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HEFFNER: I'm Alexander Heffner, your host on
The Open Mind.
As four-to-four Supreme Court decisions loom
in the shadow of a vacant justice,
we're honored to welcome today Harvard Law School
Dean Martha Minow, for her insight into the
American legal system.
Vice-Chair of the Legal Services Corporation,
providing civil-legal assistance to low-income
Americans, Minow is a leading scholar of human
rights and advocacy for racial and religious
minorities, author most recently of,
In Brown's Wake: Legacies of America's
Constitutional Landmark.
Most notably, perhaps, Minow is the teacher
whom President Obama cites as life-changing,
to channel his cause of social justice
for a common good.
At the helm of the law school amid intensified
racial tension across this country,
Minow compassionately addressed the defacement
of black professors' photographs,
and the university has since removed its seal
with ties to an 18th-century slaveholder.
"We can't choose our history,
but we can choose that for which we stand,
Minow wrote to the community,
"Above all, we re-dedicate ourselves
to the hard work
of eradicating not just symbols of injustice,
but injustice itself," her words.
Now we'll explore the climate of legal
education, the state of the American judiciary,
but first, obstructionism in the US Senate.
And let me begin, Martha, by thanking
you for being here.
MINOW: It's an honor to be here.
HEFFNER: Obstructionism.
You and a counterpart at Pepperdine wrote
in a Boston Globe column about the appointment,
would-be appointment of Justice,
would-be Justice, Judge Merrick Garland
to the bench.
And you are critical of this instinctive
obstructionist tendency, um,
and, that might be emblematic of,
uh, obstructionism on a broader scale.
But in this case, in this point,
what's the concern?
MINOW: Deanell Tacha, who's the
Dean at Pepperdine, and I
participated with,
many other law school deans in the letter to
members of the senate, just actually pointing
to the Constitution, which directs the President
of the United States to make appointments
when there are vacancies on the court,
and with the advice and consent of the senate.
And so, she and I decided to write an editorial,
because both of us have had experiences in
countries where the rule of law is not strong.
Uh, where there is civil war.
Where there is disorder.
And, it, it seemed to us important to underscore
that this is a treasure, our rule of law,
our judiciary independent from politics,
and it's in jeopardy.
Uh, right now, I, I understand the poli-,
politics of the situation, I think that many
Republican members of the senate believe that,
uh, it is a, uh, get out the vote move.
They can indicate that they're strong
for their base.
But the Constitution's pretty clear.
The president has to, uh, nominate someone.
The senate can choose to disapprove.
There's nothing, uh, in their Constitution
that says the grounds upon which
they must vote.
But to refuse even to meet with the individual,
or to have the process go forward,
that's just pure politics.
HEFFNER: To what do you attribute this kind of
de-legitimization of the process?
MINOW: Well, I have to be honest
and say members
of both political parties have contributed to it.
Uh, and, uh, you know, even President Obama
when he was a senator, uh, contributed to it,
in the sense of voting against a well-qualified
individual because he disagreed with the view.
Again, that's the prerogative of
the senators.
They're allowed to, uh, express their views
on any basis.
I think that the new height of obstructionism,
which refuses even to engage the issue,
is, in some ways, an acknowledgement that,
if the issue were engaged, there
actually wouldn't
be grounds, uh, for refusing to,
uh, uh, to confirm, uh, Merrick Garland,
uh, for the Supreme Court.
And that's a really sad moment.
When people in a democracy are afraid of having
the conversation, because it might actually lead
to a conclusion they don't like,
as opposed to saying, let's have the
conversation, and let's learn,
and, you know, let's, let me try to persuade you,
and if I'm not persuading you,
then you try to persuade me.
That's what we hope for.
HEFFNER: And we hope that the
political outcome
will be civil, will be thoughtful,
and, uh, will ultimately yield some kind of result.
MINOW: That's why my work in Kosovo,
for example, ca-, came to mind,
when I was thinking about this moment.
I don't think it's an exaggeration to say
that respect for the judiciary, respect
for the rule of
law is in jeopardy.
Uh, the, uh, public regard for the,
the Supreme Court is much lower now than it used
to be, even though it's higher than the public
regard for the elected branches.
This is not good for our society.
