AUDIO LINK: (most statements are preceded with a minute location off the video -- jds)
This link no longer works for us.
A second location is at the Chicago Public Radio site here.
At the bottom of this post is a brief youtube extract from this interview. The interview took place on Jan. 18, 2001. We want to add the words, " . . . well before Obama decided to run for president . . .," but, in fact, we now believe that his earliest thoughts, dating back to his college days, were about becoming president. Absolutely nothing wrong with that; we are simply making the observation. The point being this: what is happening to our nation under the Obama Regime has been a long long time in the making. Our only salvation may be his unattended misunderstanding of the American psychic at nearly all levels. Specifically, he sees the populace as being much more ideological than is the apparent reality. As a secular nation, we are primarily interested in "self." His connection to his ideology is a spiritual one (not to be confused with a "religious" connection), and, as a result, there is much more a divide than he has considered. -- jds
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Title of interview: The Court and Civil Rights from the WBEZ
Interviewers:
Susan Bandes: Susan Bandes is widely known as a scholar in the areas of federal jurisdiction, criminal procedure and civil rights, and more recently, as a pioneer in the emerging study of the role of emotion in law. Her legal career began in 1976 at the Illinois Office of the State Appellate Defender. In 1980, she became staff counsel for the Illinois A.C.L.U., where she litigated a broad spectrum of civil rights cases, and helped draft and secure passage of the Illinois Freedom of Information Act. She joined the DePaul faculty in 1984, and was named Distinguished Research Professor in 2003 . . . link source
Dennis Hutchinson - The William Rainey Harper professor in the college, senior lecturer in the law school and editor of the Supreme Court Review at the University of Chicago. Following his graduation summa cum laude from Bowdoin College, Dennis Hutchinson attended the Law School for one year, then obtained law degrees from Oxford University, where he was a Rhodes scholar, and from the University of Texas at Austin. He then served consecutively as law clerk to the Hon. Elbert Parr Tuttle of the (then) Fifth Circuit Court of Appeals and Justice Byron R. White and Justice William O. Douglas of the Supreme Court of the United States. He began teaching in 1976, and since then has taught at the Georgetown University Law Center and at Cornell Law School as well as in the College and the Law School. He is also associated with the Department of History and with the Committee on Analysis of Ideas and Study of Methods and chairs the College concentration program Law, Letters, and Society. . . . link source
Barack Obama - Illinois State Senator from 13th district and part-time lecturer at University of Chicago School of Law.
3:55 Q: Do you think Susan Bandes and Barack Obama that the issue of how far the court will intervene rather than the content of its decisions? What is the balance in terms of the what the civil rights era meant about how the civil rights era court operated, in terms of you know the significant change in that period?
Obama
4:20 Well you know just to step back for a second from what Dennis said and I think his characterizations were right on target, but maybe for the purposes of your listeners it is important to understand what happened before the 14th amendment. I mean essentially 4:33 you have an ideological bias against court intervention particularly with regard to state matters. 4:40 I think most of your listeners are probably familiar with concepts of federalism that we have a charter of limited government with respect to federal government, and that encompassed I think not only the national legislative branch, but also the judiciary 4:55 and so it was very rare for the supreme court — or at least the supreme court was always cautious with respect to intruding into what were considered to be state matters and the police power that the state exercised over its citizens 5:10 was for the most part considered off limits. The 14th amendment in the vague ambiguous manner that Dennis indicated seeks to initially at least overturn some of that hesitance, and 5:26 says to the court no in fact you are one of the people — you are one of the institutions that we anticipate are going to protect individuals within these states. 5:36 Prior to that, at least on racial issues, if you think about the only real significant ruling by the supreme court the only significant venture into this area was the Dred Scott opinion 5:48 which was a disaster and was one of the rare instances where the supreme court was willing to intervene against congress to ensure that rights of individuals, in this case slaveholders, were not that their property rights were not diminished .6:09 That turned out to be a disaster. It also indicated precisely because it was so rare how unusual it was for the court to intrude into these issues and I think Dennis is right that although the 14th amendment tried to flip the relationship between 6:27 the supreme court and the states. Those habits of mind that style of jurisprudence I think continued to linger on 6:36 for quite some time.
