How the SCOTUS 'Supermajority' is shaping policy on abortion, guns and more : NPR

DAVE DAVIES, HOST:

This is FRESH AIR. I'm Dave Davies. Political power in the United States is, in some respects, widely diffused among the two houses of Congress, the president and countless federal agencies and hundreds of state and local governments across the country. But my guest, Michael Waldman, says the actions of a tiny handful of government officials in the United States over the past year and a half have impacted our lives on a scale rare in modern democracies. Waldman is president of the Brennan Center for Justice at the NYU Law School, and his new book is about the transformational change wrought by the conservative supermajority which now dominates the U.S. Supreme Court. He argues that the conservatives, including three appointees of Donald Trump, have defied long-standing precedents and rendered far-reaching and troubling decisions on gun control, reproductive rights, environmental regulations and voting rights with more to come. He examines the doctrine of constitutional originalism, which conservatives have embraced, and considers prospects for change in the court.

Michael Waldman is a constitutional lawyer and writer who's led the Brennan Center since 2005. He served in the administration of President Bill Clinton as a special assistant for policy coordination and then as director of speechwriting. In 2021, he served on the Presidential Commission on the Supreme Court of the United States, which examined potential reforms. He's the author of several previous books. His latest is "The Supermajority: How The Supreme Court Divided America." Michael Waldman, welcome back to FRESH AIR.

MICHAEL WALDMAN: It's great to be with you.

DAVIES: The court has evolved a lot over time. You know, you note - remind us in this book that it began with three justices. The numbers varied over time and that it was quite some time after the Constitution before the court really took a role in interpreting the Constitution and reviewing laws for conformity with its principles. When did that take effect? When did the court get the heft that it later exercised?

WALDMAN: Well, when you look at the original Constitution, the part of it that deals with the judicial branch is only one-tenth as long as the parts that deal with Congress or the presidency. And we know that the court took a while to step in to say we're the ones who can interpret the Constitution. We know the case Marbury v. Madison was a very big deal. But the court really, after that, did not intrude in the political life of the country in a significant way until the Dred Scott decision of 1857. And that set off a pattern, which is, the Supreme Court has its power because we, the people, give it that power because we trust it to, basically, be a court, to not be so enmeshed in political projects and to reflect the Constitution and the rule of law. And when the court overreaches or intrudes or is unduly activist, there's often a very fierce backlash. That happened in 1857 with the Dred Scott ruling, and it's happened other times as well. Mostly, the court kind of hugs the middle and reflects the political consensus of the society.

DAVIES: Right. And to remind folks, the Dred Scott ruling in 1857, you know, said that the United States could not ban slavery in any of the territories and Black men could not be citizens because the founders saw citizenship for white people, essentially.

WALDMAN: The Supreme Court thought it could, quote, "solve the problem" of debate and agitation over slavery. That opinion, among other things, leaked, just like the recent opinion on abortion rights leaked. In that case, it leaked to the president-elect, to James Buchanan, who stood up in his inaugural address and said, well, we know the Supreme Court is going to make this big ruling. None of us know what it will say, but let's all agree we're going to abide by it. Everybody knew and could see through exactly what he was saying, and it led to a huge backlash. It led to the election of Abraham Lincoln as president and, ultimately, of course, to the Civil War and the end of slavery.

DAVIES: So for a long time, the court protected businesses from government regulation. You know, it said that governments can't interfere with the right of businesses to execute contracts among their employees or others. And it kept government from regulating safety in factories and for consumers. But this began to change in the New Deal in the 1930s when rulings basically endorsed the idea that Congress could exercise some regulation in the economy if there was a rational basis for it. And then, you know, you tell us that in - the Warren Court in the 1950s and '60s ensured that rights in the Constitution could be enforced in the states and upon state laws, which hadn't been the case before then, which was a big deal. I mean, you know, the Jim Crow laws in the South - you know, the court would kind of stay out of because they thought that they exercised control only of - over the federal government. So a lot changed. It moved the country to the left. You write that one of the consequences of this was that American liberalism became a discourse about individual rights as opposed to, you know, concepts of fairness or equality in government policy. What were some of the effects of that shift?