Uh, when conflicts, uh, which we will have,
we will always have conflicts,
when conflicts, uh, cannot be resolved with respect
for the judgments, that's not good for anybody.
HEFFNER: Well, I think you point out,
and we were talking about this off-camera,
the inherent political nature of the
appointment process.
And there's something to be said for this kind
of inseparability of law and politics in,
in the realm that is public affairs,
dating all the way back to our first Chief Justice
and our earliest Justices.
I'm thinking about, um, Justice Marshall,
I'm thinking about Justice Chase.
Where do you draw the line when thinking about
the political stakes of an appointment?
MINOW: The United States Constitution builds
politics right into the process of
selecting federal judges.
It gives the appointment power to an elected
official, the President of the United States.
It gives an advising consent power to the
senate, in the mutual-checking device
of our Constitution, the politics are
built-in by law.
And that mutual-checking possibility of the two
branches of government in the selection of the
personnel for the third branch is an
acknowledgment by the framers that ours has to
be a practical system, in touch with the views
of the people.
But this third branch, the judiciary,
is designed to have a longer view.
To have individuals who are more insulated
from politics.
They're not elected directly.
They're appointed for life.
So, politics enters, but it's also,
uh, controlled.
And if you bypass this process,
I'm not sure what we do.
Of course, in the states, about half the states
elect their judges, and that's an even more direct
involvement with politics.
Um, but I think it's not the same as the elections
of many other candidates.
Uh, people who run for the judiciary,
um, I think are pretty careful to indicate that
they will adhere to the rule of law.
HEFFNER: Well, I think you said it,
a selection process.
And even though there may be some problems
associated with the politics of judicial
elections, it's a process.
MINOW: Yes.
HEFFNER: It's a selection.
And the American people under these circumstances,
are not even guaranteed that.
MINOW: Unfortunately, no, and,
you know, you could say, well,
in the, uh, era of modern technology,
people could just vote on their phones for who
they want to be judges.
We could amend, uh, all of the ways in which
we select our leaders, uh, with
the advent of modern technology.
We haven't done so.
It's actually served us fairly well.
Ours is the longest enduring constitutional,
written constitution in the world.
At the moment, I think it's strained.
It's showing the strains, uh,
of, of politics, and, uh, a frustration.
I think it, unfortunately, reflects a real breakdown
in the political parties themselves,
which is fascinating because the,
our constitution did not anticipate
political parties.
They're not even written in the Constitution,
there's no guidelines.
When we look at the arcane processes of delegate
selection in the primaries and caucuses,
it's not in the Constitution.
This is all created post, uh, Constitution.
And, uh, yet I think right now we're in the middle
of tensions between and within the
political parties.
They're not functioning that well.
HEFFNER: And how does that,
uh, bode for the future of legal education today?
The effort of, uh, one of your students to be above
the fray and transcend what is this ideological
trench warfare in pursuit of, of the law.
Whether you have a more living constitutional
theory or you're more of a textualist,
there, there may be ideas associated with those
approaches, uh, but their fidelity is to the,
the law and the Constitution,
and not to a political convention or a
political party.
MINOW: Well, let's put it in perspective.
Um, at the United States Supreme Court,
which hears maybe 60 cases a year,
um, most of the cases are resolved,
uh, without much dispute.
Um, and, uh, the 10 or 15 that are
controversial,
um, we all know about, and we hear about,
but most of the cases are not so controversial.
Uh, the federal courts hear just a tiny sliver
of the cases that go to court in this country.
Most of the cases are in the state courts.
And most legal issues never go to court.
So, the legal system is actually not in jeopardy
in quite the way that your question suggests.
At the same time, access to law is in jeopardy.
And here I see, from my vantage point as the
vice-chair of the Legal Services Corporation,
a serious crisis going on in this country.
Eighty percent of low-income people have no
access to the civil justice system,
meaning anything but criminal law.
So, whether they're dealing with access to
veteran's benefits, or a protective order to guard
against domestic violence, or a way to guard against
the loss of their home due to foreclosure
and unscrupulous behavior by mortgage,
uh, providers, there's no way they
can afford a lawyer.
And that's a serious problem.
Because that, again, erodes respect for law,
it re-, it, it erodes the prospects for justice.
