Democracy Works is taking its annual summer hiatus starting next week, but that does not mean the wheels of democracy will stop turning while we’re away. In fact, this summer could prove to be quite the opposite.

In this episode, we discuss what’s going on in the Supreme Court and the impact of the rulings that are expected to come out by the end of June. We’ll also be watching the January 6 committee hearings, which are scheduled to begin June 9. We consider what the goals of the hearings are and how our fractured media landscape will impact how the committee’s work is received by the public.

Finally, we share some recommendations for books and series that have nothing to do with politics and tease a new series that we’ll be launching this summer while Democracy Works is on break.

Additional Information

Candis’s recommendation: A Swim in the Pond in the Rain by George Saunders

Chris’s recommendation: Death Comes for the Archbishop by Willa Cather

Michael’s recommendation: The Ministry for the Future by Kim Stanley Robinson

Jenna’s recommendation: Station Eleven by Emily St. John Mandel

Related Episodes

The Federalist Society’s ideas have consequences for democracy

How national parties are breaking state politics

The roots of radical partisanship

Episode Transcript

Michael Berkman From the McCourtney Institute for Democracy on the campus of Penn State University. I’m Michael Berkman.

Chris Beem I’m Chris Beem.

Candis Watts Smith  I’m Candis Watts Smith.

Jenna Spinelle I’m Jenna Spinelle and welcome to Democracy Works. Well, we have reached the end of another school year and the end of another season here on democracy works, we are going to be taking a hiatus for the next couple of months till probably late August or so. But it’s going to be a big summer. Just because we’re not on doesn’t mean that the wheels of democracy are going to stop turning by any means. It seems they don’t they don’t hold it up for us. How dare they. But one of the things I think that we’re watching, or will be watching this summer, are decisions coming out from the Supreme Court, there are several big cases, I think, that are expected to be decided this current term. So I thought maybe we could start this discussion there. What are you all going to be watching for and to maybe take a step back even from that? How are you thinking about the courts role in our democracy in this this current moment?

Candis Watts Smith  Well, a few things stand out to me. And one is that the Supreme Court is a reminder that elections have consequences. And some of those consequences have very long lives and long tails, will remember that three out of six conservative justices were nominated by one person who was impeached twice and never won a popular vote. You know, the other thing that stands out to me about the Supreme Court is also that the shift reveals how long a movement might need to take to get what they want. And then this case, we see that there is a conservative movement to make courts up and down the kind of no across the federal system, to move to the right. And with just sheer will and determination and leveraging democratic institutions in a particular way, that what we’re going to see over the next over the summer, and certainly over the next several years, maybe decades, is going to come out of that very, very long movement.

Chris Beem But I think in terms of the the outcome that you just described Kansas, I think it’s the product of very good and successful organizing and finding the points of leverage within the political dynamic, and then developing a concerted strategy to put influence there. And that goes back to playing the long game and using resources in philanthropy in higher education, and creating new research sources for it. And so all I would want to say is, that’s good politics. It’s not, I mean, I don’t like the outcome. But I think in terms of just how democratic politics works, and ought to work, the Republicans and the conservatives have done a really, really good job.

Michael Berkman Well, and the Federalist Society.

Chris Beem I mean, that’s one of those institutions,

Michael Berkman One of the Republican judges, certainly all three appointed during that during Trump’s term, or essentially chosen by the Federalist Society with his long term goal of overturning abortion rights, reinforcing gun rights. And I think we’re also going to see, as we already have with many of the public health decisions around COVID, with curbing back regulatory powers, as well. And yeah, as Kansas noted, at the beginning, it was long, it was a concerted effort to do it over time, and to do what they needed to do. The courts were designed to be anti majoritarian institutions and

Chris Beem Right to defend rights against them in a majority.