WALDMAN: Well, the Warren Court was this period when many of the most significant and, I would say, greatest opinions were issued by the court, starting with Brown v. Board of Education, which ended school segregation in the South, although it's important to note, as we understand, all the big social changes that took place in the '50s and '60s and '70s - that they were going on in the country, they were going on on the streets and especially in the halls of Congress, that, for all the pronouncements by the court, that it wasn't until the Civil Rights Acts were passed in the 1960s, thanks to the efforts of the civil rights movement. That's really when the full power of the federal government brought much more of a sense of national rights and a nationally uniform standard, that it didn't matter which state you lived in what kind of civil rights you would have, what kind of freedom of speech you would have and so forth.

The court, at that time, did so much that a lot of liberals for a long time thought, well, if there's a problem, we'll go to court and bring a lawsuit and try to get the courts to fix the problem. They lost the muscle memory, in many instances, of organizing, of persuading the court of public opinion, of building deep and wide political coalitions and movements around this vision of the Constitution. And it made things very focused on kind of individual rights because, of course, when you're going to court, that's what you have to try to pursue, is some claim of a wrong. And that glow from that period lasted for a long time, even as, at the same time, there was a very big backlash from conservatives who were essentially mounting a counterrevolution against the social changes of that time. And the Supreme Court was one of their targets.

DAVIES: Right. And it's interesting that this notion of the focus on individual rights was kind of embraced by businesses who began to assert that, well, they had rights. For example, the right to give large campaign contributions was protected under the First Amendment - the idea that campaign money equals speech. So they embraced that. The other thing that you write about is that conservatives began to really organize aggressively for changes in the judiciary. You want to just talk a bit about what that looked like and its impact?

WALDMAN: It's undeniably the case that, over many decades, conservatives organized and mounted very effective and wide-ranging campaigns for constitutional change. And a lot of that focused not just on the doctrine but on who was on the court. When you think about the anti-abortion movement, it started slowly. Roe v. Wade was not that controversial an opinion, originally, when it first was issued in 1973. Over time, opposition built. Protests built. By 1980, Ronald Reagan was running for president in opposition to abortion rights, even though he had signed them into law in California when he was governor. And originally people were pushing for a constitutional amendment, and they realized that wasn't happening. And so they began to focus especially on who was on the court, on changing the views of the people on the court and changing the personnel. This was not something that just started two years ago. This was not something that started with, say, Senator Mitch McConnell of Kentucky, who actually has talked about his judges project and has talked about how important it is to put conservatives on the court. It's happened over many years.

One of the things that's new, and listeners probably are familiar with at least some of this, is the role of an organization like the Federalist Society. This started as a student club. It is a conservative legal organization. It has grown over time. It provided the names to Donald Trump of who he could appoint to the Supreme Court. It has become a political machine and a very well-funded political machine as well.

I always looked at the Federalist Society - I work on voting rights and other issues that they are involved in - and I said, well, they do quite an effective job considering they don't seem to have that much money. Well, it turns out that a few years ago somebody confidentially gave them at the time $1.6 billion. They run ads, they create organizations that then file briefs with the courts and they're filing briefs in front of judges they helped install. It's a faction within a faction that has taken control of this very powerful branch of government with lifetime appointments and with little recourse.

DAVIES: The other thing that we saw as - part of it as a reaction to the liberal direction of the Warren Court, was the embrace by conservatives of the philosophy of originalism in examining constitutional law. You want to explain what this is?

WALDMAN: Originalism is a very important thing for all of us to understand. It is only recently that the Supreme Court really only in the last year has fully embraced this idea. It's the idea that the only legitimate way to interpret the Constitution is to ask what it meant at the time it was ratified and to the people who ratified it. It was originally argued by conservatives saying this would stop liberal judges from sort of imposing their own views. What this means in practice, though, is that we will be governed under originalism by the views of property-owning white men in the late 1700s or sometimes in the 1800s.

