0:00:00.0 S?: This is the deal. I ran for president because I believe we're in a battle for the soul of this nation.

[music]

0:00:08.9 Leon: Hey everyone, this is Leon from Fiasco and Prologue projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking to New York Times columnist, Jamelle Bouie. They'll get into what the Democratic Party got wrong, about its response to the decision overturning Roe v. Wade. They'll also talk about why that's symptomatic of a larger issue with the party's approach to the judiciary and what they can do differently going forward. This is 5-4, a podcast about how much the Supreme Court sucks.

0:00:43.3 Rhiannon: Look at your incredible mic setup, Jamelle.

0:00:45.9 Jamelle Bouie: I just bought a bunch of expensive stuff and expensed it.

0:00:48.8 Rhiannon: Hell, yes.

0:00:49.7 Peter: Alright, we are here with Jamelle Bouie. Jamelle, welcome to the podcast, man.

0:00:56.3 Jamelle Bouie: Thank you for having me. Long time... Not a long-time listener, relatively recent listener, but I've gotten through most of your episodes, I feel like a long time listener. [laughter]

0:01:04.3 Peter: Right, right.

0:01:05.6 Rhiannon: Thanks for being here.

0:01:06.7 Jamelle Bouie: I think that counts.

0:01:07.3 Rhiannon: Yeah.

0:01:07.6 Jamelle Bouie: Yeah, Thank you.

0:01:08.3 Peter: Jamelle of course, for those who don't know, New York Times columnist and co-host of the Unclear and Present Danger podcast. And today, we wanted to talk with you a bit about the Democrats' response to the past Supreme Court term. Not just the jurisprudence of the term, but the sort of general sense that the court has A, lurched rights and B, sort of seized a pretty enormous amount of power for itself. And I think we can break this down into a couple of sections, a couple of broad sections. First, What should we be doing? What should the Democrats be doing? And then second, what are they doing? We can talk about their response to Dobbs, etcetera. That part can be short.

[laughter]

0:02:07.5 Peter: First, to kick this off, you wrote a couple of pieces for the New York Times shortly after the end of the term, one titled "How to discipline a rogue Supreme Court" and the other, "The Supreme Court is the last word on nothing." You made several discreet specific arguments, which I wanna touch on from jurisdiction stripping to the guarantee clause to the second and third sections of the 14th Amendment. But holistically, it seems like a part of what's running through these pieces is an argument for a re-conceptualization of our constitutional order away from one that has the Supreme Court at the center and toward one where Congress especially sort of asserts its ability not only to enforce certain Constitutional rights and obligations, but to keep the court in check. Is that a fair assessment?

0:03:00.0 Jamelle Bouie: I think That's right. I've been sort of writing on this vein for the past couple of years here and there, and the perspective I've come to, both in like kind of developing the argument to the writing, and then also just doing lots of reading especially on pre-Civil War American History, which is interesting for a lot of reasons, but especially interesting on this score is that it's not just that the idea that the Supreme Court is the final word on what the constitution means, that's a relatively recent development on sort of how these things work. Relatively recent meaning in the lifetimes of your parents and grandparents is like when this became the norm. But in the pre-Civil War era, it was very common for politicians, for members of congress or presidents to just actively contest constitutional meaning. To essentially say that as constitutional officers, we have the right to say what we think the constitution means and we can contest what the Supreme Court says about it, I mean this was one of the fallouts from Dred Scott.

0:03:56.8 Jamelle Bouie: It was the nascent Republican Party and its politicians saying, "No, the court's wrong, the court's wrong about what the constitution means. And if you elect us, we're going to do things to correct the court." And I think that is a tradition of American political thinking in American political life, that's really been lost over the last 50 or 60 years. The underlying idea is that whatever the Supreme Court says right goes. It isn't we're gonna use Congress, can you use the White House to a certain alternative constitutional meaning. We're just gonna change the composition of the court so that it falls in our favor. And I think what I'm kind of pushing is the idea that you don't actually... It would be nice to have a less insane majority on the court that's clear, but even without that, you can still contest constitutional meaning, and you can do things using the powers granted by the Constitution to Congress to actually... The way I put it, is discipline the court. To say that "Actually, no, you are not the final interpreter of what the constitution means, and that when you begin to overstep your power and your authority such that it even exists, we have the right as the elected officials of the country to push back."

0:05:09.9 Jamelle Bouie: In Marbury v. Madison, the court says, "well, we can say what the law means." You can read that as kind of establishing judicial supremacy, or you can read that it's just the court saying, "Well, we too have a say in what the constitution means, not exclusive from the other branches." And that's sort of where I've landed over the years, and it's as much about sort of developing a public and political culture, as it is about of concrete actions to push back on the court.

0:05:43.1 Michael: Yeah, it's interesting, you mentioned judicial supremacy 'cause that's a well-developed academic concept, right, in contrast to I think what you're describing in the academic literature, they call departmentalism, where all three coordinate branches are on equal footing in terms of interpreting the constitution, and that is not really in favor, these days. But I think you're already starting to see it bubble up. I was reading something I think in Talking Points memo where Josh Marshall was saying like,"Hey, all the elected say what the constitution means." And I think we're gonna start seeing more of that going forward, this idea that they're like... We're all constitutional officers here. We being elected officials and we all get a say.

0:06:31.5 Jamelle Bouie: Yeah. I mean, just on a practical level, I mean, when you kind of think about it, it's like, okay, Congress, the affordable care act. So a majority of the house passed it. Majority of the Senate passed it, it passed in the final reconciliation process, conference process, and the president signed it. And then four of nine justices said, we think that this entire law is constitutional in full. And so like, okay, five people say that it isn't who the fuck cares. Like really, really like what gave those five people weight over four of their colleagues, like be elected representatives of the country and the house and the Senate and the president of the United States who is again, elected by the people of the United States. Like why do these five people outweigh the constitutional judgment of half of their, again, their four colleagues and the rest of the officials. And I think the answer is like, it doesn't, I mean, it just doesn't. And I think liberals and Democrats need to get comfortable saying that saying who cares what you think.

