Lets Talk About How Truly Bizarre Our Supreme Court Is
\u201cGetting race wrong early has led courts to get everything else wrong since,\u201d writes Jamal Greene. But he probably doesn\u2019t mean what you think he means.\n\nGreene is a professor at Columbia Law School, and his book \u201cHow Rights Went Wrong\u201d is filled with examples of just how bizarre American Supreme Court outcomes have become. An information processing company claims the right to sell its patients\u2019 data to drug companies \u2014 it wins. A group of San Antonio parents whose children attend a school with no air-conditioning, uncertified teachers and a falling apart school building sue for the right to an equal education \u2014 they lose. A man from Long Island claims the right to use his homemade nunchucks to teach the \u201cShafan Ha Lavan\u201d karate style, which he made up, to his children \u2014 he wins.\n\nGreene\u2019s argument is that in America, for specific reasons rooted in our ugly past, the way we think about rights has gone terribly awry. We don\u2019t do constitutional law the way other countries do it. Rather, we recognize too few rights, and we protect them too strongly. That\u2019s created a race to get everything ruled as a right, because once it\u2019s a right, it\u2019s unassailable. And that\u2019s made the stakes of our constitutional conflicts too high. \u201cIf only one side can win, it might as well be mine,\u201d Greene writes. \u201cConflict over rights can encourage us to take aim at our political opponents instead of speaking to them. And we shoot to kill.\u201d\n\nIt\u2019s a grim diagnosis. But, for Greene, it\u2019s a hopeful one, too. Because it doesn\u2019t have to be this way. Supreme Court decisions don\u2019t have to feel so existential. Rights like food and shelter and education need not be wholly ignored by the courts. Other countries do things differently, and so can we.\n\nThis is a crucial moment for the court. Stephen Breyer is retiring. And in this term alone, the 6-3 conservative court is expected to hand down crucial decisions on some of the most divisive issues in American life: abortion, affirmative action, guns. So this is, in part, a conversation about the court we have and the decisions it is likely to make. But it\u2019s also about what a radically different court system could look like.\n\nWe discuss the Supreme Court\u2019s recent decisions on vaccine mandates, why Greene thinks judicial decision-making is closer to punditry than constitutional interpretation, the stark differences in how the German and American Supreme Courts handled the issue of abortion, Greene\u2019s case for appointing nearly 200 justices to the U.S. Supreme Court, why we even have courts in the first place and much more.\n\nMentioned:\n\nThe Ezra Klein Show is hiring a managing producer. Learn more here.\n\nBook Recommendations:\n\nRights Talk by Mary Ann Glendon\n\nLaw and Disagreement by Jeremy Waldron\n\nCult of the Constitution by Mary Anne Franks \n\nThoughts? Guest suggestions? Email us at ezrakleinshow@nytimes.com.\n\nYou can find transcripts (posted midday) and more episodes of \u201cThe Ezra Klein Show\u201d at nytimes.com/ezra-klein-podcast, and you can find Ezra on Twitter @ezraklein. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.\n\n\u201cThe Ezra Klein Show\u201d is produced by Annie Galvin, Jeff Geld and Rog\xe9 Karma; fact-checking by Michelle Harris and Kristina Samulewski; original music by Isaac Jones; mixing by Jeff Geld; audience strategy by Shannon Busta. Our executive producer is Irene Noguchi. Special thanks to Kristin Lin.