Of course, this was a time when women could not vote, for much of that time when Black people were enslaved and so forth. It was a very different time with very different values and visions of what kind of country we were going to be. The notion of originalism is that we actually now must be bound by that. The Supreme Court ruled last year that the meaning of the Constitution is, quote, "fixed" and that we need to be governed by history and tradition. And that is a very, very significant shift in how the Supreme Court has ever made rulings over time.

It was always important to know what they thought back at the founding era or what the document says. But it was always also really important to know what happened after that - how the country changed, the impact of decisions, all - what the precedent was and how previous rulings had come before. This is a very radical and, I would argue, extreme shift in the way the court rules. And it is, in many respects, plainly reactionary in its implications.

DAVIES: You note in the book that there were other approaches that conservatives could have taken in challenging some of the changes that the Warren Court had brought. And I just have to say, I mean, it just seems kind of a little weird on its face that you would, you know, think that a governmental document, however wisely crafted by however wise its authors were, that came out of an era when, you know, as you say, I mean, most adults didn't have full citizenship rights, we were an agrarian society - that this could be the basis for all wisdom. What is the more sophisticated argument for this notion?

WALDMAN: I mean, they could have - they used leeches for medical care, for example. The argument is that you need some sort of fixed point and that this at least is a way to fix things at one point in time. Part of the problem with that is, among other things, the framers disagreed among themselves endlessly and often violently about what the Constitution meant and what values there should be. One of my favorite points is, we all look at the Federalist Papers as the guide to what the framers thought and meant, and it was an anonymous set of op-eds written by James Madison and Alexander Hamilton and John Jay, as listeners to the musical know at the very least. And in Federalist Number 10, Madison wrote, well, the whole thing is we need to avoid factions. We need to avoid political parties.

Well, then two years later, he organized a political party, which - the one we now call the Democrats. And so he started writing anonymous articles saying, some people think factions and parties are bad. Well, they don't know anything about history. They're the nature of things. In other words, within years, Madison himself had changed his views or his arguments. So we can't really pretend that we can know what to do now, today, in 2023, by asking what the guys in powdered wigs in 1791 thought.

The notion of history that is often reflected in these originalist arguments and opinions is about as ritualized as kind of a Medieval Times costume restaurant. It's a sort of a vague notion of what they must have thought back in the old days. And it's a crazy way to run a country in 2023.

DAVIES: We need to take a break here. Let me reintroduce you. We are speaking with Michael Waldman. He is president of the Brennan Center for Justice at the NYU Law School. His new book is "The Supermajority: How The Supreme Court Divided America." We'll continue our conversation in just a moment. This is FRESH AIR.

This is FRESH AIR, and we are speaking with Michael Waldman. He is president of the Brennan Center for Justice at the NYU Law School. He has a new book. It's titled "The Supermajority: How The Supreme Court Divided America."

So let's talk about this supermajority on the Supreme Court and what it has meant. You know, Donald Trump got to appoint three justices - Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. And instead of a very solid five-justice conservative majority, we have six very conservative justices. And one of the things that you know is that when the court had this reliable conservative majority, oral arguments changed from the days when litigants and justices had to persuade a swing vote on the court to go their way. How did the arguments change?

WALDMAN: Well, for - there's often been a swing vote. And for a long time, for example, it was Sandra Day O'Connor and then it was Justice Anthony Kennedy. But with six very conservative justices usually moving in lockstep, the arguments came out differently. They were sort of triumphalist rather than trying to make a case to that one individual justice. It turns out the numbers matter quite a bit. And it changes the tenor and the ambition of the court when there's a solid majority, when you can even lose one justice and still push through really dramatic rulings. And it's all part of a kind of a pretty significant potential gap between the court and the country.

In a sense, the country is moving in one direction, and with this locked-in majority - supermajority - the court is moving fast in another direction. That's going to create a pretty significant potential crisis of legitimacy. Here's an interesting fact, and this is an empirical statement. It's not a partisan statement. One party, the Democrats, has won the popular vote in seven of the last eight presidential elections. That's actually the longest winning streak of that kind in American history. But the other party's presidents have appointed six of the nine Supreme Court justices. That reinforces the potential distance between the country, the electorate and the court.

