The Supreme Court Went Off the Rails Long Before Dobbs

Published: June 28, 2022, 9 a.m.

b'On Friday, a Supreme Court majority voted to overturn Roe v. Wade. On Sunday, we released an episode with Dahlia Lithwick that goes through the court\\u2019s decision in detail, and we will continue to come out with new episodes on the ruling \\u2014 and its vast implications \\u2014 in the days and weeks to come. \\n\\nToday, we\\u2019re re-airing an episode that we originally released in February of this year with Columbia Law professor Jamal Greene \\u2014 a conversation that is even more relevant now than it was when we originally released it. The Dobbs ruling may be the most poignant example of how extreme the U.S. Supreme Court has become in recent years, but it\\u2019s certainly not the only one. \\n\\u201cGetting race wrong early has led courts to get everything else wrong since,\\u201d writes Greene in his book \\u201cHow Rights Went Wrong.\\u201d But he probably doesn\\u2019t mean what you think he means.\\n\\n\\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\\nWe also discuss the reason we have courts in the first place, why Greene thinks Germany\\u2019s approach to abortion rights could be a model for America, Greene\\u2019s case for appointing nearly 200 justices to the U.S. Supreme Court and much more. \\n\\nMentioned: \\n\\n\\u201cThe Dobbs Decision Isn\\u2019t Just About Abortion. It\\u2019s About Power.\\u201d by \\u201cThe Ezra Klein Show\\u201d\\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\\nWe\\u2019re hiring a researcher! You can apply here or by visiting nytimes.wd5.myworkdayjobs.com/News\\n\\nThoughts? Guest suggestions? Email us at ezrakleinshow@nytimes.com.\\n\\n\\u201cThe Ezra Klein Show\\u201d is produced by Annie Galvin and Rog\\xe9 Karma; fact-checking by Michelle Harris and Kristina Samulewski; original music by Isaac Jones; mixing by Jeff Geld and Isaac Jones; audience strategy by Shannon Busta. Our executive producer is Irene Noguchi. Special thanks to Kristin Lin and Kristina Samulewski.'