0:07:38.2 Rhiannon: Yeah. Yeah. There's an extent to which I've been thinking about. I'm glad we're talking about judicial supremacy and Michael, I hope that you're right. That we are moving towards a different understanding of how the branches of government interplay with each other in terms of constitutional interpretation. I think it's important to point out that we're at this stage right now where Democrats are not putting forth any positive theories of what the constitution means, where Republicans have been doing that. Right. It's not that nobody is doing it. And we've just kind of moved away from the practice in general, it's that Republicans in a conservative legal movement, right. Made it one of their aims that, you know, elite interests, what the constitution means for, you know, the richest among us is sort of part of judicial supremacy is part of their constitutional interpretation and they're effectuating those goals through the judiciary, right? And it's all sort of built on top of each other on top of itself to make it where Republicans have put forth a positive theory of what they think the constitution means through their own conservative legal movement that has now put in place a conservative, super majority on the Supreme court. Like they are doing that. The Democrats are not.

0:09:00.7 Michael: I think that's right. And Joe Biden seems to be like, like a true believer, judicial supremacist. [laughter] like someone who very much is like, well, if the Supreme court says it then, you know, that's the world we gotta, we gotta live in. And I do wonder how much of this is just a product of coming up in the '50s, '60s and '70s in a period where the Supreme court was generally doing good and doing good over some public controversy at the time and creating an ideology that says, well, look, the Supreme court has the final word. And sometimes you might not like its decisions, but you gotta abide by them. And so Roe v. Wade is the law of the land and Brown v. Board is the law of the land and fully buying into that in a way that they can't like disentangle now. Right. Yeah. Now that they're looking at the opposite.

0:10:05.7 Peter: I think even the Democrats who do have a sort of like general sense that something is off here, like the court shouldn't be able to do this. They don't really have a language to articulate that. Right. The average Democrat doesn't have a coherent theory of like popular constitutionalism in their mind or something like that.

0:10:25.6 Rhiannon: Exactly.

0:10:26.2 Peter: Right. They're just sort of expressing these general frustrations, but they're still working within these frameworks that are based around judicial supremacy and based around all sorts of jurisprudential formalism. So Jamelle, I mean, in one of your pieces, you mentioned a couple of potential remedies here. You talk about jurisdiction stripping, you talk about the guaranteed clause, the 14th amendment, I'll leave it to you in terms of what you wanna discuss, but there's some interesting options in there. So I thought it might be worth letting you talk about it.

0:10:55.9 Jamelle Bouie: Sure. So that column is sort of the headline is about the Supreme court, but sort of broadly about what do you do about, you know, basically radical right wing legislators too that hate democracy. And so, you know, part of that, the Supreme court stuff is building off of the little kind of note I wrote right after the Dobbs ruling, kind of noting that Article 3, Section 2, isn't this like really weird way that it's clear that the people writing it just, we're not anticipating judicial review, as it currently exists, right? Like you can make a good argument that they were anticipating a form of judicial review. That was much more along the lines of, Oh, if something, if something clearly violates the constitution, then obviously the Supreme court gets to sort of like knock it down.

0:11:39.6 Jamelle Bouie: But the kind of broad judicial review that we have now, no one in 1787 was really anticipating that other than interestingly enough, the opponents of the constitution [laughter] So they write this kind of broad grant of power to Congress. Basically Congress can determine the appellate jurisdiction of the court in full, right. Like there's no limits to it. Doesn't say anything other than Congress can do it. Which kind of in theory, I mean, in theory, Congress could just sort of say, oh, the Supreme court can't hear appellate cases anymore. And there, there you go. That's probably never gonna happen. I'm not sure that it should, but that's just to say that if an empowered Congress, an empowered democratic majority in Congress wanted to wanted sort of, you know, pass expansive voting rights legislation, pass climate legislation, it could also then say within the text legislation, the court can't adjudicate this. Like this is not up to the court to say whether it's constitutional or not.

0:12:31.3 Peter: Yeah.

0:12:31.6 Jamelle Bouie: A thing that I like that I kind of went into a little bit, but went into prior into this note, after Dobbs is not even stripping the court's jurisdiction, but just raising the bar to overturning legislation really high to say that like...

0:12:46.0 Rhiannon: Sure.

0:12:46.4 Jamelle Bouie: If the court wants to invalidate a dually passed law by Congress, there needs to be seven votes or eight votes or whatever you want it to be. It needs to be unanimous.

0:12:55.4 Michael: It used to be six when people were discussing this, but that suddenly seems a little bit low.

[laughter]

0:13:03.4 Jamelle Bouie: But you just need a super majority of votes on the court to say, you can do this. You can kind of like do these kind of rules for all sorts of things for overturning precedents, that kind of thing. If the courts can overturn a precedent, it needs to be a nearly unanimous decision of the court. It can't be a narrow majority. So, and this was sort of inspired by a piece, an essay in that Biden, White House Supreme Court Commission, Sam Moyn, up at Yale, had a essay in it where he kind of makes the case that instead of thinking of how to turn the court's power in your favor, maybe think about the ways you can just restrain the court's influence altogether. And so things like jurisdiction stripping and like instituting high bars for overturning things are along those lines. Like how can we just make the court less powerful period. And then the other stuff is just about you have all these right wing dipshits in Congress who voted to overturn the election, just like, a mob came to sack the place. And then a couple hours later, they're like,"Yeah, we agree with that."