And if we also put that together with,
uh, the privatization of justice,
eBay resolving over a million disputes last year
online, without a person in-,
involved at all, just with an algorithm.
Uh, private companies ha-, requiring,
uh, mandatory arbitration rather than access to
court for the resolution of consumer disputes,
and so forth.
If we see more and more ways in which ordinary
people cannot enforce their legal rights,
that's a more serious problem than the pol-,
politics that you're describing.
HEFFNER: So how is the board on which you sit
attempting to resolve this severe inequity?
MINOW: Well, the Legal Services Corporation,
which was created under the presidency of
Richard Nixon, reflected a bipartisan view,
uh, with the leadership of the American Bar
Association, that law is important for advancing
democracy, and securing liberty for every person.
You think about the Pledge of Allegiance,
uh, "liberty and justice for all." This is at the
core of the American creed.
The creation of the, uh, uh,
Legal Services Corporation was a recognition
that low-income people have trouble being able
to afford a lawyer.
Uh, its funding has gone up and down.
It's, it's created by the, uh,
by the federal government, it's funded by the federal
government, although it's a private
non-profit organization.
The members of the board are appointed
by the President of the United States;
confirmed by the senate.
It's kind of an odd duck, uh,
kind of a public/private entity.
How the board right now operates is by continuing,
uh, try to work with the congress to secure
sufficient funding for the grantee organizations,
uh, across all of the states.
And also to deal with just the basic fact:
we will never have enough money for lawyers
for poor people.
So one of our major initiatives has been to
develop new technologies that can help people
without a lawyer navigate the legal system,
and help sort the cases that really need to have
a lawyer from those where an individual
with some help,
uh, online, uh, may be able to manage
by him or herself.
The technology innovations are fantastic.
Uh, for example, interactive websites
that allow a veteran and members of a veteran's
household to be able to get their questions
answered, uh, so that they aren't stuck languishing,
uh, with, uh, with no response,
uh, from the bureaucracy.
Um, I think that there are great innovations in many
other fields where law could learn.
Uh, it's happened in medicine,
it's happened in, um, in just simply consumers',
uh, experiences with large stores.
You can go online, and you can have a,
actually a fairly intelligent conversation
with a computer, uh, to sort out what your problem
is and at least, uh, get some answer or more
efficiently get to a human being.
And I'm excited to see the work that Legal Services
Corporation is, is supporting all over the
country in this, uh, vein.
HEFFNER: But you don't want to veer too much
towards the eBay algorithms in adjudicating
this, right?
MINOW: Well, I think-
HEFFNER: I mean in, in terms of the
broader picture
of the democratization of law, because you're
saying the sheer volume doesn't allow
for that kind of due
consideration across socio-economic lines.
MINOW: I should be clear that the eBay,
uh, dispute resolution receives
rather high marks
from those who participate.
HEFFNER: Mm-hmm.
MINOW: Uh, I think the problem is,
if we foreclose any public justice,
then we cut off the virtuous cycle that's
represented by law, where there are public decisions
which then deter misconduct in the future.
We need to have both.
We need to have private dispute sy-,
systems, and we need to have public
dispute systems.
HEFFNER: Or even just public scrutiny.
MINOW: Public scrutiny would be an advance.
HEFFNER: Right.
I think that this question of democratization
is very, uh, relevant to your focal point,
your focus as a scholar, um,
on, uh, racial equity.
What you've studied, from Brown onward,
uh, you were a clerk for Justice Marshall,
um, Thurgood Marshall.
Um, you've seen the evolution of Brown,
uh, in both the betterment of American society,
and maybe the, um, the, the opposite of that in,
uh, combatting a resurgence of racially
charged, um, legal thought and,
uh, political action.
And I'm really talking about the
disenfranchisement of the American voter.
Uh, can you weigh in on that subject,
and how you see Brown's relevance today?
MINOW: Well, there are so many different elements
packed into your good question.
Uh, the status of African-Americans,
uh, in the United States following America's
original sin of slavery continues to be,
uh, uh, simply unsatisfactory.
Um, the nature of economic disadvantage,
uh, in creating basically two Americas.
