s written, speeches he’s given that suggest that he is more radical than those more moderate senators are prepared to support. And I don’t know yet whether that’s a fair concern, frankly.

RAND: OK.

STONE: The other argument, the one that I happen to think is correct, is that the Supreme Court has been increasingly turned into a political body.

RAND: I think I’ve seen you use the word ‘conservative activists.’ Tell me what you mean by that. And I don’t want to politicize this whole conversation, but I don’t imagine that has to be a politicized term, does it?

STONE: No, it’s a descriptive term. When Richard Nixon was elected president and appointed people like Warren Burger and Harry Blackmun, and Lewis Powell, and what William Rehnquist, the idea of a conservative justice was a justice who would be restrained. And those justices, in general, acted that way. Their view of their responsibilities was one that basically gave great deference to the elected branches of government and did not actively seek to strike laws down. The contemporary version of conservative justices is quite different.

RAND: And about what year do you imagine that started evolving over?

STONE: It begins, I would say, with Justice Scalia. Then, over the years since then, more and more of the conservative justices have been incrementally conservative, to the point now where four of them, I would say, are very active conservatives. So what do I mean by that? So this group of justices have held unconstitutional campaign finance regulations in Citizens United. They’ve held unconstitutional laws that allow affirmative action. They’ve held unconstitutional laws that regulate guns.

STONE: And so just as last term they held unconstitutional laws that required public employees to pay union dues for collective bargaining purposes. And so, in this sense, they are not what people thought of as traditional conservatives on the court, which were more restrained. They’ve become much more actively aggressive about interpreting the Constitution to reach results that they happen to think are the right results for the nation. So people like Scalia, and so on, who purport to be originalists completely belie originalism when they do things like saying affirmative action is unconstitutional.

RAND: Right.

STONE: Nothing in the framers of the 14th Amendment suggests they thought one minute about affirmative action. It didn’t exist.

RAND: Right.

STONE: And the campaign finance laws that restrict corporations was unconstitutional. The framers of the First Amendment had no thoughts about that, whatsoever, right? Even on the gun laws issue, the framers view of the Second Amendment clearly was not what the court said in the Heller case. So they basically have just given up on actually constraining themselves in the way that they were supposed to.

RAND: When did it turn, and what was going on that allowed that turn to occur?

STONE: Well, it began, I think, with Nixon, because before Nixon presidents of both parties tended to appoint justices who they knew, who they liked, they’ve often described as cronies of the presidents. But the nice thing about that is they weren’t picked because they had a specific ideological point of view. In recent years, meaning the last 30 years or so, presidents have become ever more determined to appoint justices who will clearly take positions on substantive issues that are consistent with their political base.

STONE: And we now see a Supreme Court, with Kennedy gone, in which we have four justices appointed by Republican presidents who tend, very predictably, to vote in cases in ways in which the Republican Party approves. And we find four justices appointed by Democratic presidents who tend a little bit less consistently, but also most of the time, in controversial ideological cases, to vote in ways that Democrats would tend to prefer. And that’s a bad thing for the court because now the court begins to look like simply a political body.

STONE: And with the appointment of Brett Kavanaugh this would be kind of a final stroke in this. And the only reason we’re at this moment is because Mitch McConnell and the Republicans in the Senate did something completely unprecedented, completely in violation of the norms of the Senate, and refused to confirm President Obama’s nomination of Merrick Garland, who was a relatively moderate and 64-year-old justice, who was confirmed to be a compromised nominee.

STONE: And they did that without any legitimate argument or justification. And when you put all that together, my concern about it is not just that I don’t like what this court will do—I have to admit that’s the case, I don’t like what this court would do—but beyond that, the idea of a Supreme Court that is no longer perceived as a legal body, but is instead a partisan political body, completely destroys the point of having a Supreme Court.

STONE: And throughout history that’s not been the way this court has functioned. And throughout history this has not been the way the Senate has functioned. So when Franklin Roosevelt, for example, tried to stack the court by adding more justices who would vote his way, the Senate Democrats said no, we’re not going to do that. And when Clarence Thomas was nominated, and was highly controversial, the Senate Democrats could have filibustered and blocked Thomas’s confirmation. They didn’t do that. So basically in the Senate in the past, the senators from both parties have tended to abide by the norms and the traditions of the Senate because they were able to understand that even if they might lose here, the long term best interest of the nation was going to be served by adherence to these traditions.

RAND: Is this retractable?

STONE: I think that if members of the Senate can step back and say we have a responsibility to the nation, we will not confirm nominees unless a majority of both Republicans and Democrats on the Senate Judiciary Committee are prepared to accept them. And that will be hard to do because everybody has become so polarized. But I think that’s the kind of deal that they need to make. Now, over the long run, I don’t think that would be ideal either. Having nine justices who are all moderate is not necessarily intellectually healthy to the court. But at least for a while I think we need to get to a point where we get away from this kind of polarization, not only of our politics, but of the judiciary, as well. Because that’s not what the courts are supposed to be.

RAND: You were intimately involved on Roe v. Wade. And I wonder if you could tell us how you got involved there, and maybe even starting—I’ll let you tie it together. But as we think about the structure of the Supreme Court, how that impacts Roe v. Wade, why is this a timely topic right now?