Bandes: Prior to Warren, only 14th was thought to apply to states, but Warren Court brought in 1st 4th many issues didn’t achieve importance till Warren. That is what is thought to be courts activism new deal court was reviled for striking down FDR laws to protect workers. Lackner court became synonymous with bad kind of activism. Warren court dealt with that procedures or content of court that we are worried about. If Lackner court were wrong to strike down child work laws then how can warren court be right enforcing civil rights against states should court intervene?
OBAMA
09:14 Just to pin down the connection with Lackner decisions and subsequent decisions by the Warren court. It goes back to what Dennis was saying about the equal protection clause being written in a vague fashion 9:30 You know one of the ongoing debates with respect to how the judiciary should behave is it interpreting laws or is it making laws? 9:38 How much fidelity is it maintaining to the text and intentions of the legislators? 9:44 If it is too untethered to the text what language is actually there in the constitution? Then you know it is starting to veer towards activism 9:53 and unelected judiciaries making laws in what is supposed to be a democracy. On the other hand, any of us that has tried to read an insurance contract knows that 10:04 just what is on paper doesn’t tell you what it means, so the court always has to deal with that particular balance, and I think that, uh, it is never entirely resolved. And during he civil rights movement, it was willing to go out much farther than I think it had been — it had done previously, but that also gave them leverage to those who potentially didn’t like the substance of these decisions to cue back and attack them and say well we are not objecting necessarily to the outcomes. We are not saying we approve of segregation. We are not saying we approve of massive resistance, but institutionally we think that this is objectionable, so it gave leverage I think to Rehnquist and you know the future court continuing on to today to be able to argue that kind of intervention is inappropriate 11:00 for judges to engage in.
Bandes: Many academics have so much trouble today, cause, I would argue, that we have interventionist court today in commerce clause and people so supportive of Warren asking - is it the intervention or the content? And do we have right to protest antiprogressive when in warren era we were for intervention?
Hutchinson: Conventional agreement may on equal protection if state passed law that black cant serve on jury that’s unconstitutional. Whereas telling black that he cant sit in theater with whites is social equality and only Harlan in Plessey says there is no real difference, but to the 19th century mind many abolitionists were racists and Lincoln was prepared to accept repatriation till 1863 to solve the color problem so thought has changed at one point thought was social intervention was wrong.
Q: Link that to how cases were decided.
Hutchinson: That was element but scotus spark to greater intervention is not child labor, but what happens between the wars with respect to southern justice, case after case in 20s and 30s, of most grotesque violence against blacks by southern authorities… Sheriffs say we did beat him several times but he did confess, as if that doesn’t violate constitution… Judge just says this is inconsistent with con design takes off after WWII .. NAACP mounts serious campaign to attack Jim Crow in the public schools.
OBAMA
15:09 And one of the things that should be pointed out a) the NAACP mounts systematic thoughtful strategy to lay bare the contradictions that are embodied in the doctrines and ideological structures that the court is working with. The second thing is that, just to take a realist perspective, 15:31 is that there is a lot of change going on outside of the court that you know the judges. You nnow have to take judicial notice of. 15:40 I mean you have got WWII. You have got the doctrines of Nazism that we are fighting against that start to look uncomfortably. Similar to what is going on back here at home. You have got African Americans that are returning home from the war with certain expectations. Why is it that I am not in uniform and yet am denied more freedom here that I was in France or Italy. 16:08 And so you have a whole host of social conditions that are you know the court inevitably is influenced by, and I think it is important for us to realize that although Brown may be one of those rare circumstances where the court is willing to get slightly beyond conventional opinion and sort of stake a place beyond the sort of political mainstream.
Q: Conventional social opinion.
OBAMA
16:44 Social opinion, but that’s very rare and even in the case of brown, I think that there were a lot of social changes. Attitudinal changes of the sort that Dennis was talking about. 16:56 In terms of the difference between social equality and political equality, a lot of that baggage has to be eliminated before you see the supreme court. Before you see the supreme court venture out the way it did.
Hutchison: Truman desegregates armed forces. Establishes civil rights commission. Dixie rats walked out of 1948 convo strom.
OBAMA
17:08 (laughing) Who is still serving — Who is still alive?
Hutchinson: Govt it putting weight behind NAACP DOJ signed brief brown heats up. DOJ, is in case, arguing amicus on behalf of NAACP, so court thinks that pol forces of admin are on side of NAACP. Then brown comes down and new admin like is nowhere to be found. One reason I agree with Bob that court got ahead but thought it had allies in admin, and like though Warren was on fools erran as he told???