0:14:06.9 Rhiannon: Right.

0:14:07.4 Jamelle Bouie: Let's overturn the election. And so the point with the 14th amendment stuff in particular is to say that the constitution just has these clauses lying around. And If you wanted to use them, it would certainly be a big hubbub, people would be very upset, I'm sure. But there's nothing stopping a majority of Congress from saying, "Yeah, if you voted to overturn the election, you can't be in Congress anymore. Sorry." Like you've violated your oath of office. When you put it in those terms, it doesn't seem so crazy, but people find this really outrageous. To me it's not, like you swore an oath to the constitution. That presumably means that you shouldn't support violent attempts to overturn constitutional democracy. So if you do, I'm sorry, but you can no longer serve in Congress. That's sort of find some other job.

0:14:56.5 Rhiannon: Yeah.

0:14:56.5 Michael: Yeah. I mean, it's weird to say in the middle of like the January 6th committee hearings, which are very, I find like good television, well produced and the people involved seemed very committed to the project, but it does feel like overall institutionally the Democratic Party kind of was very sanguine about the January 6th mob that came to Congress looking to kill people, right? Let's be honest about what that was, right? I mean, there's literally court testimony from oath keepers saying, "Yeah, if we'd found someone, we would've killed them," and just being like, "Yeah, but that was then three hours later." [laughter] like, "Yeah. But that was then and now is the time to move on and get to the big task of governing." It's wild to me. I don't understand it. I really don't. I don't know how to wrap my mind around it.

0:15:55.0 Peter: I mean, I think they conceptualize of January 6th as like this sort of violent outgrowth of a very legitimate movement to use legal means if necessary to project the legitimacy of the election. And to the extent that any case is going to be made that like Republican lawmakers are part of the insurrection, you need to sort of tow that line where you're saying, "No, there's a difference between the Article 2 argument about state legislatures and the slates of electors. And what happened here in your participation in January 6th." I don't think it's that complicated of a case to make at the end of the day though. It seems you've got Holly throwing up the solidarity fist for the first time in his life at the crowd. And that's just sort of the most aesthetic example, it seems pretty clear that you have lawmakers that were actively engaged. If you...

0:16:47.8 Michael: Which... Who was it Boebert, who was tweeting out like Nancy Pelosi's vacation or something.

0:16:51.8 Peter: Yeah. Like, right. Boebert is like the low hanging fruit here. These morons who were giving tours and Googling how to do a public hanging the day before or whatever [laughter] I mean, it can't...

0:17:03.6 Michael: How to execute speaker of house. [laughter]

0:17:08.3 Jamelle Bouie: Right. I mean, you're not, look, you're not gonna get Ted Cruz most likely. If you wanna build, like really build a fleshed out case, but there are some Congress people who you could easily say participated in January 6th in the violent part of January 6th. Not just the sort of like through, through, maybe we could... Maybe we can give the election to Trump somehow sort of way academic, pseudo academic, but ostensibly academic side.

0:17:35.3 Michael: Yeah.

0:17:35.8 Peter: I also, Jamelle, I think it might be worth talking about, we've talked a little bit about Section 2 of the 14th amendment, which grants the ability to take away representatives from states who deny the vote to people within their state. The idea is that you have this pool of eligible voters. There are only very limited reasons for denying someone eligibility. And if you do anything outside of those legitimate reasons, then you lose representation, right. Because you've sort of lost the... You no longer have democratic participation from those people. So you don't get representation in Congress from those people. No one has ever tried [chuckle] to enforce this in any way, ever since its implementation is my understanding there's been some academic writing about it that basically says, "Well, I guess you could maybe do it, but who knows how."

0:18:34.8 Peter: But it's very conceptually simple and seems to make sense that if there are people being sort of actively denied the vote within your state, then of course you don't get representatives based on those people. It sort of flows from the structure of the constitution. And it seems like something worth talking about when we're talking about voting rights. It's sort of like, "Well, this is the trade off, then you don't get representatives." It's right there in the constitution.

0:19:02.0 Jamelle Bouie: Yeah. I agree but I don't necessarily find it so complicated. Just off the top of my head, you can look at a state like North Carolina where in statewide congressional elections, just like the statewide vote is not quite half and half like 51/49 they have Republicans, Democrats, 52/48 pretty evenly split. And yet Republicans get about nine or 10 of the state's like 11 or 12 house seats. And so there's a big, big discrepancy in votes and representation. And you can use those sorts of discrepancies to say, "Well, this is gonna be an estimate of how many people are essentially being disenfranchised. We can run some hearings, etcetera, etcetera. And then we can determine how much representation we're gonna take from North Carolina or Wisconsin until it gets into order, until it allows its voters to actually have a meaningful say. And this would have to run both ways, of course, but then I think it would make the democratic states decisions to go with nonpartisan gerrymandering commissions much less of a burden in terms of national power, right?

0:20:11.6 Peter: Yeah.

0:20:11.9 Jamelle Bouie: And this relates too to the guarantee clause, which is another one of those things in the constitution which it's just there, and no one has really ever tried to figure out what it means. There wasn't that much discussion of it at the convention in 1787 during ratification. Sort of the main discussions about it were like, "Oh yeah, well, if a state wanted to make their state some kind of monarchy, they can't do that." So those were the terms that they were thinking of, but beyond that, there's not much jurisprudence about the guarantee clause, it's just sort of this idle, almost like vestigial part of the constitution. But again, there's no rule that says you can't take idle and vestigial parts of the constitution, like turn them into something. Arguably, the independent state legislature theory is exactly that.

0:21:00.9 Rhiannon: Exactly.