STONE: So I first became involved directly when Roe v. Wade because I was a law clerk to Justice William Brennan in the 1972-1973 term of the Supreme Court when Roe v Wade was decided. So when Richard Nixon was elected president he had the opportunity to appoint four Supreme Court justices in the first 18 months of his presidency. And these were all meant to be conservative justices: Warren Burger, Louis Powell, Harry Blackmun and William Rehnquist.

STONE: Yet three of those four justices were in the majority in Roe v. Wade. Only Justice Rehnquist dissented, and even then he wrote a very modest dissent. And that’s reflective of the fact that, as a legal and constitutional issue at the time, the decision in Roe was not seen as terribly controversial. Newspaper stories after the decision came down, tended to treat it very positively, including the conservative states in the South.

STONE: But the second aspect of it that I think people don’t understand, and it’s important for them to recognize, is that most people tend to think that abortion was illegal throughout history, and it was Roe v. Wade that, for the first time, recognized the right of a woman to terminate an unwanted pregnancy. That’s completely inaccurate, factually. Abortion was legal from basically the ancient Greeks and the Romans, through the Middle Ages, through the Renaissance at the time the Constitution was adopted-- the time for our nation was founded—well into the 19th century.

STONE: Abortion was legal. It was safe. It was performed by midwives. There were people who advertised their services, and abortifacients. And it was not until the end of the 19th century when, largely a religious movement, similar to what we would today think of as the moral majority, basically went after contraception and abortion and effectively managed to get state laws and federal laws enacted throughout the nation that prohibited contraception and prohibited abortion. And what Roe v. Wade did was basically to reinstate the law as it had been through much of American history and long before that.

RAND: What makes this a First Amendment issue?

STONE: This is not a First Amendment. This is an issue of unenumerated rights, the right to privacy. Basically the Constitution lists, in the Bill of Rights, a series of specific rights, freedom of speech, freedom of religion, freedom from unreasonable searches and seizures, and right to due process of law, and so on. And when the Bill of Rights was proposed one of the concerns the framers had was that, if it lists only this specific set of rights, that would imply that those were the only rights possessed by the people. And the framers of the Constitution didn’t believe that, and wanted to ensure that that was not how the Bill of Rights was understood.

STONE: And so the Ninth Amendment to the Constitution, as part of the Bill of Rights, explicitly says that the enumeration of specific rights in the Constitution should not be taken to deny or disparage other rights possessed by the people. And that was an open invitation to courts to be sensitive to the reality that there are laws that might come into being that would infringe fundamental personal liberties that had not occurred to the framers. But would either be rights or would ever be made illegal.

STONE: And in the world of the framers, of course, abortion was perfectly legal. So it never occurred to them that you needed a right to protect something that had never been made illegal in history. So Roe was basically founded on the notion that there are these unenumerated rights. And these include, for example, the right to marry, the right to have children, interracial marriage was an example of this in Loving v. Virginia.

STONE: So these are not rights enumerated in the Constitution, but the rights that [INAUDIBLE] over time.

RAND: The thinking was they didn’t need to be enumerated.

STONE: Exactly.

STONE: So, this battle has been raging for 40 years. But there is some heightened anxiety that is going on in the world related to the likelihood of the new justice. And that seems to be giving it a special accent. What do you think about all this that’s going on?

STONE: Well, I think it’s very concerning. This has been a campaign by the Christian right and by Republican presidents, ever since Ronald Reagan was elected, to try to fill the court with justices who would be committed to overruling Roe v. Wade. And with the four of the current justices, I would say it is quite likely that, given the opportunity, they would vote to overrule Roe v. Wade. And I think it’s more than 50/50 likely that, if Brett Kavanaugh is confirmed to Supreme Court, that those five justices will now, finally, overrule Roe v. Wade.

RAND: What do you think that means?

STONE: What that would mean is that women who live in red states, particularly poor and minority women who can’t easily travel to the states where abortion is legal, would find themselves in a world very similar to the world that existed before Roe v. Wade. And that world was a pretty horrific one. That was the reality of the world before Roe v. Wade.

RAND: Not very long ago.

STONE: Right, and it was the justices coming to understand that, that led them in part to decide Roe v. Wade the way they did. Because for most of the time that abortion was illegal, people didn’t know that, because it was illegal to have an abortion and it was regarded as shameful. And so people who had abortions rarely told anyone that they did. It was secret. And it became more public only in two ways. Partly it was because about 200 women a year were dying from illegal abortions because there were botched. And then they couldn’t be kept secret. And also, with the women’s movement beginning in the late 1960s, women began encouraging one another to speak out and tell these stories. And suddenly it became much more evident what this world of illegal abortion was like. And part of what I find horrifying is the thought that, for women—poor women in particular—who live in those states, they will find themselves back in that world again.

RAND: You really began building out a voice around free expression. And I wonder if you can talk about where did that interest start for you and how has your thinking evolved over time.