DAVIES: Was there less civility among the justices themselves - more sniping, more insults?

WALDMAN: You know, the court depends, for the decisions it makes, on a sense of calm, of sobriety. They really want to build up this mystique. You know, they wear robes even though they're not wizards. They're not a religious institution, but they want to have that aura. But as they prepared to make these really big rulings in June of 2022, the first full year of this supermajority of conservative justices, they didn't have that quiet aura. They were sniping at each other. There was nonstop controversy. Everything from the leak of the Dobbs opinion on Roe v. Wade - they started giving speeches attacking each other.

Justice Clarence Thomas said basically, this was a great place to work until John Roberts became chief justice. We learned about the activities of Justice Thomas' wife, Ginni Thomas, and her deep involvement in the efforts that ultimately led to the insurrection at the Capitol on January 6. And all of this was happening in public. It was once the case that somebody, in an earlier era, likened the Supreme Court justices to nine scorpions in a bottle. This year, the scorpions were crawling all over the table. It was all happening very much in public view.

DAVIES: You also note that decisions by the court used to be announced publicly, and sometimes there would be comment from dissenters. That has changed. Now they're simply released online as PDF files. Is that related to this? What's it significance?

WALDMAN: I think, again, they were girding themselves for what they knew were going to be really significant, really controversial and, in many ways, really extreme decisions. Some of this was due to COVID. They didn't have oral arguments in person for a long time. But I think there was a building up of a mental fortress around the court, as well. After the Dobbs leak and there were protests, they put up a big fence around the court to keep people away. And it used to be the case, as you say, throughout the whole history of the court, that when there was a ruling, it would be read or summarized in person by the author. And sometimes, there would be a dissent - a very passionate dissent - read from the bench by one of the other justices.

But last year - and so far this year - they're just issuing PDFs on their website, so that Roe v. Wade was overturned with a send button at the court's website rather than in a hearing where somebody would be saying those words and the public would hear it. There's no television, but now we are able to hear the audio from the court. And I think that's a deliberate decision, in some ways, to try to dampen the public response to some pretty controversial rulings.

DAVIES: We're going to take a break here. Let me reintroduce you. We are speaking with Michael Waldman. He is president of the Brennan Center for Justice at the NYU Law School. His new book is "The Supermajority: How The Supreme Court Divided America." He'll be back to talk more after this short break. I'm Dave Davies, and this is FRESH AIR.

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DAVIES: This is FRESH AIR. I'm Dave Davies. My guest is Michael Waldman. He's a constitutional lawyer and writer and president of the Brennan Center for Justice at the NYU Law School. His new book focuses on far-reaching rulings of the conservative supermajority on the Supreme Court on gun control, reproductive rights and other issues. He also examines the conservative justices' reliance on the doctrine of originalism, the idea that the words in the Constitution should be interpreted as they were understood at the time. His new book is "The Supermajority: How The Supreme Court Divided America."

So let's focus on some of the decisions handed down by the court in the session which ended in June - three powerful decisions in three days, as you note. One involved gun regulation. The majority struck down a long-standing restriction on carrying concealed weapons in New York City. This law was - what? - like 100 years old or something.

WALDMAN: To the early 1900s, yes.

DAVIES: Right. And you say this may be the most significant gun law ruling ever. The majority cited what the justices argued was the original intent of the founders or the original publicly understood meaning of the Second Amendment, which they argued protected the right to keep personal weapons for self-defense. Give us some context here on the Second Amendment and the state of gun restrictions back in colonial times, since we're talking about originalism.

WALDMAN: So the Supreme Court never said that the Second Amendment reflected an individual right to gun ownership for self-protection.

DAVIES: Before now, you mean (laughter).

WALDMAN: Until - well, until 2008 - it was quite recent. That was the Heller case. But that case allowed gun regulation, allowed public safety laws. That was written by Antonin Scalia. And Scalia was asked, what's the difference between you and Justice Thomas? And he said, well, I am an originalist, but I am not a nut.