Q: Way in which court rule in American life and ability to shape law and how we are feeling that today Ashcroft hearings all sorts of nastiness flying cause of power of that job cause of way that court operates one two punch of DOJ and Scotus together in combination that is kind of relatively speaking new factor meaning like 50 yrs.
OBAMA
20:50 I think you are right on target. Lets take desegregation. You know brown v Bd was in 1954. By 1964, if you look at eventually what has happened on the ground - nothing has happened or very little has happened.
20:12
Hutchinson: 2% is number that have changed from segregated to desegregated schools.
OBAMA
20:20 Right, so the emphasis is on deliberate.. not speed in terms of progress being made in the south. Well what happens in the mid 60s that suddenly forces the hand of these schools. It is not that suddenly the court has a whole new attitude, although the court does start getting impatient and starts putting Brennan and the court start issuing opinions that stretch even farther, I think previously they would not have been comfortable with in terms of the justice dept starts coming in it, 20:58 The federal govt starts tying federal funding of schools to their willingness to abide by some model rules and regulations that have been set up by the federal executive branch, so suddenly you have got football 21:15 coaches in Texas who are saying to their school board - you know what we are not going to get this new stadium if we don’t start abiding by these regulations.
Hutchinson: Hew becomes enforcement arm.
Q Ashcroft nomination. How often have we heard his supports say he will support laws gets back to interpretation overlooks how much play there is in how we interpret what is it that we enforce gets back to civil rights laws and look at how they have now been used to convert to color blindness to protect white business from set asides ca.
Hutch: That was rhetoric in 50s colorblindness. Roy Wilkins wanted Brown endorsed on freedom of choice.
OBAMA
23:07 To go back to AG and how much discretion they have. The example, Susan, that I think is important is when you think about the sheer resources involved in actively litigating and monitoring activity at the local level. As amazing a collection as were involved with the NAACP, they are operating on some shoestring budgets. I mean they are 23:30 running around and having to select and choose - here is a test case; there is a test case that gets them to Brown v Bd, but when you start getting into the remedies phase essentially what you have to do is you have to be covering the territory south of the Mason Dixie line and sometimes above going from school district to school district and without an activist AG office and do that can come in and provide sheer resources. Many of these changes just don’t take place.
Q: Let me ask. You talked about new deal and court activism striking down Lackner, etc. We now have court with different disposition from 50s and 60s and seems quite willing to strike laws in sheer numbers. What I am wondering on either side of era we have courts striking.. how is it different before and after? Does it have different meaning?
OBAMA
25:18 Well I do think there is a certain set of different expectations in public that constrain the court now in important ways. Lets take the example of Roe vs. Wade and how the court has dealt with it I mean clearly you have got a majority on that court that doesn’t like Roe and wouldn’t have come up with Roe vs. Wade had they been the court when that decision 22:45 fist came up. They have been constrained from outright overturning Roe vs. Wade, partly because of the public expectations that have been established as far as the courts role. 26:01 If this came up fresh now, I think they would be much more willing to simply say for example this is an unenumerated right. We see nothing like this grounded in the constitution, 26:14 whatsoever. There is no reason why we are going to extend this further than, so they could have crafted a certain approach to the due process clause in ways that they cant do now. 26:29
Hutch roe would be like Bowers v Hardwick and gays.
Obama
26:35 Exactly where they say there is no tradition of us doing this and we are not going to do it.
Q: Miranda Rehnquist says part of our culture, which is not law, but seems like a rationale.
Hutchinson: Stare decisis has legitimizing feature when court reverse itself. It uses institutional capaitl dfast.
Bandes: Public consensus and what court is doing huge sea change on federalism have struck 32 major bills … but much of what they have been doing has been focused on obscure issues. A loot of incursions on personal rights have been expansion that has nothing to do with text of 11th amendment…. No longe able to sue states on age. Commerce on vawa so obscure that people, I think at least prior to Bush v Gore, didn’t see.
