The Supreme Court Went Off the Rails Long Before Dobbs

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’s decision in detail, and we will continue to come out with new episodes on the ruling — and its vast implications — in the days and weeks to come.

Today, we’re re-airing an episode that we originally released in February of this year with Columbia Law professor Jamal Greene — 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’s certainly not the only one.

“Getting race wrong early has led courts to get everything else wrong since,” writes Greene in his book “How Rights Went Wrong.” But he probably doesn’t mean what you think he means.

“How Rights Went Wrong” 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’ data to drug companies — 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 — they lose. A man from Long Island claims the right to use his homemade nunchucks to teach the “Shafan Ha Lavan” karate style, which he made up, to his children — he wins.

Greene’s 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’t do constitutional law the way other countries do it. Rather, we recognize too few rights, and we protect them too strongly. That’s created a race to get everything ruled as a right, because once it’s a right, it’s unassailable. And that’s made the stakes of our constitutional conflicts too high. “If only one side can win, it might as well be mine,” Greene writes. “Conflict over rights can encourage us to take aim at our political opponents instead of speaking to them. And we shoot to kill.”

It’s a grim diagnosis. But, for Greene, it’s a hopeful one, too. Because it doesn’t have to be this way. Supreme Court decisions don’t 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.

We also discuss the reason we have courts in the first place, why Greene thinks Germany’s approach to abortion rights could be a model for America, Greene’s case for appointing nearly 200 justices to the U.S. Supreme Court and much more.

Mentioned:

“The Dobbs Decision Isn’t Just About Abortion. It’s About Power.” by “The Ezra Klein Show”

Book Recommendations:

Rights Talk by Mary Ann Glendon

Law and Disagreement by Jeremy Waldron

Cult of the Constitution by Mary Anne Franks

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“The Ezra Klein Show” is produced by Annie Galvin and Rogé 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.

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