Uh, those who have access to resources,
and those who don't, have very different
experiences with the justice system,
with healthcare,
with education, with every aspect of life.
Um, in addition, the role of courts as an instrument
for trying to rectify injustice with,
perhaps Brown vs. Board of Education being a
high-water mark,
but really an unusual use of the courts to go out
ahead of public opinion.
Uh, compared with the use of the legislative
process, uh, to try to express the views
of the majority.
Um, and another aspect of your question,
uh, that I think can't be denied is,
um, whether or not we even have a "we" in this
country, at this moment-
HEFFNER: What do you mean?
MINOW: - is there a "we"? Uh, is there a sense of
a common purpose,
a sense of a common identity,
a sense of a common mission?
HEFFNER: Do you think that,
in terms of the pendulum that swung from,
um, Earl Warren's court to William
Rehnquist's court,
um, that that has some relevance to this
conversation, of how we view,
uh, and how we treat people of color in
this country?
MINOW: Well, of course.
So, let's talk about the, uh,
legacy of Brown vs. Board of Education,
which, of course,
didn't come out of nowhere.
It reflected over 20 years of,
ex-, uh, pr-, uh, practice and litigation,
uh, efforts by leaders at the NAACP legal defense
fund, including my former boss Thurgood Marshall,
and many other, uh, very, uh,
uh, creative and courageous,
uh, lawyers and, uh, leaders building on,
step by step, the challenge to the prior
decision, Plessy vs. Ferguson, from the 1890s,
where the Supreme Court
had ruled that the equal protection clause of the
14th Amendment does not guarantee integrated
experiences.
Instead, Plessy said, separate can be equal.
That case arose in the context of railroad cars,
which literally sorted people by race,
what car they could sit in.
And it wasn't just separate cars.
The car reserved for black Americans
was far inferior.
Um, uh, the challenge to that doctrine focused,
over time, on schools, on public education,
and what Thurgood Marshall said to me was,
we said, "separate but equal,
okay, show us the equal.
The strategy was to actually look at the
expenditures on schools, and to show- which was not
hard to show- that the amount of public dollars
going into the schools for black children was a
sliver of the amount going to the schools
for white children.
One of the strategies, therefore,
was to integrate the schools,
because, as Justice Marshall used to say,
"You can't have differential expenditures
when the kids are sitting next to each other in the
same classroom." Of course,
another goal was to tackle the ideology of racial
superiority that was, uh, reinforced by segregation,
uh, with one of the pivotal cases coming out
of the University of Texas,
refusing to admit black students to the
law school there.
The University of Texas said,
we'll create, we'll create a separate school,
a separate but equal one.
The school was such a sham,
it was easily rejected by the Supreme Court.
It was one desk, uh, in the courthouse.
It was not a school.
It didn't have a library.
It didn't have a faculty.
So, "separate but equal" was easily demonstrated
as a sham in that case.
Ironically, today, University of Texas,
we have a case pending in the United States Supreme
Court about whether the University of Texas'
use of race as one factor in admitting students
violates the equal protection clause.
Now, somewhere between the earlier decision
and the current pending one, the
country has changed,
and the country has changed in a
couple of ways.
Brown vs. Board of Education mandated
the dismantling
of segregated schools.
Uh, nothing happened in the country other than,
uh, resistance for about ten years.
After ten years, uh, actually,
under the leadership of President,
uh, Nixon, a Republican, the federal government
began to enforce, uh, the law.
There was a backlash.
There was a serious backlash.
And, uh, he changed his own,
uh, uh, uh, views on the subject,
and he appointed to the Supreme Court individuals
who slowed down desegregation.
In the meantime, the congress acted,
and enacted the 1964 Civil Rights Act,
and that shifted the focus on,
uh, desegregation to other branches of government.
We've had a mixed story ever since.
Um, probably, uh, one big turning point happened
when, uh, actually desegregation efforts in
the schools started to bring in suburban
schools in the north.
And the Supreme Court said,
no, you can't do that if you haven't shown that
there was an original act of discrimination in the,
in the suburban schools.
That contributed to white flight,
with many whites with any resources leaving
the public school systems, either by moving to the
suburbs or moving to private schools.
The backlash goes on today.