OBAMA
29:03 I think Susan makes a good point, but one that is compatible with the other point. I think on hot button issues, that the public is paying attention to the court, is not shipping away as rapidly as it is in areas that are obscure. 29:18 Lets take the example of the commerce clause, which some listeners may not be familiar with. You know essentially one of the things that happened in the Warren Court essentially in response to the civil rights movement and trying to figure out how do we empower the federal govt to intrude on state activity was to basically give congress carte blanche through the commerce clause basically interpreted the commerce clause so 29:43 broadly that for example the public accommodations laws that were passed by congress during the civil rights era weren’t 29:50 passed under the powers that were granted under the 14th amendment, but were rather passed under the commerce clause. What happens then is the congress gets pretty cocky and comfortable about the fact that you know we can do pretty much pass any laws that we want 30:02 that directly affect people in states without having to worry about the supreme court. Well now suddenly what has happened is that the court has systematically slapped that back, but it has done so very noticeably not in the area of civil rights legislation 30:20 and it has been very careful in a lot of these opinions to say well civil rights are different in some way and the reason we are striking down the commerce clause in this area and not in 30:31 civil rights areas is yada yada yada but you know the important point is that where the public is paying attention. I think the court remains mindful 30:39 on these issues.
Q: Take break
Q: Done a lot on govt power and shows no sins of stopping and changing ways that we govern and is part of that find intriguing. Pruning fed power back as process can have same consequences as overtly social interventions.
OBAMA
33:55 Yeah, you know one of the things that is interesting and I think Susan is exactly right that there is this pruning taking place, and that we are seeing potentially the groundwork being laid for potential future changes being made on substantive issues. I mean right now they are sort of obscure legal issues and at some point this may set the precedent then for trimming 34:15 back on more substantive issues that we care about. But there is one other 34:21 area where the civil rights area has changed and that is at the state level. You now have state supreme courts and state laws that in some ways have adopted the ethos of the Warren Court. 34:39 A classic example would be something like public education where after Brown vs. Board a major issue ends up being redistribution. How do we get more money into the schools, 34:51 and how do we actually create equal schools and equal educational opportunity? Well the court in a case called San Antonio vs. Rodriguez in the early 70s 35:01 basically slaps those kinds of claims down and says you know what we as a court have no power to examine issues of redistribution and wealth inequalities 35:11 with respect to schools. That’s not a race issue. That’s a wealth issue and something and we cant get into those.
Hutchinson: And the federal constitution doesn’t offer any warrant for intervention?
OBAMA
35:18 Exactly now, what is interesting is though suddenly a whole bunch of folks start bringing these claims in state court under state constitutions that call for equal educational opportunity and you see state courts with mixed results being more responsive to it. 35:34 You know the reason I think that is relevant is not to say that I am not worried about the lack of protections coming from the supreme court, 35:42 but it is to say though that you have got a cultural transformation that changes how states operate and how states think about the protection of individual rights in ways that didn’t exist prior to the Warren Court and that I think is an important legacy 35:56 to keep in mind.
Q: And didn’t we see a clash of those two cultures in Bush?
OBAMA
36:03 Exactly Bush v Gore is a classic example. Essentially, you could argue that the FL state supreme court was embodying concerns and, uh, a jurisprudential approach that it had inherited from the warren court that is the role that we would have expected the federal court to play.
Bandes: Interesting many say that federalism got bad name during yrs when it became code for opposing desegregation. Bush v Gore interesting obscure procedural way that scotus comes in and tells Fl highest court will not accept its interpretation of its own law.. Very rare.
OBAMA
Ironically, like Dennis said where state laws are so egregious.
Bandes: And many of us think that.
Hutchinson: Not going to relook at Bush v Gore … Free zone.. Interesting that Barack brings up that it is mocing back to states given GOP control of congress seeing shift in strategy and location we can be too scotus obsessed someimes that they can deliver social justice in unbroken vector from Brown and what Barack and I were talking about was welfare rights. That obsession of die process. If you can force admins to hold hearings before cutting off benefits it will produce more social justice. There was 1971 decision and what it did was more money went to hearing than benefits and then scotus reversed.. said well not face to face paper review the idea that you can use due process for Redistributive ends socially that will be stable was astonishing assumption in minds of litigators and it didn’t last very long.