Well, this ruling was written by Justice Thomas, and it was by far the most sweeping, the most extreme Second Amendment ruling in the country's history. I wrote an earlier book about the Second Amendment and really studied its development over the years. And there's nothing close to this. It didn't just strike down this New York law of over a century governing the carrying of weapons. It said, in effect, that you cannot consider public safety when looking at a gun law, only what it called history and tradition, by which it meant some law, some rule from the colonial era or from the founding era.

Now, the history here is actually not actually what the history is. There's a long tradition, before and after the Second Amendment was ratified, of restrictions and even bans on carrying weapons. It was always treated differently from having a gun in your home, say, or having something for self-protection in your home. So the opinion kind of hopscotched around and rummaged in the closet to find supportive evidence. So the history wasn't even the real history. But what it has led to is this situation where dozens and dozens of long-standing laws on firearms, on public safety, are at risk of being struck down and using this, really, I would argue, bizarre, almost satirical new standard.

After this ruling, for example, a judge in upstate New York looked at New York state's new law that it had passed after this ruling was put into effect. And the judge there, a federal judge, said, well, history and tradition - two examples from the founding era, that's a mere trend. For it to be tradition, you need three. And I can find no tradition of laws from then banning guns at sleepaway summer camps because they didn't exist. Therefore it's struck down. It's unconstitutional. Let alone subways, which, you know, had not been invented yet, would not be invented for 100 years. It genuinely is forcing us to try to look at the mores and the laws and the specific rules from the late 1700s as we try to understand how we are going to protect ourselves now at a time of assault weapons and many, many other things they didn't have back then.

DAVIES: You know, I just want to dwell for a moment more on the empirical information about what the status was of gun rules back in the late 18th century. I mean, you write that that gun restrictions were very common in cities. I mean, there were all kinds of rules banning weapons way back then and throughout the 19th century. You know, the Second Amendment refers to the need to maintain a well-regulated militia. And there's a lot in the text to suggest that that's really what the founders were talking about, is maintaining arms for that purpose. And you note that some legal scholars looked into the meaning in colonial times of the expression, to bear arms, because this was cited, you know, as justifying an individual right to bear arms for self-defense by the Supreme Court. What did - you know, back in the day, what did the term bearing arms actually mean?

WALDMAN: The Second Amendment, when it was written, was all about public safety. The militias are not like anything we have right now. In fact, that era was different in so many ways. Every adult man, eventually every adult white man, was required to serve in the militia for their lifetime and was required by law to own a gun and bring it from home for their military service. There was no police force. There was no U.S. Army. That was the public safety force for the country.

And Justice Scalia, when he said, no, this is really about an individual right for self-protection - he said, you can tell that because the word bear arms - he used dictionaries from back then - he said, bear means carry, therefore, that it must be something you can carry. So it must mean something like a pistol. Well, after that ruling, a bunch of scholars created a database of all the writings from the founding era, I guess so that we could go push a button and find out what to do now. And they pushed the button and it said, bear arms means serving in the military. It refers to serving in military service. That was what it meant back then.

So again, there's an absurdity to the notion that we're going to govern ourselves now either by what this computer tells us or by trying to have a seance with what they did back then. We have had guns and we have had gun regulations from the very beginning. It was illegal to have a gun in the city of Boston because they would have safety issues. There were all kinds of things at the time. And we've balanced the goal of freedom and the goal of security all throughout our history.

One thing I was struck by was, in 1824, the University of Virginia was being created, and the Board of Regents met to set the new rules for the new university. And it said, you know, that you can have lectures and there could be research assistants working on these classes and that guns were prohibited on campus as well as swords. And the seven regents included James Madison and Thomas Jefferson. They did not think that prohibiting the carrying of weapons at UVA violated the sacred right to gun ownership. They understood the balance there.