0:21:02.9 Jamelle Bouie: Taking something that we've taken for granted for more or less 180 years, that you get to vote for the president and that when you do that, that's what it means, states can go back on that. And this crazy theory is saying, look, if you read this section kind of in the most insane way possible, then no, you don't have to. And in the same way, I think you can just say, the guarantee clause, every state must have a republican form of government. What does a republican form of government means, typically in classical republicanism, it means like meaningful self-government, it means that people are generally represented according to the votes that they cast. And if a state takes steps to essentially deny meaningful representation to large parts of its population, we can say, or... But another way, if majorities cannot dislodge minorities that claim power in a legislature, if there's no number of votes that can allow, say, democratic voters to elected democratic legislature, then that state doesn't have a republican form of government. And so then Congress can kinda just take over. This is kind of how reconstruction work. Congress is like, these states don't have republican forms of governments, now they're under military control.

[laughter]

0:22:18.3 Peter: Yeah.

0:22:18.5 Rhiannon: Right, yeah.

0:22:19.2 Jamelle Bouie: Now it's occupied by the Union Army, and we're gonna write new constitutions, and we're gonna get these things in order. It's there, it's sitting there. My view is what we're looking at in terms of the future of US democracy is republican. Like right-wing republicans basically using the license they've been given by the Supreme Court to create little enclaves of minority rule all around the country, and then using those enclaves of minority rule to capture national power, right? So if Pennsylvania Republicans and Wisconsin Republicans and Arizona Republicans and Georgia Republicans all sort of engineer their states so that Democrats can't really win and win state legislative control and then they have total control of the state legislature. If the Supreme Court has blessed this idea that state legislators have essentially unlimited power to do whatever they want when it comes to election rules, then it's a pretty kind of clear path to being able to say, only Republicans can win president elections.

0:23:24.2 Rhiannon: Right.

0:23:24.8 Jamelle Bouie: It's really not that difficult to do. You can easily imagine how it goes after that. Are we gonna assign our electors to the Republican candidate or to give it like a patina of legitimacy. You can still vote, but we're gonna take that vote into an advisement, or you can vote and that vote is binding unless there is evidence of fraud, in which case, then the legislature can make a determination, all sorts of ways to do it. The upshot of it all is that effectively your political opponent can't when the presidency anymore. And so if that's kind of the thing that is not just possible, but I think is increasingly kind of likely, then yeah, use the guarantee clause to just rip up state constitutions and say, "You can't do that."

0:24:10.7 Rhiannon: Yeah.

0:24:11.3 Jamelle Bouie: The democratic rights under the constitution extend to all Americans regardless of where they live. And to put a period on this thought here, in terms of ways for Democrats and liberals to think and talk about this, they should take inspiration from the Reconstruction Amendments to say that American citizenship doesn't vary by state. Your rights don't vary by state, that the constitution grants all Americans a baseline level of political and social rights that cannot be violated. And if they're violated by a state, that violation needs to be addressed. And we're going to interpret the constitution in a lawmaking to ensure that that's the case. And we are going to push forth a jurisprudence in which the Supreme Court looks at these issues and says, "Does this violate this baseline level of rights?" And if it does, then we gotta throw it out. But this current approach of not really contesting the idea that states have a say in these things, I think is a mistake because they don't. Let's be real, states suck.

0:25:18.5 Rhiannon: Yeah.

0:25:18.9 Jamelle Bouie: They're a bad idea, they were a bad idea at the start, and by and large, states have done a piss-poor job of defending the rights of Americans. It's been the federal government and Congress specifically that's done the best job among all of our terrible institutions of protecting the rights of the people. So let's lean into that.

0:25:38.2 Michael: Yeah, and it's sort of an invigorating vision of politics, but it's one that is almost certainly unapologetically partisan and hard knuckled. And that's not the Democratic Party as it currently exists, right? How do we get from here to there? How do we get a Democratic Party that would do that, right? Nancy Pelosi isn't gonna be leading the charge here.

0:26:08.3 Rhiannon: Nancy Pelosi is reading poems.

0:26:10.0 Michael: Yeah. That's right.

[laughter]

0:26:12.3 Jamelle Bouie: Reading poems, yeah, singing, eating ice cream.

[laughter]

0:26:17.8 Jamelle Bouie: Yeah, that's a good question. That kind of hard nosed and partisan Democratic Party needs to be driven by something ideological at the end of the day, there needs...

0:26:30.2 Rhiannon: Yes.

0:26:30.3 Jamelle Bouie: To be some sort of thing that people leading it believe in beyond just their own influence within the party, beyond winning office. I mentioned earlier I read a lot of kind of early to mid 19th century American history, 'cause I just find it very fascinating, and one of the genuinely interesting things is just like the development of the Republican Party, like how it came into being. And part of that story is anti-slavery politicians over the course of two decades, developing like a coherent message narrative about their political opponents. They called it the slave power and wasn't just that slavery was bad, but that you had slave oligarchs who like had a total grip on the operation of government, and were using their power to expand and defend this immoral thing. And so kind of the argument was like, give us power, whether it's the Liberty party or the Free Soil Party or whatever, or Free soil Democrats or whomever, it may be the case, give us the power and we will push back on the slave power.

0:27:35.2 Jamelle Bouie: It was a remarkably effective message because it contained ideology, right? Should it be a belief about what the proper order of things ought to be, but it also connected to events that happen. When the Compromise of 1850 is passed and the Fugitive Slave act comes down, anti-slavery politicians can sort of say, look, this is what we're talking about. When Roger Taney hands down Dred Scott they can say, this is what we're talking about, you can just constantly turn, come back to your overarching message and theory of your opponents of American politics. And that's more than just sort of like focus group messaging, it has to come out of sincere ideological convictions and the Democratic Party as it's currently constituted, just isn't like built for that. It isn't built for that kind of that kind of political combat, that kind of political messaging or anything, and I don't think it's a case of the party being too heterogeneous. The Republican Party in 1854 was varied heterogeneous, it was not like a singular unified thing. Everyone was anti-slavery, but that went from abolitionist or like slavery needs to end now and black people should have rights to yeah, we're against slavery because we just want like Indian land and we don't want anyone to take it. We don't want black people there. So. [chuckle] That's why we're against slavery.