Michael Berkman Yeah. And I think, I think a lot of the conservative movement recognize that a lot of the positions that they were really pushing, we’re not favored by the public. And so the best way to go about them was going to be through security, this anti majoritarian institution, and Americans are now seeing the consequences of that. So you’ve got, you know, Clarence Thomas was appointed back with Ronald Reagan. And we can well anticipate that Coney Barrett who’s quite young will be around for another 40 years, and Kavanaugh, too, could well be around for 40 years. Can he be around for another 50 years? You know, whatever, whatever the public opinion might be. Right now, it doesn’t really matter because these people were chosen from a different time period, and are likely not going to be all that concerned with that. Although studies of the Supreme Court in the past have often found that they do take into account public opinion to a certain stance? We’ll see.

Chris Beem That’s a really good point. And I think you’re right. I mean, you know, there was so much press about the leaking around the abortion decision about the Mississippi law. But the other issue that’s coming up before that’s going to be decided is is this case in New York around the New York law says you have to have a reason to have concealed carry of a firearm. And the case is arguing that that’s unconstitutional goes against the Second Amendment. And I got to believe that what’s going on in ivaldi, and Buffalo has to be a topic of conversation, it is this really the time when you want to eliminate every restriction on concealed carry in the United States of America? And it we’ll see, we’ll see. But it is, it is going to be impactful, whatever, whatever it is.

Michael Berkman You know, so I mean, it to me my sense of what the recent school shootings of recent mass shootings, actually because Buffalo was just two or three weeks ago, right, is that that won’t make any difference at all, for the courts, in their deliberations deliberations, which are probably done by now.

Chris Beem I wouldn’t know. But I’m certain they are. But certainly the decision is already mostly written.

Michael Berkman Yeah, but but it will have, I think it will make a difference in how it is received, and how the public takes it. But you know, whether or not what we’re seeing decision after decision after decision, I mean, we really can’t downplay the significance of these court decisions over the last couple of years, and what’s coming up, potentially, the Mississippi decision on abortion, which, you know, my assumption is that they’re not going to change that opinion very much or soften it. But that’s the opinion, put them in a very difficult position, if they did, I think we’re gonna see this few further loosening of gun rights, and actually, probably to a degree that we haven’t really even thought about yet. And it goes under the radar. But you know, the decisions that have come down about COVID, and the government’s power in COVID, these are all really designed to undercut the regulatory power of the federal bureaucracy. I think they’re probably going to go after the commerce clause in the next couple of years, as well as a way of reducing federal government power. I mean, this is this was a dream to get a six to three majority on. And I’ll be very surprised if they don’t take full advantage of it, especially as public opinion potentially moves against them from demographic changes, and lots of other things going on.

Candis Watts Smith  You know, find it funny and not funny, haha, but just something to think about that we’re having such this kind of long conversation about the role of the Supreme Court, when, ideally, ostensibly, it’s supposed to be the least powerful of the three branches of the federal government. And so, you know, the fact that we are talking about this and all of the power that they have and have amassed over the years is, in part because you know, there are these other mechanisms that are supposed to keep us within the guardrails checks and balances and separation of power. But those don’t appear to be working, either because Congress, Article One, or whatever instance, right, and is ceding that power by letting its own rules that are not written in the constitution getting its way of turning elections. And what people actually want into into policy, right to just kind of their like kicking the can and being loosey goosey. The filibuster, for example, is not in the Constitution and filibuster rules have changed before and they can change again, if there was, you know, a will to actually turn public opinion and preferences into reality.

Michael Berkman Yeah, were courts really intended to be the least dangerous branch? Or was the observation that they were the least dangerous branch and because what we’re seeing is not having the power of the sword and not having the power of the purse? Right, as the legislative branch does? And as the executive branch does? They were they were puffed up in certain ways, right? They were given lifetime tenure, not really thinking that they were going to live to be 85 years old, but Right.

Chris Beem They’re gonna get nominated when they were in their 40s. Either.