Even in the Wild West - there's an iconic photograph from Dodge City, Kansas, in 1878. It looks like a movie set. It looks like the Universal Studios backlot. There's saloons on either side. It's a dusty main street. There's hitching posts. And in the middle of the street is a sign that says, welcome to Dodge City - firearms strictly prohibited. You actually had to leave your gun at town limit, and they would give you a token, like a coat check. So we've had - even in the Wild West, we had guns, we had gun regulations. It's a new concoction - the idea that there's some sort of individual right that prohibits public safety from being taken into account.

DAVIES: We're speaking with Michael Waldman. He is president of the Brennan Center for Justice at the NYU Law School. His new book is "The Supermajority: How The Supreme Court Divided America." We'll talk more after this break. This is FRESH AIR.

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DAVIES: This is FRESH AIR. And our guest is Michael Waldman, president of the Brennan Center for Justice at the NYU Law School. He has a new book titled "The Supermajority: How The Supreme Court Divided America."

Of course, probably the best-known decision rendered in June was the Dobbs decision, which overturned the Roe v. Wade decision, which recognized a right to abortion, which, by the way, had been reaffirmed in a 1992 decision written, you note, by three Republican-appointed judges. You say that this decision, the Dobbs decision, was poorly written with sloppy grammar and misguided sourcing. Was this also an originalist decision? What did it say about the intent of the founders?

WALDMAN: This was - as you remember, it leaked. And while we don't know who did the leak, one of the consequences was to freeze it in place. And basically, the ruling as eventually published wasn't something that changed very much from the leaked version. It sort of read, I think, like a first draft. It said that Roe v. Wade and the many cases afterwards that upheld it were egregiously wrong. And it cited, again, the views of people from hundreds of years ago as the reason why this is.

For example, it cited a British judge six times named Matthew Hale. He's somebody who was notorious for sentencing women to death for witchcraft and for crafting the idea that a husband cannot rape his wife because she had consented to it by marrying. It cites him six times. And Saturday Night Live did a sketch about this when the opinion leaked, and I assume people thought it was making it up. But it really is one of the bases for this argument.

Again, the history is not even entirely right. Abortion was not covered by laws, was not banned by laws until the mid 1800s. But the bigger issue is that people's notions of equality, of the role of women in society, of personal freedom and all those other things have in fact evolved and have in fact improved over the years. And this is an opinion that says that only history and tradition, that only these long-standing views of how society ought to organize itself should be how the country governs itself.

They said, oh, we're just putting this back in the hands of the political process in the states. Part of the problem is some of these states had laws on the books that had been defunct for many years that sprung back into action. And some of the states with the harshest abortion laws were also states with the most problems in their political systems, with the most gerrymandering or the most restrictive voting laws. So it's not just an answer to say, oh, well, the political process - the people will speak.

DAVIES: Because it's a political process that was exercised decades or centuries ago in some cases.

WALDMAN: That's right. Although there is a fierce and growing and highly effective so far backlash in the political system to this ruling.

DAVIES: You know, there are a number of legal scholars, and not just conservatives, who have said over the years that the Roe decision, you know, was not as legally sound as it should be and that the court had gotten too far ahead of public opinion. I'm wondering, what's your take on that?

WALDMAN: Ruth Bader Ginsburg, for example, was quite critical of it for many of those reasons. And there were others who felt that it was striking down the laws of many states at a time when they were changing, when abortion rights were becoming far more accepted. But it put a stop to the legislative activity because the court had protected it. But I would note that that critique may or may not have been valid, but it's also something that's been accepted as one of the rights for half a century. And millions of American women - every woman of childbearing age now has had this right protected their entire lifetime.

And so for all the kind of academic critiques of the reasoning of the Roe v. Wade decision, it's been upheld again and again until now. It has become part of the fabric of America's freedoms. And so it's a pretty big deal to undo it. It's the first time the court has reversed its protection for a fundamental right of this kind.

DAVIES: You know, the impacts of the Dobbs decision have been widely reported. Obviously, it just changes so many things for American women in so many places. And there was, of course, the case of the the 10-year-old girl who was impregnated by a rape and then found herself unable to get abortion services in her state. One of the impacts that you note here, maybe less widely discussed, is a kind of legal chaos that is unfolding in states, cities and counties as they kind of live in this new world. You want to explain this?