0:29:02.0 Michael: Yeah.

0:29:02.6 Jamelle Bouie: Like you can have a big tent and also kind of an overarching ideological message. You just have to kind of develop it through politics and if there's anything that's really striking about the Democratic Party, I think in this moment is that it's just like allergic to politics and just.

0:29:20.3 Rhiannon: Yeah.

0:29:20.4 Jamelle Bouie: Sort of partisanship, and to not even for the sake of a policy, but just for the sake of like wanting to win.

0:29:27.3 Michael: Right.

0:29:27.7 Jamelle Bouie: Like I don't... I personally don't get it. Like if nothing else, do you not want to win? And aren't you interested in finding the most effective and aggressive ways to do that and the answer genuinely appears to be no, and I do not understand what that's about.

0:29:44.6 Peter: Oh, well I think that they maybe we're getting ahead of ourselves here, but it does feel like there are powerful people within the Democratic establishment who just sort of associate equivocation with victory in some way. Meaning that like the maintenance of the big tent is, was sort of how they feel like they've succeeded over the last quarter century or so, and therefore you sort of never get too aggressive in political fights, right? You always want to sort of edge towards the center, edge towards like what you feel moderates want, although I think that over time, what they think moderates want has become distinctly what [0:30:28.1] ____ wants...

[laughter]

0:30:29.1 Peter: Rather than like what the bulk of the country wants, right? They've sort of created a vision of the center of the country in their head that perhaps doesn't exist. But, nonetheless still like in their mind wants a period of political peace. And what they believe they can provide is peace, peace through not fighting back. [chuckle] So, maybe I think it makes sense to talk about the Democratic response to Dobbs.

0:30:54.0 Michael: All these pathologies are on display.

[laughter]

0:30:56.7 Peter: Right. Exactly. So obviously it feels like Democrats are not rising to the moment and I don't think anything sort of displays that more than everyone knows Dobbs is pending, and that Roe V. Wade is at stake. You can maybe forgive the administration for being caught flat footed when the leak happens, because it's certainly a few weeks before you'd ever expect to see the opinion. But at that point they have the best notice that anyone will ever receive about a Supreme court decision.

0:31:29.0 Michael: Once in a lifetime political opportunity here.

0:31:31.5 Peter: Right. And then they have six weeks to prepare a response, and yet when Dobbs drops, it feels like they're hearing about it for the first time. And all you get is sort of very fluffy rhetoric coming out of the establishment of the party.

0:31:45.8 Michael: At best.

0:31:45.9 Rhiannon: Yeah.

0:31:46.8 Michael: Jim Clyburn. Not so fluffy rhetoric.

[laughter]

0:31:49.9 Peter: Right, right. I guess at best these sort of aesthetic declarations and at worse sort of either shrugs or over the course of the next, of the following couple of weeks statements that are sort of chastising the left and the activist wing of the party as they perceive it. So, this is a broad question, but what the fuck do you think is happening here?

[laughter]

0:32:15.7 Peter: Why, when Dobbs rolls around, is this administration acting, A, shocked and then, B, sort of like unable to scramble any political will in the short term? Yeah. I find it just as inexplicable as y'all do, to the extent that I have any guesses about what's going on here. I think at least like 70% of it is just that like.

0:32:39.3 Jamelle Bouie: I'm not sure how much Joe Biden gives a about this stuff. And one thing that's clear from Biden's career, and this is in great '88 campaign book, "What it Takes" by Richard Ben Cramer which devotes a lot of time to Biden. One thing that's clear is that when Biden isn't enthusiastic about something, he kind of doesn't really give it that much time and attention and thought. And he's also just kind of an indecisive guy by nature, and I think we're kind of seeing some of those pathologies made worse by the fact that, he's old, that he's almost 80 years old.

0:33:11.6 Rhiannon: Yeah.

0:33:12.3 Jamelle Bouie: And he's not as vigorous or sharp as he may have once been. I think some of what's happening is that the White House does not have the kind of leadership it needs to act quickly and decisively when these things come up. In part because Biden isn't as decisive and isn't as aggressive as he should be. And so the result is that the Dobbs draft comes down, the White House apparently doesn't really do anything in response, and then they're caught entirely flat footed when the actual ruling comes at them. When what should have happened is that once that draft ruling came down, they basically should have convened like a war room and not just in the White House, but with democratic leaders in Congress and with governors.

0:33:58.7 Rhiannon: Yes.

0:34:00.0 Jamelle Bouie: And just should have gotten together and said, "What is our response gonna be to the end of Roe v. Wade? What are we going to do? What are we gonna try to preempt? What are we gonna say?" And kind of have that in your back pocket, so that when the ruling comes down, you can have a unified democratic message across the entire country by the leaders of the party. And I just don't think Biden thinks in those terms, I don't think senior democratic leadership in Washington thinks in those terms. And a fish rots from the head down. A sleepy Joe in the oval office is gonna be a sleepy White House, and I think that's kind of what we're seeing to a large extent.

0:34:33.4 Rhiannon: Yeah, I totally agree. It's this almost like sleepy illness, right? There's something kind of rotten at the core of it, that's causing this sleepiness, but it's not just the sleepiness, it's also in... You see these flashes of the Democratic Party also being hostile to people who are asking for action by the administration.