Michael Berkman We tend to reify the framers quite a bit and and appeal back to their wisdom. But their their failure to foresee the development and the political parties is is really consequential, because they saw the three branches as in competition with one another, right, as Chris was just talking about, right. I think the phrase from Federalist 51 is ambition counteracts ambition or something along those lines. on those lines, but partisanship actually draws these institutions together in a way that wasn’t foreseen. So the core is because of these, you know, the Republicans have been in a position and have been, and because of what they were able to pull off in the Senate, and been able to dominate the appointments to the court. And so this kind of conservative Republican ideology is running across institutions. It’s not one institution in competition with another right, which is how they foresee it. And and it was quite naive of it, not to anticipate, in fact, many of them were involved

Chris Beem Almost immediately, right. As soon as Washington left the scene, boom, there were parties, but and it’s rarely been otherwise in American history.

Michael Berkman Well, and in the history of any democracy, I’ve rarely been otherwise. I mean, political parties are pretty much found in any democracy. Now, of course, they probably didn’t realize this in the 1700s. Yet it is. It does have to stand as I think a real problem in using the framers constantly as a way of justifying everything that’s going on, they really miss something here. Now.

Chris Beem I mean, we’ve said that before, I don’t think any of us disagree with that. The implications are extreme right now.

Candis Watts Smith  I also think that, you know, another place that we’re kind of seeing this extreme partisanship and polarization encroach is at the very local level, which is, you know, often where we tend to expect kind of more homogeneity around values and demographics. But I think we’re seeing this kind of erode, even like in schools. And I think kind of some of the, the debates and chaos acts in school boards, and the diminishment of American public education is also going to be a consequence here. And maybe I’m being a little conspiratorial here. But I think that if we look at the strategies that we’ve seen that, for example, taking on judicial seats, by the judiciary, especially at the state level, I’ve been like cheap seats. I mean, it’s easy to campaign, it’s easy. You know, they’re, they’re historically cheap seats. And I think that the same could be said about school boards. And so here, I think we really need to kind of keep our finger on the pulse around the dynamics around what’s going on around book bands, and, you know, academic freedom and civics education and don’t say gay and what were what teachers are allowed and not allowed to do. And vouchers are all are all just kind of in the same round of diminishing public education is role in producing well informed citizens that can make educated decisions at the ballot box or as political representatives or as bureaucrats or as teachers, etc.

Jenna Spinelle This reminds me of our conversation with Jake Grumbach from earlier this year about how national politics and this the polarization you’re describing Chris, that started at the national level as really sort of steeps, steep down into state politics and also into local politics. And I think we also heard this from Lilliana Mason, and in some of her work bears this out that these sort of incompatible visions of fully realized multiracial, multi ethnic democracy, and whatever vision is not that right. That’s what we’re talking about here. And it also I think, brings to mind this, and this maybe brings us back to the courts a little bit. But this notion of rights, you know, we’ve talked before on the show about the right to public education. And we’ve if you sort of put that on on one side, and something like the second amendment on the other, or the two seems like there’s also this sorting going on in the courts of which rights are more important or the creation of of a hierarchy, or you know, which ones matter more. And there’s there’s been a lot of talk about, well, does the opinion on roe mean that we’re going to come for marriage equality or that other things like that might be next? And I’m wondering how you all are thinking about this issue of, of rights and whether we might very well see some of these other things that are not explicitly granted rights in the Constitution kind of be perhaps up for question in ways that they haven’t been before? Yeah.

Michael Berkman The writing out of the Ninth Amendment from the Bill of Rights. I mean, that’s what struck me about Alito, his decision, almost more than anything. I mean,

Chris Beem Well, say more about what that means.

Michael Berkman Well, the Ninth Amendment is the one that is that people have rights that are not right or enumerated in the Bill of Rights. I mean, it’s quite explicit about that. And we have

Chris Beem a war and the founders were worried right that well, what about other rights that we haven’t articulated? That’s what the Ninth Amendment is for, right.