OBAMA
39:45 And it essentially has never happened. I mean if you look at the victories and failures of the civil rights movement 39:48 and its litigation strategy and the court I think where it succeeded was to vest formal rights in previously dispossessed peoples, so that I would not have the right to vote.. Would now be able to sit at lunch counter and as long as I could pay for it. It would be ok. 40:10 But the Supreme Court never ventured into the issues of redistribution of wealth and sort of basic issues of political and economic justice in this society and to that extent as radical as people try to characterize the Warren Court. It wasn’t that radical. 40;30 it didn’t break free from the essential constraints that were placed by the founding fathers in the constitution. At least as it has been interpreted and the Warren Court interpreted it generally in the same way that the constitution is a document of negative liberties 40:43 Says what the states can’t do to you. Says what the federal govt cant do to you, but it doesn’t say what the federal govt or state govt must do on your behalf and that hasn’t shifted and I think one of the tragedies of the civil rights movement was that 41:01 the civil rights movement became so court focused. I think there was a tendency to lose track of the political and organizing activities 41:12 on the ground that are able to bring about the coalitions of power through which you bring about redistributive change.. 41:20 and in some ways we still suffer from that.
Q Lets take some phone calls. Good morning Joe.
Caller: Considering that the civil rights movement was fought on moral and religious ground, what impact does that have now on Scotus and Ashcroft being nominated?
OBAMA
42:06 interesting question you are maybe pointing out what has been a longstanding contradiction not just in warren court and liberal lawyers but generally on liberal community which is basing claims for justice on as you said moral and ethical grounds and that same time being suspicious about church encroachment into the political sphere it has been less of a contradiction traditionally in the African American community and for whatever reason psychologically the country has always been more comfortable with the African American communities marriage of spiritual and political institutions but I think that is a genuine contradiction that exists in The ideological makeup of the left in this country.. That has not been entirely resolved.
Q Do you think that maybe this is in wake of civil rights era things look different, but in terms of goals of civil rights even though there was this religious part they weren’t asking for prayer in school less overtly religious content to what they were seeking. Whereas now they seem to have more explicitly overtly religious content. Some people get heebie jeebies over goals that promote religious activity.
Bandes: Not that easy to separate religion dn desires from law … It pervades Bowers vs. Hardwick in which court withheld recognition of gays as protected class and Berger cited bible prohibition on sodomy … religion part of views.
Caller (same guy: Joe): Scotus avoiding issues
Hutchinson: Justices are worst pols in world. They have no predictive record on public reaction. They aren’t calculating like that.
Caller (Karen): 46:07 The gentlemen made the point that the Warren Court wasn’t terribly radical with economic changes. My question, is it to late for that kind of reparative work and is that the appropriate place for reparative economic work to take place?
Q You mean the court
Caller: The court or would it be legislation at this point?
OBAMA
46:27 You know maybe I am showing my bias here as a legislator, as well as a law professor, but you know I am not optimistic about bringing about major redistributive change through the courts. 46:43 You know the institution just isn’t structured that way. Just look at very rare examples where during the desegregation era, the court was willing to, for example, 46:55 order you know changes that cost money 46:59 to local school district and the court was very uncomfortable with it. It was hard to manage 47:04 It was hard to figure out. You start getting into all sorts of separation of powers issues. 47:09 You know in terms of the court monitoring or engaging in a process that is essentially is administrative and take a lot of time, the court is not very good at it and politically it is hard to legitimize opinions from the court in that regard. 47:27 So I think that although you can craft theoretical justifications for it legally, you know, I think any three of us sitting here could come up with a rationale for bringing about economic change through the courts. 47:45 I think that as a practical matte that our institutions are just poorly equipped to do it.
Bandes: I don’t necessarily disagree but court often so about status quo, but court redistributes all the time. But court on recompense. On insurance. On everything but abortion, that is.
OBAMA
48:37 Typically, the court can be more or less generous in interpreting actions and initiatives taken, but in terms of funding of abortions and Medicare and Medicaid the court it not initiating those funding streams. Essentially, what the court is saying, is at some point this is a legitimate prohibition or this is not and I think those are very important battles that need to be fought, and I think they have a redistributive aspect to them.
Caller: Tragedy was focus on court and not community work. Why does that happen?
OBAMA
49:42 Well as a former community organizer…. Litigation is hard, but community organizing is harder part of it. Difficult to mobilize change at local level.
Q: Perception the legislative measures are unstable since court has last word.
Hutchinson: Judicial is unstable too.
Q: Do you see if court position at time of Bush vs. Gore court used institutional position to wade in … How stable is that? How much of that reputation comes from controversial reputation but decisions?
Bandes: We might have consensus court can bring us a little head moral signpost, but cant go too far ahead. We need dialogue and coalitions.
End
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