0:34:56.2 Jamelle Bouie: Don't interrupt our sleep. [laughter]

0:34:57.3 Rhiannon: Right, exactly. We're napping right now. Hello? Yeah, so two examples, just from recently. First of all, the White House communications director, Kate Bedingfield, Peter, you alluded to this, but she said quote, "Joe Biden's goal in responding to Dobbs is not to satisfy some activists who have been consistently out of step with the mainstream of the Democratic Party. It's to deliver help to women who are in danger and assemble a broad based coalition to defend a woman's right to choose now, just as he assembled such a coalition to win during the 2020 election." So alienating your base, the people who are asking you to actively engage with this looming crisis, with this crisis, who... That has come upon us slowly, predictably, you could have seen it happen, you watched it happen. And then secondly, not only hostile in its messaging to its own base, but secondly, there's this controversy around the appointment of this conservative Federalist society freak judge, Chad Meredith. It was leaked as recently as June 23rd, that there was an agreement between Biden and Mitch McConnell to appoint Chad Meredith, this conservative, notable anti-abortion lawyer, to the federal bench and in exchange Biden would get two US attorneys in Kentucky.

0:36:21.3 Rhiannon: How... It's mind boggling how the Democratic Party is not only sleepy and not up to the task, and the gerontocracy is stuck in its ways and unable to recognize and identify the crisis on multiple fronts that are in front of us, but also to be so politically incompetent that you are doing the opposite. That you are actively hurting any advancement or progress that the base wants to see made. It's just, it's really frustrating.

0:36:54.0 Jamelle Bouie: It's mind boggling. Especially in the latter case for that judge, because what, you're getting two US attorneys like for a lifetime appointment for some Chad? [laughter] What are you doing? No, I agree. I mean, Peter you mentioned, Democratic Party kind of following the lead of [0:37:14.0] ____ And I kind of think in that White House communications statement, you can 100% see that. You can 100% see the White House having fully imbibe this idea that the party's base and its activists are just sort of gonna lead the Democratic Party to ruin, and we have to keep them at arm's length and discipline them. Which to me is a crazy thought, because what the Biden administration's been doing for the last, what, almost a year now, is the kind of, keep the activists at bay only do and talk about popular things, and then hopefully we'll sail through. And the result has been Biden, is deeply unpopular, sort of like that. And the unpopularity isn't just with the Republican and Independent, it's with democratic voters, it's with young voters, it's with... His approval of black voters has gone down considerably, sort of across the board, Democrats are upset with Biden.

0:38:13.4 Jamelle Bouie: And so one would think, you'd have a little humility about your ability to act politically and divine the right political choices. And think that maybe the thing to do in this situation is to show your activist base that, we may have differences on infrastructure legislation, but we kind of agree on this one big thing, and we're gonna act aggressively to pursue this thing. But, there's this kind of hostility towards, not even against... Not even the Democratic Party left, but sort of just anyone who thinks anyone should be done. It wouldn't be forgivable if it was sort of like, "AOC and shut the fuck up." But, that would make a little more sense. But what the White House seems to be hostile to, is anyone asking them to do any more than they're currently doing. Which to me is just a recipe for failure, it's just a recipe for de-mobilizing your supporters and not actually making the kind of ground you hope to make. And this is again, before we get to the whole thing of trying to give a anti-abortion maniac, a lifetime federal judgeship.

0:39:20.4 Michael: Right.

0:39:21.0 Rhiannon: Yep.

0:39:22.2 Jamelle Bouie: Right.

0:39:22.2 Peter: There's something interesting about the way that the party establishment handles the base right now. And it feels to me they don't really think that progressives are the base of the party. They're conceptualizing the sort of intangible, moderate voter that they're trying to win as the base. And so they'll talk shit to the progressives and it takes on this weird form because on one hand, they're very willing to chastise the left and punch left pretty aggressively. On the other, they're making this sort of case that the left has like a moral obligation to vote for them and that the election of Democrats is not at its base about garnering a winning coalition, but really about telling voters that you must vote. And if you do not, you have sort of morally come up short, you've failed to do the right thing. And that's sort of like the primary message they're shooting left. So on one hand, it's like, you guys are a bunch of idiots, let the adults talk and then on the other, it's like also you really need to vote for us, otherwise you're of kind of a piece of shit.

[laughter]

0:40:39.4 Jamelle Bouie: Yeah, it's an incoherent message and it's all the more galling when I think if you look at the Biden administration thus far, the people who have been most responsible for its like failure are not progressives. It's not been progressives who have been trying to tank the Biden Administration's legislative agenda.

0:40:57.5 Jamelle Bouie: It wasn't progressives who joined the pylon after the withdrawal from Afghanistan. If you're looking at who has been the most reliable supporters of Biden hoping that the guy succeeds within the Democratic Party, at least within the legislative Democratic Party, it's been the progressive members who have done as much as they can to try to carry things along. And what they've gotten in return is just like constant shit for existing, not even for speaking up. Not even for speaking up, not even for running with unpopular messages. There's a whole parenthetical, I'm not gonna go into here, but that I have about how centrist Democrats have been blaming three people saying to fund the police two years ago for their failures for the entire time. But progressive Democrats in Congress for the most part stopped talking about that, did everything they were asked. And the response has been, you guys are the problem.

0:41:52.7 Peter: It's so galling and especially because, they are so certifiably in power. This is like saying, well then the Brooklyn Nets came up short the last couple of years and I blame stadium security. It's just that there's... The left has basically been flailing within the party for the last half centuries. What more do they want? What more control could they have over the situation that they don't currently? I don't think that they have sort of come up with a real ask from the left. In terms of like what they're looking for materially.

0:42:29.3 Jamelle Bouie: Yeah. Yeah. I think that's right.