Michael Berkman And the Griswold decision, which established the right to privacy and right, that’s not enumerated in the Bill of Rights, but it’s rather considered an unenumerated rights draws heavily on the knife in arguing that you can look at what they call the numbers of other rights to discern the right to privacy, we thought it was a fascinating decision, the way they went about this. But what was really kind of striking about a lidos decision from what I saw, and maybe not the most careful reading, but others I think, talked about it too is he never mentions it, right. But he really goes after this notion of unenumerated rights. And it’s because he goes after unenumerated rights, that people are rightfully concerned about gay marriage rights, and oh, host of others. contracept. Yeah, I mean, a lot of things that are that, that the right to privacy under is underneath, that they’re all built upon the right to privacy. And and I mean, they want to argue, but I didn’t believe it for a second that well, abortion is different, because it also involves the rights of the fetus. But they are that that’s just a convenience, I think they’re using to try to claim that this doesn’t apply to anything else. I mean, the well being of that decision, is one that will undercut all unenumerated rights. And that is not what was intended by the framers, they were quite explicit in the Ninth Amendment, that you could find rights that aren’t listed and happened to that.

Chris Beem And, again, as you said, Michael, the whole point of the Bill of Rights is to say there are rights that every individual obtains that cannot be legislated away, period. And I mean, obviously, these these rights are going to conflict. Right. You can’t solve it just by saying there’s a right here. But it’s clear that for, for Alito, in this decision, that the argument that there is a right, that’s in the penumbra of the Constitution is simply out of bounds. It’s, it’s it does not hold any, any credence with the court.

Candis Watts Smith  Part of this conversation, especially on the congressional side was teed up during Ketanji Brown Jackson’s confirmation, right? They were kind of asking her like, well, you know, what do you think about these rights that are not, you know, enumerated in the Constitution. And I think that also just goes back to what we were talking about earlier about how partisanship through each of the branches of government can serve to collide in a way that was unintended. So Congress, for example, could make some series of laws and could go through all of the trouble to make new amendments. These are possibilities, but they are ones that are just not going to happen. Not anytime soon. But I think it’s important that we also consider the fact that the Supreme Court has way more power than it ought to, and that other branches of government are ceding its own power to it by not doing anything.

Chris Beem Well, there’s there’s because of the filibuster, and because there’s a razor slim, slim majority in the House. Congress is very hamstrung in terms of doing anything here. And the Supreme Court does have that, and they can get things done. And so that’s where that’s where political action naturally goes. Yeah. Hey, me

Michael Berkman Just a little bit skeptical that everything is just because of Joe Manchin and Kyrsten cinema refusing to do the filibuster, I think sometimes they’re carrying water for others. And this gets a lot of Democrats who may feel you know, there are a lot of fairly there are a lot of Democrats in the Senate that are are not particularly progressive, and who might feel very uncomfortable, especially with some of these sort of institutional changes. But one thing that Joe Manchin does for them is get them off the hook I’ve ever had.

Chris Beem I think that’s certainly true, right?

Michael Berkman That’s at least in some cases, just kind of legislative politics work.

Candis Watts Smith  But Congress has so many procedural absurdities that I think that we let the status quo constrain our imagination of what’s possible. These people are smart people, and they are very experienced, as we discussed with Kevin Munger last you know last week vague that there has to be some other way. I just have a hard time believing that it has to be like this, that these people cannot use their imaginations and their experience and their know how to produce good policy, especially when those policies mimic or are speak directly to public preferences, especially when it’s about rights expanding matters, not necessarily ones that run roughshod over minority.

Jenna Spinelle Speaking of Congress, the other big thing or another big thing that will be happening this summer. In fact, starting on June 9, just a couple of days after this episode will come out the January 6 committee will start its public hearings, I have seen op eds and things comparing this to you know, this is the the political equivalent of Top Gun, right, this is going to be like the summer’s big blockbuster, maybe that’s maybe that’s

Chris Beem where that analogy was going.