Um, we can talk further about it,
um, but, in some very important respect,
it does reflect the impact of politics on law.
HEFFNER: Looking at the backlash that ...
is evident in our politics against what was perceived
as a preference for, or preferential treatment
that minorities, um, would be getting,
how do you see the legal, the constitutional,
um, framework evolving in a way
that undermines the ...
whatever constitutional legitimacy that idea has,
that we were giving a preference to people of
color, and now we have to somehow undo
that preference?
MINOW: So, the idea that there are preferences
involved, um, is itself, of course,
one of the big, uh, controversies,
uh, in the issue of race relations.
Uh, to dismantle segregated systems,
um, may look like giving a preference,
but I don't think it is.
Uh, and, and the problem that has emerged in
schools in particular, um, is the continued,
um, exclusion of disadvantaged people from,
uh, uh, educational opportunities.
In public education right now,
schools are more racially separated today
than they were in 1953.
That's not by law.
It's by the, uh, activities of,
uh, housing, uh, where housing units are built.
Uh, it's by, um, zoning, uh,
it's by decisions about where to draw the lines
between school districts.
It's much more subtle than it was before.
I think, in response to that,
it's understandable that many school systems,
public school systems created,
uh, magnet schools to try to draw students
from different backgrounds together,
and, of-, often have included race as a factor
in the selection.
Is that a preference?
It's trying to overcome a disadvantage.
HEFFNER: And in some way, the court has condoned or
validated the present culture.
MINOW: Well, well the Supreme Court has said
when the, um, patterns are a result of private
decisions and not governmental decisions,
then the Constitution does not apply.
Because, it is true that the 14th Amendment,
enacted after the Civil War,
protects people against discrimination
by government.
The problem is disentangling private
preferences, government preferences.
That's very, very challenging.
Um, when you, you talk about the,
the pipes in Michigan, you know,
that's a political decision.
That was a decision made by the political actors,
not by law, to go with a cheaper alternative
of outsourcing.
HEFFNER: Mm-hmm.
MINOW: The law was not part of that.
HEFFNER: Right.
MINOW: The law, actually, is producing
some remedies for it.
Um, and if we talk about the criminal
justice system,
you know, I don't think we have a separate
but equal criminal justice system.
We have a criminal justice system that
is racialized.
Um, but it's even more, uh,
a system for poor people.
If you have resources, whatever your race-
HEFFNER: Mm-hmm.
MINOW: - you will do much better in the criminal
justice system than if you don't.
And that's, that's a tragic truth,
in a country that says that we guarantee equal
justice for all.
HEFFNER: Where do you see the Roberts court taking
the country on these questions,
these fundamental questions about
race in America?
MINOW: Well, Chief Justice Roberts,
uh, who I respect, uh, a great deal,
will continue to lend his name to the court
as long as he's the chief justice.
You know, I think that, um,
actually, for the last 30 years,
many issues of racial politics have shifted
from the judiciary to the elected branches.
And I predict that that will continue
to be a pattern.
That said, the court has every year one or two
or three cases that inv-, involve racial justice.
And I think it will continue to be a struggle
inside that court about the relative weight
to give to color-blindness versus
race-consciousness.
The issue of class is much harder for the courts.
There's nothing in the Constitution that protects
people against discrimination on the
basis of income.
That will require political action.
HEFFNER: Hmm.
And do you foresee that materializing
at any point?
MINOW: I, I think it's beginning to happen.
I think that we see some cities that have developed
living wage, uh, ordinances.
I think that we see, um, some efforts to actually
put real restrictions on unscrupulous
behavior by creditors.
Um, I think that the Consumer Finance Agency
is a reflection of the politics,
uh, of a political reaction to the abuses,
uh, behind the financial disaster.
So, uh, I hope the system will continue to react.
But if the electoral process is broken,
uh, that is a far more serious problem,
and there the courts have an indispensable role
to play, making sure that the system itself
can hear people's preferences.
HEFFNER: Martha Minow, Dean of Harvard Law
School, thank you for coming on The
Open Mind today.
MINOW: Thank you so much. Great
conversation.
HEFFNER: And thanks to you in the audience.
I hope you join us again next time for a thoughtful
excursion into the world of ideas.
Until then, keep an open mind.
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