WALDMAN: Well, you now have one state where it's a fundamental right because their constitution protects it and another state where it's a crime next door. And it's not going to lead to more certainty. It's going to lead to chaos and agitation in the courts. It has also led to a really significant political response. The response to the Dobbs decision in particular helped lead to a significant win for the Democrats in the midterm elections. Usually, the party of the president controlling the White House has a big loss in a midterm. It always happens. And this time, the Democrats had the best midterm performance in decades in significant measure because of a response to the Supreme Court and also fears over the health of democracy. We've even seen in state Supreme Court races, where states now have to step up to protect abortion rights - you went from an evenly divided electorate in a state like Wisconsin to an 11-point win for the more liberal candidate for justice there when they elect their justices, a referendum, in effect, on the direction of the courts. So it's not only playing out in the courtrooms but in the politics of the country.

DAVIES: Briefly, what are some of the issues that this court might consider and make important rulings on in the coming term?

WALDMAN: Well, the court is getting ready to make big rulings over the next month in June of 2023. This term, they're really focusing on race and on democracy. We expect that they will rule, and we expect, based on what they've said, that they will strike down the use of race in university admissions as a factor at all, thus upending affirmative action. They are expected to rule on the Voting Rights Act, the landmark civil rights law, which they've weakened enormously over the past decade and will really - I hope not, but may well finish the job of gutting the Voting Rights Act. They heard a case that asks them to say that the Constitution gives untrammeled power to state legislatures to set the rules for federal elections without checks and balances from state courts, state constitutions, governors or state electorates. That's called Moore v. Harper.

It's a crackpot idea, in my view, and has no basis in history. It would lead to chaos in our elections. I think they may say that one is moot because of the actions of the North Carolina Supreme Court. It had originally blocked a gerrymander there, and now it says it's OK. So it may be that this court, the U.S. Supreme Court, won't actually rule on it. They're making big rulings. There's every reason to think they will be just as aggressive as they were last term. And there's every reason to think that despite the protest, despite the pushback, there are enough votes to move forward in a very significant conservative direction on these cases.

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DAVIES: This is FRESH AIR. And we are speaking with Michael Waldman. He is president of the Brennan Center for Justice at the NYU Law School. He has a new book. It's titled "The Supermajority: How The Supreme Court Divided America."

You obviously find the direction of the court very troubling. And in the last section of the book, you kind of take a look ahead and see what might be done to move in a different direction. One of the things you write is that every state constitution but one includes a guarantee of a right to vote that's stronger than that in the U.S. Constitution, which I think would surprise a lot of people. What does that mean for opportunities for change?

WALDMAN: State courts and state constitutions can be and should be a strong bulwark for protection of rights, for advancement of equality, for promoting democracy. As you say, the state constitutions have stronger protections on voting rights than the U.S. Constitution. And this kind of thing is true on a lot of different topics. You even see abortion rights upheld in a place like Oklahoma and other states. What we need, though, is for state courts to step up, not to just say, well, whatever the federal courts say something means, we're going to follow that, too, which has often been the case in the past - but to live up to their obligation to be an independent force to protect people's rights. That is a long-term project for lawyers, for scholars, for activists and for judges. It's something my organization, the Brennan Center, is deeply involved in advancing. And I think all Americans need to understand that the U.S. Supreme Court is not the only court in the country. Everybody's got to do their part.

DAVIES: You know, in Pennsylvania, the 2020 redistricting plan was challenged as being gerrymandered in state court on the basis of the state constitution. And that resulted in a redrawn map, which really dramatically affected the state delegation there, so it does happen. You say progressives also need to engage in the political process. Does this mean - well, what does that mean?

WALDMAN: Well, for starters, Congress can undo some of the worst rulings by the Supreme Court if it passes laws to do it. So when Congress considered voting rights legislation, which was supported by a majority of the Senate, as well as passing the House, but blocked by a filibuster, that would have undone the bad rulings - at least what I think were bad rulings - by the Supreme Court on a lot of voting rights issues. There are other ways Congress can often act. It just needs to remember its power to do so. There are also things that we can do in other ways. People pass constitutional amendments. It's very hard, of course. And it always looks impossible. And then about every 50 years, there's a burst of amendments. And if people feel that the system is broken, that is something that can happen as well.