Jenna Spinelle But, you know, I’m also reminded of, you know, I think one of the very first episodes of the show that we did, we had Doug Kriner, on who was our colleague at Penn State at the time, and he used to studies these hearings and the power that they have both legislatively and in in the public eye. And I just, I wonder if based on what we have seen from things like the Ketanji Brown Jackson confirmation hearings or other public displays of political procedure, whether any ground will be gained any minds will be changed what outcomes we can realistically hope for, or look for out of these hearings.

Michael Berkman It’s also a matter of setting the record straight. And, and getting the facts out there. And I guess it was Jonathan Roush, right, who talked to us about how different content the something of knowledge helped me out Jenna, constitution of knowledge, intuition of knowledge, and talking about how different institutions are designed to gather facts and knowledge differently, right. The journalists have their tools and universities have their tools and their procedures and their institutions that are designed to learn what’s true to learn new knowledge. Courts have their ways of doing that. And Congress has its way of doing that. And, and we’re going to need all of these in order to really get to the bottom and learn what it is that happened on January 6, and the you know, in the Congress can play a role in that in helping to establish a record that’s going to be there. And that’s going to be there in the public for the public in years going forward. That’s going to be there for the Justice Department to perhaps pick up on or not to pick up on but we don’t, we don’t really know, there’s some signs, and maybe they are picking up on some of it. But anyway, I just I do think that the public aspect of it is very important, as Jenna framed it. That’s why they’re doing public hearings, in part, but it’s also about building a record.

Chris Beem Boy, I really hope that this is not just a document for history. I really, I mean, you know, you don’t have to change a lot of minds in order to have a huge political impact. Yeah. And I was gonna weaken Trump. Yeah. And we can the argue the everyone who is supportive of this argument that, you know, we have to stop the steel that the election was stolen. I mean, there there is a huge cadre of Americans who will never change their mind about that. But if there, if you can change it, from 40% to 35%, or, you know, something like that, that would have an impact. And I just think it would be good for the nation. If that happened.

Candis Watts Smith  Yeah, there’s gonna be a there’s a long term and a short term and a medium term. So the short, short term, I think it’s going to be very much I’ll believe it when I see it. And by that I just mean, you know, as you’re saying is there are going to be some people who are going to aggressively reject the facts. Then there’s the long term, which is what Michael was talking about is like, for fact gathering and knowledge gathering and having it so we can have a better understanding of our history and contextualizing all of the things that happened to us. I think so there’s a challenger, and there’s 911. But another set of Commission’s that have occurred over the years are ones that are concerned with race and racial violence. And we don’t seem to have learned from any of those. So you know, it will be fascinating, I suppose, to see whether this is going to be one of the ones that we do learn from or that you know, some disproportionate amount of Americans reject off offhand or we’ll quickly forget.

Chris Beem I’m gonna argue against myself and I end Just to say that the one thing that goes to impeachment hearings did. And the one thing that I hope this commission does, is advocate for a standard of truth in politics, that there is a there are facts of the matter here. And it’s important that those get communicated. And that lies get challenged and called out as lies. Because if you if we don’t do that, if there are no standards for what is legitimate political discourse, and you just can’t sustain a democracy, and I think that you see this again, and again, and again, there is no evidence to support the notion that the election was stolen, and that doesn’t matter. And it ought to matter. And if we are in a society in which power is the only adjudicator of the legitimacy or the truth of a claim, then ballgames over?

Candis Watts Smith  Well, I guess one thing to look out for is to see if Democrats, especially in the Senate, try to leverage this for expanding voting rights and for the people act or the John Lewis act yet

Michael Berkman The timidity there is really, really remarkable.

Chris Beem You know, there’s a lot of timidity go around there. It’s also the Justice Department timidity. And it, it seems to be much ever increasingly viable strategy of just running out the clock. We don’t have a lot of time left. And if there are no cases brought before January 20 2023. It’s I think it’s going to be too late.