0:42:30.6 Michael: Yeah.

0:42:31.4 Rhiannon: This feels like a good time to take a break... Okay. And we are back.

0:42:36.7 Michael: So I wanted to circle back to something we were talking about earlier and the unique opportunity, the leaked Dobbs opinion gave the party leadership. 'Cause I'm a 100% in agreement on that. And I mentioned Jim Clyburn, and I think his statement on the day that Dobbs came down is very illustrative of the issues here, where he was basically like, well, this is kind of anti-climactic we all knew this was coming. Which is like, this is a party that didn't even bother to get talking points together. Forget about policy and unified message. Just like basic talking points. This is something they do every four years, by the way, for presidential elections. They have the DNC, they get a party platform and then everybody's on the same page with messaging. They understand how to do this and the importance of it in presidential years. But I think we're even in this telling we're like giving Biden and the Democrats too much leeway because the truth is they had much more advanced notice than that. We can go back to September of last year when the Supreme Court let Texas's bounty law go into effect and everyone who isn't like brain-damaged understood that Roe v. Wade was dead at the time.

0:43:56.0 Michael: There's a certain level of diseased lawyer brain that is very common at Harvard law that would lead someone to write an article being like this doesn't mean Roe v. Wade is dead. But for everybody else, everybody not named Noah Feldman understood that when Texas was like, yeah, people can just collect bounties.

0:44:16.5 Jamelle Bouie: Here's your sixth shooter. Go at it. Have fun.

0:44:18.9 Rhiannon: Right.

0:44:19.6 Michael: Yeah. Yeah. Roe v. Wade was dead. They had months. And when you have months, you don't just have messaging to do. The administration has like the office of legal counsel available to them where they could say, "Write us a memo. Write us a memo." Everything to the Nth degree what I could do to protect access to reproductive health if the Supreme Court overturns Roe v. Wade. What are my options? They could have a white paper ready. So they were in position to have the materials in place for when the leaked opinion came out or when Dobbs came out to have a robust platform. Not just messaging, but a platform. A suite of actions they can take with the best lawyers in the country, giving their justifications for why they can take them and a whole list of reasons why, if there's certain actions they think are too aggressive justifications for why. They could be fully prepared for this.

0:45:30.2 Michael: They weren't. That's a failure. There's no way of two ways about it. They fucked up. They have totally fucked up. It's unbelievable. And they're still not doing this. This is still all happening very, by the seat of their pants. They read an op-ed and then they're like, Oh, I don't know. Maybe we'll have some quote on background saying like, we don't like that idea or something.

0:45:49.4 Michael: But there's no coherent... We are gonna figure this out in a systematic way, what we can and can't do, what we should and should not do and then we're gonna be transparent about those things and really push the limits. That's not who Joe Biden is. It's just not, and it's not who the Democratic leadership in Congress is, 'cause they're not really pushing for this... Like that's...

0:46:17.5 Jamelle Bouie: Well, they did roll out Kamala though. They did a release the Kraken with Kamala. Release our Kraken I cannot say a sentence.

[laughter]

0:46:29.8 Jamelle Bouie: Let's get her going.

0:46:31.2 Rhiannon: Yeah. I will never forget Kamala being interviewed and answering the question, "What do you say about people who are saying, please do something? Roe V. Wade has been overturned, the Democratic Party has to do something." And her response being, "Do what?" [laughter] It's just...

0:46:50.5 Jamelle Bouie: Again, and Michael you're right. There's a suite of actions that the White House should have taken in coordination with Congress and in coordination with governors, with states. Pritzker, Newsom all the big blue states where abortion access is secure. Even the... Even smaller states like Massachusetts, like Connecticut, there could have been a thing where everyone gets together and like, "This is what we're gonna do collectively to protect these rights." And then in terms of messaging, even just in terms of simple messaging. I'll say the one thing I'm surprised Biden did, and I'm glad he did it, and I think they should do this more, is they talked about that awful story out of Ohio about that little girl who had to go to Indiana to get an abortion, because she had been raped. And I kinda think the White House should just... Every time a story like this comes up, they should talk about it, it should be a thing that the president talks about.

0:47:46.4 Rhiannon: That's right.

0:47:48.2 Jamelle Bouie: Like, "This is what this looks like people." And, if you don't want this for the entire country, we need to vote against Republicans. You just gotta say that. You gotta say the Republican Party wants this outcome. And if they get... Mitch, your buddy Mitch McConnell is gonna get upset about it, let him get upset. Let Republicans go on television and have to say the words, "No, we don't want 10 year old rape victims to give birth." Let them have to say that. But again, that takes a level of partisanship, it takes a level of just willingness to fight that Rhiannon you, as you point out, they just don't... They don't have. They don't, for whatever reason, don't have the kind of willingness to really go all out. The Trump administration in its first year announced that... Well, it was the department of Homeland security would publish a ongoing record of crimes committed by, "illegal aliens".

0:48:41.7 Jamelle Bouie: Which is awful, it's like... That's like Nazi shit. But that idea of using the bureaucratic apparatus to pursue a political goal like that is something that you should do if you have that power. And so the Department of Justice should... Whenever we have some awful case about a woman prosecuted for going across state lines to get an abortion, DOJ should talk about it, president should talk about it.

0:49:10.5 Rhiannon: Yes.

0:49:10.5 Jamelle Bouie: I don't think that's sufficient in terms of a response, but it's the kind of way that the Democrats should be thinking, like, "How can we... If we really think that this is gonna be a winning issue for us, then how can we keep it in the public's mind? And how can we show Americans on a regular basis constantly, in ways that might be shocking and upsetting that this is what abortion bans mean, this is what they look like, this is what you get."