It's also the case that candidates running for office need to talk about these things. You know, conservatives for a long time, and to their credit, have talked about the Supreme Court, have talked about the Constitution. And liberals often have not. They've not engaged on it. In a sense, they've relied on the courts to protect rights but have not made it a central political issue. I also think that the court itself is ripe for reform, as any other branch of government is. Nobody is so wise that they should be the judge in their own case. So for example, the U.S. Supreme Court should have a binding ethics code just like all the other courts in the country do. And nobody should have this much power for too long. So I believe there should be an 18-year term limit for Supreme Court justices, which is the way it's done for the state supreme courts in all but one state and all the constitutional courts in other countries. And that's actually something that is very popular across the political spectrum, doesn't really help one party or another.

DAVIES: You know, it was probably after you'd done the research for the book that these revelations came out by ProPublica, the independent investigative news site, about lavish gifts that Justice Thomas accepted and did not report on his financial disclosure statements from a wealthy conservative. Has that damaged the reputation of the court or changed public opinion in a way that might be an opening for reform?

WALDMAN: Public trust, according to the polls, in the Supreme Court has collapsed to the lowest level ever recorded for a lot of different reasons. This doesn't help. It's not just an ethics question. Did somebody take a cup of coffee they shouldn't take? What ProPublica reported was that this individual, Harlan Crow, in effect, subsidized the lifestyle of Justice Thomas over many years. And it wasn't publicly disclosed. It's not just the luxury jet trips and other things, he bought justice Thomas' mother's house and paid for the renovations while she still lives in it. He provided the support for the education of Justice Thomas' surrogate son and other things that I think people find troubling and that need to be disclosed and are part of the reason why this powerful government agency, this government branch, the Supreme Court, should have an ethics code with teeth the same as the rest of the courts do and the rest of the government does.

DAVIES: So as we wrap this up, how optimistic or pessimistic are you that - for change?

WALDMAN: I think that this is a pretty significant change in the structure of government, of how the Constitution is seen in our lives. This very extreme group of six justices have the ability to make significant changes in our country going forward. But we have the ability to hold them accountable. We have the ability to push back. We have the ability to make changes. And I'm optimistic if people wake up, if liberals, among other things, fall out of love with the Supreme Court and with this hazy vision from many decades past that that's going to be their savior. If the country fully engages in this debate while the court is moving in one direction and the country is moving in another direction, I'm optimistic that changes can happen. But it's a moment of decision. This is a big, big deal for the country. It's going to be a big part of our politics going forward. It'll be important in 2024 and beyond. And if everyone engages and understands the Constitution is not for lawyers, it's not for judges, it's not for professors, it's for we the people to decide what it means, that's what gives me hope.

DAVIES: Well, Michael Waldman, thanks so much for speaking with us.

WALDMAN: Thank you.

DAVIES: Michael Waldman is president of the Brennan Center for Justice at the NYU Law School. His new book is "The Supermajority: How The Supreme Court Divided America." On tomorrow's show, we speak with actor, producer, director and author Elliot Page, known for his roles in many films, including "Juno" and "X-Men." Page has written a new memoir titled "Pageboy," an account of coming out as transgender and of the joys and perils of fame, including pressures from Hollywood to conform to the gender binary. I hope you can join us.

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DAVIES: FRESH AIR's executive producer is Danny Miller. Our senior producer today is Roberta Shorrock. Our engineer and technical director is Audrey Bentham. Our interviews and reviews are produced and edited by Amy Salit, Phyllis Myers, Sam Briger, Lauren Krenzel, Heidi Saman, Therese Madden, Ann Marie Baldonado, Seth Kelley and Susan Nyakundi. Our digital media producer is Molly Seavy-Nesper. Thea Chaloner directed today's show. For Terry Gross and Tonya Mosley, I'm Dave Davies.

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