STONE: I came here for law school in 1968. And this was at the height of the Vietnam War, it was the height of the Warren Court, it was the height of the civil rights movement. And it was a time where the vast majority of law students frankly, were liberal. And most people of that generation at that time were liberal. And one of my professors was Harry Kalven, who was at the time one of the leading, maybe the leading, first amendment scholar in the country. And I took the First Amendment course from Professor Kalven and fell in love with the subject. And then I served as a law clerk in the Supreme Court and that further focused my curiosity on issues of constitutional law in general, and free speech. And then I came back the next year and joined the faculty here.

STONE: And then-- I’m a great believer in serendipity, so the first article I started to write for the Supreme Court Review was a piece on a Supreme Court decision that involved an equal protection issue. And I did a rough first draft of it and I was not quite sure I was saying anything as interesting as I wanted to say. And I went to a couple of my colleagues to see what they thought about it. And one of them was Harry Kalven. And Harry agreed with me. He said, you know, I don’t think this is so interesting.

STONE: Yeah, you don’t really have anything all that interesting to say here. And he said, but you know I think I have an idea that might be a good one for you. And he suggested a topic that involved free speech. And I said that’s really cool. That’s a really interesting issue. And so I wrote that instead as my first article for the Supreme Court review. And that really, I think, set me off in that direction.

RAND: Your work, your thinking, your speaking has been instrumental in helping shape the University of Chicago’s evolved position today on free expression. Can you talk a little bit about that, what you’ve learned over the process, and maybe about where we think we are as a country on this topic, particularly related to universities?

STONE: Right, so the University of Chicago has a long history of being out front on issues of academic freedom and free speech. And presidents like William Rainey Harper, and Robert Maynard Hutchins, and Hanna Gray, and Edward Levi all were very strong supporters of free speech. And the University has had a deep commitment to that value. My specific involvement, in an institutional way, began in 2014 when Bob Zimmer recognized…

RAND: The current president.

STONE: The current president, yes. He used to work for me when I was provost of the University.

RAND: OK (LAUGHING). Do you get to say that to him very often?

STONE: Every day (LAUGHING). When issues began arising in 2012, 2013, 2014, at other colleges and universities around the country, inviting students protesting speakers, Bob decided that it would be useful for us to have a relatively clear statement of a policy for the university on this issue. And he asked me to chair a faculty committee. And we drafted this report, the Committee on free expressions report. It’s short, only three pages. But the first half of it basically, in brief, went back through our history.

STONE: And what we essentially said in the report was that the University is deeply committed to the value of free expression, that universities exist for the purpose of creating knowledge, that knowledge can be created when any idea can be put forward, that our history as mankind shows that many beliefs that we have held in the past turned out to be erroneous because they were subject to challenge and question, and that that’s at the core of what universities do. And that the University of Chicago, therefore, is absolutely committed to that value and to free expression.

STONE: And the interesting thing about it is we wrote this for the University of Chicago about the University of Chicago. And we weren’t thinking at all about other institutions. And what several other institutions recognized was that they could lop off the first half of the report, which talks specifically about the University of Chicago, and just adopt for themselves the second half of the report. And so now some 50 colleges and universities, including places like Princeton, Columbia, University of Minnesota, University of Missouri, University of Wisconsin—I don’t remember the list—but a long list of institutions have now adopted the report as their own.

RAND: Was this controversial, to any degree, at the time this was coming out?

STONE: It came out, of course, at a time when these issues were dividing colleges and universities across the nation. There were people who thought it went too far. There were people who thought that there should be exceptions for what they defined as hateful speech, which the report does not do. But on balance I would say it was not that controversial. I mean there were no major protests. There were faculty members and students who thought it went too far, but for the most part, it seems to have been pretty well embraced by the community and by alumni and so on.

STONE: People who—students, faculty members, community members—who object to certain ideas being expressed that they find odious and loathsome and offensive is understandable. I find some of those ideas loathsome and offensive myself. And what I think they have to understand is that the appropriate response to those ideas is to answer them on the merits, and to explain why they are wrong.

STONE: But it is not to try to prevent people from communicating those ideas, it’s not to disrupt the events. It is to basically explain to others why one disagrees with those ideas. And what’s interesting about this phenomenon is that historically students in colleges and universities have been generally very strong advocates for free speech. Their view has always been that universities were suppressing them, and therefore they had a right to free speech. Now some students are taking the other side of that, and taking the position that certain views that they find distasteful should not be allowed to be expressed. And I think that’s a mistake of strategy. I think it’s wrong as a matter of principle.

RAND: Mistake in strategy for whom?

STONE: Well, strategy because one of the things I believe this generation of students is beginning to understand, actually, is that disrupting an event gives the speaker enormous amounts of attention. It makes them famous. It gives them celebrity status, and therefore acts as a megaphone for their views.

RAND: Well, it’s been wonderful having you with us. Thanks for joining us at Big Brains. And we’re going to keep a close eye on the things that you’ve been talking about because we’re going to start seeing the impact of all them.

STONE: My pleasure. Thank you very much.

NARRATOR: Big Brains is the production of the UChicago Podcast Network. To learn more, visit us at news.uchicago.edu, and subscribe on iTunes, Stitcher, Google Play, and wherever else you get your podcasts. Thanks for listening.