0:49:38.2 Jamelle Bouie: I forget who has made this argument, but there's a good case to make that sort of, Democrats in general, just don't understand the current media environment. And what they don't understand is that the only way you're gonna break through to the public, is not by... Not by being competent. It's by doing something that creates a big splash, doing something that creates outrage, that gets people's emotions up. And even if there is a backlash from your opponent, that is actually good for you, because it shows that you've seized the conversation in an important way.

0:50:05.5 Rhiannon: Exactly.

0:50:06.1 Michael: Yeah. I was about to say, you could tell that the 10 year old rape victim story was effective because there was backlash and the entire Murdoch media empire mobilized to discredit it. And they had the attorney generals of Ohio and Indiana on trying to say the story reeked of bullshit, and you had hacks in the Washington post saying, "I don't know, maybe this... " And of course they all turned out to be absolutely wrong and the story was true. But they were doing everything they could to cast out on this story because it's effective messaging. So they can't allow it to stand there unanswered.

0:50:47.5 Peter: Right. And now they're doing, "Well sure, it was real, but what's going on with this doctor? Did she mess up her reporting obligations? Let's focus on that." And I'm sorry, but when you have the enemies talking about the reporting obligations of some doctor, you're winning on the messaging front.

0:51:00.9 Jamelle Bouie: Right, exactly.

0:51:02.7 Rhiannon: Yes.

0:51:02.7 Michael: Yes, absolutely.

0:51:03.7 Jamelle Bouie: And, [chuckle] this is. I don't know why I'm laughing, 'cause it's fucking horrible, but...

0:51:08.3 Rhiannon: That's what we do every week on this podcast, Jamelle.

[laughter]

0:51:13.0 Peter: Yeah, that's... That should be our tagline.

[laughter]

0:51:17.8 Jamelle Bouie: Ohio have reported by May 9th I think, that there have been 52 cases of sexual assault on a minor, under the age of 16. And, if Ohio's like 3 1/2% of the country's population about, that comes to... If you're gonna generalize those numbers to the country, that's like 1500 cases every year. Some of which probably involve a pregnancy and then will probably likely require an abortion. So, there's material out there for you to talk about in this regard. Are there moral and ethical questions when it come to using this stuff for political messaging? Yes. But, I think that the stakes here are such that you gotta run with it, I don't know. I keep going back in my mind to the political campaign against slavery in 1840s, and the 1850s, which made use of the equivalent of this kind of thing, or the campaigns against lynching in the 1910s and 1920s, where the NAACP would take lynching photographs and print them in papers and try to circulate them to say, "This is what this stuff looks like." People don't actually respond to well reasoned coached arguments. They respond to things that upset them and disgusts them and scare them.

0:52:33.0 Jamelle Bouie: Democratic Party if nothing else, needs to learn this, needs to learn that this is what people respond to. The Republican Party fucking gets it. I live in Virginia and they managed to turn an academic theory into a boogie man, like the CRT people are gonna come and take your precious white child. They managed to do that. And notably Democrats just... Had no response to it. Completely foiled against it.

0:52:57.1 Peter: All right. All right.

[laughter]

0:53:03.3 Jamelle Bouie: I got no solutions. I just sort of have a diagnosis of what their problem is.

0:53:07.5 Michael: That's...

0:53:07.8 Peter: This is classic 5-4, classic 5-4 podcast recording ending where we're,"Whew. All right, well."

[laughter]

0:53:13.3 Rhiannon: Yeah, that was a rough conversation. I don't feel good.

0:53:17.4 Peter: Jamelle. Thanks for joining us. We appreciate your time. Do you wanna share anything before we sign off?

0:53:24.3 Jamelle Bouie: Sure, first my pleasure. Thank you for inviting me. You can read my column at the Times. It's usually Tuesdays and Fridays. I know Times Opinion is a fraught place, but my column is good. Yeah.

[laughter]

0:53:37.3 Rhiannon: That's right. Yeah. It's a diamond in the rough...

0:53:39.5 Jamelle Bouie: It is.

0:53:39.6 Rhiannon: Out there. Yeah.

0:53:40.5 Jamelle Bouie: And then my friend and I, John Ganz, who has a Substack newsletter on sort of American politics and history and stuff. We have a podcast called Unclear and Present Danger. We more or less watched 1990s dad movies. And mentally place them in some kind of larger historical and cultural context. For example, we had a recent episode on Joel Schumacher's film Falling Down. Which is sort of super weird, more subversive new thing, but also kind of proto Maga in a lot of ways. We just tried to talk through that movie kind of LA in the early '90s, kind of all the social and cultural stuff. So that's sort of how the podcast typically goes and you should listen to it.

0:54:19.8 Peter: All right. Well, again, Jamelle, thanks for coming on.

0:54:25.1 Jamelle Bouie: All right.

0:54:26.0 Peter: Don't have to wait until next week for a new episode, we will be dropping a special interview this Thursday with Liz Warren, Senator from Massachusetts, talking about court reform about the Democrats handling of the court. Generally keep an eye out for that in a couple of days. And then next week, a premium episode recorded live at the People's Parody project convening few weeks back where we talked about the court's handling of free speech and how it relates to cancel culture and a bunch of other hot button topics. Follow us on Twitter @fivefourpod, subscribe to our Patreon, patreon.com/fivefourpod all spelled out, access to premium and add free episodes, special events, our Slack, all sorts of shit. We'll see you in a couple days.

0:55:25.0 S?: Five to four is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin and our assistant producer is Arlene Arevalo. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spacial Relations.

0:55:51.1 Michael: That sounds awesome.

0:55:51.9 Rhiannon: Yeah, that's great.

0:55:52.7 Michael: I generally think listening to podcasts is for deranged people, but I will listen [laughter] I'm gonna check that out. That sounds really cool right up my alley.