Jenna Spinelle But as we bring things to a close here, wanted to ask, we certainly have no shortage of books and things that we talk about and you know, recommendations for people to read. But just wondering if any of you have anything you wanted to recommend to our listeners to check out whether a book or another podcast or something you’ve been watching something that they should check out this summer while we are on on hiatus,

Candis Watts Smith  Considering that we’re all going to be watching the Top Gun of politics. CNN, I wanted to recommend something that has nothing to do with politics. And I recently read listened to slash, I did the audible version of A Swim in the Pond in the Rain by George Saunders, which is essentially a masterclass on what makes a story work. And it was just a good reminder of how to delight and reading literature, and what lessons we can take away from stories and from the writing itself. And it it uses, like met Russian short story classics, to walk through and I really enjoyed it as just kind of a break from all of the timidity that frustrates us all

Chris Beem I’m taking, I don’t know if it’s a class or a book club or whatever. But it’s alumni from where I went to graduate school on this American literature. And I gotta say, I’m struck by how depressing the history of American literature Classics is, and how often I see these same issues of class and race and just come up again and again, and again. I’m just just finished Grapes of Wrath. If you really want to be depressed, that’ll do it. But the one book we read that I just absolutely loved was Death Comes for the Archbishop by Willa Cather, who is from Nebraska, but it is just filled with grace and humanity. And the writing is unbelievable. So that would be my suggestion.

Michael Berkman The book, I was thinking about what is called a ministry for the future by Kim Robinson. And it’s a piece of science fiction. I read a lot of science fiction, although this has gotten me into it a bit more. This book was recommended to me by Michael Mann, the climate scientist when, when he was here, and it’s a book that looks in a variety of ways, politically, economically, technologically, scientifically, ecologically, at a future worlds, where climate change has really played itself out in some extremely tragic ways. The books starts with a massive heatwave in India that essentially kills everybody in a certain geographic area, millions and millions of people. And then it just go and the central player in the book is this ministry for the future, which is established that have some I’m going to call it a loophole in the Paris Climate Accords that essentially allows this international ministry to be set up for responsibility to look out for the future, and for future generations and for the future Earth, and so they have enormous power around the world. And we see the establishment of different monetary systems that are based not on the use of carbon, but on not using carbon. We see these large scale technological approaches to dealing with climate change. We see terrorist activity related to climate change, I just find that an absolutely fascinating book that did a couple of things. For me it, it opened up my imagination about what a future world could look like in terms of climate change, both in terms of its impact, and what it’s going to do and and how we might respond to it. Recognizing that we’re not going to be the same after all this climate after all of these disasters occur. And so we have to think about how things might be approached very, very differently.

Jenna Spinelle So I think mine in some ways, ties all of these threads together, perhaps it’s Station 11 by Emily St. John Mandel, which I read for the first time a couple months ago. There’s also a series on HBO, I believe, but I love the way that she uses story and character and description also has has a science fiction element. And I think to your point, Chris also shows how all these themes just kind of keep keep coming back around whether in the real world or a future world or an imagined world. And I know she has a new book out as well called Sea of Tranquility. I’ve not read that one yet. I’m still in the queue for it at the library. But she’s she’s written several books, and then there is that station 11 series on HBO as well,

Michael Berkman Which is tremendous. It is I agree, do we perhaps have a different podcast series that people might want to listen to over the summer?

Jenna Spinelle It’s called When the People Decide. So the series name sort of has two connotations. One, what happens when people decide directly on these issues, which is one set of considerations, and the other is what happens when people decide to take a more active role in their politics. So I think of it in some ways as the maybe the optimism that we’ve we sometimes struggle to find another things certainly comes out in the people that I talked to here. So with that, I think we’re going to bring the season of democracy works to a close. Thank you all very much for listening for the entire team. Thanks again, and we will see you in the fall.